ARCHIVE FOR 2022 RUSSIAN
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Август 2022
CONTENT
Chief editor’s column
Interview of the issue
Topic of the issue
Yu.S. Bezborodov, R.M. Khalafyan International Law and World Law-And-Order: Devaluation or Transformation? The international lawyers occasionally turn to international
instruments or established international institutions making an
assessment of their place in the life of world community and
national legal systems. Not only the ideas about such instruments
and institutions are changing, but also the perception of international law itself as well as issues which arise at a certain
historical stage. What does make international law of the last
two decades distinctive? The article treats a number of recent
trends demonstrating a special development. Their nature is
different and affects the normative and organizational bases,
the international and national legal mechanisms of international
norms implementation, the fields of human rights and security
of states. Some of them come from the development of legal
relations, the others the modern technologies, the thirds
the complexity and specifics of the legal norms system.
The identified features reveal the change in international law
and the information background against which international law
develops at the present time.
Keywords:
international law, new human rights, institutionalisation, information technology, political regulator, deformalisation, sovereignty, national legal systems, responsibility, crises of cooperation
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A.S. Ispolinov Rules of International Law Governing Use of Force and a Special Military Operation of Russia Issues of use of force in international law, including right of
states to self-defense, continues to spark endless scholarly
debates. The article suggests that the scope of customary rules of
international law regulating self-defense are broader then the trеatу
rules of the UN Charter and continues to develop in light of specific
of contemporary warfare and weapons of mass destruction
especially in field of preventive and preemptive self-defense.
The vague and ambiguous meaning of these rules leaves enough
room for its interpretations by the states in case of applications
to secure state interests. An established consensus with regard
of existence of criteria of lawfulness of self-defense (Caroline
criteria) is accompanies by debates regarding definite meaning
of these criteria especially in case of self-defense in absence of
the armed attack. The article provides analysis of the arguments
made by Russian Federation regarding lawfulness of the special
miliary operation in Ukraine.
Keywords:
use of force, Charter of the United Nations, self-defense, Caroline criteria
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V.L. Tolstykh Central Asia and International Law: Factors, Problems, Prospects The international relations of the countries of Central Asia have
been developing dynamically in recent years: along with positive
trends (Eurasian integration, growth of mutual trade, crossborder
cooperation), there are negative processes (deterioration
of the security situation, conflicts over water resources, etc.).
Russia plays a large and often leading role in international legal
policy in the region; recently, however, there has been a qualitative
strengthening of the positions of China, Turkey, Iran and Western
countries. The article discusses features of the international legal
policy of the states of Central Asia; factors which influence it
(economic specialisation of the region, activities of external actors,
intensity of ethnogenesis, Islam, Soviet legacy) as well as individual
international legal problems. The latter include: 1) problem of
distribution of water and energy resources; 2) environmental problems related to the disappearance of the Aral Sea; 3) uncertainty
of the regime of the Caspian Sea; 4) problem of enclaves; 5) lack
of a coherent national policy and problem of minorities; 6) lack
of own integration project. In conclusion, the author states that
broad political and economic integration is a necessary condition
for solving the problems of the region and ensuring the wellbeing
of its population. This is achievable through cooperation of
the elites, development of original solutions, radical transformation
of the political and legal system. Strategic goal may be the creation
of a federal state.
