Contents # 4/2018

LEGAL MONITORING AS A TOOL FOR MODERNIZATION OF NATIONAL LEGAL SYSTEM OF THE REPUBLIC OF KAZAKHSTAN  Pdf 16

Zh. U. TLEMBAYEVA, D. M. TURLYBEK

Zh. U. TLEMBAYEVA, deputy director of the Institute of Legislation of the Republic of Kazakhstan, candidate of legal sciences, associate professor
8, Mangilik El ave., Astana, Kazakhstan, 010000
E-mail: zhanna.ot@mail.ru

D. M. TURLYBEK, senior research fellow of the Center for legal monitoring of the Institute of Legislation of the Republic of Kazakhstan, master of legal sciences
8, Mangilik El ave., Astana, Kazakhstan, 010000
E-mail: dana170688@mail.ru

The article is devoted to some theoretical and practical aspects of conducting legal monitoring in the Republic of Kazakhstan and its role in modernization of the national legal system. The article reveals the political and legal bases of legal monitoring in Kazakhstan, the dynamics of its institutionalization in the context of political and socio-economic development, individual elements and stages of monitoring. Legal monitoring is considered as a special mechanism for increasing the efficiency of legal regulation of social relations, which is endowed with specific functions not only to assess the state of legislation of the Republic of Kazakhstan and its implementation practice, but also to predict the dynamics of legal phenomena. This will allow to take timely measures to prevent the negative impact of legal norms on public relations. The authors also emphasize the particular importance of the results of legal monitoring, expressed both in the development of recommendations for improving legislation and its individual branches, which determines the quality and effectiveness of rulemaking activity, and in carrying out appropriate explanatory work on which the state of law enforcement practice in Kazakhstan depends. The authors draw attention to the need to establish the right balance in determining the objects of legal monitoring, as well as its subjects and other participants. The article concludes that it is advisable to further improve the mechanism of legal monitoring in the Republic of Kazakhstan, to continue work to strengthen its methodological foundations and to ensure the conceptual and systematic approach to its implementation.

Keywords: legal monitoring, legal system, rule-making, law enforcement, effectiveness evaluation, forecasting, legislation analysis, state bodies, non-governmental organizations, objects and subjects of legal monitoring, scientific and methodical support.

DOI: 10.12737/art.2018.4.1

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THE LEGAL BASIS FOR THE ORGANIZATION OF GERMAN TRADE CORPORATIONS AND THEIR REFLECTION IN THE CORPUS OF INTERNATIONAL ACTS OF NOVGOROD AND HANSE (XII—XV CENTURIES)  Pdf 16

N. I. NAZARENKO

associate professor at the Department of state and legal disciplines of the Moscow Financial University, associate professor at the Department of legal regulation of economic activity of the Financial University under the Government of the Russian Federation, candidate of legal sciences
17, Serpukhovskoy Val, Moscow, Russia, 115191
E-mail: n-nazarenko@yandex.ru

The article discusses the main trends in the formation and development of the legal foundations of the organization of various types of corporate associations of medieval Germany: city merchant guilds, Hanse, the German commercial yard in Novgorod. Due to the lack of special works on the problems of corporate relations of foreign merchants in Novgorod, the author refers to the practice of using the norms of internal law of foreign corporations and notes their reflection in the corpus of international and private acts of Novgorod, diplomacy and documentation of the Hanseatic League. As a result of the study the author distinguishes the Novgorod schra from the statutes of other trading yards, determines the conditions of the corporate organization, which allowed the German commercial yard to integrate into the economic life of Novgorod and become a model for other trading posts of the Hanse. The purpose of this study is to analyze the corpus of international acts of Novgorod and Hanse, allowing to reveal the nature of corporate relations, to identify the most important legal formulas related to the registration of contracts, management and court. To achieve the goals and objectives of the study comparative legal, historical and systemic, systemic and structural methods were applied and also general scientific methods pf deduction and induction. The article concludes that the structure of corporations, and subsequently their association determined the nature of the organization of the Hansa, its governing bodies and representative offices. Through international treaties and statutes, German merchants were able to provide legal protection for their activities, consolidate rights and privileges.

Keywords: Hanse, Novgorod the Great, trade corporations and guilds of Germany, Novgorod schra, legal integration.

DOI: 10.12737/art.2018.4.2

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MECHANISMS OF ENSURING STABILITY OF THE CONSTITUTION IN POST-SOVIET STATES  Pdf 16

D. G. SHUSTROV

associate professor at the Department of constitutional and municipal law of the Lomonosov Moscow State University, candidatе of legal sciences
1, Leninskie gory, Moscow, Russia, 119991
E-mail: dg-shustrov@mail.ru

Constitution has a quality of stability, for enforcement of which special mechanisms are established. In Post-Soviet states constitutional stability was initially assigned a special role in ensuring the transition of these countries from non-democracy to democracy. Complicated procedure for constitutional changing was supposed to become one of the constitutional guarantees, protecting constitutional orders of Post-Soviet states from unconstitutional changing through constitutional procedure. A number of Post-Soviet constitutions contains special mechanisms that were conceived as a barrier in the process of constitutional changing. This article is devoted to a comparative legal study of complicated procedure of constitutional changing (multi-level model of constitutional changing; limited right of constitutional initiative; double vote; qualified majority for voting; constituent assembly; constitutional referendum etc.) and time periods when constitutional changing is impossible (prohibition of constitutional changing in military or emergency situations; temporal prohibition (moratorium) of constitutional changes; temporal restraint of re-changing the constitution etc.) in Post-Soviet states. For a quarter of a century constitutions of Post-Soviet states have undergone many changes, and practice has partly corrected norms and theory. In some Post-Soviet states constitutional “fears” of undemocracy and concentration of power, which initially were the basis for adoption of constitutions, despite the establishment of mechanisms for ensuring constitutional stability, actually have been replaced by their opposite - unconstitutional “fears” of political elites to lose their power or to give up some private interests to achieve common goals and form a truly democratic political society.

