Russian Journal of Comparative Law

3-10

Authors: Karina I. Pankova

Globalization is a worldwide process, that influences peoples’ lives practically in every sphere. International private law is not an exception. The article is dedicated to the problems, that may arise in cross-border insolvency cases. Namely, one of the main reasons for it is such phenomenon as “forum shopping”. In other words, debtors try to find the most favorable situation for themselves and very often it does more harm than good for their creditors. The analysis of the problem is made on the decisions of the English High Court of Justice and the Russian Commercial Court on the case of Russian businessman, Vladimir Kekhman. The difference of views of two conflicting jurisdictions made the case highly debatable among scientific researchers. In this article the author shows the main points and arguments, on which the two decisions were based. Their careful examination can lead to means of solving such practical and significant problems. It should be stated, that some controversial questions are touched upon, for example reasons, advantages and disadvantages of forum-shopping; the confrontation of universality and territoriality principles; the term «Centre of Main Interests» and its interpretation in international community; ways of solving the conflict of jurisdictions problem according to the current case.

17-37

Authors: Roberto Rosas

What new constitutional rights does the American Legal system have to offer? The United States Constitution is a document that continues to be interpreted every year. The Supreme Court hears recent cases with the purpose of interpreting the meaning of the Constitution. Since the creation of the Supreme Court, the Constitution has been analyzed in different ways – some interpretations lasting decades and some amendments going through changes depending on the different ideologies of the Justices on the Court. This article discusses some of the rights established by the Supreme Court from 2016 to 2019 and provides the background as to what led and influenced the evolution of such rights. Some of the most recent evolutions that have been decided by the Supreme Court include topics on: 1) travel restrictions, 2) digital privacy, 3) refusing services based on religious beliefs, 4) limiting dissemination on information about abortion, 5) double jeopardy, 6) detention of certain noncitizens with criminal records, 7) limiting voting rolls, 8) gerrymandering, and 9) affirmative action plans in university decisions.

47-53

Authors: Ilia Zhdanov

In this paper authors analyze the organizational structure, competence and role of the Committee of the Regions (hereinafter – CoR) in the functioning of the European Union and its Member States, the interaction of the Committee with the institutions of the European Union. The article justifies the importance of the principle of subsidiarity in the activities of the European Union and the formation and further development of the institution of the Committee of Regions. A number of rules of primary law of the EU, establishing a framework for the Committee of Regions, as well as to study the internal rules governing its activities is given. It considers a number of examples from actual practice of the various committees of the Committee and its structures. Local and regional authorities, represented in the EU by the European Committee of the Regions, have always been the backbone of democracy. Local and regional leaders as the driving force of local communities. This entails showcasing and strengthening the role of local and regional authorities in the EU.

3-16

Authors: Favio Farinella

The paper identifies an inconsistency that exists in the definition of the international crime of enforced disappearance of persons. The Rome Statute (hereinafter –RS) and the 2006 International Convention on Enforced Disappearances differ in the acceptance of political organisations that fight against the State as perpetrators of the crime. Through the analysis of this apparently minor inconsistency, we address the question if leaders and members of political organisations other than the official government of the State may hold criminal responsibility for gross human rights violations and international crimes. The International Law of Human Rights (hereinafter –ILHR) and International Criminal Law (hereinafter –ICL) converge at integrating the international system of protection of the human being and humanity. Beyond their characterizing differences, they are part of a system and as such they are expected to maintain a minimum of coherence. We forward the opinion that any contradictory development regarding definitions of international crimes should be solved in the benefit of the victims and Humanity as a whole. Thus, the narrow definition of the crime given by the ILHR shall match the wider concept set by ICL. Reasons are given to accept political organisations as eventual perpetrators of international crimes to consolidate the international legal system of human rights protection. But to come to this aim, a major change in the human rights approach should take place, recognizing other subjects different than the State and its proxies as eventual perpetrators of human rights gross violations. The paper ends with a prospective that wonders whether this accommodation is likely to happen.

24-37

Authors: Edgar Meyroyan

The Responsibility to Protect principle, as shall be seen, incorporates within its framework three distinct but simultaneously related to each other phases. The objective of this paper is therefore to examine the purpose and importance of each of these phases in more details, which will thereby help us understand both the weaknesses and the potential the principle has for further development. The said pillars are: the responsibility to prevent, the responsibility to react, and the responsibility to rebuild, respectively. Here, I shall separately analyze the causes and tools available for the prevention of the crisis, but also less coercive and more coercive tools when the matter comes to reacting to the crisis. The paper will also examine "just cause" criteria and the "precautionary principles" which are necessary when dealing with the question of "when and who should intervene?", along with the 'Moderate Instrumentalist Approach' developed by James Pattison, which is important from the standpoint of understanding the effectiveness of the intervener. Further on, the work is devoted to the last phase of the Responsibility to Protect. Here, I shall primarily analyze the questions of who should undertake the rebuilding process and who has the right capacity to do that. These are the questions of the utmost importance, for if the rebuilding process is avoided or done improperly, the crisis will gain control again. And in this respect, I will argue that it is the international community in the face of the United Nations which is best fit to carry out the rebuilding process.

