Bosman’s Second Life? The Eurasian Economic Union Court and the Free Movement of Professional Athletes
The present article examines a recent advisory opinion handed down by the Eurasian Economic Union Court. In the remarkably bold decision, the Court continued to push for the construction of a veritable EAEU internal market. It managed, within one advisory opinion, to further the coherence of its internal market law reasoning, expand on the principles of direct effect and primacy as well as the horizontal effect of fundamental freedoms in EAEU law, provide important definitions in EAEU law, strengthen the authority of the Commission and its decisions and emphasize the duty of loyal cooperation of Member States for the full effectiveness and successful implementation of EAEU law. As only criticism, one may deplore the EAEU Court’s lack of effort to start building a coherent jurisprudence by means of referring to its own case 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.
The article develops a model of rational judicial decision making for the European Court of Justice (ECJ). The model suggests that judges may strategically incentivise litigants to bring particular cases to the court in order to promote their preferred issues to the agenda, and to control the docket. This so called strategic approach was developed primarily in research on the US Supreme Court and does not travel too well to other cases. Author finds a way to test its findings on an organizationally completely different entity of the European Court of Justice. To do so he narrows the research to ECJ case law on restrictions to free movement of goods within the EU, gathers some data on the number of cases decided by the ECJ annually, and checks it against the development of the case law and the substance of court rulings. Author finds that the ECJ succeeds at manipulating the case supply by changing the litigants' perception of their chances to win, and suggests that further research is conducted into the other areas of EU case law to corroborate this finding.
This book explores the exportation and application of European Union legislation beyond EU borders. It clarifies the means and instruments of the voluntary application of the EU’s norms by third countries and analyses in detail the process of legislative approximation between the EU and its East European neighbours. It also assesses the extent to which the EU is successful in promoting its legal standards abroad.
The first part of the book addresses the EU’s mechanisms and instruments promoting the export of its own laws and practices to other countries. Key issues include the post-Lisbon constitutional basis for the EU’s engagement with its Eastern neighbours (Art. 8 TEU); the different methods of acquis export and the impact of a new generation of Association Agreements providing for the establishment of Deep and Comprehensive Free Trade Areas (DCFTAs) and, ultimately, a Neighbourhood Economic Community (NEC) between the EU and its Eastern partners.
The second part of the book includes substantive country reports that analyse the process of legislative approximation and application of EU law in the Eastern Partnership countries and Russia, authored by leading academics from the countries concerned. While currently these countries are not working towards full EU membership, the EU encourages them to approximate and converge their legislation with the EU acquis. The book also offers a unique picture of current practice of the application of EU law by judiciaries in the countries of the Eastern Partnership and Russia.
The book concludes with reflections on the multi-faceted character of legislative approximation and the challenges surrounding the application of EU law in the EU’s Eastern neighbourhood. The conclusions reached are highly informative as to the effectiveness of present and future EU external regional policies aimed at the promotion of EU common values and EU legislation into the legal orders of third countries.
The rapid development of technology leads to the deepening of globalization processes, in particular the extensive growth of e-commerce, which is becoming increasingly international in nature. The Internet provides the opportunity to remotely purchase items, not represented in the local market, which leads to the development of cross-border retail trade. From a legal point of view, one of the main problems of this phenomenon is to protect consumers’ rights in cross-border aspect. Private international law provides consumers with protection of three types: procedural, conflict of laws and substantive. Of paramount importance is the question of the international jurisdiction: the court of which country is competent to settle disputes arising from cross-border consumer contract? The special status of the consumer as an economically weaker party does not allow being limited to the general rules of jurisdiction. EU law, as the legislations of many countries in other regions of the world, contains specific procedural conflict rules that are based on certain principles establish the jurisdiction of the court of a State to hear disputes from consumer contracts. In Russia, such a regulation is missing. Thus, the Russian system of consumer protection in cross-border aspect is deprived of an essential element. For the purpose of making recommendations on improving Russian private international law, the paper discusses the content of particular articles of the Regulations of Brussels I — a fundamental act of the EU in the field of the regulation of international jurisdiction, as well as doctrinal positions of foreign scientists. The article concludes on the need to limit the autonomy of the parties in determining the jurisdiction of disputes involving contracts with consumers. The basis of the solution of procedural conflict question may be, as well as in European law, the criterion for targeted activities that solves a number of issues. At the same time, this criterion gives rise to new theoretical and practical problems that have not yet had any solution in the doctrine and legislation — the definition of directed activity per se, as well as the scope of business or professional activities that we need to know to determine the status of the consumer.
The Yearbook previously known as the Uppsala Yearbook of East European Law. is now published in a second volume with a broadened perspective. As the title, The Uppsala Yearbook of Eurasian Studies indicates the Yearbook now also covers other disciplines than law, in particular political science and economics. Given recent developments in the Eurasian region this enlarged focus is increasingly relevant and important.
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/