Sphere Of Law Research Articles

On the Forms of Rationality and the Specifics of Implementing the Principle of Procedural Economy in the Criminal Procedure Law of the Republic of Kazakhstan

The authors present a thorough research of the forms of rationality and the specifics of implementing the principles of procedural economy in the criminal procedure law of the Republic of Kazakhstan. Modern reforms of Kazakhstan’s legal system affected the criminal law sphere as well. The authors have conducted a comprehensive examination and analysis of the principles of procedural economy, effectiveness and rationality of criminal proceedings in the Republic of Kazakhstan. Under the current Criminal Procedure Code of the RK, the initial stage of the criminal process has been considerably transformed: the pre-investigation verification and initiation of a criminal case has been totally removed from it, which has considerably reduced a rather vast list of actions preceding the stage of initiating a criminal case. The dominant function of a democratic state is the protection of the constitutional rights of its citizens. It means that all branches of state power — legislative, executive and judicial — should serve the protection of the rights of a person, while other functions of the state – social, economic, political, environmental protection, public law and order — should comply with it. Different legal phenomena, relations, processes, interconnections and interactions in the legal sphere itself and, partially, outside it compose a special public system — the legal system, which develops relatively independently and functions alongside other public systems — social, spiritual-cultural, economic and state-political ones. The legal system is the condition and, simultaneously, the consequence of building a legal state and a civil society, representative democracy and political pluralism. The process of developing a legal state in the Republic of Kazakhstan is progressing successfully, some experience has been accumulated, and the positive experience of civilized countries that have achieved certain success in this area is implemented. The problem of procedural economy, effectiveness and rationality of criminal proceedings must be considered through the prism of the above-mentioned requirements.

Section 172 of the Companies Act 2006: Desperate Times Call for Soft Law Measures

Section 172 of the Companies Act 2006 has been afforded much attention during parliamentary discussions on the codification of directors’ duties and has since the enactment of the Companies Act 2006 occupied much space in discussions among scholars who share an academic interest in the shareholder/stakeholder debate, in policy documents on law reforms following a series of corporate failures, as well as in company law lecture notes provided by Law Schools across the UK. With the UK leaving the EU, it is a critical time to discuss enlightened decision-making on boards, considering that, arguably, one of the key benefits of joining the EU with regard to UK company law, was that the UK was prompted to consider incorporating provisions affording a certain level of protection to the interests of other constituencies across a wide range of company and securities law Acts and regulations. What often escapes the attention of participants in discussions surrounding s. 172 CA 2006, is the section’s limitations not so much in terms of it prioritising the interests of shareholders over the interests of other constituencies, but with regard to its enforcement and utility overall. The purpose of this paper is twofold. First it aims to shed some light on the background and function of section 172 CA 2006. Secondly, after considering the challenges, shortcomings and dilemmas surrounding the function of this section, it suggests ways forward by proposing a change in the mode of regulating this aspect of managerial conduct. Ample evidence suggests that section 172 CA 2006 in terms of enlightened decision-making and in its hard law form will not facilitate the goal of promoting the ‘good governance’ of companies that have a high impact on society. Thus, the paper aims to advance an important aspect of UK corporate law in the making: namely suggest the use of alternative means available in the soft law sphere, that could support a more pluralistic and democratic formation of corporate decision-making.

Sowjetisches Ehe- und Familienrecht von den Ersten Dekreten 1917 bis zum letzten Gesetzbuch 1968: vom Standpunkt der Lettischen Sozialistischen Sowjetrepublik

The Soviet law, which was created at the beginning of the 20th century in Soviet Russia, had evolved on the basis of the legal tradition of Continental Europe; it was a legal system based on the Marxist law theory as understood in Soviet Russia and later in the USSR and the countries that came under its influence. Marxism-Leninism maintained actual equality in society, including gender equality, which determined Soviet state policy in the sphere of marriage and family law. In the territories occupied by the USSR in 1940 – Latvia, Estonia, Lithuania – the previously existing national systems of law were replaced by Soviet law. As a result of the Soviet marriage and family regulations being put in place, the following was established in the territory of Latvia: civil marriage as the only valid form of marriage, equality of spouses, and the equality in the rights of all children regardless of whether they were born in or outside of marriage.

