Economic security and private international law. International economic law
On October 27, 2017, the International Scientific and Practical Conference “Economic Security of States and International Private Law” was held at St. Petersburg State University (SPbSU). The conference is timed to coincide with the anniversary of the Honored Scientist of the Russian Federation, Doctor of Law, Professor L. N. Galenskaya.
The conference was opened by the Dean of the Faculty of Law of St. Petersburg State University, Associate Professor S. A. Belov. The conference was moderated by the head of the Department of International Law at St. Petersburg State University, Professor S. V. Bakhin.
Professor L.N. Galenskaya in her speech outlined the main challenges and threats to the economic security of the Russian Federation and emphasized the role of law in resolving these issues.
The conference was attended by leading scientists and practitioners: Professor A. Ya. Kapustin (First Deputy Director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, President of the Russian Association of International Law), Professor V. V. Ershov (Rector of the Russian State University of Justice ( RGUP)), Professor T. N. Neshataeva (Head of the Department of International Law of the RGUP, Judge of the EAEU Court) Professor M. L. Entin (Head of the Department European law MGIMO), Professor W. E. Butler (USA), Associate Professor N. V. Pavlova (Judge of the Supreme Court of the Russian Federation), etc.
In his speech at the opening of the conference, Professor A.Ya. Kapustin noted the importance and significance of the issues brought up for discussion at this event for the current stage of development of international relations and international law. Particular attention in the speech was paid to the issue of compliance of the use of unilateral economic coercive measures with the fundamental norms of international law, with special emphasis on the need to develop an international legal assessment of such measures in relation to the Russian Federation. According to the speaker, the insufficiency and weakness of international legal mechanisms for ensuring international legality raises the issue of expanding the use of national legal means of countering unlawful unilateral restrictive measures, which requires relevant scientific research from Russian science.
During the conference, leading researcher at the Department of International Private Law of the Institute of Legislation and Comparative Law under the Government of the Russian Federation, A. I. Shchukin, made a report on the topic “The principle of protecting the national legal order in Russian civil proceedings.”
Chapter I. Use of international law to ensure the economic security of states in modern conditions
1. Features of modern international economic relations 2. The concept of “economic security”
3. International legal support for economic security.
Chapter II. Regulatory guarantees of economic security of states
1. Principles of modern international law as the basis of the system of international legal support for the economic security of states
2. Economic coercion and economic sanctions in modern international law.
3. Regulatory support economic security of states in the field of trade.
Chapter III. Organizational and legal guarantees for ensuring the economic security of states
1. Ensuring economic security within the UN system.
2. Ensuring economic security in the WTO system.
3. Ensuring economic security within the framework of regional integration associations.
Recommended list of dissertations in the specialty “International Law, European Law”, 12.00.10 code HAC
International legal aspects of ensuring universal security 1997, candidate of legal sciences Mohammad Taher
The impact of economic sanctions of the United Nations Security Council on the implementation of private law treaties of an international nature 2005, Candidate of Legal Sciences Kryuchkova, Irina Nikolaevna
International legal mechanisms for regulating economic integration and state sovereignty 2010, Doctor of Law Efremova, Nellya Andreevna
Global and regional systems of collective security at the present stage: International legal aspects 2004, Doctor of Law Mohammad Tahir
International legal framework for ensuring collective security of the CIS member states 2003, Candidate of Legal Sciences Arkhangelsky, Alexander Valerievich
Introduction of the dissertation (part of the abstract) on the topic “Economic security of states and problems of its international legal support in modern conditions”
Relevance of the research topic. The process of establishing a market economy in the Russian Federation, as an integral part of the world economy and the international market, is associated with the growth of external threats to national economic security (hereinafter referred to as NES). The complexity of the problem of ensuring economic security is due to the fact that it is complex in nature and must be solved not only by economic, but also by legal means, including within the framework of international law.
Despite all the attempts made during the 20th century, ensuring the security of states in the economic sphere remains one of the most pressing problems of modern international law. Regulatory regulation of this issue is associated with the constant struggle of developed and developing countries to consolidate their interests in international law, based on different approaches to understanding national economic security.
In this regard, it is necessary to analyze modern international law from the standpoint of its use to ensure Russia’s national security, the results of which should be taken into account when creating a comprehensive strategy for ensuring national security.
In the modern science of international law, the problem of international legal support for economic security has not yet received due attention. Most of the work available today on this topic dates back to the period of the 80s and early 90s, when the issue of international economic security was discussed within the United Nations.
Analysis of the features of international economic relations that have a significant impact on the development of the system of international legal support for the economic security of states, the study of a set of principles and norms of modern international law, as well as existing organizational and legal institutions are mandatory conditions for creating an effective state system for ensuring the national economic security of the Russian Federation. Federation.
The degree of development of the research topic. At the moment, there are no monographic works specifically devoted to a comprehensive analysis of the problem of international legal support for the economic security of states in the conditions of the current stage of development of the world economy. Some issues of ensuring economic security in modern conditions were considered in general works devoted to international economic law by such Russian legal scholars as G.M. Velyaminov, A.A. Kovalev,
B.M. Shumilov. Problems of international legal support international security generally studied in the works of S.A. Voitovich,
S.A. Malinina, A.V. Pirogova, E.I. Skakunova, R.A. Tuzmukhamedova, N.A. Ushakova, V.N. Fedorov.
A special role in substantiating the NEB concept is played by the works of domestic economists and political scientists: L.I. Abalkina, I.Ya. Bogdanova, N.P. Vashchekina, B.C. Zagashvili, N.A. Kosolapova, M.A. Muntyan, V.A. Pankova, V.K. Senchagova, A.I. Strakhova, A.D. Ursula. The works of these authors study the features of ensuring the economic security of states in modern stage development of international economic relations, as well as the problems of Russia’s inclusion in the world economy.
The object of the study is interstate relations regulated by modern international law in the field of ensuring the economic security of states.
The subject of the study is a complex of regulatory and organizational-legal institutions operating in international law aimed at ensuring the economic security of states from external threats.
The purpose and objectives of the dissertation. The purpose of the dissertation research is to, based on an analysis of the features of modern international economic relations and the concept of economic security, study modern international legal normative and organizational institutions that can be used to ensure the economic security of the Russian Federation.
Achieving this goal led to the formulation of the following main tasks: to identify the features of modern international economic relations and elements of the economic security of states that must be taken into account when analyzing the system of international legal support for the economic security of states; explore the history of raising the issue of ensuring the economic security of states in international law; determine the role of international law in solving the problem of ensuring the economic security of states; analyze the possibilities of international law in ensuring the economic security of the state from objective and subjective threats of an external nature, within the framework of a unified system of ensuring national security; analyze the system of normative and organizational-legal guarantees existing in modern international law; study existing principles and norms that can be used to ensure the economic security of states, as well as trends in their development;
Reveal the main features and prospects for the development of organizational and legal guarantees of economic security, primarily the UN system and the WTO, as well as regional integration economic associations;
The methodological basis of the dissertation is the following methods: general scientific (comparison, analysis, synthesis, induction, deduction, analogy), special (formal-logical) and private law (interpretation, comparative legal, technical and legal).
The theoretical basis of the study was:
General theoretical works on international law;
Works on some basic branches of international law;
Works on general and special issues of international economic law;
Regulatory sources of international law;
Special works on the problems of globalization, interdependence, regionalization and national economic security.
The provisions and conclusions contained in the work are based on the works of domestic legal scholars: B.M. Ashavsky, D.I. Baratashvili, M.M. Boguslavsky, V.A. Vasilenko, S.A. Voitovich, G.M. Velyaminova, A.Ya. Kapustina, E.M. Klimenko, A.A. Kovaleva, Yu.M. Kolosova, D.K. Labina, D.B. Levina, I.I. Lukashuka, S.V. Marinich, V.I. Menzhinsky, A.A. Moiseeva, A.V. Pirogova, E.I. Skakunova, R.A. Tuzmukhamedova, G.I. Tunkina, E.T. Usenko, N.A. Ushakova, S.V. Chernichenko, G.V. Sharmazanashvili, V.M. Shumilova.
The author widely used the works of economists and political scientists: L.I. Abalkina, I.Ya. Bogdanova, N.P. Vashchekina, E.B. Zavyalova, B.C. Zagashvili, M.D. Intriligeiter, N.A. Kosolapova, S.A. Malinina, A. Mikhailenko, M.A. Muntyan, V.A. Pankova, A.V. Prokopchuk, L.V. Sabelnikova, V.K. Senchagova, A.D. Ursula.
Among the foreign scientists whose works were used in writing the dissertation, it is necessary to name: D. Carreau, M. Bedjaoui, J. Fawcett, D. Fischer , J. N. Jackson, P. Juillard, G. S. Hufbauer, K. Knorr, H. Machovski, H. Maull, R. McGee, C. Murdoch, S. Reismann, J. N. Rosenau, M. Shimai, A. Tita (A. Tita), J. Tinbergen (J. Tinbergen), R. Vernon (R. Vernon), M. de Vries (M G. de Vries), etc.
The scientific novelty of the dissertation lies in the fact that this work is the first to examine the possibilities of modern international law in the field of ensuring the economic security of states at the present stage of development of international economic relations. The author identifies elements of economic security, the provision of which requires the use of international law. An analysis of the current state and prospects for the development of a complex of international legal guarantees for the economic security of states is carried out. The main provisions of the dissertation submitted for defense: 1. In modern international economic relations (IER), there are a number of features that influence the development of modern international law and should be taken into account when studying the issue of international legal support for IER.
2. A systematic analysis of the concept of economic security allows us to identify a number of elements, the problem of ensuring which can be solved with the help of international law.
3. Differences in the approaches of developed and developing countries, as well as countries with economies in transition, to the problem of international legal support for economic security do not allow us to talk about the creation in the near future of a global system for ensuring the economic security of states. In this regard, the importance of ensuring the economic security of states within regional economic associations is increasing.
4. Analysis of the main groups of threats to electronic security allows us to conclude that international law can be used to counter threats of both an objective and subjective nature.
5. In order to include Russia in the modern world economy on conditions that will contribute to effectively countering threats to the country’s national economic security, it is necessary to take a number of steps in the field of international legal support for economic security related to the analysis of modern international law and the development of an action strategy to consolidate international law of Russia's national interests in the economic sphere.
6. Broad and narrow approaches to understanding international legal support for the economic security of states are identified. In a broad sense, the system of international legal support for economic security includes the norms of all branches of international law, since the relations that are the subject of their regulation can, to one degree or another, influence the formation and prevention of threats to the economic security of any state. A narrow approach to understanding international legal support for the economic security of states is based on the presentation of general principles of international law and special principles of international economic law, as well as regulatory and organizational legal institutions of international economic law as a unified system of regulatory and organizational guarantees of economic security of states.
7. The development trends of some general principles of international law and special principles of international economic law, which play an important role in ensuring the economic security of Russia, are identified.
8. An analysis of the current state and prospects for the development of the UN system from the point of view of ensuring the economic security of states confirmed the need to create a body within the UN that deals with the problems of economic disputes and the application of economic sanctions, as well as the need to expand the competence of ECOSOC in the field of interaction with major international economic organizations within the framework of joint programs.
