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Some Theoretical and Practical Issues of Protection of Rights of Business Entities in the Energy Sector by Judicial Arbitration and Anti-Monopoly Authorities
 
PIIS231243500022068-2-1
DOI10.18572/2410-4396-2019-2-91-97
Publication type Article
Status Published
Authors
Lyubov I. Shevchenko 
Affiliation: Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of the Russian Federation (MGIMO University)
Address: Russian Federation, Moscow
Journal nameEnergy law forum
EditionIssue 2
Pages91-97
Abstract

The energy strategy of Russia refers creation of favorable economic environment for functioning of the fuel and energy complex, which is impossible without establishing the energy law order ensured by various forms and methods of government regulation and control, including settlement of conflict situations between business entities, to one of the main directions of the state energy policy. V.V. Romanova rightly concludes that the energy law order is an essential component of the public law order representing “law order in interaction of all parties to public relations in the energy sector, indicating that one of the most important elements of content of the energy law order is ensuring compliance and efficient protection of rights and legitimate interests of the parties to the public relations in the sphere of the economy under consideration. One of the most important activities to ensure law order in the energy sector is creation of an efficient mechanism for settlement of disputes arising between business entities upon formation of contractual obligations between them as well as in the course of their fulfillment. No due attention is given to study of the theoretical and practical aspects of settlement of conflicts in this field and ways to resolve them in legal science. This article shows some of the disputable issues regarding consideration of disagreements and disputes arising upon application of norms of energy legislation by judicial arbitration and anti-monopoly authorities, and shows the peculiarities of their settlement.

Keywordsenergy law order, energy law, business entities, protection of rights, settlement of disputes, commercial courts, anti-monopoly authorities
Received07.05.2019
Publication date01.06.2019
Number of characters25518
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1 The energy strategy of Russia refers creation of favorable economic environment for functioning of the fuel and energy complex, which is impossible without establishing the energy law order ensured by various forms and methods of government regulation and control, including settlement of conflict situations between business entities, to one of the main directions of the state energy policy. It is not accidental that legal scholars proceed from understanding of the energy law order from the standpoint of its relation to the theoretical understanding of the rule of law in general based on: a state of actual order of public relations expressing actual, practical implementation of the standards of law and the rule of law [1]; a system of public relations regulated and protected by law [2]; it is noted that the law order is used to characterize the state of organization, order of legal relations, which results from their regulation by legal norms and implementation of these norms [3]; order of public relations, which is expressed in the legitimate behavior and actions of their parties [4], as a goal of the legal means of state authority and all its legal activities [5], and, finally, this is a legal result, to which both the state authority and all legal subjects aspire. Therefore, in the general theoretical doctrine of Russia, the law order is defined as an integral component of public relations subject to the law and regulated by law.
2 In view of the above, V.V. Romanova rightly concludes that the energy law order is an essential component of the public law order representing “law order in interaction of all parties to public relations in the energy sector, indicating that one of the most important elements of content of the energy law order is ensuring compliance and efficient protection of rights and legitimate interests of the parties to the public relations in the sphere of the economy under consideration [6].
3 Legal regulation of efficient protection of interests of the parties to public relations in the energy sector and settlement of disputes under certain conditions can be ensured both by the commercial courts and by the anti-monopoly authorities.
4 In the conclusion of contracts, business entities in any economic domain, including the energy sector, seek to form contractual relations subject to the terms and conditions that meet their economic interests, which often leads to disagreements between them to be settled in accordance with the established procedure.
5 In the settlement of these disputes, a number of problems arises. These problems are of interest from both theoretical and practical point of view. First of all, it is the problem of identifying criteria, on the basis of which the provision to be included in the contract or excluded from it should be determined. If the provision of the contract being concluded, which is the subject of disagreement between the counterparties, is imperatively determined by law, the court shall state this provision on the basis of the relevant requirement of law.
6 The situation is different when the court establishes the terms and conditions, which according to the law, may be worded by the parties at their discretion. In this case, it is not clear which variant of the terms and conditions proposed by the parties should be preferred if the law allows both of them to be included in the contract, and generally based on what criteria the disputable provision of the contract should be determined.
7 Thus, in the settlement of the issue of acceptability of inclusion of a disputable provision in the contract, determination of the provision of law, on which this condition is based (its imperativeness or dispositiveness) is not insignificant.
8 Meanwhile, it is not always obvious how the rule of law should be perceived: as a norm allowing or prohibiting (limiting) inclusion of one or this or that into the contract.
9 Such ambiguity arose, in particular, when the commercial courts applied clause 75 of the Rules for Operation of Retail Electricity Markets approved by Decree of the Government of the Russian Federation dated August 31, 2006, No. 530, which stipulates that the energy supply contract concluded for a specific period shall be deemed extended for the same period and subject to the same terms and conditions if prior to the expiry of its term, neither party notifies of its termination or amendment or conclusion of a new contract.
10 The energy supply contracts usually concluded for one year, from January 1 to December 31, often include a provision that the contract is valid until the end of the year, and it is deemed annually renewed unless one month prior to the end of the term, one of the parties informs of repudiation of the contract for the next year (or of conclusion of the contract subject to other terms and conditions, of introduction of amendments and supplements into it).
11 The court and arbitration practice reflected two approaches regarding the legality of these terms and conditions of the contract. In accordance with the first of them, the provision of the contract on the need to notify of extension of the contract one month prior to the expiry of the term conflicts with the said provision of clause 75 of the Rules for Operation of Retail Electricity Markets, which should be understood as the norm allowing filing of such an notice until the last day of the term of the contract. According to the second approach, this provision of the contract complies with the said clause of the Rules for Operation of Retail Electricity Markets since it provides for the possibility of termination of the contract prior to its expiry [7].

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