Keywords:
international legal policy, Central Asian integration, transboundary watercourses, enclaves, status of minorities, right to self-determination
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I.A. Vasilyev, N.A. Sheveleva Suspensions of Russian Sports Federations and Athletes: An Illegal ultima ratio On February 28, 2022, the International Olympic Committee
(IOC) recommended that Russian athletes should not be
allowed to participate in international competitions unless
Russian participants act as neutral athletes. Since that date,
international sports federations have imposed and continue
to impose multidirectional negative measures against Russian
sports entities: suspensions of membership, suspensions from
competitions, deprivation of the right to hold sports competitions,
and the admission of athletes to competitions only in a “neutral
status”. For all such decisions, the term “sanctions” was not used
by Federations for at least two reasons. First, due to the lack of
grounds for sports liability in the acts of the Federations. Secondly,
so that the decisions would not be covered by the set of guarantees
accompanying the application of sports sanctions. The latter should have been facilitated by the formally administrative nature
of the measures taken — their adoption was carried out by
the executive bodies of the respective Federations. The authors
of this article analyzed the IOC recommendations for compliance
with the mission of this organization and commented on individual
decisions of international federations to suspend the membership
of All-Russian federations and suspend Russian athletes from
participation in competitions.
Keywords:
International Olympic Committee, international sports federations, Court of Arbitration for Sport (CAS) practice, suspension of all-Russian sports federations, suspension of Russian athletes from competitions
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O.V. Kadysheva Doctrinal Aspects of Unilateral Restrictive Measures and Prospects for Challenging Them Within the WTO The article makes critical assessments of different doctrinal
evaluations of unilateral restrictive measures which started
to be widespread phenomenon in international politics since
the beginning of XXI century. Arguably this field of international law
remains seriously underdeveloped as a result of lack of recognized
and accepted terminology as well as highly debatable legal natures
of such measures. The doctrinal views vary from its recognition
as unlawful unilateral coercive measures taken out from the UN
Security Council and therefore violating principles of the prohibition
against the use of force and non-intervention to qualification of
such measures as lawful counter measures taken by third states in
the interest of international community. The article also assesses
perspectives of challenging of such measures in WTO considering
recent findings of the panels in Russia — Measures Concerning
Traffic in Transit and Saudi Arabia — Protection of IPR disputes.
Keywords:
sanctions, unilateral restrictive measures, counter measures, WTO
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Discussion Board
V.A. Alexeev Resale Right, Encumbrance of an Immovable Thing and the System of Rights to Real Estate The author of the article considers resale right (droit de suite)
as a special legal means, which is applied on the basis of the
criteria chosen by the legislator to give special strength to various
subjective rights to things and proves that within the framework of
the current legislation, there is no inseparable connection between
resale right , absoluteness and realness of subjective right. In
particular, it is argued that resale rights are deprived of all special
real rights to public things. The thesis is also substantiated that the
current law’s approach to resale right can be used as the basis
for building a system of limited rights with resale right , which
eliminates the need to formulate a definition of property rights and
an exhaustive list of property rights in the law. Considering the
limited rights to other people's things and the special obligations
of owners, which have resale right , as encumbrances on an
immovable thing, the author lists such rights and obligations, gives
a definition of encumbrance, analyses the criteria for endowing
rights and obligations with resale right .
Keywords:
real estate, property law, resale right (droit de suite), reform of property law, limited rights, absolute right, property right, encumbrance, restriction of right, property obligations
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A.E. Shastitko, K.V. Dozmarov Economic Aspects of Ensuring the Presumption of Innocence in Antitrust (Is It?) Law In this article, the authors try to figure out how the presumption of
innocence in antitrust works. Despite the fact that this topic has
been around for a long time and is being discussed in the circles
of consultants and antimonopoly experts, however, it has hitherto
been bypassed on the pages of scientific journals. The concept of
presumption of innocence is revealed through the burden of proof
and the process of evaluating evidence. At the same time, in order
to evaluate the evidence, it is necessary to have the appropriate
competence, as well as adhere to a certain standard, which for
the antitrust are the cornerstones.