9. Analysis of the system of regulatory and organizational institutions operating within the WTO allows us to conclude that within the WTO, a system of regulatory and organizational mechanisms has been created to ensure the national economic security of participating countries. This system should be studied in connection with Russia’s planned accession to the WTO, both from the point of view of its use in order to realize Russia’s national economic interests in the markets of WTO countries, and from the point of view of countering the use of these mechanisms in relation to Russia.
10. An analysis of the main regional economic associations in the conditions of modern development of the world economy allows us to conclude that today they are the main instrument for ensuring the economic security of both individual countries and their groups from external threats.
Theoretical and practical significance of the research results. Based on an analysis of modern international law, Russian and foreign scientific literature, a study of the regulatory and organizational mechanisms of the UN, WTO and regional economic associations, the author formulated conclusions regarding the understanding of the essence and features of the modern system of international legal support for economic security, which can be used: a) in further scientific works devoted to the development of problems of using international law to ensure economic security; b) when analyzing systems for ensuring national economic security and international security in general; c) to improve the current legislation in the field of ensuring economic security, as well as the policy of ensuring the economic security of Russia when included in the modern world economy; d) in the higher education system when studying international law and non-legal disciplines.
Approbation of research results. The dissertation was completed at the Department of International and Constitutional Law of Moscow State Linguistic University, where it was discussed.
Some provisions of the dissertation research are presented in three scientific articles, and also tested at conferences and seminars held at the Moscow State Linguistic University and the Diplomatic Academy of the Ministry of Foreign Affairs of the Russian Federation.
The dissertation materials were used during classes in the special course “International economic law"at the Moscow State Linguistic University.
The structure of the dissertation is determined by the logic of the topic and plan, the purpose and objectives of the research. The work consists of an introduction, three chapters including nine paragraphs, a conclusion and a bibliography.
Conclusion of the dissertation on the topic “International Law, European Law”, Ignatov, Yuri Vladimirovich
CONCLUSION
The study allows us to draw the following conclusions: W
1. Studying the issue of international legal support for the economic security of states and their groups from external threats requires taking into account the features of the development of modern international economic relations (IER) and international economic law (IEL), which include: the processes of economic globalization, interdependence and regionalization, development modern IEOs based on competition between states and their associations, confrontation between developed and developing countries in the sphere of limiting the use of economic coercion and abuse of economic sanctions, insufficient international legal framework in the field of combating negative phenomena in IEOs.
2. An analysis of the concept of economic security of states, carried out taking into account the features of modern international economic relations, allows us to identify a number of elements, ensuring which it is possible to use normative and organizational legal institutions of international law: counteraction to internal and external factors of an objective and subjective nature; ensuring the economic independence of states, which includes independence in determining the ways and forms economic development without external pressure and interference; f ensuring the economic security of the state in conditions of interdependence, the consequence of which is an increase in the danger emanating from external factors.
3. The history of posing the problem of international legal support for economic security can be divided into several stages. The first stage covers the period of the 20-30s. XX century, and is associated with bilateral and multilateral efforts of the USSR to combat manifestations of economic aggression. The second stage is associated with the USSR raising the question of economic aggression in 1953 when discussing the definition of aggression and the concept of “force” in various UN bodies. Despite the subsequent failure, the interest of developing states in creating a legal basis for international economic security was expressed within the framework of the third stage, associated with an attempt to establish a New International Economic Order and the subsequent consideration of the issue of international economic security at the UN. In the early 90s. work on the concept of international economic security was suspended, however, the support received by the idea of ensuring the economic security of states through international law, and the return of the UN to discussing the problem of economic sanctions and problems related to coercion in the economic sphere, allow us to conclude that a new stage of creation has begun international legal framework for the economic security of states.
4. There are deep contradictions in the approaches of developed and developing countries, as well as countries with economies in transition, to the problem of international legal support for economic security. As the analysis of the concepts of economic security has shown, the main task of developed countries is to maintain economic independence and gain control over the resources necessary for the normal development of the national economy, as well as to create conditions that guarantee the availability of markets for their products. This approach forms the basis of the policy Western countries in the field of international law. It is characterized by a refusal to use rigid norms and a desire to use “soft” law and more flexible organizational and legal institutions that allow the active use various methods political and economic pressure.
The position of developing countries and countries with economies in transition, which, within the framework of this approach, are a source of resources and sales markets for F products, is based on the idea of creating a system of regulatory framework of IEO, based on general and special principles of international law, including a system of regulatory and organizational institutions for ensuring economic security of states. This is precisely the position that Russia should adhere to when creating a strategy for its foreign policy measures in connection with ensuring national economic security.
5. The effectiveness of the mechanism of international legal provision of economic security is determined by its ability to guarantee the security of states in two situations - in the case of the impact of negative factors of an objective nature on the national economy, as well as in the case of the impact of negative factors of a subjective nature. In the first case, a regulatory framework is needed on the basis of which individual and collective actions of states and international organizations will be coordinated to provide assistance to a state or group of states that have suffered from external economic influence generated by the objective laws of the functioning and development of IEO. In the second case, a system is required that ensures the construction of the IEO on a democratic basis, limiting, and ideally prohibiting, the use of means of economic coercion, within the framework of which there is a system of peaceful settlement of disputes caused by differences in the national interests of the member states of the IEO.
6. Considering the complexity of the globalization process, the combination of both objective and subjective elements in it, the national strategy for Russia’s inclusion in the world economy should include a number of steps in the field of international law: analysis of the existing regulatory bilateral and multilateral framework to identify norms that ensure the economic security of the state ; active use of existing regulatory and organizational institutions to ensure security in the economic sphere; active participation in the development and adoption of norms within international organizations; creation and development of a clear regulatory framework for interaction with friendly countries within the framework of integration associations, taking into account the positive experience of other countries; identification of norms that require creation or further development and strengthening; taking steps to create and develop these norms in international law; active participation in international organizations that influence the development of the globalization process for the purposes and implementation within their framework own interests and initiatives.
7. Within the framework of such a strategy, understanding the role of international law in ensuring the economic security of states is possible in both a broad and narrow sense. In the first case, the system of international legal support for economic security includes almost all branches of international law, since relations that are the subject of regulation of various branches of international law are more or less capable of influencing the formation and prevention of threats to the economic security of any state. As part of a broad approach, it is necessary to analyze such branches of international law as, for example, international security law, international maritime law, a set of rules governing issues of international legal responsibility and the peaceful settlement of international disputes, as well as rules created within the framework of interstate cooperation in the fight against with crime, especially organized economic crime. A narrow approach to understanding international legal support for the economic security of states is based on the presentation of general principles of international law and special principles of international economic law, as well as regulatory and organizational legal institutions of international economic law as a unified system. Within this system, two groups of guarantees can be distinguished: regulatory and organizational. In addition to the general and special principles of international/international economic law, the concept of normative guarantees includes rules related to the fight against economic coercion, the misuse of economic sanctions, as well as other rules that have been formed in international law, primarily within the framework of the multilateral system regulation of international trade. A set of organizational and legal guarantees is associated with the active use and development of the current UN system and international economic organizations, as well as with the activities of economic integration associations.
8. To ensure the economic security of states, an important role is played, first of all, by such general principles of international law as the principle of non-use of force or threat of force, the principle of non-interference in the internal affairs of states, the principle of cooperation and the principle sovereign equality states
The process of globalization and the internationalization of many matters within the domestic competence of states are used as a basis for the conclusion that the importance of the principle of sovereignty is steadily declining and is likely to disappear in the near future. As studies by Russian and foreign scientists have shown, at the present stage the importance of state sovereignty is only increasing, although states are obliged to exercise sovereign rights, including when exercising control over the economy, taking into account their international obligations.
The principle of non-interference in the internal affairs of states plays an important role in the system of regulatory provision of economic security. External illegal interference in the national economy is possible in two forms: direct and indirect. In cases of direct intervention carried out in the public sphere, the application of the principle of non-interference is fully justified. It can become one of the elements of protection against unlawful interference in the internal affairs of the state. However, in the event that pressure on the government or other negative interference in economic life states is the result of the activities of private foreign companies, their representative offices and dependent enterprises, counteraction is possible only with the help of national law. One of the trends in the development of the principle of non-interference is the reduction of the exclusive internal competence of states in many traditionally sovereign areas, which is associated with the development of international legal regulation. In this regard, it should be taken into account that modern international law allows for lawful intervention, which is the result of the participation of states in various international treaties and international organizations.
In our opinion, at the present stage it is necessary to enshrine in international law the principle of prohibition of economic coercion. The first step towards creating this principle and defining its specific content could be a Resolution of the UN General Assembly. In the future, this principle should be developed and consolidated within the framework of bilateral and multilateral relations of states.
Also, in our opinion, it would be advisable to enshrine in international law the principle of equal economic security, which would prohibit ensuring the economic security of one state (or group of countries) by increasing the dangers to the economy of another state.
9. In the sphere of normative guarantees of the economic security of states, two particularly acute problems can be identified: the problem of economic coercion and the issue of the use of economic sanctions by states.
The problem of economic coercion is related to the interpretation of the term “force” established in paragraph 4 of Article 2 of the UN Charter, in connection with its use in relation to the phenomenon of economic coercion. According to modern international law, the concept of "force" refers only to the use military force. Therefore, the problem of using illegal economic influence must be resolved within the framework of limiting “economic coercion.”
The problem of combating economic coercion has always been associated with an acute confrontation between socialist and developing states, on the one hand, and Western countries, on the other. The result of this intense struggle was the absence in international law of clear rules for the use of economic coercion. Basically, the ban on the use of economic coercion is contained in the resolutions of the UN General Assembly, which cannot be considered a sufficient normative basis for the formation of a rule on the prohibition of economic coercion in the IEO.
An additional complexity is presented by the political-economic aspect of the problem of economic coercion. Due to the lack of clear norms, the coercive measures used often do not achieve their goals, are associated with the use of means that only aggravate the situation in the target country, and also often pursue commercial goals, for example, they can be used to aggressively penetrate the market of the target country and displace competitors .
Today, attempts are being made at the UN to resolve the problem of sanctions. There is a need for support and further development of the draft Declaration on Basic Conditions and Standard Criteria for the Imposition and Application of Sanctions and Other Coercive Measures, which sets out the rules governing the practice of applying sanctions. Creation of a regulatory framework within the UN and international bodies those dealing with the issue of applying economic sanctions and monitoring the implementation of coercive measures are the most important issues in the development of the system of international ensuring the economic security of states.
10. There is a need to develop the UN system in the field of regulation of IEO. It may be advisable to create a UN Economic Security Council (ESC), whose functions would be to monitor the state of the world economy, assess the relationship between major policies, strategically coordinate the policies of a number of international organizations and ensure consistency in the implementation of their program goals, as well as promote intergovernmental dialogue on the development of the global economic system. It should be noted that the system of distribution of seats in this body proposed within the framework of the SEB concept does not meet the interests of Russia, since it is assumed that seats in this body should belong to the economic powers of the world that occupy leading positions in terms of GDP, calculated by purchasing power parity.
