International Law and International Organizations - rubric INTERNATIONAL ORGANIZATIONS AND INTERNATIONAL PRIVATE LAW

Abstract: Unification of the conflict of law norms on transborder turnover of the securities at the intermediate account is quite topical nowadays. Lack of legal clarity and predictability in the sphere of mediated keeping of securities raises the costs of turnover, credit risks, thus limiting the market of securities. On December 13, 2002 for the purprose of lessening the legal probles related to delegation of rights the international community decided to develop the Convention on the law appplicatble to certain rights to securities, which are kept at the intermediate account. Currently the Convention is signed by two states - USA and Switzerland (July 5, 2006), and the EU expressed its wish to join the Convention as well.

Keywords: international law, market of securities, operation with securities, property law, contract law, conflict of laws, Hague Conventions, international private law, EU law, securities

Abstract: This article is devoted to the topical aspects of work of INMARSAT. The authors show the mechanism of multi-lateral cooperation in the sphere of non-stationary means of connection, analyze the functioning of global marine system of connection in case of disaster and in the sphere of security protection

Keywords: international law, international space law, international maritime law, law of international organizations, INMARSAT, IMO, global marine system of connection in case of disaster and for ensuring security, cosmos, world ocean, international mobile satellit

Abstract: The article is devoted to the key international organizations in the sphere of formation of sources of international private law, that is the Hague Academy on International Private Law, International Institute of Unifi cation of Private Law, the UN Commission on the International Trade Law, and the International Chamber of Commerce. Much attention is paid to modern sources of the international private law, such as international agreements, international customs and national legislation. The author includes into this article her analysis of role and infl uence of international organizations on the formation of the structure of modern private law within the context of its sources.

Keywords: international law, sources, legislation, agreement, custom, precedent, body, organizations, state, court

Abstract: The article includes analysis of sources of legal regulation of international commercial arbitration in Russia and in Poland. The author pays attention to both internal and international sources, as well as to the differences in legal regulation of the issues in question in each of these states.

Keywords: international law, arbitration, hearing, Poland, arbitral tribunal, Rules, ICAC, Convention, contract

Abstract: The problems of forced labor and human traffi cking have priority in international and national legal studies, as well as in the activities of international organizations. In this article the author offers her approaches to this problem from the point of view of analysis of formation of principles of protection of individuals from forced states, clarifying the contents of international legal conventions in this sphere, as well as perspectives of implementation of mechanisms for the protection of groups of maximum risk, such as illegal migrants, women and children.

Keywords: international law, human traffi cking, migration, forced state, international legal conventions, specialized UN institutions, armed confl icts, basic rights and freedoms, international mechanisms, guarantees of human rights.

Abstract: This article is devoted to the topical issues, regarding the object and method of modern international private law. As a result of detailed analysis of the system and structure of private law relations with a foreign element, as well as confl ict of laws, and material law methods of regulation, the author offers to include doctrinal defi nition of the international private law.

Keywords: international law, defi nition, object, method, sources, law, regulation, confl ict of laws, norm, model.

Abstract: This article is devoted to the analysis of the provision of the Regulation Rome II, its meaning and infl uence on the non-treaty relations in the EU. The article includes the description of the key provisions of the Regulation with detailed explanations and comments. At the same time, there’s still more to know about this document. The material is structured in accordance with the order of articles in the Regulation itself.

Keywords: international law, Regulation Rome II, international delict law, the EU, applicable law, cascade system, trans-border harm, place of direct harm, reservation on non-application, confl ict of laws norms.

Abstract: This article is devoted to the analysis of the systemic status of the international private law in its relation with the national and international public law. The author also views normative structure of the international private law, including various groups of norms, depending on their character and sources.

Keywords: Mezhdunarodnoe pravo, norma, kolliziya, sootnoshenie, sostav, metod, priroda, sistema, printsip

Abstract: The article is devoted to the sources of the modern trust as a form of international inheriting. The author analyzes the relations between the trust and fidei-comissum, waqf, ablegatus, as well as positive features of trust within the framework of evolution of implementation of law. The author then analyzes the possibilities for the integration of trust relations at the international level.

Keywords: Mezhdunarodnoe pravo, fideikommissum, vakf, vakuf, legat, pervorodstvo, trast, nasledovanie, khidoya, fidutsiarnyi

Abstract: The article is devoted to the results of studies of ECHR cases on protection of rights to property in cases of its nationalization and confiscation. The author then makes conclusions on various aspects of this right, confiscation and nationalization of movable and immovable property

Keywords: international law, ECHR, right of property, confiscation, nationalization, judicial practice, claims to states, conflict resolution practice, compensation, property

DOI: 10.7256/2454-0633.2020.4.34496

Abstract: The object of the study is issues related to: a/ admission and consideration of civil and commercial cases by EU Member States in the Republic of Bulgaria and b/ recognition and enforcement in a Member State of judicial decisions rendered in another EU Member State. The subject of the study is the differences between national norms applicable to jurisdiction and recognition of judgments rendered in other Member States, as well as the extent to which these differences hinder the functioning of the internal market in the EU. The research methodology includes: analysis, synthesis, induction, deduction, observation, analogy, systematic approach and comparative legal method. The emphasis is on an in-depth study of the court's practice in Bulgaria on the acceptance and consideration of civil and commercial cases with an international element. The main conclusion of the conducted research is the statement that the norms of international civil procedure are game.t plays a primary role in the civil process. In each specific case, the norms of international civil procedure determine the court that will protect the violated right, define formal rules, etc. The author's special contribution is the recommendation to improve legal regulation and the adoption of the same conditions for the execution of foreign and national court decisions within all EU states.