Keywords: constitutional change, formal limits of constitutional change, stability of constitution, stability and dynamism, rigid and flexible, complicated procedure of constitutional change, Post-Soviet states.

DOI: 10.12737/art.2018.4.3

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THE CUSTOMS OF THE INDIGENOUS PEOPLES IN JUDICIAL DECISIONS IN CANADA AND THE RUSSIAN FEDERATION (A COMPARATIVE LEGAL RESEARCH)  Pdf 16

T. A. ZAKHAROVA

postgraduate student at the Institute of Legislation and Comparative Law under the Government of the Russian Federation, senior referent of the State and legal department of the Office of the State Assembly (Il Tumen) of the Sakha Republic (Yakutia)
24/1, Yaroslavskogo st., Yakutsk, Russia, 677022
E-mail: bisness_07@mail.ru

One of the fundamental and independent phenomena of living arrangement of indigenous peoples are customs. Customs of indigenous peoples act, are observed and designated as rules of their life. Meanwhile today performance of specific actions by indigenous peoples according to customs almost always contradicts to the law of the state in the territory of which these peoples live. This article is devoted to questions of the interaction of customs of indigenous peoples with the positive law. For the analysis and comparison two judgments which are given in Canada and the Russian Federation - the countries which have not ratified the ILO Convention No. 169 - were chosen. As a result of the analysis of judgments which is carried out within this article, the author has revealed features of judgment by courts of cases in which one of the parties are persons from among indigenous people. Interest in these problematic lawsuits is connected with the fact that persons from among indigenous people in justification of the actions which legitimacy is challenged directly connect with customs. The purpose of this article consists in the analysis of actions and justifications of the indigenous peoples connected with customs and also positions of courts of Canada and the Russian Federation. By such analysis the author compared the place of customs of indigenous peoples in the system of the legislation of the mentioned countries. The analysis and comparison allowed the author to draw a conclusion that customs of indigenous peoples can be studied and judged by courts, and cannot be taken into account, so, can’t be understood and estimated - depending on law enforcement activity of public authorities and courts of the states in which territories these peoples live.

Keywords: rights of indigenous people, customs of indigenous people, custom as a source of law, lawsuits with participation of indigenous peoples.

DOI: 10.12737/art.2018.4.4

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SPEECH BY DEPUTY EXECUTIVE DIRECTOR OF THE FOUNDATION OF THE FIRST PRESIDENT OF THE REPUBLIC OF KAZAKHSTAN — ELBASY, FORMER CHAIRMAN OF THE CONSTITUTIONAL COUNCIL OF KAZAKHSTAN, MEMBER OF THE VENICE COMMISSION IGOR ROGOV AT THE PLENARY SESSION OF THE VENICE COMMISSION OF THE COUNCIL OF EUROPE (22—23 JUNE 2018)  Pdf 16

SPEECH BY MEMBER OF THE CONSTITUTIONAL COUNCIL OF FRANCE AND MEMBER OF THE VENICE COMMISSION CLAIRE BAZY-MALAURIE AT THE PLENARY SESSION OF THE VENICE COMMISSION OF THE COUNCIL OF EUROPE (22—23 JUNE 2018)  Pdf 16

EXECUTION OF JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS AND THE INTER-AMERICAN COURT OF HUMAN RIGHTS: COMPARATIVE ANALYSIS  Pdf 16

A. M. NIKOLAEV, M. K. DAVTYAN

A. M. NIKOLAEV, professor at the Department of international law of the Peoples’ Friendship University of Russia, doctor of legal sciences
6, Miklukho-Maklaya st., Moscow, Russia, 117198
E-mail: nikolaev_am@pfur.ru

M. K. DAVTYAN, chief expert of the International Relations Section of the Office of the High Commissioner for Human Rights in the Russian Federation
47, Myasnitskaya st., Moscow, Russia, 101000
E-mail: davtyanm86@gmail.com

The paper explores the execution of judgments of the European Court of Human Rights and the Inter-American Court of Human Rights. Having carried out a brief historical analyses and reviewed the normative legal acts governing the execution of decisions of the above-mentioned courts, the authors argue that through the monitoring mechanism of the execution of the courts’ decisions is very different, both regional judicial institutions have problems related to the execution of their decisions. The purpose of the study is to determine the problems of non-enforcement of decisions of the European Court of Human Rights and the Inter-American Court of Human Rights and to find ways to resolve them. The methodological basis of this study was the provisions of a general scientific dialectical method and a logical method aimed at presenting the material of the article, formulating recommendations and proposals. The method of comparative analysis was also widely used, which makes it possible to identify the general and the difference of both judicial institutions with respect to the monitoring the execution of judgments, and the method of system analysis by which the normative legal acts and the courts’ decisions were examined. The European Court of Human Rights, which often applies the method of financial compensation, showed a high level of execution of judgments in contrast to the Inter-American Court of Human Rights, which requires states not only to compensate for money, but to make legislative changes, to bring perpetrators to justice, etc. The authors conclude that only dialogue between courts and states and the use of various conciliation mechanisms could positively influence the effectiveness of the execution of judgments. A dialogue should consist in the correct interpretation by courts of the provisions of international human rights treaties and an accessible explanation for states of the content of court decisions.

