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THE UNIDROIT Principles As Reference for the Uniform Interpretation of National Laws: National Report for Russian Federation

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Use of the UNIDROIT Principles to Interpret and Supplement Domestic Contract Law

Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GSCL,volume 51))

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Abstract

The UNIDROIT Principles of International Commercial Contracts have been warmly received in Russia by both legislature and judiciary. The courts as well as arbitral tribunals have made ample and multifaceted use of the Principles. In particular, the UPICC have been many times referred to in order to help interpret or supplement Russian domestic law. They have been invoked for this purpose in almost three hundred judgements, several decisions by the highest courts among them. References have been made to over forty different articles of the Principles.

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Notes

  1. 1.

    Koncepcija razvitija graždanskogo zakonodatel’stva Rossijskoj Federacii [Concept for the Development of Civil Legislation of the Russian Federation] (2009), p. 28. For a similar attitude from the head of the working group on obligations in regard to the rules on assignment of rights, transfer of obligations etc. cf Vitrjanskij (2018), p. 242.

  2. 2.

    For a discussion in detail cf. Shirvindt (2016), pp. 57–59.

  3. 3.

    Cf. Alekseev (1998), p. 24; Makovskij (2016), pp. 27, 100.

  4. 4.

    Abolished in 2014.

  5. 5.

    For a similar research limited to the period 2006–2016, Oleg Malkin and V. Domračev have used another database (‘Rospravosudie’) that does not exist anymore. The total numbers they give are comparable to those provided in the present paper (Malkin and Domračev (2016), pp. 3–19).

  6. 6.

    As the research underlying the present paper has shown the impact of the UPICC on the Russian case law as evidentiated by the UNILEX database at www.unilex.info (48 judgements in Russia out of the worldwide total of 266 as by the end of 2018) is in fact much stronger.

  7. 7.

    Awards of the ICAC of May 24, 2013 in case No. 166/2012; of January 20, 1997 in case No. 116/1996 (in both cases there was an agreement of the parties that their contracts be governed by the UPICC; in the latter case the parties agreed on that during the arbitration proceedings); of June 5, 2002 in case No. 11/2002 (agreement of the parties that their contract be governed by ‘general principles of the lex mercatoria’).

  8. 8.

    Ruling of the 13th Arbitrazh Appellate Court of October 12, 2005 in case No. А56-25065/2004 (the court applied Art. 7.4.3(1) UPICC as a rule of an international treaty thus prevailing over Russian national law); decisions of the Arbitrazh Court of Saint-Petersburg and Leningrad Oblast of June 6, 2017 in case No. А56-38822/2016 and of December 21, 2016 in case No. А56-32510/2016 (in both cases the same court (represented by two different judges though) dealt with controversies between the same parties (from Italy and Russia) arising from the same contract; the court arrived to the applicability of the UPICC on the basis that the parties had not chosen any law to govern their contract and that both Italy and Russia are members of the UNIDROIT); decision of the Arbitrazh Court of Tyumen Oblast of August 7, 2012 in case No. А70-1319/2011 (the court inferred from the agreement of the parties that they had chosen Russian law and the UPICC as the laws applicable to the contract and kept referring throughout the judgement to the respective provisions of the UPICC next to the rules of the Russian law as if it were applying both of them at the same time).

    In its brand new guidelines the Supreme Court clarifies that the UPICC, the PECL, the DCFR and alike may be chosen as applicable law and that they don’t apply unless there is an explicit agreement of the parties (the Resolution of the Plenum of the Supreme Court of July 9, 2019 [No. 24]).

  9. 9.

    Awards of the ICAC of June 30, 2009 in case No. 11/2009; of February 1, 2007 in case No. 23/2006; of June 6, 2003 in case No. 97/2002; of July 27, 1999 in case No. 302/1996; of April 16, 1999 in case No. 152/1998; of June 5, 1997 in case No. 229/1996. See also Komarov (2011), pp. 661–664.

