Russian Law Journal (RLJ)
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Court of the Eurasian Economic Union: The Beginning
Full text linkThis article is based on 7.5 years of work experience in the Courts of the Eurasian Economic Community (EurAsEC) and Eurasian Economic Union (EAEU) and, therefore, finalizes the major problems the mentioned judicial institutions faced with in the beginning of their functioning. The Eurasian Economic Union in post-Soviet space was created five years ago with minimal established doctrinal and practical perceptions of how such an organization may interact with State sovereignty and whether it constituted the first step for the subsequent emergence of a new State. The authors believe that the EAEU should not be confused with the State and should be considered a new type of international organization, supranational, to which member States transferred competence. In this organization the Court plays an important role – its main function is to ensure the uniform application of Union law by hearing disputes and providing advisory opinions in various spheres of integration and, therefore, establish practice having an erga omnes effect in the law of the Union and national legal systems of States. Just as in other international courts, the main role in the EAEU Court functioning is played by judges nominated by national governments, sometimes without taking into account the sui generis character of their future work. Taking into consideration the valuable experience from other international courts and organizations (such as the International Court of Justice, European Court of Human Rights, International Law Association), the authors suggest ways for improvement of future Court functioning by creating mechanisms that would monitor the qualities of candidates for the post of the EAEU Court judge.This article is based on 7.5 years of work experience in the Courts of the Eurasian Economic Community (EurAsEC) and Eurasian Economic Union (EAEU) and, therefore, finalizes the major problems the mentioned judicial institutions faced with in the beginning of their functioning. The Eurasian Economic Union in post-Soviet space was created five years ago with minimal established doctrinal and practical perceptions of how such an organization may interact with State sovereignty and whether it constituted the first step for the subsequent emergence of a new State. The authors believe that the EAEU should not be confused with the State and should be considered a new type of international organization, supranational, to which member States transferred competence. In this organization the Court plays an important role – its main function is to ensure the uniform application of Union law by hearing disputes and providing advisory opinions in various spheres of integration and, therefore, establish practice having an erga omnes effect in the law of the Union and national legal systems of States. Just as in other international courts, the main role in the EAEU Court functioning is played by judges nominated by national governments, sometimes without taking into account the sui generis character of their future work. Taking into consideration the valuable experience from other international courts and organizations (such as the International Court of Justice, European Court of Human Rights, International Law Association), the authors suggest ways for improvement of future Court functioning by creating mechanisms that would monitor the qualities of candidates for the post of the EAEU Court judge
Evolution of the Concept of Political Corruption in Western and Russian Political Science and Law
Full text linkAs a result of intensive international debate and the adoption of a number of renowned international anticorruption conventions and initiatives in the 1990s and 2000s, the issue of corruption has become a convenient theme for different kinds of generalizations in social sciences. However, national legislation does not reflect these developments in its legal regulation due to conservatism inherent in jurisprudence. One of the most evident gaps in this respect is the sphere of political corruption. While political science and political economy for decades have been successful in explaining political processes in different countries as corrupt conspiracies of political elites, business structures, and other actors in the political process, legal science has kept itself separate from such problems and prefers to deal with individual acts of corruption. But if for criminal law such an approach seems logical due to the methodology of the criminal law, for other branches of law which set forth a systemic view on social processes – primarily administrative and constitutional – there seems to be an omission.Nowadays, there is a quite favourable environment for the development of a consistent legal understanding of anticorruption in Russia. This has become possible thanks to current Russian administrative reforms, when the need for a highly professional bureaucracy led to a greater demand for various anticorruption mechanisms. The next possible step in Russia may be an attempt to ensure the effectiveness of well-proven anti-corruption methods of the political system as a whole.In this article we propose a brief background to the evolution of the concept of political corruption in Western and Russian political and legal science, which entails the necessity of