In connection with the need to increase the effectiveness of ECOSOC in the field of IEO, as well as to find a comprehensive solution to the problem of developing countries and the implementation of the Millennium Goals, the main direction of ECOSOC activity should be interaction with leading international economic organizations on the development and implementation of joint programs with the UN, as well as ensuring information exchange between ECOSOC and the UN Security Council.
If an international system is created on the basis of ECOSO that deals with the problem of regulating international economic relations, it will be possible to talk about the formation of a global system for ensuring the economic security of states. While this process is in its early stages of development, it is necessary to determine Russia’s priorities in this area and take an active part in the development of fundamental documents. Such a strategy can ensure consideration and, possibly, implementation of Russia’s national economic interests in international level.
I. The system of regulatory and organizational mechanisms for ensuring economic security, created and operating within the WTO, is one of the most developed in modern international law. When forming the WTO system, the participants provided for the possibility of the lawful use of economic reprisals in order to counteract unfair business practices on the part of economic entities of other WTO member countries (combat threats of a subjective nature), as well as in order to minimize the negative consequences that arose in any sectors of the national economy in connection with trade liberalization (combat objective threats). A number of regulatory guarantees for the economic security of participating states have been supplemented by the creation of a dispute resolution mechanism that allows for the peaceful resolution of emerging disputes. By joining the WTO, Russia gets the opportunity to use these mechanisms to ensure national economic security. At the same time, it is necessary to take into account the opposite effect that may occur when using these mechanisms in relation to Russia. The basis for making a decision on joining the WTO should be a comprehensive economic and legal analysis of the consequences of joining the WTO. When considering the WTO system, special attention should be paid to the analysis of the following institutions that can be used by states to ensure national economic security: procedures for combating dumping and government subsidies; mechanism for using protective measures; rules allowing for the introduction of quantitative restrictions on external trade turnover, as well as rules providing for the possibility of derogation from obligations under any multilateral agreement concluded within the WTO. It is necessary to analyze the practice of applying such norms and the activities of the relevant WTO bodies in order to identify the conditions and features of the functioning of existing mechanisms.
12. The creation of regional economic organizations increases the ability of states to ensure collective economic security while countering external threats, and also helps to increase the competitiveness of both individual countries and the entire group as a whole. In our opinion, today the creation of economic integration associations is the main way to ensure collective economic security. For the Russian Federation, the problem of regionalism is connected, first of all, with the creation of the EurAsEC. Today, integration processes within the EurAsEC are not yet as clearly expressed as, for example, in Western and Eastern Europe, however, in our opinion, the best interests of the EurAsEC member countries would be met by the creation of a regional economic grouping with a high degree of integration, in within which Community law will have a supranational character. Such a basis for interaction will ensure the effective implementation of both individual and group economic interests of the participating countries, whose economies are characterized by a high degree of interdependence. When creating regional economic associations in Russia, special attention should be paid to the problem of participation of member countries of economic integration associations in the WTO, since the creation of economic associations between WTO participants requires compliance with a certain procedure, within the framework of which the WTO can make binding decisions. One should also take into account the obligation of WTO members not to worsen the existing conditions provided to other members of the organization when creating a regional integration grouping, which requires a coordinated policy of accession to the WTO.
List of references for dissertation research Candidate of Legal Sciences Ignatov, Yuri Vladimirovich, 2005
1. Antonov I.V. Economic globalization. Problems and contradictions at the present stage of development. M.: MAKS Press, 2003. - 23 p.
2. Arechaga X. de. Modern international law. M.: Progress, 1983.-480 p.
3. Baratashvili D.I. The principle of sovereign equality of states in international law. M.: Nauka, 1978. - 118 p.
4. Beck, Ulrich. What is globalization? M.: Progress-Tradition, 2001. - 304 p.
5. Blishchenko I.P., Doria J. Economic sovereignty of the state. -M.: Publishing house RUDN, 2001. 148 p.
6. Bogdanov I.Ya. Economic security: essence and structure. -M.: ISPI RAS, 2000. 35 p.
7. Boguslavsky M.M. International economic law. - M.: International Relations, 1986. - 304 p.
8. Boguslavsky M.M., International economic law. - M.: International relations, 1986. 303 p.
9. Vashchekin N.P., Muntyan M.A., Ursul A.D. Globalization and sustainable development. M: Moskovsky State University Commerce, 2002. - 586 p.
10. Velyaminov G.M. Fundamentals of international economic law. -M.: TEIS LLP, 1994. 108 p.
11. Velyaminov G.M. International economic law and process (Academic course). - M.: Wolters Kluwer, 2004. 496 p.
12. Foreign policy of the USSR. T.Z. - M., 1945. - 801 p.
13. Globalization: contours of the 21st century: abstract collection / RAS INION. Center for Scientific Information Research of Global and Regional Problems. Eastern Europe Department. M.: INION RAS, 2004.-4.2.-252p.
14. Gusakov N.P., Zotova N.A. National interests and foreign economic security of Russia. M.: Company "Eurasian Region", 1998. - 272 p.
15. Non-Aligned Movement in documents and materials / Rep. ed. Yu. E. Vinokurov. -M.: Nauka, 1979. 432 p.
16. Doria J. Economic sovereignty of Angola. International legal problems. M.: International relations, 1997. - 204 p.
17. Zavyalova E.B. Economic security of the Russian Federation: Textbook. M.: MGIMO (U) Ministry of Foreign Affairs of Russia, 2004. - 201 p.
18. Zagashvili B.C. Economic security of Russia. M.: “Jurist”, 1997.-240 p.
19. Carro D., Juillard P. International economic law. M.: International relations, 2002. - 608 p.
20. Kovalev A.A. International economic law and legal regulation of international economic activity at the present stage. Tutorial. M.: YES MFA of the Russian Federation, 1998. - 129 p.
21. Kovalev A.A. Self-determination and economic independence of peoples. - M.: “International Relations”, 1988. 156 p.
22. Labin D.K. International legal support for the world economic order. M.: ZAO "Synergy", 2004. - 188 p.
23. Levin D.B. International law and the preservation of peace. M.: International relations, 1971. -232 p.
24. Lukashin V.I. Economic security: Educational and legal manual. M.: MESI, 1999. - 134 p.
25. Lukashuk I.I. International law in the courts of states. St. Petersburg: Russia-Neva, 1993. - 297 p.
26. Lukashuk I.I. Globalization, state, law, 21st century. M.: SPARK, 2000. - 279 p.
27. Lyachin V.I., Firyulina N.V., Smirnov A.I., Katsik D.E. Foreign economic security of Russia in the context of modern world development. Krasnoyarsk: RIO state. image, institution GATSMIZ, 2003. -128p.
28. International law. Collection of documents. M.: Legal literature, 2000. - 816 p.
29. International law. Textbook. / Ed. IN AND. Kuznetsova. M.: Yurist, 2001.-681 p.
30. International law: textbook. / Kalmakaryan R.A., Migachev Yu.I. -M.: EKSMO, 2005.-735 p.
31. International law: special part. / Lukashuk I.I. M.: Wolters Kluwer, 2005. - 517 p.
32. International law: textbook. / Ushakov N.A. - M.: Yurist, 2005. -302 p.
33. International public law. Textbook. / Ed. K.A. Bekyasheva. M.: Publishing house. "Prospect" group, 1998. - 608 p.
34. International public law: textbook. / Rep. ed. K.A. Bekyashev. -M.: TK Velby, 2004. 928 p.
35. International economic security. Joint Soviet-English research. Moscow, London: IMEMO AS USSR and
36. Royal Institute of International Affairs of Great Britain, 1988.- 102 p.
37. Menzhinsky V.I. Non-use of force in international relations. - M.: IGP AN SSSR, 1976. 295 p.
38. Moiseev A.A. International financial organizations (legal aspects of activities). M.: Omega-JI, 2003. - 296 p.
39. Ognev A.P. International economic security: problems and solutions. M.: Society "Knowledge", 1989. - 40 p.
40. United Nations. Basic facts. M.: Publishing house “Ves Mir”, 2000. - 424 p.
41. Pirogov A.V. Interstate economic relations: the principle of sovereign equality. - Kyiv: Naukova Dumka, 1987. 88 p.
42. After the Cold War: (Joint research) / Nakasone Y., Sato S., Nishibe S. M.: Ed. group "Progress"; Publishing house "Univers", 1993 - 319 p.
43. Pushkarev I.S. International legal issues of the activities of the Asia-Pacific Economic Cooperation Forum. -M.: Publishing house RUDN, 2000. 239 p.
44. Sabelnikov JI.B. State-monopoly means of trade war. M.: Publishing house "International Relations", 1973. -215 p.
45. Sabelnikov JI.B. War without a truce (Forms and methods of economic aggression). M.: Mysl, 1983. - 255 p.
46. Senchagov V.K. Economic security: geopolitics, globalization, self-preservation and development. M.: Finstatinform, 2002.- 123 p.
47. Skakunov E.I. International legal guarantees of state security. M.: International relations, 1983. - 192 p.
48. Ushakov N.A. Sovereignty in modern international law. - M.: Institute of International Relations, 1963. 271 p.
49. Chernichenko S.V. Norms and principles of international law: Textbook. M.: “Scientific book”. - 1998. - 28 p.
50. Shavaev A.G. System for combating economic intelligence. - M.: Publishing House “Legal Education”, 2000. 236 p.
51. Sharmazanashvili G.V. Self-defense in international law. M.: University of Peoples' Friendship named after. Patrice Lumumba, 1973. - 111 p.
52. Sharmazanashvili G.V. The principle of non-aggression in international law. M.: IGP AN USSR, 1956. - 96 p.
53. Tunkin G.I. Law and force in the international system. M.: International relations, 1983. - 199 p.
54. Shumilov V.M. International economic law. - Rostov n/a: Phoenix Publishing House, 2003 512 p.
55. Shumilov V.M. International economic law in the context of globalization of the world economy (problems of theory and practice). Abstract of the dissertation for the degree of Doctor of Law. M.: Diplomatic Academy of the Ministry of Foreign Affairs of the Russian Federation, 2001. - 40 p.
56. Shumilov V.M. International economic law in the era of globalization. M.: International relations, 2003. - 271 p.
57. Economic security. Encyclopedia. Author of the idea, project manager Shavaev A.G. - M.: Publishing House “Legal Education”, 2001.-511 p.
58. Articles in magazines and collections:
59. Abalkin L. Economic security of Russia: threats and their reflection // Questions of Economics. 1994. - No. 12. - P. 4-13.
60. Abashidze A.Kh., Pushkarev I.S., Fedorov M.V. Forum of Asia-Pacific Economic Cooperation (APEC) and Russia // State and Law. 2001. - No. 9. - With. 63-68
61. Arkhipov A., Gorodetsky A., Mikhailov B. Economic security: assessments, problems, methods of ensuring // Questions of Economics. -1994.-№12.-S. 36-44.
62. Ashavsky B.M. Establishment of a new international economic order // Comprehensive international security. International legal principles and norms. Directory / Answer. ed. B.M. Klimenko. -M.: International Relations, 1990. - P. 204-215.