Production Projects under Public-Private Partnership in the Sphere of Economic Security of the Penitentiary System: Issues of Financial, Personnel and Operational Management

Purpose: The aim of this article is to present the processes of economic security of the Penitentiary system of the Russian Federation. Design/Methodology/Approach: Research methodology is based on the works of world known scientists (specialists in the sphere of penitentiary production, law and administration), systematic approach and dialectic method. Authors used a wide information base that consists of legislation and statistics of the Russian Federation. Findings: Authors justified separate spheres, within which the abstract isolated control functions of the prison industry are to be implemented (finance, personnel, technology). Authors analyzed the prerequisites of the Penitentiary system’s economic security provision. For this reason, several significant problems that have the character of contradictions were determined. Practical Implications: The research results may be implemented into Russian legal and socioeconomic framework to improve and increase the penitentiary systems’s economic security. Originality/Value: The main contribution of this study is the highlighted interconnections between Russia’s economic security and the development of the Russian Penitentiary system’s production sector.

Legal solutions to medical problems: a rights-based approach as the way forward in the ownership and end-of-life contexts

Summary: This essay takes two contentious issues of contemporary society – end-of-life and ownership of bodily material and examines them through a legal lens. Relevance: In today’s litigation culture, the spheres of medicine and law increasingly overlap, sparking a need to leave the dichotomies behind and explore the symbiosis between these fields. Take Home Messages: On the basis of (1) consistency, (2) coherency and (3) control, it is argued that a rights terminology would helpfully organise the way we approach medical decision-making in these two contexts.

ПЕРСОНАЛИЗАЦИЯ И ДЕПЕРСОНАЛИЗАЦИЯ В ЮРИДИЧЕСКОЙ РЕЧИ

В статье рассматривается специфика обозначения лиц и функционирования наименований лиц в правовой сфере. Институциональность общения и антропологические представления, отличающие правовое мышление и юридический дискурс, обусловливают своеобразие как первичного обозначения людей, так и вторичного использования, переосмысления наименований лиц. В статье рассматривается две основные модели вторичной концептуализации категории лица: персонализация использование антропологической лексики в презентации не лиц или группы неопределенных лиц, и деперсонализация обозначение людей лексикой неличной семантики Research of how a person is de ned in legal discourse is very important due to its connection to the concept of individual/identity and anthropological notation in the sphere of law. The reconstruction of the notation is necessary to analyze and interpret legal thinking as well as to comprehend forming and functioning of legal entities naming. The composition of the article re ects the move of the researchers thought. The conceptual basement of person naming is considered in the article: the notion of person, individual and its expression in word usage (functioning of such notions as legal entity, court, legislator, etc.) The conceptually important for the research notion of person, individual is rmly de ned in philosophy, psychology, science, law, and cognitive linguistics. The characteristics of an individual are: 1) social determinism, existence of will, consciousness, feelings (philosophical and psychological aspects) 2) presence of rights and freedoms, social function of legal entity (legal aspect) 3) socialization of human life, legal causality of an individual and personal endurance (sociocultural aspect). There are two main levels that form the notion of individual: primary conceptualization which results in special notation with semantics of person (e.g. person, individual, legal entity, legislator) and secondary conceptualization which is the reinterpretation of terms and person de nitions. Personalization is using names of persons to de ne inanimate objects or abstract notions. Depersonalization is the opposite de ning a person using words with impersonal semantics, which normally do not describe a human being. Deindividualization is de ning a person without taking into consideration his or her sex. Personalization is analyzed based on the notion of legal entity. It is determined that even during primary conceptualization it is possible to distinguish the signs of animating for the person de nition, e.g. when this notion is combined with anthropocentric verbs. Secondary conceptualization is the language game based on straight and implicit rei cation (I have come to you as a legal entity to a legal entity) and the notion involving into the re ection over interrelation of legal entity with speci c individuals, their rights and freedoms (After the defendant was disclosed to have no name, the court could not consider him a legal entity any longer and the most correct behavior from the judges was to show surprise, where is the defendant and what are they sitting for). Depersonalization and deindividualization are brie y discussed through the examples of the following naming units: court, legislator, and other words correlating on gender feature: suitor suitress. The research concludes that personalization counterworks the impersonality, common for legal discourse. Personalization is performed by reinterpretation of anthropocentric naming, including individual, identity.

