scholarly journals Peculiarities of responsibility to arbitrators of international commercial arbitration

Legal Ukraine ◽  
2019 ◽  
pp. 32-39
Author(s):  
Keyword(s):  
Criminal Liability ◽  
Legal Framework ◽  
Point Of View ◽  
Quantitative Composition ◽  
Commercial Arbitration ◽  
Wrong Decision ◽  
International Commercial Arbitration ◽  
Foreign Countries ◽  
Black List ◽  
The Right

The article explores the problems of arraignment of arbitrators, while analyzing both the legal framework for international commercial arbitration of foreign countries and the existing arbitration practice. In particular, it is emphasized that the arraignment of arbitrators is quite problematic, as there are significant omissions and gaps in the domestic arbitration laws of several states, which avoids the liability of unfair arbitrators. However, given that international commercial arbitration is a non-governmental institution, built on the principle of autonomy of the will of the parties, which allows the parties to influence positively the arbitration (by determining the right on the basis of which the dispute, languages and places of arbitration will be settled and the quantitative composition of arbitration, etc.), in this case, the role of ethical rules is growing significantly. Accordingly, unscrupulous arbitrators cannot further claim to be involved in arbitration proceedings, as they fall into the so-called «black list of arbitrators» and the parties refuse to provide their services. This «public disclosure» method can be viewed to some extent as a means of preventing arbitrators. From a practical point of view, we consider it justified to include in the regulations of international commercial arbitration tribunals the provisions on the application of sanctions for violation of the parties' consideration of their obligations. If the arbitrator makes a deliberately wrong decision, it is advisable to provide for the following sanctions: withdrawal (in particular, the grounds for dismissal should be: financial dependence, subordination and other professional relations of the arbitrator with one party; the same nationality of the arbitrator and one or both parties; or opinion; court precedents); suspension of activity, prohibition on occupation of certain positions, liability for damages, administrative and criminal liability. Key words: arbitration, international commercial arbitration, arbitrator, responsibility of arbitrators, sanctions in international commercial arbitration.

scholarly journals LIABILITY OF LEGAL ENTITIES IN CORPORATE LAW: ISSUES AND PERSPECTIVES

2017 ◽  
pp. 17-20
Author(s):  
Ольга Терновая ◽  
Olga Tyernovaya
Keyword(s):  
Criminal Liability ◽  
Effective Means ◽  
Integrated Approach ◽  
Criminal Code ◽  
Corporate Law ◽  
Point Of View ◽  
Foreign Countries ◽  
Commercial Code ◽  
The Right ◽  
Legal Entities

The article deals with the issues associated with the withdrawal from responsibility by founders of a legal entity. To solve this problem a legislator uses not only private but also public legal measures. The author explores the specific features of the emergence and perspectives of using the doctrine of lifting the corporate veil as an effective means of countering the abuse of law. The two main approaches to the application of the doctrine of lifting the corporate veil in foreign countries are investigated. If in Common law countries a compulsory condition for bringing a corporation member to responsibility is the fact of abuse of the right, in Civil law countries the major approach is the presumption of responsibility of the parent company for the obligations of the subsidiary. Based on the analysis of Russian jurisprudence and legislation the author concludes that the doctrine under consideration is not widespread in Russia which is why there is a need to improve Russian legislation on the liability of legal persons in corporate law. It is noted that there are issues which creditors face in the reorganization and bankruptcy of legal entities, as well as the liability of legal entities for violation of legislation that leads to forced reorganization. An interesting feature of French law is that the rules on criminal liability for corporate violations are contained not in the Criminal Code but in the Commercial Code. Comparative analysis of judicial practice, doctrines and various provisions of Russian and French legislations allows us to conclude that the discussion of the prospect of criminal liability of legal persons in Russian corporate law requires an integrated approach. It is proposed to conduct comparative studies of the experience of foreign countries in which criminal liability of legal entities for violations of corporate legislation has already been introduced. From this point of view, the French experience is particularly interesting.

