Preface
H. Patrick Glenn’
It is a great pleasure to introduce this collection of essays of the McGill Law
Journal on recent legislation of the Russian Federation, more particularly on the new
Civil Code of the Russian Federation.’ For the last three years the Institute of Com-
parative Law of McGill University, the law firm Ogilvy Renault, and the Private Law
Research Center Attached to the Office of the President of the Russian Federation
have been engaged in a collaborative project on Russian legislative reform and its dis-
semination. The project has been financed by the Canadian International Develop-
ment Agency. Montreal participants have provided reports and commentaries to the
Russian drafters, the Civil Code of Quebec has been translated and published in Rus-
sian,2 and members of the Private Law Centre have lectured and done research at
McGill. This Special Issue of the McGill Law Journal allows the doctrinal foundation
of the new Russian legislation to be made available to a wider audience. We are very
grateful for the collaboration of the distinguished Russian and western contributors.
The editors of the McGill Law Journal are to be congratulated for bringing the project
to fruition, in spite of difficulties of communication, coordination, and translation.
Special thanks are due to Peter Sahlas, Project Manager in Moscow, and to Professor
John E.C. Brierley for his assistance with the Russian texts.
Legislating in contemporary Russia is a complex process. Measures directed to-
ward establishing a market economy are opposed by many of those who are active in
the legislative process; the traditional adherence of Russian private law to continental
and particularly German models is challenged by other western legal models; the
strong attachment to particularly Russian institutions and traditions must be weighed
against the necessity of adherence to international standards. In these circumstances,
the coming into force of Parts 1 and 2 of the C.C.R.F. in 1994 and 1996-within five
years of the fall of the Soviet Union-is a remarkable legislative accomplishment. It is
. Peter M. Laing Professor of Law, Faculty of Law and Institute of Comparative Law, McGill Uni-
versity.
McGill Law Journal 1999
Revue de droit de McGill 1999
To be cited as: (1999) 44 McGill L.J. 255
Mode de rf6rence: (1999) 44 R.D. McGill 255
Part 1 was enacted in 1994: Sobranie zakonodatelstva R.E (1994) No. 32, item 3301; and Part 2
was enacted in 1995: Sobranie zakonodatelstva R.E (1996) No. 5, item 410 [hereinafter C.C.R.F.].
For the English-language translation, see PB. Maggs & A.N. Zhiltsov, eds., The Civil Code of the
Russian Federation, trans. RB. Maggs & A.N. Zhiltsov (Armonk, N.Y: M.E. Sharpe, 1997).
2 0.M. Kozyr & A.A. Makovskaya, eds., Grajdansk: Kodeks Kvebeka (Moscow: Statut, 1999).
256
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[Vol. 44
hoped that the C.C.R.E will be completed by the enactment of Part 3–dealing with
intellectual property, successions, and private international law-within the next year.
The essays in this collection provide valuable information on the extent of the
transformation of Russian law, and even some information on its application. The
C.C.R.F. has been described as the “economic constitution” of the new Russia and its
first article proclaims “the inviolability of ownership, freedom of contract, the imper-
missibility of arbitrary interference by anyone in private affairs, [and] the necessity of
the unhindered realization of civil law rights.” Professor Knieper’s article on stability
and transition in the C.C.R.E critically assesses the extent of innovation effected by
the C.C.R.E While it exhaustively regulates the new private relations it seeks to en-
courge, Professor Knieper is critical of its retention of Soviet forms of state and mu-
nicipal corporate persons (“unitary enterprises”) and privileges accorded to state stan-
dard-form contracts. He also regrets the continuation of the Soviet practice of ex-
cluding family law from the C.C.R.F, suggesting ongoing endorsement of the older
attitude of the bourgeois, exploitive nature of civil law, from which families had to be
protected. He argues against amendment of the C.C.R.F., however, arguing that it now
requires stability rather than ongoing, instrumental change. Professor Maggs com-
pares the C.C.R.. with the Uniform Commercial Code (“U.C.C.’) of the United
States, both creations of federal jurisdictions and both benefiting from the legal talent
which can be drawn together at the federal as opposed to local level. Professor Maggs
defends Russian particularity, however, and argues against the transplantation of
codes such as the U.C.C., which rely heavily on the legal tradition from which they
are drawn.