63. Ashavsky B.M. Economic security of states // Comprehensive international security. International legal principles and norms. Directory / Answer. ed. B.M. Klimenko. -M.: International relations, 1990. P. 215-230.
64. Ashavsky B.M., Valko N. TNCs private monopolistic international monopolies // Soviet state and law. - 1981.-No. 3. - P. 77-86.
65. Boguslavsky M.M. Legal aspects of international economic security // XXX annual meeting of the Soviet Association of International Law. Abstracts of reports. M.: IGPAN AN USSR, 1987.-P. 21-27.
66. Boguslavsky M.M., Lyalikova L.A., Svetlanov A.G. US export legislation and private international law // Soviet State and Law. 1983. - No. 3. - pp. 114-119.
67. Vasilenko V.A. New political thinking and the creation of a comprehensive system of international security // Bulletin of the Kyiv University. Series: international relations and international law. - 1989. - Issue. 28. - pp. 3-10.
68. Vereshchetin V.S., Muellerson R.A. The primacy of international law in international politics // Soviet State and Law. 1989. -№7.-S. 3-11.
69. Voitovich S.A., Rulko E.T. Regulatory support for the international economic security system. // Comprehensive system of international security and international law. M.: IGPAN USSR, 1987-p. 117-120.
70. Grigoryan S. Organizational and legal foundations and features of the World trade organization(WTO) // Economy and law. - 2000. -№2.-96-104.
71. Ivanets G.I., Chervonyuk V.I. Globalization, state, law // State and law. 2003. - No. 8. -WITH. 87-94.
72. Kazakov V.N. On some features of the modern international legal order // State and Law. 2003. - No. 4. - pp. 88-92.
73. Klepatsky JI.H. Globalization and national interests // International life. 2000. - No. 1. - pp. 87-96.
74. Klimenko E.M. Preface // International law and international security: military and political areas: Dialogue of Soviet and American experts. M.: International relations, 1991. - pp. 13-16.
75. Kovalev A.A. International economic security: legal aspects // Soviet state and law. 1987. - No. 4. - P. 68-77;
76. Kozhevnikov O.V., Smirnov P.S. East-West trade and economic cooperation and US discriminatory measures // Soviet State and Law. 1983. -№3. - pp. 108-113.
77. Kolosov Yu.M. Development of the principle of non-use of force in international relations // Soviet State and Law. 1987. - No. 4. - pp. 72-79;
78. Koryagina T. Economic security: current state, prospects // Observer. 1997. - No. 7. - P. 34-41.
79. Kosolapov N. A. New Russia and the strategy of the West // World Economy and International Relations. 1994. - No. 2. - P. 5-15.
80. Kosolapov N. Power, violence, security: modern dialectics of relationships // World Economy and International Relations. - 1992.-№11.-S. 51-56.
81. Lukashuk I.I. The concept of the law of international responsibility // State and law. 2003. - No. 4. - P. 79-87.
82. Lykshin S., Svinarenko A. Development of the Russian economy and its restructuring as a guarantee of economic security // Questions of Economics. 1994. - No. 12. - pp. 115-125.
83. Malinin S.A. International Security Law // Course of International Law. T. 4. - M.: Nauka, 1990 - P. 156-210.
84. Marinich S.V. Economic coercive measures in the foreign policy activities of states and international law // Soviet State and Law. 1989. -№7. - pp. 103-108;
85. Mikhailenko A. Mechanism for ensuring economic security of Russia // World Economy and International Relations. - 1996. - No. 7.-P.119-127.
86. Mukhamedshin I. Russia and the WTO: possible consequences of accession // Law. 2003. - No. 4. - P. 102-105.
87. Muellerson R.A. The role and possibilities of international law in creating a comprehensive system of international security. P Comprehensive system of international security and international law. M.: IGPAN USSR, 1987 - pp. 8-14.
88. Basic provisions of the state strategy in the field of ensuring economic security of the Russian Federation // Society and Economics. 1996. - No. 3.
89. Pankov V. Economic security: new aspects of the problem // Foreign trade. 1992. - No. 6. - pp. 25-28.
90. Prikazchikov A.A. The mechanism for resolving disputes in the World Trade Organization and its impact on the internal law of states // State and Law. 2001. - No. 5. - P.83-88.
91. Pirogov A.V. International legal guarantees of the system of international economic security of states // Soviet state and law. 1989. -№2. - pp. 99-106.
92. Rakhmanov A.R. International legal aspects of comprehensive security // State and law. 2003. - No. 2. - pp. 67-74;
93. Russia and the World Trade Organization (WTO) system. Legal aspects (Materials of the scientific and practical conference held at the Institute of State and Law of the Russian Academy of Sciences on February 9, 2000) // State and Law.-2000.-No.7.-S. 112-121.
94. Senchagov V. On the essence and main strategy of economic security of Russia // Questions of Economics. 1995. - No. 1. - pp. 97-106.
95. Skakunov E.I. Features of the codification of the basic principles of international law // Soviet State and Law. 1982. - No. 6. -WITH. 121-129;
96. Strakhov A.I. Economic security // ECO. 1998. - No. 7. - pp. 64-68.
97. Tuzmukhamedov R.A. International economic security: experience in international legal formulation of the problem. // Comprehensive system of international security and international law. - M.: IGP AN USSR, 1987.-p. 53-61.
98. Tunkin G.I., Shishkin V.M. On international legal principles of the new international economic order // Soviet State and Law. 1980. - No. 9. - pp. 88-96.
99. Usenko E.T., Vasilenko V.A. The principle of non-discrimination in the field of international economic relations. Soviet Yearbook of International Law, 1983. - pp. 25-41.
100. Ushakov N.A. Non-interference in internal affairs // In the name of peace. International legal problems of European security. - M.: USSR Academy of Sciences, Institute of State and Law, 1977. 191 p.
101. Shimai M. The developing international political system // International life. 1995. - No. 3. - P. 27-39.
102. Shishkov Yu. Two faces of globalization // Science and life. 2000. - No. 11.-S. 40-43.
103. Shishkov Yu. Two faces of globalization // Science and life. 2000. - No. 12. -S. 48-52.
104. Shumilov V.M. International legal regulation of international economic relations (Issues of theory and practice) // State and law. 2000. - No. 7. - P. 79-92.
105. Shumilov V.M. Some questions of theory and practice // Moscow Journal of International Law. -2000. -No. 3(39). pp. 137-161.
106. Shumilov V.M. WTO law and anti-dumping process under Russian legislation // Law. 2003. - No. 4. - P. 94-101.
107. Economic security of Russia // Social and political journal. 1997. - No. 5. - P. 3-23.
108. Yanovskaya O.R. Global problems modernity taking into account new geopolitical realities // ENDISY. Analytical bulletin. Scientific reports of the Institute for Strategic Studies. - 2000. -№2.-S. 115-123.
109. Work on foreign languages:
110. Ahn, Dunkgeun. Linkages between International Financial and Trade Institutions // Journal of World Trade. 2000. - Vol. 34. - No. 4. - pp. 1-35.
111. Bedjaoui M. Towards a new international economic order. UNESCO, Holmes & Meier Publishers, New York, 1979. - 287 p.
112. Carmody Chi. Remedies and Conformity under the WTO Agreement // Journal of International Economic Law. 2002. - Vol. 5. - No. 2. - pp. 307329.
113. Fawcett J. Law and international resource conflicts. - Oxford: Clarendon Press, 1981-254 p.
114. Fawcett J. International economic conflicts. London: Europa Publications, 1977.- 127 p.
115. Fawcett J. Trade and finance in international law // RCADI, 1968 (I), Vol.123, p. 215-310.
116. Globalization: A framework for IMF involvement. IMF, 2002.
117. Hoberg George, Howe Paul. Law, Knowledge and National Interests in Trade Disputes // Journal of World Trade. 2000. - Vol. 34. - No. 2. - 109130.
118. Hufbauer, Gary Clyde. Jeffrey J. Schott, Kimberly Ann Elliott. Economic Sanctions Reconsidered: History and Current Policy. Washington: Institute for International Economics, 1990. - pp. 163-174.
119. Hufbauer, Gary Clyde. International economic Law in Times that are Stressful // Journal of International Economic Law. 2002. - 5 (1). - pp. 316.
120. Jackson, John H. The World Trade Organization: Constitution and Jurisprudence. London: Royal Institute of International Affairs, 1998. -193 p.
121. Knorr K. The Power of Nations: the Political Economy of International Relations. -N.Y., 1975. 353 p.
122. Machovski H. Ost-West Handel: Entwicklung, Interessenlagen, Aussichten. Auspolitik und Zeitgeschichte. Bonn, 1985. - No. 5. - s. 5-18;
123. Maull H. Raw materials, energy and Western security. London, 1984. -413 p.;
124. McGee, Robert. Trade Embargoes, Sanctions and Blockades: Some Overlooked Human Rights Issues // Journal of World Trade. 1998. -32(4). - pp. 139-144.
125. Murdoch C. Economic factors as objects of security: Economics security & vulnerability // K. Knorr, F. Trager. - Economics issues & national security. -Lawrence, 1977. p. 67-98.
126. Raustiala Kal. Rethinking Sovereignty Debate in international Economic Law // Journal of International Economic Law. 2003. - Vol. 6. - No. 4. - pp. 841-878.
127. Reismann, Simon. The Birth of a World Trade System: ITO and GATT // The Bretton Woods-GATT System: Retrospect and Prospect After Fifty Years. Orin Kirshner, ed.-NY: M.E. Sharpe, 1996. pp. 82-86.
128. Rosenau J.N. Turbulence in World Politics, a Theory of Change and Community. Princeton, N.Y.: Princeton University Press. - 1990. - 450 p.
129. Ruosi Zhang. Food security: Food Trade Regime and Food Aid Regime // Journal of International Economic Law. 2004. - Vol. 7- No. 3. - 565-584.
130. Tita, Alberto. Globalization: A New Political and Economic Space Requiring Supranational Governance // Journal of World Trade. 1998. -32 (3). - pp. 45-55.
131. Tinbergen J., Fischer D. Warfare and Welfare: Integrating Security Policy into Socio-Economic Policy. Sussex, New York. - 1987. - 189 p.
132. Understanding the WTO. 3rd edition. Geneva: WTO, 2003. - 112 p.
133. Vernon, Raymond. The U.S. Government at Bretton Woods and After // The Bretton Woods-GATT System: Retrospect and Prospect After Fifty Years. Orin Kirshner, ed.-NY: M.E. Sharpe, 1996. pp. 52-69.1. Documents:1. WTO documents
134. General Agreement on Tariffs and Trade (GATT) 1994.
135. Agreement on the balance of payments provisions of the 1994 General Agreement on Tariffs and Trade.
136. Agreement on Rules and Procedures for the Resolution of Disputes 1994142. Doc. WTO: WT/GC/M/5.143. Doc. WTO: WT/GC/W/68.
137. Agreement establishing the WTO 1994
138. Agreement on Safeguard Measures 1994
139. Agreement on the Application of Article VI of the GATT 1994.
140. Agreement on Subsidies and Countervailing Measures 19941. UN documents
141. Doc. UN A/AC. 134/SR. 27.149. Doc. UN A/AC. 134/2.
142. Documents of the United Nations Conference on Trade and Development. Geneva, March 23-June 16, 1964 - New York, 1964.
