CONTENTS
RES JUDICATA
Maria Suchkova
In its judgment in the case Schatschaschwili v. Germany of 2015, the Grand Chamber of the European Court of Human Rights has clarified its approaches to the right to examine witnesses for the prosecution guaranteed by Article 6 § 3(d) of the European Convention on Human Rights, and to the scope of the corresponding obligations of domestic courts in cases where the testimony of a prosecution witness is read out at trial. The Court has made an attempt to summarize and tackle the inconsistencies in its case-law following the Al-Khawaja and Tahery judgment, in which applying of the three-part test in cases of failure to secure the presence of a witness for the prosecution during trial was crystallized.
EX OFFICIO
Tatyana Neshataeva
he present article, inspired by the establishing of the Eurasian Economic Union, discusses the intricate questions of effects of supranational legal acts upon and within the national law frameworks. The author demonstrates that the decisions of supranational bodies are effective within the national legal systems without enactment of national laws, what presupposes transfer of the power to establish uniform rules of conduct to the supranational international organization and recognition of this supranational jurisdiction. Special attention is payed to the characteristics of international and supranational courts’ decisions. In this respect, the author, dwelling on her own comparative study, concludes that the decisions made by international courts are of a clearly distinct nature, differing from the decisions of supranational courts: whereas the former are only binding upon the parties of a dispute, the latter are binding upon every member state of a supranational entity – erga omnes.
JUSTICIA
ENFORCEMENT OF ANNULLED FOREIGN ARBITRAL AWARDS: WELCOME DEVELOPMENT OR PATHWAY TO UNCERTAINTY?
Anna Matveeva
One of the most debatable topics in the field of the development of international commercial arbitration is the legal status of the vacated foreign arbitral awards and the possibility of their enforcement abroad. This problem is relevant both when defining a common doctrinal approach, and while ensuring the uniformity of global judicial practice, including in case of international economic disputes. Nowadays the dispute between the members of international arbitration community as to the enforceability of foreign arbitral awards set aside in the country of origin is far from being settled. There are several key aspects, regarding which a consensus is so elusive.
JUS HOMINUM
Dmitri Bartenev
In 2016 the UN Committee on the Elimination of Discrimination Against Women (the CEDAW) adopted its views in the first case against Russia by Svetlana Medvedeva who had been banned from becoming a helmsperson-motorist with a Russian river navigation company. The UN Committee criticized as discriminatory the list of prohibited jobs for women which included over 400 professions. The CEDAW acknowledged that the prohibition was motivated by the need to protect women from harmful work conditions however, unlike the Russian Constitutional Court in a similar case, rejected such justification as manifestly discriminatory.
SPEEDINESS OF JUDICIAL REVIEW OF THE LAWFULNESS OF DETENTION: EUROPEAN APPROACH TO RUSSIAN PROBLEMS
Alexey Laptev
The article provides an analysis of case-law of the European Court of Human Rights on the requirement of “speediness” of judicial review of the lawfulness of detention (Article 5 §4 of the European Convention on Human Rights) in the context of criminal proceedings. Its approach to the periods and relevant factors to be taken into consideration when assessing speediness of the proceedings has been explored. The Court’s standards concerning the question of compliance with the “speediness” requirement are rather strict. It can be deduced from its case-law that two weeks at first instance and three weeks on appeal may be a rough rule of thumb in such cases.
JUS COMMUNE
PRECEDENT IN THE JURISPRUDENCE OF THE EUROPEAN UNION COURT OF JUSTICE
Aleksei Ispolinov
This article explores the meaning of precedent in the practice of the Court of Justice of the European Union, particularly, a binding character of previous CJEU decisions. In his paper the author argues that despite the fact that CJEU (in striking contrast with the European Court of Human Rights and other international courts) has never formulated its own attitude towards precedential (or quasi-precedential) value of its own judgments, the Court nevertheless tends to follow its previous rulings, only in exceptional circumstances trying to deviate from or overrule them. Within this article, the precedential footing of the CJEU judgments and decisions is viewed from three vision angles. First, considering the obligation of the CJEU to follow its own decisions. Secondly, in regard of binding character of the CJEU decisions for lower EU courts (vertical precedent principle), namely for the General Court and the EU Civil Service Tribunal.
LEX MERCATORIA
THE LEGAL EFFECT OF APPELLATE BODY RULINGS IN THE WTO DISPUTE SETTLEMENT SYSTEM
Joanna Gomula
The WTO dispute settlement system is based on a two-tier review, where parties to a dispute have the possibility of appealing issues of law and interpretations developed in a panel report to a standing tribunal, the Appellate Body. The jurisprudence developed in this period is impressive, with 300 panel and Appellate Body reports adopted up to 2016 year-start. For many years, the Appellate Body’s supreme position in the hierarchy of this system was largely unchallenged. This changed in recent years as a result of a series of anti-dumping disputes, in which a number of panels disagreed with the Appellate Body’s interpretation of the Anti-Dumping Agreement and its findings that all categories of “zeroing” – a practice applied in anti-dumping determinations – were WTO-inconsistent. Since the “zeroing” disputes, many panels have invoked Article 11 of the WTO Dispute Settlement Understanding, asserting their right and duty to make an objective assessment of matters brought before them, independently of the Appellate Body’s prior interpretation of similar issues.
OPINIO JURIS
Maria Filatova
Modern development of legal systems and their interaction raises new issues of both theoretical and practical nature. The participation of Russia in different integration units makes the Russian law enforcement bodies face new challenges, the attempts to offer solutions of which have been taken, in particular, by the Russian Constitutional Court. Again we face the issue on the hierarchy of constitutional and supranational norms, overcoming conflicts between them and interaction of national (first of all, constitutional) and supranational courts. In particular, in its decisions of 2015–2016 the Russian Constitutional Court took a step forward to a new legal methodology aimed at solving the conflicts between supranational acts (including those of the Eurasian Economic Union and the European Court of Human Rights) and constitutional approaches and provisions.
Dmitry Krasikov
its Judgment of 19 April 2016 No.12-P the Russian Constitutional Court puts forward and justifies an “objection” towards the European Court of Human Rights relying on certain elaborated by the Constitutional Court conditions for acceptance by the Russian legal system of the ECtHR’s judgments and interpretation of the Convention for the Protection of Human Rights and Fundamental Freedoms. The present article reflects the results of a research on the issue of what constitutes the basis of this “objection”. It is argued in the article that the Constitutional Court’s line of arguments only creates an illusion of evaluating the possibility of interpretation of the Article 32(3) of the Constitution of the Russian Federation in consistency with the ECtHR’s approach, and that the Constitutional Court’s recourse to the factor of circumstances and conditions of Russia’s accession to the Convention has certain deficiencies in reasoning from the standpoint of law and facts. Additionally, the article identifies the problems of perceiving of the European consensus concept by the Constitutional Court.
FORUM INCOGNITA
REFORMING INTERNATIONAL RESOLUTION OF DISPUTES BETWEEN FOREIGN INVESTORS AND HOST STATES
Iliya Rachkov
The current system of international resolution of disputes between foreign investors and the states hosting their investments needs to undergo reforms. Both the host states and the investors realize that from existing mechanism bears a number of problems: risk of unexpected consequences from entering into international treaties on foreign investments (e.g. regulatory chill), lack of consistency in the applicable rules of international law and in the dispute resolution, etc. In this article the author shows three possible options for reforming of the existing mechanism by distinguishing between them depending on how radical they are. The palliative way of reforming suggests solving existing problems without changing the institute as such. The modernizing way suggests adding new elements to the existing model.