Russian Law Journal (RLJ)
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Legal Regulation of Public-Private Partnership in Russia and Other Countries of the Eurasian Economic Union
Full text linkThis article examines comparatively legislation on the public-private partnership in the countries of Eurasian Economic Union and the relationship with Model Law “On Public-Private Partnership” adopted within the framework of the Commonwealth of Independent States. It is argued that the national acts of such countries could be improved and harmonized by developing their categorial apparatus and the extension of permissive regulation of public-private partnership. The legal qualification of an agreement on public-private partnership and other investment contracts with the participation of the State stipulated in other laws is also examined. It is concluded that such agreements comprise not only private, but also public law elements and might be regulated in special legislation containing rules of civil and public law on the basis of balancing private and public interests in public-private partnership.This article examines comparatively legislation on the public-private partnership in the countries of Eurasian Economic Union and the relationship with Model Law “On Public-Private Partnership” adopted within the framework of the Commonwealth of Independent States. It is argued that the national acts of such countries could be improved and harmonized by developing their categorial apparatus and the extension of permissive regulation of public-private partnership. The legal qualification of an agreement on public-private partnership and other investment contracts with the participation of the State stipulated in other laws is also examined. It is concluded that such agreements comprise not only private, but also public law elements and might be regulated in special legislation containing rules of civil and public law on the basis of balancing private and public interests in public-private partnership
Legal Status of a Child in Family Legislation of the Russian Federation and CIS: Comparative Legal Analysis
Full text linkThe authors identify characteristic features of how certain children’s rights are exercised under the family law of Russia and the legislation of the Commonwealth of Independent States (CIS). The norms of the CIS family law on children’s rights are specific; they adhere to national cultural traditions and customs that have an impact on the implementation and protection of children’s personal non-property rights. The authors point out that a child, under certain circumstances, can be a carrier not only of the rights and obligations provided for by the family codes of independent States, but also by family law of the CIS. The article points out to the need to define the law applicable to regulating relations where the participants have different or dual citizenship, or legal facts occurred on the territory of one State that is a member of the CIS. The authors describe a defect in Russian legislation regulating the status of a child with dual citizenship. The problem of legislative consolidation of the concept of proper upbringing of a child is addressed, as are ways that children may undertake self-protection of their rights granted in CIS member States. One peculiarity of the family codes of CIS member States is the norms regulating a child’s participation in personal non-proprietary and proprietary relations. Special attention is paid to alimony payments. Moreover, the authors consider the laws that regulate dissolution of a marriage, as well as how such dissolution affects the legal status of the child. The article focuses on deprivation of parental rights as a radical method of breaking the bond between a child and parents, distinguishing the deprivation of parental rights from their restriction. The authors consider adoption procedures, as well as the legal status of the adopted and adoptive parents. Each problem is considered by using the comparative legal research method.The authors identify characteristic features of how certain children’s rights are exercised under the family law of Russia and the legislation of the Commonwealth of Independent States (CIS). The norms of the CIS family law on children’s rights are specific; they adhere to national cultural traditions and customs that have an impact on the implementation and protection of children’s personal non-property rights. The authors point out that a child, under certain circumstances, can be a carrier not only of the rights and obligations provided for by the family codes of independent States, but also by family law of the CIS. The article points out to the need to define the law applicable to regulating relations where the participants have different or dual citizenship, or legal facts occurred on the territory of one State that is a member of the CIS. The authors describe a defect in Russian legislation regulating the status of a child with dual citizenship. The problem of legislative consolidation of the concept of proper upbringing of a child is addressed, as are ways that children may undertake self-protection of their rights granted in CIS member States. One peculiarity of the family codes of CIS member States is the norms regulating a child’s participation in personal non-proprietary and proprietary relations. Special attention is paid to alimony payments. Moreover, the authors consider the laws that regulate dissolution of a marriage, as well as how such dissolution affects the legal status of the child. The article focuses on deprivation of parental rights as a radical method of breaking the bond between a child and parents, distinguishing the deprivation of parental rights from their restriction. The authors consider adoption procedures, as well as the legal status of the adopted and adoptive parents. Each problem is considered by using the comparative legal research method