  10. 10.

    Decision of the Arbitrazh Court of Sverdlovsk Oblast of March 11, 2012 in case No. А60-44985/2011.

  11. 11.

    East Siberia District: Arbitrazh Courts of Zabaykalsky Krai (95, years 2011–2016) and of Irkutsk Oblast (10, years 2014–2016) and the 4th Arbitrazh Appellate Court, responsible for both of them (65 and 7 respectively, years 2010–2017) despite occasional objection by a party (as evidenced by the ruling of the 4th Arbitrazh Appellate Court of November 15, 2013 in case No. А78-5882/2013). Far East District: Arbitrazh Court of Primorsky Krai (74, years 2012–2018) and the 5th Arbitrazh Appellate Court (2, year 2016); Arbitrazh Court of Khabarovsk Krai (15, year 2012) and the 6th Arbitrazh Appellate Court (4, year 2012).

  12. 12.

    The Russian law is not the only national law that has been interpreted in Russia in light of the UPICC. An arbitral tribunal supported its reasoning based on the applicable Algerian law with a reference to the generally accepted principle of good faith as entrenched in Arts. 7(1) CISG and 1.7 UPICC (award of the ICAC of January 26, 1998 in case No. 76/1997).

  13. 13.

    Decision of the Arbitrazh Court of Novosibirsk Oblast of December 12, 2014 in case No. А45-6801/2014; decisions of the Arbitrazh Court of Belgorod Oblast of May 23, 2007 in case No. А08-1403/07-12 and of April 20, 2007 in case No. А08-9855/06-12.

  14. 14.

    Decision of the Arbitrazh Court of the Karachay-Cherkess Republic of August 18, 2014 in case No. А25-2310/2013.

  15. 15.

    Decision of the Arbitrazh Court of Volgograd Oblast of June 17, 2013 in case No. А12-30996/2012; award of the ICAC of January 25, 2001 in case No. 88/2000.

  16. 16.

    Decision of the Arbitrazh Court of Kemerovo Oblast of May 13, 2015 in case No. А27-2291/2015.

  17. 17.

    Decisions of the Arbitrazh Court of Kaliningrad Oblast of March 22, 2010 in case No. А21-13179/2009, of March 19, 2010 in case No. А21-881/2010, of March 18, 2010 in case No. А21-13753/2009 (CISG, UPICC, PECL, ‘international legislation as well as the Russian one’: fundamental breach of contract); rulings of the 10th Arbitrazh Appellate Court of September 11, 2018 in case No. А41-28999/16 and of August 30, 2018 in case No. А41-27072/16 (Civil Code, UPICC, the 1974 Convention on the Limitation Period in the International Sale of Goods (which has not entered into force for Russia) etc.: limitation period shall be taken into consideration only if invoked by a party).

  18. 18.

    Decision of the Leninsky District Court of Tambov of January 23, 2013 [No. 2-209/2013].

  19. 19.

    Resolution of the Plenum of the Supreme Court No. 5 of October 10, 2003, para 1; Èbzeev (2013), pp. 160–162. Cf. also an older Resolution of the Plenum of the Supreme Court still in force speaking of ‘generally accepted principles and norms of international law entrenched in international covenants, conventions and other instruments (inter alia in the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights)’ as distinguished from international treaties (Resolution of the Plenum of the Supreme Court No. 8 of October 31, 1995, para 5).

  20. 20.

    For a judgement explicitly denying the applicability of the UPICC on the ground of Art. 7(1) CCRF cf. the ruling of the Federal Arbitrazh Court of the Central District of July 19, 2011 in case No. А68-7105/10-441/3. For similar (although not particularly clear) reasoning against the PECL cf. the decision of the Aritrazh Court of Tula Oblast of April 20, 2006 in case No. А68-ГП-127/2-06.

  21. 21.

    The decision of the Arbitrazh Court of Moscow of January 31, 2005 in case No. А40-63571/04-90-666.

