Interpretation of the jurisdictional prerequisites in EU civil and commercial matters in the process of practical application of the Brussels I Regulation in the light of the CJEU jurisprudence

The possession of national jurisdiction by the court is a condition sine qua non for the possibility to resolve the case. Its lack results in the invalidity of the proceedings in accordance with the disposition of Article 1099 § 2 of the Code of Civil Procedure. After the amendments in 1997 and the doctrine’s acceptance of the division of domestic jurisdiction into jurisdiction in the international legal sense and international jurisdiction, these institutions are no longer included in the concept of a court path. At present, admissibility of a court path and international jurisdiction are treated as two separate procedural institutions which, on their own, constitute prerequisites for proceedings. Do EU cases differ in this respect from cases without a cross-border element? Is the interpretation of EU law different from the traditional interpretation in domestic cases? Should a purpose-oriented interpretation prevail? The author attempts to answer these and other questions in this text.

RE-Domiciliation to Russia: The Study of Legal and Psychological Motivations

The paper was prepared based on the materials of a sociological study conducted by the author in order to reveal the attitude of respondents to the organizational measures and legal innovations implemented by the Russian Federation aimed at the re-domiciliation of organizations registered offshore to the Russian jurisdiction, as well as the return of their assets to the domestic economy. The objective of this work is to determine the proportion of respondents who agree to the implementation of re-domiciliation in the Russian Federation on the terms proposed by the legislator, reasons preventing re-domiciliation, factors that increase the interest in “moving business” from offshore zones to the Russian Federation. As a result, the author determines that the organizational and legal conditions for re-domiciliation are acceptable for almost half of the respondents. At the same time, the one-fifth of the respondents evaluate the prospect of re-domiciliation to the domestic jurisdiction as inappropriate, since in principle they do not trust the Russian Federation and do not want to accumulate assets on its territory regardless of the attractiveness of the proposed conditions. The results of the survey held among respondents planning to engage in entrepreneurial activity (to do business) in the future showed that this group of survey participants demonstrates a more negative attitude towards the use of offshore jurisdictions (compared to other categories of respondents) and generally perceive as attractive the idea of re-domiciliation in the Russian Federation. The most significant obstacle to re-domiciliation is formed due to the uncertainty among the research participants in the stability of Russian legislation, which poses the task before the State and the scientific community to develop legal safeguards concerning the invariability of the legal regime of entities re-domiciled in the Russian Federation. The attitude of the respondents to the ongoing change in the agreements concerning avoidance of double taxation concluded by the Russian Federation with foreign states demonstrates a surprising outcome of the survey: these agreements’ revision acts as a demotivating factor.

Part 3 Protection, 13 Nationality, Statelessness, and Protection

This chapter studies nationality, statelessness, and protection. Domestic law determines the content of nationality, and historically only those elements of nationality bearing on the relations between States were considered of relevance to international law. Questions of nationality, therefore, are in principle within the reserved domain of domestic jurisdiction, even if that leaves many questions open. At one time, it was easier to envisage that the realm of the domestic might not be co-extensive with the realm of the international—that a State’s nationals for the purposes of international law, might yet be divided ‘back home’ into those who did, and those who did not, enjoy the full benefits of civil status. In a post-modern age sensible of human rights, such distinctions, though not unknown, are difficult to justify. If the domestic conception of citizenship did not encompass a sense of protection by the State, including admission or re-admission, then it failed as an instance of nationality in the sense of international law. The chapter then reflects on statelessness in international law and practice. It looks at the elimination and prevention of statelessness and the protection of stateless refugees.

Dynamics of Trademark Dilution: Issues and Challenges in India and USA

Trademarks of an establishment cannot solely be associated with identification of origin or source. It performs an imperative task of building brand name and value. The dilution theory rejects the opinion that the role of a trademark is solely based on the recognition of the root or source of its origin and that it is not only a figurative representation but carries a creative aspect as well. For the most recent decade, the greatest inquiry in trademark law has been the manner by which to demonstrate weakening or dilution. Dilution has turned out to be a dauntingly slippery idea. The principal issue with dilution law is that it gives a cure without a supportable hypothesis of the harm or damage. Even though lately the concept has been recognized in International as well as domestic jurisdiction putting an immense responsibility on domestic jurisdiction to protect trademarks against dilution, very little has been discussed or clarified regarding the theory of dilution. Ambiguity of such nature facilitated this research trying to spot some light on the theory of dilution comparing it from divergent angles in different jurisdictions. The paper also highlights the interpretation mechanism of the courts of the dilution provision and explains the concept further with reference to important cases under the U.S. laws and European judgments in the context of the Dilution laws and draws a comparative analysis of the effectiveness of the legal framework present in India with that of the USA.