Part 2 Determining the Applicable Attorney–Client Privilege Standard, 8 Applicable Privilege Standard in International Commercial Arbitration

2017 ◽  
Author(s):  
Möckesch Annabelle
Keyword(s):  
New York ◽  
Legal Framework ◽  
Equal Treatment ◽  
Common Denominator ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Mandatory Rules ◽  
Recognition And Enforcement ◽  
New York Convention

This chapter contains an analysis of the most appropriate way to determine the applicable attorney–client privilege standard in international commercial arbitration. To this end, this chapter deals with the characterization of privilege as substantive or procedural, the legal framework for attorney–client privilege in international commercial arbitration, international mandatory rules of law, and the enforcement regime under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. Against this background, the chapter includes an analysis of the possible approaches to determining the privilege standard. These include the application of general principles of law, the application of a single national law determined through a choice-of-law approach such as the closest connection test, the cumulative application of several national laws, and the creation of an autonomous standard defining the scope of attorney–client privilege. Lastly, the chapter examines whether corrective measures, such as the lowest common denominator approach or the most protective rule, are needed to ensure equal treatment of the parties and fairness of the proceedings. This chapter concludes with key findings on how to determine the applicable attorney–client privilege standard in international commercial arbitration.

Arbitrability of Corporate Disputes: National Realities and Foreign Experience

2020 ◽  
Vol 11 (4) ◽  
pp. 1184
Author(s):  
Nataliia S. KUZNIETSOVA ◽  
Yurii D. PRYTYKA ◽  
Mykhailo M. KHOMENKO
Keyword(s):  
Multinational Corporations ◽  
World Economy ◽  
Significant Part ◽  
Current Version ◽  
Commercial Arbitration ◽  
National Legislation ◽  
International Commercial Arbitration ◽  
Foreign Countries ◽  
The World

The tendency to promote alternative ways of resolving disputes and their effectiveness leads to the expansion of the scope of their application. The relevance of corporate dispute arbitration relates to the rising number of multinational corporations and the general tendencies of globalization and regionalization of the world economy. To identify the main tendencies in the development of national legislation, it is necessary to study the genesis of corporate dispute arbitrability. The purpose of the paper is to determine the scope of corporate disputes that may be submitted to the consideration of international commercial arbitration (arbitrable corporate disputes) under the current legislation of Ukraine (in particular, in light of the reform of procedural legislation in 2016) and the prospects for the dynamics of corporate arbitrability in the future. The tasks of the paper are to analyze the genesis of corporate dispute arbitrability; to analyze the legislation of foreign countries on arbitrability of corporate disputes; analysis of the efficiency of corporate litigation in international commercial arbitration; research into the expediency of expanding the range of arbitrable corporate disputes in the national legislation of Ukraine. There was a negative tendency in the Ukrainian legislation, formed by the current version of the COD of Ukraine, regarding the classification of at least a significant part of corporate disputes in the category of non-arbitrable, which not only does not correspond to the general global tendencies in this area, but also significantly reduces the level of investment attractiveness of Ukraine.

scholarly journals Establishment and development of legal regulation of the court's activity in transfer of foreign citizens sentenced by Russian courts to serve their sentence in the country of citizenship

2021 ◽  
pp. 85-93
Author(s):  
Alexander Fedyunin
Keyword(s):  
International Cooperation ◽  
Russian Federation ◽  
Legal Framework ◽  
Legal Regulation ◽  
International Norms ◽  
Soviet Period ◽  
Special Role ◽  
Foreign Countries ◽  
The Russian Federation ◽  
The Right

This article analyzes the establishment of legal regulation of the court's activity in the consideration and resolution of the question of transferring foreign citizens sentenced by the court of the Russian Federation to serve their sentence in country of citizenship. The author offers periodization of the chronology of its evolution,  and draws attention to the gaps and inaccuracies in the current legislation and the need for amending normative legal framework, which is testified by the legal acts adopted by the state authorities of the Russian Federation, including those aimed at regulation of international legal relations in this sphere, as well as the works of the scholars-processualists. The conclusion is made that the corresponding court's activity acquires a special role. Compared to the Soviet period, national and international norms that regulate the court’s activity in this area have experiences significant changes, as the number of convicts transferred to their country of citizenship has increased considerably, the contractual practice of the Russian Federation has expanded, which is substantiated by the globalization processes and the need for the development and strengthening of international cooperation of the Russian Federation with foreign countries in the sphere of transferring foreign citizens. Examination of the chronology of changes experienced by the normative legal framework of the court’s activity in the course of its establishment and development, allows choosing the right direction for further improvements.