143. UNGA Resolution 626 (VII).
144. UNGA Resolution 1514 (XV).
145. UN General Assembly Resolution 1803 (XVII).
146. UNGA Resolution 2131 (XX).
147. UNGA Resolution 2625 (XXVI).
148. UNGA Resolution 2734 (XXV).
149. UNGA Resolution 3201 (SVI).
150. UNGA Resolution 3281 (XXIX).
151. UN General Assembly Resolution 36/103 (XXXVI).176. UNGA Resolution 42/42.177. UNGA Resolution 57/7.178. UNGA Resolution S-18/3.
152. Documents of the United Nations Conference on International Organization. London; New-York, 1945. - Vol. Ill, vi.
154. International Court of Justice Reports, 1986
155. Responsibility to protect: Report of the International Commission on Intervention and State Sovereignty. Ottawa: International Development Research Centre, 2001.
156. World Economic & Social Survey 2003. New York, 2003.1. Russian regulations:
157. Decree of the President of the Russian Federation dated April 29, 1996 No. 608 “On the State Strategy for Economic Security of the Russian Federation (Basic Provisions)” // Collections of Legislation of the Russian Federation. 1996 - No. 18. - Art. 2117.
158. Concept foreign policy Russian Federation // Rossiyskaya gazeta. July 11, 2000 - No. 133.1. Internet pages:
159. Official page WTO http://www.wto.org/
160. Official UN page http://www.un.org/
161. Official page of the International Court of Justice http://www.icj-cij.org/
162. Official page of the International Conference on Financing for Development - http://www.un.org/russian/conferen/ffd/index.html
163. Official page of the UN Conference on Trade and Development - http://www.unctad.org/
164. Official page of the Group World Bank-http://www. worldbank. org/
Please note that the scientific texts presented above are posted for informational purposes only and were obtained through original dissertation text recognition (OCR). Therefore, they may contain errors associated with imperfect recognition algorithms. There are no such errors in the PDF files of dissertations and abstracts that we deliver.
The foregoing determines the fact that the MEP occupies a special position in the general system of international law. Experts write that the MEP is of paramount importance for the formation of institutions that govern the international community and for international law in general. Some even believe that “ninety percent of international law in one form or another is essentially international economic law” (Professor J. Jackson, USA). This assessment may be exaggerated. Nevertheless, almost all branches of international law are indeed related to the IEP. We saw this when considering human rights. Economic problems occupy an increasing place in the activities of international organizations, diplomatic missions, contract law, maritime and air law, etc.
The role of MEP has attracted the attention of a growing number of scientists. The computer at the UN Library in Geneva produced a list of relevant literature published in the last five years in different countries, which formed a substantial brochure. All this encourages us to pay additional attention to MEP, despite the limited volume of the textbook. This is also justified by the fact that both scientists and legal practitioners emphasize that ignorance of the MEP is fraught with negative consequences for the activities of lawyers serving not only business, but also other international relations.
The MEP facility is exceptionally complex. It covers diverse types of relations with significant specifics, namely: trade, financial, investment, transport, etc. Accordingly, the MEP is an extremely large and multifaceted industry, covering such sub-sectors as international trade, financial, investment, and transport law.
The vital interests of Russia, including security interests, depend on the solution of these problems. Indicative in this regard is the “State Strategy for Economic Security of the Russian Federation” approved by Decree of the President of the Russian Federation of April 29, 1996 N 608. The strategy is reasonably based on the need for “effective implementation of the advantages of the international division of labor, the sustainability of the country’s development in the conditions of its equal integration into world economic relations.” The task has been set to actively influence processes occurring in the world that affect Russia’s national interests. It is stated that “without ensuring economic security, it is practically impossible to solve any of the problems facing the country, both domestically and internationally.” The importance of law in solving assigned problems is emphasized.
The current state of the world economy creates a serious danger for the world political system. There is, on the one hand, an unprecedented increase in living standards, scientific and technological progress in a number of countries, and on the other hand, poverty, hunger, and illness for the majority of humanity. This state of the world economy poses a threat to political stability.
The globalization of the economy has led to the fact that its management is only possible through the joint efforts of states. Attempts to solve problems taking into account the interests of only some states give negative results.
Joint efforts of states must be based on law. The MEP performs important functions of maintaining a generally acceptable mode of functioning of the world economy, protecting long-term common interests, and countering attempts by individual states to achieve temporary advantages at the expense of others; serves as a tool for mitigating contradictions between political goals individual states and the interests of the world economy.
The MEP promotes predictability in the activities of numerous participants in international economic relations and thereby contributes to the development of these relations and the progress of the world economy. Concepts such as the new economic order and the law of sustainable development have acquired significant significance for the development of the MEP.
New economic order
The global economic system is characterized by the decisive influence of the most developed industrial countries. It is determined by the concentration in their hands of the main economic, financial, scientific and technical resources.
Equalizing the status of foreigners with local citizens in economic activities is impossible, as this would jeopardize the national economy. Suffice it to recall the consequences of the “equal opportunity” and “equal opportunity” regimes common in the past. open doors", which were imposed on dependent states.
There is also a special regime, according to which foreigners are granted rights specifically provided for by law or in international treaties, and, finally, preferential treatment, according to which particularly favorable conditions are provided to states of the same economic association or neighboring countries. As already stated, the provision of this treatment to developing countries has become a principle of international economic law.
State in international economic law
The state occupies a central place in the system of regulation of international economic relations. In the economic field it also has sovereign rights. However, their effective implementation is possible only if the economic interdependence of members of the international community is taken into account. Attempts to achieve economic independence in isolation from the community (autarky) are known to history, but have never been successful. World experience shows that the maximum possible economic independence is real only with the active use of economic ties in the interests of the national economy, not to mention the fact that without this there can be no talk of the state’s influence on the world economy. The active use of economic ties presupposes the corresponding use of international law.
The MEP as a whole reflects the laws of a market economy. However, this does not mean a limitation of the sovereign rights of the state in the economic sphere. It has the right to nationalize this or that private property, and may oblige citizens to repatriate their foreign investments when national interests require it. This is what Great Britain did, for example, during the world wars. The United States did this in peacetime, in 1968, in order to prevent a further depreciation of the dollar. All investments abroad are considered part of the national heritage.
The question of the role of the state in a market economy has become particularly acute in our time. Development of economic ties, globalization of the economy, reduction of border barriers, i.e. Liberalization of the regime gave rise to a discussion about the decline in the role of states and legal regulation. Talk began about a global civil society, subject only to the laws of economic expediency. However, both authoritative scientists and those who practically participate in international economic and financial connections, indicate the need for a certain order and targeted regulation.
Economists often compare the Asian "tigers" with countries in Africa and Latin America, meaning in the first case the successes of a free market economy focused on active external relations, and in the second - the stagnation of a regulated economy.
However, upon closer examination, it turns out that in the countries of Southeast Asia the role of the state in the economy has never been downgraded. Success was due precisely to the fact that the market and the state did not oppose each other, but interacted for common goals. The state contributed to the development of the national economy by creating favorable conditions for business activity within and outside the country.
We are talking about a state-directed market economy. In Japan they even talk about a “plan-oriented market economic system.” It follows from what has been said that it would be wrong to throw overboard the experience of planned economic management in socialist countries, including negative experience. It can be used to determine the optimal role of the state in the national economy and external relations.
The question of the role of the state in a market economy is of fundamental importance for determining its role and functions in international economic relations, and, consequently, for clarifying the capabilities of the MEP.
International law reflects a trend towards expanding the role of the state in regulating the global economy, including the activities of private individuals. Thus, the Vienna Convention on Diplomatic Relations of 1961 established such a function of diplomatic representation as the development of relations in the field of economics. The institution of diplomatic protection exercised by the state in relation to its citizens is essential for the development of economic relations.
The state can directly act as a subject of private law relations. The form of joint ventures of states in the field of production, transport, trade, etc. has become widespread. The founders are not only states, but also their administrative-territorial divisions. An example is a joint company established by the border regions of two states for the construction and operation of a bridge across a border reservoir. Joint ventures are commercial in nature and subject to the laws of the host country. Nevertheless, the participation of states gives their status some specificity.
The situation is different when the illegal activities of the corporation are related to the territory of the state of registration and fall under its jurisdiction, for example, in the case of tolerance by the authorities of the state to the export of goods the sale of which is prohibited in it because they are dangerous to health. In this case, the state of registration is responsible for not preventing the illegal activities of the corporation.
As for private companies, they, being independent legal entities, do not bear responsibility for the actions of their state. True, in practice there are cases of imposing liability on companies as a response to a political act of their state. On this basis, for example, Libya nationalized American and British oil companies. This practice has no legal basis.
State-owned companies and companies acting on its behalf enjoy immunity. The state itself bears responsibility for their activities. In international practice, the question of the civil liability of the state for the debt obligations of a company owned by it and the liability of the latter for the debt obligations of its state has repeatedly arisen. The solution to this issue depends on whether the company has the status of an independent legal entity. If she has, then she is responsible only for her own actions.
Transnational corporations
IN scientific literature and in practice this kind of company is called differently. The term "transnational corporations" is dominant. However, the term "multinational companies" and sometimes "multinational enterprises" are increasingly used. In the domestic literature, the term “transnational corporations” (TNCs) is usually used.
If the above concept is aimed at removing TNC contracts from the scope of domestic law by subordinating them to international law, then another concept is designed to solve the same problem by subordinating contracts to a special third law - transnational, consisting of “general principles” of law. Such concepts are contrary to both domestic and international law.
TNCs widely use means to corrupt officials of the host country. They have a special "bribe" fund. Therefore, states must have laws providing for criminal liability of state officials and TNCs for illegal activities.
In 1977, the United States passed the Foreign Corrupt Practices Act, which makes it a crime for US citizens to bribe any foreign person to obtain a contract. Companies from countries such as Germany and Japan took advantage of this, and with the help of bribes to officials in host countries, they won many lucrative contracts from American companies.
The Latin American countries that suffered from such practices concluded in 1996 an Agreement on Cooperation in the Elimination of Dirty Government Business. The contract makes it a crime to give and accept a bribe when concluding a contract. Moreover, the agreement established that an official should be considered a criminal if he became the owner of funds, the acquisition of which “cannot be reasonably explained on the basis of his lawful income during the performance of his (administrative) functions.” It seems that a law with similar content would be useful for our country. While supporting the treaty as a whole, the United States refused to participate, citing that the latter provision contradicts the principle that a suspect does not have to prove his innocence.
The problem of TNCs also exists for our country.
First, Russia is becoming an important field of activity for TNCs.
Secondly, the legal aspects of TNCs are relevant to joint ventures that are associated both with the states in which their activities take place and with the markets of third countries.
The Treaty on the Establishment of the Economic Union (within the CIS) contains the obligations of the parties to promote “the creation of joint ventures, transnational production associations...” (Article 12). In furtherance of this provision, a number of agreements have been concluded.
