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ARCHIVE FOR 2020    RUSSIAN

Август 2020

CONTENT

 

Chief editor’s column

 

 

Interview of the issue

 

The Event. Comments of the Experts

Initiative Court in the Adversarial Process: RF Supreme Court’s Explanation of Measures against Legalisation of Criminal Revenues
Comments by E. Borisova, D. Tuzov, V. Yarkov, M. Mikheenkova, A. Rusetskiy, T. Tukhvatullin, V. Avilkin
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Topic of the issue

I.A. Vasilyev, N.A. Sheveleva, E.G. Vetrova Removing a Club from Competition as UEFA Administrative Measure for Math-Fixing: Legal Nature and Peculiarities of Application
Sports federations and organisations apply disciplinary sanctions to their direct and indirect members to maintain the effectiveness of the norms of acts and regulations. A sanction is a normatively defined negative form of response to a violation. Nevertheless, the tools of influence are not limited to disciplinary responsibility and may provide for the use of other measures applicable to sports entities that have violated the norms of acts and regulations. Sports federations and organisations can associate such measures with the management and organisation of competitions, thereby giving them the name “administrative”. At the same time, the system of coexistence of administrative measures and disciplinary sanctions seems logical and adequate to sports offenses only at first glance. The legal consolidation of an administrative measure demonstrates the factual identity of the grounds and purposes of application with disciplinary sanctions. As follows from the law enforcement practice that we examined in this study, such measures claim to be immune from compliance with the inherent legal guarantees provided for sports entities, since they are not sanctions. Consequently, the general theoretical principles of law are not applied to measures: inadmissibility of double prosecution for one violation; proportionality of sanction to the offense, and others. UEFA has been using an administrative measure for a long time to remove the club from participating in the competition for manipulating the result, which allows us to talk about the established practice of the disciplinary jurisdictional bodies of the Union, as well as the Court of Arbitration for Sport (CAS). We will consider this measure through the prism of law enforcement decisions of the aforementioned dispute resolution bodies and pay attention to the dualism of positions on its nature and inconsistency of positions on the peculiarities of its application. The authors believe that it is necessary to recognise this measure as being a disciplinary one and, as a result, stop using it in parallel with disciplinary sanction in the regulation of UEFA.
Keywords: UEFA regulations, math-fixing, UEFA practice, Court of Arbitration for Sport (CAS) practice, administrative measures, disciplinary sanctions
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I.V. Ponkin, A.I. Redkina Good Governance in the Regulatory Space of Sport: The Role of Lex Sportiva and of the International Court of Arbitration for Sport
The article is devoted to the study of the issues of good governance in the field of sports. This article outlines approaches to explaining good governance. The authors examine the role and significance of extralegal normative regulation in the field of sports (lex sportiva) and of the International Court of Arbitration for Sport to ensure and maintain good governance in sports. The article examines in detail the concept of lex sportiva and the importance of the Court of Arbitration for Sport (CAS) for the formation and development of lex sportiva. The authors present the concept of the key meta-functions of CAS to ensure the proper order in the field of sports.
Keywords: sports law, lex sportiva, sports, good governance
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S.A. Yurlov Key Issues of Defending Athlete’s Rights
Recently, cases of violating rights and interests of athletes have become more frequent, which leads to disputes mainly between sports organisations and athletes. Despite the existence of various dispute resolution mechanisms, athletes’ rights often remain unprotected. What is the reason of it? This state of affairs arises because there are no limits to the autonomy of sports organisations, some of them do not comply with generally recognised principles and rules of law, state and supranational justice is not available, and an athlete is not considered as an independent subject of sports law.