Keywords: European Court of Human Rights, Inter-American Court of Human Rights, execution of judgments, international courts.

DOI: 10.12737/art.2018.4.5

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HARMONIZATION OF NATIONAL AND INTERNATIONAL LAW IN CONJUNCTION WITH ISSUES OF ENFORCEMENT OF JUDGMENTS OF EUROPEAN COURT OF HUMAN RIGHTS (THEORETICAL VIEW)  Pdf 16

S. A. GRACHEVA

senior research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: sinobi_unit@mail.ru

The article mainly focuses on the analysis of the ideas about harmonization of national and international law Tire its content, models, the most typical and actual issues, taking into account two levels of analysis of this theme (national and international). The greatest attention is paid to the issues of the discretion of the national authorities in applying the “hierarchical” model of compatibility of international and national law at the stage of application of the provisions of international law and first of all provisions of Convention for the Protection of Human Rights and Fundamental Freedoms. The author made a conclusion that obligations under the Convention, “reviving” the subject of harmonization for the domestic law, require more modern formulation of the issues related to it, which have found development in the foreign legal doctrine. A special attention is paid to the interpretation of national law in conjunction with the Convention’s law in judicial activity and to legal boundaries (limits) of influence of Convention taking into account the so-called constitutional factor of the enforcement of the judgments of the European Court of Human Rights. The author emphasizes that in situation of collisionsbetween conventional and constitutional law provisions we may pay attention atinapplicability in such cases of the traditional (hierarchical) model in the framework of harmonization and, as a result, at the possibility of broader discretion of the national constitutional actor in assessing the compatibility of national law and law of Convention, up to the possibility of forming “hybrid meanings” in law or ensuring the priority of the national Constitution.

Keywords: harmonization of national and international law, interaction of legal regulators, interpretation compatible with the Convention, direct application of international acts by the court, European Court of Human Rights.

DOI: 10.12737/art.2018.4.6

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TRANSFER OF PERSONS TO THE INTERNATIONAL CRIMINAL COURT: PROBLEMS AND PERSPECTIVES OF POST-SOVIET COUNTRIES  Pdf 16

P. S. ABDULLOEV

deputy dean, associate professor at the Department of justice and prosecutor’s supervision of the Law faculty of the Tajik National University, candidate of legal sciences
11, Buni Khisorak st., Dushanbe, Tajikistan, 734025
E-mail: 1986_parviz.a@mail.ru

The article deals with topical issues related to the transfer of persons to the International Criminal Court (ICC), the norms of international legal acts and the national legislation of the post-Soviet countries are analyzed. There is a lack of uniformity in relations between post-Soviet countries and the ICC, since only some of the post-Soviet countries are member states of the ICC. During the opening, investigation and decision-making in criminal cases, the territory of the state (space) is of great importance. However, the ICC, unlike the state, does not have a certain territory, therefore all actions of the Court in criminal cases depend on cooperation with states and international organizations (for example, with the UN, INTERPOL, etc.). Post-Soviet countries cooperating with the ICC can be divided into two groups: the states that are members of the ICC and states that are not members of the ICC (which have not ratified the Rome Statute of the ICC). The transfer of persons to the ICC is not only a requirement of the Rome Statute, but also of provisions of international human rights treaties and standards. The importance of the transfer of persons to the ICC, which were relevant in the early days of the drafting of the Rome Statute, and also after the ratification by States of the Statute in the modern law enforcement practice of the ICC, is underlined. The transfer of persons to the ICC is one of the topical issues of international cooperation in the criminal process and is directly related to the constitutional foundations of states. The transfer of persons to the ICC ensures a fair trial in criminal cases. The lack of ratification of the Rome Statute and the refusal of some post-Soviet countries to become a party to the ICC can not in most cases be grounds for refusing to transfer persons to the ICC. The idea is proposed to develop and improve the national criminal legislation, as well as to improve the effectiveness of actions aimed at addressing this issue.

Keywords: international cooperation, transfer of persons, International Criminal Court, post-Soviet countries, state party, international treaties, criminal procedure legislation, foreign state, criminal case.

DOI: 10.12737/art.2018.4.7

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INTERNATIONAL LEGAL PROBLEMS OF COOPERATION IN THE FIELD OF COMBATING TRAFFICKING IN PERSONS  Pdf 16

O. I. SAKAEVA

research fellow of the Department of foreign constitutional, administrative, criminal legislation and international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: mp5@izak.ru

Strongly needed international cooperation in the field of combating human trafficking is carried out on the basis of a significant number of multilateral (universal and regional) and bilateral international treaties. Its institutional forms are also numerous and diverse. The purpose of this study is to identify problematic issues of international cooperation in the field of combating trafficking in human beings and to formulate proposals for improving the effectiveness of this cooperation. The methodological basis of the research consists of a set of scientific knowledge methods: universal dialectical method, basic (analysis and synthesis, induction and deduction, systematic approach) and special legal (formal-legal and normative-legal) methods. Particular attention is paid to the comparative analysis of the main universal international treaty’s cooperation potential in the field of combating human trafficking (2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime), and the most systematic regional international treaty in this field (2005 Council of Europe Convention on Action against Trafficking in Human Beings). The article substantiates the need to clarify and harmonize conceptual approaches to the definition of legally significant categories in the field of combating slavery and trafficking in persons, since the harmonization of the crimes qualifications is of critical importance for the international cooperation purposes. The author considers that successful counteraction to trafficking in persons without taking into account regional specifics is impossible; however, in order to avoid duplication of regional bodies’ and organizations’ activities and to enhance the effectiveness of all actors, their practical interaction should be carried out with the UN coordinating role. The continuing need to develop and adopt new measures aimed at improving efficiency of international cooperation in combating trafficking in human beings is emphasized, in particular, it concerns the development of a system of measures aimed at the combating of the use of information technologies for trafficking purposes.