Keywords: cross-border cases, execution of court decisions, recognition of court decisions, regulations, European Civil Procedure, international civil procedure, international element, European Union, foreign court decision, conflict of laws rules

DOI: 10.7256/2454-0633.2021.4.35954

Abstract: Extension of globalization process to the world economy allows conducting the economic activity outside the country of tax residency. It also entailed the emergence of various types of incentives in some jurisdictions, for example, preferential tax regime or non-taxation. Questions related to international taxation are currently most acute. The use of foreign jurisdictions through controlled foreign companies reduces the state tax revenue. For counteracting abuse of the privilege by taxpayers, the rules of controlled foreign companies have been developed and implemented in over 30 countries. On the one hand, the countries accept these rules for preventing tax evasion, which can be changed due to various circumstances. On the other hand, there arise situations when such rules may worsen the situation of the taxpayer. This leads to abuse of the right of regulatory authorities in counteracting tax evasion. The controlled foreign companies (CFC) rules are aimed at determination of actual tax liability of the taxpayer, and do not pursue fiscal, political or other interests that worsen the conditions of the taxpayer.

Keywords: controlling persons, development of CFC rules, retained earnings of companies, CFC rules, controlled foreign companies, international tax law, tax liability, current tax liability, tax evasion, deoffshorization

DOI: 10.7256/2454-0633.2014.1.11578

DOI: 10.7256/2454-0633.2014.1.64075

Abstract: The article concerns the issues regarding the basic categories and mechanisms of regulation of check relations by the norms of international check law and Russian legislation. Check is a document providing for an unconditional order by the check issuer to a bank to make a payment in the amount stated in a check to a check-holder. The most significant characteristic features of the legal nature of a check is its qualification in the Russian law as a security, which may be followed throughout the process of development of legal regulation of this legal instrument. The author provides for a detailed study of legal nature, form and types of checks, also providing detailed studies of the key types of check relations, such as endorsement, payment and avalization of checks, as well as scrupulous analysis of the procedural legal consequences of non-payment on checks and means of protection of check requests. In the article with the use of comparative method the author provides detailed analysis of norms and mechanisms of legal regulation of check relations, as provided by the Geneva Cheque Conventions and by the Russian legislation, other laws and bylaws. The analysis of norms of the Russian legislation allowed the author to state that the check is a classic security, having all the universal characteristics, as well as fragmentary characteristics. Check is recognized as a security by the law (the Civil Code of the Russian Federation), proving its legitimacy, and being a security it proves subjective civil proprietary rights, namely, the right of a holder of a check to get a check sum in the bank where the check is drawn. The check is a documentary security (it has documentary and formal characteristics), and it is a document issued in accordance with legal requirements and proving the obligations and other rights, which may be implemented or transferred upon presentation of such documents. Based upon the above-mentioned comparative legal study the author makes a conclusion that Russia should join the Geneva Cheque Conventions and introduce significant changes in to the current Russian legislation on checks.

Keywords: international check law, Russian legislation, check relation, paying bank, holder of a check, endorsement of a check, avalization of a check, statement of certification by a notary, the Geneva cheque.

Abstract: This article is devoted to the topical issues of legal regulation of the international railroad transportation of goods, passengers and their luggage within the structure of the international transport law. The latter, being a branch of international private law, is a complex of legal norms, which are refl ected in the national legislation, international treaties and customs, which regulate the obligations on transportation of goods, passengers and their luggage on the international routes. The specifi c feature of legal regulation of transportation of goods, passengers and luggage on the international routes is a large amount of material legal norms of international character, as compared to the confl ict of laws norms, as well as the variety of norms of domestic legislation of states, which are formulated for this purpose. The article includes analysis of the key sources of international transport law, which apply to railroad transportation, such as the Berne Convention Concerning International Carriage by Rail of 1980, which Russia has joined in 2009. The object of the legal analysis was the legal status of the subjects of the contract for transportation, key obligations of the parties to the transportation contract relations, responsibility of carrier for the non-performance or incompliance to the conditions of performance of his obligations under the contract, the order for claiming reclamation and resolution of disputes arising from such contracts.

Keywords: international law, transportation, carrier, sender of goods, receiver of goods, passenger, luggage, contract, responsibility.