THE MEANINGS OF LAW, POLITICS, MORALITY: THE PROBLEM OF INTERACTION

The problem of interaction of the semantic field of law, politics and morality has not been thoroughly dealt with in modern humanitarian literature despite the fact that the concept of the semantic field is known to humanitarians for a long time, and in separate disciplines (linguistics, cultural studies, psychology) it has been thoroughly elaborated in the process of development of the subject of the sciences in question. The purpose of the article is to identify the meaning and scope of the use of the concept of the semantic field in law, politics and moral sphere of the society, as well as to identify the problem of interaction of these fields, to propose ways of resolving the main problems encountered during the analysis. The research methodology applied by the authors represents a complex combination of ideas of dialectics, synergetics, hermeneutics, phenomenology, communication, as well as a normative-axiological approach to law. Sources on philosophy, politics, psychology, morality and law have been used. The main results of the research are as follows: the analysis of the concept of the semantic field in each of the proposed areas of social knowledge requires a meaningful reinterpretation of the conceptual apparatus and filling its elements with the meaning that corresponds to the goals, objectives and nature of the subject of the science in question, which also affects the peculiarities of the applied methods of cognition.

Legal Regulation Of Private Law Aspects Of Water Use By Owners And Users Of Neighboring Land

The article is devoted to some questions of the legal legal regulation of neighborhood relations related to the use of water to meet the needs of owners and users of neighboring land. The regulation of this relationship has historically been an inseparable part of neighbour law. Regulations of this kind were contained in many historically significant Ukrainian legal documents (in particular, various editions of the Lithuanian Statutes, the Rights of the Little Russian People (1743), and others). Currently, the regulation of the use of water resources mainly comes under the sphere of public law. Consequently, the current Land Code of Ukraine does not contain regulations of this kind. Nevertheless, a study of international legislation and regulation policies on neighbourly relations emphasizes the necessity to legislate on the private aspects of neighbourly water use. In particular, such provisions include the laws of the Republic of Moldova, Georgia, Republic of Azerbaijan and some other post-soviet states. The findings of the study has made it possible to formulate the proposals aimed at improving the current legislation on this issue. They are based on a general rule forbidding to alter the natural movement (flow) of water, if it violates the rights and legitimate interests of owners or land users of neighboring land. The artificial movement (flow) of water, caused by the activity of land owners or land users, is proposed to regulate by contract by establishing land easements (discharge of water to a neighboring land plot, their redistribution between neighbors, etc.).
 Regulating water-related relationships to meet the needs of owners or land users of neighboring land has historically been an integral part of «neighborhood law». Nowadays, the legal regulation of the relationship regarding the use of water resources has shifted to the sphere of public legal regulation. Nevertheless, the study of the laws of foreign countries and the practice of regulating good neighborly relations indicate the need for legal regulation of private aspects of neighborhood water use. They are mainly related to the prohibition of altering the natural movement of water if it violates the rights and legitimate interests of owners and owners of neighboring properties.

