All
 
|
 
 


Trends in Development of Main Forms for Protection of Rights of Entities Engaged in Activities Related to Construction of Energy Facilities
 
PIIS231243500022078-3-1
DOI10.18572/2410-4396-2019-2-118-124
Publication type Article
Status Published
Authors
Nikolay A. Akimov 
Affiliation: Kutafin Moscow State Law University
Address: Russian Federation, Moscow
Journal nameEnergy law forum
EditionIssue 2
Pages118-124
Abstract

The number of disputes in the energy sector currently keeps increasing. A significant number of them is referred to disputes related to protection of rights of entities performing activities in the field of construction of energy facilities. Specific character of disputes related to protection of rights of entities performing activities in the field of construction of energy facilities is caused not only by the special legal status of energy facilities, but also by the peculiarities of legal relations arising between the parties to the relations in question. While applying various forms for protection of rights, the parties to the dispute reach an efficient solution using a combination of individual mechanisms, each of which requires a special perception and certain classification and systematization.

In this article, the author makes an attempt to identify certain categories in the subject under study, classifies the forms and methods for protection of rights of the entities performing activities in the field of construction of energy facilities. This study analyzes development trends and application of the main forms for protection of rights, identifies practical and theoretical problems specific to this institution, presents various models for development of existing mechanisms for protection of rights in the field under study, and makes suggestions for improvement of the current laws.

 

Keywordsenergy law, legal regulation of construction of energy facilities, protection of rights of energy market players
Received16.04.2019
Publication date01.06.2019
Number of characters24850
Cite     Download pdf
1 rior to proceeding to identification of trends in development of main forms for protection of rights of the entities engaged in construction of energy facilities, it is necessary to define the notion of the form for protection of rights and classify the relevant forms available to the parties to relations in the field under consideration.
2 In the scientific literature, the form for protection of rights means a complex of internally agreed organizational measures to protect a legal right implemented by authorized authorities or right holders, and aimed at restoration of the violated right [1].
3 Other authors, in their turn, characterize the form for protection of civil right as a procedure established for application of a specific method of protection [2].
4 For the purpose of analysis of the basic forms for protection of rights of the entities engaged in construction of energy facilities, it is necessary to form a universal notion of the form for protection of rights, which, among other things, can be applied in such a specific branch of national law as energy law.
5 In the broadest sense, the category of the form for protection of rights includes a set of procedural as well as extra-procedural measures aimed at settlement of a dispute on a right and implementation of a specific method for protection of the right through a certain sequence of legally significant actions taken individually or in combination. It follows from the above definition that it is also necessary to take into account the differences between the categories of the “form of protection” and the “method of protection” of the rights. It seems that the category of the form of protection is of a wider and more universal nature as compared to the method of protection of the right since it can be independently implemented through individual methods of protection, including those provided for by Article 12 of the Civil Code of the Russian Federation.
6 Turning to classification of the forms for protection of rights of the entities engaged in construction of energy facilities, it should first be noted that these entities are characterized by the following two main forms of protection of the violated right.
7 First, it is a jurisdictional form, which is characterized by a rather rigid procedural regulation due to participation of state institutions in dispute settlement and protection of the violated right. This form of protection of the violated right includes the following basic methods of implementation:
8 general (judicial) procedure for consideration and settlement of cases, which involves application of the entity the rights of which are violated to a competent court established on the basis of the relevant federal law, the activities of which are governed by procedural legislation;
9 special procedure providing for implementation of the goals of protection of the entity’s rights through administrative influence on behavior of the subjects;
10 as well as a mixed procedure combining the basic features of the judicial procedure with elements of administrative legal methods, where the latter will be a precondition for implementation of the former.
11 Second, it is a non-jurisdictional form, through which independent settlement of the dispute by the subjects and/or settlement of the dispute with involvement of the third parties is ensured. At the same time, participation of the competent public authorities in settlement of such a dispute is not provided for.
12 Since contracts for construction of energy facilities differ not only in the specific character of construction projects, but also in high prices, certain initial and final dates, severe penalties [3], upon settlement of disputes arising out of these contracts, it is first necessary to take into account the specifics of the legal status of these facilities as well as the listed features of legal relations arising between the parties.
13 It seems that ability to promptly overcome a disputable situation with guarantees of efficient implementation of the final decision is of paramount importance for the parties to legal relations related to construction of energy facilities.
14 No doubt, at present, the jurisdictional form for protection of rights of the parties to relations for construction of energy facilities continues to occupy a dominant position, being the most regulated due to the high level of development of national procedure laws and timely acts of higher courts making it possible to ensure a uniform practice of application of the rules of law.
15 At the same time, the specific character of legal relations arising between the parties in connection with construction of energy facilities implies use of more and more flexible models for settlement of disputes, which are characteristic of the non-jurisdictional form. For example, the need to reduce the term for consideration of the case, to ensure additional security of confidential information, the possibility of selection of the procedure for settlement of the dispute at one’s own discretion encourage the parties to relations concerning construction of energy facilities to use various methods for settlement of disputes relating to the non-jurisdictional form.