Property is at the heart of private-law legal relations and the legal regulation of
movable and immovable property remains highly controversial in Russia. Professor
Sukhanov provides a magisterial summary of basic concepts of Russian property law
and their evolution. The law is very much in the civilian, continental tradition-which
excludes the trust, as drawn from “absolutly alien Anglo-American approaches.” Its
application to land is outlined by Dr. Kozyr, who acknowledges, however, the ongoing
legislative stalemate which has led to the suspension of application of Chapter 17 of
the C.C.R.F on ownership and other rights in land.
The commercial dimensions of the C.C.R.F. and its supporting legislation are
dealt with in the articles by Komarov, Braginsky, Vitryansky, and Hendley, Murrell
and Ryterman. President Komarov provides an overview of the general provisions of
the C.C.R.F. dealing with liability for the violation of obligations, insisting on the new
importance of monetary damages, a major move away from Soviet insistence on spe-
cific performance by the agencies of a planned economy. Dr. Braginsky outlines the
wide range of structures for entrepreneurial activities now available in Russia, as well
as the particular position of the foreign entrepreneur. Deputy Chairman Vitryansky of
the Higher Court of Arbitration summarizes the remarkable development of bank-
A.L. Makovsky, “Preface to the English Translation of the Civil Code” in Maggs & Zhiltsov, su-
pra note 1, xlix at lii.
1999]
H.R GLENN – PREFACE
ruptcy law in Russia since 1993 (bankruptcies rising from 100 in 1993 to 4,600 in
1997) as an indication of the new accountability of commercial enterprises. He situ-
ates Russian bankruptcy law as constituting a “golden mean” on a continuum between
pro-debtor jurisdictions-e.g. France and the United States-and pro-creditor juris-
dictions-e.g. other continental countries. The article by Professors Hendley and
Murrell and Mr. Ryterman is particularly interesting because of the empirical research
which they have conducted and which indicates a high level of application of the new
Russian law (contrary to speculation and anecdotal evidence). Their research among
corporate enterprises in different regions of Russia shows little use of private “enforc-
ers” and regular use of legal institutions. Moreover, the state arbitrazh courts used for
commercial disputes succeed in 95% of the cases in providing a decision within a two
month period, a level of performance remarkable by western standards. There are,
however, problems of enforcement.
A final group of essays indicates the increased importance of international pri-
vate-law relations in the new Russia. Mr. Rozenberg provides a valuable guide to the
place and priority of international agreements in the field of private law. He also
tracks the use of international standards’ in new Russian domestic legislation. M.
Fabre indicates how Russian commercial interests now extend to the emerging spatial
commercial market. In the final essay, Dr. Zvekov indicates how Russia, like Quebec,
has recognized the necessity of a full and codified statement of private international
law to facilitate multiple, trans-border private law relations.
At the height of the Cold War, Soviet jurists argued for fundamental incommen-
surability between socialist and bourgeois legal orders This appears to have been an
exaggerated claim. There are still problems of communication, translation, and under-
standing of Russian law for western jurists, but the present Special Issue of the
McGill Law Journal makes a major contribution to mutual understanding.
‘ Notably from the United Nations Convention on Contracts for the International Sale of Goods, 11
April 1980, 1489 U.N.T.S. 3.
For the debate, see K. Zweigert & H. K6tz, Introduction to Comparative Law, trans. T. Weir, 2nd
ed. (Oxford: Clarendon Press, 1987) at 37, 38 (with references); and G. Ajani, Dirito dell’Europa ori-
entale (Torino: U.T.E.T., 1996) at 34ff. (also on the notion of discontinuity between earlier bourgeois
law and the new socialist order).