From the Establishment of the Court of Justice of the African Union to Malabo Protocol: The Defies to the Regional Judicial Mode of Protection of Human Rights
Full text linkThe judicial method of dispute resolution has aroused in Africa countless turnarounds of positions, from rejection to acceptance, from construction to destruction, to allow its transformation. It seems to have recently stabilized in the figure of the African Court of Justice and Human Rights, merging the two existing regional judicial bodies. It is already known to us that the two Tribunals have two main pre-defined functions, one that deals with the resolution of conflicts between States of the continent and the other on the protection of human rights, which are quite different roles. So, in this article, we analyze all impediments of the judicial system of African human rights to answer the question of whether it is best for African human rights to keep the tribunals separate, regardless of the desire to reduce costs or merger is better to ensure more effectively the protection of human rights?The judicial method of dispute resolution has aroused in Africa countless turnarounds of positions, from rejection to acceptance, from construction to destruction, to allow its transformation. It seems to have recently stabilized in the figure of the African Court of Justice and Human Rights, merging the two existing regional judicial bodies. It is already known to us that the two Tribunals have two main pre-defined functions, one that deals with the resolution of conflicts between States of the continent and the other on the protection of human rights, which are quite different roles. So, in this article, we analyze all impediments of the judicial system of African human rights to answer the question of whether it is best for African human rights to keep the tribunals separate, regardless of the desire to reduce costs or merger is better to ensure more effectively the protection of human rights
Eurasian Economic Union Court and WTO Dispute Settlement Body: Two Housewives in One Kitchen
Full text linkUsing the approach of the United Nations International Law Commission, the law of the Eurasian Economic Union and WTO law might be regarded as autonomous complexes of rules. However, in all current disputes the DSB treats the norms of EAEU law as measures adopted by a specific EAEU member, but not as international law within the meaning of the ILC. These disputes concern import tariffs, anti-dumping investigations, and technical regulation and reveal a number of specific features. First, the EAEU measures are attributable to every EAEU member. Second, the WTO members may try to challenge in the DSB the measures adopted by an EAEU member in its national legislation based on EAEU law that affect national legislation of that EAEU member, rather than EAEU law as such. Third, “forum shopping” may arise, for the same measure can be challenged under EAEU law in the EAEU Court and under WTO law in the DSB. Finally, to overcome uncertainty concerning WTO law in EAEU Court jurisprudence, it is necessary to clarify the approach of the EAEU Court. The authors conclude that this approach should provide for the Court’s right to interpret EAEU law relying on WTO law and DSB jurisprudence. Such interpretation should be made within the context and object of the EAEU Treaty. However, the autonomous EAEU legal order cannot be implemented until the Treaty on Functioning of the Customs Union within the Multilateral Trading System is applicable.Using the approach of the United Nations International Law Commission, the law of the Eurasian Economic Union and WTO law might be regarded as autonomous complexes of rules. However, in all current disputes the DSB treats the norms of EAEU law as measures adopted by a specific EAEU member, but not as international law within the meaning of the ILC. These disputes concern import tariffs, anti-dumping investigations, and technical regulation and reveal a number of specific features. First, the EAEU measures are attributable to every EAEU member. Second, the WTO members may try to challenge in the DSB the measures adopted by an EAEU member in its national legislation based on EAEU law that affect national legislation of that EAEU member, rather than EAEU law as such. Third, “forum shopping” may arise, for the same measure can be challenged under EAEU law in the EAEU Court and under WTO law in the DSB. Finally, to overcome uncertainty concerning WTO law in EAEU Court jurisprudence, it is necessary to clarify the approach of the EAEU Court. The authors conclude that this approach should provide for the Court’s right to interpret EAEU law relying on WTO law and DSB jurisprudence. Such interpretation should be made within the context and object of the EAEU Treaty. However, the autonomous EAEU legal order cannot be implemented until the Treaty on Functioning of the Customs Union within the Multilateral Trading System is applicable
Intervention by Invitation – When Can Consent from a Host State Justify Foreign Military Intervention?
