Jurisdictional Bodies Research Articles

Unilateral acts of states in the international legal system

The article examines unilateral acts of states in the international legal system based on a complex systemic analysis. The methodological basis was the dialectical method, which made it possible to understand the essence of international legal obligations of states in inseparable unity and general connection. The relevance of the study is determined by the trends inherent in modern international law. First, with the development of information technologies, and especially with the development of forms of information transmission, the sphere of activity of states is transformed. An increasing number of interested persons knows their positions on a wide range of international legal issues. On the one hand, it simplifies the process of identifying the state’s position when its analysis is necessary for international legal qualification. On the other hand, in such a situation, the possibilities for interpreting the behavior of a specific state from the point of view of its agreement or disagreement with a certain legal situation expand. In the practice of international relations, there is an expansion of the system of sources of international law. The study of these sources is necessary for understanding the foundations of international law, solving specific international problems and increasing the effectiveness of international cooperation. As the practice of international jurisdictional bodies accumulated, the subject of study of which was unilateral acts of states, the research emphasis shifted from establishing the essence of unilateral acts to assessing their relationship with the sources of international law. It is noted that unilateral acts play an important independent role in the modern international system, which is characterized by both fragmentation and growing globalization. Modern means of communication have made it possible to make unilateral acts one of the most frequently used tools of state interaction. The appropriateness and necessity of the development of the legal regime of unilateral acts is emphasized and substantiated. Unilateral acts of states are recognized as independent additional sources of international law capable of generating international legal norms, and they can be found in the «sources» section of many leading international legal documents.

Ethical aspects of the right to privacy in the 21st century: European consensus in the interpretation of the European Court of Human Rights

In the present article, we aim to elucidate concepts that do not directly stem from the content of legal sciences but have a strong impact on how the authors of the act of justice assess phenomena in 21st-century society. The relevance of the theme and the arguments presented in the article largely stem from the content of the judgments of the European Court of Human Rights after 2000. We have repeatedly found that it is precisely this regional jurisdictional body’s task to conceptualize and develop general principles of law in the field of fundamental rights and freedoms. In this context, the interpretations of the Court in Strasbourg invoking ethical aspects, in our view, are particularly interesting, when cases involving allegations by the claimants regarding violations of the right to privacy come before it, under Article 8 of the Convention for the Protect

General jurisdiction of courts to resolve cases resulting from legal labor relations

This article analyzes the regulations regarding the general competence of the courts to resolve labor disputes. The way of delimiting the powers of the courts from other jurisdictional bodies when solving these civil cases was highlighted. In particular, these regulations were researched both for the examination of individual labor disputes and for the resolution of collective labor conflicts. The problem existing in the judicial practice regarding the delimitation of the powers of the jurisdictional bodies in the settlement of civil cases resulting from legal employment relations was highlighted. In order to improve the regulations in this field, proposals were submitted to supplement and modify the legislative framework.

The Patents Māori Advisory Committee of Aotearoa New Zealand: Lessons for indigenous knowledge protection

AbstractUsing freedom of information requests, we examine the operation of the Patents Māori Advisory Committee of Aotearoa New Zealand. The Committee advises the Intellectual Property Office of New Zealand on whether inventions claimed in a patent application are derived from Māori traditional knowledge or from indigenous plants or animals; and if so, whether the commercial exploitation of that invention is likely to be contrary to Māori values. There is limited publicly available information on the operations of the Committee and the decision‐making process undertaken in reviewing applications. The requests and our searches identified 13 patents referred to the Committee, of which most (9 of 13) dealt with inventions related to Mānuka (Leptospermum scoparium), a taonga species known for its role in producing unique honey. Only two applications have been found to be contrary to Māori values, and these applications have both since been abandoned. The review of applications found to be ‘not contrary to Māori values’ is instructive, identifying important considerations taken into account by the Committee in reaching a decision, including the importance of benefit sharing and engagement with Māori in considering whether an invention may be contrary to Māori values. The analysis highlights the limitations of the Committee in reviewing only those applications filed in Aotearoa New Zealand and referred to the Committee for advice and identifies the importance of mechanisms such as disclosure of origin to ensure all relevant applications are reviewed by the Committee. The paper concludes by highlighting how the operation of the Committee may inform the development of similar bodies in other jurisdictions, such as Australia.

