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Russian Law Journal

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Vol 5, No 2 (2017)
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https://doi.org/10.17589/2309-8678-2017-5-2

Articles

5-32 1205
Abstract

The right to strike is recognized in the Constitution and the Labor Code of the Russian Federation as a means to resolve collective labor disputes. However, in Russia labor protests come up for discussion much more frequently than strikes. In recent years the number of labor protests in Russia, including various forms of work stoppage, has increased significantly compared to previous years, but the number of legally constituted collective labor disputes and strikes has remained very low. The legislation on resolution of collective labor disputes and mounting strikes is quite restrictive in Russia, and its enforcement also encourages employees to seek alternative ways to settle collective labor conflicts. There is little empirical research on the judicial implementation of these norms and its influence on the enforcement of legislation. Therefore, this paper analyses the reasoning of courts in cases on the legality of strikes, their interpretations of the law, and the impact these decisions have on the enforcement of the legislation on resolution of collective labor disputes and strikes. Our conclusion is that the courts act as another restrictive influence on the resolution of collective labor disputes and the exercise of the right to strike in Russia.

33-52 686
Abstract

Eurasian integration has created a new legal order – the so-called “Union law” of the Eurasian Economic Union (EAEU). This legal order has its own narrative, principles, hierarchy of rules, and innovations such as the direct applicability of decisions of its regulatory body. Russian legal order is generally accommodating towards international law, which is equally applicable to Union law. However, the recent practice of the Russian Constitutional Court has claimed that Russia can set aside international obligations based on national constitution, which indirectly targets the viability of the EAEU legal order. This is further complicated by the Eurasian judiciary, which, as the main interpretative authority within the integration, has tried to take on an activist role, somewhat borrowing approaches from the European Union. In its turn, the Russian Constitutional Court has voiced its differences in certain approaches. This variability of practices and approaches clearly undermines the “unity” of the EAEU legal order and the interweaving of national and regional legal frameworks. This article analyses the relationship of the two legal orders to assess the possibilities for tensions between them. It points out the sources of such tensions, which lie in certain indeterminacies within the EAEU legal order, temptations to assert power, and recent far-reaching practices of the Russian Constitutional Court.

53-74 960
Abstract

The Court of the Eurasian Economic Union (EAEU Court) is a new structure operating since 2015, and whose mission is to ensure the uniform interpretation and application of EAEU law. The article focuses on the main challenges the Court is presently facing: limited competence; a lack of procedural mechanisms to ensure the dissemination of its case-law among national courts; and a low number of applications. Consequently, it is divided into three sections.

The first section is devoted to an analysis of the Court’s competence and focuses on the loss of the preliminary reference procedure that existed under the EurAsEC law. The authors analyze its role and the possibility of compensating for its lost powers.

The second section explores the other tools available to the Court in order to influence the case-law of national courts indirectly. It explores the practical difficulties which economic entities face when bringing parallel proceedings before the EAEU Court and a national court, or when trying to obtain a review of a national court judgment following a positive outcome in the EAEU Court.

The third section tackles the issue of the low number of applications, linked to a lack of trust from the business and legal communities. Thus, it is vital for the Court to earn a reputation based on accessibility, professionalism and efficiency. To this end, the authors analyze such issues as the duration of proceedings, the locus standi of economic entities and the way in which judgments should be drafted to ensure the protection of rights and legitimate interests of economic entities.

75-94 954
Abstract

Modern business international transactions are multiparty and complicated. Such contracts are usually composed of several contracts which can contain bilateral dispute resolution arrangements. According to the principle of parties autonomy dispute arising between two persons bound by an arbitration agreement in connection with a multiparty project will be resolved by arbitration exclusively between these two parties. Other parties cannot participate in the resolution of the dispute through arbitration, even if they have played an active role in the actual project. Notwithstanding any legitimate interest, they might have the outcome of the dispute; these parties will remain alien both to the arbitration proceedings and an arbitral award. Their interests are not taken into consideration and left unprotected. Arbitration proceedings, unlike litigation, usually do not bear any intervention or joinder of parties, which is explained by the contractual nature of arbitration.