Keywords: trafficking in persons, international cooperation, United Nations Office on Drugs and Crime, GRETA.

DOI: 10.12737/art.2018.4.8

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MANAGEMENT AND CONTROL IN A JOINT-STOCK COMPANY: IMPERATIVE AND DISPOSITIVE APPROACHES  Pdf 16

O. A. TERNOVAYA

leading research fellow of the Department of civil legislation of foreign states of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: ternovaya16@yandex.ru

The article is devoted to the identification of the main approaches to manage and control applied in the practice of Russian and foreign joint-stock companies. The article shows the importance of the correct choice of management structure in funding a joint-stock company, which reduces the risk of conflicts between transactions, discloses the notion of corporate control as the ability of participants, including obtaining benefits from its activities. The example of the French experience shows the choice of a “necessary” management form, the appropriate scale and the main objectives of the enterprise, protects the interests of the founders and participants of the joint-stock company. In comparison with Russia, France implements a more flexible approach, allowing the choice of participants between the “rigid” organizational and legal form of the classical joint-stock company (SociétéAnonyme) and the form of a simplified joint-stock company (Société par Actions Simplifiée) with predominance of dispositive regulation. A contractual approach to the legislation of Russia is expressed in access to the contract between the participants of the joint-stock company, while in the legislative regulation of relations between participants in public joint stock companies, an imperative approach prevails. The article indicates the importance of corporate social responsibility as a “soft” form of control over the activities of the joint-stock company. It is noted that the application of the corporate social responsibility principles contributes to the development of business, prevents possible corporate conflicts, reduces cases which involve joint stock companies in administrative and criminal liability for corruption and environmental violations. Enterprises that apply the principles of corporate social responsibility in practice create the basis for improving their development strategy and gain additional competitive advantages.

Keywords: joint-stock company, simplified joint-stock company, corporate management, corporate control, corporate relations, shareholders of the joint-stock company, corporate agreement, shareholder agreement, dispositive regulation, corporate conflicts, reporting, transparency, French Trade Code, French law, contractual approach, approach, corporate social responsibility, business.

DOI: 10.12737/art.2018.4.9

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COMMON LAW PLEADINGS IN CIVIL PROCEDURE OF THE USA  Pdf 16

D. V. KNYAZEV

head of the Department of civil procedural law of the Western-Siberian branch of the Russian State University of Justice, candidate of legal sciences
2, Lenin sq., Tomsk, Russia, 634050
E-mail: kdv1979@inbox.ru

The article is devoted to the institution of adversarial papers exchange (pleading), which was formed in civil proceedings under the rules of common law and existed in the greater territory of the United States until the middle of the 19th Century. The main factor that influenced the institution concerned is the participation of the jury in the resolution of the case, which determined the main feature of the stage. Its purpose is the formulation of the dispute’s subject matter or a contentious issue. If the disputed issue was of a legal nature, it was resolved by the judge, if actual - referred to the jury. Hence there is a strict separation of the professional judge’s functions and the jury and the division of the whole process into two stages: pleading and trial. The nature of the procedure was determined by the appropriate form of recourse to the court, which ultimately constituted a deterrent in the development of judicial proceedings, led to its inadequacy in public relations and inability to live. The disadvantage of the stage of pleading was that it did not offer any means of verifying the actual basis for the allegations and negations of the parties. The pleading system was unable to differentiate between the truly controversial facts (circumstances) and the indisputable ones. The stage of pleading has always occupied a significant place in the American civil process (after the English one). In spite of the fact that pleading, according to the rules of common law, is not currently applied in the USA, rudiments of this institute are still being discovered. Therefore, the rapid degeneration of the role of the judge in the preparatory stage of US civil proceedings in the XX century is impossible to explain without considering the history of changes in the institution of pleading. In the US it has passed a long way, which began long before the formation of American law itself.

Keywords: civil procedure, civil procedure of the USA, pleadings, pretrial.

DOI: 10.12737/art.2018.4.10

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CORPORATE CONTRACT AS A NOVEL IN CROATIAN LEGISLATION  Pdf 16

V. P. SHRAM

senior research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of economic sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: shram@yandex.ru

