«International Justice»
Issue IJ №1 (33) 2020

CONTENTS

RES JUDICATA

STATE OBLIGATIONS OF PROTECTING FROM DOMESTIC VIOLENCE: COMMENTARY ON THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS IN THE CASE VOLODINA V. RUSSIA
Olga Gnezdilova

The European Court of Human Rights for the first time found Russia liable for violation of the right to be protected from ill-treatment in the context of domestic violence. The Court indicated that the inaction of the state led to the failure to fulfill positive obligations to protect everyone within its jurisdiction from the ill-treatment. The Court reiterated that the obligations also extend to protection from the actions of private individuals, if the state was aware of the risk, but did not take preventive measures. It was also the first judgment where the Court has recognized that Russia permits discrimination based on sex, since women comprise the vast majority of victims of domestic violence and do not receive equal protection of the law.

EX OFFICIO

EUROPEAN COURT OF HUMAN RIGHTS: REVIEW OF THE JUDGMENT OF 13 JUNE 2019 (SECTION I) IN THE CASE OF MARCELLO VIOLA V. ITALY (APPLICATION NO. 77633/16)

EUROPEAN COURT OF HUMAN RIGHTS: REVIEW OF THE GRAND CHAMBER JUDGMENT OF 21 NOVEMBER 2019 IN THE CASE OF ILIAS AND AHMED V. HUNGARY (APPLICATION NO. 47287/15)

JUSTICIA

INVESTMENT ARBITRATIONS INVOLVING BRIBERY AND CORRUPTION: SOME PRELIMINARY CONSIDERATIONS
Stratis Georgilas

In this paper, the author explores how investment arbitration deals with bribery and corruption, especially when the latter arise in the course of (arbitration) proceedings, with the author focusing on the role and responsibilities of the arbitrators. The author also addresses some procedural issues, namely the issue of the impact of bribery and corruption on the legitimacy of investments and the jurisdiction of the arbitrators. The main conclusions reached by the author of the article are the following: firstly, international law, which regulates in detail the issues of combating bribery and corruption, has influenced the legal systems of different countries through changes and unification of their domestic legislation in this area, and, secondly, that the issues of “international public order”, such as bribery and corruption, consistently identified by the competent arbitration tribunals and based on the provisions allowing for arbitration, are reflected in the body of the international customary common law. 

JUS CRIMINALE

CRIMINALIZATION OF HOLOCAUST DENIAL AND OF OTHER INTERNATIONAL CRIMES: A REVIEW OF EUROPEAN AND RUSSIAN PRAXIS
Galina Nelaeva, Natalia Sidorova, Elena Khabarova

Russia introduced a new article banning “rehabilitation of Nazism” in 2014 into its Criminal Code, and since then, this article has been the subject of much controversy. Despite the fact that this addition to the Criminal Code is rather novel, there has already been a number of court decisions that culminated in the imposition of fines and other penalties. In this article, we would like to contextualize Russia’s prohibition of “rehabilitation of Nazism” against the broader European framework by examining several similar laws that exist on the European continent, as well as the case-law of the European Court of Human Rights on the question of denialism. We start with the discussion of the EU Framework Decision of 2008 where the European Union makes recommendations to the Member States on how to harmonize the legislation on this issue, and proceed with the analysis of the CoE Additional Protocol to the Convention on Cybercrime. ECtHR case-law will be examined as the next step, enabling us to conclude that currently the Court’s position on the question of “broader” denialism (that includes not only the Holocaust but also other international crimes) is uncertain. 

JUS COMMUNE

THE LAW OF EUROPEAN UNION IN THE CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS
Vadim Voynikov

The purpose of this article is to identify the key positions of the European Court of Human Rights on the relationship between European Union (hereinafter – the EU, the Union) law and the European Convention on Human Rights, as well as to systematize the case-law of the European Court of Human Rights on issues related to EU law. The author examines the current state of negotiations on the accession of the European Union to the European Convention on Human Rights (hereinafter – the European Convention), assesses the prospects for their completion, as well as their impact on the ECtHR’s case-law concerning the EU. The possibility of interpretation of the EU law by the ECtHR is based on the fact that EU member states’ responsibility under the European Convention to guarantee respect for the fundamental human rights continues even after they joined the EU. The author identifies two groups of disputes, concerning the application of EU law: cases relating to the EU institutional law and cases related to the EU substantive law. 