  22. 22.

    The ruling of the 3rd Arbitrazh Appellate Court of September 4, 2012 in case No. А33-395/2012.

  23. 23.

    The decision Arbitrazh Court of Samara Oblast of June 5, 2015 in case No. А55-3416/2015.

  24. 24.

    The decision of the Arbitrazh Court of Moscow of August 30, 2006 in case No. А40-42490/06-151-219.

  25. 25.

    Decision of the Blagoveshchensk City Court of Amur Oblast of March 10, 2017 in case No. 2-1710/2017. For similar reasoning in respect of the DCFR cf. the decisions of the Kalininsky District Court of Saint-Petersburg of September 30, 2014 in cases No. 2-512/2014 and 2-513/2014.

  26. 26.

    The fact that has been often stressed in the literature. Cf. e.g. Vilkova (2016) and Rozenberg (2012).

  27. 27.

    Award of the ICAC of December 22, 2008 in case No. 83/2008.

  28. 28.

    Award of the ICAC of September 6, 2002 in case No. 217/2001.

  29. 29.

    Award of the ICAC of July 27, 1999 in case No. 302/1996.

  30. 30.

    Award of the ICAC of June 5, 1997 in case No. 229/1996.

  31. 31.

    Award of the ICAC of September 5, 2014 in case No. 33/2014.

  32. 32.

    Award of the ICAC of November 12, 2004 in case No. 174/2003.

  33. 33.

    Braginskij (1997), pp. 36–37.

  34. 34.

    Ruling of the 4th Arbitrazh Appellate Court of March 4, 2015 in case No. А19-21433/2011.

  35. 35.

    Decisions of the Arbitrazh Court of Kemerovo Oblast of May 13, 2015 in case No. А27-2291/2015; of May 13, 2015 in case No. А27-1526/2015; of May 5, 2015 in case No. А27-3408/2015; of April 29, 2015 in case No. А27-3942/2015; of April 24, 2015 in case No. А27-3006/2015; of April 17, 2015 in case No. А27-2519/2015; of April 17, 2015 in case No. А27-1471/2015; of April 15, 2015 in case No. А27-1321/2015; of April 13, 2015 in case No. А27-1325/2015.

  36. 36.

    Cf. e.g. the decision of the Arbitrazh Court of the Moscow District of October 7, 2016 in case No. А40-119204/2015 and the rulings of the Arbitrazh Court of the Central District of July 19, 2011 in case No. А68-7105/10-441/3, of the 13th Arbitrazh Appellate Court of May 12, 2011 in case No. А56-38206/2010, of the Federal Arbitrazh Court of the North-West District of June 4, 2007 in case No. А52-3668/2006. But see for instance the ruling of the 4th Arbitrazh Appellate Court of November 15, 2013 in case No. А78-5882/2013, where the court ignored the objection of the appellant to the application of the UPICC in the absence of party agreement by the lower court and invoked the UPICC as well. In another case the appellate court dismissed a similar objection because the lower court had just pointed out that the approach of the Russian law ‘doesn’t contravene the international practices’ as represented by the UPICC (the ruling of the 19th Arbitrazh Appellate Court of July 25, 2007 in case No. А08-9855/06-12).

  37. 37.

    The rulings of the Arbitrazh Court of the Moscow District of February 2, 2015 in case No. А41-26400/14; the decision of the the Arbitrazh Court of Ivanovo Oblast of December 25, 2009 in case No. А17-8326/2009.

  38. 38.

    Cf. e.g. the rulings of the Arbitrazh Court of the Moscow District of August 20, 2014 in case No. А41-67682/13, of the Federal Arbitrazh Court of the Volga Vyatka District of December 10, 2010 in case No. А82-1970/2010, of the Federal Arbitrazh Court of the East Siberia District of July 24, 2003 [No А19-6862/01-13-48-Ф02-2202/03-С2], of the Federal Arbitrazh Court of the West Siberia District of May 22, 2007 in case No. А45-8249/2006-5/249.