Dehybridization of the General Competence of the Jurisdictional Bodies

In this article, I have analyzed the criteria for delimiting the powers of jurisdictional bodies in the settlement of civil cases, which I have argued are also criteria that prevent the hybridization of these attributions. We presented the danger of the phenomenon of hybridization for the normal functioning of judicial bodies and gave solutions to minimize it in the legislative system. We analyzed the hybridization within the regulations on general jurisdiction, which delimit the powers of several jurisdictional bodies, such as: courts of law, arbitration, the Constitutional Court and others. The legal normative basis is the legislation of the Republic of Moldova. In order to highlight the practical issues, the judicial and constitutional practice of the Republic of Moldova was analyzed. The methodology applied in the development of this article was comparison and analysis. In order to formulate fundamentally multifaceted opinions, we started from the French, Moldavian and Russian doctrine. In some of these sources, certain ideas regarding the dehybridization of powers of jurisdiction are developed, and we have supplemented them. Finally, a synthesis was made starting from all the criteria for dehybridization of the powers of jurisdictional bodies.

Waiver to apply the European Convention for the Protection of Human Rights and Fundamental Freedoms in the resolution of disputes in the Court of Arbitration for Sport (CAS)

The subject. Sports legal relations, as having a private legal nature, and assuming “horizontal” inter-subject relations by default, do not imply the extension to them the guarantees provided by international acts in the field of human rights protection in order to protect the individual in “vertical” interaction with public subjects. However, this doctrinal approach is still questioned by sports actors, who make attempts to refute it through the involvement of certain norms of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (Articles 6 and 8, mostly) as arguments in sports disputes. An additional incentive for this is the location of international and continental sports federations, their jurisdictional bodies and the Court of Arbitration for Sport (CAS) in the national legal orders that recognize the application of the mentioned ECHR.The purpose of the study. The prospects of arguments in the resolution of sports disputes based on the requirements of the literal use of the norms of the ECHR are considered in this article.Methodology. Methods of analysis and comparison based on the CAS practice.The main results of research and the field of their application. The use of only certain meanings of part 1 of Article 6 of the ECHR in sports justice is forced to be taken into account by CAS due to the prospect of appealing decisions to the Swiss Federal Tribunal.Conclusions. The norms of the ECHR generally do not apply in sports justice.

Проблема обеспечения судебной защитой требований, вытекающих из обязательств по коллективному договору

This article discusses practical issues related to the consideration by courts of general jurisdiction and arbitration courts of the Russian Federation of disputes involving collective entities of social partnership. The author attempts to substantiate the allocation of collective disputes over rights as a special type of dispute that needs special regulation of the procedure for consideration and resolution in jurisdictional bodies. The article also considers the possibility of including in the collective agreement a condition on the refusal of employees from a strike and on the obligation of such a condition for the parties of the agreement.

Limits of the Evidence Initiative of the Court of First Instance and the Reliable Evidence Procedure

Abstract This article aims to delineate the boundaries of the evidence initiative of the Court of the First Instance, which bears the responsibility to fulfil the goals of criminal proceedings, as outlined in Article 2 § 1 item 1 and § 2 of the Code of Criminal Procedure, from the perspective of evidence reliability, an essential component of the fair criminal trial concept. The court’s evidentiary actions were thus examined through the lens of requirements stemming from Article 6(1) and (3) of the ECHR, especially the principles of independence, impartiality, adversarial process, immediacy, and access to criminal proceeding materials. The article adopts a dogmatic approach, building on an analysis of current national legal standards and the Rome Convention’s provisions, viewed through doctrine and jurisprudence of national courts and the Court in Strasbourg. This makes the publication relevant for both legal scholars and practitioners involved in criminal proceedings. The analysis suggests that the court’s initiative to introduce evidence, its methods of evidence gathering, and access to collected materials during proceedings must not curtail the rights of the parties, especially the accused, to conduct their evidentiary activities. Depriving the court of the primacy of independence and impartiality, restricting the parties’ capacity to engage in dispute in favour of an inquisitorial jurisdictional body violates the right to fair evidentiary proceedings. The court, in safeguarding the principle of material truth, must remember its role as a justice administrator and balance all arguments accordingly. Seeking evidence solely to establish the accused’s guilt contradicts the procedural function of adjudication and compromises the court’s neutrality, making it an extension of the prosecution. Hence, a thorough elucidation of case circumstances by the court should not disempower the parties, particularly regarding their initiative to present evidence.

