Effective Legal Remedies Research Articles

The Principle of Guaranteeing Effective Means of Legal Protection: European and National Concept

The relevance of the research is determined by the novelty of the topic, taking into account the Law of Ukraine "On Administrative Procedure". The purpose of the study is to characterize the category "guaranteeing effective legal remedies" in the national administrative legal doctrine, taking into account the European standards for the protection of the rights, freedoms and interests of the individual, and to determine the directions of research into the problems of challenging administrative acts in public administration. The research uses many methods, including general scientific and special legal ones: comparative legal, systemic structural, analysis, synthesis, and others, which makes it possible to systematically and consistently approach the solution of scientific problems, to investigate different positions of scientists, the provisions of legal acts and formulate appropriate conclusions. An analysis of the essence of the principle of guaranteeing effective legal remedies was carried out. Two components of the principle are distinguished: 1) the right of a person to appeal the decision, actions or inaction of an administrative body; 2) the duty of an administrative body to inform a person about the method, procedure and terms of filing a complaint against an administrative act that negatively affects his rights, freedom or legitimate interest. This opens the way for in-depth scientific understanding of this topic. In the process of analysis, a number of problematic moments related to the incorrect use of the provisions of this principle were revealed. It is emphasized that the implementation of the principle will affect: a) a change in the format of interaction between individuals and administrative bodies in the direction of raising the standards of such communication; b) reducing the burden on administrative courts, etc.On the basis of the conducted research, conclusions were formulated and recommendations were made, namely, that the principle of guaranteeing effective means of legal protection: 1) is based on EU standards, taking into account national specificities; 2) is an additional mechanism for the protection of persons; 3) is implemented mainly at the level of the institute of administrative appeal, which has certain advantages compared to judicial appeal. Therefore, in the context of the transformation of national legislation, there is a need to conduct additional research on the specifics of the implementation of this principle, taking into account the realities of today.

Right to Effective Legal Remedy in Criminal Proceedings in the EU. Implementation and Need for Standards

In order to secure rights and guarantees provided by the legal system of the European Union, legal acts in the field of the criminal cooperation refer to the right to an effective remedy. Given that, two instruments are particularly impor­tant as they were the first to aim to set the standard and frame for the effective remedy conceptual framework: the Directive 2013/48/EU and the Directive (EU) 2016/343. The Authors analyse the legislation process within that context, the ap­proach of Member States, (non)existing standards and related consequences, such as the possibilities of proper implementa­tion of the right to the effective remedy into the national legal systems, verification of that process as well as the chances to achieve the harmonisation of minimal standards of the protec­tion of fundamental rights in the area of criminal proceedings in the EU.

The implementation of rights management information provisions in WIPO internet treaties: a comparative law perspective

With the rapid development of information technology, intellectual property protection in the digital environment has gradually become a critical issue. WIPO Internet Treaties have included new provisions for digital intellectual property protection since 1996, which require all the members to provide adequate and effective legal remedies for rights management information (RMI). However, WIPO Internet Treaties only afford a basic framework, leaving much discretion for members to decide how to implement their treaty obligations. The domestic protection of RMI generally differs in five aspects: definition of RMI; the scope of prohibited acts; knowledge elements; exceptions of liabilities; and legal remedies. By examining the RMI provisions in WIPO Internet Treaties and their implementation in jurisdictions, this article focuses on the perceived flaws, puzzles, and problems that the RMI provisions may cause, and speculates on the effectiveness of the RMI provisions in accomplishing predetermined goals.