complex scientific legal synthesis on this issue, allows to discuss the existing methodological potential and creates new opportunities to build up appropriate systemic legislative models.As a result of intensive international debate and the adoption of a number of renowned international anticorruption conventions and initiatives in the 1990s and 2000s, the issue of corruption has become a convenient theme for different kinds of generalizations in social sciences. However, national legislation does not reflect these developments in its legal regulation due to conservatism inherent in jurisprudence. One of the most evident gaps in this respect is the sphere of political corruption. While political science and political economy for decades have been successful in explaining political processes in different countries as corrupt conspiracies of political elites, business structures, and other actors in the political process, legal science has kept itself separate from such problems and prefers to deal with individual acts of corruption. But if for criminal law such an approach seems logical due to the methodology of the criminal law, for other branches of law which set forth a systemic view on social processes – primarily administrative and constitutional – there seems to be an omission.Nowadays, there is a quite favourable environment for the development of a consistent legal understanding of anticorruption in Russia. This has become possible thanks to current Russian administrative reforms, when the need for a highly professional bureaucracy led to a greater demand for various anticorruption mechanisms. The next possible step in Russia may be an attempt to ensure the effectiveness of well-proven anti-corruption methods of the political system as a whole.In this article we propose a brief background to the evolution of the concept of political corruption in Western and Russian political and legal science, which entails the necessity of complex scientific legal synthesis on this issue, allows to discuss the existing methodological potential and creates new opportunities to build up appropriate systemic legislative models
Between a “Heavenly” Life and an “Earthly” Life: Jurisprudence of the Court of the EAEU from 2012–2019
Full text linkIn 2012, a new jurisdictional body – the Court of the Eurasian Economic Community – began to operate in post-Soviet space. During the almost seven years of activity, from September 2012 to May 2019, the Court primarily dealt with appeals of economic entities who challenged acts of the Eurasian Economic Commission, as well as requests from Member States and the Commission for interpretations of international treaties. On one hand, the decisions of the Court meet basic international standards and contain certain answers to the questions submitted to the Court. On the other hand, they do not draw detailed arguments and clear conclusions and sometimes reflect the Court’s predisposition towards the Commission and Member States. As a result, they successfully perform the task of resolving specific disputes, but do not perform (at least effectively) the general task of strengthening the rule of law of the EAEU. The Court did not formulate major concepts that complement and enrich the law of the EAEU. The author substantiates this conclusion and analyzes the Court use of sources of law and evidence; its participation in judicial dialogue; its technique of argumentation; linguistic features of its decisions; procedural and substantive problems faced by the Court, and options for their solution; the practice of presenting separate opinions; legal concepts formulated by the Court, and its overall influence on the development of EAEU law. The ineffective resolution of problems faced by the Court are attributable to subjective and objective reasons – shortcomings of applicable acts, the Court’s isolation from Russian doctrine, the Court’s focus on an internal model of legal proceedings, mistrust on the part of Member States, failure of the Court organizational structure to conform to international standards, and the vertical nature of the EAEU. If these factors are not overcome, and the Court does not change its conduct, it risks becoming a decorative body engaged in explaining provisions that are clear (and will repeat the sad fate of the CIS Economic Court). This prospect is discouraging.In 2012, a new jurisdictional body – the Court of the Eurasian Economic Community – began to operate in post-Soviet space. During the almost seven years of activity, from September 2012 to May 2019, the Court primarily dealt with appeals of economic entities who challenged acts of the Eurasian Economic Commission, as well as requests from Member States and the Commission for interpretations of international treaties. On one hand, the decisions of the Court meet basic international standards and contain certain answers to the questions submitted to the Court. On the other hand, they do not draw detailed arguments and clear conclusions and sometimes reflect the Court’s predisposition towards the Commission and Member States. As a result, they successfully perform the task of resolving specific disputes, but do not perform (at least effectively) the general task of strengthening the rule of law of the EAEU. The Court did not formulate major concepts that complement and enrich the law of the EAEU. The author substantiates this conclusion and analyzes the Court