Magazine content за Август 2022 г.
Magazine Cover
Press to zoom

Buy a PDF


mag->month > 0 ) { ?>

mag->getMonthString();?> mag->year;?>

mag->pdf_file): ?> sess && $this->sess->isArticlePayed()):?>

Август 2022



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
Buy a PDF


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
Buy a PDF


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
Buy a PDF


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
Buy a PDF


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
Buy a PDF


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
Buy a PDF


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
Buy a PDF



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
Buy a PDF


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
Buy a PDF


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
Buy a PDF


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
Buy a PDF