IJ № 4 (36) 2020

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CONTENTS

TRIBUNA

DECISIONS OF INTERNATIONAL COURTS: FOLLOWING PRECEDENTS OR CONSISTENT JURISPRUDENCE?

Sergey Belov, Sergey Manzhosov

The contemporary international law doctrine is critical to the notion of binding force of general positions of international courts. The grounds for this critics is more weighty in international law than in domestic law. If in the latter general binding force of judicial decisions erga omnes questions the separation of powers, in the former the states as the main actors of the international relations try to participate and control any norm-making. At the same time international courts realize the necessity of consistency of interpretation and applying of legal norms and principles, as unpredictable decisions breach the certainty of law. These courts demonstrate surprising uniformity of approaches to this issue, disregarding their status, legal grounds for their jurisdiction, the nature of the cases they consider.

FORUM INCOGNITA

INTERNATIONAL SPACE LAW OF THE ERA OF THE BEGINNING OF THE BUSINESS COLONIZATION OF SPACE

Alexey Ispolinov

The article is available for free download

Traditional approach to the activity in outer space as exclusive domain of few big space faring states through special governmental agencies as a sort of natural monopolies is rapidly placing by the prevailing view that such activity could be successfully and efficiently performed by private entities and fair competition between such players shall be allowed and is even desirable. Increasing participation of private capital in exploration of the resources of outer space is a persuasive confirmation of the emerging large-scale, self-sufficient economy of the New Space attractive for potential investors. Such economy requires sufficient level of legal certainty in a form of effective legal rules adequately reflecting contemporary reality and capable to guarantee the rights of commercial players in exploration of space resources including ownership rights on space resources obtained.

OPINION JURIS

POLITICISING LAW OR LEGALISING POLITICS? JUSTICIABILITY AND THE “POLITICAL QUESTION” ON THE EXAMPLES FROM INTERNATIONAL JUSTICE

Mikhail Gal'perin

Author is pointing out the problem of interaction between the political nature of the dispute concerned and the competence of international tribunals. To assess such legal interaction the “justiciability” concept is used. This concept, well known from the US and the UK jurisprudence, allow national courts, for the purpose of stable state administration, to exercise “prudency” in invalidating executive acts, guarantee the operation of the principle of separation of powers, preserve the legitimacy of an unelected judicial branch allowing it, at the same time, to participate in a dialogue with the other branches and the public. Despite the fact that the concept initially appeared in the national law, it became equally important for the international dispute resolution system.

JUS DIGITUS

HANDLING FACEBOOK: SOCIAL MEDIA IN THE LIGHT OF HUMAN RIGHTS VIOLATIONS

Gleb Bogush, Olga Kudinova

The article assesses the existing international legal regime of human rights obligations of global social media corporations, as well as their role in administration of international justice, by examining the case of the use of Facebook disseminating hate speech and inciting violence against the discriminated group of Rohingya in Myanmar. The authors analyze the report of the Independent International Fact-Finding Mission on Myanmar, Facebook’s reaction to the information of its influence on the situation with Rohingya, and measures taken by the company to reduce the negative impact of its business activity on human rights.

JUS POST BELLUM

TRANSITIONAL JUSTICE IN COLOMBIA: UNREALIZED POTENTIAL

Aleksandr Evseev

The article analyzes the theoretical and practical problems that arise during the construction of the Colombian model of transitional justice. The latter is viewed as a combination of judicial and quasi-judicial means, with the help of which it becomes possible to achieve a peaceful settlement after the end of the civil war of 1964–2016. Particular attention is paid to the socio-political context and mass sentiments prevailing in Colombian society regarding the legitimacy of transferring the Anglo-American construction of Transitional Justice to Latin America.

JUS CRIMINALE

THEORY AND PRACTICE OF MIXING PROCEDURAL MODELS IN THE PRE-TRIAL CHAMBER OF THE INTERNATIONAL CRIMINAL COURT MECHANISM OF FUNCTIONING

Denis Pechegin

The increasing interpenetration of the main models of the process and the approval of international standards for the production of criminal cases raise the question of the development and improvement of the form of legal proceedings in the category of the most relevant in modern science. On the one hand, the attention of many scientists is focused on strengthening the competitive core of the process and ensuring, as far as possible, a balance of power between the parties. On the other hand, it is stated that legal proceedings that do not pursue the goal of achieving material truth, especially due to the absolute nature of the principle of competition, lead to excessive formalism that has nothing to do with fair trial.

LEX MERCATORIA

INTERNATIONAL INVESTMENT ARBITRATION: DECISIONS 2017–2018 ON THE MERITS OF THE DISPUTE

Ilia Rachkov, Elizaveta Rachkova

In the previous article, the author reviewed the decisions of international investment arbitration 2017–2018 on the jurisdiction and admissibility of claims. This article reviews the decisions of these arbitrations for the same period on the merits of the disputes. A special place among these decisions is taken by decisions on claims of foreign investors on violation by the host state of the regime (or standard) of fair and equitable treatment. This is quite natural: violation of this standard is the most common claim. In 2017–2018 in particular, many lawsuits in which such claims were made were related to the generation of electricity from renewable sources, mainly from solar energy. These claims were based on the 1994 Energy Charter Treaty.

JUS GENTIUM

THE IMPACT OF SANCTIONS ON THE RESOLUTION OF INTERNATIONAL BUSINESS DISPUTES: MAINTAINING THE STATUS QUO OR LOOKING FOR ALTERNATIVE JURISDICTIONS?

Vladislav Starzhenetskiy, Saglar Ochirova

The negative impact of the economic sanctions is not limited to the sphere of substantive law; it also extends to issues related to dispute resolution. Trying to achieve a fair resolution of disputes sanctioned persons may face many obstacles literally at every stage of the proceedings, starting with problems related to payment of arbitration fees, searching for counsels and arbitrators who are often reluctant to taking corresponding sanctions risks, and ending with the stage of enforcement of a judgment or an arbitral award.

LEX SPORTIVA

THE LEGAL PHENOMENON OF LEX SPORTIVA IN INTERNATIONAL SPORTS LAW

Artem Bredikhin

This paper is devoted to lex sportiva as one of the most important tools for regulating cross-border relations in the field of sports. The author examines the origin and legal nature of lex sportiva as well as its impact on national legislation in the field of sports. Moreover, the author elaborates on possible meanings of this notion: lex sportiva as a set of rules of self-regulation, as a set of decisions of the Court of Arbitration for Sport, as a legal principle, as a phenomenon of implementation, and as a criterion for determining the amount of compensation.