Спор Россия-Железнодорожное Оборудование и другие споры об оспаривании мер Евразийского экономического союза в Органе по разрешению споров ВТО
The norms of Eurasian Economic Union law and the norms of WTO law
mostly govern international trade relations. Therefore, the spheres of international
relations governed by WTO law and the law of the Eurasian Economic
Union often overlap. Moreover, the Treaty on the Eurasian Economic
Union contains references to WTO agreements. This paper is aimed at determining
specific characteristics of challenging measures adopted by the Eurasian
Economic Union (EAEU) in the WTO Dispute Settlement Body (DSB).
The analysis is based on four existing disputes where complainants put forward
an issue connected with the inconsistency of EAEU law or its interpretation
and its application to WTO obligations. Russia is the respondent in
three out of four disputes mentioned above, and Kazakhstan is the respondent
in one of the four disputes. The authors conclude that WTO law and
EAEU law should be interpreted and applied on the basis of the principle of
harmonization. However, the norms of EAEU law are not considered by the
DSB as rules of law. Rather, they are considered as measures applied by
EAEU member-states, while taking into account the fact that the EAEU is not
a member of the WTO. Moreover, all the actions of the EAEU and its bodies
are attributable to every EAEU member-state. The authors also conclude
that not only the content of EAEU law norms as such, but also the method of
their interpretation and application is of great importance in the context of
challenging measures adopted by the EAEU in the DSB. The paper contains
more detailed analysis of the Panel Report on Russia – Railway equipment.
The other four disputes are briefly covered with a special focus on challenging
measures adopted by the EAEU in the DSB. The paper makes several
concluding remarks in respect to the specific characteristics of challenging
such measures in the DSB.
The chapter opens with a brief overview of the provisions of the Treaty on the Eurasian Economic Union (EAEU) establishing the general principles and rules of competition. It further presents a detailed analysis of the main features and characteristics of the EAEU competition law. Among the issues discussed in this article is the direct effect and direct applicability of the general rules of competition, the relation between EAEU and national competition law provisions as well as the division of competence between the Eurasian Economic Commission and national competition authorities. The relevant features and provisions of EAEU competition law, such as the notion of ‘coordination of economic activity’ are analysed through the prism of the EAEU Court’s advisory opinions. The authors also use a comparative approach drawing parallels and underlining the differences with EU law and the case law of the Court of Justice of the European Union (CJEU). Finally, the authors also examine the mechanisms of judicial protection available under EAEU law to economic entities in the field of competition law.
Introduction: the article deals with judicial rulemaking of international judicial institutions. Materials and Methods: the authors made a theoretical and empirical analysis of the main sources of international and European law, the court practice of international judicial institutions, the works of domestic and foreign scholars, analytical documents of international organizations. Results: the article proves that judicial rule- making is well-established international practice which in some cases is especially needed. Judicial rule-making is perceived by the doc- trine as a natural, necessary and legitimate legal phenomenon. In practice two forms of judicial rule-making have developed - judicial rule- making may involve interpretation of both the content of a rule of law and procedural aspects. However, international judicial institutions should strive to refrain from judicial activism and judicial rule-making. It must be borne in mind that the activities of international courts must rely on the support of national courts and the expert community. Discussion and Conclusions: according to the currently prevailing views, which made a decisive impact on the evolution of theory of state and law, judicial rule-making is inseparable from the daily implementation of judicial functions. Both the society and the legislator are in urgent need for it regardless of whether they admit it or not or even act against it. It is necessary in all cases where the legislator does not keep up with the progress of the changes caused by the rapid evolution of society and new opportunities of scientific and technological progress. It is often beneficial for the legislator that the courts should have tested various approaches and have developed a well-established practice, and the application of this practice should have suggested the most rational decisions. Judicial rulemaking developed especially widely in the judiciary of international/regional integration associations and within the framework of international mechanisms with elements of supranational coercion, first of all, in the practice of the Court of Justice of the European Union and the European court of human rights. The whole system of EU law has gained the most features and basic characteristics associated with it thanks to the Luxembourg Court. These features and characteristics include positioning EU law as a system of law that differs from international and domestic law, the supremacy and direct effect, the effective jurisdictional protection, strict compliance with the requirements of subsidiarity and proportionality, etc. In turn the Strasbourg Court has done a lot in order to turn positive and procedural rules of the European Convention on human rights into “a living and developing organism.” However, periods of judicial activism have always been nothing more than a reaction to a request by the states or the need for solving tasks. The last word always belongs to major players who has always been society and legislators. When it is necessary they easily impose certain limitations on judicial rulemaking. It has already been made in respect of the Court of the Eurasian Economic Union in the legal order. However, the Minsk Court faces difficult tasks concerning the application of the EAEU law and on its formation. There- fore, it is important that the Minsk Court should determine as quickly as possible the precedential nature of its decisions, the possibility of using other sources of law, along with the EAEU Treaty and its secondary law, and how to tie up the national legal system of the member states in a common legal space.
