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Russian Law Journal

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Vol 3, No 4 (2015)
View or download the full issue PDF (Russian) | PDF
https://doi.org/10.17589/2309-8678-2015-3-4

Chief Editor’s Note

5-6 832
Abstract
In 2015, a new Code of Administrative Procedure [hereinafter Code] was adopted in Russia. Such a code has never existed in Russian legal history.

Articles

7-31 1394
Abstract
In 2014 the Permanent Arbitration Court in The Hague made unprecedented awards totalling US$50 billion against the Russian Federation. The awards crowned more than nine years of arbitration proceedings initiated by the former shareholders of the liquidated oil company Yukos. Although the former shareholders of Yukos represented by the GML Group declared their intention to only enforce the awards against the assets of the Russian state, the lack of assets not covered by state immunity inevitably opens the possibility of enforcement of the awards against the assets owned by the Russian majors controlled by the state. Due to its involvement in the Yukos case, Rosneft, the biggest Russian oil company, will undoubtedly be the first and the main target of such enforcement. This article aims to examine whether the former shareholders of Yukos could succeed in enforcement of foreign arbitration awards in the two main jurisdictions: the United Kingdom and the United States. The article examines the existing legal tests applicable in enforcement proceedings in these jurisdictions to state-controlled companies by considering the corporate structure of Rosneft and its business operations. The findings of the research are widely applicable to the other state-controlled Russian companies.
32-74 1603
Abstract

The paper investigates enforcement of criminal sanctions in anti-bid rigging policy in Russia. Although cartels were criminalized in 1997, parties of numerous anticompetitive agreements on tenders are punished by corporate or individual fines, or disqualified. Statistics on sentences for bid rigging are highly controversial although legislative conditions for efficient criminalization are presented not only by criminal norms but also by leniency programmes in administrative and criminal proceedings which were designed to contribute to anticartel enforcement.

The aim of this research is to determine factors that have caused the very rare use of criminal sanctions for cartel enforcement with the focus on bid rigging. For the purpose of the research, the paper outlines the regulation of tendering in Russia and the system of sanctions for bid rigging, including leniency. Case analysis of the first custodial sentence for anticompetitive agreement on a public tender highlights specific features resulting in successful prosecution. Since this is one of the first attempts to assess criminalization of bid rigging in Russia, original empirical data including interviews with officials from federal competition authorities and regional representatives constitute the basis of the study.

Findings of the research determine the influence of social norms on the enforcement as the main challenge for criminalization of bid rigging which is weighed down by the insufficient political influence of competition authorities. The paper’s findings may be of interest for assessing enforcement in other jurisdictions experiencing the same difficulties.

75-101 1037
Abstract
Adjustment (Anpassung / Angleichung) is an institute of Private International Law which means non-application or modified application of substantive rules of applicable law. The method is mostly used in German scholarly writing and court practice. The need for adjustment is usually generated either by a lack of rules ‘Normenmangel’ or by an abundance of norms (Normenhäufung). It occurs if the conflict of law rules refer to the applicability of substantive law pertaining to two or even more legal orders which, when applied together, produce a result which is either contradictory or which is unintended by any of the applicable legal orders. The need for adjustment is deemed to be justified by the doctrine for grounds, such as the requirement for unity of legal order, the requirement for elimination of normative contradictions which are sometimes logically untenable, etc. The modern approach to the need for adjustment is depicted as accidental discrimination which contradicts the principle of equality before the law. By relying on provisions contained in the Russian-German Consular Convention of 1958, the author demonstrates that any method of adjustment violates the right to a fair trial and vested rights as well.
102-123 1073
Abstract
Even though Russia’s new Code of Criminal Procedure of 2001 had from the very beginning contained the article titled ‘Preclusive Effects,’ it was not until a decision by the Constitutional Court of 2008 that the doctrine of issue preclusion was, in its proper sense, reinstated in Russian criminal law, barring facts definitively established in a civil trial from relitigation in criminal proceedings. Despite heavy criticism that came down on the Constitutional Court for what was seen by law enforcement agents as unwarranted judicial activism, the Russian Parliament soon amended the article in line with the interpretation offered by the Court. This, however, did not end the controversy as critics raised a valid point: an automatic transfer of facts from civil proceedings with a priori more lenient requirements of proof is likely to distort outcomes, harming defendants, the prosecution, and, ultimately, societal interests. This article will turn for apotential solution to common law, which has been able to avoid this problem by clearly distinguishing between different standards of proof applicable in civil v. criminal litigations. It will be shown, using the United States as an example, how courts can effectively use issue preclusion to pursue a number of legitimate objectives, such as consistency of judgments and judicial economy, with due account for the interests of parties in proceedings. At the same time, issue preclusion appears an inappropriate and ineffective means to combat arbitrariness of the judiciary – the end which Russia’s Constitutional Court and law makers arguably had in mind when introducing the doctrine into Russian law.
793
Abstract

Use of force is one of the principles of international law which has been banned by the UN Charter and modern constitutions. However, since the enforcement of the UN Charter, self-defense has become the preferred excuse for states to justify their use of force. But applying self-defense requires some conditions. Immediacy is one of the important conditions of self-defense. Immediacy defined as the time span between armed attacks and reaction to it, is the main discourse. This condition requires self defense immediately after the armed conflict or during a rational time span since its occurance.

