Since the recent financial crisis of 2008, credit rating agencies (CRAs) have been under scrutiny for their role in the proliferation of structured finance products. Whether their methodological tools and evaluations have been up to standard is in question. As is well-known, CRAs are multinational enterprises that operate on a global basis. Their evaluations may well hinder the stability of international markets. As a legal response to the many concerns raised about CRAs, different approaches have been applied to the use of credit ratings in the US and EU with many similarities. In this international scenario, the government of the Russian Federation also recently introduced a new regulation on CRAs, drafted on the lines of the European regulation. This short paper is targeted to inform the reader of certain aspects of the newly approved regulation in Russia and to examine – in a comparative way – whether the introduced rules match the expectations behind the initiatives of the Russian government.
This is a book review of Bill Bowring's Law, Rights and Ideology in Russia.
This paper explores business transactions in the context of the principle of legality. It will be argued that Article 168 of the Russian Civil Code, as a metarule, contains three types of rule: 1) rules dealing with the priority of special rules and exceptions (exclusive rules); 2) rules dealing with the interpretation of general, special and exclusive rules, as well as with the requirements of statutes or other legal acts violated by a transaction and established outside of Article 168 of the Civil Code; 3) rules dealing with the admissibility of special rules and exceptions, as well as with the conditions of admissibility of these rules. With regard to the first group of rules, the legislature and commercial courts consider Article 168 of the Civil Code a common base for other grounds in the Civil Code, and in certain other statutes, for declaring transactions invalid. According to the second group of rules, the subject-matter (object) of legal interpretation consists of two elements: а) the text of Article 168 of the Civil Code; and b) the texts of legal acts, described by the generic term “statute or other legal act.” Article 168 of the Civil Code provides instructions, not only for rules as objects of application of the article, but also for the methods of interpreting violated requirements. The rules of admissibility for special rules and exceptions, as well as the conditions of admissibility for these standards, are aimed at the numerous cases in which the legislature, in the Civil Code or in other legal acts, expressly establishes nullity (voidness), voidability and other legal consequences for illegal transactions. The paper also answers questions regarding the impact of recent amendments to the Russian Civil Code on the use, by commercial courts, of rules on business transaction invalidity.
The main focus of this paper is the right of the child to express the views, in particular understanding its essence and scope and perspectives of the realization of this right in Russia in the context of the legislation in force, cultural prerequisites and Russian model of democracy. With this in view I study the interconnection between the right to express the views (partially accepted in Russia) and the right to participate (denied to the child due to traditional attitude towards the minor). The conclusion is made that the right to participation should be considered as a broader one which can not be equated to the right to express views. The latter nevertheless is the core, the basis for the other related rights. Further I give an overview of the legal framework and practice of the implementation of the child’s right to express the views and participate in the decision making. Finally, I explore the traditional perceptions with regard to children and their rights and the specifics of Russian democracy, and how they influence right of the child to express the views. The revival of “traditional values” reflected in the legislation and supported by state policies, I argue, together with an open denial of the primacy of the international standards in the field makes it clear - Russia is not in favour of the child’s right to express views.
The right to strike is recognized in the Constitution and the Labor Code of the Russian Federation as a means to resolve collective labor disputes. However, in Russia labor protests come up for discussion much more frequently than strikes. In recent years the number of labor protests in Russia, including various forms of work stoppage, has increased significantly compared to previous years, but the number of legally constituted collective labor disputes and strikes has remained very low. The legislation on resolution of collective labor disputes and mounting strikes is quite restrictive in Russia, and its enforcement also encourages employees to seek alternative ways to settle collective labor conflicts. There is little empirical research on the judicial implementation of these norms and its influence on the enforcement of legislation. Therefore, this paper analyses the reasoning of courts in cases on the legality of strikes, their interpretations of the law, and the impact these decisions have on the enforcement of the legislation on resolution of collective labor disputes and strikes. Our conclusion is that the courts act as another restrictive influence on the resolution of collective labor disputes and the exercise of the right to strike in Russia.
Even though Russia’s new Code of Criminal Procedure of 2001 had from the very beginning contained the article titled ‘Preclusive Effects,’ it was not until a decision by the Constitutional Court of 2008 that the doctrine of issue preclusion was, in its proper sense, reinstated in Russian criminal law, barring facts definitively established in a civil trial from relitigation in criminal proceedings. Despite heavy criticism that came down on the Constitutional Court for what was seen by law enforcement agents as unwarranted judicial activism, the Russian Parliament soon amended the article in line with the interpretation offered by the Court. This, however, did not end the controversy as critics raised a valid point: an automatic transfer of facts from civil proceedings with a priori more lenient requirements of proof is likely to distort outcomes, harming defendants, the prosecution, and, ultimately, societal interests. This article will turn for apotential solution to common law, which has been able to avoid this problem by clearly distinguishing between different standards of proof applicable in civil v. criminal litigations. It will be shown, using the United States as an example, how courts can effectively use issue preclusion to pursue a number of legitimate objectives, such as consistency of judgments and judicial economy, with due account for the interests of parties in proceedings. At the same time, issue preclusion appears an inappropriate and ineffective means to combat arbitrariness of the judiciary – the end which Russia’s Constitutional Court and law makers arguably had in mind when introducing the doctrine into Russian law.