This article analyses the issue of compatibility of the Eurasian Economic Union law and WTO agreements, where the author points out two sub issues. How does EAEU law and WTO agreements relate to each other? How is EAEU law treated by DSB of WTO? Answering the first question basing on the analysis of the Treaty on EAEU, Report of the Working Party on the Accession of the Russian Federation to the WTO and case law of the EurAsEC Court the author comes to the conclusion that rules of the WTO agreements should be treated as lex superior, and law of the EAEU as legi inferiori. At the same time rules of the EAEU law are lex specialis, and rules of WTO agreements are lex generalis. However analysis of the provisions of the Treaty on EAEU and case law of the EAEU Court shows that WTO agreements couldn’t be regarded as one of the sources of law applicable by the EAEU Court in dispute settlement and the issue of applicability of the WTO agreements by the EAEU Court stays open. Answering the second question author comes to the conclusion that norms of the EAEU law are regarded by all the applicants as measures taken only by one of the EUEU member-states, namely the Russian Federation. Such situation may cause difficulties in the process of executing DSB recommendations taking into account that EAEU norms are adopted by all EAEU member-states and EAEU as such is not the member of WTO.
Continuing the discussion of the first part on current Eurasian integration, in their chapter "The Court of the Eurasian Economic Union: Not Just for Government- to-Government Dispute Settlement" Ekaterina Diyachenko and Kirill Entin posit that, since its establishment in 2015, the EAEU Court has mainly been seen as a mechanism for resolving trade disputes between governments or for interpreting EAEU law in abstracto via its advisory opinions. As a result, the EAEU Court's potential has been largely underutilized by economic entities despite a liberal locus standi and the possibility to challenge the validity of both individual acts (for instance, in the field of EAEU competition law) and regulatory acts of general application adopted by the Eurasian Economic Commission (EEC), including antidumping measures or even technical regulations.
The present chapter aims to discuss how the EAEU Court may help private actors protect their rights and legitimate interests under EAEU law. It examines the different types of actions available to economic entities, the admissibility criteria and the consequences of the Court’s judgements. As the analysis of the EAEU Court’s case-law shows, the action for failure to act is of particular importance as it may be used by private entities as an indirect mechanism to make Member States comply with their obligations under EAEU law.
Finally, the authors also address the issue of the sources of law that private actors could rely upon, including the ambiguous status of the WTO law in the EAEU legal order.
This article examines the first years of the Eurasian Economic Union (EAEU) through the prism of the Eurasian Economic Union Court’s jurisprudence and draws parallels with the case law of the Court of Justice of the European Union. The EAEU Court has taken first steps in establishing an autonomous legal order, but also in linking it with international law. It has interpreted the relevant law to create a system of legal remedies and started in the interpretive construction of a common market. We conclude that some differences to EU law are due to the institutional context. At the same time, the EAEU Court has deliberately taken some decisions to establish its own balance between autonomy and openness of the legal order it is called to interpret and simultaneously create.
The article is devoted to a particular form of freedom of assembly — the right to counter-demonstrate. The author underlines the value of this right as an element of democratic society, but also acknowledges the risk of violent actions among participants of opposing demonstrations. Due to this risk, the government may adopt adequate measures restricting the right to counter-demonstrate, certain types of which are analyzed in this paper.
Development of standards of international controllability is reviewed in the article. Institutional approach is applied to development of international legal regime of Energy Charter. Definition of controllability is connected to development of international standards of dispute settlement, which are described in the article in detail. In connection with controllability, Russian interest, defense of investment in European Union and ecological investment encouragement, is reviewed in the article.
мировое управление и управляемость, Мировая экономика, международное экономическое право, энергетическая хартия, International control and controllability, International economics, international economic law, Energy Charter
международное частное право; недвижимость; ; школа бартолистов; бартолисты; теория статутов; статуарная теория/