Russian Law Journal (RLJ)
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Legal Nature and Enforcement of Settlement Agreements: Comparative Review
Full text linkThe article is devoted to two major issues: the substantive nature of settlement agreement, and legal remedies available for a creditor under compromise which interest is not satisfied voluntarily. Both issues are covered from comparative perspective employing Russian and the United States statutes, case law and doctrine. First, the paper demonstrates that, while Russian doctrines has evolved a sui generis approach to substantial nature of settlement agreement, United States tend to consider it as special contractual type with consideration granted specifically for termination of a legal dispute. Second, the article analyzes scope of res judicata effect invoked in course of Russian and U.S.-governed settlement, as well as common points and differences in granting creditors with relief in forms of specific performance and recovery of damages. Finally, the paper considers problem of rescission as remedy for material breach of compromise. Author comes to conclusion on desirability of employing this type of claim into Russian legislation
Social and Labour Rights of “New” SelfEmployed Persons (and in Particular Self-Employed Platform Workers) in Russia
Full text linkIn the first part of the article, the business model of “work on demand” in Russia is described, and the nature and functions of platform providers with particular reference to labour disputes concerning the classification of platform workers are analysed. Furthermore, the author discusses options concerning the labour protection of platform workers. Taking into account that workers on demand are classified as self-employed in case law and in practice, the second part of this article reflects implications for tax and social law. Particular attention is paid to the tax holidays of 2017–2019 and the tax on professional income. Hereby the access to social protection for self-employed persons in general, and for those self-employed who use privileged tax regimes in particular, is analysed. In the light of these reflections, the false incentives of the tax on professional income are investigated. Finally, some conclusions are offered, to explain the interrelationship between labour, social and tax law. Coordination of legislative measures and reforms in labour law, in social law and in tax law is seen as a way to improve the situation of workers on demand
No full textDemocratic constitutional order is occasionally threatened by anti-democratic forces, and thus, requires special protection. The concept of militant democracy has been developed to provide adequate defensive mechanisms. In this article, we discuss positive aspects of their application, but also highlight the risks of abusing these defensive mechanisms. Essentially, the problems are associated with narrowing the political space and favouring the dominant political force. Fragile democracies, including Russia, are particularly vulnerable to such exposure. A targeted study of Russian legislation and the caselaw of the Constitutional Court of the Russian Federation has allowed us to identify the prerequisites for effective implementation of the doctrine of self-defence in line with the principles of constitutionalism
The Russian Arbitration Reform: Between Lights and Shadows
Full text linkRussian system of alternative disputes resolution has experienced relevant development over the last few years. On December 2015, the Russian President signed two laws, which entered into force on 1 September 2016 and substantially reshaped the legal framework for arbitration in the Russian Federation. These are the Federal Law on Arbitration and the Federal Law on Amending Certain Legislative Acts, which introduced amendments to various laws including International Commercial Arbitration Law, Arbitrazh (Commercial) Procedural Code and Civil Procedural Code. The present article provides a comment on the key changes introduced by the said reform, compared to the previous state-of-play. Special attention has been given to the validity of the arbitration agreement, the arbitrability of international disputes and the denial of enforcement of an arbitral award for matters of public policy. Starting from the evolution of the Russian Supreme Court’s approach to the ground for refusal of enforcement of an international award, the article discusses the recent judgments of the Russian courts in relation to the enforcement of an arbitral award to identify the lights and shadows of the international arbitration system in Russia
Cultural Foundations and Mythological Nature of Human Rights