Administrative justice of Germany: development prospects

The article is devoted to the prospects for the development of administrative justice in Germany. On the wave of reforms initiated to a large extent by European law, there were those states in which administrative- legal protection was traditionally aimed primarily at ensuring the integrity of the objective legal order and for a long time did not pay enough attention to the protection of citizens in urgent cases and in case of administrative inaction. In contrast, in Germany, where administrative procedural law is characterized by the concept of subjective legal protection and the right to effective legal protection has been guaranteed at the constitutional level since 1949, the need for change has been negligible.
 The dynamism that has characterized the development of administrative justice in many European states since the 1990s will continue in the coming years and will further change administrative and legal protection. In the Federal Republic of Germany, which is characterized by a paradigm of subjective legal protection, legal protection will be enriched by prosecutorial actions from associations and possibly citizens. This applies primarily to those areas where legal norms for the protection of certain public interests suffer from the structural weakness of law enforcement, which is partly caused by the fact that there is no possibility for individual actions in case of violation of these norms.
 There is a need to fill gaps in legal protection at the European and international levels. It is necessary to pay attention to the elimination of gaps in legal protection not only in the law of the European Union, but also in relation to possible violations of rights by the measures of international organizations. As long as effective legal remedies do not exist there, the European Union and its Member States must offer alternative legal protection, which is also based on universal guarantees of respect for human rights. Alternative conflict resolution mechanisms will continue to be tested. Out-of-court and judicial mediation will become more important. However, given the principle of administrative legality, their scope will remain limited. Serious changes in legal protection may occur due to the adjustment of the ratio between administrative and judicial means of protection. In particular, in the case of decisions on complex technical, economic, social and environmental issues, as well as decisions that must take into account a large number of interests, it may be functionally appropriate to strengthen control at the administrative level.
 Digitization will change not only the internal working processes of the courts, but also the communication between those seeking legal protection and the courts. It can provide greater transparency for all participants in the process, but it can also make access more difficult for those who have difficulties communicating with new media. Therefore, when implementing e-justice, special care should be taken to avoid a digital divide in legal protection. In addition, the digitalization of the judicial system has great potential to support judges in their work, not to replace them.

Processing War Crimes in front of National Courts in the Region – Between International Obligations and Real Politics

The fight against impunity for war crimes is one of the basic principles of international law. The criminal prosecution of the perpetrators of these crimes stems from international obligations that states have for the purpose of establishing facts and truth as the basis for establishing the rule of law. The right to the truth as a basic guarantee against repetition, the obligation to prosecute serious crimes under international law and the right to a fair trial, the right to effective legal remedies and reparations, and the obligation to remember and memorialize, are obligations prescribed to states by numerous international legal instruments. A fundamental contribution to the fight against impunity for crimes committed on the territory of the former Yugoslavia in the armed conflicts of the nineties of the twentieth century was made by the International Ad Hoc Criminal Tribunal for the former Yugoslavia. His legal legacy is significant both in the field of determining responsibility for crimes and in the development of international law. With the strategy for ending the work of the International Criminal Tribunal for the former Yugoslavia, the obligation to process war crimes was placed under the jurisdiction of the national courts of the countries in the region. The judicial authorities in the region, with the support of the International Residual Mechanism for Criminal Courts, the successor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, took on the responsibility of prosecuting war crimes committed during the armed conflicts of the 1990s in the territory of the former Yugoslavia, and for this purpose specialized departments were established courts and prosecutor's offices for processing war crimes. However, numerous suspects of high or middle military and civilian chain of command who participated in crimes, most of which were committed on the territory of Bosnia and Herzegovina, and for which their superiors were convicted before the Hague Tribunal, have not yet been prosecuted, that is, the sentences have been carried out. The national courts in the region, which have the obligation to ensure the implementation of the international principle of the fight against impunity and to continue the work of the international judiciary, have proven to be ineffective in that area, if not in the service of realpolitik. Numerous high-ranking war crime suspects avoid criminal responsibility by fleeing to neighboring countries where they have or have acquired dual citizenship. By abusing the institution of extradition, impunity has been granted to those suspected of serious violations of international law. In addition, by unfoundedly applying the institute of universal jurisdiction in the prosecution of war crimes, national courts not only ignore the jurisprudence of international courts, but also contribute to the revisionism of established facts. The lack of regional cooperation in the prosecution of war crimes, despite numerous agreements signed for this purpose, the non-recognition of judgments of the courts of neighboring states in the region, are problems that continue to prevent the acceptance of facts and truth as the basis of a guarantee of non-repetition. Moreover, the facts established in the judgments before the international judiciary are the subject of institutional denial and revisionism in the territories of the states of the former Yugoslavia that participated in armed conflicts in the 90s. Negationism and revisionism, deeply institutionally rooted in the post-war societies of the former Yugoslavia, their toleration and approval, as well as the ineffective work of the national judiciary, led to the phenomenon of glorification of crimes and war criminals in the region. Through the reports of relevant international and national institutions and examples from court practice, this work aims to point out the obligations and key shortcomings in the work of national courts in the region of the former Yugoslavia and the problems of regional cooperation in the prosecution of war crimes.

Analisis Yuridis Penerapan Produk Hukum Corporate Social Responsibility Dalam Pembangunan Daerah.