The experience of China is of interest, in which the process of transnationalization of Chinese enterprises received significant development in the late 1980s. Among developing countries, China ranked second in terms of capital investment abroad. At the end of 1994, the number of branches in other countries reached 5.5 thousand. The total volume of property of Chinese TNCs abroad reached 190 billion dollars, the lion's share of which belongs to the Bank of the People's Republic of China.
The transnationalization of Chinese firms is explained by a number of factors. In this way, a supply of raw materials is ensured, which is not available or is scarce in the country; the country receives foreign currency and improves export opportunities; advanced technology and equipment arrives; Economic and political ties with relevant countries are strengthened.
At the same time, TNCs pose complex challenges in the field of public administration. First of all, the problem of controlling the activities of TNCs arises, most of whose capital belongs to the state. According to experts, in the name of success, greater freedom is needed for the management of corporations, the provision of support, including the publication of laws favorable for investment abroad, as well as increasing the professional level of personnel of both TNCs and the state apparatus.
In conclusion, it should be noted that, using their influence on states, TNCs strive to increase their status in international relations and gradually achieve a lot. Thus, the report of the Secretary-General of UNCTAD at the IX Conference (1996) speaks of the need to provide corporations with the opportunity to participate in the work of this organization.
In general, the task of regulating the activities of private capital, especially large capital, which is becoming increasingly important in the context of globalization, still needs to be solved. The UN has developed a special program for this purpose. The UN Millennium Declaration calls for greater opportunities for the private sector to help achieve the goals and programs of the Organization.
Dispute Resolution
Dispute resolution is of paramount importance for international economic relations. The level of compliance with contract terms, maintenance of order, and respect for the rights of participants depends on this. In this case, we are often talking about the fate of property of enormous value. The significance of the problem is also emphasized in international political acts. The CSCE Final Act of 1975 states that the rapid and fair settlement of international commercial disputes contributes to the expansion and facilitation of trade and economic co-operation and that the most appropriate instrument for this purpose is arbitration. The significance of these provisions was noted in subsequent OSCE acts.
Economic disputes between subjects of international law are resolved in the same manner as other disputes (see Chapter XI). Disputes between individuals and legal entities are subject to national jurisdiction. However, as experience has shown, national courts have not been able to solve the problem properly. Judges are not professionally prepared to resolve complex MEP issues, and often turn out to be nationally limited and unbiased. Often this practice caused international complications. It is enough to recall the practice of American courts that tried to extend their jurisdiction beyond the limits established by international law.
The agreement contained provisions on most favored nation treatment, non-discrimination, and national treatment. But in general, his tasks were not broad. It was a question of limiting customs tariffs, which remained at high pre-war levels and served as a serious obstacle to the development of trade. However, under the pressure of life, the GATT was filled with increasingly significant content, turning into the main economic association of states.
At regular meetings of the GATT, called rounds, numerous acts were adopted on trade and tariff issues. As a result, they began to talk about GATT law. The final stage was the negotiations between the participants during the so-called Uruguay Round, in which 118 states participated. It lasted seven years and ended in 1994 with the signing Final Act, representing a kind of code of international trade. Only the main text of the Act is set out on 500 pages. The Act contains an extensive set of agreements covering many areas and forming the “Uruguay Round legal system”.
The main ones are agreements on the establishment of the World Trade Organization (WTO), on customs tariffs, trade in goods, trade in services, and on trade-related intellectual property rights. Each of them is associated with a set of detailed agreements. Thus, the agreement on trade in goods is “associated” with agreements on customs assessment, technical barriers to trade, the application of sanitary and phytosanitary measures, the procedure for issuing import licenses, subsidies, anti-dumping measures, investment issues related to trade, trade in textiles and clothing, agricultural products, etc.
The set of documents also includes a memorandum on the procedure for settling disputes, a procedure for monitoring the trade policies of participants, a decision on deepening the coordination of global economic policy processes, a decision on assistance measures in the event of negative influence reforms for developing countries dependent on food imports, etc.
All this gives an idea of the breadth of the WTO's scope of activities. Its main goal is to promote economic cooperation between states in the interests of improving living standards by ensuring full employment, increased production and trade exchange of goods and services, optimal use of sources of raw materials in order to ensure long-term development, protection and preservation of the environment. From this it is clear that the goals specified in the WTO Charter are global and undoubtedly positive.
In order to achieve these goals, the tasks are set to achieve greater coherence of trade policies, promote economic and political rapprochement of states through broad control over trade policies, providing assistance to developing countries and protecting the environment. One of the main functions of the WTO is to serve as a forum for the preparation of new agreements in the field of trade and international economic relations. It follows that the scope of the WTO goes beyond trade and concerns economic relations in general.
The WTO has a developed organizational structure. The highest body is the Ministerial Conference, consisting of representatives of all member states. She works sessionally, once every two years. The Conference creates subsidiary bodies; makes decisions on all issues necessary for the implementation of the functions of the WTO; Provides the official interpretation of the WTO Charter and related agreements.
Decisions of the Ministerial Conference are taken by consensus, i.e. are considered accepted if no one officially declares disagreement with them. Objections during the debate are virtually irrelevant, and speaking officially against the will of a significant majority is not an easy matter. Moreover, Art. IX of the WTO Charter provides that if consensus is not reached, the resolution may be adopted by a majority. As we see, the powers of the Ministerial Conference are significant.
The executive body that carries out day-to-day functions is the General Council, which includes representatives of all member states. The General Council meets in session during the periods between sessions of the Ministerial Conference and performs its functions during these periods. It is, perhaps, the central body in carrying out the functions of this organization. It is in charge of such important bodies as the Dispute Resolution Authority, the Trade Policy Authority, various councils and committees. Each of the agreements provides for the establishment of a corresponding board or committee for the purpose of its implementation. The rules for decision-making by the General Council are the same as those of the Ministerial Conference.
The powers of the Dispute Resolution Authority and the Trade Policy Authority are particularly significant. The first actually represents a special meeting of the General Council, which acts as a Dispute Resolution Body. The peculiarity is that in such cases the General Council consists of three members who are present.
The procedure for considering a dispute varies somewhat from agreement to agreement, but is essentially the same. Main stages: consultations, report of the investigation team, appeal consideration, making a decision, its implementation. By agreement of the parties, the dispute may be considered by arbitration. In general, the work procedure of the Authority is mixed, combining elements of the conciliation procedure with arbitration.
The Executive Board manages the day-to-day affairs of the Foundation. It consists of 24 executive directors. Seven of them are appointed by countries with largest contributions to the fund (Great Britain, Germany, China, Saudi Arabia, USA, France, Japan).
When joining the IMF, each state subscribes to a certain share of its capital. This quota determines the number of votes owned by the state, as well as the amount of assistance it can count on. It cannot exceed 450% of the quota. The voting procedure, according to the French lawyer A. Pelle, “allows a small number of industrialized states to play a leading role in the functioning of the system.”
The World Bank is a complex international entity associated with the UN. Its system includes four autonomous institutions subordinate to the President of the World Bank: the International Bank for Reconstruction and Development (IBRD), the International Finance Corporation (IFC), the International Development Association (IDA), and the Multilateral Investment Guarantee Agency (MIGA). The overall goal of these institutions is to promote the economic and social development of less developed members of the UN by providing financial and advisory assistance and assistance in training. Within the framework of this general goal, each institution carries out its functions.
The International Bank for Reconstruction and Development (IBRD) was established in 1945. Its members are the vast majority of states, including Russia and other CIS countries. His goals:
- promoting the reconstruction and development of member states through capital investments for productive purposes;
- encouraging private and foreign investment by providing guarantees or participating in loans and other investments of private investors;
- stimulating balanced growth of international trade, as well as maintaining a balanced balance of payments through international investment in the development of production.
The highest body of the IBRD is the Board of Governors, consisting of representatives of member states. Each of them has a number of votes proportional to the share of contribution to the Bank’s capital. The day-to-day work is carried out by 24 executive directors, five of whom are appointed by the UK, Germany, US, France and Japan. The directors elect a president who manages the day-to-day affairs of the Bank.
The International Development Association was established as a subsidiary of the IBRD, but has the status of a specialized agency of the UN. Basically, it pursues the same goals as the Bank. The latter provides loans on more favorable terms than conventional commercial banks, and mainly to repaying states. IDA provides interest-free loans to the poorest countries. IDA is financed by contributions from members, additional contributions from the richest members, and IBRD profits.
The Board of Governors and the Executive Directorate are formed in the same way as the corresponding bodies of the IBRD. Maintained by IBRD staff (Russia does not participate).
International Finance Corporation - independent specialized institution UN. The goal is to promote the economic progress of developing countries by encouraging private manufacturing enterprises. In recent years, IFC has stepped up its technical assistance activities. An advisory service on foreign investment has been created. Members of the IFC must be members of the IBRD. Most countries participate, including Russia and the CIS countries. The governing bodies of the IBRD are also the bodies of the IFC.
Unification of international financial law
The most important role in this area is played by the Geneva Conventions for the Unification of the Law Relating to Bills of Exchange, 1930, and the Geneva Conventions for the Unification of the Law Relating to Checks, 1931. The conventions have become widespread and yet have not become universal. Countries of Anglo-American law do not participate in them. As a result, all systems of bills and checks - Geneva and Anglo-American - operate in economic relations.
In order to eliminate this situation, the UN Convention on International Bills of Exchange and International Promissory Notes was adopted in 1988 (draft prepared by UNCITRAL). Unfortunately, the Convention has failed to reconcile the differences and has not yet entered into force.
International investment law is a branch of international economic law, the principles and norms of which regulate the relations of states regarding capital investments.
The basic principle of international investment law is formulated in the Charter of Economic Rights and Responsibilities of States as follows: Each State has the right “to regulate and control foreign investment within the limits of its national jurisdiction in accordance with its laws and regulations and in accordance with its national objectives and priorities. None The state should not be forced to provide preferential treatment to foreign investments."
Globalization has led to a significant increase in foreign investment. Accordingly, national and international law-making in this area has intensified. In an effort to attract foreign investment, some 45 developing and former socialist countries have passed new laws or even codes targeting foreign investment over the past few years. More than 500 bilateral agreements have been concluded on this issue. This brings the total number of such treaties to 200, in which over 140 states participate.
A number of multilateral agreements containing investment provisions have been concluded: the North American Free Trade Agreement (NAFTA), the Energy Charter, etc. The World Bank and the International currency board in 1992, they published a collection containing approximate general provisions of relevant laws and treaties (Guidelines on the Treatment of Foreign Direct Investment).
Considering the mentioned laws and treaties, you come to the conclusion that in general they are aimed at liberalizing the legal regime of investments, on the one hand, and increasing the level of their protection, on the other. Some of them provide foreign investors with national treatment and even free access. Many contain guarantees against uncompensated nationalization and against the prohibition of the free export of currency.
Of particular note is the fact that most laws and treaties provide for the possibility of disputes between a foreign investor and the host state being resolved in impartial arbitration. In general, feeling the urgent need for capital investment, the countries concerned strive to create an optimal regime for foreign investors, which sometimes turns out to be even more favorable than the regime for local investors.