A "Jurisprudenz" de Gustav Klimt: direito, esfera pública e violência soberana

This research aims at discussing a possible reading of Gustav Klimt’s painting "Jurisprudenz", from a juridical perspective, in order to explain its potential of meaning regarding the relation between law, sovereign violence and public sphere in peripheral countries like Brazil. In order to do so, this paper is based on three analytical aspects, which are deeply interconnected: The Renaissance’s revival of pagan Antiquity, Freud’s psychoanalysis, and the ambivalent relationship between Law and sovereign violence. Klimt articulates these three dimensions through a) elements of Greek mythology; b) in a Freudian dream-like atmosphere; c) placing the observer in the political role of one of its main characters. Methodologically, this research identifies the references of Klimt at his lifetime and proposes a dialog with the previous interpretations and reflections made by Schorske, Minkkinen, Rodriguez and Manderson, among other authors that dedicated themselves to study the "Jurisprudenz" of Klimt. "Jurisprudenz" presents a visual narrative that allows one to understand the rupture of the cogito self by the desire self (Freud), the exception/sovereign violence of Law (Schmitt, Benjamin, Agamben), and the creative construction of the Law by democratic participation in new forms of public sphere (Habermas).

Law as a Model for Solving Ethical Issues

The author discusses the thesis proposed by H. Hazlitt that jurisprudence has developed such methods and principles of solving legal problems that could also serve as a guide in solving ethical problems. The article critically reviews the reasoning behind this thesis made by H. Hazlitt and L. Yeager. A special attention is paid to the influence of J. Bentham’s utilitarian ideas on the formation of Hazlitt’s conception. Not being a lawyer, Hazlitt in the work The Foundations of Morality argued that the law affects morality. In Hazlitt’s ethical theory judicial precedents affect the formation of moral rules. Hazlitt compares the formation of general rules in the sphere of morality and law. Using the formula of evaluation of moral rules proposed by Hazlitt, situations should be considered from three positions: subject of action, object of action, and impartial observer. Even though Yeager develops the ideas of Hazlitt, the former uses different arguments to substantiate the main thesis. Yeager believes that the laws have to declare the norms of morality. However, the arguments of Hazlitt and Yeager should be considered critically, as some researchers have done. As an additional argument to support the article’s main thesis, it is proposed to use the mechanism of conciliation procedures as a model for solving ethical problems. The article concludes that the thesis proposed by Hazlitt is valid but requires further reasoning and research by the philosophers of law.

POSSIBILITY OF PHILOSOPHICAL METHODOLOGY APPLYING FOR INTERPRETATION OF “RESPECT” CONCEPT IN THE LAW

Contemporary investigations that are closely connected to the sphere of human rights have expanded the boundaries of law theory and stated its close connection to the moral sphere. The examples of such investigations are represented in the introduction. Starting from the second part of the XXth century, they were becoming more and more popular all over the world. This progress has shown many terminological issues related to the moral notions that should be solved as soon as possible with the help of cross-disciplinary studies. Hence the main aim and task of the article are to demonstrate the way to identify and solve such issues with the help of philosophical methodology on the example of the General Data Protection Regulation. For this purpose, Baconian and Cartesian research methods are used in conjunction with R. Dworkin terminological approach with the help of conceptual-categorical analysis, comparative analysis, and hermeneutic method. On the basis of the study and analysis of the Baconian and Cartesian methodologies and with help of R. Dworkin economic terminological approach, the author of the article within research results demonstrates the process of identifying of problematic notions in a legal text, its analysis in the context of the legal area, and, as a result, the formulation of contextual (situational) interpretation of concepts of this kind. The discussion reviews the state of affairs within contemporary social studies on respect from the points of view of the history of philosophy, political theory and philosophy of law. The emphasis is made on contemporary European and American studies, such as conference and essays provided by different scholars, Ph.D. students, and postgraduate students. The conclusions prove that we can and should measure moral notions in law sphere because of their important role in the lawmaking process. The author emphasizes that we can create an adequate contextual (situational) interpretation of vague notions, especially moral notions with the help of philosophical methodology.