  39. 39.

    According to Oleg Malkin and V. Domračev over 97% of judgements lack any justification of the use of the UPICC (see n 5).

  40. 40.

    Article 434.1. Pre-Contractual Negotiations.

    1. 1.

      Unless otherwise provided by a statute or an agreement, citizens and legal persons are free to negotiate contracts, shall themselves bear expenses connected with such negotiation and are not liable for failure to reach an agreement.

    2. 2.

      When entering pre-contractual negotiations, during such negotiations and after the termination thereof the parties are bound to act in good faith; they shall not, in particular, enter into or continue pre-contractual negotiations when a priori not intending to reach an agreement with the other party. To act in bad faith is presumed who:

      1. 1)

        provides incomplete or misleading information to the other party, inter alia while non-disclosing circumstances which, according to the nature of the contract, shall be brought to notice of the other party;

      2. 2)

        abruptly and unjustifiably breaks off pre-contractual negotiations under circumstances under which the other party to the negotiations could not reasonably expect it.

    3. 3.

      A party which negotiates or breaks off pre-contractual negotiations in bad faith, is liable for the damages caused by that to the other party.

      As damages to be paid by the party in bad faith are considered expenses, incurred by the other party in connection with pre-contractual negotiations, as well as in connection with the loss of opportunity to contract a third party.

    4. 4.

      If in the course of pre-contractual negotiations a party receives information which is given by the other party as confidential, the former party is bound not to disclose that information and not to use it improperly for that party’s own purposes, whether or not a contract is subsequently concluded. In case of a breach of that duty the breaching party must recover damages of the other party caused by disclosure of the confidential information or by use thereof for purposes of the breaching party.

    5. 5.

      Parties can make an agreement on the negotiations procedure. Such an agreement can specify the requirements of negotiating in good faith, can set the rules on compensation of the expenses on negotiations and make provisions on other similar rights and duties. The agreement on the negotiations procedure can include penalty clauses for the breach of the provisions stipulated in it.

      Terms of the negotiations agreement limiting liability for parties’ acting in bad faith are void.

    6. 6.

      The provisions of the paras 3 and 4 of the present article concerning one party’s duty to pay damages, caused to the other party, do not apply to citizens considered to be consumers according to the legislation on consumer rights protection.

    7. 7.

      The rules of the present article apply whether or not a contract is concluded as a result of the negotiations.

    8. 8.

      The rules of the present article do not exclude application of those of Chapter 59 of the present Code [i.e. the law of delict] to the relationships that have arose during the establishment of contractual obligations.

  41. 41.

    Explanatory Note. P. 34 (available on the official website of the State Duma of the Russian Federation: http://asozd2.duma.gov.ru/main.nsf/(ViewDoc)?OpenAgent&work/dz.nsf/ByID&205D56A126366E2E432579D6002D6C73). It seems noteworthy that the reference to the models appears only on the last stage of the preparatory work. Neither the detailed draft Concept for the Improvement of the General Provisions of the Russian Law of Obligations (http://privlaw.ru/wp-content/uploads/2015/11/koncep_OPOP.rtf), nor the (final) Concept for the Development of Civil Legislation in the Russian Federation (n 1 above) (p. 122) which served as the template of the Explanatory Note disclosed their sources of inspiration in this case. The final Concept makes only a vague reference to ‘the respective rules of a number of foreign legal systems’ (p. 122).

  42. 42.

    See e.g. Gajdaenko-Šer (2016), pp. 55, 57; Demkina (2016), pp. 31–34.

  43. 43.

    cf. e.g. the previous note.

  44. 44.

    Article 431 Interpretation of a Contract

    While interpreting the terms of a contract the court shall take into account the literal meaning of the words and expressions contained in it. The literal meaning of a term of a contract, in case the term is unclear, shall be established by way of comparison with other terms and the sense of the contract as a whole.

