«International Justice»
Issue №3(23)

New investment law cases continue to attract the attention of both practitioners and researchers in the field of international investment law. Case law is also considered to be a driving force for the further development in the area of international protection of foreign investments. The Article presents a description and an analysis of one of such cases. On December 8, 2016, the ICSID tribunal rendered an award in Urbaser S.A. (Urbaser) and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa(CABB) v. The Argentine Republic. Being the first case in which an arbitral tribunal accepted its jurisdiction to hear a host State’s counterclaims on an alleged violation of international standards of human rights by a foreign investor, Urbaser and CABB v. Argentina has already gained much attention.

This lecture revisits the concept of inquiry as developed in Martens’ times and tests its contemporary usefulness and application against a background that is shaped by cyberspace and the emergence of new technologies. Inquiry is, in short, about establishing or construing facts by an independent third party. In these days marked by allegations of misinformation, hacking, fake news and alternative facts, the importance of proper fact-finding and having independent institutions and mechanisms in place to establish facts is, perhaps, greater than ever.

The parts of modern European constitutions and international conventions that proclaim fundamental rights, are similar in their wording and content. The rights to liberty and security of person, to private and family life, to protection from arbitrary detention and deprivation of liberty, to freedom of expression and peaceful assembly, to access to court and fair trial are formulated in seemingly the same way. The legitimate aims, justifying the restrictions of some rights, are also standard and usually include national security and territorial integrity, public order, public health, public morals and protection of others. At the same time, the judges of national courts of the Council of Europe member states and international judges may seemingly apply the same texts to seemingly the same situations differently and arrive to opposite results. 

This article examines a new phenomenon in international criminal justice, namely so-called hybrid or internationalized courts, in which foreign judges participate along with national judges. The nature of hybrid courts is underlined as one of the elements of transitional justice that is supported by the United Nations in the interest of countries that are just gaining their statehood or are rebounding after civil wars. The example of specific hybrid judicial institutions reveals the question of the quantitative composition of such courts and countries that most often delegate their representatives to such structures. The advantages and disadvantages of such courts are analyzed and problems are identified that are related to the definition of the law to be applied. In particular, three options are possible: firstly, the procedural rules of hybrid courts are derived from the national system of the country in question; secondly, these rules are derived from the workings of an international tribunal; and thirdly, the rules are derived from legislation that is specially passed for the purpose of a they hybrid tribunal.

This article analyzes the specificity of granting provisional measures within proceedings in the Court of Arbitration for Sport in Lausanne (CAS/TAS). The research on this topic has barely been covered in Russian legal science. The article examines the bodies authorized for ordering provisional measures and, in particular, the recently adopted restrictions to the competence of state courts to grant preliminary measures within ordinary and appellant proceedings. The article also provides analysis of the timeline (even before arbitral panel has been formed), prerequisites and conditions for such measures, the cumulative application of these conditions, the uniformity (and more likely lack of uniformity) in practice of application of these conditions, and tendencies of their changing and evolution. 

Jus commune

COMPETENCE OF THE EURASIAN ECONOMIC UNION COURT: MYTHS AND REALITIES
Ekaterina Diyachenko, Kirill Entin

In the less than three years of its existence, the Eurasian Economic Union Court has been surrounded by numerous myths due to the significant changes in the Court’s statute in comparison to the EurAsEC Court. This in turn has led many researchers to question whether the Court actually possesses the necessary instruments to fulfill its mission and ensure the uniform interpretation and application of EAEU law. This issue is all the more important, because in the European Union the Court of Justice has played one of the leading roles in the development of European integration.

This article offers an analysis of the issues of taking evidence in transnational civil procedure. The research methodology is based on the use of comparative legal analysis. The normative base of the research includes international legal acts, Russian and foreign national legislation, and case law of foreign courts. The authors emphasize that the main difficulties in the resolution of transnational disputes result from the use of different pleading models, different aspects of evaluating evidence (as substantive or procedural categories), and the absence of a universally recognized and mandatory tool of taking evidence in a foreign jurisdiction. The legislation and case law of common law countries provide for provisions on the possibility of using foreign evidence law and conflict rules determining the law applicable to evidence. In civil law systems there is a common rule that procedural matters are resolved in accordance with lex fori, with a developed system of procedural conflict rules. When there is a need to obtain evidence in a foreign jurisdiction, there are two modern ways to do it:

This article deals with the issue of limiting a panel’s jurisdiction by means of a preliminary ruling within the World Trade Organization’s dispute settlement system. The analysis is based on appellate court jurisprudence concerning the issuance of preliminary rulings. The authors of this article come to the conclusion that, despite the absence of specific provisions in the Dispute Settlement Understanding (DSU) pertaining to preliminary rulings, panels have powers to issue preliminary rulings in relation to the scope of the panel’s jurisdiction. Preliminary rulings can be seen as a procedural means for the defendant to defend his interests. To use it properly, the defendant should show that the panel request of the complainant does not meet the criteria of Article 6.2. of the DSU, according to which a panel request must identify the specific measures at issue and provide a brief summary of the legal basis of the complainant. The authors conclude that the defendant has the right to request that the panel exclude the complainant’s claims as not satisfying such criteria from the scope of the panel’s jurisdiction.

On May 25, 2017, an expert discussion was held at the Faculty of Law of the Higher School of Economics that centered on the Order of the International Court of Justice from April 19, 2017 imposing provisional measures in the case of Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of all Forms of Racial Discrimination (Ukraine v. Russia). 

International Justice • Issue№3(23)