use of sources of law and evidence; its participation in judicial dialogue; its technique of argumentation; linguistic features of its decisions; procedural and substantive problems faced by the Court, and options for their solution; the practice of presenting separate opinions; legal concepts formulated by the Court, and its overall influence on the development of EAEU law. The ineffective resolution of problems faced by the Court are attributable to subjective and objective reasons – shortcomings of applicable acts, the Court’s isolation from Russian doctrine, the Court’s focus on an internal model of legal proceedings, mistrust on the part of Member States, failure of the Court organizational structure to conform to international standards, and the vertical nature of the EAEU. If these factors are not overcome, and the Court does not change its conduct, it risks becoming a decorative body engaged in explaining provisions that are clear (and will repeat the sad fate of the CIS Economic Court). This prospect is discouraging
Protection of Foreign Investment in Central Asia
Full text linkCentral Asia, with its abundance of natural resources and low labor costs, is often seen as an attractive destination for foreign investment. The inflow of foreign investment into Central Asia has significantly increased in recent decades, and this phenomenon supports the improvement of both national economies and the welfare of the region. Still, Central Asia is not classified as a low-risk destination for foreign investment because of inadequate protection of foreign investment – particularly a lack of transparency and predictability in Central Asia states’ FDI (Foreign Direct Investment) regimes. Furthermore, international organizations (such as the OECD) indicate that some countries in Central Asia do not have clear investment policies. These points pose problems for foreign investors who desire to invest in the region. From this perspective, this article analyzes the consistency of the general principles of foreign investment in Central Asia with international investment standards
Contractual Preemptive Rights: Russian Doctrine and European Tradition in the Context of Russian Civil Code Reform
Full text linkProblems associated with the possibility of the stipulation of preemptive rights by contract and their effective protection are researched in this article. Based on the examples of German, French and Swiss civil legislation, we establish that contractual preemption is widely used in Europe as a convenient instrument to formalize the interests of the participants in a civil turnover. In this connection, in Russian civil doctrine, the widespread idea that preemptive rights may be stipulated only by law, not by contract, should be revised.We state that the essence of the institution of preemptive rights predetermines its remedy. Historically Russian civil law provides specific remedy in case of breach of the most spread statutory preemptive rights. It is a claim by the entitled person (holder of preemption) against a third party (counterparty of obliged person whose contract breached the preemption) to transfer from the third party to the entitled person the rights and duties that arose under the contract between the third party and the obliged person. This remedy is more efficient for the entitled person than damages. In accordance with the principle of good faith, it may be used only in cases in which the third party knew or should have known about preemption. However, this requirement is complied in relation to protection of statutory preemptions only. As far as both contractual preemptive rights and contracts stipulated the latter are not recognized and not registered in Russia, such suit will be dismissed by court. The lack of effective protection of contractual preemptions impedes the creation of full-fledge system of preemptive rights in Russian civil law.In order to create effective mechanism of protection of contractual preemptive rights by giving the participants of a civil turnover the opportunity to ascertain if there is a contractual preemptions, we suggest that Russian civil legislation should be added by two registration systems. The first is a system for the registration of contracts that stipulate preemptions over immovable property (or registration of the preemptions itself which is better) provided by the Federal Service for State Registration, Cadastre and Cartography of the Russian Federation. The second is a system for the registration of notifications on the conclusion of contracts that stipulate contractual preemptive rights over movable things that could be established by an expansion of the existing system for the e-registration of notifications оf pledges of movable things under the jurisdiction of the Federal Chamber of Notaries of the Russian Federation.Problems associated with the possibility of the stipulation of preemptive rights by contract and their effective protection are researched in this article. Based on the examples of German, French and Swiss civil legislation, we establish that contractual preemption is widely used in Europe as a convenient instrument to formalize the interests of the participants in a civil turnover. In this connection, in Russian civil doctrine, the widespread idea that preemptive rights may be stipulated only by law, not by contract, should be revised.We state that the essence of the institution of preemptive