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Quasi-Divisional Regulatory Legal Acts in Energy Law
 
PIIS231243500026210-9-1
DOI10.18254/S231243500026187-3
Publication type Article
Status Published
Authors
Marat T. Khamidullin 
Occupation: Chief Legal Officer of the Branch of Tatenergo, JSC, Kazan Heat Networks
Affiliation: Branch of Tatenergo, JSC, Kazan Heat Networks
Address: Russian Federation, Kazan
Journal nameEnergy law forum
EditionIssue 2
Pages53-59
Abstract

In this article, the author reviews the existing views of legal theoreticians on internal acts of legal entities that have been lately acknowledged by legal publications as independent law sources. The paper singles out the main attribute that gives local acts of legal entities the statutory regulation quality, being the delegation of statutory regulation issuance powers to the company by the law or sanctioning by means of approval by a competent state authority. The author suggests that legal acts of legal entities issued without the delegation right or approval by the state but having statutory qualities should be reviewed on a standalone basis, as a separate law source. The article notes that a characteristic feature of such acts is their issuance by subjects of natural monopolies created as a result of market economic reforms held in Russia in the late 20th century based on branch ministries governing separate national economy sectors (electrical energy industry, gas and oil transportation system). It is the first case in legal publications when the author that makes an attempt at understanding the nature of these acts concludes that they differ from corporate and departmental acts. Due to the fact that law making by subjects of natural monopolies was actually replacing regulatory activities of ministries and other state departments, the author suggests naming the documents they issue quasi-divisional legal acts. Based on the obtained results, the author words the concept of quasi-divisional legal acts in the energy law as one of law sources.

Keywordsenergy law, law sources, statutory regulation, local acts
Received22.03.2023
Publication date27.06.2023
Number of characters11761
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1 Legal publications single out such law sources as documents adopted by management bodies of legal entities. Legal scientists justify belonging of such documents to regulations by provisions of Clause 5, Article 52 of the Civil Code of the Russian Federation [1] that stipulate the right of legal entity members to approve corporate by-laws and other internal corporate documents governing corporate relations [2, p. 42–45; 3, p. 45–52].
2 That said, some corporate local acts can be referred not only to statutory acts but also to legal acts.
3 The general law theory proceeds on the basis that the concepts of rule making and law making are not absolutely identical. Rule making is a broader concept that includes not only law making activities of the state but also the process of the establishment of all social rules in the society. This activity results in such statutory regulators as: customs, morale, corporate rules, law. Law making is a variation of rule making and means the process of creation of universally binding rules aimed at streamlining public relations and their official documentation in the form of statutory legal documents adopted by the state [4, p. 46].
4 An act of law making adopted by a legal entity is universally binding not only within the corporation but also for third parties. The main feature that allows referring local acts of legal entities to law sources is their issuance as a result of delegation of the issuance powers to the company by the state.
5 As an example of such local act, V.V. Romanova mentions a procurement policy [6] adopted in accordance with Article 2 of the Federal Law On Procurements of Goods, Works, Services by Certain Types of Legal Entities [5]. Part 1, Article 2 of this law states that a procurement policy is a legal act.
6 However, the Russian legal field has a great number of acts of legal entities that have qualities of a legal act but are adopted without the delegation of any issuance powers by the state.
7 The USSR granted companies the right to adopt corporate standards on the manufactured products, technological processes and rendered services for the purposes of application of official standards [7]. Modern Russia established the opportunity to issue corporate standards in accordance with the Federal Law On Technical Regulation [8].
8 Today, development of corporate standards is regulated by the Federal Law On Standardization in the Russian Federation [9]. According to Clause 13, Article 2 of this law, a corporate standard is a standardization document approved by a legal entity or individual entrepreneur to improve production and maintain high quality of products, performed works, rendered services.
9 It was initially assumed that such standards of companies and organizations would be geared towards the internal user and applied in respect of third parties only upon their voluntary consent [10].
10 However, detailed development of technical issues of organization and management of production processes, requirements for quality of goods, works and services in corporate standards resulted in some of them claiming to be legal regulators applicable beyond one separate company. This was triggered by respective political and socioeconomic prerequisites.
11 Upon the start of market economic reforms in the late 20th century, Russia liquidated sectoral ministries and departments in charge of legal regulation in the established area along with administrative management of economic complexes in specific economic spheres. As a result of transformation of the state monopolistic regulation of the economy, administration of separate national economy branches was transferred to created natural monopoly subjects with a holding structure. There appeared such large monopolists as, e.g., Unified Energy System of Russia Russian Joint-Stock Company, Gazprom Russian Joint-Stock Company, Transneft, Open Joint-Stock Company. However, it was impossible to manage complicated technological complexes across the country just through directives issued by parent companies to subsidiaries and other related companies. Efficient administration and solution of systemic tasks in the respective economic sectors required active involvement of monopolies in law making.
12 Thus, before 1991, the electric power industry was governed by the Ministry of Energy and Electrification of the USSR. The ministry was not only in charge of rule making, but also solved economic issues including construction and operation of thermal power stations and electric grids, managed all territorial energy companies. After the collapse of the USSR, administration of the electric and heat power industries was transferred to the successor, the Ministry of Fuel and Energy of RSFSR, and shortly after, to Unified Energy System of Russia Russian Joint-Stock Company established in 1992. However, the renamed Ministry of Fuel and Energy of the Russian Federation retained the regulatory authorities including adoption of legal acts in the indicated sphere.
13 During the period of its activities, Unified Energy System of Russia Russian Joint-Stock Company issued a great number of technical standards (“TS”) regulating the matters associated with operation and maintenance of electric grid and heat supply facilities. TS were corporate standards by their content and were adopted mainly in the form of regulatory documents (“RD”). 1,277 TS had been issued by the date of restructuring of Unified Energy System of Russia Russian Joint-Stock Company and establishment of territorial energy companies. In view of the adoption of the Federal Law On Technical Regulation, 44 TS were revised and approved by the Ministry of Energy of Russia and other ministries and departments. Other TS were intended to be used as recommendation documents [11].

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