Abstract: Corporate Social Responsibility (CSR) is the company's obligation to provide a portion of the profits to help the community around the company's area. However, have every mining company fulfilled its social obligations in accordance with the mandate or legal products related to CSR to the community? This normative legal research article uses a statutory approach to obtain prescriptions about more effective legal remedies related to the implementation of CSR in regional development. Several relatively large and national companies have indeed successfully implemented CSR programs. However, in general, the implementation of CSR by regional scale companies has not been maximally carried out and felt by the community, especially the local community where the company is located.Keywords: Corporate Social Responsibility; Regional Development.

Legal means: concepts, types, functions and interaction in process of regulating social relations

Goal. Clarification of the concept, types, functions and principles of interaction of legal means. Disclosure of the essence of legal means as a key element of the instrumental theory of law. Justification of the concept of legal remedies and their properties, definition of classification criteria and types of legal remedies; carrying out a scientific analysis of the functional purpose of legal means, researching the principles of the interaction of legal means. Research methods. When conducting the research, general scientific and special methods of scientific knowledge were used. Scientific novelty. The author's definition of legal remedies is provided. The main approaches to the definition of legal means and their main characteristics are considered, as well as the properties of legal means are substantiated. The main features of means-settings and means-actions are analysed. Classification criteria and types of legal remedies are defined. A scientific analysis of the functional purpose of legal means was carried out. The main principles of the interaction of legal means have been studied. Conclusions. Legal means are fundamental means of legal regulation, which have their own characteristics and functional purpose. Application in a complex of means-settings and means of actions can ensure the best result of legal regulation. When using specific legal means, it is important to know how to match them correctly, so that in their interaction the selected means (tools and technologies) correspond to each other in a certain situation, strengthen the effect and legal force of each other and lead to a qualitative effect of legal regulation. Thus, it is important for each chosen legal means to be informed about the possibilities of correlation, the possibility to enter into a connection with other means in an appropriate manner. Only in this case, it is possible to choose a specific effective legal remedy to achieve the set goals.

Rechtsstaatliche Voraussetzungen für ein modernes Verfassungsrecht in Europa

The “rule of law” is a fundamental principle in modern European constitutional law and, despite some irritations in Member States like Hungary and Poland, a generally recognized basic feature of European integration. Among its basic elements that can all be found in the primary law of the European Union, are the general idea that public power is bound by law, the separation of powers, various aspects of legal security, the proportionality of governmental actions, basic rights of the individual and effective legal remedies before independent courts. Some of those elements were already mentioned in the writings of Stanislaw Dniestrzański in 1920. Like other elements of liberal constitutions, the “rule of law” can fall prey to the abuse of power, even one that has been won through democratic elections, and to benevolent disdain. The principle is in our times, for example, challenged by populistic attitudes, the encroaching influence of political parties and the impulse of elected governments to roll back the independence of the judiciary. It is very appropriate, therefore, to underline that to accept the own power to be fenced by the “rule of law” is the very essence of European democracy.

USTAVNOSUDSKA KONTROLA UPRAVE PUTEM USTAVNE ŽALBE SA OSVRTOM NA PRAVNI SISTEM BOSNE I HERCEGOVINE

In comparison to many other countries in which all legal documents and/or substantive actions of administrative bodies can be the subject of constitutional complaint, in the law of Bosnia and Herzegovina, only individual legal documents of judicial authority may be the subject of dispute through appellation which embodies general characteristic of the constitutional complaint. Appellation is not permitted against individual documents or actions of other state organs, thus administrative bodies as well. However, control of constitutionality of administrative documents by the Constitutional court is possible indirectly: through appellate questioning of substantive and legal issues of the legally binding administrative-judicial decision which determined legality of final administrative decision. Decision rendered by the court replacing certain administrative decision may also be the subject of appellation, provided that such administrative decision has breached constitutional rights and freedoms. As a rule, should the Constitutional court of BiH, within its procedure initiated with submission of appellation, decide that there has been a breach of constitutional rights and freedoms in the judicial decision which ended the respective administrative dispute, not only administrative-judicial decisions (judgements and decisions) are revoked, but often are individual legal documents of the state and republic/cantonal administrative bodies revoked as well. Likewise, should the substantive document, i.e. administrative action, constitute the breach of constitutional rights and freedoms of citizens and such citizens use all available effective legal remedies against such document or decision, appellation may be submitted directly disputing certain document or actions of state body. Should, in specific case, there be no effective legal remedies available to citizens, appellation may be used to directly dispute administrative actions.

The European Arrest Warrant, from Mutual Recognition to Mutual Supervision?