Щодо окремих питань законодавчого забезпечення сучасного сільськогосподарського виробництва

Розглянуто питання законодавчого забезпечення сучасного сільськогосподарського виробництва в аспекті його сталого розвитку. Проаналізовано стан законодавства, що забезпечує функціонування сільгоспвиробництва у сучасних умовах, виокремлено його характерні риси й особливості. Наголошено та всебічно розглянуто такі риси, як відсутність єдиного спеціального нормативно-правового акта, нормами якого були б урегульовані відносини у сфері сталого розвитку сільськогосподарського виробництва, чисельність, комплексність, динамічність, актуалізація значення норм міжнародно-правового характеру тощо. Встановлено, що законодавство у досліджуваній сфері являє собою величезний за обсягом, комплексний масив нормативного матеріалу, як зі сфери аграрного права, так й інших галузей національного права, і потребує вдосконалення. Визначено, що вдосконалення має відбуватися таким чином, щоб нормативно-правові акти забезпечували якість, стабільність, узгодженість та системність регулювання. Зауважено, що має йтися про якісну юридично-законодавчу діяльність, результатом якої стане створення ефективного та дієвого механізму правового забезпечення сталого розвитку сільськогосподарського виробництва. Запропоновано прийняття Закону України «Про сталий розвиток сільських територій», окремий розділ якого має бути присвячено врегулюванню відносин у сфері забезпечення сталого розвитку сільськогосподарського виробництва, розроблено його структуру. Ключові слова: законодавче забезпечення, законодавство, сільськогосподарське виробництво, сталий розвиток, джерела аграрного права

DAS FUNÇÕES RECONSTITUTIVA E PUNITIVA DA RESPONSABILIDADE CIVIL

O tempo vem demonstrando que nos sistemas jurídicos romano-germânicos o resgate do lucro ilícito carece de uma resposta adequada e eficaz. Em vários instrumentos, nomeadamente de direito europeu, o dever de indemnizar é concebido como um remédio que transfere o lucro para o lesado. Tivemos oportunidade de defender que a indemnização é, na verdade, o lugar natural para a restituição do lucro ilícito, mas, de qualquer forma, a emergência das novas soluções legislativas tornam essa resposta evidente. Deigual modo, o espaço próprio do direito civil exige a restrição das sanções administrativas, excluindo essa intervenção do direito público quando os bens ofendidos são de natureza exclusiva ou prevalentemente individual. Justificar-se-á, nesses casos, a aplicação alternativa de uma pena privada, repondo a dignidade do direito subjetivo violado. Este enquadramento reclama uma reforma do Código Civil português, o que aqui se propõe.

GENESIS OF LEGAL REGULATION OF THE DESIGN OF THE RESULTS OF INTELLECTUAL ACTIVITIES

The article analyzes the legal regulation of the formation of the results of intellectual activity, therelationship of history with modern realities. The periodization of the process of development of legalintellectual activity of a person is determined, and important factors that influenced the formation anddevelopment of this sphere of law

Constitutional and foreign policy aspects of the U.S. economic sanctions

Introduction . History of economic sanctions goes back to the old times, when Athens blocked trade for those entities, whose way of conduct was not acceptable to them. The authors prove, that further active application of economic sanctions, which developed in the 20th century, is more related to the activity of certain states, in particular the USA. The sanction practice was encouraged by the approach of the American presidents, for example, manifested in the well-known speech by President Woodrow Wilson where he named economic sanctions as silent, but deadly method of fight. An Important role in the economic relations between the USSR and later - Russia and the USA was played the Jackson-Vanik amendment which imposed serious trade relation limitations that existed until it was repealed in 2012. However, in 2014 the history of the trade sanctions pressure over Russia from the USA got a new impetus. The authors review several presidential Executive Orders, which imposed economic sanctions against Russia. A new U.S. Law “Countering America's Adversaries Through Sanctions Act" (CAATSA), adopted in 2017 is scrutinized by the authors as well. Materials and methods . The methodological basis of the research includes general scientific and special methods of cognition in the sphere of constitutional law, including method of system structural analysis, comparative legal method, formal logical method, historical and legal methods. Results. The authors stress the high importance of the extraterritorial legal force of the U.S. economic sanctions acts, which allows application thereof beyond territory of the USA. The authors make a conclusion that modern U.S. sanctions against Russia without any doubt should be considered as an element of pressure with the purpose of intervening into Russia's internal and external policy. Discussions and conclusion . The use of economic sanctions as a tool of coercion against another state is grounded; the negative impact of economic sanctions on the state that imposes them is evidenced, the proposition that the extraterritoriality of the US laws is in conflict with the sovereign law enforcement practice of other states, including the Russian Federation, is substantiated.

