Herald of the Euro-Asian Law Congress最新文献

{"title":"The evolution of european policies on investment arbitration","authors":"A. Kotelnikov, K. Voropaev","doi":"10.34076/2619-0672-2019-1-68-83","DOIUrl":"https://doi.org/10.34076/2619-0672-2019-1-68-83","url":null,"abstract":"Over the last two decades, the European Commission radically altered its attitude towards investment arbitration and became its fierce opponent. This article considers the history of this change, attempts to fathom the pragmatic thinking of the European policy-makers, and considers its wisdom. The article analyses legal instruments that allowed the EU to implement the reform, examines their compliance with the Washington Convention 1965 and the Energy Charter Treaty and considers their practical effects on investment in Europe. It makes use of the historical and comparative legal methodology and occasionally relies on statistical data. The reasons behind the EU policies might have included the global backlash against the current system, the dissatisfaction with the Member States being targeted as respondents, the aspirations to move the Union towards a more centralised federation, and possibly the populist motives. Having started with the intra-EU BITs, the EU authorities are now leading the way of the global reform of ISDS with the idea of permanent tribunals bearing a strong resemblance to the state judiciary. Many remain sceptical, and the initial economic effects were unfavourable. A surprising aspect was the role the CJEU had to play. It delivered a decisive blow to the existing system in alignment with the Commission's policies, but without openly admitting the motives behind its decisions, and relying instead on the principle of autonomy of the EU law.","PeriodicalId":215513,"journal":{"name":"Herald of the Euro-Asian Law Congress","volume":"296 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115135112","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"MODERN WORLD ORDER CHARACTERISTICS","authors":"V. Perevalov, V. Sherpaev","doi":"10.34076/2619-0672-2018-2-6-20","DOIUrl":"https://doi.org/10.34076/2619-0672-2018-2-6-20","url":null,"abstract":"Introduction: in the modern world, the models of civilizational development are changing. The authors analyze the transition from a bipolar model of international relations to a unipolar world, the prospects for the emergence of multipolarity, the growth of power centers, the state of the world legal order and its new content, Russia’s position in the world and probable threats, challenges, development of the regulatory framework and the factors determining Russia’s domestic and foreign policy, defense capability of our country and the CSTO countries.\u0000\u0000In the coming century, the study of the world order is especially important for ensuring national security. The authors draw attention to the key area of interaction between the EU and NATO, highlighting military mobility (the ability to quickly move forces across Europe, if necessary). It is a matter of concern that over the past four years, NATO has invested 2 billion euros in projects that support military mobility. The signing of the declaration of the EU and NATO on further cooperation is a reaction to the changed international situation and to the desire clearly expressed by European leaders to take care of their own defense. In these circumstances, national security becomes an indispensable condition and protector of our country’s development, creating conditions for a dignified and peaceful life for Russian citizens.\u0000\u0000Methods: in order to improve legal regulation in the area of the world order, the authors identify the approaches aimed to achieving its effectiveness. This applies to the conceptual and categorical instrument, the need to introduce the special subjects on national security in the educational process. Methodological tools of the research are the complex use of activity, system, socio-cultural, civilizational and other approaches involving the ideas and provisions of the theory of state and law, political science and other areas of science.\u0000\u0000Analysis: the main research aim for the analysis of the global legal order problems is the search for socio-cultural and value-based grounds for the security of the Russian Federation.\u0000\u0000Results: during the implementation of the security proposals, there appear some difficulties posed by the new types of war (hybrid, soft, diplomatic, trade), international terrorism. Prevention of wars can be based on an effective world order. There arises the need in its deep philosophical and political legal study, with the participation of scientists and practitioners – representatives of the humane, natural, scientific, technical, military and other branches of knowledge.","PeriodicalId":215513,"journal":{"name":"Herald of the Euro-Asian Law Congress","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129994448","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"DIGITAL TECHNOLOGY AND CIVIL PROCEDURE: PROBLEMS OF INTERINFLUENCE","authors":"K. Branovitskii, I. Renz, A. Neznamov, A. Neznamov, V. Yarkov","doi":"10.34076/2619-0672-2018-2-56-68","DOIUrl":"https://doi.org/10.34076/2619-0672-2018-2-56-68","url":null,"abstract":"Introduction: the comprehensive impact of digital technologies on the modern civil process is obvious. Today, digital technologies have become a reality not only of judicial process, but also of enforcement proceedings, as well as notaries and arbitration. At the same time, the massive introduction of digital technologies has posed a number of conceptual issues: for example, the permissible limits of the impact of such technologies on the very essence of civil law enforcement. In spite of the fact that there are a number of rather fundamental studies in Russian and foreign science, this problem is not sufficiently covered in science and has not yet found a solution.\u0000\u0000Methods: the method of materialistic dialectics; the system method; the method of comparative law.