rights predetermines its remedy. Historically Russian civil law provides specific remedy in case of breach of the most spread statutory preemptive rights. It is a claim by the entitled person (holder of preemption) against a third party (counterparty of obliged person whose contract breached the preemption) to transfer from the third party to the entitled person the rights and duties that arose under the contract between the third party and the obliged person. This remedy is more efficient for the entitled person than damages. In accordance with the principle of good faith, it may be used only in cases in which the third party knew or should have known about preemption. However, this requirement is complied in relation to protection of statutory preemptions only. As far as both contractual preemptive rights and contracts stipulated the latter are not recognized and not registered in Russia, such suit will be dismissed by court. The lack of effective protection of contractual preemptions impedes the creation of full-fledge system of preemptive rights in Russian civil law.In order to create effective mechanism of protection of contractual preemptive rights by giving the participants of a civil turnover the opportunity to ascertain if there is a contractual preemptions, we suggest that Russian civil legislation should be added by two registration systems. The first is a system for the registration of contracts that stipulate preemptions over immovable property (or registration of the preemptions itself which is better) provided by the Federal Service for State Registration, Cadastre and Cartography of the Russian Federation. The second is a system for the registration of notifications on the conclusion of contracts that stipulate contractual preemptive rights over movable things that could be established by an expansion of the existing system for the e-registration of notifications оf pledges of movable things under the jurisdiction of the Federal Chamber of Notaries of the Russian Federation
The Adversarial System in the Criminal Process of Ukraine: Technical and Legal Aspects
Full text linkThis article substantiates the author’s scientific concept of electronic criminal proceedings, as regards the use thereof in the adversarial system, which would involve the formation of criminal proceedings as an electronic file, and the procedural interaction of the subjects of proceedings in an electronic law enforcement environment. The tasks of this article are as follows: analysis of issues that may arise when establishing such adversarial system in the criminal process of Ukraine; study of foreign experience of involving a defense lawyer in electronic criminal procedural processes; and development of proposals for improving the domestic practice of law enforcement.The Uniform Register of Pre-trial Investigations (URPI) has been defined as an electronic procedural document and an integral segment of criminal proceedings. The analysis of the electronic segment of the pre-trial investigation shows that the lawyer’s procedural status needs to be improved by his/her involvement in the URPI. Based on the analysis of the experience of electronic criminal proceedings in the province of Alberta (Canada), the Czech Republic, Sweden, and Kazakhstan, proposals have been drawn up to bring the defense to the URPI.As a result of the study, the author identified the legal and technical aspects of involving an attorney in electronic criminal proceedings, which suggested successive practical steps in creating personal virtual accounts, an algorithm for involving a defense lawyer in proceedings, and reforming the Uniform Register of Lawyers of Ukraine (URLU) as an electronic procedural legalization instrument.This article substantiates the author’s scientific concept of electronic criminal proceedings, as regards the use thereof in the adversarial system, which would involve the formation of criminal proceedings as an electronic file, and the procedural interaction of the subjects of proceedings in an electronic law enforcement environment. The tasks of this article are as follows: analysis of issues that may arise when establishing such adversarial system in the criminal process of Ukraine; study of foreign experience of involving a defense lawyer in electronic criminal procedural processes; and development of proposals for improving the domestic practice of law enforcement.The Uniform Register of Pre-trial Investigations (URPI) has been defined as an electronic procedural document and an integral segment of criminal proceedings. The analysis of the electronic segment of the pre-trial investigation shows that the lawyer’s procedural status needs to be improved by his/her involvement in the URPI. Based on the analysis of the experience of electronic criminal proceedings in the province of Alberta (Canada), the Czech Republic, Sweden, and Kazakhstan, proposals have been drawn up to bring the defense to the URPI.As a result of the study, the author identified the legal and technical aspects of involving an attorney in electronic criminal proceedings, which suggested successive practical steps in creating personal virtual accounts, an algorithm for involving a defense lawyer in proceedings, and reforming the Uniform Register of Lawyers of Ukraine (URLU) as an electronic procedural legalization instrument
Military Intervention in Syria and the “Unwilling or Unable” Test: Lawful or Unlawful?
