scholarly journals Legal Nature of Clauses Determining Arbitration Centers Resolving Disputes under the UDRP

Lex Russica ◽  
2020 ◽  
Vol 73 (6) ◽  
pp. 44-60
Author(s):  
L. V. Terentyeva
Keyword(s):  
Dispute Resolution ◽  
Public Law ◽  
Federal Law ◽  
Domain Name ◽  
Commercial Arbitration ◽  
Short Period ◽  
Legal Nature ◽  
The Russian Federation ◽  
Legislative Amendments ◽  
Limited List

Recent legislative amendments regarding an arbitration agreement incorporated into the agreement of accession have contributed to the formation of the concept in the Russian doctrine giving additional argumentation in favor of qualifying clauses envisaging the consideration of domain disputes under the UDRP as arbitration agreements. Taking into account a number of procedural and legal consequences determined by both the fact of the conclusion of the arbitration agreement and the fact of the award, the author raises the question of the nature of clauses providing for the consideration of disputes under the UDRP procedure. The study of the main properties and characteristics of the clauses under consideration leads to the conclusion that the balance between public law and private law foundations defined in the doctrine inherent to the arbitral agreement, does not meet the nature of the dispute resolution clauses under the UDRP (the impossibility for the domain name holder to refuse from the clause; the absence of the derogatory effect of the clause, etc.). Accordingly, enforceability of this clause cannot be determined under the provisions of the Federal Law on Arbitrazh [Arbitration] of 2015 and the Law of the Russian Federation on International Commercial Arbitration of 1993, providing the conclusion of the arbitration agreement, which, for example, include the principle of effective interpretation of an arbitration agreement that does not exclude in a number of cases the competence of the arbitral tribunal in the absence of the agreement signed by the parties. In this regard, the author questions the argumentation in favor of unenforceability of the clause under consideration based on the named laws.The study of certain principles of dispute resolution proceedings under the UDRP (limited list of remedies; resolution of the dispute in the form of oral hearings only on the initiative of an administrative commission; the unduly short period of time provided for both response to the claim and going to a competent court; the disparity of the dispute resolution clause, etc.) allows the author to conclude that, in some cases, such a clause is burdensome for the owner of the domain name due to the violation of the principles of legality and independence in the establishment and formation of a specific administrative commission.

scholarly journals The structure and features of the civil status of an individual entrepreneur in modern Russia

2021 ◽  
Vol 7 (3C) ◽  
pp. 424-442
Author(s):  
Dina Viktorovna Alontseva ◽  
Sergey Vladimirovich Vorobyev ◽  
Olga Anatolyevna Lavrishcheva
Keyword(s):  
Russian Federation ◽  
Legal Status ◽  
Modern Society ◽  
Practical Significance ◽  
Federal Law ◽  
Legal Nature ◽  
Civil Status ◽  
General Scientific ◽  
The Russian Federation ◽  
Made In

Based on the analysis of the modern legislation of the Russian Federation and taking into account the existing scientific concepts, the authors studied in detail the legal nature and identified the features of certain types of legal statuses of an individual entrepreneur, as well as revealed the structure and analyzed in detail the specifics of the civil status of an entrepreneur in modern Russia. As a result of the conducted research, the author's concept of the "civil status of an individual entrepreneur" was formulated and the need for the adoption of the Federal Law "On the legal status of an individual entrepreneur in the Russian Federation" was justified. The practical significance of the work is determined by the fact that the conclusions made in the course of the study can contribute to improving the legal status of entrepreneurs in modern society at the legislative level. The methodological basis of this study was made up of general scientific, private and special methods of cognition.

International Arbitration as Private and Public Good

2020 ◽  
pp. 397-420
Author(s):  
Ralf Michaels
Keyword(s):  
Public Good ◽  
Dispute Resolution ◽  
Public Law ◽  
State Courts ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Investment Arbitration ◽  
Public Nature ◽  
Private And Public ◽  
Dispute Resolution Mechanism