\u0000\u0000Analysis: due to analysis of the achieved level of practical development and doctrinal understanding of digital technologies in the Russian and foreign civil process, an attempt is made to conduct a theoretical and practical study of the problem of interinfluence of digital technologies and the civil process.\u0000\u0000Results: a) the dominant approach to the understanding of digital technologies at the doctrinal and regulatory level is the «instrumental approach», in which such technologies are perceived primarily as new ways of conducting law enforcement activities, conceptually not changing the very foundations of such activities, b) as a way (form) of implementation of law enforcement activities, digital technologies can not affect the content of this activity; the massive or radical introduction of such technologies could influence not only certain institutions of civil procedural law, but also its principles, topology, the very essence of law enforcement in civil cases.","PeriodicalId":215513,"journal":{"name":"Herald of the Euro-Asian Law Congress","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132439793","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"FAIRNESS AS A PRIVATE LAW PRINCIPLE AND ITS EFFECTIVENESS CRITERION","authors":"B. Gongalo, N. Novikova","doi":"10.34076/2619-0672-2018-2-79-90","DOIUrl":"https://doi.org/10.34076/2619-0672-2018-2-79-90","url":null,"abstract":"Introduction: the history of legal regulation is connected with the problem of fairness of legal norms (this question was raised in the politico-legal concepts of antiquity, the Middle Ages, New Era and contemporary times). Nowadays, in the context of legislative reforms and search for a balance between private and public interests, the question of fairness has not lost its significance. Not only legal theorists face this question, but legislator comes across it when determining the direction of the legislative deve-\u0000lopment. The same question arises when law enforcer has to solve certain legal dispute. The main goal of this research is to determine the value of fairness in the private-law regulation of social relations.\u0000\u0000Methods: the systematic analysis of the «fairness» category in the aspect of its impact on the modern state of private-law regulation acts as a determining method of the research. This particular method was chosen because it allows revealing the integrity and complex nature of the category under study. Apart from the systematic analysis, during the research general scientific dialectical method of cognition and special methods of investigation (formally legal, comparative law research, method of legal modeling) were also used.\u0000\u0000Analysis: in the framework of study the main tendencies of private law development in the modern economic and political conditions from the perspective of general legal and private-law approaches have been investigated, inter alia the issue of searching the balance in private and public, personal and common interests in various scopes of private law application.\u0000\u0000Results: the authors come to the conclusion that the category of fairness is multidimensional. On the one hand, it can serve as a private law principle that stems from the extensive principle of law fairness, and, on the other hand, being the reflection of social compromise, should serve as a criterion of the effectiveness of the private-law regulations on the national and international level.","PeriodicalId":215513,"journal":{"name":"Herald of the Euro-Asian Law Congress","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115049016","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"MODERN CHALLENGES TO LABOR RELATIONS: DISCUSSION ON THE GLOBAL REGULATION OF THE LABOR MARKET","authors":"M. Ricceri, Irina V. Shesteryakova","doi":"10.34076/2619-0672-2018-2-69-78","DOIUrl":"https://doi.org/10.34076/2619-0672-2018-2-69-78","url":null,"abstract":"Introduction: the authors study the possibility of the global regulation of the labor market. To highlight the topic the article presents the opinions of two experts.\u0000\u0000Methods: comparison, description, classification. The subjects of the study are international treaties ratified within the framework of international organizations and pools, statistical data.\u0000\u0000Analysis: economic, social, political and other changes constantly occur in the modern world.\u0000It influences the emergence of new forms of competitive ability, pursuit to new opportunities of profit, restructuring of industry, production units, mobility of the workforce, migration flows and formation of new communities, social and cultural relations. In such conditions it is important to observe labor and other social rights of employees, guarantees of labor unions activity. The article faces the questions of how and in what ways it is possible to develop uniform norms and concepts capable of promoting more fruitful specific state cooperation in the common interests of managing the labor market.\u0000\u0000Results: professor M. Ricceri pays attention to the fact that global competition «stresses» the growing importance of institutional factors to regulate the labor market, namely the applicable laws and rules regulating the conduct of more important participants of the development process: government, system of business, employees and labor unions. Their experience shows that improving of economy and social welfare and also promotion of sustainable growth ultimately depends on the capability to adapt institutes, norms and conduct globally. These are the problems which should be solved by integration and management decision. Professor I. V. Shesteryakova points out that nowadays labor legal integration of states is a process of mutual adaptation of labor legislation of the states through rapprochement, harmonization and unification based on international legal rules. Thus it is possible to work out uniform notions and approaches to manage the global