DOI: 10.7256/2454-0633.2013.1.62411

Abstract: This article is devoted to one of the most interesting aspects of international civil process, that is, to the procedure in the cases involving the foreign entities. The authors concentrate on the comparative analysis of Russian and Ukrainian legislation, which regards the regulation of international procedural relations. The article includes two parts. The first part of the article is concerned with the issues of international jurisdiction of the Russian arbitration courts and the Ukrainian economic courts in the international economic disputes, while the second part of the article is concerned with the issues of recognition and compulsory implementation of the foreign judicial decisions on economic disputes in the territories of Russia and Ukraine. The authors studied the legal sources, including the national legislation and international treaties, including the multilateral treaties of regional character within the CIS, as well as the Minsk Convention on the Legal Assistance and Legal Relations on Civil, Family, and Criminal Cases in their application to the cases involving foreign parties.

Keywords: international law, jurisdiction, competence, court, entities, parties, process, procedure, recognition, implementation, decision.

DOI: 10.7256/2454-0633.2018.1.25540

Abstract: This article directs attention to the gaps in legal regulation of transboundary securities transactions in light on enactment of the Hague Convention on “Certain Rights in Respect of Securities held with an Intermediary”. The author examines the prerequisites for creating such document that emphasize its importance and relevance for the stock market participant, as well as describes the key features of the proposed by Convention legal regulation with examples. Analysis of applicability of the document for the Russian legal reality and prospects of potential implementation is provided. The scientific novelty lies in the insufficient familiarization with the topic of transboundary securities turnover in the Russian Federation. Using the practical examples, the author demonstrates the applicability and relevance of the new approaches suggested by the Convention, as well as analyzes their strong and weak aspects. The article also depicts the problems emerging in foreign countries in terms of the transboundary securities turnover and their causes. A conclusion is made on the possibilities of implementation of Convention regulations in the Russian Federation.

Keywords: intermediated securities, conflict of law rule, Hague Securities Convention, indirect holding system, securities market, depositary, securities, holding system, Conflict of law, Private International Law

DOI: 10.7256/2454-0633.2021.1.35070

Abstract: Green is consistently associated with the political, legal and organizational efforts of various organizations in the area of preservation and sustainable development of the environment. Having analyzes the topic, the author reflects on the legal issues of preventing marine pollution related to the introduction of the International Code for Ships Operating in Polar Waters, the requirements to the “chemistry of pollutants”, technical regulations aimed at the expel of certain ships based on their technical characteristics. The author also attempted to formulate the key statements within the framework of the concept of ecologically sustainable development of the marine transport sector. The subject of this research is the legal relations in the area of regulation of the ecological use of maritime transport. Research methodology employs the analysis of national legal sources; formal-legal, comparative-legal and systemic-logical methods. Law of the Sea has been actively struggling against marine pollution since the International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL) of 1954, creating and constantly improving the responsibilities within the framework of International Convention for the Prevention of Pollution from Ships (MARPOL). The scientific novelty is defined by the absence of analogous works in the Russian literature on the subject. The relevance of this work is substantiated by the need for adoption of legal measures aimed at ensuring efforts on amending the state maritime policy, considering that the implementation of the standards of International Maritime Organization effective since 2020, will result in expel of a considerable number of ships from the maritime sector, as well as and increase the sea freight rates.

Keywords: marine industry, protection of atmospheric air, protection of the marine environment, atmospheric emissions, marine fuel, commercial shipping, hydrocarbons, pollution from ships, ballast water, scrubber

DOI: 10.7256/2454-0633.2015.1.13927

DOI: 10.7256/2454-0633.2015.1.65949

Abstract: This article reviews the questions that emerge during the use of the doctrine of piercing the corporate veil to reveal the identity of the beneficiary hiding behind the corporate shield of an offshore company. It makes an assessment of the legality of using foreign jurisdiction in structuring a business on Russia’s soil, and the specificity of determining the final beneficiary. A special attention is given to the use of offshore companies as titular and operational legal entities while they are being formed not for the purpose of conducting business themselves, or service the activity of another legal entity. Considering that the doctrine of piercing the corporate veil was developed at a court level, the article makes an accent on reviewing specific court cases. The author evaluates the participation of offshore companies in the Russian civil commerce and public ownership of the assets of offshore companies based on the legislation of an offshore jurisdiction.

Keywords: Corporate veil, corporation, piercing the corporate veil, corporate shield, diligence, misuse of law, circumvention of law, offshore jurisdiction, private international law.