scholarly journals The Political Economy of the Constitutional Right to Asylum

2018 ◽  
Author(s):  
Lucas Kowalczyk ◽  
Mila Versteeg
Keyword(s):  
Human Rights ◽  
Original Data ◽  
Legal Framework ◽  
The Political ◽  
Data Set ◽  
Legal Standards ◽  
Legal Obligations ◽  
Foreign Countries ◽  
Self Interest ◽  
The Right

102 Cornell L. Rev. 1219 (2017)The issues of mass migrations, displaced persons, and refugees from war-torn countries are not new, but they have become particularly prominent and contentious in recent years and will garner even more attention as climate change refugees begin to cross borders seeking new homes in foreign countries. Academics and policy-makers have jointly turned to international law to remind states of their international legal obligations toward refugees; yet they are also quick to point out the inadequacies of the international legal framework. At the same time, efforts to address these inadequacies and to lay down general legal standards and policies to manage the growing migration flows have faltered. Surprisingly, in light of the mounting crisis, it has largely escaped the attention of commentators that a substantial number of countries provide a right to asylum in their constitutions. Remarkably, constitutional asylum provisions often go beyond states’ international legal obligations and establish permanent legal solutions for those seeking sanctuary. In addition, constitutional provisions are insulated from changing political tides and encourage governments to honor their commitments even when doing so lacks popular support. These constitutional provisions thus hold substantial promise to address some of the most pressing legal problems of our time. This Article offers the first systematic exploration of constitutional asylum provisions. It presents an original data set on right to asylum provisions in all national constitutions written since 1789, explores the first instances of adoption, and traces the right’s development over time. The data reveals that, currently, approximately thirty-five percent of all countries have constitutionalized the right to asylum. Drawing on both real-world examples and regression analysis, we find that constitutional asylum provisions serve a complicated purpose. Some constitutions frame asylum as a right for all those in need, thus, seemingly serving a true humanitarian purpose. Other states, however, use the right as an instrument to broadcast their doctrines and to cast judgment on the views of other countries by granting asylum only to those that share the ideology of the host nation. This latter version of the right to asylum is particularly prominent in authoritarian and socialist constitutions. Thus, asylum provisions can serve as both a humanitarian tool for providing state-sponsored sanctuary to persecuted persons and an overt instrument of foreign policy deployed to achieve the political objectives of the host nation.We further find that the adoption of asylum provisions can be motivated by self-interest. Even when framed as a universal right, asylum might be a useful tool to condemn the human rights records of foreign countries. Moreover, we find that countries with net refugee outflows, such as some of the smallest and poorest African states, as well as nations with aging and declining populations, such as Germany, more readily entrench the right to asylum in their constitutions. We conclude that these apparently self-serving motivations for constitutionalizing asylum rights are not necessarily detrimental for asylum-seekers, nor do they necessarily undermine the right: appealing to self-interest, rather than self-sacrifice or humanitarian ideals, might actually prove more effective in motivating states to ensure adequate protection of human rights, including the right to asylum.

scholarly journals Difficult way of the institution of criminal liability for attacks on the honor and dignity of the person, or problems of targeting

2021 ◽  
Vol 7 (2) ◽  
pp. 48-56
Author(s):  
T. V. Klenova
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Policy ◽  
Point Of View ◽  
Historical Method ◽  
Democratic State ◽  
The Individual ◽  
The Right ◽  
Criminal Legislation ◽  
The Impact