Mutual recognition is the rule which guides cooperation in criminal matters within the European Union. Whilst intended to facilitate and make cooperation faster, the Court of Justice has done exactly the opposite in its case law. It has raised the thresholds for cooperation between the Member States by creating more formalities, causing delay and it does so without strengthening effective legal remedies for the citizen. Member States must assess detention circumstances elsewhere, the status of the issuing judicial authority, as well as make an assessment of the judicial independence of the judiciary of the issuing Member State. These three cumulative developments have led to a situation in which Member States mutually supervise each other. The concept of dual level of protection, as introduced by the Court, triggers two procedures that will be necessary: one, in the issuing Member State, before the European Arrest Warrant (EAW) is issued, and another in the executing Member State when it must be executed. However, the requested person does not benefit from effective judicial protection because of their absence when the EAW is issued. This would only be the case when it would be possible for the requested person to challenge the need for the EAW in the context of the existence of alternatives to surrender that might be less violative of the freedoms and rights of the requested person. Such an overall assessment of the legal position of the requested person would require a single joint level of protection, involving both Member States and the requested person in one procedure in order to safeguard that all interests at stake are considered, impunity is prevented and thus a fair administration of justice is ensured.​

INSTRUMENTI ZAŠTITE PROCESNIH PRAVA OBRANE U ISTRAZI PREMA ZAKONU O KAZNENOM POSTUPKU BOSNE I HERCEGOVINE

With the entry into force of the Criminal Procedure Code of Bosnia and Herzegovina, the roles of the prosecutor and the court have been changed significantly compared to the earlier legislation, especially in the investigative procedure. According to the existing normative framework, the role of the court in the investigation is much more passive since at this stage of the procedure the court does not control the merits of conducting the investigation. The mixed accusatorial concept of investigation as the one existing in the criminal justice system of Bosnia and Herzegovina has led to certain restrictions on the rights of the defence in investigation. Investigation is an important stage in criminal proceedings that is conducted for evidence and data collecting necessary to decide whether to file an indictment or discontinue the proceedings, as well as for evidence that can be presented at the main hearing and upon which the judgment is rendered. It is therefore necessary to ensure that a proper and lawful investigation is conducted. This means to make sure that all parties involved in the investigation, especially defence are treated in a fair manner. The right to defence is a fundamental human and constitutional right guaranteed by international conventions. The right to defence results in several individual rights enjoyed by suspects in preliminary proceedings. In order to ensure effective judicial protection of the rights of the suspects, the paper analyses the domestic criminal justice system and presents comparative legal solutions regarding the protection of procedural rights of the defence in investigation. The fundamental issues in analysing regulatory framework in Bosnia and Herzegovina are the lack of effective judicial protection of procedural rights of the defence, the absence of an effective legal remedy to conduct an investigation facilitating the principle of a fair trial for defence and the principle of equality of arms in pre-trial proceedings. In addition, the paper analyses the issue of informing the suspect of an order for investigation, since according to applicable regulations, the suspect does not even need to know about an investigation conducted against him, which is a violation of the principle of right to a fair trial.

Formation of the international protection of technical means of protection

Drobyazko V. Formation of the international protection of technical means of protection. The statute considers the establishment of international protection of technical means of protection in the field of copyright and related rights, analyzes the relevant WIPO documents, the provisions of articles 11 of the WIPO Copyright Treaty (WCT) and 18 of the WIPO Performances and Phonograms Treaty (WPPT), their innovative character is justified, The analysis of the provisions of the Law of Ukraine «On Copyright and Related Rights» on the protection of technical means of protection of works and objects of related rights is carried out.
 Technical means are effective when the use of a protected work or an object of related rights is controlled by the owner of the rights by applying access control or aprotection method, such as encoding, or such as a copy control mechanism for the purpose of protection.According to Article 11 of the WCT and Article 18 of the WPPT, the Contracting Parties shall offer for proper legal protection and effective remedies against circumventing existing technical means used by holders of rights in connection with the exercise of their rights under these agreements and restricting actions with regard to their works, performances or phonograms, which are not permitted by them or are not permitted by law.In the process of enforcing these treaties, it became clear that it was impossible to offer legal protection and effective legal remedies against circumvention if the protection and legal remedies did not extend to preparatory actions. That is, legal protection and effective legal remedies should also be provided for protection against the manufacture, import, distribution, sale, rental, advertising for sale or rental, or for the commercial use of devices, products or components, or from providing services that: promote, advertise, or sell in rounds; or have only a limited commercial business a significant purpose, or use, other than to get around; or are primarily designed, manufactured, remade, or implemented to offer a workaround or to aid in bypassing any effective technical means.Keywords: copyright, related rights, technical remedies, circumvention, effectiveactions against violation of rights