47-58

Authors: Sergey E. Smirnykh

The article is devoted to the study of international legal cooperation in combating juvenile and youth crime. It is noted that children and youth largely determine the future both of individual states and of the international community as a whole. However, with the growth of juvenile delinquency it is difficult to hope for better living conditions for future generations. Juvenile and youth delinquency can be considered one of the most serious problems of the modern world. The situation with regard to juvenile and youth delinquency has been constantly deteriorating over time. Crimes committed by juveniles and youth are becoming more and more complex, while the number of victims is rapidly increasing and their age is constantly decreasing. Violence with and without weapons is becoming more and more common. In order to combat juvenile and youth crime effectively, its causes and consequences are investigated. The consequences of juvenile and youth delinquency are the increasing number of child gangs, teenage suicides, child marriages and divorces. Globally, children and youth are receiving less and less care and support from their families. Instead, children spend more time in front of television, computers and the Internet, which is dangerous for them and a cause of deviant behaviour.

53-64

Authors: Punsara Amarasinghe

This article seeks to examine the rigor of civilizational values in modern international law as a crucial factor and how historically different civilizational values have inculcated different approaches to international law. While critiquing the civilizational rhetoric built by European nations in creating Eurocentric international law, this article brings how international law has been perceived by China and Russia following their historical complexities as unique states. Results emerging from this paper will demonstrate the different diversity in international law in different countries.

77-84

Authors: Elena E. Korolkova

In 2007 employees of the private military and security company (PMSC) «Blaсkwater» killed 17 civilians and wounded 18 civilians, firing randomly on them while guarding the US diplomatic corps in Baghdad. Later on this incident, the US Congress raised the subject of the criminal responsibility of PMSC`s personnel for criminal offenses committed during an armed conflict. Despite numerous claims filed by victims in US federal courts, they managed to deflect responsibility for illegal actions. The presence of gaps in the regulation of PMSCs and lack of control by military commanders adversely affected the credibility of the US armed forces. In this regard, the US Congress adopted amendments to The Uniform Code of Military Justice (UCMJ) expanding its jurisdiction over PMSC`s personnel. This decision caused a wave of criticism because in the United States employees of PMSCs are treated as civilians, and the extension of the jurisdiction of military courts for them substantially affects their constitutional rights. This article deals with the rules of criminal prosecution of PMSC`s employees in US military courts.

94-101

Authors: Ilya Vasilyev, Margarita Izmalkova, Raisa Khalatova, Anastasia Alexandrova, Evgeniya Vetrova

Scientific researches on the legal regulations of the fight against doping are carried out mainly in the Western doctrine within the framework of International law, Sports law, human rights, and European Union law. In post-Soviet legal science there is an intensive growth in the number of sports research, mainly sectoral (administrative, constitutional, labor, criminal law). However, there is practically no research on FIFA Anti-Doping Regulations. There is a difference between the two forms of anti-doping rule violation: the first form is the presence of a prohibited substance in an athlete’s sample, the second form is the use of a prohibited substance by an athlete. In this study, we will analyze the practice of the Court of Arbitration for Sport (hereinafter – CAS, arbitration) in cases of anti-doping regulation violations on issues of fault or negligence in football and draw conclusions, what facts can be accepted by the arbitration.

3-11

Authors: Ekaterina S. Anyanova

In the article the issues of the freedom of the innocent passage in the territorial waters in the law of the sea of a state are considered. As an example the prohibition for the calling of the sailing ship “Sedov” at the territorial waters of Estonia and Poland in April-May 2019 were taken. Since the bark “Sedov” cannot be attributed to the class of the survey vessel (this is a training sailing vessel), no special privileges for it are provided for. In this case the states aspire to take reasonable regulations, rules and procedures providing the observance of its laws and rules for access in its harbours. On board of the sailing ship among others there have been 72 cadets from Kerch State Maritime Technological University. The Ministry of international affairs of Estonia initially did not explain the prohibition to the sailing vessel “Sedov” to call at Estonian territorial waters. Later the Ministry of international affairs of Estonia specified the reason: on board of the sailing ship there were the cadets of Kerch State Maritime Technological University, situated in Crimea annexed by Russia, and Estonia did not recognise the annexation of Crimea to Russia. In its turn the Ministry of international affairs of Russia considered the prohibition of the calling of “Sedov” at the territorial waters of Estonia as an unfriendly act, since the basis for the secession of Crimea from Ukraine is the right to self-determination of the nation. On the 17 March 2014 the Crimean Republic announced itself as the independent and sovereign state with Sevastopol as a city with a special status. The decision was taken under the results of the Crimean referendum and the declaration on the independence of Crimea. Many states and international organizations considered the Agreement of 18 March 2014 as the illegal annexation. Only tiny amount of states acknowledged the annexation of Crimea to Russia. On the basis of the stated facts the findings of internationally legal nature are made that since the calling of the sailing ship at the ports of Poland and Estonia would contradict to the policy of respect of the territorial integrity of Ukraine and the non-recognition of the annexation of Crimea. The both states demonstrate that they do not respect the integrity of Ukraine and do not accept the annexation of the peninsula. After the annexation of Crimea the Western states Estonia and Poland react on this situation by the prohibition of the Russian vessel to visit the foreign ports.

