Economics and Law

3-12

Authors: T.S. Hudima

The legal status of the National Bank of Ukraine (NBU) is investigated. Based on the analysis, it is substantiated that the NBU can be considered as a state-owned entity (possibly, unitary), which is restricted in providing paid services in the banking market (in particular, it cannot provide the full range of paid services specific to a commercial bank ) and entity, which the state delegated the respective management and control powers to carry out the functions, enshrined in Art. 99 of the Constitution of Ukraine and Articles 6, 7 of the Law of Ukraine "On the National Bank of Ukraine". It is proved that imposing restrictions on conducting commercial operations in the banking market creates prerequisites for elimination by the NBU of possible anti-competitive influence on other economic entities — participants of the banking market. It is argued that the institute of delegation of authority, as a well-known to legal system of Ukraine as a tool for delegating authority from one entity to another, can be used to confer on the NBU (as economic entity) with a range of state powers in those areas of public relations, which currently fall within the competence of the NBU. The use of the institute of delegation of authority will lay the foundations for the formation of the legal status of the NBU by the legal methods and means currently existing in the legislation and the legal theory of Ukraine. Although the phrase "delegation of powers" is mentioned in both the Constitution of Ukraine (Articles 118, 119, 138) and the laws of Ukraine (in particular, the Law of Ukraine "On Protection of Economic Competition"), however, for the purposes of economic science the common understanding of this phrase it is absent, especially with regard to the legal basis and features of the delegation of powers to economic entities. This stipulates the objective need to make appropriate amendments to the text of the Economic Code of Ukraine. Given that relations between the state and economic entities require clear, balanced and extraordinarily prudent legal regulation, which, on the one hand, should promote free business and, on the other, should enable the state to influence these processes in order to achieve universal (public) goals, the legal status of the NBU is determined by the Constitution of Ukraine and special legislation needs clarification. Specification of legal status, in turn, will improve the mechanism of implementation of the legal responsibility of the NBU, provided for in Art. 64-1 of the Law of Ukraine "On the National Bank of Ukraine". In particular, it would be expedient to provide for the provision that the state is responsible for the obligations of the NBU that have arisen in connection with the exercise of the state’s delegated powers and for the obligations arising as a result of the implementation of its own business activity, the NBU is responsible its own property.

24-31

Authors: V.V. Poiedynok

On February 6, 2018, the Law of Ukraine No. 2275-VIII "On the Companies with Limited and Complementary Liability" was adopted. Quite unexpectedly, the legislator chose to decide therein on a totally unrelated matter, repealing Art. 207 of the Economic Code of Ukraine. Section 2 of the said article had provided some minimal possibilities of challenging unfair terms in business contracts. For the present moment, businesses in Ukraine, first and foremost small- and medium-sized ones, actually enjoy no protection against onerous or discriminatory contract terms, not being covered by consumer protection legislation. We heavily criticize the situation und undertake the analysis of the respective provisions of the UNIDROIT Principles on International Commercial Contracts (UNIDROIT, fr. Institut international pour l’unification du droit privé), the Principles of European Contract Law and the national legislation of Australia, New Zealand, United States of America, Great Britain, France, Germany and Sweden. We identify three approaches to treating unfair terms in business contracts: 1) businesses are explicitly treated as consumers for the purposes of legislation; 2) there are discrete controls of unfair terms in business contracts; and 3) pro-active preventive measures exist to bar the use and dissemination of unfair practices. The results of the research highlight the global recognition of the issue, that therefore needs to be addressed promptly by the Ukrainian legislator. A protection should be granted against any contractual term which has not been individually negotiated if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract. I adhere to the unified regime of dealing with unfair terms in business contracts as well as consumer contracts. The uniform "fair and reasonable" test should apply in both instances though naturally they may apply somewhat differently in a business context, the courts exercising more restrictive and rigorous approach. The courts are, inter alia, to take into account the size of the business, and whether it makes transactions of the kind in question regularly or only occasionally, in assessing the fairness of the terms complained of.

45-59

Authors: V.K. Malolitneva

The article is dedicated to the essence of the principle of proportionality in public procurement, which was determined by the several categories, in particular 1) the category of limitation of the contracting authority’s discretion at all stages of procurement, including the execution of the public contract. It means that every time the contacting authorities make a choice within the procurement procedure, they have to choose a measure that corresponds to the goal of the procurement avoiding the restriction of competition and excessive requirements for economic operators which create barriers in taking part in procurement and therefore infringe the principle of non-discrimination; 2) the category of coordination of actions of the legislator in terms of defining the legal framework for public procurement with the economic and legal purpose of such procurement; 3) the category of determining the limits of possible restrictions on competition which are stipulated by public interests. The principle of proportionality ensures the balance not only between the interest of contracting authorities and economic operators but also the public interests, namely the taxpayers, which often become the aim for which competition may be restricted in procurement. Given that principle of proportionality may act as an additional guarantee for the protection of economic operators against discriminatory requirements that are excessive or not objectively justified, the author suggests to define in the article on the qualification criteria in the Law of Ukraine "On Public Procurement" that such criteria should meet and be proportionate to the nature, volume and complexity of the goods, works and services that are the subject-matter of the procurement. The article gives special consideration to the role of the proportionality principle in the pursuit of horizontal objectives in public procurement. The author concludes that in order to provide an opportunity to successfully pass the proportionality test in determining the boundaries of horizontal policy implementation, public procurement should be recognized as a potential means of state regulation of the economy and the achievement of the relevant economic policy goals of the state. The article provides an in-depth analysis of the cases of the Antimonopoly Committee of Ukraine as an appeal body in public procurement on disproportionate qualification criteria in tender documents and procurement procedures. The author comes to the conclusion that often too formalized approach during the evaluation of tender offers according to the requirements in tender documentation could lead to situations when the main aim of the procurement, namely to deliver best value for money, is not achieved. In this context, the article provides arguments how the principle of proportionality could solve this problem. In addition, the author pays attention to the national courts as well as the Court of Justice of the European Union practice on proportionality issues in public procurement.