Keywords:
presumption of innocence, guilt, burden of proof, standard of proof, per se, rule of reason, quick look
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Theory and practice
E.V. Mokhova Cross-Border Effect of Bankruptcy: Insolvency-Specific Recognition in Foreign Law and in International Standards (Part 1) The author raises the problem of interests’ balance between
foreign collective proceeding, on the one hand, and the interests
of the recognising state and its creditors, on the other. The search
for such a balance has led to modern legal landscape in crossborder
insolvency, which provide for a controlled multiplicity of proceedings (main and non-main proceedings) within
the framework of modified universalism. Thus, the mechanism of
recognition of foreign insolvency proceedings should distinguish
main and non-main (secondary) proceedings, should provide for
different legal consequences when recognizing different types
of insolvency proceedings, should allow for the opening of local
insolvency proceeding in spite of a recognised foreign one,
and also provide for the interaction of main and non-main, as
well as local and foreign insolvency proceedings. In the article,
the author examines different types of recognition from the
point of view of their compliance with modified universalism
and achieving the balance of interests’ of collective proceeding
and the recognising state. Procedural recognition (recognition
of foreign court judgment), material recognition (application
of conflict of laws rules), factual recognition (acknowledgment
as a fact) and insolvency-specific recognition are considered.
The author notes the drawbacks of procedural, material and
factual recognition, which led countries to develop a special
mechanism — insolvency-specific recognition. This type of
recognition is characterised by duality, in which bankruptcy
proceeding is recognised separately per se and its effect and
consequences are assessed separately. Thus, the recognition of
decisions commencing foreign bankruptcy proceeding is subject
to special rules that differ from the rules on the recognition of
final court judgments on civil matters.
Keywords:
cross-border bankruptcy, cross-border insolvency, recognition of foreign bankruptcies, modified universalism, main proceeding, secondary proceeding, non-main proceeding, recognition of foreign judgments, procedural recognition
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A.G. Sergo, T.G. Susalyova On the Eve of a New Stage of Regulation of Domain Disputes The problems of legal regulation in the field of domain names
faced by Russian participants in relations on the way to creating
an effective system for resolving domain disputes are voiced, and
progressive changes in the legislation of the Russian Federation
and law enforcement practice that have occurred over the past
20 years, allowing to overcome the negative phenomena of
violations of the rights and legitimate interests of participants in
“domain” relations. The authors attempt to determine the degree
of readiness of the existing legal system of the Russian Federation
to borrow the most successful provisions of foreign systems and
mechanisms for settling domain disputes or to create a domestic
dispute resolution system based both on the sovereign interests of the Russian Federation and on the successful experience of foreign
procedures.
Keywords:
domain dispute, national domain name system, judicial practice, UDRP
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D.M. Molchanov, A.S. Kulikov Circulation of Falsified, Substandard And Unregistered Medicines (Article 238.1 of the Criminal Code of the Russian Federation): Qualification Issues The authors analysed the provisions of Art. 238.1 of the Criminal
Code of the Russian Federation on the issue of criminal liability
for the circulation of counterfeit, substandard and unregistered
medicines in unity with industry-specific legislation and
international legal acts. The study reveals the elements of
this corpus delicti, bases of criminal responsibility and, at
the same time, a number of shortcomings and contradictions in
the disposition of Art. 238.1 of the Criminal Code and the note
to it, related to its interpretation and law enforcement practice.
Based on the results of the analysis, the authors proposed their
own positions on all problematic issues of interpretation and
application of Art. 238.1 of the Criminal Code.
Keywords:
falsified medicines, substandard medicines, unregistered medicines, criminal liability
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S.V. Usoltseva Patent Litigations in the Context of the Development of New Technologies The article deals with the issues of judicial protection of
the exclusive right to an invention in the context of Russian and
foreign law enforcement practice in the context of the development
of information technology, including in cases of patent trolling. Attention is drawn to the relationship of technology and technical
solutions as a prerequisite for the emergence of many patent
disputes. The article analyses the legal problems of establishing
the signs of the use of an invention in a specific dispute in
accordance with Russian legislation, including the problems of
applying the doctrine of equivalents.
Keywords:
violation of the exclusive right of the patent holder; doctrine of equivalents; patent trolling; contactless payment method as a technical solution; problems of legal protection of technologies
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