Keywords: defense, right, athlete, arbitration, autonomy, dispute resolution body, sporting organisation
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L.I. Zakharova International Standards of Human Rights as a Restriction on the Principle of Sports Autonomy
The principle of sports autonomy, which defines the relations between the sports world and States, is enshrined in the documents of the Council of Europe, the European Union and the European Olympic committees, and for a long time it did not imply clear obligations of sports organisations in the field of human rights. International legal obligations do not apply to sports organisations since they are not subjects of public international law, and they did not assume such obligations voluntarily. The situation began to change gradually when the United Nations Human Rights Council (UNHRC) began addressing this issue in its resolutions starting from 2010. The International Olympic Committee (IOC), which heads the Olympic movement and has a permanent observer status in the United Nations, takes an active part in discussions initiated by the UNHRC. A number of provisions closely related to human rights (the preservation of human dignity, the right to participate in sports, the prohibition of discrimination) are reflected in the Olympic Charter, although the IOC has not yet developed a separate specific document in the field of human rights. In 2017, the International Football Federation was the first among the international Olympic sports federations to develop a normative act in this area — FIFA’s Human Rights Policy, in which it identified the main human rights risks: labour rights of persons employed by FIFA business partners; land acquisition and housing rights; discrimination; ensuring the safety and security of spectators and other persons; players’ rights. The FIFA Human Rights Advisory Board was established to provide regular reports on the state of human rights, identifying the most pressing issues and making recommendations for their resolution. FIFA is demonstrating its readiness to take further steps to clearly establish the human rights obligations of its main bodies, national football associations and confederations.
Keywords: human rights, sports autonomy, sports organisations, UN Human Rights Council, IOC, FIFA
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A.I. Tereschenko The Specific Aspects of the Legal Regulation of Major International Sports Events Held in Russia
Russia has a rich modern history of holding major international sports tournaments. As part of the preparation for such events, considerable volumes of specific regulations have been adopted to deal with organising and holding competitions of international standing. Russia, which had almost no experience in staging competitions on such a level, had to develop from scratch a specific regulatory base, tapping into international practices and taking account of the demands of international governing bodies. In this article, the author, who has been directly engaged in drafting many regulations governing the organisation and holding of major sports competitions, considers the particular aspects of how such specific legal regulation is constructed, and the correlation between general and specific rules of sports-related legislation.
Keywords: regulation, regulatory base, the law, benefits
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O.P. Pleshanova August: Time to Count Money
Officials’ income — Russian-British peer — Tycoons as “agents of influence” — Extrajudicial bankruptcy of individuals and the plan of a far-reaching reform — Tax increase and privileges for the “Russian offshores” — Top-level judges — RUSADA and Russian Olympic Committee — Sport disputes — Explosion in Beirut — FSB’ investigations — The cases of attorneys — The case of Furgal — Elections in Belarus — PMC Wagner — Coronavirus vaccine — Cryptocurrencies — Navalny’ incident
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Press Release