72-80

Authors: R.S. Kirin

The article is devoted to the analysis of approaches to determining the place of Law on the Bowels of the Earth in the systems of other branches of Law. The author presents the level structure of the Law on the Bowels of the Earth system based on the principles of differentiating the type of deed with respect to the subsoil (use, protection, safety) for the clan branches and the type of the Bowels of the Earth resource (mineral, geological, underground, geo-energetic), for direct industries. It is proposed to consider Law on the Bowels of the Earth as one of the direct industries of the 1st level in the external structure of the Environmental Law system, and as a general industry of the 2nd level of the internal structure of the system in which the clan branches of the 2nd level are distinguished (Supra-Resource Law, Supra-Defence Law, Subsurface Safety Law) and direct industries of the 2nd level (Mining Law, Geological Law, Underground Law and Geoenergy Law). Schematically, the peculiarity of the formation of the special parts of the patrimonial and direct sectoral elements of the structure of the system of Law on the Bowels of the Earth is that the former are formed by a vertical branch, the latter by a horizontal one. The construction of the newest structure of the system of Law on the Bowels of the Earth is based on the principles of differentiation of the type of activity (use, protection, safety) for generic industries and the type of Bowels of the Earth resource (mineral resources, geological, underground, geo-energy) — for direct industries. The evolution of the research of the features of constructing a sub-legal system shows that the basis for the substantive distinction between Law on the Bowels of the Earth and Mountain Law should be based on the definition of the qualitative homogeneity of their constituent elements. Details of systems of such direct sectoral subsurface elements as Mining and Geological Law are presented. Further scientific research should consolidate the above provisions based on the disclosure of the types, nature and content of both the Bowels of the Earth activities and their objectsubject composition.

90-99

Authors: M.V. Melnykova, Ye.S. Hradoboyeva

The principle of "quantity — quality — cost of services" in the housing and communal sphere of the city and the conditions for its realization in this article was considered. The features of the housing and communal sphere of the city were determined, which determine the quantitative, qualitative and cost characteristics of housing and communal services. The factors of positive and negative impact on the quantity and quality of housing and utilities were systematized. The economic and legal principles of setting tariffs for housing and communal services provided to residents of Uk raini an cities were generalized. The legislative, regulatory and legal framework for adjusting the cost of services depending on their actual quantity and quality was analyzed. The essence of the concept of "utility value of utility services" was described, which is the basis for the implementation of the principle "quantity — quality — cost of services". This principle is to achieve the optimum ratio "price (tariff) / cost", and requires consideration of factors that affect its implementation. The conditions for observance of the principle "quantity — quality — cost of services" in the housing and communal sphere of Ukrainian cities were determined. The particular attention was paid to implementing innovations for improving of the quality of water, electricity, gas and waste management services. The state of innovative activity of municipal enterprises providing utilities was analyzed. According to the results of the analysis, the low level of innovation implementation was determined, which negatively influences the implementation of the principle "quantity — quality — cost of services" and makes it impossible to ensure the optimal ratio "price (tariff) / cost". In this regard, the necessity of increasing the amount of funding from the local budget of innovative development projects, the introduction of resource-saving and energy-efficient technologies, as well as the modernization of communal infrastructure were justified. The role of associations of co-owners of apartment buildings (ACMHs) and management companies (managers of apartment buildings) in controlling the quantity, quality and cost of providing residential and communal services to consumers was emphasized. Further researches require the issue of economic and legal support for claim work by condominiums and management companies.

108-115

Authors: N.V. Vernihorova

The increasing pace of urbanization in the world makes modern cities important elements in the ecosystems of the planet. The main factor of urban development was their economic attractiveness as a center of public goods and great opportunities for market, public and economic supply. Being in an urban environment in a person automatically increases the level of needs, and these needs are fully met. Such vitality of cities for a person is conditioned by their excessive consumer functions in relation to the environment. The city can be characterized as an artificial parasitic system that requires as much natural resources as possible, leaving only waste. And most importantly, there is no limit to these needs, because that’s how the human economic system works. For the prospect of urban survival in the face of resource depletion and the great debt of humanity to the planet, it is urgent to rebuild cities into self-sufficient, productive systems. The main factors of increase of ecological footprint of cities are considered in the article. The role of land quality in the well-being of the country, the degree of yield, and therefore economic efficiency, is analyzed. The main measures and proposals for reducing the "ecological footprint" of cities are considered. The main advantages of urban agriculture are given, and recommendations are given on the implementation of ecological restructuring based on the principles of eco-urbanism and permaculture for Ukrainian cities. Priority for environmentally friendly technologies and systemic landscaping can significantly reduce the negative impact of the urban system on humans. Urban agriculture is able to significantly reduce the cost of transportation, the cost of human and material resources; to encourage the improvement of environmental conditions of the urban environment in order to expand the range of products grown.

124-139

Authors: S.K. Ramazanov, I.V. Zablodska, D.V. Zablodska

The article presents the integration model of sustainable development as a family of models for creation of integrated information systems of ecological economic and socio-humanitarian management of different socio-organizational systems and especially economic objects of technogenic character for ensuring the sustainable and viable development. The problem of sustainable development for the "hexagon" of main assets (capitals), supporting the vital activity of socio-ecological-economic systems is considered and defined: the concept of sustainable development, the system of sustainable development global dimensions, and the level of sustainable development.