The Russian legal system has not ignored the problem of foreign investment. The Civil Code of the Russian Federation provides them with certain guarantees (Article 235). The Law on Foreign Investment contains mainly guarantees provided by the state to foreign investors: legal protection of their activities, compensation in case of nationalization of property, as well as in the event of adverse change legislation, proper dispute resolution, etc.
Russia received from the USSR over 10 agreements related to the protection of foreign investments. Many such agreements have been concluded by Russia itself. Thus, during 2001, it ratified 12 agreements on the encouragement and mutual protection of investments. All agreements provide for the provision of national treatment. Investments are provided with a regime that “provides full and unconditional protection of investments in accordance with the standards accepted in international law” (Article 3 of the Agreement with France). The main attention is paid to guaranteeing foreign investments from non-profits, i.e. political, risks, risks associated with war, coup d'etat, revolution, etc.
Russia's bilateral agreements provide for quite high level protection of investments, and not only from nationalization. Investors have the right to compensation for losses, including lost profits, caused to them as a result of illegal actions of government bodies or officials.
An important guarantee of investment is the provisions of international agreements on subrogation, which refers to the replacement of one entity with another in relation to legal claims. In accordance with these provisions, for example, the state that nationalized foreign property recognizes the transfer of rights by the owner to its state. The Agreement between Russia and Finland states that a party “or its competent authority acquires, by way of subrogation, the corresponding rights of an investor based on this Agreement...” (Article 10). The peculiarity of subrogation in this case is that the rights of a private person are transferred to the state and are protected at the interstate level. There is a transformation of civil law relations into international public law ones.
In general, the treaties provide significant international legal guarantees for foreign investments. Thanks to them, the host state's violation of the investment contract becomes an international tort. Contracts usually provide for immediate and full compensation, as well as the possibility of submitting the dispute to arbitration.
Investment agreements are based on the principle of reciprocity. But in most cases, only investors on one side actually take advantage of the opportunities they provide. The party in need of investment does not have significant potential for investment abroad. However, sometimes the weaker side can take advantage of these opportunities. Thus, the German government wanted to seize the shares of the Krupa steel plant that belonged to the Iranian Shah so that they would not fall into the hands of the Iranian government. However, this was prevented by an investment protection agreement with Iran.
Thus, it can be stated that there is a developed system of regulatory regulation of foreign investment. A significant place in it belongs to the norms of customary international law. They are complemented by treaty rules that improve the efficiency of the system by clarifying general rules and defining specific investment protections.
This system as a whole provides a high level of protection, including:
- ensuring minimum international standards;
- providing most favored nation treatment and non-discrimination based on nationality;
- ensuring protection and safety;
- free transfer of investments and profits;
- inadmissibility of nationalization without immediate and adequate compensation.
In the face of intensifying competition for foreign investment markets, on the basis of the 1985 Seoul Convention, the Multilateral Investment Guarantee Agency (hereinafter referred to as the Guarantee Agency) was established in 1988 at the initiative of the World Bank. The overall purpose of the Safeguards Agency is to encourage foreign investment for productive purposes, especially in developing countries. This goal is achieved by providing guarantees, including insurance and reinsurance of non-commercial risks for foreign investments. Such risks include a ban on the export of currency, nationalization and similar measures, breach of contract and, of course, war, revolution, and internal political unrest. The Agency's guarantees are considered to complement, and not replace, national investment insurance systems.
Organizationally, the Guarantee Agency is linked to the International Bank for Reconstruction and Development, which, as noted, is part of the World Bank system. Nevertheless, the Safeguards Agency has legal and financial independence, and is also part of the UN system, interacting with it on the basis of an agreement. The connection with the IBRD is expressed in the fact that only members of the Bank can be members of the Guarantee Agency. The number of members exceeds 120 states, including Russia and other CIS countries.
The guarantee bodies of the Agency are the Board of Governors, the Directorate (the Chairman of the Directorate is ex officio the President of the IBRD) and the President. Each member state has 177 votes, plus one more vote for each additional contribution. As a result, a few capital-exporting countries have the same number of votes as numerous capital-importing countries. The authorized fund is formed from contributions from members and additional income from them.
The investor's relationship with the Guarantee Agency is formalized by a private law contract. The latter obliges the investor to annually pay an insurance premium, determined as a percentage of the amount of the insurance guarantee. For its part, the Guarantee Agency undertakes to pay a certain insurance amount depending on the amount of losses. In this case, claims against the relevant state are transferred to the Guarantee Agency by way of subrogation. The dispute is being transformed into an international legal one. It is noteworthy that, thanks to the Safeguards Agency, a dispute arises not between two states, but between one of them and international organization, which significantly reduces the possibility of a dispute having a negative impact on the relations between the states interested in it.
Investments in countries with unstable economic and political systems involve significant risks. It is possible to insure the risk with private insurance companies, which require high insurance premiums. As a result, return on investment decreases and products lose competitiveness.
Being interested in the export of national capital, industrialized countries have created instruments that provide insurance at reasonable prices, and the associated losses are compensated by the states themselves. In the United States, these issues are dealt with by a special government agency - the Overseas Private Investment Corporation. Disputes between investors and the Corporation are resolved by arbitration. Some states, for example Germany, provide this kind of opportunity only to those who export capital to countries with which investment protection agreements have been concluded.
Providing guarantees at reduced insurance rates is a hidden form of government subsidization of exports. The desire to mitigate competition in this area is prompting developed countries to seek international means of settlement. The mentioned Guarantee Agency is one of the main means of this kind.
Nationalization. Nationalization of foreign property is one of the main problems of investment law. The sovereign power of the state also extends to foreign private property, i.e. includes the right to nationalization. Until the end of the Second World War, perhaps most jurists denied this right and qualified nationalization as expropriation. This is how the nationalization carried out in Russia after the October Revolution was officially qualified.
Today the right to nationalize foreign property is recognized by international law. However, it is subject to certain conditions. Nationalization should not be arbitrary, it should be carried out not in private but in public interests and be accompanied by immediate and adequate compensation.
Experience shows that compensation costs the state less than breaking international economic ties. It is no coincidence that the socialist countries of Central and Eastern Europe did not follow the example of Russia when nationalizing foreign property.
Disputes are resolved by agreement or arbitration.
In the 1982 Fromatom case before the International Chamber of Commerce, Iran argued that demanding full compensation effectively invalidated the nationalization law because the state was unable to pay it. The arbitration, however, determined that such issues should not be resolved unilaterally by the state, but by arbitration.
There is a so-called creeping nationalization. Conditions are created for a foreign company that force it to cease operations. Well-intentioned government actions, such as prohibiting the reduction of surplus labor, sometimes lead to similar results. In terms of its legal consequences, creeping nationalization is equivalent to ordinary one.
The possibility of nationalization, subject to compensation for the cost of property converted into state ownership and other losses, is provided for by the Civil Code of the Russian Federation (Part 2 of Article 235). Federal Law No. 160-FZ of July 9, 1999 “On Foreign Investments in the Russian Federation” resolves the issue in accordance with the rules established in international practice. Foreign investments are not subject to nationalization and cannot be subject to requisition or confiscation, except in exceptional cases provided for by law, when these measures are taken in the public interest (Article 8).
If we look at Russia’s international treaties, they contain special regulations that extremely limit the possibility of nationalization. The Agreement with the UK states that capital investments of investors of one of the Parties will not be subject to de jure or de facto nationalization, expropriation, requisition or any measures having similar consequences in the territory of the other Party (clause 1 of Article 5). It seems that this kind of resolution does not completely exclude the possibility of nationalization. However, it can only be carried out in cases of public necessity, in accordance with the law, not be discriminatory and accompanied by adequate compensation.
In the relations between the CIS countries, the problem of nationalization was resolved by the multilateral Agreement on Cooperation in the Field of Investment Activities of 1993. Foreign investments enjoy full legal protection and, in principle, are not subject to nationalization. The latter is possible only in exceptional cases provided for by law. In this case, “prompt, adequate and effective compensation” is paid (Article 7).
During nationalization, the main issues are related to the criteria for full, adequate compensation. In such cases, we are talking primarily about the market value of the nationalized property. International practice is generally of the opinion that grounds for compensation arise after nationalization, but that losses incurred as a result of the announcement of the intention to nationalize will be included.
After World War II, agreements between states on the payment of a total amount of compensation during mass nationalization became widespread. This kind of agreement reflected a certain compromise. The country - the source of investment refused full and adequate compensation, the nationalizing country refused the rule of equality of foreigners with local citizens.
As is known, citizens of Central and Eastern European countries, as a result of nationalization after World War II, either did not receive compensation at all or received significantly less than foreigners. By agreeing to pay compensation to citizens of foreign countries, these countries maintained their economic ties, which was essential for their national economy.
Having received the total amount of compensation by agreement, the state distributes it among its citizens whose property was nationalized. Such amounts are usually significantly less than the real value of nationalized property. In justifying this, the state that carried out the nationalization usually refers to the difficult state of the economy as a result of war, revolution, etc. It would be wrong, however, to assume that the practice of agreements on the payment of a total amount as compensation for nationalization and taking into account the plight of the paying state has become a norm of international law. The problem is resolved by agreement of the interested states.
The nationalization of foreign property also raises questions for third countries. How should they treat, for example, the products of an enterprise whose legality of nationalization is being disputed? Before the recognition of the Soviet government, foreign courts more than once satisfied the claims of former owners in relation to the exported products of nationalized enterprises. Currently, the United States is actively seeking other countries to recognize illegal nationalization in Cuba.
International economic law in relations between CIS countries
Division of a single economic system The USSR borders of independent republics gave rise to an urgent need to restore ties on a new, international legal basis. Since 1992, many bilateral and multilateral agreements have been concluded in the field of transport, communications, customs, energy, industrial property, supply of goods, etc. In 1991, most CIS countries adopted a Memorandum on joint liability for the debts of the USSR; the share of each republic in the total debt was determined. In 1992, Russia entered into agreements with a number of republics that provided for the transfer to it of all debts and, accordingly, assets of the USSR abroad - the so-called zero option.
In 1993, the CIS Charter was adopted, which indicated as one of the main goals economic cooperation in the interests of comprehensive and balanced economic and social development of member states within the framework of a common economic space, in the interests of deepening integration. We especially note the consolidation of the provision that these processes should take place on the basis of market relations. In other words, a certain socio-economic system is fixed.
The above gives an idea of the specifics of international economic law in the relations between the CIS countries. It operates in conditions of developing integration.
The highest bodies of the Economic Union are the highest bodies of the CIS, the councils of heads of state and heads of government. In 1994, the Interstate Economic Committee, which is a coordinating and executive body, was created as a permanent body of the Union. He is given the right to make three types of decisions:
- administrative decisions that are legally binding;
- decisions, the binding nature of which must be confirmed by government decisions;
- recommendations.
Within the Union, there is the Economic Court of the CIS, established in 1992. It is responsible for resolving only interstate economic disputes, namely:
Additional problems in relations between the CIS countries were caused by the events of 2004 - 2005. in Georgia, Ukraine and Kyrgyzstan.