    If the rules contained in the first part of the present Article do not allow determining the content of the contract, the actual common will of the parties shall be explored with account taken of the purpose of the contract. In such a case, all the relevant circumstances shall be taken into account, including the negotiations and correspondence preceding the contract, the practices, established in the mutual relationships of the parties, customs, and the subsequent conduct of the parties.

  45. 45.

    Braginskij (1997), p. 216; Vitrjanskij (1999), p. 559.

  46. 46.

    Karapetov (2017), Suhanov (2016) and Iljušina (2016).

  47. 47.

    cf. e.g. the ruling of the Supreme Court of March 20, 2018 [No. 4-КГ17-70].

  48. 48.

    cf. the resolution of the Presidium of the Higher Arbitrazh Court of June 10, 2014 [No. 2504/14] in case No. А40-79875/2013.

  49. 49.

    The resolution of the Plenum of the Supreme Court of December 25, 2018 [No. 49], para 46.

  50. 50.

    Decision of the Ukhta City Court of the Komi Republic of November 14, 2017 in case No. 2-3685/17.

  51. 51.

    Award of the ICAC of December 22, 2008 in case No. 83/2008.

  52. 52.

    But see a recent case where the Supreme Court explicitly extended the substantial scope of Art. 431 CCRF by way of analogy: ruling of the Supreme Court of October 8, 2018 [No. 308-ЭС18-9823].

  53. 53.

    Award of the ICAC of December 22, 2008 in case No. 83/2008.

  54. 54.

    See note 44.

  55. 55.

    Braginskij (1997), pp. 220–221.

  56. 56.

    Decision of the Ukhta City Court of the Komi Republic of November 14, 2017 in case No. 2-3685/17.

  57. 57.

    While preparing what became the resolution of the Plenum of the Supreme Court of December 25, 2018 [No. 49].

  58. 58.

    Award of the ICAC of September 6, 2002 in case No. 217/2001.

  59. 59.

    In a monetary obligation it may be provided, that it shall be paid in rubles in a sum equivalent to a certain sum in a foreign currency or in artificial monetary units (ECU, Special Drawing Rights’ etc.). In this case the sum to be paid in rubles shall be determined at the official exchange rate of the respective currency or artificial monetary units on the day of payment, unless another exchange rate or another date for determining it is established by a statute or agreement of the parties.

  60. 60.

    Resolution of the Plenum of the Supreme Court of November 11, 2016 [No. 54], paras 31 and 32; the Informational Circular of the Presidium of the Higher Arbitrazh Court of November 4, 2002 [No. 70], paras 3 and 4.

  61. 61.

    As pointed out by the fathers of the Code: Makovskij (2007), p. 14; Braginskij (2002), pp. 15–16.

  62. 62.

    The decisions of the Arbitrazh Court of Kaliningrad Oblast of March 22, 2010 in case No. А21-13179/2009, of March 19, 2010 in case No. А21-881/2010, of March 18, 2010 in case No. А21-13753/2009 (‘The fundamental character of the breach is required by the Vienna Convention of 1980, the UNIDROIT Principles, and by the Principles of European Contract Law as well. International legislation (sic!) as well as the Russian one provides for termination of contract only in case of a fundamental breach of contract by another party’). See also Shirvindt (2017), pp. 389–390.

  63. 63.

    Decision of the Pravoberezhny District Court of Lipetsk of November 18, 2011 in case No. 2-2195/2011.

  64. 64.

    Resolution of the Plenum of the Supreme Court [No. 13] and of the Plenum of the Higher Arbitrazh Court [No. 14] of October 8, 1998, para 4.

  65. 65.

    Resolution of the Plenum of the Supreme Court [No. 6] and of the Plenum of the Higher Arbitrazh Court [No. 8] of July 1, 1996, para 52.

  66. 66.

    Resolution of the Presidium of the Supreme Court of February 16, 2017, question No. 3.

  67. 67.