Full text linkНесмотря на общий запрет на вмешательство в дела других государств, военные вмешательства, предпринимаемые с согласия принимающего государства, считаются допустимыми. Это подтверждается как в государственной практике, так и в международно-правовой доктрине. Однако для того, чтобы такие вмешательства были разрешены в определенных ситуациях, должны быть выполнены определенные требования. Согласие должно быть дано надлежащим органом, оно не должно быть искажено, оно должно предшествовать вмешательству, и оно должно быть дано четко и ясно. В данной статье рассматривается значение каждого из этих требований и рассматривается их применение в государственной практике. Кроме того, рассматривается возможность вмешательства в гражданские войны. Представлено в заключении стать
A Critical Analysis of Western Intervention in Foreign Nations: A Case Study of Ukraine and Venezuela
Full text linkThe end of the Cold War triggered the spread of multiparty politics across the global south and the former Soviet Union. The western democracies argued this form of governance would ensure the rule of law, human rights and constitutionalism. However, in the recent past a worrisome trend has emerged where these global powers support opposition leaders in order to oust legitimate but antagonistic elected leaders in foreign. More often than not, this political change is engineered in wanton disregard of the country’s constitution and the relevant provisions of international law. This geopolitical conundrum is portrayed by the purported ousting of President Viktor Yanukovych of Ukraine in 2014 and most recently President Nicolás Maduro in Venezuela. Despite being the duly elected leaders of their respective countries, they were illegitimately ousted opposition leaders supported by western powers. In the same vein, these political changes usually initiated using force contrary to the relevant provisions of the United Nations Charter and other relevant principles of international law. Furthermore, the International Court of Justice (ICJ) has established a concrete body of jurisprudence on this subject matter though the same is yet to be codified in international law. Broadly speaking, this paper argues this practice is unequivocally illegal and equivalent to infringement upon the sovereignty and territorial integrity of these countries
Contested Sovereignty and Conflict: Between Spain and Catalonia
Full text linkThis paper examines the Catalonia-Spain trajectory. Quite recently, the region of Catalonia became known for its sovereignty demand, which has strained relations with Spain its host state. Economic grievances, nationalism, and political disillusionment are some of the explanations given for the growing secessionist moves in the region. Apart from this, other reasons identified include strained historical ties, class struggle, the erosion of its autonomous region by General Francisco Franco and the subsequent demand for selfdetermination by separatists. An issue that runs through this work is the refusal of the Spanish government to concede to this separatist’s demand which has deteriorated any negotiations for dialogue. However, the Spanish government has announced that it is open to negotiate anything except a referendum. Furthermore, based on the reaction of the Spanish government, the 2014 referendum held by the Catalans seems to be nonconclusive. This study, therefore seeks to examine the contentious issues of “contested sovereignty” with relations to the Catalonia-Spain quagmire and its seemly subsisting impact in the pro-independence agitations in Europe and Africa.This paper examines the Catalonia-Spain trajectory. Quite recently, the region of Catalonia became known for its sovereignty demand, which has strained relations with Spain its host state. Economic grievances, nationalism, and political disillusionment are some of the explanations given for the growing secessionist moves in the region. Apart from this, other reasons identified include strained historical ties, class struggle, the erosion of its autonomous region by General Francisco Franco and the subsequent demand for selfdetermination by separatists. An issue that runs through this work is the refusal of the Spanish government to concede to this separatist’s demand which has deteriorated any negotiations for dialogue. However, the Spanish government has announced that it is open to negotiate anything except a referendum. Furthermore, based on the reaction of the Spanish government, the 2014 referendum held by the Catalans seems to be nonconclusive. This study, therefore seeks to examine the contentious issues of “contested sovereignty” with relations to the Catalonia-Spain quagmire and its seemly subsisting impact in the pro-independence agitations in Europe and Africa
Tax Compliance in the Russian Federation, the United Kingdom of Great Britain and Northern Ireland, and the United States of America: Forcing and Encouraging Lawful Conduct of Taxpayers
Full text linkThe article is devoted to the consideration of the system for the tax authorities to assess tax risks and to prevent tax law violations. The work focuses on how the tax authorities affect the conduct of taxpayers through “soft law,” disclose information about their approach towards understanding tax risks and enforce a system of measures to ensure compliance. Tax compliance is analysed in the article as good-faith and lawful conduct of a taxpayer, which is formed under the influence of a system of, at the same time, preventive and incentive measures. This article considers tax compliance issues in Russia, the United Kingdom and the USA, not so much as a consequence of the voluntary actions of the taxpayer, but as a consequence of the conditions that are set for a taxpayer by the administrative action of tax authorities. To do this, the approaches of the tax authorities to defining the criteria for tax risks and the procedure for assessing them are analysed, as is the effect of these approaches on the subsequent implementation of tax control measures, while the system of enforcement measures and incentives for taxpayers to comply with tax legislation are examined. Tax compliance is the most desirable regime for the state, but in the entire history of taxation no jurisdiction has been able to achieve full tax collection solely based on a persuasive method. At the same time, owing to the limited resources of tax administrations, in practice there is no real opportunity to examine absolutely every taxpayer. For specifically this reason, a risk-based approach to carrying out tax control with a reasonable combination of both incentive measures and the enforcement of compliance with tax legislation is becoming increasingly relevant. The authors consider the implementation of a risk-based approach and its effect on tax compliance, on the choice