Full text linkThe author claims that the concept of human rights arose on European soil as a result of certain cultural, political, and economic factors. Its primary base is formed by Christian ideas, secularized with the dissolution of feudalism and the spread of capitalism. In particular, this concept synthesized the Christian ideas of God’s likeness of man and the omnipresence of God: being god-like, man, like God, may be present in all things, though not in all at once. The main beneficiary was the bourgeoisie, who used personal rights to destroy feudal institutions, political rights to establish control over the state, and economic and social rights to mitigate class contradictions and distract their opponents. The religious origin of rights is the key to understanding their important features such as the absence of logical basis for human rights; helplessness of the law in front of acts that undermine the foundations of order and are marked as acts of self-realization; extraordinary diversity of rights, etc. There are several directions of human rights criticism (conservative, moderateliberal, Marxist and Christian). All of them assume that human rights neither adequately reflect human nature, nor take into account some of its aspects. Indeed, man is not only an individual seeking to choose, but also a member of a collective who needs a recognition (conservatism); a being alienated from labor and racial life (Marxism); a believer seeking to avoid sin (early Christianity) and obedient to divine will (Islam); a being who suffers from constant suffering and seeks to be saved from it (Buddhism); a victim of civilization, oppressed by the flow of information and the need for constant choice This inadequacy entails a destructive effect: the concept of rights creates a monochrome picture, on which, the human existence is reduced to act of will; gives rise to logical contradictions; destroys reality, monopolizing the axiological basis of cooperation; is used as a tool of submission and domination; creates an absolute justa causa; alienates from existence and forms the basis for other levels of the mythological structure. The history of human rights is not complete: It seems that today humanity is on the eve of fundamental transformations, whose content and final result are difficult to predict
Analysis on the Definition of Japanese Territory After World War II in Terms of International Law: the Southern Kurils, the Diaoyu Islands and Tok Islet
Full text linkGeopolitical tensions have periodically risen in the Asia-Pacific region due to territorial disputes between Japan and its neighbours over the Southern Kurils (the Northern Territories), the Diaoyu Islands (the Senkaku islands) and Tok Islet (Tok Islet (Dokdo)/ Takeshima). There is, of course, great discrepancy between the disputes over the Southern Kurils, the Diaoyu Islands and Tok Islet (Dokdo) in terms of their respective origin and legal nature, and effective control over them, and the historical and legal grounds on which the disputing states rely in their claims over the disputed territories vary widely. But what is consensual and definite is the fact that the islands in dispute were already excluded from the Japanese territory under the international legal acts deciding Japanese territory after World War II. The paper examines and analyzes Japanese reasoning behind its claim over the disputed territories in terms of relevant international legal acts relating to the delimitation of Japanese territory after World War II
International Financial Standards in the Global Legal Order and in EU and EAEU Law
Full text linkThe global financial crisis strengthened the role of international financial standards in global commercial architecture and outlined the specialization of standard-settingbodies. These standards may be transposed in international agreements or be implemented in the legal order of states and state communities (such as the European Union (EU) and the Eurasian Economic Union (EAEU)). The development of standard-setting bodies and the evolving process of soft law rulemaking have led to the establishment of a specific mechanism, which may be called “the soft law mechanism.” The authors argue that this mechanism includes several components: normative (IFS), institutional (SSBs), controlling (peer reviews), and assuring (implementing incentives) components. However, despite the rising influence of international financial standards, a strict boundary between soft and hard law should be established. This article outlines these boundaries and justifies the use of the term soft law. In post-crisis global financial regulation, the role of soft law has increased not only in the financial market but also in the field of monetary regulation. Along with the traditional mechanisms of financial support from the International Monetary Fund (IMF), states may use alternative bilateral and regional mechanisms. At the level of integration associations, soft law manifests in different ways. In the EU, despite the expansion of its field of action, soft law is purely an auxiliary element of the Union’s legal system. In EAEU law, the mechanism of soft-law regulation can beconsidered promising, given the peculiarities of the integration model.