The article based on the study of the Law “On commercial partnerships” and discusses the concept of a corporate agreement in the Croatian legislation, the classification of corporate contracts, methods of enforcing corporate contracts, rights and obligations of participants of economic societies who have concluded a corporate contract, as well as the procedure for the conclusion, modification and termination of corporate contracts. Attention is drawn to the variety of corporate contract types, which are concluded between joint-stock companies and limited liability companies. The Croatian law on business entity into the companies entered into a corporate contract on the dominant and dependent economic companies. At the same time, the article pays special attention to the rights and obligations of shareholders of dominant and dependent companies, as well as their Executive bodies, Supervisory boards and General meetings of shareholders. The article reveals the requirements of Croatian legislation imposed on business companies at the conclusion of a corporate contract. The article deals with all types of corporate contracts concluded between joint-stock companies and limited liability companies. To this corporate contracts the Law “On commercial partnerships” include the following types of contracts: a contract on the transfer of the profits of one business company (subsidiary) to another business entity (the ruling company) for the purposes of partial or complete association with profit of the companies; a contract on partial transfer of profit of one business entity; a contract on transfer of profit of one business entity to other business entity which obtains the right to conduct affairs of dependent business entity at its own expense and on its own behalf; a contract for the conduct of the business of one entity by another business entity without the transfer of all or part of the profit; a contract under which one party (landlord or lessor) undertakes to lease the enterprise and a part of the enterprise to another party (lessee or renter) in exchange for profit from the conduct of the affairs of the leased enterprise. Attention is drawn to the fact that the corporate contract must be approved by shareholders, which account for at least 3/4 of the authorized capital of each business entity. In addition, it is pointed out that an independent audit of the concluded corporate contract is necessary. The attention is focused on the rights and methods of protection of shareholders of the dependent economic company at the conclusion and termination of the corporate contract.

Keywords: corporate contract, dominant company, dependent company, requirements to participants of the corporate agreement, reserve funds, legislative guarantees to dependent companies, protection of creditors, responsibility of dominant companies, audit of corporate contracts.

DOI: 10.12737/art.2018.4.11

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INTERNATIONAL INVESTMENT COURT: TO BE OR NOT TO BE?  Pdf 16

D. V. KAYSIN, M. O. DEMINA

D. V. KAYSIN, advocate, counsel at the Law Offices “Egorov, Puginsky, Afanasiev & Partners”, candidate of legal sciences, LL.M of New York University School of Law
40/5, Bolshaya Ordynka st., Moscow, Russia, 119017
E-mail: Mow_office@epam.ru

M. O. DEMINA, associate at the Law Offices “Egorov, Puginsky, Afanasiev & Partners”, LL.M from The London School of Economics and Political Science
40/5, Bolshaya Ordynka st., Moscow, Russia, 119017
E-mail: Mow_office@epam.ru

In recent years, the criticism of the existing form of examining investment disputes with states has increased significantly. Its source is not only states that are dissatisfied with the results of consideration and awarded multi-million compensations, but also arbitrators who directly resolve such disputes within the framework of international arbitration. The article presents an analysis of proposals for reforming the system of international investment arbitration, primarily the creation of a supranational investment court, both within the framework of the UNCITRAL activities, and within the framework of the European Commission’s initiatives. The proposals are analyzed through the prism of the historical development of the entire system of investment arbitration, and also taking into account the current status of development. On the one hand, investment arbitration remains a popular form of dispute resolution among investors. As of December 31, 2017, only 650 claims have been filed with the International Center for the Settlement of Investment Disputes. On the other hand, criticism of the existing system of investment arbitration is also growing. A large number of comments concern the procedure for appointing members of the arbitral tribunal, when the investor and the state are given the right to appoint almost any arbitrator at their discretion. At the same time, the polarization of the arbitrators to those who support states more often and those who take an investor approach is obvious. The costs of investment arbitration, including arbitrators’ fees, raise questions. Many investment disputes are held in closed mode and the associated opacity of the procedure is alarming. Investment arbitration will be reformed in the near future. At the same time, the creation of supranational courts will continue in the framework of economic associations of states around the world.

Keywords: investment court, international arbitration, investment law, international law.

DOI: 10.12737/art.2018.4.12

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THE PRINCIPLES OF JUSTICE DELIVERY IN CIVIL CASES INVOLVING FOREIGNERS (PART I)  Pdf 16

A. I. SHCHUKIN

leading research fellow of the Department of private international law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: pil@izak.ru

In the conditions of development and improvement of democratic society and a rule-of-law state, the number of diverse connections between citizens and legal entities of different countries is growing. The participation of foreigners in civil law transactions, marriages with foreign nationals and similar relationships, complicated by the so-called “foreign element”, often become the subject of proceedings before national courts. Thus, according to statistical data posted on the website of the Judicial Department under the Supreme Court of the Russian Federation, in 2016 the arbitration courts of the constituent entities of the Russian Federation considered 7,159 cases involving foreign persons, and in 2017 the arbitration courts considered 10,304 such cases. Thus, there is a tendency of an increase in the number of litigations involving foreign persons in the courts of the Russian Federation. Judicial protection of foreigners is a necessary condition for the successful integration of the Russian economy into the modern world economic system. The level of functioning of the judicial system of the state affects the development of foreign trade relations, the degree of protection of the rights of foreigners and confidence in judicial protection, as well as other aspects that are important for the formation and strengthening of economic, scientific and cultural ties between citizens and legal entities of different countries. All this contributes to the increased importance of the judiciary in resolving disputes involving foreigners. This, in turn, requires an analysis of the justice delivery principles in civil cases involving foreigners. The author of the article considers such special principles as the national regime in the field of judicial protection of foreigners, the most-favored-nation treatment, international judicial cooperation and coordination, the immunity of foreign states and international intergovernmental organizations, the principle of lexfori. The article reveals the role and importance of these principles in ensuring the clear activity of courts in the consideration of cross-border disputes and, accordingly, effective protection of violated rights and interests of interested persons.

Keywords: international civil process, foreign citizens and organizations, civil legal proceedings, principles of law.