Социальное партнёрство как институт обеспечения интересов российского государства в сфере занятости

In the article, social partnership, aimed at harmonizing the relations of workers and employers in the sphere of labor, is considered from the point of view of ensuring the interests of the Russian state in employment relations. The regulatory and protective parts of the legal mechanism of social partnership are studied. Purpose. The author's goal is to identify elements of the Russian social partnership system aimed at protecting state interests in the field of employment by finding a compromise between employees and employers and delegating jurisdictional functions to parity social partnership bodies. Methodology. Methods of analysis, synthesis, formal-legal, comparative-historical and comparative-legal, method of interpretation of legal acts are used. Results. Based on a study of the regulatory framework and the works of lawyers, it was concluded that the essence of the Russian social partnership system is to ensure the protection of the interests of the state by coordinating the positions of the parties to labor relations. The state protects public interests at all levels of labor agreements, which must also be met by bilateral collective agreements. The difference between labor relations and all other blocks of social relations in Russia is that the state has created an additional mechanism - a system of social partnership in the sphere of labor, which allows the state to protect its interests in the field of labor and employment not only through the creation of legal norms, the issuance of regulatory instructions and activities jurisdictional government bodies, but also by finding a compromise on controversial issues with other stakeholders in the social and labor sphere. At the same time, the state went beyond the limited consultative participation of interested representatives of workers and employers in establishing rules of conduct, but delegated the very adoption of these rules to public structures in equal cooperation with the state. To the detriment of the competence of state jurisdictional bodies, the state vested the powers to resolve individual and collective labor disputes on social partnership bodies created on a parity basis by employees and employers.

ВІДПОВІДАЛЬНІСТЬ РОСІЙСЬКОЇ ФЕДЕРАЦІЇ ЗА ЗЛОЧИНИ, СКОЄНІ НА ТЕРИТОРІЇ УКРАЇНИ

The UN has repeatedly condemned Russian aggression and attempts to illegally annex Ukrainian territory, recognized the act of aggression by the Russian Federation against Ukraine (resolutions "Aggression against Ukraine" dated March 2, 2022, "Territorial integrity of Ukraine: protection of the principles of the UN Charter" dated October 7, 2022). Despite the open condemnation of the policy of the Russian Federation and its invasion of the territory of an independent state by the civilized world, the aggressor country continues to pursue its cruel goals, which contradict any prescriptions of international law and international humanitarian law. Every day, the rights of the civilian population, enshrined in the Geneva Conventions, are demonstrably violated through constant mass attacks, the targets of which are precisely the objects of civilian infrastructure. The international legal community is incredibly determined to ensure the possibility of bringing the Russian Federation to justice for crimes committed on the territory of Ukraine. The article analyzes the forms of material and non-material responsibility that are applied and can be applied to the Russian Federation as an aggressor state, the practice of applying sanctions, the requirements of the claims of Ukraine against the Russian Federation submitted to international jurisdictional bodies (the UN International Court of Justice, the International Tribunal for the Law of the Sea , of the European Court of Human Rights), the content and consequences of the decisions made. It is concluded that the appeal to international jurisdictional institutions does not concern the establishment of the fact of aggression by the Russian Federation, the resolution of the issue of the form and extent of the responsibility of the aggressor state. It is proved that the order of the International Court of Justice of the United Nations on the application of temporary measures is mandatory according to international law, which imposes clear legal obligations on the states-parties of the dispute and the violation of which "presupposes the obligation to make compensation in the appropriate form". The issues of state execution of the order and compensation in the proper form are considered by the Court in the decision on the merits of the case. The impossibility of preventing military aggression against Ukraine, the partial limitation of this state through the application of sanctions, give reasons to believe that the available methods and mechanisms of international legal responsibility are insufficient. That is why, at the diplomatic level, Ukraine should create new ways of limiting and holding Russia as a state and its individual citizens involved in the leadership and execution of crimes committed on the territory of Ukraine accountable. Key words: state, state functions, martial law, responsibility, coercive measures, security, armed conflict, sanctions.

