When judges adjudicate the cases in the light of national constitutions or the ECHR, they often deal with the conflict of individual rights and have to make the ‘balancing exercise’ to justify their choice in favour of one of them. Different methodologies can be applied to investigate the problem why judges make different choices when they counter-balance seemingly the same rights under similar provisions. In the present article the attempt is made to apply the methodology of new rhetoric, elaborated by Perelman and Olbrechts-tyteca. Legal positivism cannot provide the answer, how the choice is made if the conflicting rights belong to the same level in hierarchy of legal sources. This issue lies rather in the realm of rhetoric than in the domain of legal theory, because the ‘preferable’, ‘choice’ and ‘adherence’ are rather philosophical than legal terms and relate to values and hierarchies. Arguments in law, according to Perelman, are rhetorical by nature and decision-making in law is based on rhetorical demonstration, not on the principles of formal logic. The choice between two lines of arguments is always a value-choice, and can be grounded in public opinion as well as in moral choices of the judges. The conflicting values can be considered as a rhetorical antinomy, which should be resolved. The antinomy is defined as mutual incompatibility of two laws, provisions or legal arguments, which can be equally justified as valid and applicable. From the rhetoric point of view, different outcomes to which the judges of national or international courts arrive in the process of applying the same provisions to the same facts, can be to a large extent explained by the fact, that though they share the common values, they build them differently into hierarchies and assign them different weight in their value-systems. The analysis of two decisions – in Konstantin Markin Case and Nikolay Alekseyev Case, which provoked academic debate among Russian constitutional lawyers and judges - justifies this thesis. It also enables to identify the ways in which rhetorical antinomies in human rights cases are being resolved by the Russian Constitutional Court and the ECtHR.
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/