Thus, the binding power of an arbitral award extends only over parties of an arbitration agreement. Meanwhile, an arbitral award can affect interests of third parties. How can these parties defend their interests in arbitration proceedings and during recognition and enforcement proceedings in national courts? There are two ways of resolving such problem in state court litigation. The first one is the compulsory participation of any third party with any legitimate interest in litigation through intervention, joinder of parties, and consolidation of cases. A court ex officio has to gather all parties that can have any legitimate interest in resolving the dispute. If judgment affects any interest of a party that was not involved in the proceedings judgment should be reversed in appellate court. The second way is also the solution against parallel proceedings. This way is to harmonize the outcome of parallel proceedings by the principle of lis pendens and res judicata.

The paper examines the binding and res judicata effects of the arbitral award towards third parties through the Russian and international experience of defending of interests of third parties in international arbitration and litigation.

95-112 564
Abstract

The following article deals with the challenges created by legal regulations concerning divorced or separated couples and focuses on the rights of separated parents with children. The article analyzes the problems associated with law enforcement practices in this area, the gaps in existing family law, as well as the disputed aspects of theory concerning parents’ legal relations. Suggestions for legislative developments in Russia concerning the protection of family rights within separated families are given. The authors of this paper argue for a rethink of existing approaches to legal regulations in this field of law due to the fact that existing family legislation does not take into consideration many of the challenges and realities of modern parenthood. Furthermore, current legal regulations in Russia do not fully correspond to international legal norms. The authors contend that this will lead to the curtailment of the legal rights of the separated parents. Such status is characterized, on the one hand, by unreasonable restrictions on parental rights. On the other hand, it permits only a limited degree of responsibility for a child’s upbringing and financial support on the part of a parent living separately from their child. The authors propose that, in this respect, it is necessary to rethink disputed legal decisions relating to family law and the implementation of family law in practice. By analyzing such implementation, the authors single out a number of interrelated factors that must be overcome in order to effectively protect separated parents’ relationships with their children. The aim of the article is to initiate a new approach to parental legal relations after divorce or separation and to propose new legislative regulations concerning the legal status of a parent who lives separately from their child. New developments in family law are proposed in order to ensure a balance between parental responsibilities and rights as well as the rights of the child.

Comments

113-128 1226
Abstract

Globalization and digitalization of international sales creates needs to harmonize rules of international commercial contracts. The question is whether the harmonization should be done by binding rules or using soft law tools or through digitalization. In this article I argue on favor of harmonization through international contracts law rules’ international interpretation.

The international interpretation principles used in this article are found from on Art. 7(1) of the Convention on Contracts for the International Sale of Goods (CISG) which sets three interpretation rules: international character; promoting uniformity; and observance of good faith in international trade. These principles are not only principles of the CISG, but also principles commonly recognized in international commercial practice and also in domestic contract rules. I argue that by adopting an international interpretation umbrella – the meta-principle of international interpretation, cross-border contracts could be interpreted under the same principle no matter applicable substantial law. The meta-principle functions as an interpretation umbrella covering general principles and Articles of the CISG, general principles of international commercial contracts, Lex Mercatoria, and cross-border contract provision under national law.

The outcomes points out that arbitral tribunals have interpreted general principles of the CISG and Lex Mercatoria in various ways. General principles and their application in case law is analyzed in connection with the Civil Code of the Russian Federation. Tribunals found that general principles of the CISG are applicable even if the CISG is not. It follows Art.’s 7(2) logic to promote international standard to cross-border contracts where the closes connection is international commercial practice rather than any national jurisdiction.

Conferences Review Notes

129-135 348
Abstract

The third Annual Symposium of the Journal “Herald of Civil Procedure” “2016 –KazanArbitration Day: The Rule-of-Law Development and Regional Governance” was hosted by the Law Faculty on September 30, 2016.

The opening ceremony of the event took place in the Hall of the Board of Trustees of theKazanUniversity, followed by an academic discussion on legal issues of the Symposium. The Symposium participants and invited guests had the opportunity to discuss the most current and topical issues of civil procedural law, to present the latest Russian and foreign academic works in this direction to colleagues, to offer further ways of development of contemporary civil procedure, and to exchange experience and accumulated knowledge.

The Symposium discussed both the issues that directly related to arbitration proceedings as well as the most relevant news in the field of civil procedure and enforcement proceedings in general.



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