May 3, 2011 By James Kimer

Russia Legal News Blast, May 3, 2011

[Editor’s note:  on hiatus since late January, we are back by popular demand with our daily Russia Legal News Blast, summarizing the latest developments in the Russian and trade press essential for lawyers both in and beyond Russia and the former Soviet states.] Vedomosti has published an article by a Russian lawyer concerning new proposed amendments to Article 10 of the Civil Code. Article 10 concerns so called abuse of rights (as meant originally, a chicanery). During the Yukos legal fiasco, prosecutors from the Russian government regularly relied upon Article 10 as a universal excuse to deprive the defendant and its subsidiaries of basic due process and other normal rights in this type of trial. In short, the concept of “abuse of rights” was given a new meaning, not justified by either the plain wording of the article or its legislative history, to provide a thin veneer of legitimacy for the unlawful handling of the Yukos case by the state. It seems that now the Russian authorities are seriously considering a possibility of amending the article to include the infamous concept of the Soviet “law” – the construct of “acting in circumvention of the law” (as distinguished from “acting in violation of the law”). During the Soviet period, the construct was used in cases where a person acting obviously within the limits set out in the Soviet statutes, ran afoul of the political authorities. If a case received certain notoriety and international scrutiny, and the courts were unable just to ignore whatever law there was, the concept of “acting in circumvention of the law” was used as a justification for an adverse decision. In this way, nobody could be sure that he would escape an adverse judgment merely by acting in full compliance of the law. Now, it seems that the concept has a good chance to get back on the books in Russia.