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Russian Law Journal

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Vol 2, No 3 (2014)
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https://doi.org/10.17589/2309-8678-2014-2-3

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Articles

7-22 859
Abstract
The paper describes how Argentine policy makers have thought about and enacted rules on collective litigation in the field of consumer and environmental protection. It presents an overview of the scope and content of those rules, with special focus on standing to sue and adequacy of representation. It also explains how the Supreme Court of Justice of Argentina has reacted when facing collective conflicts even in absence of adequate procedural rules to deal with collective conflicts. The case law of this high Court has provided relevant guidance to lower courts as well as to litigants regarding case management and constitutional requisites of collective litigation mechanisms. It has also summoned Congress due to the lack of a comprehensive and adequate procedural regulation in this field of law. In doing that, it has shaped a system quite similar to that enacted in the US Federal Rule of Civil Procedure 23. Almost 20 years after the constitutional amendment which has given constitutional status to collective standing to sue, it may be said that this kind of representative proceedings is just going through a developing and experimental phase in Argentina. Thanks to the role of the Supreme Court in the last 10 years, however, there are good reasons to have great expectations about what is coming up in the near future.
23-48 919
Abstract
The main focus of this paper is to consider the right of the child to express his / her views and, in particular, to attempt to understand the essence, scope and perspectives on the realization of this right in Russia in the context of the legislation in force, cultural prerequisites and the Russian model of democracy. With this in mind, a discussion will be conducted on the interconnection between the right to express views, partially accepted in Russia, and the right to participate, which has been denied to the child due to the traditional attitude towards minors. The conclusion will be that the right to participation should be considered a broader one which cannot be equated with the right to express views. Nevertheless, the latter is the core and the basis for other related rights. Further, an overview is provided of the legal framework and practices that implement the child’s right to express views and participate in the decision-making process. Finally, traditional perceptions with regard to children and their rights and the specifics of Russian democracy will be explored, as well as the way that they influence the right of the child to express his/her views. It will be argued that Russia is not in favour of the child’s right to express views given the revival of ‘traditional values’ as reflected in the legislation and supported by state policies, and together with a clear rejection of the primacy of international standards in the field. Observance of the child’s right to express his / her views will not only support their formation as active citizens of their country (and of the regional and global community) free of traditional biases but will also promote further child participation.
49-61 769
Abstract
Russia and Greece have strong historical, cultural, social and financial bonds for centuries. In the aftermath of the 2nd World War, many people of Greek origin were forced to leave Greece for political reasons; they moved to the USSR, where they started a new life. Soon after the dissolution of the Soviet Union, and following supporting Greek legislation for their return to the homeland, a significant number of people decided to resettle in Greece. In order to cope with Greek bureaucracy regarding personal status matters, certain documents and court decisions of USSR (meanwhile Russian) origin had to be recognized in Greece. The present article provides a first glance at the bilateral Convention on judicial assistance in civil and criminal matters signed in 1981 between the Hellenic Republic and the ex-USSR. This сonvention applies since December 1995 in Greek – Russian civil and criminal matters. The article will focus on Ch. V of the Convention, dealing exclusively with the issue of recognition and enforcement of judgments and authentic instruments in civil matters. At the same time it serves as a survey of reported and unreported Greek case law on the matter.
62-79 823
Abstract

The European Court of Human Rights [hereinafter Eur. Ct. H.R.] renders declaratory judgments with which it determines that a violation of a right guaranteed under the European Convention for the Protection of Human Rights and Fundamental Freedoms [hereinafter ECHR] has occurred. A problem arises when the Eur. Ct. H.R. exceeds its remit and examines a questio facti or questio juris which falls outside the scope of the facts put forward by the parties. This usually takes place in cases in which applicants complain of the failure to enforce res judicata judicial decisions. Because of the excessive length of procedures before the Eur. Ct. H.R. it may occur that, during the period, a third person becomes vested with some property right in assets that is subject to execution by the Defendant State. In such types of cases it is not unusual for the Eur. Ct. H.R. to declare that i) the enforcement is either no longer possible, or ii) it would disproportionately interfere with the rights of third parties. This article considers the clash between the right to have a final judgment fully executed and the right to have vested rights protected. It demonstrates that the Eur. Ct. H.R. has a duty to examine, under all circumstances, whether there has been a violation of Art. 6, even if it had simultaneously determined a violation of Art. 1 of Protocol No. 1. One cannot find the ground in the ECHR’s protection system which would empower the Eur. Ct. H.R. to sacrifice the guaranteed right of an individual to have a final judgment fully executed for the benefit of any third party.


