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Russian Law Journal

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

Articles

9-62 2802
Abstract
This article compares (1) the qualification of jurors or lay assessors; (2) methods of listing candidates for lay adjudication; and (3) selection and empanelment of jurors and lay assessors for a particular case, in various post-Soviet countries and Western countries. Two key issues are examined. The article examines whether the legislation of post-Soviet countries in relation to the qualification, listing and empanelling of jurors and lay assessors is consistent with the standards applied in developed democracies. Simultaneously, the article explores what standards and rules of selection of lay adjudicators should be incorporated into the legislation of post-Soviet states in order to insure impartiality and independence of lay adjudicators. The article reveals a significant number of defects and gaps that allow executives and court personnel to manipulate the selection process and hamper the formation of impartial, independent and representative lay courts. An examination of the legislation in post-Soviet countries and of the empirical data collected in Russia lead to the conclusion that the mechanisms of the voir dire, peremptory challenges and challenges to entire juries should be reviewed and improved in order to provide reliable safeguards for the selection of impartial and independent lay adjudicators and prevent parties from excluding prospective lay adjudicators for discriminatory reasons.
63-74 2073
Abstract

The Law Commission of India in its 222nd report emphasized the need for Alternative Disputes Resolution (ADR) for the dispensation of justice, because the courts are inaccessible owing to various factors, e.g., poverty, social and political backwardness, illiteracy, ignorance, procedural formalities and inordinate delay in judgments. During the ancient period the disputes were resolved in an informal manner by neutral third persons or people’s court in villages and it continued till the middle of the 20th century. Unfortunately, after the Independence of India in 1947, this system was dissuaded and the government permitted to continue the adversarial system of justice. In 1980, a committee was set up. It recommended Lok Adalats (People’s Courts). In 1987, the Legal Services Authorities Act was enacted. This Act obligates the states to provide free legal aid to poor persons. Besides this, the Act provides for the establishment of permanent Lok Adalats.

This is one of the important modes of ADR. Lok Adalats have been established in all the districts of the country. They bring conciliatory settlement in complicated cases arising out of matrimonial, landlord-tenants, property, insurance and commercial disputes. There are four methods of ADR, viz., negotiation, mediation, conciliation and arbitration. Mediation and arbitration are widely preferred. They are alternatives to litigation. The Arbitration Act for the first time was enacted in 1889 and it was subsequently amended many times. On the objections raised by the Supreme Court of India and also on the adoption of UNCITRAL Model Law on International Commercial Arbitration, in 1996 Arbitration and Conciliation Act was enacted. This law is almost the same as is almost in all the countries.

Further, the Government of India established International Centre for Alternative Disputes Resolution (CADR) with the objectives of promotion, propagation, and popularizing the settlement of domestic and international disputes by different modes of ADR.

75-100 2429
Abstract
In the last decade ethnic and religious contradictions became a matter of growing concern and the issue of preserving the balance between the rights and interests of different groups of people comes to the forefront. There are many examples when freedom of expression is in opposition to freedom of religion. Two recent cases, the cartoons in the Danish newspaper and the recent parody of the Prophet Mohammed, show the importance of this issue. However, the notion of manifestation of religious beliefs, which in the paper is considered primary as a part of freedom of expression, is also very problematic. The paper considers models of coexistence of both freedoms adopted at the international level, in Europe and in Russia. The first chapter considers general approaches towards balancing of fundamental rights, including approaches of the Human Rights Committee and the European Court. The second chapter concentrates on the regulation of both freedoms in Russia, relevant international and domestic cases.

Comments

101-113 2079
Abstract
The role of WTO in balancing of fair and transparent terms of trade with non-trade values has been widely discussed by politicians, academics, human rights organizations and environmental groups. Indeed, only one of more than twenty lawsuits justifying the application of measures under Art. XX has ended in a victory. The essay examines to what extent social values can be protected under law of WTO. For these purposes the main characteristics of GATT 1994, such as limitations and conditions for exceptions, aproper balance of provisions of Art. XX and their independence from other exceptions in GATT 1994 are considered as well scope of its application for such non-trade values as public morals; human, animal or plant life or health; exhaustible natural resources and national legislation. The most indicative cases of the WTO dispute settlement system are analysed to extract the practical value of exceptions under Art. XX. Emphasis on human rights and compliance with the rules of international environmental law is determined by their particular importance for developing states which are not sufficiently influential in the global economy. The author argues that, despite very limited list of exceptions, provisions of Art. XX GATT 1994 are consistent with the goals of the WTO and allow to provide the effective protection for common human and social values.
114-144 1972
Abstract
This article aims to examine the extent to which Russian investigations into economic and financial crimes are influenced by such factors as systemic problems with Russian gatekeepers, the absence of a formal corporate whistle-blowing mechanism and the continuous abuse of the law by the Russian business community. The traditional critical approach to the quality and effectiveness of Russian economic and financial investigations does not produce positive results and needs to be reformulated by considering the opinions of entrepreneurs. The author considers that forcing Russian entrepreneurs, regardless of the size of their business, to comply with Russian laws and regulations may be a more efficient way to develop the business environment than attempting to gradually improve the Russian judicial system. It is also hardly possible to expect the Russian investigatory bodies to investigate what are effectively complex economic and financial crimes in the almost complete absence of a developed whistle-blowing culture. Such a culture has greatly contributed to the success of widely-publicised corporate and financial investigations in the United States and Europe. The poor development of the culture of Russian gatekeepers and the corresponding regulatory environment is one more significant factor that permanently undermines the effectiveness of economic investigations and damages the investment climate.
145-156 1223
Abstract

The development of alternative dispute resolution procedures raises a number of new problems and questions for jurisprudence and legal practice. Many of these are closely related to the implementation of mediation procedures. Significant attention has been paid in the legal literature to the need for mediators’ legal education. Nowadays a professional lawyer usually performs the functions of a mediator. Nevertheless, in some countries the competence of mediators can be limited. In fact, such persons may be prohibited from providing any legal assistance to the parties. A direct prohibition of this kind exists in Russian legislation. To what degree is this prohibition realistic and reasonable? Different countries enjoy different approaches to the possibility of providing disputing parties with a mediator’s legal assistance in addressing issues requiring legal advice or in the drafting of legal documents. Different approaches to this issue have appeared for various reasons. The absence of consensus is caused by a contradiction between the principle of mediator neutrality in the conflict resolution process and the goals of dispute settlement in which a legally competent intermediary is involved. To ensure the effectiveness of the mediation process, legislators should seek out more flexible ways of regulating procedure. Mandatory regulation itself contradicts the spirit of ‘semi-formal’ alternative (extrajudicial) methods for conflict resolution. As such, the presence of direct prohibitions or severe restrictions may not only become challenging in the performance of law but such peremptory norms can also make mediation unattractive and ineffective for some particular types of dispute, such as labor disputes. The principle of preserving a mediator’s neutrality is possible if exercised within the framework of a balanced approach to reasonable limits and discretionary rules for the provision of certain types of legal assistance to disputing parties.
The present article aims to consider the possibilities and limitations on a mediator’s ability to provide particular types of legal assistance where the guarantee of non-discrimination between disputing parties’ interests is presupposed.

Book Review Notes

157-167 1075
Abstract
Reviewed book: Civil Litigation in China and Europe: Essays on the Role of the Judge and the Parties (= 31 Ius Gentium: Comparative Perspectives on Law and Justice) (C.H. (Remco) van Rhee & Fu Yulin, eds.) (Springer 2014).

Conferences Review Notes



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