This chapter addresses the private and public nature of international arbitration. International arbitration is often characterized as an exclusively private dispute resolution mechanism, sharply distinguished from litigation, which is viewed as public because it is provided by the state. This is clearest for commercial arbitration. Commercial arbitration is initiated on the basis of a private arrangement: a party cannot be subjected to arbitration unless they agreed to it previously. Investment arbitration is a little more difficult to categorize, given its emergence from public international law, its involvement of states as parties, and the frequency with which it deals with public law measures. Indeed, significant differences exist between commercial and investment arbitration. Nevertheless, it too is characterized as a private dispute resolution mechanism at least in the sense that it is resolved by institutions other than state courts. The chapter then evaluates whether arbitration is a private or public good. It also demonstrates the ways in which adjudication by courts combines elements of private and public goods, before finding a parallel combination of private and public good aspects in international arbitration.

scholarly journals Responsibility of a Host State in Transnational Investment Disputes

2018 ◽  
Vol 9 (1) ◽  
pp. 139
Author(s):  
Valeriy Nikolayevich LISITSA
Keyword(s):  
International Law ◽  
Public Law ◽  
Legal Rights ◽  
Soft Law ◽  
Commercial Arbitration ◽  
Foreign Investors ◽  
Host State ◽  
Legal Relationship ◽  
Legal Nature ◽  
Investment Law

The article seeks to define the legal nature of the responsibility of a host state in transnational investment disputes. It considers numerous rules (treaties, national law, customs, soft law, etc.) and their application within a domestic legal system to ensure the proper implementation of civil and other legal rights and obligations of host states and foreign investors. It is argued that the involvement of foreign investors and host states in international commercial arbitration, including the ICSID, and the application of international law (along with national law) as a legal ground for the payment of compensation, do not change the nature of the existing legal relationship between the parties of the investment dispute. The responsibility of the host state to the foreign investor expressed in the state’s obligation to pay damages (compensation) remains in the private, rather than international public law sphere. In conditions of lack of proper rules of investment law states should not stand aside from the present process of making such rules by non-state actors. This situation detracts from the treaty as a major source of international law, sometimes does not correspond to the interests of host states and moreover may threaten their sovereignty.

The concept and legal nature of digital maturity

2021 ◽  
pp. 107
Author(s):  
Tatiana A. Polyakova
Keyword(s):  
Russian Federation ◽  
Legal Regulation ◽  
Digital Transformation ◽  
Practical Implementation ◽  
Federal Law ◽  
Legal Nature ◽  
Development Direction ◽  
The Russian Federation ◽  
The Government ◽  
Transformation Processes

The article examines the legal nature of the institute of digital maturity. Being considered the legal grounds for the introduction and use of digital maturity indicators as part of digital transformation processes. The authors analyze the definitions of digital maturity given in the current legislation and scientific literature and outline the indicators of digital maturity. Based on the analysis of legal regulation and the legal nature of the digital maturity concept, the authors define it as the result (level) of the development of a particular subject, object, institution or development direction as part of the digital transformation implementation. This result is characterized by a certain general and special set of indicators (indicators). The article proposes to formalize this definition as part of a federal law or a decree of the Government of the Russian Federation. The analysis of the legal regulation of relations connected with the digital maturity provision indicates a clear lack of methodological support for these processes, the lack of a unified approach to understanding what digital maturity is, and what general and special indicators and criteria for their assessment should be used. The article concludes that, based on the existing legislation, it is often difficult to understand what requirements exist for a certain actor to ensure the digital maturity and how it is to be achieved. The future development of the concept of digital maturity will largely be based on the practical implementation of legally fixed models. In this regard, the authors believe that an instrumental means is carrying out the experiments on the official implementation of these indicators at the level of individual subjects, thus testing it and identifying a promising model for the digital maturity development. In the current situation, there exists a need for the development of the institute by assessing the practical implementation of digital maturity as part of digital transformation processes both at the federal and regional levels in the Russian Federation.

About the Jurisdiction of Cases of Administrative Offenses

2021 ◽  
pp. 26-31
Author(s):  
A. F. Skutin ◽  
Keyword(s):  
Russian Federation ◽  
Arbitral Tribunal ◽  
Federal Law ◽  
Legal Proceedings ◽  
Judicial Practice ◽  
Legal Nature ◽  
The Russian Federation

The article examines the issues of the competence of the arbitral tribunal in cases of administrative offenses, their legal nature, analyzes the judicial practice in this category of cases. The author made proposals on the need to optimize the legislation governing legal proceedings in cases of administrative offenses in courts of general jurisdiction and arbitration courts, taking into account the novelties of the Federal Law of 11.28.2018, appropriate adjustments are proposed for the new edition of the Code of Administrative Offenses of the Russian Federation.