80-95 739
Abstract
This article focuses on recent reforms of the Italian Civil Procedure Code through which a new section 185-bis had been added, providing that the Judge, at the first hearing or until the termination of the evidence-taking phase of the proceedings, may suggest to the parties a settlement or conciliation proposal, when appropriate to the nature and the value of the dispute and the issues of prompt solution at law.
The author’s intent is, on the one hand, to identify the rationale of the new rule and, on the other hand, to emphasize that unfortunately the new rule does not reverse misfortunes of Italian civil justice, but rather gives rise to many difficulties of interpretation.With this purpose, this article first investigates the distinctive traits of the various attempts at conciliation contained in the Code of Civil Procedure, taking into consideration not only the current version of the rules but also the provisions which have followed one another over time. It follows a detailed examination of the elements of the proposal under sect. 185-bis, as to the timeframe, its discretional or mandatory nature, sanctions for the party’s unjustified refusal as well as the role of the Judge with respect to his or her decision-making function.

Comments

96-115 982
Abstract
While the Russian Federation represents a significant opportunity for growth, that opportunity is coupled with serious risks. As it relates to managing product distribution, Russian vertical restraint law remains significantly more restrictive than that of the U.S. and, since unless a company is fully integrated, it must manage its distribution system by way of vertical agreements, presents a large problem for businesses seeking to conduct business in Russia. While Russia has made significant steps in the right direction, the lack of consistent application of economic analysis to evaluation of vertical restraints leaves companies exposed. Further, the sometimes inconsistent application of the laws also makes it hard to predict how any particular vertical agreement would be evaluated. Neither American nor Russian antitrust laws establish a list of possible vertical restraints. Thus, there is no exhaustive guidance regarding how these restraints should be treated. U.S. antitrust laws, however, generally place all vertical restraints into one of two categories, intrabrand restraints and interbrand restraints. Intrabrand restraints are those that restrain the downstream firm’s freedom with regard to the resale of the product at issue (distribution restrictions). Interbrand restraints are those that restrict a downstream or upstream firm’s freedom to deal with competitors of the firm imposing the restraint (interbrand restrictions). It should be noted that Russian law does not make this distinction.
116-129 745
Abstract
This essay examines such aspects of corporate accountability as accounts and financial reporting, compliance to certain efficiency indicators and stakeholders’ interests including moral values, their roles for various groups of stakeholders. For these purposes author analyses the development of agency and stakeholders’ theories in regard to financial reporting, provides evidences of stakeholder accountability in case 
law and legislation are provide and identifies difficulties of stakeholder accountability. It is argued that there is no universal definition of efficiency as a type of accountability and it may be defined through risk management and internal control systems only. Morality is also an ambiguous category for corporate accountability originated rather from political science than jurisprudence and may be used only like upplementary remedy.That analysis allows justification of the absence of conflict between different definitions of accountability, inextricably links between them and their joint application as a guarantee of the achievement of accountability objectives.
130-140 969
Abstract

In its Markin Judgment of Dec. 6, 2013, the Constitutional Court of Russia was expected to determine whose opinions were legally superior – those of the European Court of Human Rights or those of the Constitutional Court itself. The fact that the Court purposely left this question open marks yet another milestone in the expansion of the pragmatic approach to the national / international dichotomy across Europe.

 

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