Types of general competence

In this article, the types of general competence of jurisdictional bodies in the domestic and other states' doctrine are analyzed. In particular, the classifications from the literature of the Russian Federation and Romania regarding general competence were analyzed. The problem of dividing the general competence of the jurisdictional bodies was highlighted. In the same way, our opinion regarding the types of general competence, which improves the doctrine in this field, was exposed. The criteria for classifying the types of general jurisdiction were analyzed, as well as the criteria for the proper division of the proper powers of the jurisdictional bodies to resolve civil cases.

The state of forensic accounting: South Africa versus the United States of America

As a multi-faceted emerging profession, forensic accounting is surrounded by some issues, controversies, and challenges among them lack of consensus on the entry requirements and certification of the profession, misconstruction of the innate goal of forensic accounting, and the lack of consensus on the teaching pedagogies of forensic accounting. The claim of ownership of forensic accounting by different professional bodies in different jurisdictions also exacerbates these challenges. With these issues surrounding the profession, this study sought to examine the state of affairs of forensic accounting in a developed economy, USA, and a developing economy South Africa. The comparison was based on the following criteria: certification; the profession issues; constitutional and judicial issues; and legal and regulatory issues. The study employed a desktop literature review methodology involving an in-depth review of relevant and current literature. The paper found that both countries share a similar status of the forensic accounting profession only on the profession issues. Differences were noted on the certification; constitutional and judicial issues; as well as the legal and regulatory issues. To date, the profession is regulated in both jurisdictions but it happened in 2000 in the US and 2013 in South Africa. It can therefore be concluded that the similarity in forensic accounting profession status for the two jurisdictions is based only on the profession criteria with differences existing in the certification; constitutional and judicial; and legal and regulatory issues. The paper recommends more studies on comparing the status of the profession in other jurisdictions because extant literature still alludes to unresolved issues and challenges on forensic accounting in some jurisdictions.

Current issues of the application of ECTHR decisions and its implementation in the field of children's rights protection

The main jurisdictional body in the field of human rights protection is the European Court of Human Rights (ECtHR). The activities of the ECtHR, among other things, are of key importance for ensuring the effective functioning and continuous improvement of the international system for the protection of children's rights. Thus, the study of the ECtHR's practice in the field of protection of children's rights is relevant in view of the importance of applying appropriate approaches to resolving disputes at the national level, as well as from the point of view of improving national and international legislation in the field of protection of children's rights. Therefore, the purpose of the work is the analysis of the practice of the ECtHR in the field of the protection of children's rights, as well as the study of the peculiarities of the implementation of relevant decisions of the ECtHR at the national level. Research methods used in writing the article include analysis, synthesis, formal-logical and comparative-legal methods. As a result of the research, the authors of the article analyzed the specific decisions of the ECtHR in the field of protection of children's rights, summarized the main approaches, standards, and principles used by the ECtHR in solving relevant cases, as well as making their own proposals for improving the current legislation of Ukraine aimed at protecting children's rights.