    Decisions of the Arbitrazh Court of Belgorod Oblast of May 23, 2007 in case No. А08-1403/07-12 and of April 20, 2007 in case No. А08-9855/06-12 (Art. 7.4.9(1) UPICC with an extensive citation of the official commentary thereto has been invoked with no obvious reason alongside Art. 1107(2) CCRF, which stipulates that interest is to be paid in accordance with the rules of Art. 395 CCRF upon the sum of the monetary unjustified enrichment from the time when the debtor has learned or should have learned that his enrichment was unjustified); decisions of the Krasnogvardeysky District Court of the Republic of Crimea of October 21, 2016 in case No. 2-931/2016, of September 15, 2016 in case No. 2-2069/2016, of September 14, 2016 in case No. 2-2064/2016, of August 16, 2016 in case No. 2-2046/2016, of June 15, 2016 in case No. 2-1864/2016, of May 31, 2016 in case No. 2-1694/2016, of February 25, 2016 in case No. 2-938/2016, of November 18, 2015 in case No. 2-2697/2015 (in this series of decisions a judge has used the reference to Art. 7.4.9 UPICC alongside various domestic sources of law as a part of standard formula. The reason for using the UPICC is not clear).

  68. 68.

    According to Alexander S. Komarov, the then president of the ICAC, the Article had been applied by the ICAC ‘rather often’ (in: Principy meždunarodnyh kommerčeskih dogovorov UNIDRUA 2004 [Principles of International Commercial Contracts UNIDROIT 2004] / transl. by Alexandr S. Komarov. Moscow: Statut, 2006).

    Among the reported cases of the ICAC there is one in respect to which it is hard to say whether it qualifies as a case where the UPICC were used to interpret or supplement the Russian law. An arbitral tribunal has invoked Art. 7.4.9 UPICC alongside the relevant provisions of the CISG and the CCRF to support its view that both the interest and the late payment penalty can be claimed at the same time (award of the ICAC of May 13, 2008, reported as ‘case No. 34’ in: Rozenberg (2010), pp. 327–328). But see criticisms by Sadikov (2012) who points out that Art. 7.4.9 UPICC does not address the issue of penalties. It is hard to say whether this case qualifies as one where the UPICC were used to interpret or supplement the Russian law.

  69. 69.

    Decision of the Arbitrazh Court of Saint-Petersburg and Leningrad Oblast of February 22, 2007 in case No. А56-42348/2006.

  70. 70.

    Award of the ICAC of May 19, 2004 in case No. 100/2002.

  71. 71.

    Resolutions of the Presidium of Higher Arbitrazh Court of May 22, 2007 [No. 420/07] and of June 8, 2010 [No. 904/10].

  72. 72.

    Resolution of the Plenum of the Supreme Court of March 24, 2016 [No. 7], para 57; resolution of the Plenum of the Supreme Court of the Russian Federation [No. 13] and of the Plenum of the Higher Arbitrazh Court [No. 14] of October 8, 1998, para 23 (in force until March 24, 2016).

  73. 73.

    Resolution of the Plenum of the Higher Arbitrazh Court of March 14, 2014 [No. 16], para 11.

  74. 74.

    Ruling of the Supreme Court of May 20, 2015 [No. 307-ЭС14-4641]. The references and the wording stem from the respective pre-ruling of June 2, 2015 No. 304-ЭС15-4108.

  75. 75.

    Rulings of the Arbitrazh Court of the West Siberia District of June 10, 2016 in case No. А45-9847/2015, of the Arbitrazh Court of the Moscow District of December 28, 2017 in case No. А40-3175/2017; rulings of the 8th Arbitrazh Appellate Court of July 8, 2016 in case No. А70-1120/2016, of July 1, 2016 in case No. А75-9969/2015; decisions of the Arbitrazh Court of Novosibirsk Oblast of June 22, 2016 in case No. А45-6859/2016, of the Arbitrazh Court of Moscow of September 24, 2018 in case No. А40-138828/18-55-1107, of September 3, 2018 in case No. А40-98958/18-25-710 and in case No. А40-111124/18-55-822, of July 13, 2018 in case No. А40-3175/17-137-26, of December 18, 2017 in case No. А40-164477/17-182-1517, of July 28, 2017 in case No. А40-24836/17-43-229.

