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.
The paper investigates enforcement of criminal sanctions in anti-bid rigging policy in Russia. Although cartels were criminalized in 1997, parties of numerous anticompetitive agreements on tenders are punished by corporate or individual fines, or disqualified. Statistics on sentences for bid rigging are highly controversial although legislative conditions for efficient criminalization are presented not only by criminal norms but also by leniency programmes in administrative and criminal proceedings which were designed to contribute to anticartel enforcement.
The aim of this research is to determine factors that have caused the very rare use of criminal sanctions for cartel enforcement with the focus on bid rigging. For the purpose of the research, the paper outlines the regulation of tendering in Russia and the system of sanctions for bid rigging, including leniency. Case analysis of the first custodial sentence for anticompetitive agreement on a public tender highlights specific features resulting in successful prosecution. Since this is one of the first attempts to assess criminalization of bid rigging in Russia, original empirical data including interviews with officials from federal competition authorities and regional representatives constitute the basis of the study.
Findings of the research determine the influence of social norms on the enforcement as the main challenge for criminalization of bid rigging which is weighed down by the insufficient political influence of competition authorities. The paper’s findings may be of interest for assessing enforcement in other jurisdictions experiencing the same difficulties.
The role of WTO in balancing of fair and transparent terms of trade with non-trade values has been widely discussed by politicians, academics, human rights organizations and environmental groups. Indeed, only one of more than twenty lawsuits justifying the application of measures under Art. XX has ended in a victory. The essay examines to what extent social values can be protected under law of WTO. For these purposes the main characteristics of GATT 1994, such as limitations and conditions for exceptions, aproper balance of provisions of Art. XX and their independence from other exceptions in GATT 1994 are considered as well scope of its application for such non-trade values as public morals; human, animal or plant life or health; exhaustible natural resources and national legislation. The most indicative cases of the WTO dispute settlement system are analysed to extract the practical value of exceptions under Art. XX. Emphasis on human rights and compliance with the rules of international environmental law is determined by their particular importance for developing states which are not sufficiently influential in the global economy. The author argues that, despite very limited list of exceptions, provisions of Art. XX GATT 1994 are consistent with the goals of the WTO and allow to provide the effective protection for common human and social values.
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.
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 comparative study focuses on corruption in commercial organisations, which has received considerable attention in both Russia and Germany in recent years. In both countries anti-corruption law has been harmonised by several international conventions to reflect the growing importance of world trade and increasing globalisation. The authors analyse the current criminal offences and the criminological characteristics in both countries. Whereas in Russia special criminal provisions were created under Chapter 23 (Articles 201, 202, 203, 204, 204.1 and 204.2 of the Criminal Code of the Russian Federation), in Germany the relevant corrupt conduct is covered by the traditional general criminal offence of embezzlement (§ 266 of the German Criminal Code (StGB)) and by newly created special corruption offences (§§ 299, 300 and 301 StGB). The authors show that in each of the two countries, Russia and Germany, corruption in commercial organisations is now considered a grave form of corruption, so that the international conventions are taken into account to some extent. In Germany, however, not only are the sanctions foreseen for corruption in commercial organisations considerably lower than those for corruption in the public sector, but the offences are only prosecuted on criminal complaint. In the practice of German criminal prosecution, these types of bribery offences have therefore so far had little significance. Nevertheless, a high number of undetected cases and large economic losses can be expected. Furthermore, the comparative legal study shows that there are not only considerable differences in the design of the criminal provisions as well as in the legal reality, but that there are also several common elements in Russia and Germany.
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.
Democratic constitutional order is occasionally threatened by anti-democratic forces, and thus, requires special protection. The concept of militant democracy has been developed to provide adequate defensive mechanisms. In this article, we discuss positive aspects of their application, but also highlight the risks of abusing these defensive mechanisms. Essentially, the problems are associated with narrowing the political space and favouring the dominant political force. Fragile democracies, including Russia, are particularly vulnerable to such exposure. A targeted study of Russian legislation and the caselaw of the Constitutional Court of the Russian Federation has allowed us to identify the prerequisites for effective implementation of the doctrine of self-defence in line with the principles of constitutionalism.
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.