No full textThe very idea of human reproductive rights seems challenging. For much of human history, they were not discussed seriously as being a part of the right to privacy, liberty, security, equality, health, and non-discrimination. The situation changed drastically in the 1990s with the development of reproductive technologies. These technologies do not only help infertile couples to conceive, they allow single men and women, no matter their status and sexual preferences, to have offspring of the same genetic origin. We can affirm that in the 21st century assisted reproductive technology (ART) has completely changed what it means to have a baby and to be a parent. Despite their benefits, reproductive technologies leave space for ethical and medical concerns. A few of the many issues raised by reproductive technologies include: the reproductive right to abortion, legal status of the human fetus, ethical aspects regarding the use and storage of embryos, sex selection, surrogacy and gamete donation, and the right and accessibility to medical sterilization. This article sets forth the existing ethical and human rights standards on these issues and illustrates the need for further development and clarity on balancing these rights and interests in the Russian Federation
Macroeconomic Coordination in the Eurasian Economic Union: Strategic Aspects
Full text linkCoordinated macroeconomic policy is a special element within the integration process in addition to the four freedoms usual for economic integration: free movement of goods, free movement of services, free movement of labor, and free movement of capital. Macroeconomic coordination was, from the very beginning, a key idea behind each stage of the process of Eurasian economic integration. The politico-ideological foundation of the Eurasian idea is the facilitation of growth for Eurasian countries on the basis of economic pragmatism. The macroeconomic coordination process within the Eurasian Economic Union is based on the coordination of strategic planning systems in each Member State. Strategic planning plays an important role in macroeconomic coordination. Strategic planning documents have a sound legal basis in the Treaty establishing the Eurasian Economic Union. At the same time Eurasian integration provides a platform for best practice exchanges and coordination of strategic planning between the Member States.Coordinated macroeconomic policy is a special element within the integration process in addition to the four freedoms usual for economic integration: free movement of goods, free movement of services, free movement of labor, and free movement of capital. Macroeconomic coordination was, from the very beginning, a key idea behind each stage of the process of Eurasian economic integration. The politico-ideological foundation of the Eurasian idea is the facilitation of growth for Eurasian countries on the basis of economic pragmatism. The macroeconomic coordination process within the Eurasian Economic Union is based on the coordination of strategic planning systems in each Member State. Strategic planning plays an important role in macroeconomic coordination. Strategic planning documents have a sound legal basis in the Treaty establishing the Eurasian Economic Union. At the same time Eurasian integration provides a platform for best practice exchanges and coordination of strategic planning between the Member States
International Universal Unification of the Conflict-of-Law Regulation of Cross-Border Unfair Competition
Full text linkThis article puts forward that there are diverse and sound grounds preventing the universal treaty regulating comprehensively the issues of legal protection from crossborder unfair competition by substantive norms from being worked out in the near future. The development of the universal unification of the conflict-of-law rules on the law applicable to the private relations arising out of unfair competition as a possible alternative is also proposed and substantiated. The authors give some possible reasons for the absence of such a treaty and demonstrate the results that have been achieved so far in this field. The concept of the Draft of the relevant Convention is drawn up. The conclusion is made that the latter needs to be centered on the lex mercatus as a single connecting factor (due to its advantages of predictability, account of the interests of the state where the effected market is situated etc.). Furthermore, the Convention should not provide for party autonomy, should set forth the detailed rules for the legal characterization of the basic terms of the Convention, including the scope of the applicable law as well as the public policy clause and the norms on the overriding mandatory provisions.This article puts forward that there are diverse and sound grounds preventing the universal treaty regulating comprehensively the issues of legal protection from crossborder unfair competition by substantive norms from being worked out in the near future. The development of the universal unification of the conflict-of-law rules on the law applicable to the private relations arising out of unfair competition as a possible alternative is also proposed and substantiated. The authors give some possible reasons for the absence of such a treaty and demonstrate the results that have been achieved so far in this field. The concept of the Draft of the relevant Convention is drawn up. The conclusion is made that the latter needs to be centered on the lex mercatus as a single connecting factor (due to its advantages of predictability, account of the interests of the state where the effected market is situated etc.). Furthermore, the Convention should not provide for party autonomy, should set forth the detailed rules for the legal characterization of the basic terms of the Convention, including the scope of the applicable law as well as the public policy clause and the norms on the overriding mandatory provisions