DOI: 10.7256/2454-0633.2013.3.9479

Abstract:

DOI: 10.7256/2454-0633.2013.3.63241

Abstract: The goal of this article is to define international legal contents of the proprietary right of peoples and to find mechanisms for enhanced fairness and efficiency of the relevant legal institutions. These goals may be achieved thanks to critical and comparative analysis of treaty, declaration and precedent legal bases, as well as the doctrines. The analysis shows that the issue of whether public property belongs to states or to peoples has no international legal resolution standard. It is stated that international law recognizes the possibility for the proprietary rights of the peoples, as collective public rights, having both public and private law implementation mechanisms. However, it does not provide the criteria for distinguishing state (and other public) property from the property of the people. Understanding the violations of the natural rights of nations by making all public resources belong to the state, the law-makers search for various compromises, and most of such compromises are not practically proven to be efficient. The issue of the right of the people to property becomes especially topical, when it concerns non-state peoples, aiming to implement their collective rights within existing states. For the nation-states the problem may be found in the need to distinguish proprietary rights and obligations of peoples and of the states, including international ones. It is noted that implementation of the right of the people to own, use and dispose of such property should be implemented by it directly, and the public government is only empowered to form the mechanisms for such implementation, but not to gain profit from it. The said model applies to both the nation states, and the peoples living in the multinational states, including indigenous peoples and the peoples fighting for their self-determination. At the same time the property of the nation-forming people and other peoples living in the same state should be fairly distinguished.

Keywords: rights of peoples, proprietary right, property of the peoples, indigenous peoples, non-state peoples, right to own, land rights, natural resources, collective rights, human rights.

DOI: 10.7256/2454-0633.2013.3.9048

Abstract:

DOI: 10.7256/2454-0633.2013.3.63242

Abstract: The article is devoted to the analysis of the new international anti-corruption institutions – the cross-debarment regime on implementation of sanctions within the projects supported by the Multilateral Development Banks. The author shows that the basis for this institution was formed by the sanction regimes formed in each particular MDB. It is established that the formation of a unified inter-bank sanctions regime is not possible for a number of legal, social and economic reasons. That is why this institution is so valuable. For the first time in the Russian international legal science the author provides a detailed analysis of the Treaties of 2006 and 2010, which became the basis for the formation and development of this institution. Much space is devoted to the implementation of these treaties, which on one hand lead to harmonization of the approaches towards fighting corruption, and on the other hand allowed to form multilateral barriers against the globalized corruption matters within the projects globally implemented and supported by the MDB. The article involves materials from the legal practice of the MDB. In addition to the Treaties, it includes analysis of the activities of the Task Force of the MDB against corruption, which became an institutional basis for the cooperation among the bans. In addition the author provides the grounds for the leading and coordinating role of the World Bank in these processes.

Keywords: corruption, multilateral development banks, globalization, sanctions regime, fraud, good-faith legal practice, the World Bank, development support, project funding, international cooperation.

DOI: 10.7256/2454-0633.2013.3.9706

Abstract:

DOI: 10.7256/2454-0633.2013.3.63243

Abstract: The right of a state to expropriate foreign investments is one of the principles of international investment law. It is a part of international customary law, and it is enshrined in international treaties, judicial and arbitration practice. It is also recognized by most scholars. At the same time most sources of international investment law establish a number of requirements for a lawful act of forced expropriation of property of a foreign investor. Among such requirements, they usually recognized the public goal of an expropriation, nondiscriminatory basis for an expropriation, due legal procedure, and payment of compensation. And while the payment of compensation is generally recognized, the rest of the criteria have been objects to much debating. This article includes analysis of the contents of the above-mentioned requirements and the consequences of failure to comply with them. In particular, the author supposes that the distinguishing between a lawful (that is, performed in compliance with the international legal standards in the international legal acts) and unlawful nationalization of foreign investor property has a limited value. The author provides doctrinal basis for this position and the relevant practice of international tribunals.

