Russian Law Journal

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Vol 8, No 3 (2020)
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4-31 904

The global financial crisis strengthened the role of international financial standards in globacommerciaarchitecturanoutlinethspecializatioostandard-settingbodies. These standards may be transposed in international agreements or be implemented in the legal order of states and state communities (such as the European Union (EU) and the Eurasian Economic Union (EAEU)). The development of standard-setting bodies and the evolving process of soft law rulemaking have led to the establishment of a specific mechanism, which may be called “the soft law mechanism.” The authors argue that this mechanism includes several components: normative (IFS), institutional (SSBs), controlling (peer reviews), and assuring (implementing incentives) components. However, despite the rising influence of international financial standards, a strict boundary between soft and hard law should be established. This article outlines these boundaries and justifies the use of the term soft law. In post-crisis global financial regulation, the role of soft law has increased not only in the financial market but also in the field of monetary regulation. Along with the traditional mechanisms of financial support from the International Monetary Fund (IMF), states may use alternative bilateral and regional mechanisms. At the level of integration associations, soft law manifests in different ways. In the EU, despite the expansion of its field of action, soft law is purely an auxiliary element of the Union’s legal system. In EAEU law, the mechanism of soft-law regulation can beconsidered promising, given the peculiarities of the integration model.


32-63 1883

At present, NATO is facing a severe crisis and has showed symptoms of disintegration and polarization of the relations between its Member States. At the last head meeting of the organization’s Council, in December 2019, in London, French President Emmanuel Macron qualied NATO’s current crisis as a “brain death.” From a legal perspective, the main cause of this alleged “brain death” is the organization’s special status under international law. In fact, NATO has constantly violated its constitutive treaty and many other international conventional and customary norms, including ius cogens rules. However, the organization has never assumed any negative legal consequences for its internationally unlawful behavior. This situation has reduced the legitimacy of the institution and has corroded, from the inside and the outside, states’ will to cooperate with the fullment of its objectives. Thus, NATO could only surmount its current crisis and continue to play a crucial role as a guardian of the international peace and security and as a promoter of the rule of law at the global level, if it accepts to submit its political and military power to international law.

64-83 1045

National reification takes place when the state defines itself as a tool to protect the interests of a particular ethnic group and tries to create a homogeneous society unified on the basis of linguistic, cultural, historical, ideological and religious principles. This inevitably leads to the monopolization of politics (common good) by the majority’s culture, and at the same time, to the marginalization and exclusion of the minority’s culture and its obliteration in the future. This marginalization does not imply a discrimination because the minority is not denied civil rights, but its political activity from now on implies an engagement with the majority’s culture. This effect appears in waves. The first wave preceded World War II; the second wave started in the nineties and affected the new post-Soviet and Eastern European countries. National reification is closely related to the principle of democracy; since the minority retains this obviously ineffective right to participate, all other forms of protest become inaccessible to it. National reification is an objective and general tendency of the modern day. It fills the legitimacy deficit and not only “launches” a new state, but also generates internal threats that justify its existence. As a result, from the very first days, a new state is being created as a totalitarian and emergency one that can use extreme, but justified and legitimate measures. The principle of self-determination cannot be used against the process of national reification as it implies an obligation of conduct and has a narrow scope. Moreover, its beneficiaries, by not being states, are deprived of the procedural tools needed to protect their rights. It could be interpreted differently: we should recognize the right to secession for the nations faced with the choice of obeying or losing identity. This interpretation, however, is an unrealizable utopia. Human rights are completely helpless in the face of national reification or, rather, are indifferent to it. The reason is a fundamental denial of the collective principle. Therefore, international law does not solve the problem of national reification. On the contrary, all the structures of the modern order (statehood, legitimacy, democracy, human rights, international law, etc.) generate this problem. The solution of the problem is vitally important and, at the same time, extremely difficult. It cannot be cosmetic, but should affect the very foundations of international law.

84-115 1319

The article is devoted to the comparative analysis of asymmetric jurisdiction clauses in international procedural law. The paper focuses, firstly, on a detailed analysis of the national and international approaches to the nature and interpretation of asymmetric jurisdiction clauses within international civil procedure, and, secondly, on the rules on interpretation, validity and enforcement of such clauses under different jurisdictions and private international law in general. After examining the accumulated case law and theoretical material, particular attention is paid to the issue that currently there is a number of different grounds for recognition of asymmetric jurisdiction clauses as valid. Although Russian courts tend to invalidate such clauses, the issue has not been unambiguously resolved and requires reconsideration of the established approaches in light of the recent trends on international level. Thus, particular attention is paid to the highly problematic and contradictory aspects of unilateral dispute resolution provisions under the general principles of law, including autonomy, mutuality and equality of the parties. The article proposes to reconsider the most typical arguments for invalidating such clauses, both in terms of substantive and procedural principles. Analysis of these issues is of key theoretical and practical importance for the effective evolution of modern arbitration and litigation practices not only in Russia but all over the world.


116-140 1152

The article is devoted to two major issues: the substantive nature of settlement agreement, and legal remedies available for a creditor under compromise which interest is not satisfied voluntarily. Both issues are covered from comparative perspective employing Russian and the United States statutes, case law and doctrine. First, the paper demonstrates that, while Russian doctrines has evolved a sui generis approach to substantial nature of settlement agreement, United States tend to consider it as special contractual type with consideration granted specifically for termination of a legal dispute. Second, the article analyzes scope of res judicata effect invoked in course of Russian and U.S.-governed settlement, as well as common points and differences in granting creditors with relief in forms of specific performance and recovery of damages. Finally, the paper considers problem of rescission as remedy for material breach of compromise. Author comes to conclusion on desirability of employing this type of claim into Russian legislation.

141-161 1191

Law is a cultural phenomenon of society. An analysis of the evolutionary process is key to understanding the positive principles and categories of legal thinking. Legal mechanisms created in unique circumstances become contradictory elements for the existing judicial practice of foreign legal systems. In accordance with modern reality and the tendencies of contemporary society, the problems of globalization determine the necessity of the analysis, which will be to consider whether it is possible to find the most effective adoption mechanisms for legal rules and practice through a process of harmonization. In the framework of current research, we have tried to answer the questions arising in relation to new tendencies in civil procedure through the prism of comparative research. The majority of adaptation mechanisms are formulated by unique legal experience in a distinct system. The influence of moral and cultural traditions, and the economic and political individuality of each society shape the outcome that allows new instruments to work in legal and procedural systems. This paper’s focus is methods of legal harmonization and adaptation of procedural law on the level of transnational communities. To provide a picture as complete as possible, we give a description of modern tendencies of social integration, the current strategy of legal transplant and a comparison of methods of harmonization in the territory of post-Soviet Union countries and in Europe.

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