 

 

Theory and practice

A.I. Savelyev (Anti)Social Monitoring: Law and (or) Expediency?
The paper is focused on analysis of compliance with personal data legislation of electronic permits and mobile application “Social monitoring” implemented in Moscow among the other anti-COVID measures. Based on analysis of publicly available documents governing their application and statements made by government officials, it is concluded that these systems are not compliant with the requirements of personal data legislation. The paper also contains author’s view on how to ensure such compliance in the future, and that it will require amendments in the federal legislation.
Keywords: social monitoring, electronic permits, consent of the data subject, algorithmic governance
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E.D. Suvorov The Place of Digital Technology in the Performance of Obligations
The article is devoted to the peculiarities of fulfillment of obligations, where digital technologies are present in one way or another. The author concludes that digital technology, in relation to the performance of the obligation, can either be a means of performance (smart contracts, transfer of goods through digital means of communication, etc.), or create an object of law, which is the subject of performance (cryptocurrencies), or ensure accounting of rights transferred in the course of performance (tokens, digital communication with the registers). The article proposes principles for resolving legal problems in the field of performance of obligations using digital technologies, as well as some considerations regarding legal regulation of performance of obligations under smart contracts.
Keywords: smart contract, token, digital rights, performance, digital means of communication, time of performance
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R.R. Valiev Non-Contractual Manifestations of Objectivity of Chances and Risks From Conditional Suspensive Obligations
This article is a development of the author’s concept, according to which the property status of the parties to a conditional suspensive obligation should be considered not only in the light of possible future rights and duties, but also through prism of existing chances/risks, which have autonomous (i.e. independent of the occurrence or non-occurrence of the condition, detached from possible future rights and duties) property value and are fundamentally objective. It analyses situations in which such chances and risks de lege ferenda may or de lege lata already manifest their non-contractual objectivity. From the point of view of objectivity of chances and risks, it considers, in particular, issues related to unfair obstruction of occurrence of a suspensive condition, bankruptcy and liquidation of the parties to a conditional suspensive obligation, universal succession in such obligation, conflict of interests of the previous conditional and subsequent unconditional chargeholders in case the foreclosure under an unconditional claim precedes the occurrence of a suspensive condition. The conclusion is grounded that the policy and practice of handling chances and risks from conditional suspensive obligations should be aimed at expanding the scope of non-contractual manifestations of objectivity of such chances and risks.
Keywords: conditional obligation, conditional claim, conditional debt, chance, risk
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M.I. Nemova Cryptocurrency as an Object of Property Crimes
The article focuses on four points — criminal law protectiveness of cryptocurrency, the lack of statutory regulation for cryptocurrency, nonsubstantial goods as an object of property crimes and cryptocurrency valuation methods. The author concludes that criminal law should protect any assets if they are widespread, significant and positive. The absence of statutory regulation should not influence criminal law protection of property relations. It’s necessary to exclude tangeability as an attribute of criminality and reform the current system of criminal liability to protect cryptocurrency and other intangibles. In the case of lack of information about cryptocurrency value, an expert assessment of its value at the moment of charge-off may be taken into account.
Keywords: cryptocurrency, alternative settlement means, object of embezzlement
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D.A. Arkhipov, V.V. Konovalov Expert Shopping or “The One Who Nominates the Court-Appointed Expert Wins the Case”: Is There a Way to Fix the Problem?
The article addresses a problem that is known as expert shopping, i.e. the practice of finding an expert who supports the party’s case in the matters in dispute in order to impact the contents of an expert opinion and foreclose the outcome of the case. The authors have reviewed the background of the issue, as well as potential solutions in the context of Russian civil (arbitrazh) proceedings.
Keywords: expert shopping, expert finding, expert, expert opinion
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N.V. Bushtets Involvement of Citizens in Participation in Jury Trials (Based on Social and Legal Research Data)
This article presents the results of a comprehensive social and legal study on citizens’ involvement in court activities as jurors. It identifies and analyses the reasons why citizens avoid appearing in court if they receive summons as candidates for jurors. In the end, proposals were formulated as to how to involve citizens in the administration of justice. The optimal forms of interaction between courts’ offices and juror candidates are proposed.
Keywords: social and legal research, organisation of court activity, jury trial, involvement of citizens to participate in justice
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Foreign experience

S.D. Pimenova Interim Measures Applied by the Court of Justice of The European Union in the Commission v. Poland Cases
The Court of Justice of the European Union, along with other international courts, has a power to apply interim measures to preserve the rights of the parties to the dispute and to prevent serious and irreparable harm, which may otherwise lead to ineffectiveness of the Court’s final decision. Also, the application of interim measures may not predetermine the Court’s final decision. The CJEU itself considers that such measures should be applied in exceptional cases, especially in the claims of the European Commission against EU Member States. To this end, CJEU has set an extremely high threshold for the applicant to prove the existence of three conditions which are necessary to decide whether interim measures should be applied in a particular case: (a) consideration of the main claim should have “reasonable chances of success”, (b) there must be urgency and (c) the risk of serious and irreparable harm. The interests of other persons (parties to the dispute, third parties or EU Member States) must be taken into account. Those features of CJEU interim measures, which make it similar to national courts and separate from other international courts, include (a) the right to require security from a party asking the Court for interim measures, and (b) inability to apply interim measures proprio motu. In the resent cases involving Poland for the first time in international justice the CJEU has formulated the grounds for financial liability in the form of penalties for each day of failure to comply with the interim measures prescribed by the Court.
Keywords: provisional measures, interim measures, Court of Justice of the European Union, European Commission, Poland
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