  76. 76.

    Ruling of the Court of Nizhny Novgorod Oblast of February 8, 2018 in case No. 33-2788/2018.

  77. 77.

    Ruling of the 8th Arbitrazh Appellate Court of December 6, 2015 in case No. А70-13943/2014; decision of the Arbitrazh Court of Tyumen Oblast of August 3, 2015 in case No. А70-13943/2014.

  78. 78.

    Decision of the Ukhta City Court of December 28, 2016 in case No. 2-6025/2016.

  79. 79.

    Decision of the Arbitrazh Court of Moscow of January 27, 2012 in case No. А40-6426/11-43-51.

  80. 80.

    Ruling of the Higher Arbitrazh Court of April 8, 2014 [No. 17984/13]. The references were borrowed from the respective pre-ruling of January 17, 2014 [No. ВАС-17984/13].

  81. 81.

    Rulings of the Arbitrazh Court of the North Caucasian District of September 3, 2015 in case No. A32-1846/2014; of the 9th Arbitrazh Appellate Court of October 12, 2016 in case No. А40-138800/12; decisions of the Arbitrazh Court of Moscow of April 25, 2016 in case No. А40-26256/16-10-219 and of January 16, 2015 in case No. А40-43078/14; decisions of the Arbitrazh Court of Sverdlovsk Oblast of November 23, 2016 in case No. А60-39471/2016, of October 19, 2016 in case No. А60-34127/2016 and of June 8, 2015 in case No. А60-15566/2015.

  82. 82.

    Rulings of the Federal Arbitrazh Court of the Volga Vyatka District of December 10, 2010 in case No. А82-1970/2010; of the Federal Arbitrazh Court of the East Siberia District of October 9, 2003 in case No. А58-1784/02-Ф02-3313/03-С2; of June 27, 2003 in case No. А33-10697/02-с2-Ф02-1865/03-С2; of the Federal Arbitrazh Court of the West Siberia District of May 22, 2007 in case No. Ф04-3060/2007(34304-А45-30); of the 2nd Arbitrazh Appellate Court of January 29, 2010 in case No. А82-7125/2009-8; of December 22, 2009 in case No. А82-4506/2009-8; of September 16, 2009 in case No. А82-2078/2009-43.

  83. 83.

    Pre-rulings of the Higher Arbitrazh Court of May 3, 2012 [No. ВАС-3352/12] and of December 28, 2011 [No. ВАС-14316/11] (the latter judgement refers to the UPICC alongside with Art. 8:108 PECL and ICC Force Majeure Clause 2003). The references to the UPICC were dropped in the (final) resolutions on these cases issued by the Presidium of the Court.

  84. 84.

    Decision of the Arbitrazh Court of the Republic of Buryatia of April 23, 2014 in case No. А10-5458/2013.

  85. 85.

    Decision of the Kirillov District Court of Vologda Oblast of May 6, 2015 in case No. 2-314/2014.

  86. 86.

    Decisions of the Arbitrazh Court of Moscow of February 14, 2017 in case No. А40-159744/16-180-1396; of July 19, 2013 in case No. А40-26581/12; of August 13, 2012 in case No. А40-26581/12-30-200; of the Arbitrazh Court of Novosibirsk Oblast of June 30, 2014 in case No. А45-3425/2014.

  87. 87.