Full text linkAs is known, military intervention by the U.S.-led coalition was commenced in September 2014 in Syria. The justification invoked by some participants of the coalition was that the Syrian government was “unwilling or unable” to deal with Islamic State of Iraq and the Levant (ISIL), an international terrorist group. The “unwilling or unable” test gives rise to various debates among international scholars and practitioners. Some international publicists argue that military intervention on the basis of the “unwilling or unable” test is an emerging rule of customary international law, while others are rather opposed to it. The U.S. announced its intention to withdraw its troops from Syria on 19 December 2018. This, however, does not mean an immediate cessation of operations of the U.S.-led coalition in Syria. It is expressed in the statement made on 6 February 2019 by Mike Pompeo, the U.S. Secretary of State, in which he articulated that the arms cut in Syria is not a shift in mission but a strategic turn in essence. What can be inferred is that it seems unlikely that the military intervention of the U.S.-led coalition in Syria will be terminated in the near future. In fact, it arouses deep concern of humanity that the military intervention in Syria justified by the “unwilling or unable” test might recur in other regions or states. In this respect, the present article argues the compatibility of military intervention based on the “unwilling or unable” test proposed by some states, including the U.S., and some international publicists under universal principles of customary international law formation and international conventions
Institutional and Legal Development of EAEU and EU in Comparative Perspective
Full text linkDespite the relatively short history of its development, the Eurasian Economic Union (EAEU) is becoming more confident about itself as a successful integration project. At the same time, there is a growing interest in the EAEU by the political elite and scientific community in Russia and abroad. The EAEU is investigated from different points of view, but almost no research is carried out without a comparative legal analysis of the EAEU and the European Union (EU). Both unions belong to the same type of integration organizations; the EAEU was largely created in the image of the EU. However, an analysis of the institutional and legal structure of the EAEU and the EU shows there are fundamental differences between the two unions concerning the principles of their functioning. This article substantiates the fact that supranational constitutionalization within the EU is not typical for the EAEU and is even harmful. At the same time, the technical tools developed by the EU can be useful to the EAEU for resolving current challenges of ensuring sustainability and self-affirmation in the international arena. This experience is of importance in view of the crisis experienced by the EU, since only they were able to manifest what institutional and legal decisions are working within the framework of an integration association, and which should be discarded. It is vital that the EAEU not repeat the mistakes and miscalculations of the EU.Despite the relatively short history of its development, the Eurasian Economic Union (EAEU) is becoming more confident about itself as a successful integration project. At the same time, there is a growing interest in the EAEU by the political elite and scientific community in Russia and abroad. The EAEU is investigated from different points of view, but almost no research is carried out without a comparative legal analysis of the EAEU and the European Union (EU). Both unions belong to the same type of integration organizations; the EAEU was largely created in the image of the EU. However, an analysis of the institutional and legal structure of the EAEU and the EU shows there are fundamental differences between the two unions concerning the principles of their functioning. This article substantiates the fact that supranational constitutionalization within the EU is not typical for the EAEU and is even harmful. At the same time, the technical tools developed by the EU can be useful to the EAEU for resolving current challenges of ensuring sustainability and self-affirmation in the international arena. This experience is of importance in view of the crisis experienced by the EU, since only they were able to manifest what institutional and legal decisions are working within the framework of an integration association, and which should be discarded. It is vital that the EAEU not repeat the mistakes and miscalculations of the EU
The Role of Legal Translation in the Interpretation of International Law Documents