An Expectations Based Privacy Framework for Management of Personal Data as a Common Resource

Personal data shared with third parties functions as joint property and has many inherent expectations. Some of these expectations are based on why and where the data was collected. Recently, however, the uses for collected data often exceed the expectations of the parties that provided the data. This exploitation is similar to exploitation of the commons and can have similar solutions. This paper outlines how common resource management regimes can be used in the privacy law sphere. It then summarizes some of the sources of personal data providers' expectations as informed by fourth amendment law. Finally the paper looks at sources of law and best practices for implementing a common resource management approach to personal data management.

Unofficial Islamic Legal Knowledge Production

The hegemonic Turkish secularist elite, on the one hand, stigmatized, demonized and banned Islamic and Ottoman knowledge, including legal one and on the other hand with a top down social engineering approach they had tried to homogenize society and to create ideal and favorable citizens. As a result, public expressions of Islamic law, non-Turkish ethnic identity or non-Muslim religious identity had either been banned or stigmatized. But counter-hegemonic and anti-hegemonic knowledge sources and identities have continued to co-exist as unofficial, subaltern and periphery phenomena, producing their own anti or counter-systemic knowledge, including unofficial Muslim. All these have paved the way for unofficial ijtihads, micro-mujtahids, surfers on inter-madhhab, post-modern fragmentation of the unofficial Muslim law sphere and emergence of Islamic legal scholars. While all of these socio-cultural groups provide us fascinating and remarkable cases to study, in this chapter, I am only able to focus on practicing Muslims and among them, the Gulen Movement that has mainly focused on science and secular education. The movement has created its own spaces such schools, hospitals, dormitories, universities, cultural centers, think tanks, newspapers, TV stations, web portals and political lobbying associations to form and express an identity of a modern Sufistic Turkish Muslimhood. Gulen has reproduced several Islamic concepts to transnationally mobilize Turks. Eventually the Movement’s operations have reached to 170 countries until the global crackdown against it by the Erdoganist regime in Turkey. Even though Gulen is the main actor in the movement who has engaged with producing new Islamic knowledge in his constant responses to the socio-political affairs and challenges by reinterpreting Islamic sources in tune with contemporary time and space, the movement participants contribute to this process in different ways, such as by transferring knowledge to him from their own local contexts or by contextualizing and disseminating the knowledge produced by Gulen. There are interesting outcomes of these processes. For instance, many of the movement participants are of the view that something that can be called “Muslim Secularism” is possible, an idea that Islamic law is compatible with Alfred Stepan’s twin tolerations.