Reflexive Transnational Law

2002 ◽  
Vol 23 (2) ◽  
Author(s):  
Graff-Peter Calliess
Keyword(s):  
Dispute Resolution ◽  
Legal System ◽  
Private Law ◽  
Domain Name ◽  
Commercial Arbitration ◽  
Transnational Law ◽  
Resolution System ◽  
Law Merchant ◽  
Lex Mercatoria ◽  
Self Reference

SummaryThe author examines the emergence of a transnational private law in alternative dispute resolution bodies and private norm formulating agencies from a reflexive law perspective. After introducing the concept of reflexive law he applies the idea of law as a communicative system to the ongoing debate on the existence of a New Law Merchant or lex mercatoria. He then discusses some features of international commercial arbitration (e.g. the lack of transparency) which hinder self-reference (autopoiesis) and thus the production of legal certainty in lex mercatoria as an autonomous legal system. He then contrasts these findings with the Domain Name Dispute Resolution System, which as opposed to Lex Mercatoria was rationally planned and highly formally organised by WIPO and ICANN, and which is allowing for self-reference and thus is designed as an autopoietic legal system, albeit with a very limited scope, i.e. the interference of abusive domain name registrations with trademarks (cybersquatting). From the comparison of both examples the author derives some preliminary ideas regarding a theory of reflexive transnational law, suggesting that the established general trend of privatisation of civil law need to be accompanied by a civilisation of private law, i.e. the constitutionalization of transnational private regimes by embedding them into a procedural constitution of freedom.

scholarly journals Alternative Dispute Resolution vs. Judicial Conciliation in the Civil Process of Transit States: A Comparative Study

2020 ◽  
Vol 10 ◽  
pp. 400-411
Author(s):  
Oleksandr B. Tykhanskyi ◽  
◽  
Oksana Z. Khotynska-Nor ◽  
Nataliia V. Vasylyna ◽  
Maria V. Bondarieva
Keyword(s):  
Comparative Study ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
General Direction ◽  
Scientific Methods ◽  
Civil Process ◽  
Legal Nature ◽  
Legal Innovation ◽  
The Russian Federation ◽  
Statutory Regulation

The study investigates the current problems of judicial and extra-judicial conciliation procedures (alternative ways of resolving civil disputes) in states that have just started implementing such a procedural tool. Despite the fact that the term "conciliation procedures” is actively used in the science of civil procedure, this category is rather vague in countries that are just beginning to apply judicial conciliation in parallel with other conciliation procedures. Priority attention is focused on practical, legislative, and scientific problems of applying this procedural tool for rapid resolution of legal conflicts in Ukraine, as a state that only in 2017 (and in fact since the beginning of 2018) introduced this legal innovation. The purpose of the study is to elaborate on the legal nature and correlation between judicial conciliation (settlement of civil disputes with the participation of a judge under Ukrainian legislation) and alternative ways of resolving civil disputes. The study is based on several scientific methods that have identified the logic and general direction of knowledge of the problem of judicial conciliation. In particular, to determine the legal nature, essence, criteria of correlation, and delimitation of alternative dispute resolution and judicial conciliation, the study used the dialectical scientific cognition method. The study engages in a comparative study of the statutory regulation of similar procedures in the Russian Federation and Belarus legislation. It is concluded that alternative dispute resolution and judicial conciliation are closely interrelated and, depending on their types, can sometimes manifest themselves as synonymous categories or institutions of law.

scholarly journals Technogenic mineral accumulations: problems of transition to circular economy

2021 ◽  
Vol 6 (2) ◽  
pp. 73-89
Author(s):  
M. N. Ignatyeva ◽  
V. V. Yurak ◽  
A. V. Dushin ◽  
V. E. Strovsky
Keyword(s):  
Circular Economy ◽  
Legal Status ◽  
Raw Materials ◽  
Economic Incentives ◽  
Federal Law ◽  
Commercial Exploitation ◽  
Private Partnership ◽  
Legal Nature ◽  
The Russian Federation ◽  
Study Hypothesis