DOI: 10.7256/2454-0633.2022.3.33217

Abstract: The article analyzes the subject jurisdiction of ICSID in relation to investments. The determination of the existence of an investment in a particular dispute belongs to the exclusive competence of the arbitration itself, since the concept of "investment" is not disclosed in the text of the Washington Convention. The authors analyze in detail the criteria of the Salini test, which determine the subject jurisdiction of ICSID in relation to investments. The authors evaluate the main features of investment activity used by arbitrators in the qualification of certain transactions for their compliance with the requirements of Article 25 of the Washington Convention. The article presents an analysis of ICSID decisions, starting with the Fedex case, where for the first time the need to use objective criteria to determine jurisdiction was noted, and the Salini case, where the arbitrators disclosed the content of these criteria, as well as the subsequent ICSID practice. The application of the Salini test is carried out by different arbitration structures in different ways. Despite the fact that the arbitrators using the Salini criteria differ in their number, content and method of determining the criteria (intuitive and deductive), the basis of the Salini Test (conditions of contribution, duration, presence of risks, contribution to the economy of the host state) remains unchanged. The authors pay special attention to the methodology of applying these criteria, noting that in each of the criteria, the arbitrators identify their own structure. The authors come to the conclusion that the Salini test, without having a regulatory character, allows to objectively distinguish investments protected at the level of international agreements from ordinary commercial transactions, provides potential investors with the opportunity to assess risks even before the start of investment activity on the territory of a foreign state, as well as to protect the parties to the investment legal relationship from abuse by the other party.

Keywords: ICSID Convention, investment dispute, investment arbitration, foreign investment, ICSID, Salini test, jurisdiction ratione materiae, bona fide test, in accordance with the law, the principle of competence of competence

Abstract: This article is devoted to the legal status of the OTIF, which was formed under the Berne Convention of 1980 concerning International Carriage by Rail (COTIF), to which Russia is a party since 2010. The object of the study is a number of issues, regarding goals and aims of the OTIF, its inner structure, the conflict-resolution procedure for the disputes among the states, its privileges and immunities. Much attention is paid to the analysis of the inner organization structure of the OTIF, which is understood as a system, principles and the order of formation of its bodies, as well as their competence (object-oriented and jurisdictional), interaction of the bodies with each other and the decisionmaking procedure. The authors pay much attention to the arbitration procedure for the resolution of disputes among the Member States on the application of the COTIF, when the composition of the court, its object-matter competence, and the decision-making procedure are defined by the parties to the dispute by an arbitration agreement. The authors point out the prominent role of the Secretary General of the OTIF not only in managing its structure, but also in the arbitration procedure for the dispute resolution within the framework of the Convention.

Keywords: international law, organization, structure, competence, organ, procedure, arbitration, decision, voting, transportation.

DOI: 10.7256/2454-0633.2019.4.31340

Abstract: This article examines the peculiarities of resolving the complicated questions associated with relations regulated by private international law through legal mechanisms that are at the disposal of the integrated institution – the European Union. It is demonstrated that use of means of harmonization and unification – rules and directives – facilitate regulation in the conflict of jurisdictions (on the questions of mutual recognition and execution of court decisions), conflict of laws (with regards to the choice of applicable law to contractual and non-contractual obligations, family and hereditary relations), substantive regulation of relations complicated by a foreign element. Methodology contains the sources of the European Union Law – constituent agreements, rules and directives in French language as the language of the theory of private international law. The analysis of EU legislative acts demonstrated that the most significant problems in all areas of private international law have been resolved in a positive way: enshrinement of the principle of mutual recognition and execution of court decisions; establishment of the general and subsidiary conflict of laws principles for the various types of private law relations, considering the latest scientific trends of private international law and comparative-legal experience; establishment of groundwork for harmonization of private law of the EU member-states. The authors also underline the inadequacy of regulation on the separate questions of private international law (qualification). Recommendation is made regarding the experience of the European Union in the context of potential development of law of the European Economic Community in the indicated sphere.

Keywords: contractual obligations, the closest connection, Brusells Ibis Regulation, Rome I Regulation, conflicts of laws, conflicts of jurisdictions, harmonization and unification, EU law, private international law, non-contractual obligations

Abstract: The article is devoted to the analysis of the fi rst act of autonomous complex codifi cation of international private law and international civil process at the post-Soviet territory, that is the Law of Georgia N 1362-11c “On International Private Law” (in force since October 1, 1998). The author analyzes the sources of this law, its focus on German law. The author provides a detailed study of general provisions of international private law, as enshrined in this law, confl ict of laws norms on personal rights, law of estate, law of obligations, family law, and inheritance law. The author then comes to a conclusion that in spite of numerous gaps and unclear formulae the Law of Georgia “On International Private Law” is a serious step of the national legislation of Georgia towards the formation of the modern mechanism for the regulation of relations with the foreign legal order.

Keywords: international law, law, norm, regulation, confl ict of law, system, code, health, institution, law.