LEGAL PROTECTION OF THE CONSTITUTIONAL RIGHT TO HOUSING

Human rights as a phenomenon are, undoubtedly, the most important achievement of the modern era and the key element of civilizational development of global community; however, the range of duties that correspond to human rights must be taken into account as well. One of the major subjects in this system is the state, which bears the highest responsibility for protecting constitutional rights of its citizens. The “constitutional state” category used to characterize states with a sophisticated legal system is simultaneously distinguishable for high level of economic development, broad dissemination of democratic ideals and the priority of universal human values. However, this system is built on clearly defined legal priorities. The right to remedy is the measure and the guarantor of democratic society. With the proclamation of Ukraine as an independent state, the right of everyone to legal remedy became one of the fundamental, constitutionally guaranteed human rights. The human and citizen right to legal remedy belongs to the category of civil rights, and moreover, it contains a legal guarantee against abuse of power by particular persons, as well as by the government. Also, Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms provides for the right for an effective legal remedy. Embodied in the constitutions of the majority of developed states, it occupies a prominent place in the structure of the legal-constitutional status of a person and represents an indispensable factor. The right to justice is reflected in the fundamental principles of the judiciary. Therefore, this right consists of the following elements: accessibility of justice; the right to appeal and cassation appeal of court judgments; independence and impartiality of courts; equality of all participants of a judicial proceeding before law and court; the right to remedy; publicity of court trials; trial of the case in the shortest possible time provided by law. At the same time, protection of the right to housing necessitates fast resolution of disputable legal issues in certain cases, which court trials sometimes cannot guarantee.

PRILOG RASPRAVI O KAZNI DOŽIVOTNOG ZATVORA I MEĐUNARODNIM PRAVNIM STANDARDIMA

The latest amendments to the Criminal Code of the Republic of Serbia have quite a lot of controversy among the professional public. The subject of this paper is a critical review of various propositions for overcoming legislative omissions in relation to the sentence of life imprisonment without conditional release for certain criminal offences. Furthermore, this paper deals with prison sentences for crimes for which the conditional release is legally excluded. The intention is to encourage the professional public to find the best solutions for overcoming legally untenable prohibition of conditional release for people sentenced to life imprisonment. The author estimates that pardon, in our legislation, does not represent an effective legal remedy, nor an alternative to conditional release.

The use of biometric technologies for bank transaction security management against the background of the international experience: Evidence from Ukraine

In view of the expanding range of banking services in Ukraine, the issue of introducing innovative means of protecting consumers against illegal actions in the field of banking becomes relevant. This paper aims to determine the effectiveness of biometric technologies for customer identification during banking transactions, the legality of their use, and to identify areas for the development of state policy focused on the legal use of biometric data in order to protect the rights and legitimate interests of individuals and legal entities. Based on analysis and systematization of scientific publications and regulatory framework, it was found that a potential direction for banks to implement the customer focus concept in their services to establish the appropriate level of security is the use of biometric technologies that ensure the proper storage of personal data. The summarized information on the actual application of biometric identification methods in the banking sector allows stating that the factors stipulating the criminal offenses using biometric data can be neutralized by the subjects of counteracting such offenses and through effective legal remedies. Contradictions arising between the state of regulatory support and the actual needs for the use of biometric technologies in the field of banking in Ukraine decelerate the use of effective security tools with a high degree of reliability in the banking sector. It is concluded that further implementation of biometrics in the banking sector in Ukraine requires a comprehensive approach and consideration of the best world practices.

The case law of the European Court of Human Rights on the use of covert methods

In addition to the changes in the structure of crime, the rise of organised crime, the unprecedented threat of terrorism, the explosive development of technical tools and the flow of information pose such challenges for law enforcement agencies that is difficult to keep up with classic forensic procedures. In Hungary and abroad the traditional investigations are supported with special investigative techniques that - through their conspired application - can help to achieve the desired result more effectively. These methods necessarily violatecertain human rights, which requires strict legislation and appropriate implementation. One of the guaranty elements of legality is effective legal remedy. An important phase of this is the examination of the European Court of Human Rights. Understanding the operation of the court, the case law and the assessment criteria used in their proceedings may provide important information for both legislators and law enforcers.