THE CONSTITUTIONALIZATION OF THE RIGHT OF INTEGRATION ASSOCIATIONS: AN INDEPENDENT PHENOMENON OR ECHOES OF GLOBAL CONSTITUTIONALISM?
Konstantin Chayka

Fragmentation is one of the phenomena of modern international law. It has been examined in detail at the doctrinal level in both Russian and foreign science, and has been represented in the report of the Working Group of the UN International Law Commission. Whereas the process of constitutionalization of international law remains by far less examined by domestic doctrine, and is considered inexorably associated with its fragmentation and opposing it. The purpose of the author is to study the existing approaches to the constitutionalization of general international law and the law of integration associations using the European Union as an example. Following the results of studying such areas as normative, social, and institutional constitutionalism, it has been concluded that despite the absence of constitutionalization properties in general international law, its manifestations may be found in the law of integration associations.

FREE MOVEMENT OF PEOPLE IN THE EAEU: BETWEEN CIVIS EURASIATICUS AND HOMO OECONOMICUS
Kirill Entin, Benedikt Pirker

The present article examines the provisions of the law of the Eurasian Economic Union (EAEU) on the free movement of persons, focusing on workers. The authors analyse the notion of “worker” in EAEU law as well as the rights and protections for workers and their family members. While in many aspects they appear to be similar with the ones that exist in the European Union legal framework, due to a number of inherent limitations contained in the EAEU Treaty the overall status of workers is significantly less advantageous than that under EU law even before the introduction of the EU citizenship. The EAEU Treaty notably denies workers permanent residence rights and places emphasis on the workers’ obligations to respect the culture and traditions of the host Member State. Thus, EAEU law seems to adhere to a narrow “Homo Oeconomicus” perspective with regard to “its” citizens and the road towards a “Civis Eurasiaticus” (Eurasian citizen) comparable to a “Civis Europaeus” appears to be long and winding.

IMPACT OF THE ADVISORY OPINION OF THE COURT OF THE EURASIAN ECONOMIC UNION OF 7 DECEMBER 2018 ON THE WORK OF PROFESSIONAL ATHLETES
Larisa Zakharova

Since the adoption of The Treaty on the Eurasian Economic Union until rendering the Advisory opinion of 7 December 2018, by the EEU Court there has been legal uncertainty as to whether professional athletes who are citizens of the EEU Member States should be viewed as foreign nationals in Russian sports clubs. The Court of Justice of the European Union, starting with the landmark decision in the case “Belgian Football Union v. Jean-Marc Bosman, Royal club of Liege v. Jean-Marc Bosman, UEFA v. Jean-Marc Bosman” of 15 December 1995, repeatedly confirmed in its decisions the principle of free movement of workers, including professional athletes. Similar patterns are observed in the development of all successful integration associations. If the assumption is correct that the EEU Court is beginning to undertake more visible efforts to bring national legislation in line with the legislation of the Union, then some changes in the legal acts regulating the development of sports in the Member States of the Union are to be expected soon.

LEX MERCATORIA

SETTING ASIDE INTERNATIONAL INVESTMENT ARBITRATION AWARDS BY STATE COURTS AT THE SEAT OF ARBITRATION (INSPIRED BY THE YUKOS SAGA): SHOW MUST GO ON?
Ilia Rachkov

This article deals with the judgment of the Hague Court of Appeal (the Court) of 2020 on setting aside six international investment arbitration awards – on jurisdiction (2009) and on the merits (2014), jointly referred to as “the Yukos awards”. These awards were rendered in favor of former shareholders of Yukos Oil Company OJSC against Russia on the basis of the Energy Charter Treaty (ECT). In 2016, Russia secured the set-aside of the Yukos awards by the Hague District Court (court of the first instance). Thus, this article also briefly analyzes the judgment of the first instance court. The plaintiffs appealed against that decision of 2016. The author examines Russia’s arguments, counterarguments of the plaintiffs and the findings of the Dutch courts of both instances.

THE DISTINCTION BETWEEN INDIRECT EXPROPRIATION AND TAXATION MEASURES AS DERIVED FROM ARBITRATION TRIBUNAL CASE-LAW
Irina Artamonova

The author discusses state regulatory measures in the sphere of taxation due to the significance and sensitivity of these measures for the host state which is determined, in particular, by the necessity to ensure recurring government revenues. The author provides the definitions of “indirect expropriation” and the “right to regulation”, as well as the criteria for distinguishing them, such as the degree of interference with the investors’ property rights, interference with the investors’ legitimate expectations and the nature of the measure. The importance of distinguishing between these concepts is due to the fact that if it is recognized that a state regulatory measure constitutes indirect expropriation, its adoption will require the payment of compensation. At the same time, the measure adopted by the state within the framework of its regulatory powers will not require the payment of such compensation. 

International Justice • IssueIJ №1 (33) 2020