Abstract: The article is devoted to the modern tendencies for the formation of international law of trade in financial services and its influence on the national legislation on financial markets. The influence of the WTO and other international organization on the formation of the international global order in this sphere is pointed out by the author. The author also shows the value of the processes of unification and harmonization of legal norms on trade of financial services within the framework of integration processes. The article includes examples on the implementation of international norms on financial services into the national law on the securities market. The author then shows the directions for the active process in the sphere of formation of international general principles of legal regulation in this sphere in order to achieve the due balance between public and private interests. The author then notes the role of legal custom in this sphere. The international law for the trade of financial services includes unified principles, norms and rules for the trade of international banking and other financial services, which serve as general normative regulation. The article includes analysis on the changes in the Russian law on financial markets, which took place under the influence of international norms due to the Russian Federation joining the WTO. The author points out the value of the “securitization” in the securities market, as an innovative form of financing by corporate bonds, investment fund bonds, and banking groups in order to support the activities of the credit markets.

Keywords: international law, trade of financial services, legislation on financial services, unified principles, norms and rules for the trade of international banking and other financial services, customs of international trade in the sphere of financial services.

Abstract: This article is devoted to the issue of confl ict of laws and material regulation of international passenger transportation. This article includes detailed analysis of national and international legal regulation of passenger transportation for the various types of transport. In particular the author views the issues of classifi cation and types of attachment of the confl ict of laws norms in the sphere of international passenger transportation.

Keywords: international law, international private law, international transportation, passenger, luggage, international contract, passenger, luggage, international contract, national legislation, material law, confl ict of laws law, attachment formula.

DOI: 10.7256/2454-0633.2021.3.35229

Abstract: This article carries out the conceptual analysis of development trends in control and oversight activity of the supreme audit institutions (supreme financial control bodies), which contributes to achieving the goals of sustainable development until 2030. The research leans on fundamental analysis of the principles of the Moscow Declaration endorsed by INTOSAI. The subject of this research is the financial-legal aspects of transformation of the status of control and audit bodies that exercise external financial control aimed at maintaining sustainable economic development of the society through implementation of principles of audit of budget funds. The article employs the method of dialectical scientific knowledge, which is based on the set of private and general scientific method, including formal-logical that interprets the norms and principles contained in the international declarations of the supreme audit institutions. The authors offer the classification of principles depending on the key vectors in the development of state audit (control) and contained explicitly in the vectors of development. Conflicts of principles established in the Mexican and Moscow INTOSAI Declarations are determined. The scientific novelty lies in substantiation of formation of the new special legal status of the supreme financial control bodies that not only verify legitimacy, effectiveness, and feasibility of budget expenditures, but are an external and independent strategic assistant to the government and executive authorities as well. The authors conclude on the institutional change in the status of supreme financial control bodies.

Keywords: supreme audit institutions, INTOSAI, Moscow Declaration, international legal regulation, Mexican Declaration, state audit office, financial control, principles, strategic assistant, sustainable development

Abstract: The author speaks of the African model of cross–border insolvency within the context of the Uniform Act organizing Insolvency and Liquidation Proceedings of 4 April 1998, of the Organization for the Harmonization of Business Law in Africa. In the article, the author reviews the following methods as outlined in the Act: universal method and territorial method. In the fi nal analysis, the author has got an opinion that none of these two methods is effective in solving the legal problems associated with the insolvency in Africa and consequently, the author proposes conclusion of agreements between OHADA and other leading economical blocks as European Union, NAFTA,ASEAN etc. for more effective solution of the problem.

Keywords: OHADA, cross–border insolvency, Uniform Act, Harmonization, principle of universality, territorial principle, debtor, creditor, collective procedure for the liquidation of liabilities.

Abstract: The author analyzes the conflict of laws norms of the family legislation, when the disputes in the sphere family relations with a foreign element are being resolved, as well as some specific features of the normative legal acts on marital and family relations between the citizens of the Russian Federation and the foreign citizens. It should be considered that more and more of such cases arise not only on the territory of the Russian Federation, but also abroad. The author gives a review of normative legal acts of the Russian Federation, which regulate marital and family relations with a foreign element.

Keywords: international law, international treaties, conflict of laws in family law, foreign citizens, citizens of the Russian Federation, marital and family relations, family statute, personal non-property right, judicial precedent, international treaty.

Abstract: The article is devoted to the legal issues regarding international fi nancial contracts, which are concluded in accordance the rules of the Muslim law. The author analyzes the term “riba” in the Muslim law, the practice of its interpretation and application. Part of this article casts the light on the issues of regulation of the banking service market in Iran, as well as on the international standards and principles regarding fi nancial deals, concluded in accordance with the Muslim law.

Keywords: international law, percentage, riba, credits, obligations, legal relations, the Koran, the Sunna, fi nances, insurance.

Abstract: This article is devoted to the evaluation of the statute of legal entities in the law of the EU, which presupposes the analysis of the legal bases of the status of legal entities in the European corporate relations. Based on the results of the studies of the legal practice in the EU, the author comes to conclusions on extent and contents of the conflict of law regulation when defining the law applicable to legal entities.