Compensation for Unlawful Practices related to Administrative Detention of Foreigners in Turkey

This paper analyzes the evolution of the case law in Turkey concerning compensation of unlawful practices of administrative detention. Such cases happen when implementation of administrative detention is unlawful in terms of right to personal liberty and security, or when the administrative detention conditions are against human dignity. The paper follows an empirical and analytical method as the analysis is built on the decisions of the Turkish Constitutional Court (“CC”) in individual applications and on the judgments by local courts. Accordingly, as explained in the first section, in the first phase of CC’s decisions, the lack of a special compensation mechanism for unlawful practices of administrative detention was recognized and compensation was granted in favor of the applicants. Second section of the paper analyzes the landmark decision of CC where it changed its case law and required exhaustion of administrative full remedy action for compensation claims related to administrative detention. Building on this background, in the last two sections of the paper first, it is assessed whether administrative full remedy action is an effective legal remedy with respect to compensating unlawful administrative detention practices and second, a critical analysis is offered on CC’s approach to the claims of compensation in the light of its landmark decision.

The Agreement between Serbia and Hungary on the Protection of National Minority Rights –Revision Welcomed

This paper analyzes the bilateral agreement on the reciprocal protection of minorities that Serbia has signed with Hungary. The provisions of this agreement is examined, with the application of the legal-dogmatic, descriptive and comparative legal methods, and compared with the corresponding provisions in other bilateral agreements that Serbia has signed with neighboring countries, as well as with the provisions on the protection of the rights of persons belonging to national minorities as stated in the Constitution and laws of Serbia. The study pays special attention to the work of the mixed government commission; the state authorities’ measures regarding the implementation of the agreement and the judicial protection. There is the formulation some recommendations through which this legal instrument could become a more effective legal remedy for the protection of national minorities. This analysis seeks an answer to the question of to what extent the bilateral agreement has contributed to the international and domestic legal framework for the legal protection of national minorities in Serbia, and whether it is today mainly a political instrument without particular legal relevance.

New Grounds for Civil Liability under National Law in the Light of Article 79 of the GDPR

The subject of the paper is the functioning of Article 79 of the GDPR in the Polish legal system and in other countries. The above provision establishes the right to an effective judicial remedy against a controller or processor, which is to guarantee the protection of personal data in relation to the data subjects. The paper submits to a dogmatic and comparative analysis those regulations that concern the right to an effective legal remedy in the field of personal data protection based on the example of Polish legal regulations, but also with reference to France, Germany and Great Britain to comprehensively study solutions on the issues in question.

Ефективний захист як ціль правозастосування в міжнародному комерційному арбітражі

У статті досліджуються питання ефективності між-народного комерційного арбітражу та ефективного пра-вового захисту. У світлі практики Європейського суду з прав людини автор досліджує сучасні підходи до розу-міння ефективності в праві. Встановлено, що ефектив-ність засобу юридичного захисту зазвичай пов’язуєть-ся з такими його характеристиками, як доступність, достатність, визначеність. При цьому під час оцінки ефективності враховуються також загальний правовий та політичний контексти, в яких вони функціонують, та конкретні обставини справи заявника, незалежність таких заходів захисту від дій держави тощо. На основі аналізу автором зроблено висновок, що міжнародний арбітраж як раз і є тим ефективним засобом правово-го захисту, до якого звертаються сторони, підписую-чи арбітражну угоду. Його ефективність як способу вирішення комерційних спорів та захисту прав учас-ників міжнародних відносин залежить не лише від «ефективного» арбітражного розгляду, який зазвичай врегульовується Регламентом. У розумінні ефектив-ної арбітражної процедури варто виділяти збалансо-ваність і ефективність використовуваного сторонами Регламенту і те, наскільки передбачені ним процедури та процесуальні дії є розумними з позиції їх доступно-сті сторонам, достатні для потреб захисту порушених прав, визначені та ефективні з точки зору витрат часу і коштів сторін. При цьому автором обґрунтовано, що ефективність арбітражу залежить від поведінки самих сторін спору та їх юридичних радників, складу арбіт-ражу, а також характеру і складності самої справи та положень права, застосовуваного до арбітражного розгляду (lex arbitri). Адже, які б ефективні процеду-ри не були закладені в Регламенти, незнання їх Сто-ронами спору та їх представниками, чи небажання їх використовувати з метою затягування процесу, або ж з метою формування доказів для подальших юрисдик-ційних заперечень у судах місця арбітражу, так само як і оцінка складом арбітражу наданих доказів, юрис-дикційних заперечень тощо, можуть суттєво впливати як на швидкість арбітражного розгляду, так і на ефек-тивність захисту стороною своїх прав.