On the Origins of Administrative and Judicial Discretion in Russian Administrative and Jurisdictional Activities

The article continues the discussion organized by the journal with the participation of professors Yuri P. Solovey and Petr P. Serkov on the problem of administrative discretion. The Author proposes to look at the difference between the internal content of administrative discretion and judicial discretion, which is evolutionarily incorporated in the proceedings on administrative offenses. The reader is invited to the conclusion that administrative responsibility has historically been imposed by government bodies for disobedience to the current management order. The authorized body acts on behalf of the public authority, and the responsibility imposed by it means the responsibility of a person to the government for disobedience to its internal policy. In Russia, it arose in the 1920s, when V. I. Lenin considered the people's courts weak in resolving issues of the application of public law penalties to persons who do not comply with the norms established by the Soviet government. The judicial order arose and evolved as a people's revision of the public authorities' initiative for administrative prosecution. Such a reform of administrative responsibility was carried out after the death of I.V. Stalin N. S. Khrushchev, who, trying to restore the lost trust of society in the authorities, believed that administratively punishable acts should cause condemnation not only of the authorities, but also of society. Some categories of cases of administrative offenses were assigned to the competence of the people's court. The court acts on behalf not of the public authority, but of the country as a whole. When imposing a punishment, the court declares the person guilty before the country not of an anti-government, but of an anti-social act. Administrative responsibility is evolutionarily connected with the discretion of the jurisdictional body. Its content is various social rules and values, including principles, as well as political considerations. Administrative discretion is dominated by managerial values: general prevention, ensuring public order, controllability of the masses, tax collection, implementation of state policy, etc. Judicial discretion, being realized on behalf of the country, reproduces the social norms and values of Russian society as a whole. Both legislative norms and managerial values are preserved, but become part of the general range of social norms and values, which is dominated by the universal principles of justice, reasonableness, proportionality and an adequate balance of private and public interests.

General Alternative and Contractual Jurisdiction in Moldova and Romania Based on the Alternative Procedural Right of Parties

Background: The legal institution that delimits the powers of judicial bodies to resolve legal cases is the general jurisdiction. This interbranch institution which incorporates legal norms of several branches of procedural law that interact with one another . Within this jurisdiction, different types of competences exist, including alternative general competence and contractual general competence. This article aims to highlight the particularities of these types of general competence, starting from the alternative procedural right regulated in the legislation of both the Republic of Moldova and Romania. Methods: The results were obtained through applying various knowledge methods: synthesis, analysis, and comparison. The latter was particularly instrumental in highlighting the regulatory framework of alternative and contractual general jurisdiction in both the Republic of Moldova and Romania. This involved exploring the arguments that these jurisdiction types in the alternative procedural right, identifying the limits and conditions governing their exercise, and examining specifics of their regulation in each country. Additionally, the principles governing alternative and contractual general jurisdiction were also highlighted. Results and Conclusions: This article successfully distinguished between alternative general jurisdiction and contractual general jurisdiction, recognising them as two distinct types of general jurisdiction. This inability to recognise their difference has led to confusion and incorrect application in the judicial practice of the rules regarding the general competence of judicial bodies. The particularities of exercising the right to choose the jurisdictional body were highlighted both under the regulations regarding the alternative general competence and the contractual one. Finally, the study concludes with recommendations to ensure the correct application of these types of general competence in practice. It has been argued that the right to choose the jurisdictional body by virtue of general alternative and contractual jurisdiction constitutes a procedural right, not a substantive one . Proposals have also been proposed to amend the l, improving the alternative general jurisdiction and contract regulations.

The Issue of Voluntariness of Consent to Refer Disputes to the Court of Arbitration for Sport based on the Analysis of Its Status and Principles of Functioning