Keywords: international law, statute, entity, conflict of law, court, practice, company, corporation, law, order

DOI: 10.7256/2454-0633.2013.3.9706

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

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

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: 10.7256/2454-0633.2016.3.20083

Abstract: This article examines the questions of lawfulness of the activity of the foreign companies in the Russian Federation without accreditation of the branches and representative establishments. The subject of this research is the succession of practical steps necessary for realization of legitimization of the systemic commercial activity of foreign organizations in the Russian Federation depending on the various circumstances and vectors of business. The author examines multiple aspects of the notions “branch” and “representative establishment” based on their sectoral and legal affiliation. The subject area of the research includes the changes in legislation pertaining to the foreign investments in the Russian Federation since 2014. The notions of branch and representative establishment vary on their interpretation in civil law, investment law, and tax law. Despite the presence of a branch or representative office, all of the deals conducted by the foreign commercial organization remain valid, and the organizations themselves preserve the right to sue and be a defendant in court. The low level of legal technique that allows the multiplicity of interpretations is characteristic to the normative acts regulating the examined topic.

Keywords: foreign investments, transactions, legal capacity, representative office, branches, foreing companies, construction, commercial activity, commercial law, legal technique

DOI: 10.7256/2454-0633.2016.3.68163

Keywords: foreign investments, transactions, legal capacity, representative office, branches, foreing companies, construction, commercial activity, commercial law, legal technique

DOI: 10.7256/2454-0633.2014.3.11535

DOI: 10.7256/2454-0633.2014.3.65434

Abstract: The said article is devoted to the modern tendencies regarding the legal status of a notary within the aspect of the norms of the international private law. Currently notaries provide one of the most effi cient mechanisms for the civil turnover, allowing to guarantee the combination of private and public interests in the spheres, such as international family law, international inheritance law, that is the spheres of activities of persons, where priority of a certain interest is not obvious, and there is a confl ict of laws, which is the subject of studies within the framework of the international private law. The author of the article uses comparative legal method of studies in order to provide a detailed analysis of the legal basis for the functioning of the international notary activities, which involves domestic sources, as well as the international sources (international treaties, international customs). The author points out variety and wide range of sources for the notary activities, which is due to the specifi c features of the relations involving foreign legal orders, namely: defi ning the legal status of foreign persons (entities) participating in notary proceedings, use of foreign documents (defi ning the international validity of the documents). As a result of the study the author drew the following conclusions. The modern realities of social and economic development of state and society require a transition to the more active model of notary work, which would not be limited to the verifying functions of notaries. The foremost important role in the legislative development belongs to the new draft of the Federal Law “On Organization and Notary Activities in the Russian Federation”. That is why documents verifi ed by notaries should be recognized as authentic acts, having higher evidentiary force in comparison to plain written documents, which would guarantee reliability and stability of the documents and other acts in the civil turnover and ease the work of the courts.

Keywords: International private law, notary, Latin notary system, Anglo-Saxon notary system, sources of legal regulation, notary proceedings, consular legalization, apostil, lack of formalities, exequatur.

DOI: 10.7256/2454-0633.2014.3.11572

DOI: 10.7256/2454-0633.2014.3.65435

Abstract: The article concerns specifi c features of legal regulation of the international fi nancial relations. The author analyzes methods, subjects and sources of regulation, defi ning the role of international private law. The author also singles out the main types of deals in the international fi nancial market, pointing out three levels of regulation: macro-regulation, functional regulation, self-regulation. The article provides for the common feature of the international private fi nancial legal relations – presence of a foreign element, which may be involved among the subjects of the relations, in the object of the relation, or as a legal fact, concerning formation, alteration or termination of this relation. The author offers to divide the operations in the international capital market into three groups: trans-border issue of shares, international obligations and the treaties for the international syndicated loans. The article involves systemic, complex, historical, dialectic, comparative legal scientifi c methods. The author also provides a detailed evaluation of the foreign sources. The author attempts to analyze private law relations in the international fi nancial market, as well as specifi cities of their legal regulation. The author offers to view the legal regulation of the relations in the international fi nancial market from the three standpoints: the position of macro-regulation, functional regulation and self-regulation. Macro-regulation involves an international fi nancial market as a whole, and it is implemented by the IMF and the Financial Stability Forum (FSF), while the functional regulation and self-regulation are implemented in different sectors: the former involves the market for the banking services (BIS), securities (IOSCO) and insurance (IAIS), while the latter involves the market for the syndicated credits (LMA), securities (MARC) and derivatives (ISDA) The international private law and the UNIDROIT activities play a special role in the regulation of the international fi nancial relations. The common features of the international private fi nancial legal relations is that they are formed based upon the trans-border deals, and their main feature is a foreign element, which may be present among the subjects of the relations, their object, or a legal fact.

Keywords: Legal relation, fi nancial deals, syndicated credit, international fi nancial organizations, functional regulation, international fi nancial market, self-regulation, international obligation, liquidation netting, international associations.