The study hypothesis is determined by the statement that the identification of a set of issues covering all stages of introducing technogenic deposits into economic turnover will allow focusing on solving a set of complex problems associated with technogenic mineral accumulations (mining waste). The aim of the study was to identify problems requiring priority resolution, which, in turn, accelerated the transition to a circular economy (implementation of the concept of closed supply chains) in the context of handling technogenic mineral accumulations. In the course of the study, issues of legal nature were identified (caused by the absence of the legal status of technogenic deposits and the regulation of their use regime in the Federal Law of the Russian Federation “On Subsoil”). A number of aspects are due to the complexity and cost of development of technogenic deposits, which are rightfully classified as unconventional types of raw materials, and in most cases require state support (for involving in commercial exploitation) in the form of a system of economic incentives, the feasibility of which should be confirmed by newly-elaborated regulatory legal acts. State should use the tools of public-private partnership in solving waste problems, in particular, referring to the positively proven experience of implementing regional target programs for processing of technogenic mineral accumulations. Viability of transition to circular economy in the sphere of handling technogenic mineral accumulations depends on the timeliness of the identified problems solution.

scholarly journals Relations on Taxes Imposition as General Regulatory Tax Relations

Lex Russica ◽  
2019 ◽  
pp. 60-71
Author(s):  
S. A. Yadrikhinskiy
Keyword(s):  
Legal Status ◽  
Public Law ◽  
Regulatory Control ◽  
Active Involvement ◽  
Legitimate Interest ◽  
Legal Relationship ◽  
Legal Nature ◽  
Legitimate Interests ◽  
The Russian Federation ◽  
The Right

In the paper the author attempts to define the legal nature of relations regarding establishment and introduction of taxes and fees in the Russian Federation. The author refutes the traditional ideas about the absolute model of such legal relations, as the alleged circle of obligated persons does not have the potential to prevent implementation of the sovereign right of the authorized party. It is concluded that relations concerning the imposition of taxes amount to general regulatory relations with broader legal relations, where the right of the authorized person corresponds to the legal status manifesting connectedness, dependence of the opposing subject as the actions of the authorized entity inevitably affect his or her interest. The author identifies the subjects (participants) in such relations and analyzes the peculiarity of their interaction that is manifested in a bilateral (mutual) legal relationship. The paper demonstrates the rights-obligations status of the participants of such relations through direct and reverse legal relations. The State acts not only as a holder of power, but also as the main guarantor of the rights and legitimate interests of all citizens. The article scrutinizes the content of the legitimate interest of the taxpayer based on the fundamental principles of tax law and determining the lawmaker’s behavior.Based on the analysis of the legal relationship between a public law entity and the taxpayer, the author outlines the boundaries of discretionary powers and criteria of discretion of the legislator in the process of imposition of taxes. The tools of reasonable deterrence of fiscal appetite include legal requirements, as well as constitutional and legal justification of legislative decisions.The author emphasizes the importance of active involvement of the taxpayer in the process of regulatory control of legislative provisions.

Dispute Resolution in Modern Stream of Commerce: the Problem of Using of the Terms “Arbitration” and “Arbitration Court” in the Context of Existing Russian Legislation

2016 ◽  
Vol 4 (10) ◽  
pp. 0-0
Author(s):  
Александра Бойченко ◽  
Aleksandra Boychenko
Keyword(s):  
Comparative Analysis ◽  
Dispute Resolution ◽  
Russian Federation ◽  
Daily Life ◽  
Potential User ◽  
Legal Systems ◽  
Commercial Arbitration ◽  
The Status ◽  
The Russian Federation ◽  
Commercial Disputes

The author studies the problem of using of the terms “arbitration” and “state arbitration court” in the context of their use in relation to relevant institutions for resolution of commercial disputes. Through a comparative analysis of the term “arbitration” in the legal systems of some States, including the Russian Federation, the author identifies the differences and possible resolving ways of the problem of mixing these terms in Russia. On the basis of the research the author has arrived to the conclusion that it will be useful to change this terms in relation to state arbitration courts. In particular, the author proposes to call them economic, commercial or economic in order to prevent errors in the name of the courts in daily life and avoid the introduction of potential user confusion. The author believes that more preferable in this context the using of the term “commercial and administrative courts”. Also in the article was examined the problem of the Russian approach to the status of International Commercial Arbitration and its resolution of commercial disputes.

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