Full text linkIn this paper, legal translation and its role in the interpretation of international law documents have been taken into consideration, both from a theoretical and a practical perspective. As far as theoretical aspects are concerned, legal translation in the light of civil law (Roman law) and common law systems, the status of legal translation in international law, the principles of plain language, and the equivalence of legal words are discussed. Accordingly, the interconnection between legal translation and interpretation of international law documents has been examined. As regards the practical perspective, the practice of the International Court of Justice, as well as applicable rules of the World Trade Organization and the European Union in respect of legal translation, has been discussed. The study carried out shows that due to the nature of international law and different foundations, goals, structures, sources and concepts of international legal order on the one hand, and divergent legal and cultural characteristics, as well as non-equivalent technical terms of various legal systems on the other, legal translators, who are inevitably influenced by their own national laws, are confronted with many profound difficulties.In this paper, legal translation and its role in the interpretation of international law documents have been taken into consideration, both from a theoretical and a practical perspective. As far as theoretical aspects are concerned, legal translation in the light of civil law (Roman law) and common law systems, the status of legal translation in international law, the principles of plain language, and the equivalence of legal words are discussed. Accordingly, the interconnection between legal translation and interpretation of international law documents has been examined. As regards the practical perspective, the practice of the International Court of Justice, as well as applicable rules of the World Trade Organization and the European Union in respect of legal translation, has been discussed. The study carried out shows that due to the nature of international law and different foundations, goals, structures, sources and concepts of international legal order on the one hand, and divergent legal and cultural characteristics, as well as non-equivalent technical terms of various legal systems on the other, legal translators, who are inevitably influenced by their own national laws, are confronted with many profound difficulties
Legal Systems of the Post-Soviet Non-Recognized States: Structural Problems
Full text linkThere are currently six non-recognized states (NRSs) in the post-Soviet space: the Pridnestrovian Moldovan Republic (PMR, 1990), the Republic of South Ossetia (RSO, 1990), the Nagorno-Karabakh Republic (NKR, 1991), the Republic of Abkhazia (RA, 1994), the Lugansk People’s Republic (LPR, 2014) and the Donetsk People’s Republic (DNR, 2014). All of them have been formed as a result of armed conflicts between a state vigorously pursuing the policy of national unification and a minority residing compactly. On the one hand, the legal systems of these states ensure that both the state and the civil society function effectively. In particular, each legal system forms a basis for the state’s political system, sets out human rights and their guarantees and provides necessary regulation of commercial activities. On the other hand, these legal systems reflect certain “statehood deficiency” and are subject to a number of serious problems, including being dependent on political agenda as well as on certain foreign legal systems, providing no personal jurisdiction or property guarantees and having significantly underdeveloped commercial law and judicial system. This “statehood deficiency” has two main causes: the community being not ready for state building (weak statehood traditions; lack of qualified personnel, economic resources and industrial base; high level of corruption, etc.) and the state being non-recognized (including the consequences of this status such as inability to participate in international cooperation, dependence on major geopolitical players, existence of an external threat, etc.).There are currently six non-recognized states (NRSs) in the post-Soviet space: the Pridnestrovian Moldovan Republic (PMR, 1990), the Republic of South Ossetia (RSO, 1990), the Nagorno-Karabakh Republic (NKR, 1991), the Republic of Abkhazia (RA, 1994), the Lugansk People’s Republic (LPR, 2014) and the Donetsk People’s Republic (DNR, 2014). All of them have been formed as a result of armed conflicts between a state vigorously pursuing the policy of national unification and a minority residing compactly. On the one hand, the legal systems of these states ensure that both the state and the civil society function effectively. In particular, each legal system forms a basis for the state’s political system, sets out human rights and their guarantees and provides necessary regulation of commercial activities. On the other hand, these legal systems reflect certain “statehood deficiency” and are subject to a number of serious problems, including being dependent on political agenda as well as on certain foreign legal systems, providing no personal jurisdiction or property guarantees and having significantly underdeveloped commercial law and judicial system. This “statehood deficiency” has two main causes: the community being not ready for state building (weak statehood traditions; lack of qualified personnel, economic resources and industrial base; high level of corruption, etc.) and the state being non-recognized (including the consequences of this status such as inability to participate in international cooperation, dependence on major geopolitical players, existence of an external threat, etc.)