DOI: 10.7256/2454-0633.2014.3.11781

DOI: 10.7256/2454-0633.2014.3.65436

Abstract: The disputes regarding forceful seizure of property of a foreign investor serves as bases for many claims in the ICSID, and they form a signifi cant share among the existing disputes arising from the international investment relations. When dealing with these issues the international arbitration inevitable face the questions of applicable material law. The Washington Convention on the Settlement of Investment Disputes Between States and Nationals of Other States provides relevant norms, however, in spite of clarity of their formulation, the practice of ICSID involves various issues regarding applicable law. The said article involves analysis of the value of the provisions of the Washington Convention in the applicable law, singling out the main confl ict of laws ties and specifi cally stressing the defi ning role of autonomy of will of the parties. The article provides a detailed analysis of the topical issue regarding correlation between the international law and national legislation as sources of material law regulating the issues of regulation of investments. Based upon the analysis of the normative basis and doctrine the author draws a conclusion on the priority of the national legal system of the state, where the investment of capital takes place, as law applicable to the investment expropriation, stressing special role of international legal norms.

Keywords: Foreign investments, expropriation, nationalization, forceful seizure of investments, international investment arbitration, ICSID, applicable law, confl ict of laws norms, investment protection, autonomy of will of the parties.

DOI: 10.7256/2454-0633.2016.4.19021

Abstract: The object of this research is the formation and development of the PRIMA connection factor aimed at regulation of the relations associated with the transboundary transaction of the bonds. Currently, there is no single contentious approach for resolution of such issues. The national substantive law and/or conflict of laws is most often implemented in practice. The formulated in 2000’s contentious principle of PRIMA, including its modifications, suggested by the Hague Convention on securities, is in need for further improvements and is not currently applied by the participants of the stock market. In absence of a single approach, the risk of invalidity of, for example, law selected by the parties in the aforementioned relations is rather high. The main goal of this work consist in determination of which law will be implemented for the regulation of certain relations. Due to the fact that conflict of laws method is capable to distinguish the applicable law, although the specific disposition, hypothesis or sanction of legal relation will be contained in the substantive norms of the selected in correspondences with the conflict of laws method of legal order, the author use the substantive legal method in this research. The main result of this work lies in the analysis of various options of the connection element PRIMA, determination of its positive and negative aspects (including the risks associated with the use of one or another option), as well as future direction of the development for regulation of the assigned area of relations.

Keywords: Directive , Conflict of laws, European Law, transboundary stocks, indirect holding system, stock market, Hague Convention, Securities, International Private Law, PRIMA approach

DOI: 10.7256/2454-0633.2016.4.68441

Keywords: Directive, Conflict of laws, European Law, transboundary stocks, indirect holding system, stock market, Hague Convention, Securities, International Private Law, PRIMA approach

DOI: 10.7256/2454-0633.2013.4.10356

DOI: 10.7256/2454-0633.2013.4.63535

Abstract: This article is devoted to the modern tendencies in the sphere of legal regulation of international combined transport of goods, passengers and luggage in the international traffic. Development of a wide rage of transportation and the need to rationalize the transportation of goods, passengers and luggage in the international traffic require use of various types of transportation in the international transportation of goods. Such types of transportation are called combined. A combined transportation is a consecutive use of two or more types of transport in international goods or passengers transport, and they recognize indirect combined transportation (by an expeditor) and direct combined transportation (by the combined transportation operator). The direct combined transportation is registered by the single (turnaround) transportation document, covering all of the types of participating transportation vehicles. Using the comparative legal analysis, the authors provide detailed evaluation of the norms of the key international treaty in the sphere of combined transportation of goods, which is the Geneva Convention of 1980 of the UNCTAD on international combined transportation of goods. The authors provide consecutive analysis of international norms regulating the substantial elements of contracts for the transportation of goods, responsibility of combined transportation operator for the loss or harm to the goods, the complaint procedure for dispute settlement, the limitation period and the bases for claims in court or arbitration institution for dispute resolution. This article also contains the detailed study of the Draft of the Federal Law “On Direct Mixed (Combined) Transportation”, which was provided by the Government of the Russian Federation, and which is aimed to serve as an instrument for the national legal regulation of this type of transportation. Its significant difference from the Geneva Convention of 1980 is a wider range of application, covering combined transportation of passengers and luggage in addition to combined transportation of goods.

Keywords: international private law, international transportation law, international transportation, combined transportation, combined transportation operator, expeditors, transportation contract, status of a carrier, responsibility of a carrier, international treaty.