DOI: 10.12737/art.2018.4.13

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INTERIM MEASURES IN INTERNATIONAL COMMERCIAL ARBITRATION: CORRELATION OF APPROACHES OF INTERNATIONAL ARBITRATION INSTITUTIONS AND NATIONAL REGULATION  Pdf 16

D. I. KOBAKHIDZE

postgraduate student at the Doctoral school of law of the National Research University “Higher School of Economics”
20, Myasnitskaya st., Moscow, Russia, 101000
E-mail: david025@mail.ru

The article dwells on a number of problematic issues related to the interim measures in international commercial arbitration, in particular the correlation of the powers of state courts and arbitration tribunals to implement the interim measures and the possibility of enforcing the interim measures adopted by arbitration tribunal. In this regard, the author analyzes the legislative approaches existing in certain countries and proposes two classifications of such approaches. For example, the correlation of the powers of state courts and arbitration tribunals to implement the interim measures can be represented by one of the following models: 1) court-subsidiarity model; 2) free-choice model; and 3) exclusive competence of state courts. Another classification assumes that arbitrators have an authority to implement the interim measures, and a criterion is enforcement of the arbitral interim measures. In accordance with this classification, the following approaches can be distinguished: 1) direct enforcement of the arbitral interim measures; 2) state courts’ assistance in enforcement of the arbitral interim measures; and 3) absence of a mechanism for enforcing the arbitral interim measures. The author also examines an influence of the legislative approaches regarding the interim measures in international commercial arbitration on regulation of this issue by the permanent arbitration institutions. A special attention is paid to the institution of emergency arbitrator as to an example of implementation of the instruments created by the arbitration practice in legislation. Nevertheless, on a much larger scale, implementation of the world arbitration practice, as well as its elaborated requirements, in legislation is achieved through the implementation of the UNCITRAL Model Law on international commercial arbitration.

Keywords: interim measures, international commercial arbitration, state court, arbitration tribunal, permanent arbitration institution, enforcement of interim measures, Arbitration Act.

DOI: 10.12737/art.2018.4.14

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STATE COMPENSATION FOR HARM AS A WAY OF JUDICIAL PROTECTION OF CRIMES VICTIMS IN THE USA  Pdf 16

S. P. ANDRUSENKO, I. S. VLASOV

S. P. ANDRUSENKO, lecturer at the State University of Land Use Planning
15, Kazakova st., Moscow, Russia, 105064
E-mail: lawyer.cardio@mail.ru

I. S. VLASOV, leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences, associate professor, honored lawyer of the Russian Federation
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: foreign1@izak.ru

Rights of crime victims at the present stage of legal science development are a national idea in the United States. Judicial protection of crime victims is one of the main mechanisms through which the system of restorative justice works. In this regard, a study of judicial protection aimed at restoring the rights of crime victims, with state compensation for the harm to the victim, is very relevant. Also a great influence on the formation of legislation and law enforcement practice for state institutions and organizations. Substantial attention in the article is given to the study of the concept of “victim of crime” in the legal doctrine of the United States. In US legislation, there is no single concept of “victim of a crime”. The concept of “victim of a crime” in the United States differs depending on jurisdiction. The article deals with the ways of judicial protection of victims of crimes related to compensation for damage under US law. The author analyzes in detail the concept of “victim of crime”, which is established in federal legislative acts, as well as the concept of “victim of crime”, established in the legislative acts of individual states. The article explores the features of the current federal legislation of the United States and the laws of individual states, on the basis of which courts decide on state compensation for harm to crime victims. In the Russian Federation there is no mechanism for state compensation for harm to crime victims. In this regard, the experience of judicial protection of crime victims in the United States, based on federal and state legislations, acquires particular relevance in connection with the possibility of borrowing legal doctrines.

Keywords: crime victim, compensation of harm, judicial protection, restorative justice.

DOI: 10.12737/art.2018.4.15

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MILITARY CRIMINAL PROCEEDINGS IN SWITZERLAND: JUDICIAL PROCEEDINGS  Pdf 16

A. A. TREFILOV

senior research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: trefilovaa1989@gmail.com

This article continues a series of author’s publications on the military criminal proceedings in Switzerland (Military criminal proceedings in Switzerland: sources, principles, subjects // Journal of Foreign Legislation and Comparative Law. 2018. No. 1; Swiss military criminal proceedings: evidence, investigations, coercive measures, preliminary procedure // Journal of Foreign Legislation and Comparative Law. 2018. No. 2). This article deals with the preparation of the case for trial in the military criminal process of Switzerland: the lack of differentiation of this stage of the process; the presence of a mandatory rule that establishes the period for which the accused must be notified of the forthcoming consideration of the case on the merits; the activity of the court in preparation for proof; rather soft rules of jurisdiction (the auditor as an exception may assign the consideration of the criminal case to another court instead of the competent garrison court for linguistic or other reasons). The most important institutions related to the consideration of the case on the merits are analyzed: the composition of the court, the stages of the ordinary trial (preparatory part, the judicial investigation, the debate of the parties, the decision of the sentence), the participation in the case of the Prosecutor and counsel, etc. The author describes the high activity of the court, which has many manifestations (for example, the parties do not interrogate the accused, this is the prerogative of the presiding). In present article the author considers writ proceedings, correspondence proceedings, proceedings for the abolition of conditional execution of criminal punishment and proceedings for suspension from service, proceedings in violation of honor and dignity. Also the system of test production is analyzed; this system includes the complaint (Article 166-175), appeal (Article 172-183), cassation (Articles 184-194), recourse (Article 195-199), revision (Article 209).

Keywords: consideration of the case on the merits, review of sentences and other court decisions, military Criminal Proceeding Code, Switzerland.

