Russian Law Journal (RLJ)
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Which Way is The Russian Double-headed Eagle Looking?
Full text linkThe article examines the historical reasons for the unique relationship between the state and the law in Russia, which has a system-forming impact on all aspects of life in modern Russia. The authors analyze the duality of the Russian political and legal world – ‘Athens’ vs ‘Jerusalem’ – ‘East vs West’ – ‘legal state vs state of obligation’ – and reveal the philosophical and ethical maxims through which it became possible to talk about Russia’s peculiar historical path and the modern image of Russia. In the latter case, the authors focus particular attention on the phenomenon of ‘sobornost’ [‘the spiritual community of many people living in the same space’] establishing that, in the philosophy of the Slavophiles, this category played the role of both a religious and a national proto-symbol, which can be understood as a source of spiritual unity of the people, connecting them from the outset during the sacrament of communal prayer and then being transferred to everyday life, organizing and directing all social practices of the Orthodox society in a special way. It is pointed out that the philosophical reflection on Russia’s peculiar historical path has found a certain continuation in the idea of the ‘Slavic legal family’ proposed by Professor V.N. Sinyukov. The authors do not overlook the problems of legal nihilism as an attribute of the Russian political and legal practice. The instinctive distrust of complexity and inclination towards the utmost simplicity in solving social problems is named as one of the reasons for the legal nihilism of the Russian people. In the final section, the authors address the issue of borrowing the political and legal experience from foreign sources. The ‘pole points’ of the analysis are the Eastern experience of the Chinese state and the Western experience of French law. Expansion of the Anglo-American law is defined by the authors as the ‘other kind of milk’ for the ‘Russian coffee’ – which generally corresponds to the global trend in this sphere
No full textThis article examines Russian law on criminal market manipulation and compares it with equivalent rules in Western Europe. The Russian rules do not work; no one has been charged or sentenced for market manipulation since the relevant laws came into force. The Russian rules on criminal liability for market manipulation do not complement the general rules on fraud, they duplicate them. Our prohibition on market manipulation is unclear and is not comprehensive, i.e., there are gaps in the law. This prohibition and the criminal law rules based on it require serious revision; it is necessary to eliminate the gaps and make the law clear. It is inappropriate to subordinate the liability for this crime to the fact of causing consequences expressed formally in a sum of money. The rule of law requires a logical generalization. Establishing criminal liability for negligent market manipulation in Russia seems premature
No full textLaw concerning discrimination in employment in Russia was expected to undergo a serious transformation after the fall of the Soviet system, when the Iron Curtain was lifted and the country became more open to Western legal concepts and international law. Nevertheless, most existing anti-discrimination norms in Russian law are based on the traditional concept of “uniformity and differentiation in regulation of labor” that is ill-suited to meet the challenges of amarket economy and the emergence of employment by privately owned enterprises which may have greater motivation to discriminate than state-owned-enterprises. The aim of the author is not to present an encyclopedic overview of all aspects of the topic of discrimination, but rather to concentrate on the most significant areas in which Russian law and practices diverge from international labor standards. To do so, this article analyzes current Russian legislation and landmark cases concerning gender, disability, age and some other areas of discrimination in employment with respect to their effectiveness and conformity to international labor standards on the matter. The issues of a clear definition of discrimination in employment, of protection from indirect discrimination, and of alleviation from the burden of proof are also examined. The author concludes this work by offering the reader several suggestions about how to harmonize Russian domestic law on employment discrimination with international labor standards while giving due respect to national legal and societal traditions and the current economic environment
No full textRussia is a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The USSR was one of the original Member States to sign the Convention in 1958. There is a distinction between international and domestic arbitration. Arbitration in Russia was regulated by the Federal Law on Arbitral Tribunals in the Russian Federation (2003) (domestic arbitration) and the Federal Law on International Commercial Arbitration (1993) (international arbitration). This law was drafted on the basis of the UNCITRAL Model Law on International Commercial Arbitration
No full textThen pursuing publications in international peer-reviewed journals, many legal scholars from Russia and the wider post-Soviet space face severe difficulties. This paper looks atthe reasons for these difficulties in two analytical steps. Firstly, it offers aquantitative analysis of the output of the two leading international law journals that accept submissions on doctrinal law to see how often in the two preceding years (2014 and 2015) postSoviet legal scholars with their main place of work at a university have made it into these journals. Secondly, it asks what the qualitative standards for publication in such journals are and why they are at odds specifically with the scholarly tradition in the wider post-Soviet space. The main finding of the paper is that there is a mismatch between the high goals posed by university administrators in elevating universities to some standard of excellence and the limitations presented in the field of legal scholarship. The conclusion is that a substantive re-thinking of the approach to legal scholarship is required. The introduction of ‘early legal writing’ at least at the level of master studies is one recommendation to adequately prepare a future generation of legal scholars
Jurisdictional Countermeasures Versus Extraterritoriality in International Law