Keywords: foreign investments, nationalization, expropriation, foreign investor, compensation, forced expropriation of investments, investment protection, capital investment, international investment law, international investment arbitration.

DOI: 10.7256/2454-0633.2013.3.9034

Abstract:

DOI: 10.7256/2454-0633.2013.3.63244

Abstract: Currently the legal science uses a number of terms for describing the matters identical to those recognized as “ joint ventures”. The contents of this term include a wide range of objects, including legal entities, which were formed with participation of foreign and national founders, contractual forms of interaction of the above-named investors, not presupposing the joint capitals within legal entities – organizations. The term “ joint venture” is used for two legal terms: a contract, based on which a partnership or a fellowship may act, while not having a status of a legal entity, and the legal entity which is formed with the joint efforts of a foreign and a national investors. It is important to note that a joint venture is not a recognized form of a legal entity, and it may be formed within one of the organizational legal forms, if the co-investors should decide to join their capitals via a new legal entity, having legal capacity. Therefore, a joint venture is a collective category, uniting any types of legal entity and organizations, having no independent legal status, as well as the contractual forms of joint activities, in which foreign and national investors participate on equal terms. The article is concerned with the above-mentioned issues, as well as a number of others.

Keywords: international private law, international investment law, joint venture, international joint ventures, conflict of laws regulation, material regulation, foreign element, corporations, partnerships, fellowships.

DOI: 10.7256/2454-0633.2013.3.8984

Abstract:

DOI: 10.7256/2454-0633.2013.3.63245

Abstract: This article is devoted to the topical issues regarding unification of the norms on international judicial jurisdiction in the international procedural law, which is regarded by the authors as a branch of international private law. The authors view three groups of issues: establishing international judicial jurisdiction in the Russian domestic legislation and international treaties, to which Russia is a party, establishing international judicial jurisdiction in the domestic law of England, USA and France, special judicial injunctions and fines in English, American and French law. The authors analyze types of international judicial jurisdiction, including, general, exclusive and treaty-based jurisdiction, and also study an institution of “ forum non conveniens”, which is not known to the international civil procedural law of Russia. Much attention is paid by the authors to the special judicial orders of English, American and French courts, including the anti-suit injunctions, Mareva injunction, and astreinte.

Keywords: judicial jurisdiction, state court, prorogation treaty, civil judicial procedure, judicial injunction, judicial prohibition, procedural institution, judicial fine, judicial doctrine, international procedural law.

DOI: 10.7256/2454-0633.2013.3.7004

Abstract:

DOI: 10.7256/2454-0633.2013.3.63251

Abstract: The article is devoted to the theoretical and practical problems of organizational and legal guarantees of the OSCE (Organization for Security and Cooperation in Europe), as a special supranational structure. The author uses formal legal and comparative methods in order to evaluate the specific features of administrative and legal nature of the OSCE, as established by the national legislative acts of the states, the international legal status of the OSCE being undetermined. The author points out use of international immunity standards by the states, as well as formation of authentic models for the legal guarantees of the OSCE status in the Member States. The author proves administrative legal character of defining the OSCE status in the Member States, which allows to correct the modality of international legal mechanisms within the framework of the OSCE mandate and its institutions.

Keywords: international law, administrative legal status, OSCE, immunity legislation, supranational structures, by-laws, law-making, immunity conventions, implementation.

DOI: 10.7256/2454-0633.2013.3.8827

Abstract:

DOI: 10.7256/2454-0633.2013.3.63246

Abstract: The article is devoted to the comparative analysis of legal regulation of competence of international commercial arbitration in Russia and in Poland. The article provides for the common patterns and existing differences in regulation of the competence of an international commercial arbitration in these two states. Much attention is paid to the existing gaps in legal regulation of the competence of international commercial arbitration. The article points out the key problems, appearing in the process of implementation of the competence of an international commercial arbitration, which are also due to historic specificities of the arbitration development in Russia and in Poland. Special attention is paid to the analysis of the “competence-competence” doctrine in both states, interpretation of subjective and objective arbitrability, procedure of injunctions in international commercial arbitration and a number of other issues. The article also contains brief analysis of the latest tendencies in the development of international commercial arbitration in Russia due to the recognition of the arbitrability of the proprietary disputes and upcoming amendments into the Law “On International Commercial Arbitration”.

