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Problem Issues Of Legal Regulation Of The Exchange Market Of Oil, Petroleum Products, And Gas: Issues Concerning Fulfillment Of The Bidders’ Obligations
 
PIIS231243500022190-7-1
DOI10.18572/2410-4390-2018-4-92-98
Publication type Article
Status Published
Authors
Kseniya I. Khachaturova 
Affiliation: Commodity and Derivatives Markets of Saint-Petersburg International Mercantile Exchange Joint-Stock Company
Address: Russian Federation, St. Petersburg
Journal nameEnergy law forum
EditionIssue 4
Pages92-98
Abstract

At the moment, there is practically no special legal regulation of the exchange market of oil, petroleum products, and gas at the legislative level, the rules for general regulation of exchange trade are insufficient, and there are many gaps and contradictions, which adversely affects settlement of disputable situations. The author examines the norms of Russian and foreign laws, and legal research. The author concludes that it is necessary to amend the current laws governing relations in organized biddings in order to eliminate the legal uncertainty relating to application of the rules of substantive law. The issue of ensuring proper fulfillment by the organized bidders of their obligations is one of the most important and priority tasks of the trade institutor. Encouraging the bidders to properly perform as well as efficient application by the exchange of measures aimed at improvement of discipline among the bidders make it possible to minimize the risks of the exchange, for example, the risk of loss of business reputation. Both Russian and foreign exchanges face the problem of non-fulfillment of the bidders’ obligations. Among the measures applied to unfair bidders, suspension of the services for admission to organized bidding, on the one hand, is the most applicable measure, and, on the other hand, it is a measure that is not clearly specified at the level of the federal law, which regulates relations arising in organized biddings.

Keywordsenergy law, legal regulation of the exchange market of energy resources, bidding, bidder, contractual regulation of exchange trade in energy resources
Received03.11.2018
Publication date21.12.2018
Number of characters26621
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1 The issue of ensuring proper fulfillment by the organized bidders of their obligations is one of the most important and priority tasks of the trade institutor. At the moment, there is practically no special legal regulation of the exchange market of oil, petroleum products, and gas at the legislative level, the rules for general regulation of exchange trade are insufficient, and there are many gaps and contradictions, which adversely affects settlement of disputable situations. The exchange market of oil, petroleum products, and gas is not an exception. Herewith, it should be noted that there are obvious peculiarities of oil, petroleum products, and gas as the objects of relations in exchange trading, peculiarities of the legal status of the bidders in exchange trading in oil, petroleum products, and gas, and the terms of delivery. The main burden is currently borne by local acts of the exchange. [1]
2 There are practically no legal studies on the problems of legal support of the exchange market of oil, petroleum products, and gas either. Herewith, relevance of legal research performed by M.M. Vildanova should be noted. [2]
3 This article considers the most topical issues of legal regulation arising for the bidders.
4 Encouraging the bidders to properly perform as well as efficient application by the exchange of measures aimed at improvement of discipline among the bidders make it possible to minimize the risks of the exchange, for example, the risk of loss of business reputation. Both Russian and foreign exchanges face the problem of non-fulfillment of the bidders’ obligations. Among the measures applied to unfair bidders, suspension of the services for admission to organized bidding, on the one hand, is the most applicable measure, and, on the other hand, it is a measure that is not clearly specified at the level of the federal law, which regulates relations arising in organized biddings. Moreover, the very concept of “admission to organized biddings” is not regulated in the Russian laws either. The fact that it is not set forth in the regulatory acts as well as the ambiguity of interpretation of certain measures of influence on the bidders give rise to differences in understanding and application of the provisions of the law by the courts and trade institutors.
5 Due to the presence of these gaps in the laws, this article considers the issues of admission of the bidder to organized biddings, examines Russian and foreign experience of applying sanctions to the bidders, and also proposes the wording of amendments to regulatory legal acts governing exchange trading, including trade in oil, petroleum products, and gas in the Russian Federation.
6 The duty of the trade institutor to establish measures applicable to the bidders that violated the rules of organized biddings (for example, suspension or termination of admission to organized biddings) in the rules of organized biddings is determined by clause 1.17 of Regulations of the Bank of Russia on Organized Trading Activity No. 437-П (hereinafter referred to as the Regulations). According to the text of the Regulations, the above types of measures are referred to as “sanctions on the bidder that committed a violation”, “measures applied to the bidders that committed violation of the rules of organized biddings”, and “measures of disciplinary influence”. Does a measure of influence, such as suspension, relate to the category of sanctions, or is it a different measure that has a different legal nature as compared to the sanctions?
7 This issue is raised in the works of various lawyers, such as A.E. Kirpichev, A.S. Panova, and others. [3] The authors distinguish between the concepts of “sanction” and “measure of operational influence”. According to A.S. Panova, the following grounds can be distinguished: in terms of the function: the measures of operational influence have a motivation function (encourage the debtor to fulfill the obligations in good faith), while the sanctions, in their turn, have particularly punitive nature; in terms of the form of protection of the right: the measures of operational influence are generally performed in an extrajudicial form in contrast to the sanctions, which are secured by the state enforcement and aimed at forcing the person to act in accordance with the will of the ruling subject; as a rule, the sanctions entail an additional obligation that did not previously exist, for example, compensation for damages or recovery of a penalty. We should agree with O.S. Ioffe, that if the consequences of the offense were limited to forcing the defaulting party to actually fulfill the obligations only, from the point of view of liability, this would be equivalent to the full irresponsibility of the offender, who would incur the same obligation both before and after the violation — to fulfill the assumed obligation. [4] The measures of operational influence are aimed at actual fulfillment of the obligation; application of the measures of operational influence does not cause replacement of the obligation that existed prior to the violation with a monetary equivalent.