DOI: 10.12737/art.2018.4.16

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STEALING OF ANOTHER’S PROPERTY BY FORCE IN ENGLISH CRIMINAL LAW  Pdf 16

A. S. KULIKOV

postgraduate student at the Kutafin Moscow State Law University
9, Sadovaya-Kudrinskaya st., Moscow, Russia, 123286
E-mail: AnthonKulikov@yandex.ru

In English criminal law, the responsibility for stealing another’s property with the use of force is described by the concept of “robbery”, which is impossible laconically, and most importantly, accurately translated into Russian. The author analyzed the composition of the robbery in English criminal law. For this, the distinctive features of the composition of this crime were examined. After briefly highlighting the history of the development of norms that criminalize robbery, which, by the way, remained stable for quite a long time, not only the relevant provisions of the current statute have been examined, but also materials of judicial practice that reveal the meanings of the key concepts of the crime in question. In particular, Theft Act 1968 contains the wording “use of force” as a means of committing such crime. However, the interpretations given by the courts at various times contains contradictions to each other. One way to solve this problem is to determine the degree of used force. Another way to commit a robbery is to intimidate the victim to be subjected to force. But this formulation also provides a basis for a broad interpretation. For example, can an “aggressive” threatening environment be seen as a way to commit a robbery? It should be noted Theft Act 1968 contains only one composition of the robbery without aggravating forms and a single punishment for it. However, the lack of differentiation in terms of the degree of danger entailed the adoption measures by the Sentencing Council to establish the optimal punishment for robbery, depending on its type, the degree of harm and the severity of the consequences.

Keywords: robbery, Theft Act 1968, use of force, threatened situation, comparative law, punishment.

DOI: 10.12737/art.2018.4.17

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ANTI-CORRUPTION EXPERTISE IN RUSSIA AND FOREIGN COUNTRIES: COMPARATIVE LEGAL RESEARCH  Pdf 16

A. M. TSIRIN

acting head of the Department of countering corruption methodology of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, responsible secretary of the Interdisciplinary Council for coordination of scientific, educational and methodical ensuring of countering corruption, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: antikor@izak.ru

The article examines the legal and organizational problems of implementation of the anti-corruption expertise institute, reveals the essence of expertise in the mechanism of anti-corruption. The article considers the legislation of the Russian Federation on anti-corruption expertise and the practice of its application in comparison with similar normative legal acts of foreign states that have implemented this anti-corruption measure. The definition and classification of corruption factors, including in the context of their comparative legal analysis with foreign analogues, are investigated. The author comes to the conclusion that the basic approach to the definition of the object component of this activity, enshrined in the Federal Law “On Combating Corruption”, is not fully reflected in the special regulatory legal acts adopted on the issues of anti-corruption expertise. The author proposes to eliminate the limitations of the object component of the anti-corruption expertise of normative legal acts and draft normative legal acts and strengthen the requirements for the subjects of this examination. It is proposed to optimize the control of the Ministry of Justice of the Russian Federation over the activities of individuals and organizations involved in the independent anti-corruption expertise of normative legal acts and draft normative legal acts. Also he considers the trend of laying the initiation and anti-corruption criminological examination of specialized research institutions. The use of these approaches and criteria will strengthen the control over the activities of non-profit organizations recognized as foreign agents, and will contribute to improving the effectiveness of anti-corruption expertise of normative legal acts and draft normative legal acts.

Keywords: anti-corruption expertise, legislation, Institute, corruption, methodology, corruption factor, typology, recommendations.

DOI: 10.12737/art.2018.4.18

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TO THE QUESTION ON CORRUPTION-FACTORS IN THE ACTIVITY OF PENAL SYSTEM OF THE KYRGYZ REPUBLIC  Pdf 16

N. R. BAIGUBATOVA, B. O. SARMANOVA

N. R. BAIGUBATOVA, senior lecturer at the Kyrgyz State Law Academy under the Government of the Kyrgyz Republic
180А, Chuy ave., Bishkek, Kyrgyz Republic, 720001
E-mail: baigubatova.n@mail.ru

B. O. SARMANOVA, acting associate professor at the Kyrgyz State Law Academy under the Government of the Kyrgyz Republic, candidate of legal sciences
180А, Chuy ave., Bishkek, Kyrgyz Republic, 720001
E-mail: nazli64@mail.ru

Corruption in the penal system poses a threat not only to the effective development of the law enforcement system, but also to the functioning of the administration of criminal justice. The analysis of the activities of the state penitentiary service of the Kyrgyz Republic shows that the necessary conditions for the development of corruption crimes in the penal system are more than enough. The unfavorable situation in the country’s penitentiary system owes much to the poor and unprofessional management of correctional institutions. Despite the seriousness of the consequences of prison corruption, no fundamental scientific research has yet been carried out in this area in Kyrgyzstan. The authors of the article for the first time made an attempt to determine the causes and conditions of corruption in the national penal system, its criminological composition, as well as to formulate measures to prevent it. The aim of the study was the study and analysis of corruption-factors in the activity of penal system of the Kyrgyz Republic, which determined the formulation of the following main tasks: study of public danger of corruption in the penal system in contemporary conditions; the situation analysis of the national legal anti-corruption framework in the penitentiary system; studying of criminological characteristics of factors contributing to corruption the criminal-Executive apparatus; development of proposals for improving the criminal and criminal-executive legislation. In the course of the research were used modern general scientific and special methods of cognition: analysis, synthesis, structural and functional, normative and logical, complex. It is noted that in order to eradicate large-scale corruption phenomena in the penitentiary system of the country, fundamentally new, integrated approaches will be required, in particular, it is necessary to review the issues of financing of the penal system, personnel policy, etc.