This article analyzes the current state of debates on minimum levels of creativity needed for works to be copyrightable, including dominant principles in Russian jurisprudence and judicial practice, principal trends, and contradictions and dysfunctions that arise in the course of implementation of various criteria of copyrightability.
An analysis of the judicial practice of recent years warrants the conclusion that standards of creativity as a criterion of copyrightability have dropped drastically. Today’s standards are similar to those of the former American sweat of the brow doctrine.
But, unlike foreign legal systems that set comparatively low standards of protectability, the Russian judiciary has not yet evolved mechanisms of compensation for risks of monopolization of public domain content.
First of all, there is no practice of granting exclusive rights to a work that is similar to an earlier work but has been created independently. Secondly, the practice of refusing protection to non-unique, standard, generally known, and generally available content is dwindling away. Thirdly, there is a trend to give a large scope of protection to works of low authorship.
As a result, exclusive rights are granted to standard or generally accessible content – content that must belong to the public domain, - which puts unjustified restrictions on the creative activities of other authors. Moreover, it makes their legal status unpredictable as it lays the basis for unintended but penalized copyright violations. This amounts to a classical case of overprotection.
In codifying intellectual property rights, Russian legislators have left it a moot point what standards of originality and creativity can be criteria of copyrightability.
Nevertheless, it is crucial for answering questions about where the bottom boundary of the copyrightability of a work lies, and, consequently, what products of intellectual work that has an insignificant creative component but is of high economic importance, e.g. databases, computer software, advertisement slogans or design work, are to be copyrightable.
Analyses of debates in legal literature and court rulings issued over the past few years warrant the conclusion that there is a trend to set looser standards of originality and creativity and grant copyright protection to works of low authorship.
This article addresses the problem of identifying criteria of copyrightability and non-copyrightability in the Russian legal system, modelling various types of demarcation criteria, and analyzing their strong and weak points. The article also describes the trend in Russian judicial practice to grant copyright protection to works of low authorship and goes into problems and contradictions that this entails. It compares principles evolved in Russian law with similar principles used abroad, mainly in Germany.
As of 2015 Armenia, Belarus, Kazakhstan, Russia and (since May 2015) Kyrgyzstan have entered into the Eurasian Economic Union (EAEU) with the ambitious goal of ultimately transforming it into a “Eurasian Union” with a deeper confederative structure in the future. Parallels between this regional integration project and the European Union integration process are emerging. But there are also marked differences between them. The article highlights those parallels and differences in order to assess the general prospects for harmonizing labor law among the member states and to clarify how much of the EU experience in the harmonization of labor law may be applicable to the Eurasian integration project. The completely different roots and ways to harmonize the national labor law systems within the EU and the EAEU are also discussed in the article. The authors claim that the approaches to harmonizing labor law in the two regions are mirror images of each other. While the EU project attempts to provide at least a partial common legal framework for certain separate aspects of legal regulation of labor among the very diverse national labor law systems, the EAEU currently refuses even to address the harmonization of national labor laws. However, the national labor law systems of EAEU member states are already much more homogenous than in the EU. Therefore, labor law harmonization in the EAEU may develop as a consequence of its economic integration and single market.
As far as correlation does not mean causation, even it found a high correlation between some legal rights and economical parameters, it doesn’t mean that the latter are caused by legal dimensions only. However, if strong correlations exist between some legal rights and some socioeconomic outcomes, this is a good argument for policy makers to improve situation with proper legal rights which highly correlate with their first priority, that of socioeconomic policy aims. It’s important to know the real impact of improving legal rights for society to avoid overestimation or underestimation of this impact. Also, regarding the increase in the amount of different international ratings of legal rights, the question which is more reliable should be raised (“competition of ratings”). The correlation analysis shows that “economic oriented” legal rights such as like property and intellectual property are relatively more correlated with GDP per capita. On the other hand, political rights and civil freedoms such as the right not to be tortured unlawfully detained are relatively more correlated with social progress as a more complex and general socio-economic outcome. At the same time there is no high correlation observed between legal rights and life expectancy.
Using the approach of the United Nations International Law Commission, the law of the Eurasian Economic Union and WTO law might be regarded as autonomous complexes of rules. However, in all current disputes the DSB treats the norms of EAEU law as measures adopted by a specific EAEU member, but not as international law within the meaning of the ILC. These disputes concern import tariffs, anti-dumping investigations, and technical regulation and reveal a number of specific features. First, the EAEU measures are attributable to every EAEU member. Second, the WTO members may try to challenge in the DSB the measures adopted by an EAEU member in its national legislation based on EAEU law that affect national legislation of that EAEU member, rather than EAEU law as such. Third, “forum shopping” may arise, for the same measure can be challenged under EAEU law in the EAEU Court and under WTO law in the DSB. Finally, to overcome uncertainty concerning WTO law in EAEU Court jurisprudence, it is necessary to clarify the approach of the EAEU Court. The authors conclude that this approach should provide for the Court’s right to interpret EAEU law relying on WTO law and DSB jurisprudence. Such interpretation should be made within the context and object of the EAEU Treaty. However, the autonomous EAEU legal order cannot be implemented until the Treaty on Functioning of the Customs Union within the Multilateral Trading System is applicable.
