Ratio decidendi in decisions of Presidium of Supreme Commercial Court of Russian Federation Vol. 48

The decisions of Presidium of SCC of RF between 11.10 – 20.10. 2011

Decision of Presidium of SCC of RF No. 5257/11 от 18.10.2011 Ratio decidendi:
1. Terms of use municipal water supply and sanitation services in Russian Federation, approved by the Government of the Russian Federation of 12.02.1999 № 167, shall not apply to the supply of any other types of resources other than drinking water.
2. Payments for use of drinking water to subsubscribers could not be made between subsubscriber and subscriber, but in a different manner, prescribed by local authorities, first of all, only if there exist relations for the supply of drinking water between the water supply and sanitation organization and the subscriber and, secondly, when final consumers (subscribers) obtain drinking water from water mains extension organization of water and sewage services according to contract with the subscriber.
3. If supplied drinking water undergoes a change in the central heating units, so that final subscribers receive goods through heat networks, which has properties different from those of drinking water, then client uses potable water for their economic activities.
4. The presence or absence of a tariff, by which end users are required to pay for hot water supplied by subscriber, cannot affect the right of the organization belonging to water supply and sanitation sector to compel the subscriber to pay only the actual amount of drinking water in accordance with paragraph 72 of the Rules of Supply.
5. The relationship between end-users which provide communal services and hot water, and the defendant as resource-supplying organization is subject to paragraph 15 of Regulations on public services to citizens, approved by the Government of the Russian Federation of   23.05.2006 № 307.
6. The cost of thermal energy for heating water is one of the components of established tariffs for hot water.

Decision of Presidium of SCC of RF No. 5811/11 dated 11.10.2011 Ratio decidendi:
By virtue of Article 2 (9) of the Administrative Code of Russian Federation, the court costs shall not be recoverable from the administrative body.

Note: This decision does not indicate that the decisions of commercial courts with similar factual circumstances, which has force of law, adopted on the statutory basis for interpretation, being at variance with the statements contained in interpretation of present decision, may be revised in accordance with Article 311 (3) (5) of the Arbitrazh Procedure Code of the Russian Federation, unless there are other obstacles.

Decision of Presidium of SCC of RF No. 6478/11 dated 18.10.2011 Ratio decidendi:
1. Arbitration clause, as agreed in contract, which refers the dispute to the arbitral tribunal, extends its effect also on the actual relationship existing between parties whi
1. Commercial courts are not entitled to assess the decision of the arbitral tribunal on the law applicable to agency contract, its form, modification of its content and its validity.

Decision of Presidium of SCC of RF No. 6386/11 dated 18.10.2011 Ratio decidendi:
1. The master of vessel needs no special authority to make contract for carriage of goods by sea.
2. Laying additional burden on the shipper for the treatment of similar claims for damages caused by the loss of cargo during the implementation of maritime transportation according to bill of lading, to the company in a foreign court on its location, in the absence of a dispute about the facts about damages to shipper for loss of goods, is not consistent with the principle of protection of bona fide participants in business turnover.

Decision of Presidium of SCC of RF No. 7022/11 dated 18.10.2011 Ratio decidendi:
The right to claim, including the right to claim a sum of money from the debtor can be a subject to pledge.

Decision of Presidium of SCC of RF No. 7517/11 dated 20.10.2011 Ratio decidendi:
1. To distinguish between information and advertising, obligation, established by Federal Act, has significance for the purposes necessary to bring  the relevant information and place its location to consumers, while the manner of execution by placing this information does not have importance.
2. The information about goods, contained in structures at the location of gas stations: petrol brands (assortment of goods), pricing, compliance of the pertol fuel standards, the place of production of fuel - cannot be viewed as pursuing the advertising goals, since they represent the necessary information about products in order to provide their correct choice that meets the requirements of Federal legislation.

Decision of Presidium of SCC of RF No. 10096/11 dated 20.10.2011 and Decision of Presidium of SCC of RF No. 10095/11 dated 20.10.2011 Ratio decidendi:
A person is admitted to act without due diligence and caution in selecting contractors
(involving the verification of legal capacity, that is, establishing the legal status, which is due to the emergence of the state registration of legal persons, as well as its holdings of the relevant supporting documents that grant authority to commit legal actions), if upon committing and conducting the transactions he did not verify the legal capacity of another party and did not inquire about their registration of these organizations as an entity, did not request legal documents of legal entity,  on whose behalf the documents were made, nor used the publicly available information about State registration of the another party, located on the official website of the registration authority in accordance with Article 6 of the Federal Law of 08.08.2001 № 129-FZ "On state registration of legal entities and individual entrepreneurs."

Note: This decision does not indicate that the decisions of commercial courts with similar factual circumstances, which has force of law, adopted on the statutory basis for interpretation, being at variance with the statements contained in interpretation of present decision, may be revised in accordance with Article 311 (3) (5) of the Arbitrazh Procedure Code of the Russian Federation, unless there are other obstacles.

(с) Sergey Khalatov, trans. by Aibek Ahmedov