views: 188

Readers community rating: votes 0 

1. Zhivikhina I.B. Forms of Protection of Ownership // Civil Law // textbook. 2010. No. 1. P. 27.
2. Civil Law. General Part: Textbook: in 4 volumes / V.S. Em, N.V. Kozlova, S.M. Korneev et al.; edited by E.A. Sukhanov. 3rd edition, revised and enlarged. Moscow : Wolters Kluwer, 2010. Volume 1.
3. Romanova V.V. Article on Problem Aspects of Implementation of Judicial and Extrajudicial Forms for Protection of Rights of Entities Performing Entrepreneurial Activity in the Field of Construction of Energy Facilities. Moscow : Yurist Publishing House 38-41 2012 .
4. Decree of the Tenth Commercial Court of Appeal dated June 13, 2017, in case No. А41-14535/17 // URL: http://kad.ar-  bitr.ru/Pdf Document/a2f736b9-41f8-48e7-ab5c-c37db96e137b/dee8fc79-187f-4ca1-b813-32ef1f39da9d/A4114535-2017_20170613_Postanovlenie_apelljacionnoj_instancii.pdf;
5. Order of the Ministry of Construction, Housing and Utilities of the Russian Federation dated July 5, 2018, No. 397/пр On Approval of the Standard State (Municipal) Contract for Execution of Design and Survey Works, and Information Card of the Specified Standard Contract registered in the Ministry of Justice of the Russian Federation on October 10, 2018. Registration No. 52384;
6. Decree of the Eighteen Commercial Court of Appeal dated February 3, 2015 No. 18АП-13856/2014 // URL: http://kad.  arbitr.ru/PdfDocument/da0a5143-da5b-48c8-8fde-e671486d6f6a/e133ab51-f81b-42ee-874c-661f07de003b/A7616106-2014_20150203_Postanovlenie_apelljacionnoj_instancii.pdf;
7. Decree of the Commercial Court of the Far Eastern District dated January 18, 2018, in case No. А24-1809/2017 // URL: http://kad.arbitr.ru/PdfDocument/a503b88a-2341-4b32-b94d-2960b14137b3/5a8e593c-446a-4b79-b0be-  c0eaa830ea03/A24-1809-2017_20180118_Postanovlenie_kassacionnoj_instancii.pdf;
8. Decree of the Commercial Court of the Moscow District dated April 20, 2018, in case No. А40-70243/2017 // URL: http://kad.arbitr.ru/Pdf  Document/77ea6bfa-fc1c-47a1-8892-f 7a47645b87d/c7f69913-210c-4853-92c0efa9d1000bc5/A40-70243-2017_20180420_Reshenija_i_postanovlenija.pdf;
9. Appendix 3 to the Provisions on the Arbitration Center of the Russian Union of Industrialists and Entrepreneurs // URL: https://arbitration-rspp.ru/documents/rules/statute/#pr3; 
10. Deposited Arbitration Rules. Official website of the Ministry of Justice of Russia // URL: https://minjust.ru/ru/deyatelnost-v-sfere-treteyskogo-razbiratelstva/deponirovannye-pravila-arbitrazha; 
11. Official portal of self-regulatory organizations of the nuclear industry // URL: http://atomsro.ru/; 
12. Official website of SRO Soyuzneftegazproekt // URL: http://www.npsngp.ru/; 
13. Official website of SRO Union of Design Organizations Rosneft // URL: http://rn-sro.ru/; 
14. Official website of SRO Union of Designers EOE // URL: http://www.npeoe.ru/.

Система Orphus

Loading...
Up