23-33

Authors: Ngoc Ha Thi

Internet and other electronic means are on the way to spread greatly to all areas of social life, especially for the economic development of each country as well as the global economy. E-commerce is an indispensable and important development trend in the future of world trade, it becomes one of the strategic objectives of each country to promote the economy and expand international cooperation. Along with the positive effects, e-commerce still has many drawbacks and shortcomings such as security and safety of personal information when e-commerce transactions are multi-way connected, information exists in the form of data and transferred on the network; network security issues in general and security in e-commerce, in particular, are increasingly threatened, the emergence of high-tech criminals take advantage of personal customer information to fraud and appropriate property, especially in the field of consumer protection; the infrastructure has not yet met the growth and development of e-commerce. The article is based on the Vietnamese law on e-commerce and analyzes an overall picture of the development of e-commerce in Vietnam in recent years.

41-47

Authors: Ilya Vasilyev, Margarita Izmalkova, Raisa Khalatova, Mariam Aroyan, Daria Punko

The practice of concluding employment contractsby professional football players and coaches, assistant coaches with clubs from China demonstrates some usual business practices encountered in football related to the conscientious and negligent performance of these contracts by the parties. To identify them, let us turn to the available appeal practice of the Court of Arbitration for Sport (hereinafter – CAS, arbitration) regarding the decisions of the FIFA Committee on the status of players (hereinafter – the Committee). In this article, we turn to all disputes involving clubs from the PRC, considered by arbitration, and united by the question of applying “just cause” for termination of an employment contract by one of the parties.

73-81

Authors: Timur Akchurin

One of the most important secondary sources in American legal system is a restatement of law. The nature of this source of law, its significance, contents and application are not studied well in Russian legal doctrine. The understanding of the place and role of the restatement of law in the legal system of the United States allows to comprehend in-depths the essence of American law taking into account the practice of application of legal provisions on the territory of the United States (including the international law provisions). The article analyses the nature, substance, role and place of the restatement of law in the American legal system and considers the Restatement of Foreign Relations Law of the United States (Third), its role and significance in more detail.

94-108

Authors: Insur Z. Farkhutdinov

The article gives a historical overview of the development of the idea of Pan-American law from two perspectives: one of the United States, and other of the Latin American countries. The dialectical struggle between anti-imperialist and imperialist aspects within the Monroe doctrine is revealed. Calvo-Drago doctrine is overviewed, noting its progressive character and essential compliance with the original meaning of the Monroe doctrine. International effect of the Drago docrine is compared to that of Calvo doctrine, as well as US successful efforts to deprive it of its original meaning is mentioned. Perspectives for the future development of both doctrines is outlined.

117-126

Authors: Luan Nguyen Thanh

The research focuses on analyzing the content of Land Law 2013 about recovery of agricultural land to develop socio-economic for national and public interest of Vietnam, which includes: Firstly, cases of agricultural land recovery by the State to develop socio-economic for national and public interest; secondly, the competence of state agency in decision of land recovery to develop socio-economic for national and public interest; thirdly, procedures applied for agricultural land recovery to develop socio-economic for national and public interest; fourthly, compensation upon land and land-attached assets for people whose agricultural land is recovered. Besides, this research also elucidates limitations raised from reality of executing these law provisions, then petition for modification with a view to completing Land Law 2013 following the direction of ensuring more and more interests for people whose agricultural land is recovered.

135-142

Authors: Ilya Vasilyev, Margarita Izmalkova, Raisa Khalatova

In the article, the authors refer to the practice of the Court of Arbitration for Sport (CAS) in cases of bringing clubs to disciplinary responsibility for the use of pyrotechnics by fans. Such disputes in the disciplinary practice of UEFA and CAS have features related both to the way the fan commits an offense and to the assessment of the seriousness of the act and respect for the principle of proportionality of the sanction. Resort to the decisions of the Court of Arbitration for Sport helps to get answers to these and some other questions of clubs responsibility for the use of pyrotechnics by fans. With the actual status of CAS in the field of sports law, it means bringing legal certainty to the regulation of the UEFA Disciplinary Regulations.