Accessing Data in the Cloud

This chapter describes the legal framework governing law enforcement access to data in a cloud environment, giving particular attention to developments in the European Union, the United States, and international law, specifically the Council of Europe Cybercrime Convention (Cybercrime Convention). The Convention addresses the investigation and prosecution of cybercrime within the domestic jurisdiction, as well as facilitating international co-operation against transborder cybercrimes. The provisions represent a certain consensus among the signatories about the appropriate exercise of law enforcement powers in cyberspace, including a cloud environment. However, the exercise of law enforcement agency (LEA) powers raises a number of jurisdictional questions. Each of these issues presents a boundary issue for LEAs, cloud service providers, and cloud users; a boundary between lawful and unlawful behaviours or regulated and unregulated activities. The chapter looks at how and when those boundaries apply and what mechanisms and procedures have been adopted, or are proposed, to address the needs of LEAs in a cloud environment.

The Republic at the Table, with Decolonisation on the Agenda: The United Nations Security Council and the Question of Indonesian Representation, 1946–1947

This article examines a formative episode in the history of both the United Nations Security Council and Indonesian decolonisation. In August of 1947, Council members authorised an ad hoc delegation from the Republic of Indonesia to participate in its discussions concerning the ongoing Dutch–Indonesian conflict. Focusing on the series of developments that led to the Indonesians taking their seats at the table, this article reveals how Security Council procedures and practices could be used to facilitate the decolonisation process. The Council's involvement in the Dutch–Indonesian conflict—and, in particular, the decision to allow the Indonesians to present their case in this international arena—demonstrates that Europeans’ claims of “domestic jurisdiction” over their colonial territories remained subject to negotiation, and that non-European actors could successfully contest these claims in Council chambers.

International legal dimension of the right to conscientious objection: considerations with respect to the ECtHR judgment in Dyagilev v. Russia

The article delves into international legal aspects of the enjoyment of the right to conscientious objection. It is argued that the collision between the permissive norm of international law providing for sovereign discretion to introduce and enforce domestic rules on matters which are essentially within the domestic jurisdiction of states, including those relating to compulsory military service, and the mandatory norm of international law ensuring the right to conscientious objection. The jurisprudence of the Human Rights Committee and the European Court of Human Rights pivots upon the assumption that the right to conscientious objection is derived from the right to the freedom of thought, religion, and conscience and is covered by the international human rights treaties enshrining the latter (including Article 9 of the European Convention on Human Rights and Fundamental Freedoms). It is revealed that the standard which has been found in ECtHR jurisprudence means that Article 9 defends the opposition to military service, where such opposition is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, with states parties retaining a certain margin of appreciation and being able to establish assessment procedures to examine the seriousness of the individual’s beliefs and to prevent the abuse of the right. However, in Dyagilev v. Russia the Court did not take into account that the circumstances of the case point out the actual unlimited margin of appreciation in this area, which leads to the situation when the conscript had had to provide “evidence” that he was a pacifist (in the absence of legally outlined minimum criteria helping assess the substantiation), but not to substantiate the very request by the fact that he shared pacifist views. Consequently, such a broad margin of appreciation implies that the state abuses its sovereignty, for the procedure of the examination of requests runs counter to the purpose of the right to the freedom of conscience and, consequently, the right to the conscientious objection.

Evolution and content of the principle of peaceful settlement of international disputes in International Law

This article introduces a brief outline of the inter-State conflict types. The evaluation considers the principle of peaceful disputes’ settlement evolution from antiquity to the present based on the legal analysis of historical and international legal sources. The article looks at the content of this principle and a comparative legal study of peaceful dispute resolution laid down in the UN Charter and other international legal instruments. The authors conclude that the peaceful international disputes settlement is a complex, integrated principle with several interrelated elements and the content incorporated in various international legal instruments. The article highlights the vital role of appropriate freedom of States to choose the remedies of settling their disputes. This right is a corollary to two interrelated international law principles – the sovereign equality of states and non-interference in matters within their domestic jurisdiction.

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

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.