Full text linkSovereignty is the reason why States seek to apply their jurisdictions. All States like to extend their jurisdictions as far as they can, so some of them have adopted extraterritorial policies in exercising their jurisdictions. In this manner the United States has approved several extraterritorial Laws in respect of competition law and sanctions, causing some coercion to non-target states. In response to this long-arm jurisdiction by the U.S., some countries, such as the U.K., Canada, Australia, Mexico etc., as well as the E.U., took actions of their own in order to nullify these extraterritorial laws. These measures, which are mostly applied to the jurisdictional field, could be described as jurisdictional countermeasures. They can be divided into prescriptive, adjudicative and executive measures, which include blocking statutes, claw-back statutes, non-recognition, procedural restrictions, non-execution and retaliatory measures. Not all of these measures are prohibited by international law and some can be viewed as a just retorsion against that State. However, where the application of these measures is prohibited by international law – in cases such as the non-recognition of foreign judgments and other jurisdictional regulations in international treaties like mutual judicial assistance agreements – they are countermeasures. If these actions are in response to an illegal extraterritorial law, they should comply with the conditions for countermeasures as cited in the Draft Articles on Responsibility of States for Internationally Wrongful Acts 2001 as approved by the International Law Commission
No full textThis note presents an analysis from the viewpoint of public international law of the event that occurred on November 24, 2015, when a Russian Sukhoi Su-24 bomber jet was downed by the Turkish Air Force over the border region between Syria and Turkey. While some of the basic circumstances of the case remain controversial, enough elements have emerged from media coverage to permit for the identification of the main legal issues, if not also to assess the legality of the Russian behavior and of the Turkish reaction in all its details. The known facts warrant the conclusion that the attack and the downing of the Russian jet can be seen as a disproportionate reaction on the part of the Turkish Government and, therefore, as a violation of the prohibition of the use of military force under Art. 2(4) of the UN Charter and under the corresponding customary rule of international law
Business Transaction Invalidity in the Context of the Principle of Legality
Full text linkThis paper explores business transactions in the context of the principle of legality. It will be argued that Article 168 of the Russian Civil Code, as a metarule, contains three types of rule: 1) rules dealing with the priority of special rules and exceptions (exclusive rules); 2) rules dealing with the interpretation of general, special and exclusive rules, as well as with the requirements of statutes or other legal acts violated by a transaction and established outside of Article 168 of the Civil Code; 3) rules dealing with the admissibility of special rules and exceptions, as well as with the conditions of admissibility of these rules.With regard to the first group of rules, the legislature and commercial courts consider Article 168 of the Civil Code a common base for other grounds in the Civil Code, and in certain other statutes, for declaring transactions invalid. According to the second group of rules, the subject-matter (object) of legal interpretation consists of two elements: а) the text of Article 168 of the Civil Code; and b) the texts of legal acts, described by the generic term “statute or other legal act.” Article 168 of the Civil Code provides instructions, not only for rules as objects of application of the article, but also for the methods of interpreting violated requirements. The rules of admissibility for special rules and exceptions, as well as the conditions of admissibility for these standards, are aimed at the numerous cases in which the legislature, in the Civil Code or in other legal acts, expressly establishes nullity (voidness), voidability and other legal consequences for illegal transactions. The paper also answers questions regarding the impact of recent amendments to the Russian CivilCode on the use, by commercial courts, of rules on business transaction invalidity
The Eurasian Model of International Labour Legislation in the Context of Globalization
Full text linkThe current article seeks to provide a comparative legal analysis of the Eurasian model of international labor legislation. It explores the multi-layered nature of contemporary international labor law in the context of globalization and regionalization, emphasizing the growing importance of cross-border legal labor standards in regional structures in the early 21st century and defines how global and regional cross-border legislation is incorporated on the basis of in favorem. The authors propose their own original concept of international labor legislation, based on the four characteristics: 1) The overall aim of legal regulation; 2) The extent of integration within those regulations; 3) Sources of labor law and their characteristics; 4) Systems of international control over labor rights. To define an original model for the legal regulation of labor, the authors investigate case studies of labour legal regulation in inter-state regional organizations including the European Union, the Council of Europe and ASEAN. The authors’ theoretical model identifies the defining features of Eurasia’s model of labor regulation. The research also follows the establishment and development of Eurasian labor law and attempts to give an informed judgment about its future path. In their conclusions, the authors assert that modern Eurasian labor law is a ‘live law’, still under development as it incorporates the non-uniform integration between the former Soviet Republics. Two primary trends leading regional co-operation in the labor market are identified: 1) A social model, implementing international labor rights across Eurasia; 2) An economic model, built on the free movement of labor in a common market. In today’s environment, the Commonwealth of Independent States goes some way toward representing the first trend through its attempts to serve as an international coordinating organization. The second trend is supported by supranational organizations promoting international integration, emphasizing the economic priorities of a common labor market (in this case, the EAEC) above social policy. The authors believe that, in the long term, Eurasian labor law at a supranational level should be developed via the EAEC to ensure a good balance between these social and economic models. This would include integration standards adopted in accordance with international labor rights, and the best practices of national labor legislation of its member states