Keywords: corruption, closed prison system, correctional institutions, crime in prisons, corruption risks, employee, prevention, anti-corruption policy.

DOI: 10.12737/art.2018.4.19

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RARE (ORPHAN) DISEASES: LEGAL REGULATION ABROAD  Pdf 16

N. S. VOLKOVA, Elvina AKSU

N. S. VOLKOVA, deputy head of the Department of social legislation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: volkova@izak.ru

Elvina AKSU, bachelor at the Faculty of law of the Girne American University, Turkey
E-mail: elvina@russiacyprus.com

The article deals with the legal regulation of rare (orphan) diseases, which are chronic, often life-threatening diseases or conditions, the prevalence of which is from 0.65 to 1 ppm per thousand inhabitants. The problems of regulation of rare diseases through the prism of domestic and foreign experience are revealed. The authors focus on the general problems of access to medical care for persons with orphan diseases; mechanisms of financial support for this assistance; criteria for classifying diseases as rare. The article examines the historical background of the emergence of legal regulation of rare diseases and the development of drugs for such diseases; the practice of the Russian legal regulation of issues related to orphan diseases, both at the federal level and at the level of the constituent entities of the Russian Federation. The shortcomings of the regulatory legal regulation of rare diseases are revealed. Various approaches to the definition of the concept of “rare (orphan) disease” contained in foreign legislation are considered. The purpose of the article is to identify the current state of the regulatory legal regulation of orphan diseases in Russia abroad. Among the tasks of present research are: the study of existing in the world practice approaches to the regulation of issues related to rare diseases; the study of the Russian regulatory practice in this sphere; the identification of common problems of regulatory and legal regulation of orphan diseases. One of the main methods of the study is the comparative approach. In a comparative legal framework, the legislation of foreign states regulating the sphere of orphan diseases and orphan drugs is analysed. According to the results of the study, the following key conclusions are made: 1) currently, in foreign countries, a single approach to the definition of orphan diseases has not been developed; 2) for the financial provision of medicines for persons suffering from orphan diseases, in most countries, insurance (co-insurance) and (or) tools for reimbursement of costs to citizens for the purchase of appropriate medicines are used; (3) special measures are being taken in developed countries to stimulate the development of the pharmaceutical market for orphan drugs, including: the exclusive right to sell orphan drugs for a certain period of time; the provision of tax incentives and subsidies for development; the simplification of licensing procedures, including the expedited approval of necessary documentation; assistance in the preparation of documentation; etc.

Keywords: rare (orphan) diseases, orphan drugs, medical care, medical insurance, drug supply.

DOI: 10.12737/art.2018.4.20

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STATE GUARANTEES OF AVAILABILITY OF DRUGS IN RUSSIA AND ABROAD  Pdf 16

F. V. TSOMARTOVA

senior research fellow of the Department of social legislation of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences
34, Bolshaya Cheremushkinskaya st., Moscow, Russia, 117218
E-mail: social3@izak.ru

The article presents the results of the study of state guarantees of access to medicines in the international legal and comparative legal context. It is revealed that the availability of medicines is an element of the right of every person to the highest attainable level of health. The tendency of formation of a new element of the right to availability of medicines - the right to access to generic drugs-is revealed. This is especially true of drugs of primary therapeutic interest to public health; medicines that are in demand beyond supply; expensive medicines; medicines needed for epidemics and other emergencies. It is established that the specificity of the regulatory support of state guarantees of access to medicines is that it is complex. In addition to the provisions of pharmaceutical legislation in this area, there is an influence of civil legislation, especially of intellectual rightslegislation. Particular attention is paid to civil guarantees of access to medicines, the Institute of patent linkage, in particular. It is revealed that in the European countries patent linkage is not consistently recognized, and in the US there is a softening of the legal relationship between the registration of the drug and the status of the patent for the original product. Given the prevailing socio-economic, political, legal, organizational factors, the author concludes that the introduction of patent linkage in the Russian Federation is inappropriate and untimely. The exclusive rights of patent owners can be secured in court. The experience of foreign countries has shown the effectiveness of further differentiation of legal regimes of drugs of high social importance: innovative, orphan, pediatric, etc.

Keywords: state guarantees, medicines, availability of medicines, reproduced medicines, patent linkage.

DOI: 10.12737/art.2018.4.21

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LAW IN THE DIGITAL WORLD (REVIEW OF XIII INTERNATIONAL SCHOOL-WORKSHOP OF YOUNG LEGAL SCHOLARS)  Pdf 16

M. V. ZALOILO, I. A. SHULYATIEV

M. V. ZALOILO, leading research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences

I. A. SHULYATIEV, senior lecturer at the Institute of Legislation and Comparative Law under the Government of the Russian Federation, candidate of legal sciences

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UPWARD MOVEMENT: TO THE ANNIVERSARY OF ANATOLY KOVLER  Pdf 16

Kh. I. HAJIYEV, E. A. FOKIN

Kh. I. HAJIYEV, head of the Department of judicial practice and law enforcement of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, doctor of legal sciences

E. A. FOKIN, research fellow of the Institute of Legislation and Comparative Law under the Government of the Russian Federation

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REVIEW OF THE MONOGRAPH “THE CRIMINAL PROCESS OF FOREIGN COUNTRIES” (VOL. 1, 2) BY A. A. TREFILOV  Pdf 16

D. V. SHABLINSKAYA, E. S. BORODULKINA

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