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1. http://spimex.com/upload/iblock/d1d/d1d03ccba5b8de82489609127a16322f.pdf;  http://spimex.com/upload/iblock/  991/991115fd2fa900a37140f495b4106264.pdf; http://spimex.com/upload/iblock/1ce/1ce40f02515b214b73b9d0585e  5c7370.pdf.
2. Energy Markets: Problems and Objectives of Legal Regulation. Monograph edited by V.V. Romanova, Doctor of Law. Mos- cow : Yurist Publishing House. 2018. P. 139–150. P. 189–205.
3. Panova A.S. Civil Essence of Measures of Operational Influence. Law and Economics, 2016, № 5.
4. Ioffe O.S. Law of Obligations. Moscow : Yuridicheskaya Literatura, 1975. S. 97.
5. Rules of Admission to Organized Biddings of Joint-Stock Company Saint-Petersburg International Mercantile Exchange (approved by the Board of Joint-Stock Company Saint-Petersburg International Mercantile Exchange on May 18, 2018) // http://spimex.com. 
6. Rules of Admission to Organized Biddings on the Commodity Market of Joint-Stock Company National Mercantile Ex- change (approved by the Supervisory Board of NAMEX, JSC on October 4, 2016) // http://www.namex.org. 
7. For details see : Resolutions of the Tenth Arbitration Court of Appeal No. 10AP-5833/11 dated April 28, 2012; Seventh Arbi- tration Court of Appeal No. 07AP-5284/10 dated July 22, 2010, No. 07AP-731/14 dated March 13, 2014; Federal Arbitration Court of the North-Western District No. F07-1872/13 dated June 10, 2013 in case No. A56-37404/2012 // ras.arbirt.ru.
8. Karapetov A.G. Suspension of Fulfillment of Obligation as the Creditor’s Remedy. Statute. 2011.
9. Karapetov A.G. Suspension of Fulfillment of Obligation as the Creditor’s Remedy. Statute. 2011.
10. Karapetov A.G. Suspension of Fulfillment of Obligation as the Creditor’s Remedy. Statute. 2011.
11. CME Spot market rules — URL : https://www.cmegroup.com/content/dam/cmegroup/rulebook/CME/I/12.pdf. 
12. LME Clear Limited Rules and Procedures. URL : https://www.lme.com/en-GB/LME-Clear/Rules-and-regulations  #tabIndex=2.

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