of tax control measures, and on depth and scope in terms thereof, using the example of the experience of Russia, the United Kingdom and the USA. The article also pays special attention to an analysis of incentive measures and the enforcement of tax compliance in these jurisdictions.The article is devoted to the consideration of the system for the tax authorities to assess tax risks and to prevent tax law violations. The work focuses on how the tax authorities affect the conduct of taxpayers through “soft law,” disclose information about their approach towards understanding tax risks and enforce a system of measures to ensure compliance. Tax compliance is analysed in the article as good-faith and lawful conduct of a taxpayer, which is formed under the influence of a system of, at the same time, preventive and incentive measures. This article considers tax compliance issues in Russia, the United Kingdom and the USA, not so much as a consequence of the voluntary actions of the taxpayer, but as a consequence of the conditions that are set for a taxpayer by the administrative action of tax authorities. To do this, the approaches of the tax authorities to defining the criteria for tax risks and the procedure for assessing them are analysed, as is the effect of these approaches on the subsequent implementation of tax control measures, while the system of enforcement measures and incentives for taxpayers to comply with tax legislation are examined. Tax compliance is the most desirable regime for the state, but in the entire history of taxation no jurisdiction has been able to achieve full tax collection solely based on a persuasive method. At the same time, owing to the limited resources of tax administrations, in practice there is no real opportunity to examine absolutely every taxpayer. For specifically this reason, a risk-based approach to carrying out tax control with a reasonable combination of both incentive measures and the enforcement of compliance with tax legislation is becoming increasingly relevant. The authors consider the implementation of a risk-based approach and its effect on tax compliance, on the choice of tax control measures, and on depth and scope in terms thereof, using the example of the experience of Russia, the United Kingdom and the USA. The article also pays special attention to an analysis of incentive measures and the enforcement of tax compliance in these jurisdictions
Anti-Rawls or the Russian Way of Eurasian Integration
Full text linkThis article examines Eurasian integration in the context of the ideas which accompany it and make possible the implementation of its practices, especially law-making and law-enforcement practices. The central theme of the article is the competition among values and social technologies claiming to play an integrating role. The starting point of this analysis is the theory of justice by John Rawls presented in the form of many interpretations thereof by legal theorists, as well as experts in the field of political and moral philosophy. It is examined based on assessments made from the standpoint of the politico-legal and socio-historical development of the West, as well as on attempts to look at this theoretical concept from a different cultural and civilizational point of view. Detailed consideration is given to the ideas and images of justice formed within the philosophical symbiosis of Confucianism and Legalism and providing a value-based legal identity of the Chinese civilization. The article shows that the ideas and values of the Rawlsian theory of justice are rooted in the political and legal history of European civilization and the dependence thereof on the philosophical and theoretical language of European enlighteners and even on the Indo-European national language family. As the main alternative to the neoliberal theory of justice, the article studies the philosophical and theoretical and politico-legal heritage of the Eurasianists. The theory of Eurasian law advanced by representatives of this movement is analyzed in depth. This type of legal relations, based on obligations, is considered as a special type of law capable of uniting heterogeneous entities without requiring their full unification or depriving them of their civilizational and value-based peculiarities. The authors analyze the real experience of economic and politico-legal integration, both within the framework of international organizations and at the level of inter-governmental [inter-country] cooperation. An assessment is made of the justifiability of the claims of Eurasianist philosophy regarding its ability to successfully provide integration processes in this part of the world.This article examines Eurasian integration in the context of the ideas which accompany it and make possible the implementation of its practices, especially law-making and law-enforcement practices. The central theme of the article is the competition among values and social technologies claiming to play an integrating role. The starting point of this analysis is the theory of justice by John Rawls presented in the form of many interpretations thereof by legal theorists, as well as experts in the field of political and moral philosophy. It is examined based on assessments made from the standpoint of the politico-legal and socio-historical development of the West, as well as on attempts to look at this theoretical concept from a different cultural and civilizational point of view. Detailed consideration is given to the ideas and images of justice formed within the philosophical symbiosis of Confucianism and Legalism and providing a value-based legal identity of the Chinese civilization. The article shows that the ideas and values of the Rawlsian theory of justice are rooted in the political and legal history of European civilization and the dependence thereof on the philosophical and theoretical language of European enlighteners and even on the Indo-European national language family. As the main alternative to the neoliberal theory of justice, the article studies the philosophical and theoretical and politico-legal heritage of the Eurasianists. The theory of Eurasian law advanced by representatives of this movement is analyzed in depth. This type of legal relations, based on obligations, is considered as a special type of law capable of uniting heterogeneous entities without requiring their full unification or depriving them of their civilizational and value-based peculiarities. The authors analyze the real experience of economic and politico-legal integration, both within the framework of international organizations and at the level of inter-governmental [inter-country] cooperation. An assessment is made of the justifiability of the claims of Eurasianist philosophy regarding its ability to successfully provide integration processes in this part of the world