The Radical Transparency of Cities - Lost Public Anonymity and its Consequences

In a time of rapid development in privacy and data protection laws, the state of urban life has much to tell us about their long run effectiveness. Compared to even the recent past, major cities have largely lost the definitive public anonymity and obscurity that has characterised urban life for centuries. Saturated with sensors networked to powerful data analytics, they are at the epicentre of an ongoing revolution in governmental and commercial surveillance. In short, the future radical transparency of all human life is already emerging in our major cities. This paper addresses a crucial question. Given a hundred years of privacy and then data protection law, how did this happen? In this paper, I argue that the explanation for this long running failure lies substantially in the wider political economy of information law, which continues to shape and limit the capacities of privacy and data protection law. The prevailing liberal democratic model of information law is structured around two key concerns: protecting the state’s powers of ultimate access to information and ensuring that all information remains potentially marketable. The particular vulnerability of personal information to demands for state and market access is, however, much more than a matter of political and economic power imbalances. Information law has developed through a dynamic relationship between governmental and commercial information uses and the continuous application of new technologies that render information more accessible and usable. Over the long history of privacy and data protection laws, technologies have thus played a uniquely important role in catalysing the erosion of existing personal information protections and creating opportunities for strengthening access rights. The formidable privacy of physical circumstances, which was an ordinary and often unremarkable feature of life, has been gradually eroded away. The contested re-construction of that privacy through law has been, in comparison, porous and compromised. I explain this claim through three illustrations: First, in the transformation of the concepts of public space and public domain, which are frequently used to justify access to personal information with minimal safeguards; Second, in the conflict within the principles of individual consent and choice, which provide the cornerstone for both personal autonomy and marketability of information; and, Third, in the comparative structural weaknesses of privacy and data protection laws as a field within the wider sphere of information law. Whether societies find more effective boundaries against further transparency or even change the governance of how personal information is accessed and used in conditions of transparency are primarily political and economic questions. Constructive changes in law and regulation can, however, feed into those wider processes of decision making. In its final part, the paper discusses ways in which important elements of privacy and data protection laws could be used more effectively. This includes current efforts to use diverse forms of collaborative public scrutiny and accountability to challenge information law’s embedded preferences towards access and use. Cities, not surprisingly, remain the test bed for success or failure.

Contribution to the National Rule of Law as a Legitimating Factor for International Investment Law – is it the Potential or the Outcome that Matters?

Legitimacy of international investment law is a much-discussed topic. Within that discussion, there are increasingly prominent suggestions that investment regime can be (further) legitimized through its role in enhancing the domestic rule of law. The exact contours and implications of this legitimating narrative remain underexplored. They are further challenged by certain empirical findings that international investment law provides no tangible improvements in this sphere. The present chapter takes a closer look at these issues. By using the framework of legitimacy in international law offered by Chris A. Thomas, I argue that the potential of investment treaties and awards to improve the national rule of law should be seen as a more relevant legitimating factor than the evidence of actual improvement. The improvements ‘on the ground’ remain dependent on many extrinsic factors, and may set an unrealistically demanding bar for legitimating the investment regime. However, to create the potential for the host States to improve the rule of law, further structural and decision-making reforms remain warranted within the investment law sphere. In particular, awards should systematically engage with the existing national (rule of) law instruments and mechanisms, and offer sufficiently thorough arguments on potential rule of law deficiencies in the national legal framework and/or practice.

Zaštita temeljnih ljudskih prava pred međunarodnim investicijskim arbitražama kroz poseban osvrt na pravo na vodu

The concept of human rights penetrates into all spheres of law, acting as a protective mechanism against the abuse of rights by States and other entities. Human rights are a counterweight to the development of the neoliberal expansionism, embodied in the regime of foreign investment protection through international investment contracts. When states enter into such contracts, they bring along the previous commitments, in particular the obligation of protecting human rights. However, this obligation is not merely the result of existing international treaties because states are also obliged to to respect the higher rank norms of international law (jus cogens norms), which include the fundamental human rights, concentrated around the right to life. In such a legal framework, there is a notable increasing conflict between the protection of foreign investors' rights in international investment disputes and the protection of fundamental human rights. The right to water, as an indirect right to life, is a special indicator of this conflict in the practice of international investment tribunals. The issue of supremacy of rights is raised, particularly concerning the question which obligations have priority under international law: the protection of foreign investments or the protection of fundamental human rights, and especially the right to water? The hitherto practice of international investment tribunals is diverse and inconsistent in this regard; as such, it does not provide a clear answer to this key question.