labor law in the framework of labor legal geo-integration.","PeriodicalId":215513,"journal":{"name":"Herald of the Euro-Asian Law Congress","volume":"102 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124659359","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"CIVIL REGULATION OF THE HOUSING RELATIONS AND THE PRINCIPLE OF SOCIAL EQUITY","authors":"Mikhail V. Bando","doi":"10.34076/2619-0672-2018-2-91-104","DOIUrl":"https://doi.org/10.34076/2619-0672-2018-2-91-104","url":null,"abstract":"Introduction: the article is devoted to the problem of realization of the principle of social equity in the rules regulating housing relations. This problem is very relevant for the modern Russian society in which the housing problem is not solved. Though legal mechanisms in these relations also depend from economic but high-quality legal regulation also plays a serious role. The research objective is to check the hypothesis of existence of the principle of social equity in the Russian law, its involvement in regulation of the housing relations and insufficient realization on the example of some institutes.\u0000\u0000Methods: the research is based on a dialectic method, such logical methods as analysis, synthesis, deduction and also a system method.\u0000\u0000Analysis: there is a reasoning about existence of the principle of legal certainty in legal regulation and also the principles which are caused by essential qualities of the adjustable relations in the research. One of such principles is the principle of social equity. Its manifestation in regulation of the housing relations is analyzed. It is established that though this principle isn’t enshrined directly in the text of the law but it is implemented in court practice. In the housing law this principle is closely connected with category «the right to adequate housing». The need for the housing as a condition of physical existence of a person and the need for the housing of the quality providing the social dignity of a person are analyzed. The institute of rent of social housing along with the property can serve as the appropriate instrument of providing people with adequate housing, but isn’t deprived of essential shortcomings.\u0000\u0000Results: specific civil regulation of the housing relations does not fully consider the principle of social equity. Shortcomings of the institute of rent of social housing are revealed and also options of mitigation of these shortcomings (use of mechanisms of the tort liability and a so-called judicial penalty) are offered.","PeriodicalId":215513,"journal":{"name":"Herald of the Euro-Asian Law Congress","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133857286","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"NATIONAL REGIME IN IMPLEMENTATION OF PUBLIC PROCUREMENT AS A FACTOR FOR ENSURING NATIONAL INTERESTS","authors":"V. Kvanina","doi":"10.34076/2619-0672-2018-2-48-55","DOIUrl":"https://doi.org/10.34076/2619-0672-2018-2-48-55","url":null,"abstract":"Introduction: under the conditions of economic sanctions imposed by foreign countries against Russia, the issue of import substitution was sharply raised. Its mechanisms are stipulated, among other things, in the Article 14 of the Federal Law «On the contract system in the procurement of goods, works, services for the provision of state and municipal needs» (hereinafter – Federal Law\u0000No. 44): prohibitions, restrictions and conditions for admission of foreign goods, works, services on the territory of the Russian Federation. These mechanisms find reflection and development in the decisions of the Government of the Russian Federation, which create difficulties in their application by business entities. The article makes an attempt to analyze the legal framework on this issue, to identify problems and suggest ways to solve them.\u0000\u0000Methods: the general scientific methods of research (formal and dialectical logic, systemic) and private-science methods (comparative legal, formal-legal) were used in the article. This allowed to determine, on the basis of analysis of international legal acts, Russian legislation and law-enforcement practice, the limits of restrictions, prohibitions and conditions for admission of foreign goods, works, services to the Russian market.\u0000\u0000Analysis: the article analyzes the institution of national public procurement regimes enshrined in international legal acts, regulatory legal acts of the Russian Federation, including resolutions of the Government of the Russian Federation in which prohibitions, restrictions and conditions for admission of foreign goods, works, services in the territory of the Russian Federation are established; the problems that are caused by the unsystematic nature of Russian legislation are revealed.\u0000\u0000Results: the analysis of the legal framework on the national regime of public procurement made it possible to come to a conclusion about its imperfection and the need for carrying out its comprehensive expertise that would identify all the problematic aspects in this area and suggest ways of eliminating them. Moreover, it is necessary to develop a single set of issues that should be reflected in all decisions of the Government of the Russian Federation on prohibitions, restrictions, conditions for admission of foreign goods, works and services within the framework of the national public procurement regime.","PeriodicalId":215513,"journal":{"name":"Herald of the Euro-Asian Law Congress","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129301481","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"CURRENT TRENDS IN CASE LAW ON CROSS-BORDER TAX DISPUTES IN CHINA","authors":"Na Li","doi":"10.34076/2619-0672-2018-2-37-47","DOIUrl":"https://doi.org/10.34076/2619-0672-2018-2-37-47","url":null,"abstract":"Introduction: tax disputes in China cover a wide range of relationships and transactions. The number of court decisions is limited, but they allow us to determine a number of trends related to the resolution of tax disputes. In particular, Chinese courts do not take into account the opinion of the Organization for Economic Cooperation and Development (OECD) in resolving such cases. This might be rooted with China’s position to protect the interests of the state as a reflection of it being one of the largest foreign investment recipients in the world.