    Rulings of the Federal Arbitrazh Court of the Volga District of May 15, 2018 in case No. А57-16399/2017; of the Arbitrazh Court of the West Siberia District of March 5, 2015 in case No. А45-12354/2014; of the 7th Arbitrazh Appellate Court of March 13, 2015 in case No. А45-11869/2014; decisions of the Arbitrazh Court of the Republic of Sakha (Yakutia) of April 1, 2016 in case No. А58-6822/2015; of the Arbitrazh Court of Kemerovo Oblast of April 13, 2015, in case No. А27-1540/2015; of the Arbitrazh Court of Moscow of September 26, 2018 in case No. А40-120157/18-55-891; of the Arbitrazh Court of Volgograd Oblast of July 3, 2017 in case No. А12-68392/2016 etc.

  88. 88.

    Resolution of the Plenum of the Higher Arbitrazh Court of April 4, 2014 [No. 22], paras 3–5.

  89. 89.

    Art. 308.3(1) CCRF: In case of non-performance of an obligation by the debtor, the creditor is entitled to claim specific performance in court, unless otherwise provided for by the present Code, other statutes or an agreement or results from the essence of the obligation. The court may upon a request by the creditor award him with a sum of money (Art. 330(1)) for the case of non-performance of the abovementioned judicial act in an amount that shall be determined by the court on the basis of the principles of fairness, proportionality and inadmissibility of gaining profit from a behavior that is contrary to a statute or good faith (Art. 1(4)).

  90. 90.

    Ruling of the 4th Arbitrazh Appellate Court of March 4, 2015 in case No. А19-21433/2011; decisions of Kemerovo Oblast Arbitrazh Court of May 13, 2015 in case No. А27-2291/2015; of May 13, 2015 in case No. А27-1526/2015; of May 5, 2015 in case No. А27-3408/2015; of April 29, 2015 in case No. А27-3942/2015; of April 24, 2015 in case No. А27-3006/2015; of April 17, 2015 in case No. А27-2519/2015; of April 17, 2015 in case No. А27-1471/2015; of April 15, 2015 in case No. А27-1321/2015; of April 13, 2015 in case No. А27-1325/2015.

  91. 91.

    Art. 393(5) CCRF: The amount of damages shall be established with a reasonable degree of certainty. The court may not dismiss a creditor’s claim for damages resulting from non-performance or improper performance of an obligation for the sole reason that the amount of damages cannot be established with a reasonable degree of certainty. In this case the amount of damages to be reimbursed shall be determined by the court with regard to all the circumstances of the case basing on the principles of fairness and of proportionality of liability to the committed breach of the obligation.

  92. 92.

    cf. draft Concept of the working group on obligations (n 41), para V.1.2.

  93. 93.

    Ruling of the 15th Appellate Court of September 25, 2012 in case No. А53-7668/2012; decisions of the Arbitrazh Court of Kostroma Oblast of May 23, 2014 in case No. А31-11830/2013; of July 29, 2013 in case No. А31-4356/2013; of July 25, 2012 in case No. А31-1235/2012; of July 25, 2012 in case No. А31-1235/2012; of July 16, 2012 in case No. А53-7668/12.

  94. 94.

    Decision of the Rudnichny District Court of Kemerovo of January 31, 2012 in case No. 2-169/2012 (‘analogy’).

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Authors and Affiliations

  1. Lomonosov Moscow State University, Faculty of Law, Moscow, Russia

    Andrey M. Shirvindt

  2. Private Law Research Centre under the President of the Russian Federation named after S.S. Alexeev, Moscow, Russia

    Andrey M. Shirvindt

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  1. Columbia Law School, New York, NY, USA

    Alejandro Garro

  2. National University of Asuncion, Asuncion, Paraguay

    José Antonio Moreno Rodríguez

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Shirvindt, A.M. (2021). THE UNIDROIT Principles As Reference for the Uniform Interpretation of National Laws: National Report for Russian Federation. In: Garro, A., Moreno Rodríguez, J.A. (eds) Use of the UNIDROIT Principles to Interpret and Supplement Domestic Contract Law. Ius Comparatum - Global Studies in Comparative Law, vol 51. Springer, Cham. https://doi.org/10.1007/978-3-030-54322-8_16

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