The article is devoted to the institution of criminal liability for attacks on the honor and dignity of the individual. The article, using the historical method, examines the stages of development of this institution and the features of protecting the honor and dignity of the individual from the point of view of the values of a modern democratic state. The author analyses the impact of explicit and implicit criminal policy objectives on the ways to protect the honor and dignity of the individual. Particular attention is paid to the criminalization and decriminalization of libel and slander. The research is aimed at identifying the problems of targeting in changes in the institution of criminal liability for attacks on honor and dignity, when the relevant criminal law norms are replaced by administrative law norms. The author seeks to depoliticize the protection of the personal right to honor and dignity on the basis of the principle of equality of citizens before the law. The current Russian criminal legislation is mainly aimed at protecting the honor and dignity of persons in connection with their social accessories. Within the protective concept of criminal law, the author of the article justifies the conclusion that the right of anyone who has suffered from slander or insult to achieve the truth and state censure of the perpetrator is guaranteed. Such a view will also be interesting to researchers of the criminal process.

scholarly journals Principles and procedure for forming temporary investigation commissions of the Verkhovna Rada of Ukraine

2021 ◽  
pp. 87-98
Author(s):  
Oleksandr Zozulia
Keyword(s):  
Public Interest ◽  
Legal Framework ◽  
Legal Regulation ◽  
Quantitative Composition ◽  
Structural Method ◽  
Legal Method ◽  
Current State ◽  
Depth Analysis ◽  
Rules Of Procedure ◽  
The Right

Realization an investigation by temporary investigative commissions of the Verkhovna Rada of Ukraine is one of the leading forms of parliamentary control in Ukraine. Nevertheless, their legal framework still needs to be improved, and parliamentary investigations are relatively infrequent with insufficient efficiency. In this regard, there is a need to study the current legal framework for the formation of temporary investigative commissions. The purpose of the work is an in-depth analysis of the principles and procedure for forming temporary investigative commissions of the Verkhovna Rada of Ukraine, determination their essence and features, as well as substantiation the priority directions for improving the constitutional and legal framework of their organization and activities. Methods. To solve the problems of the research, a number of methods of scientific knowledge were used, including formal-legal method, which determined the current state and problems of legal regulation of the formation of temporary investigative commissions. System-structural method – the unity and interrelation of the procedure of formation and termination of powers of temporary investigative commissions, staffing of their personnel are characterized; logical-semantic method – the essence of the grounds for the formation of temporary investigative commissions is revealed. Results. It is established that the formation of temporary investigative commissions for investigation certain «issues of public interest» allows to take into account the variability of such public interest and the objective impossibility of its exhaustive legal definition. However, this does not preclude the abuse of the right to form temporary investigative commissions in the absence of established parliamentary practice, traditions and political culture. The formation of the staff of the temporary investigative commissions based on proportional representation of each parliamentary faction (group) provides a majority in the temporary investigative commissions to the parliamentary coalition, which may be disinterested in conducting a thorough parliamentary investigation. Conclusions. It is substantiated that the development of constitutional and legal bases for the formation of temporary investigative commissions of the Verkhovna Rada of Ukraine should include expansion of constitutional guarantees for the formation of temporary investigative commissions and clarification of issues that cannot be the subject of parliamentary investigation. Other measures should be bringing the rules of procedure of the parliament in line with the relevant Law of Ukraine, taking into account the modern parliamentary practice of Ukraine and the experience of democratic countries, as well as application of disciplinary measures to members of the temporary investigative commission in case it fails to submit a report. It is also advisable prohibition of conducting parliamentary investigations into issues pending before the court, guaranteeing the opposition at least half of the seats in the temporary investigative commission, as well as legislative establishment of its minimum and maximum quantitative composition. The following measures should be establishing requirements for the professionalism and competence of the members of the temporary investigative commission and prohibition of combining senior positions in temporary commissions and committees of parliament.

scholarly journals The Meaning of Soft Law in International Commercial Arbitration

2016 ◽  
Vol 16 (1) ◽  
pp. 97-109
Author(s):  
Miluše Hrnčiříková
Keyword(s):  
Due Process ◽  
Fair Trial ◽  
Soft Law ◽  
Discretionary Power ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Arbitral Proceedings ◽  
The Right ◽  
The Impact ◽  
Discretionary Powers