The article is devoted to the study of institutional and procedural problems related to the resolution of conflicts arising in professional and Olympic sports (elite sports). Modern sport seeks to isolate itself from state and international legal regulation, to create its own system of corporate standards, the subjects of which are sports organizations and athletes. In order to impart stability to the introduced system of corporate rules, international non-governmental organizations leading the world sports and Olympic movement also create their own jurisdictional bodies (arbitration courts, the so-called sports tribunals), the purpose of which is to resolve disputes between athletes, sports organizations on corporate rules established by international sports federations and the International Olympic Committee. The central part of this system of sports arbitration courts is the Sports Arbitration Court in Lausanne (Switzerland), whose status is analyzed in detail in this paper.One of the main problems to which the author pays attention, is the non-consensual, in fact forced nature of the spread of the jurisdiction of the sports arbitration courts on athletes, often combined with a prohibition (established in the corporate act — for example, the regulations of sports federations) to appeal to the state courts under a threat of lifelong disqualification. Thus, the structures that govern the world professional and Olympic sports require athletes to refuse to exercise their constitutional right to access to justice. But could an arbitration clause be considered valid if the athlete did not give consent to the consideration of his disputes in the arbitration court (arbitration) and to the choice of arbitration jurisdiction, which in fact was forced? Unfortunately, practice shows that in most cases, when athletes ignore this ban and apply to national courts, appealing against the decisions of the sports arbitration court in Lausanne, the latter make “political” decisions that take the interests of the leading forces in the world sports movement into account.

Problems of protecting social security rights in countries Eurasian Economic Union: individual aspects

The entry of an employee into an employment relationship and the exercise of labor activity is associated with the acquisition by the employee of insurance and work experience, including special work experience, the acquisition of which then becomes the basis for the emergence of social security rights, in particular, the right to a pension, an allowance, social assistance, social services. Citizens of the Russian Federation work in the post-Soviet countries, in particular, in the Republic of Belarus, Armenia, Kazakhstan, or Kyrgyzstan, which are members of the Eurasian Economic Union, an international organization of regional economic integration with international legal personality. The study of the problems of the application of the norms of social security legislation of both the Union and national jurisdictional bodies of the EAEU countries in the process of resolving social security disputes, allows us to identify conflicts, defects of this legislation, raise the question of optimizing laws, both on at the level of an international organization, as well as the legislation of the states that are members of this organization.

Проблемы рассмотрения индивидуальных трудовых споров спортсменов и тренеров в юрисдикционных органах спортивных федераций и профессиональных спортивных лиг

The article is devoted to the problems of consideration of individual labor disputes of athletes and coaches in the jurisdictional bodies of sports federations and professional sports leagues. The current legislation provides for the possibility of creating bodies of pre-trial settlement of disputes in the field of physical culture and sports within the structure of all-Russian sports federations and professional leagues, which can consider individual labor disputes of athletes and coaches. At the same time, certain problems arise already at the stage of determining the jurisdiction of these bodies in terms of the possibility of considering individual labor disputes by them. Within the framework of this study, the problems related to the issues of the correlation of labor legislation and legislation on physical culture and sports, related to the procedure and conditions for the formation of jurisdictional bodies, the peculiarities of submitting a dispute for their consideration, and the observance of the principle of equality of the parties are identified. Proposals have been developed to improve the current legislation.

The Genesis of Recognizing the Right to Access to Information on International Level

The article analyzes the formation and recognition of the right to access to information in international legal activity. The study of the genesis, transformation and development trends of the right to receive official information is important for understanding the essence and directions of development of this right, which has acquired special significance in the modern world. The article consistently examines the role and significance of the law enforcement practice of international treaty and jurisdictional bodies, the impact of decisions on specific legal situations on the development of normative regulation of the right to receive information of public or other significant public interest. The result of the generalization of international law enforcement is the identification of prospects and trends in the development of the right to access to information in the form of establishing positive obligations for the state aimed at observing the above general civil freedoms and, as a result, improving mechanisms, including institutional ones, guaranteeing the realization of the right to receive information.

The institution of general competence – a premise for the existence of the private form of defense of civil rights

In this article, the general competence of the jurisdictional bodies is analyzed as a permit for the existence of the private form of defense of civil rights. The latter is presented as it could not exist as an activity of the jurisdictional bodies (arbitration and conciliation commission) in the absence of regulations on general jurisdiction. In particular, the arbitrability of disputes is analyzed as a component of the general competence of the jurisdictional bodies. The problem of the interpretation of the legal norms regarding the delimitation of the powers of arbitration by other jurisdictional bodies was highlighted. In the same way, ferenda law proposals have been submitted to improve the regulations of general jurisdiction in the field of arbitration.