In this respect, the emerging Karabakh Conflict between Armenia and Azerbaijan in the 1990s is important. After Armenia’s armed attacks, Azerbaijan has acted within the scope of legitimate self-defense. But in accordance with UN Security Council cease-fire resolution Azerbaijan has suspended its self-defense actions. However, today, still twenty percent of Azerbaijani territory is still under Armenian occupation. Accordingly, after a long time the validity of Azerbaijan’s right to legitimate self-defense is still subject to arguments.

In this article, by comparing two different approaches (strict and board interpretation approaches) on the temporal link between the measures of self-defense and the armed attacks (immediacy), the temporal link between the self-defense countermeasures of Azerbaijan and armed attacks by Armenia in Karabakh Conflict will be examined.

Comments

124-149 873
Abstract

This article contains an analysis of legal regulation of investment activities within the framework of the WTO. It considers factors that promote the establishment of a favorable investment climate, including the availability of special legislation, an efficient law enforcement practice and, as noted by many experts, availability and clarity of the judicial mechanism for the protection of violated rights. Recent foreign experience is analyzed and some issues of investment dispute settlement are considered. The article also deals with issues concerning the formation of competitive relations that, in their turn, also constitute an important factor of a state’s investment appeal.

Investment activities constitute a popular type of entrepreneurial activity. Every state, regardless of where it is located or its level of economic development, aims to increase its investment activities and raise foreign investment inflow. To do this they adopt national regulatory acts and sign bilateral agreements, multilateral agreements, and execute international legal acts in the area of investment activities. This results in the need for examination of legal regulation in this area. Russia joining the WTO has resulted in regular revisions of current legal regulation, in particular in the law on foreign investments.

150-164 1105
Abstract

Use of force is one of the principles of international law that has been banned by the UN Charter and modern constitutions. However, since the enforcement of the UN Charter, self-defense has become the preferred excuse for states to justify their use of force. Applying self-defense, however, requires some conditions. Immediacy is one of the important conditions of self-defense. This is defined as the timeframe between armed attacks and reaction to it. This situation requires self-defense immediately after the armed conflict or during a reasonable timeframe since its occurance.

In this respect, emerging Karabakh Conflict between Armenia and Azerbaijan in the 1990s is important. In this article, by comparing two different approaches (strict and board interpretation) of the temporal link between the measures of self-defense and the armed attacks (immediacy), the temporal link between the self-defense countermeasures of Azerbaijan and attacks by Armenia in Karabakh Conflict will be examined.

Book Review Notes

165-169 950
Abstract
The monograph written by Estonian international law scholar Lauri Mälksoo is impressively well-timed. The record of recent international legal developments involving Russia is striking: the annexation of Crimea and the armed conflict in Ukraine, Russia’s ‘sanctions war’ with the United States and the European Union, nonrecognition and non-compliance with the international arbitral award in the Yukos case, and earlier, in 2013, Russia’s boycott of the proceedings at the International Tribunal for the Law of the Sea. Most recently, already subsequent to the publication of Russian Approaches to International Law, in July 2015 the Russian Constitutional Court sent a message of open disregard to Strasbourg by declaring that the judgments of the European Court of Human Rights could not be implemented in Russia if they contradicted the Russian Constitution. In all these instances the Russian government relied on its own reading of international law, which appeared not only to be strikingly different from that of the vast majority of states, but often detrimental to the foundations of the discipline. One might wonder whether these events are just the excesses of authoritarian power-politics, or more fundamentally grounded. Specifically, is there any special Russian international school of legal thought (referred to below as ‘Russian international law’)? And if there is, may it serve as a plausible alternative to Western-centric contemporary international law? Lauri Mälksoo’s book is the first genuine response to these questions.

Conferences Review Notes

170-182 768
Abstract
The Faculty of Law of the University of Helsinki is committed to diversity in approaches to studying various legal systems in the context of comparative law. The annual conference on the Development of Russian Law was launched in 2008 by the initiative of the Faculty to further develop knowledge and critical thinking about Russian law during its period of transition and modernization. The conference takes place every year and it brings together legal practitioners and scholars from Russia, Finland and other countries to discuss pressing matters of Russian law, legal reforms and legal practice. In previous years, the conference’s themes included discussions of legal reforms, the justice system, the Russian legal profession, human rights, and civil and business law.


ISSN 2309-8678 (Print)
ISSN 2312-3605 (Online)