Summary The growth in the amount of international arbitrations, the value of the disputes and expenses invested into the arbitral proceedings have escalated the pressure to succeed in dispute. The arbitrators face to guerrilla tactics or threats of annulment of arbitral awards based on the violation of a right to a due process. Soft law regulating the arbitral procedure endowers the effectives of the arbitration, however, in the recent years the critical voices can be heart which warn against overregulation and its judicialization. On the following pages the impact of the soft rules prescribing the arbitral proceeding on the effectiveness of the international commercial arbitration is examined. Firstly the author deals with the right to a fair trial and the discretionary power of arbitrators in the framework of the notion of soft law and then the binding character of this soft law is determined. The aim of this article is to answer the question whether the regulation of the arbitral proceedings by soft law is still welcomed or if it represents a threat for the discretionary powers of the arbitrator and arbitration as such.

scholarly journals International Commercial Arbitration: History, Modernity, Attempt to Look into the Future

Lex Russica ◽  
2020 ◽  
pp. 157-165
Author(s):  
G. D. Uletova ◽  
N. V. Kanishevskaya ◽  
A. A. Kukuev
Keyword(s):  
Dispute Resolution ◽  
Point Of View ◽  
International Standards ◽  
State Courts ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Existing Problems ◽  
Domestic Jurisdiction ◽  
The Will ◽  
And Control

The paper is a review of the textbook "International Commercial Arbitration", prepared by a group of authors under the scientific editorship of leading experts in the field of alternative dispute resolution, i.e. O.Yu. Skvortsov, M.Yu. Savranskiy, G. V. Sevastyanov. The significance of this publication is due to the need to develop a sustainable pro-arbitration approach in Russia, strengthen contractual principles in the field of legal conflict resolution, and develop international commercial arbitration (hereinafter referred to as the ICA) as an important component of increasing the attractiveness and competitiveness of the Russian jurisdiction. Legal science representatives and practicing lawyers have been in an active discussion about the role of arbitration institutions and arbitrators in modern civil commerce, the nature of arbitration, effective forms and methods (models) of interaction between state justice and arbitration, the limits of assistance and control of state courts in relation to arbitration courts, as well as the limits of the will of civil commerce participants in choosing forms and methods for resolving legal conflicts, and the importance for Russia, in the conditions of new challenges in the economy, and formation of a balanced Pro-arbitration policy. The reviewed book is the result of serious and very deep study of the ICA history and its contemporary state, all its major institutions. It contains the latest information about the most important directions of its modernization from the point of view of international standards and in the context of the Russian arbitration reform, demanded by both domestic and foreign business. The comparative legal research method chosen by the authors and reference to the best practices in the field under study made it possible not only to identify problems, current challenges and new trends in the field of arbitration, but also to propose a set of measures to solve existing problems in order to increase the role and authority of the ICA in Russia, increase confidence in the arbitration form of dispute resolution by state courts, expand the arbitrability of disputes, and increase the competitiveness of domestic jurisdiction.

Le droit d’accès au juge civil au Burundi

2020 ◽  
Author(s):  
Aimé-Parfait Niyonkuru
Keyword(s):  
Legal Framework ◽  
Point Of View ◽  
State Courts ◽  
Political Rights ◽  
Institutional Perspective ◽  
Anthropological Perspective ◽  
Access Rights ◽  
The Right ◽  
Civil Courts ◽  
Right Of Access

From an institutional point of view, Burundi's state courts and tribunals have a monopoly on administering civil justice through binding decisions. This work examines from a legal and institutional perspective the extent to which the Burundian legal framework meets the requirements of international guarantees for the effectiveness of access rights to civil courts and tribunals. These guarantees are enshrined, inter alia, in Article 14.1 of the International Covenant on Civil and Political Rights and in Articles 7.1.a) and 26 of the African Charter on Human and Peoples' Rights. Beyond the strictly legal approach, the work analyses, from a socio-anthropological perspective, factors which in Burundi influence the effectiveness of the right of access to civil courts and tribunals beyond the quality of the legal infrastructure.

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