AN OVERVIEW OF THE CASE-LAW OF THE EURASIAN ECONOMIC UNION COURT IN 2018
Kirill Entin, Ekaterina Diyachenko
The year 2018 marked an important milestone in the development of the Eurasian Economic Union Court’s case-law. In its advisory opinions and judgments the Court sought not only to reply to the questions raised by the applicants, but also to formulate universal legal positions, capable to influence law enforcement in the Eurasian Economic Union and its Member-States. Among the general aspects of the functioning of the Union it is necessary to note the development of the Court’s case-law on the general characteristics of EAEU law – primacy and direct effect.
THE INTERNATIONAL JUDGE: NOTHING PERSONAL
This article examines the status of international judges. The author notes the dual nature of judicial activity: judges resolve disputes and at the same time are engaged in the development of law by closing legal gaps. In international courts, this function is manifested in two ways: in treaties using judicial positions and through the identification (verbal formulation) of international customs. To achieve this, an international judge must be an expert in international law. In addition to these essential requirements for judges of international courts, the author explores mechanisms for selecting judges in the most authoritative and culturally similar courts
The anti-discrimination standards elaborated through the case law of the European Court of Human Rights have limited application in Russian judicial practice. Whereas the ECHR methodology in discrimination cases is primarily used in the practice of the Constitutional Court of the Russian Federation, courts of general jurisdiction seldom employ the relevant tests. The article seeks to fill this gap by providing an overview of the ECtHR case law to discuss the concept and types of discrimination, the importance of anti-discrimination provisions in the system of ECHR guarantees of human rights, as well as the general approaches of the European Court of Human Rights to the analysis of allegations of discriminatory conduct by the authorities, including the distribution of the burden of proof in such types of cases.
DEVELOPMENT OF THE CONTENT OF THE POSITIVE OBLIGATIONS OF THE STATE TO COMBAT DOMESTIC VIOLENCE IN THE PRACTICE OF THE COMMITTEE ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN
The domestic violence issue has become one of the most debated in Russian society over the past few years. Despite the fact that the international community has been considering domestic violence as a violation of human rights for several decades, among Russian lawyers a scientific discussion on this topic has begun to rise quite recently. The Convention on the Elimination of All Forms of Discrimination against Women is one of the fundamental documents in the field of protecting women from domestic violence. Despite the Convention does not contain direct provisions on domestic violence, the Committee on the Elimination of All Forms of Discrimination against Women established to monitor the implementation of the norms of the Convention by the State Parties has become a driving force for recognizing domestic violence as a form of gender based discrimination against women.
The role and position of Asia in the international system of human rights protection is clearly changing. The scope of international law has been broadened by the adoption of many treaties and customary international law. This article explores the conceptual features of the standards of human rights protection in Asia and identifies a number of principles of Asian society, on the basis of which a special legal culture and attitude to human rights is developing in the region. The author attempts to identify the reasons for the distrustful attitude of Asian countries to international law, the lack of universality of political freedoms and civil rights, as well as an attempt to analyze “Asian values” in the context of human rights protection.
The particularity of international investment law is that it does not consist of uniform rules: there are neither substantive, nor procedural rules. Nor is there a single body for resolving investment disputes. The result is unpredictability in application and interpretation of IIL provisions. Some clarity is created by the practice of international investment arbitration tribunals. This article analyses specific examples of such practice on the following ten aspects which arise in the course of considering international investment disputes on the merits: international minimum standard of treatment; denial of justice; standard of fair and equitable treatment; expropriation; full protection and security; umbrella clause; most favored nation treatment; setting aside arbitral awards rendered under ICSID Rules; and review of arbitral awards by national courts.
AMNESTIES IN THE MECHANISM OF TRANSITIONAL JUSTICE
Andrey Antonov, Oleksandr Yevsieiev
Based on examples and previous studies, this article attempts to holistically comprehend amnesties as a tool of achieving national reconciliation following internal conflicts (civil wars, coups d’etat, etc.), and their positive and negative impacts on post-conflict state and society. Based on this evidence, the authors propose general solutions to conceptual problems related to the compliance of amnesties with the requirements of international law. A distinction is drawn between such amnesties, pardons, and general amnesties, whereas the authors also offer a classification of amnesties based on various criteria, including ratione temporis, ratione loci, and ratione personae. This article further provides a detailed analysis of the amnesties conducted in Hispanic countries during the so-called “third wave” of democratization. In this respect, the concept of “self-amnesties”, widely used in Latin American countries during the transition to democratic rule, is criticized as contradicting the very purpose of this institution. An attempt is made to construct some universal principles, with which the amnesties should comply regardless of the regional specifics.
REGULATION OF PRIVATE INTERNATIONAL LAW AND INTERNATIONAL CIVIL PROCEDURE IN ARGENTINA (GENERAL CHARACTERISTIC AND PROCEDURAL ASPECT)
Natalia Erpyleva, Irina Getman-Ravlova
The article is devoted to the research of a new regulation in Private International Law and International Civil Procedure in Argentina which was introduced in the process of recodification of private law. In 2014 a new Civil and Commercial Code of Argentina was adopted in which the Title “Provisions on Private International Law” (articles 2594–2671) establishes choice-of-law (conflict) rules and jurisdictional rules. For the purpose of codification of Private International Law and International Civil Procedure the Argentinean legislator chose intra-branch complex form of codification which is traditional for that country.