Keywords: international law, arbitration, arbitration tribunal, arbitration hearing, injunction, arbitrability, ICAC, competence, arbitration clause, Poland.

DOI: 10.7256/2454-0633.2013.3.7740

Abstract:

DOI: 10.7256/2454-0633.2013.3.63247

Abstract: The article concerns the value of participation of Russia in the universal global legal framework from a legal point of view. The author evaluates the role of Russia as a member of the Security Council of the UN. He evaluates the activities of judicial bodies, implementation of legal norms within the legal system of the Russian Federation. It is stated that Russia has accepted treaty-based international obligations based on the Rule of Law principle, and the states should conform to them in good faith notwithstanding their implementation into the national legal order. The author studies various quality characteristics of the International Court of Justice, it is compared with the national judicial bodies. The author studies the definitions of lawfulness and universal legal order, he provides for the key elements and characteristic features of the universal legal order.

Keywords: international law, universal global legal framework, good-faith principle, rule of law, international court, implementation, domestic legal order, international legal order, Russia, national.

DOI: 10.7256/2454-0633.2013.3.5362

Abstract:

DOI: 10.7256/2454-0633.2013.3.63248

Abstract: The article contains detailed analysis of all existing conceptual definitions of «indigenous people», as available today in international law. The article includes detailed analysis of the basic attributes of indigenous peoples according to the works of Russian and foreign scientists. The author also turns to the domestic legislation of the USA, Canada and Russia regarding definitions of indigenous peoples in these states and their correlation with national minorities.

Keywords: jurisprudence, indigenous peoples, indigenous small-numbered people of Russia, aboriginal, indigenous, autochthonic population, American Indians, fist nations, national minorities.

DOI: 10.7256/2454-0633.2013.3.9192

Abstract:

DOI: 10.7256/2454-0633.2013.3.63249

Abstract: The Multilateral Organization Performance Assessment Network (MOPAN) is a form of cooperation among the Western donor states for the international organizations in the year 2002 at the institutional level, an it provides help for developing states. The main goal of the MOPAN is assessment (French – évaluation) of the efficiency of organization in the sphere of development facilitation at a multilateral level provided by international intergovernmental organizations and international non-governmental organizations. Since 2013, the evaluation sphere includes results rating (the correspondence between the working results of the international organizations and their goals), in addition to the management efficiency evaluation. The cooperation goals within the MOPAN include information exchange, harmonization and coordination. Taking into account that Russia is a donor state in a number of international organizations, and their work is evaluated by the MOPAN, it seems important to get acquainted with the efficiency and results ratings of these international organizations in accordance with its reports.

Keywords: international law, international organizations, evaluation, organization, MOPAN, the UNO, indicators, management.

DOI: 10.7256/2454-0633.2013.3.9220

Abstract:

DOI: 10.7256/2454-0633.2013.3.63250

Abstract: One of the limitations to the development of the over-the-counter market in the Russian Federation is the weakness of legislative development. The development of the Russian legislation in the financial market sphere is to a considerable extent defined by the foreign experience. The article contains analysis of legal aspects of regulating over-the-counter derivatives in the European Union. Much attention is paid to the need for the legal regulation in this sphere, as well as the problems due to weakness of legal regulation. In order to prove the need for special norms regulating the over-the-counter derivatives market, the author provides comparative legal analysis of the specialized legislative norms in the USA and in the EU. Currently the EU investment financing market is being renewed. As a result, the author comes to a conclusion that the studies of the global experience of over-the-counter derivatives market organization, taking the EU as an example, allows Russia to form the national market model with the due consideration of the global failures, which were uncovered by a global financial crisis.

Keywords: comparative legal studies, the EU law, supranational financial law, derivatives, derivative financial instruments, financial terminal, financial law of the EU, financial market of the EU, the EU policy, financial services.