DOI: 10.7256/2454-0633.2013.4.10436

DOI: 10.7256/2454-0633.2013.4.63536

Abstract: It is proven that in the sphere of labor relations in the modern global maritime transportation the choice of legislation regulating labor relations between the shipowner and the crew is almost unlimited. It makes the issues of bringing these legal processes into compliance with the international labor law especially topical. The goal of the article is to establish the forms of involvement of international legal standards into the national practice of collective negotiations between the maritime trade unions and shipowners and conclusion of collective agreements with foreign shipowners. The article achieves the following goals: the analysis of international legal requirements to collective negotiation and collective agreements in the maritime sphere, its correspondence with the current practice and possible means to improve the practical situation. The object of studies includes the norms of international law, regulating the processes of collective negotiations with the foreign shipowners and practice of their national application in the post-Soviet states. The article applies formal legal and comparative methods, the author uses statistical, political scientific and forecast-based methods with the use of normative and doctrinal information, as well as the personal experience of the author in the sphere of trade union work. It is established that these issues become especially topical when the shipowners and trade unions fail to act in accordance with the legislation, or when the legislation of the post-Soviet states is partially incompliant with the requirements of international labor and maritime law, and when the governments fail to pay necessary attention to these issues. The author offers the following measures in order to facilitate the application of international norms in the sphere of protection of labor and social rights of mariners when the collective agreements are made with the foreign shipowners. It is necessary to bring national legislations and by-laws in the sphere of labor and employment in accordance with the requirements of the Ukrainian Independent Maritime Trade Union (KPMS), including development of the new license conditions and new forms of control over the obligatory presence of collective agreements, covering all of the concluded labor contracts of foreign employment of mariners. It also includes the obligation of filing public registers of such agreements with due mention of its parties for the bodies registering such collective agreements, establishing responsibility for the employers, trade unions and associations for the failure to register collective treaties, which were concluded by them. It also includes control over the competent state bodies, when citizens of these states are employed in the foreign ships, over the actions of the ITF and the ITF trade unions within the context of protection of the rights of mariners to be protected against discrimination in their employment.

Keywords: mariner employment, the ILO Conventions, the ILO guidelines, the collective treaties, collective negotiations, maritime trade unions, foreign shipowners, ITF, ITF trade unions, labor legislation.

DOI: 10.7256/2454-0633.2013.4.10408

DOI: 10.7256/2454-0633.2013.4.63537

Abstract: The article is devoted to the foreign experience of using asymmetric arbitration clauses, providing only one of the parties to an arbitration agreement the right to choose between arbitration and the state court. The goal of the study is to analyze the modern tendencies in the practice of application of such clauses. This issue is topical due to the Decision of the Presidium of the Supreme Arbitration Court of the Russian Federation of 2011 in the dispute between the ZAO “Russian Telephone Company” and the OOO “Sony-Ericsson Mobile Communications Rus”, where asymmetric arbitration clauses were struck down in Russia. The article is based upon the wide range of foreign arbitration practice, as well as topical foreign doctrinal sources. Special attention is paid to the legislative regulation and legal practice in the states, such as the USA, Bulgaria, Poland, etc., where in some situations or by direct legislative provision asymmetrical arbitration clauses may be recognized as invalid clauses. The article includes analysis of the typical bases for the courts in a number of states to recognize asymmetric arbitration clauses invalid. Based upon the study the author makes a conclusion that currently there is no unified approach towards this type of arbitration clauses in various jurisdictions.

Keywords: international commercial arbitration, asymmetric arbitration clause, alternative arbitration clause, optional jurisdiction clause, optional arbitration clause, reciprocity principle, bad faith doctrine, invalidity of an arbitration clause, potestative deal, arbitration agreement.

DOI: 10.7256/2454-0633.2014.4.13480

DOI: 10.7256/2454-0633.2014.4.65690

Abstract: This article is dedicated to the issues associated with the use of the arbitration clauses category including the clause of public policy and mandatory (super-mandatory) norms in the legislation of the Republic of Turkey. This issue remains relevant despite the codifi cation of Private international law that took place in this country in 2007. Turkish legislature actively uses both arbitration clauses. As a rule, the elements of public policy that received normative consolidation use the “super-mandatory norms” as the mechanism for defense. Using the positive variation of the clause does not demonstrate the redundancy of such mechanism, rather the specifi city of its purpose. The effects of the negative clause expand into the areas of Private international legal relations where security of public interest cannot be guaranteed by mandatory norms alone.

Keywords: Private international law, international civil procedure, the Republic of Turkey, arbitration clauses, public policy, mandatory norms, super-mandatory norms, codifi cation, choice of law.

DOI: 10.7256/2454-0633.2014.4.13700

DOI: 10.7256/2454-0633.2014.4.65691

Abstract: Lex mercatoria is an important element of the modern international private law, which represents a forming system of norms of non-governmental origin aimed at regulating the international commercial turnover. There is a predominant opinion within the science of private international law that lex mercatoria represents an alternative to the traditional to private international law choice of laws method of legal regulation and that lex mercatoria cannot be considered as the source of confl ict of laws. Based on the content of the norms of international contracts and court rulings, the author attempts to demonstrate that this notion cannot be held as unequivocally correct. The question of choice of law within lex mercatoria has yet to be exhaustively studied in the modern private international law studies. This article shows that lex mercatoria does indeed contain elements of choice of law and therefore, lex mercatoria can be viewed as the source of confl ict of laws.