\u0000\u0000Methods: analysis, comparison, description, interpretation. The subject of the study were the rules of law and decisions of Chinese courts on the resolution of tax disputes, as well as statistical data.\u0000\u0000Analysis: disputes may most possibly arise from those anti-tax avoidance investigations carried out by Chinese tax authorities. The aggressive approaches that Chinese tax authorities used in interpreting and applying tax treaties might trigger more cross-border tax disputes. And this risk will be exacerbated when tax authorities are pressed to meet the revenue target assigned to them.\u0000\u0000Results: while aggressive anti-avoidance measures are becoming effective tools for collecting incomes, the number of disputes is growing. As a consequence, the role of the judiciary in the mechanism of legal protection of participants in tax disputes will also increase. It seems that the number of appeals to the courts for the resolution of such cases will increase too.","PeriodicalId":215513,"journal":{"name":"Herald of the Euro-Asian Law Congress","volume":"81 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122587174","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"MEANS OF DIFFERENTIATION OF RESPONSIBILITY FOR IMPLEMENTATION OF FINANCIAL CRIMES","authors":"V. Lapshin","doi":"10.34076/2619-0672-2018-2-113-123","DOIUrl":"https://doi.org/10.34076/2619-0672-2018-2-113-123","url":null,"abstract":"Introduction: modern criminal legislation in terms of ensuring the criminal-legal protection of financial relations needs substantial processing. This is due to the unsatisfactory quality of the differentiation of criminal responsibility carried out for committing socially dangerous encroachments on financial relations. This circumstance is an artificial obstacle to the application of the criminal law with a view to preventing economic (financial) crime.\u0000\u0000Methods: dialectical, comparative legal, logical, system analysis and forecasting method.\u0000\u0000Analysis: the state of the differentiation of the responsibility, defined by the legislator for the commission of financial crimes, can be considered unsatisfactory for a number of reasons. Firstly, the established responsibility for certain financial crimes does not reflect the significant public danger that is inherently inherent in financial crimes. Secondly, criminalization of separate, previously unknown to the Russian criminal law, acts committed in the financial sector, has complicated enforcement activities of law enforcement and judicial authorities since the emergence undue competition with other norms of responsibility for crimes in the sphere of economic activity. Thirdly, the extension provided for by the criminal law of the possibility of release perpetrators financial and other economic crimes, negative impact on the prevention of economic crime.\u0000\u0000Results: the study made a number of proposals to waive inclusion in the domestic criminal law of duplicate rules on liability for financial crimes, to reduce the possibility of release from liability for committing financial crimes, as well as the technique of forming the rules of sanctions on the responsibility for committing both financial and economic crimes in general.","PeriodicalId":215513,"journal":{"name":"Herald of the Euro-Asian Law Congress","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127201730","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"THE POTENTIAL OF CATEGORIZATION OF CRIMES IN THE SPHERE OF ECONOMIC ACTIVITY","authors":"I. Kozachenko, D. Sergeev","doi":"10.34076/2619-0672-2018-2-105-112","DOIUrl":"https://doi.org/10.34076/2619-0672-2018-2-105-112","url":null,"abstract":"Introduction: categorization of crimes is a means of making criminal law rules and differentiating criminal liability. The article considers the current approaches to categorization of crimes stated by Chapter 22 of the Criminal Code of the Russian Federation; most constituent elements of crimes are non-grave crimes.\u0000\u0000Methods: the authors analyze the fact that the gravity of a crime does not always correlate with the level of public danger of a crime. In this connection, the authors suggest changing the boundaries between crimes, and also between crimes and administrative offenses. The article considers a possibility of introducing criminal infractions in the sphere of liability for crimes against economic activity.\u0000\u0000Analysis: the authors underline that the Russian criminal policy in the sphere of economic activity should be based on the inter-branch model of combating crimes. Such a model includes regulatory legislation, administrative and criminal liability; but the share of criminal-law regulation should be minimized, and criminal liability should be applied in case of really dangerous acts. The authors think that the measure of real danger in the economic sphere is the size of real damage caused, which should be calculated including a possible useful economic effect occurring as a result of this or that act.\u0000\u0000Results: the authors suggest excluding a possibility of building constituent elements of crimes bordering administrative offenses solely on the quantity elements of an act and classify such acts only in the category of administrative offenses or only in the category of crimes. The authors suggest viewing crimes of little gravity in the sphere of economic activity only as criminal infractions leading to no conviction.","PeriodicalId":215513,"journal":{"name":"Herald of the Euro-Asian Law Congress","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126446331","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}