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.
Modern challenges for international law application in the former USSR countries are inextricably linked to the regional integration issues. Despite seeking closer rapprochement with the EU, Russia never dropped its ambitions as a spearhead of political, economic and legal integration within the post-Soviet area. Belarus actively participates in the post-Soviet integration projects while seeking improvements of EU-Belarus relations. However, Ukraine embarked upon a long and challenging path of deeper political and economic integration with the EU and aligning its legal system with the EU acquis. Against this backdrop, this article studies the constitutional dimension of three post-Soviet republic’s engagement in regional integration projects identifying the problematic issues in the application of international law.
The author describes the contents of the monograph on labour law of Russia. He drew attention to the important problems of the study: the freedom of labour, social partnership, the guarantee of work and rest, prohibition of discrimination at work, and many others. It encourages readers to get acquainted with the book.
The Faculty of Law of the University of Helsinki is committed to diversity in approaches to studying various legal systems in the context of comparative law. The annual conference on the Development of Russian Law was launched in 2008 by the initiative of the Faculty to further develop knowledge and critical thinking about Russian law during its period of transition and modernization. The conference takes place every year and it brings together legal practitioners and scholars from Russia, Finland and other countries to discuss pressing matters of Russian law, legal reforms and legal practice. In previous years, the conference’s themes included discussions of legal reforms, the justice system, the Russian legal profession, human rights, and civil and business law.
The article is an attempt to analyze the Russian school of law features and history of development over the last century, characterized by the priority of the positivist theory of law over natural law approach. In particular, the author examines the differences in interpretation of such concepts as "rule of law", "rule by law" and "Law-Bound State” by Russian and foreign lawyers and concludes that these concepts are mixed and misunderstood. Based on the interpretation differences, the author concludes that there is significant difference in mentality not only between Russian and foreign lawyers, but also between lawyers in Russia: law enforcers on the one hand and human rights activists, advocates and some of independent scientists – on the other – and, consequently, specific criteria for the specialist selection in competent state bodies exists.
As an example of the interpretation differences, the author analyzes in detail the decision of the Russian Federation Constitutional Court dated March 19, 2014 on the constitutionality of Treaty between the Russian Federation and the Republic of Crimea on the admission of the Republic of Crimea into the Russian Federation and the establishment of new subjects within the last. The author revealed at least eight violations of its own procedures and controversial law interpretations committed by the Constitutional Court.
The article is devoted to the contractual models designed to formalize the legal relationship between the clearing participants (parties to the original derivative transaction) and the central counterparty (“CCP”). The author deals with the legal concepts of novation, so-called “open offer” and assignment, which are commonly used in international practice. Taking into consideration some Russian legal peculiarities and comparative law experience, the author comes to the conclusion that the concept of assignment is best suited to the Russian legal framework.
The article examines the phenomenon of politicization of constitutional relations. In particular, three of its aspects are identified and investigated: the impact of social revolutions on the rule of law; the problem of lustration of state employees; and the deepening of the politicization of the judiciary. Social revolutions, including the Ukrainian 2013–2014 social revolution, are viewed as aconcept that can have adecisive influence on the reform of the state mechanism and, in many ways, determine its future destiny. The lustration procedure, which is considered in the context of transitional justice– ascientific discipline that studies the functioning of justice in transitional democracies, undergoes special research herein. The classification of lustration according to various criteria is given. The article also shows the practice of a number of states whose judicial systems fall under the concept of political justice. Ashocking conclusion is drawn that the percentage of acquittals in Nazi Germany for non-political crimes was higher than in modern Russia or Ukraine.
This paper deals with the question of if and to what extent power-conferring legal rules can be treated as coercive and whether the concept of coercive offers can help to substantiate the coer- civeness of power-conferring in law. In his recent book, The Force of Law, Frederick Schauer claims that power-conferring legal rules are coercive.1 There are several ways to interpret this claim. In this piece I would like to explore one route of interpretation of this interesting and contro- versial claim, i.e., whether one can use a highly controversial concept of "coercive offers" to sub- stantiate this claim. First, the very concept of coercive offers requires clarification. In fact, there are several distinct ways to interpret it and I explore them below. The second point is whether the coer- cive offers concept is applicable in the context of the power-conferring legal rules. Two influential theoretical models of coercive offers are analyzed and critically evaluated and their ramifications for the coerciveness of the power-conferring legal rules are demonstrated. In my view, the only pos- sible route to substantiate the coerciveness claim from the vantage point of coercive offers concept is through the distributive non-neutrality of law narrative.