SPBILF 2019 Discussion Sessions
A column providing details of themes which will become the key topics to discuss at the Forum.
Discussion Session ‘Protection of Children's Rights in Cross-Border Family Conflicts’
The growing scale of migration processes has resulted in an increase in mixed marriages and, therefore, in the number of children one of whose parents is a foreign citizen and/or resident, which, in turn, has driven up the number of cross-border disputes involving children.
The session will provide an opportunity to address issues related to protecting children’s rights in relevant transborder disputes. In particular, the agenda includes cooperation issues pertaining to the implementation of the 1980 and 1996 Hague Conventions.
In this area, Russia and France have collaborated on a remarkably efficient and innovative cooperation model in the form of the Russian-French Commission for the Protection of Children’s Rights in Family Conflicts, which has the capacity to discuss varied cases under consideration and facilitate information exchange with the purpose of their resolution.
- Enforcing the child’s right to maintain contact with both parents in cross-border conflicts
- International cooperation as a guarantee of children’s rights and the implementation of the Hague 'child' conventions
- Principle 6 of the 1959 UN Declaration of the Rights of the Child and today’s reality
- Criminal liability for child abduction in the context of the 1980 Hague Convention application.
Discussion Session ‘Estate Separation: Trust-Based Assets Protection’
In our legal context, the question of trust adoption has a well-considered motivation to protect assets defined by specific purposes of designation. It is no coincidence that the legislator does not abandon attempts to allow the existence of personal (or trust) funds. However, the task of protecting assets without forming a legal entity is much more complex. Special accounts (nominal accounts, escrow accounts) serve this task today, but assets other than money need additional legal frameworks, which can be subject to a similar regime. The formation of special accounts requires the achievement of certainty along the same parameters, by which the protection of other assets also seems quite justified and achievable. On the other hand, the separation of specific assets from the estate (separation) also means the establishment of the privilege of foreclosure in favour of a certain creditor, which entails impairment of the other creditors’ rights and therefore requires special justification. The purpose of the discussion is to establish the requisites of property separation.
Points for discussion:
- Applicability of property separation.
- Personal funds: advantages and disadvantages.
- Special account regime: privileges in the insolvency context.
- Separation and pledge.
- Separation and numerus clausus of property rights.
- The problem of real subrogation and the notion of property contour.
- Separated assets in turnover. Ways of protecting separated assets. Management of separated assets (powers, scope of liability, criteria of imputation). Public law aspects of separation.
Discussion Session ‘Insurance Law Reform: Expectations and Opportunities’
The Presidential Council for Codification and Enhancement of Civil Legislation has approved the concept of modification of Chapter 48 of the RF Civil Code, and will present the respective draft law for public discussion by experts soon.
The main purpose of insurance law reform is to remove any restrictions and prohibitions that has become irrelevant and hinder the industry’s development. The developers of the concept believe that elaboration of parties’ rights and responsibilities would result in better trust between insurers and insurants. One more purpose of the reform is to build more systematic insurance law. As applicable to the practice, the reform would help to resolve certain problems related, inter alia, to directors’ liability insurance, development of mandatory and mutual insurance in Russia.
Issues for discussion
1. What changes to statutory regulation may increase the demand in insurance?
- is it necessary to regulate 'consumer' and 'business' insurance agreements separately?
- illegal interests in insurance, and the borderlines thereof. Is it necessary to change anything in the existing statutory regulation?
- 'group' insurance agreements: is a due protection of insured persons’ life possible?
- consideration of insurant’s gross negligence: potential for development or a threat?
2. Disclosure obligations of the parties under an insurance agreement — the way to overcome mistrust between the parties of insurance.
- what should be the structure of insurer’s disclosure obligations set out in statutory acts? Which procedures should be employed to provide for insurer’s clients protection?
- what changes related to insurants’ disclosure obligations are necessary?
3. Impact of insurance law reform on development of different types of insurance
- to what extent would the reform solve the problems related to development of directors’ and other officers’ liability insurance
- would the reform be able to solve the problems related to life insurance?
Discussion Session ‘Force Majeure in the New Reality: Pandemic, Man-Made Accidents, Information Systems Failures’
By 2020, the Russian judicial practice included very few judicial acts releasing business debtors from liability due to Force Majeure events. The discussion of Article 401(3) of the RF Civil Code was based on the explanation why some circumstance was not a Force Majeure event. Such practice resulted from a high objective standard set by these provisions of the RF Civil Code, providing for extraordinary and inevitable nature of Force Majeure events.
Nevertheless, in a similar way as some time ago the active construction of railways made it expressly relevant to study the institute of Force Majeure, the pandemic called, first of all, for the institute to be revisited today. In particular, the RF Supreme Court in its Review of Some Judicial Practice Issues Related to Application of Law and Measures to Prevent Spreading of the New Coronavirus-induced Infection (COVID-19) №1 approved by Presidium of the RF Supreme Court on 21 April 2020, has pointed out that the abovementioned provision must be applied.
It is also evident that in the digital era it is very important for relationships governed by civil law to assess such events as communication disconnections, blackouts, hacking attacks and other factors interfering with operations of digital platforms, including the ones responsible for essential services to residential areas and functioning of transport.
The agenda of the round table will be as follows:
- Signs of Force Majeure events and their correlation to an incident. May one and the same circumstance be a Force Majeure event for some obligations and not a Force Majeure event for some others?
- Implication of acknowledgment of a Force Majeure event. Debtor’s protective obligations on occurrence of Force Majeure events and implications of default thereunder;
- Correlation of the institutions of Force Majeure (Article (401 (3) of the RF Civil Code), impossibility of performance (Articles 416, 417 of the RF Civil Code) and material changes in circumstances (Article 451 of the RF Civil Code): in search for an objective differentiation criterion. Relevance of the institutes upon resolution of disputes resulting from occurrence of the pandemic.
- Force Majeure as a ground for release from liability under financial obligation;
- Significance of certifications by Chambers of Industry and Commerce for acknowledgment of Force Majeure events.
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