A system of integration management bodies has been established: Interstate Council, Integration Committee, Interparliamentary Committee. The peculiarity lies in the competence supreme body- Interstate Council. It has the right to make decisions that are legally binding on the bodies and organizations of participants, as well as decisions that are subject to transformation into national legislation. Moreover, an additional guarantee of their implementation has been created: the parties are obliged to ensure the responsibility of government officials for the execution of decisions of integration management bodies (Article 24).
Integration associations of this kind, limited in the number of participants, pave the way for broader associations, and therefore they should be recognized as a natural, resource-saving phenomenon.
At the meeting of the Council of Heads of State - Members of the CIS, dedicated to the 10th anniversary of the Organization, the analytical final report was discussed. Positive results were stated and disadvantages were indicated. The task has been set to improve the forms, methods and mechanisms of interaction. The role of law and other regulatory means that need further improvement is especially emphasized. The issue of ensuring the implementation of decisions taken comes to the fore. The goal is to continue efforts to harmonize legislation.
ú INTERNATIONAL LAW ú
Actual problems international
private law
N. G. Doronina
Features of modern conditions for the development of international private law
The problems of private law relations characterized by the presence of a foreign element are determined by the structure of private international law. “Many Russian researchers perceive modern international private law as a stable unity of conflict of laws rules and principles that mediate two substantive and complementary ways of regulating private law relations, complicated by a foreign element”1.
Important role conflict of laws in private international law of the Russian Federation made it possible to form a special area of law in the national legal system. This trait has been noted in other countries. “Thanks to conflict of laws rules, private international law emerged as an independent area of law, located in the national system of law of a separate state.
Doronina Natalia Georgievna - head of the department of international private law of IZIP, Doctor of Law.
*The article was prepared based on the materials of a report made at a meeting of the Private Law Section of the Academic Council of the Federal State Research University “Institute of Legislation and Comparative Law under the Government of the Russian Federation.”
1 Zvekov V.P. Collisions of laws in private international law. M., 2007. P. 1.
gifts"2. However, conflict of laws rules are limited only to indicating the legal order in which answers should be sought in relation to the relations that have arisen. At the same time, as Adolfo Miajo de la Muelo emphasizes, the law of each state, like the system of international public law, consists of substantive norms, i.e. norms that answer the question of what legal consequences arise in connection with or other legal fact.
Domestic substantive rules governing relations with a foreign element are also part of private international law. “Private international law is not limited to conflict of laws; but conflict of laws rules are a very significant part of private international law and the most complex from a legal and technical point of view”3. Indeed, the scope of international private law also includes the law on government regulation foreign trade, and the law on foreign investment, and other laws. Issues of unification of material civil
2 Adolfo Miaho de la Muelo. Las Normas Materiales de Derecho Internacional Privado // Revista Espanola de Derecho Internacional. V. XVI, No. 3. (Adolfo Miajo de la Muelo - Professor of International Law at the University of Valencia, Spain).
3 Lunts L. A. Course of international private law. M., 2002. P. 30.
Danish law, which received their decision in the norms of an international treaty, are also part of private international law. Questions legal status foreigners have always been considered among the issues of private international law when it comes to the scope of their legal capacity. The norms of international civil procedure have traditionally been considered within the framework of private international law in the Russian Federation. “International procedural law is a set of rules and regulations governing the competence of judicial authorities, the form and assessment of evidence and the execution of decisions in international legal life in the event that there is a conflict of procedural laws and customs of different states”4.
The complex structure of private international law (hereinafter referred to as PIL) for a long time did not allow this area of science to be classified as a branch of law. The autonomy of private law within the framework of civil law was recognized with the adoption of Part 3 of the Civil Code of the Russian Federation in 2001. The changes taking place in international life indicate the continuing development of private international law as an independent branch of law. Russian Foreign Minister S. Lavrov at the conference " Modern state and global security" in Yaroslavl in 2009 gave general characteristics changes taking place, emphasizing that in modern conditions the “deo-deologization of international relations” is important. Raising the level of significance of private law relations means, according to S. Lavrov, re-evaluating the essence of the concepts of “state” and “ economic activity» in modern conditions of global challenges and threats. Problems of illegal migration, global poverty, challenge of change
4 Yablochkov T. M. Works on international
mu private law. M., 2002. P. 50.
Climate issues, which at first glance are far removed from the problems of private international law, are in fact related to the search for sources of financing for their solution. The emergence of various forms of participation of private individuals in financing the solution of problems of a national scale significantly expands the boundaries of private international law.
Thus, on October 28, 2009, the Government of the Russian Federation adopted a resolution regarding the implementation of “joint implementation” projects in Russia in accordance with the Kyoto Protocol to the UN Framework Convention on Climate Change. These projects solve the problem of climate change through the interaction of authorities and individuals on the issues of financing activities to preserve the ozone layer. Resources generated within the world community are distributed among its members in accordance with the terms of the international convention. The regulatory act adopted by the Russian Federation concerns the implementation of this global project, in particular the procedure for approving “joint implementation” projects, including the definition of authorized bodies and the content of civil obligations of the parties participating in the agreements. New aspects of international cooperation affect relations arising in private international law.
Back in the 70s. XX century the course of private international law involved the study of forms of international cooperation, the regulation of which was carried out by norms found in various branches of law: labor (issues of the legal status of foreigners), civil and administrative law (issues of foreign trade), civil procedure (international civil procedure). Currently, in addition to strengthening the role of international legal regulation,
research in these areas of relations, other areas of international cooperation are also being developed. However, in these areas the approach to regulating relations of private international law remains unchanged. “When studying international treaties of the Russian Federation, classified as sources of international private law, one cannot fail to take into account the features of these treaties. Generating, like any other international treaties, obligations for the subjects of international law that have concluded them, they contain norms, the implementation of which is ensured, ultimately, in the sphere of relations between citizens and legal entities”5.
In connection with the adoption of the Concept for the development of civil legislation of the Russian Federation (hereinafter referred to as the Concept), it seems important to once again turn to the problems of private international law, defining priorities in solving certain problems of the development of international cooperation6.
According to the approved Concept, the correction of section six “Private International Law”, part three of the Civil Code of the Russian Federation seems sufficient, taking into account the accumulated experience and the changes that have occurred. At the same time, the Concept provides a small range of changes that have occurred as a justification for such an adjustment, in particular, a reference is made to the adoption by the European Union of communitarian legislation in the field of private international law in the form of regulations on contractual and non-contractual obligations.
5 International private law: Textbook. / Ed. N. I. Marysheva. M., 2004. P. 37.
6 The concept for the development of civil legislation of the Russian Federation was approved at a meeting of the Council for the Codification and Improvement of Civil Legislation, which took place on October 7, 2009, chaired by the President of the Russian Federation.
government7. In our opinion, the changes in international life mentioned by S. Lavrov do not allow us to limit ourselves to only “finishing work” in the current legislation. In addition to correcting the relevant section in the Civil Code of the Russian Federation, it would be advisable to think about the prospect of adopting a law on private international law.
The work to unify private international law in the European Union has indeed made great progress, and not only in the area of contractual and tort relations. Projects have been prepared for the uniform regulation of property relations in family law8, inheritance9, as well as in resolving issues of jurisdiction, recognition and execution of foreign court decisions10. This activity, of course, gives food for thought about improving the general provisions of the mentioned section of the Civil Code of the Russian Federation.
At the same time, the examples given are only a small
7 See: European Union Regulation of 17 June 2008 on the law applicable to contractual obligations (Rome I) and European Union Regulation of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) / / Bulletin of the Supreme Arbitration Court of the Russian Federation. 2009. No. 11. P. 95.
8 See: Proposal for a Council Regulation, amending Regulation (EC) N 2201/ 2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters // Com (2006) 399 final of 17.07.2006 (Rome III); Green Paper on Conflict of Laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition // Com (2006) 400 final of 07.17.2006 (Rome IV).
9 See: Green Paper on Succession and Wills // Com (2005) 65 final of 03/01/2005 (Rome V).
10 See: Proposal for a Council Regulation on jurisdiction, applicable law, recognition, and enforcement of decision and cooperation in matters relating to maintenance obligations // Com (2005) 649 final of 12/15/2005 (Rome VI).
part of numerous examples of international treaty unification of national legal regulation, which formulate the problem much more broadly - about the relationship between international and national law as two systems of law. In this regard, the number of conflict of laws rules is expanding and general approaches to resolving conflict of laws issues in civil legal relations between the state and a foreign private person are being clarified. Therefore, it seems relevant to adopt a law on private international law that would solve problems that go beyond the scope of civil law regulation.
In the European Union, work to create communitarian private international law began in 1980 with the adoption of the Rome Convention on the Law Applicable to Contractual Obligations. The adoption of this convention, which contains general provisions providing a uniform approach to the application of conflict of law rules, led to the adoption of national laws on private international law on all continents11. Adoption of regulations
11 According to research by the Private Law Research Center in 2001, private international law laws have been enacted at various times and are in force at the time of publication in countries such as the UK (Private International Law Act 1995), Austria (Private International Law Act 1978), Hungary (Private International Law Decree 1979), Germany (General Terms and Conditions Act 1976), Italy (Private International Law Reform Act 1995) ), Liechtenstein (Private International Law Act 1996), Poland (Private International Law Act 1965), Romania (Private International Law Regulation Act 1992), Czech Republic (Private International Law Act 1963). ), Switzerland (Federal Law on Private International Law 1987).
agreements of the European Union, aimed at unifying private international law, gave essentially the same effect12. The influence of the development of communitarian law on the legislative activity of member states makes us think about the significance of law as a more optimal form of regulation.
However, it is not only changes in European Union law that are pushing for the adoption of a law on private international law. The development of the process of codification of private international law is largely required by developing international economic cooperation and a change in the role of international law in its regulation.
Outside the European Community, the development of the process of codification of private international law is facilitated by the expansion of the boundaries of international economic cooperation. At the present stage of the unification of private international law, the main event is the emergence of the so-called international economic law, which would be more correctly called international civil (economic) law, since it provides regulation of economic cooperation between subjects of civil law of different states.
The development of international economic law was associated with an increase
The geography of the new laws affects many continents: Venezuela (1998), UAE (1965 Law), South Korea (1962), Japan (2007), as well as countries with transition economies: Romania (1992 Law), Estonia (1994). See: International private law. Foreign legislation. M., 2001.
12 See: Belgian Private International Code // Moniteur belge of July 2004; Act of
1 9 December 2005 // Moniteur belge of 18 January 2006; Bulgarian Code of Private International Law of May 17, 2005 (as amended on July 20, 2007) // Journal of Private International Law. 2009. No. 1. P. 46.
by determining the volume of investments - property assets moved from one jurisdiction to another. Whatever area of international cooperation we take, the issues raised in connection with this cooperation almost always come down to finding a source of funding. The volume of foreign investment, which has increased many times over in recent decades, is a clear illustration of the relevance of the problems of private international law.
According to Yu. Bazedov, the relationship that arises when making investments belongs to international private law, which is evidenced by the fact that “the effective placement of funds in a market economy depends on the investment decision of a private individual.” In this case, in his words, a “collision of economic regulation” of different states arises.
states
Collisions of economic regulation in different states inevitably involve rules of a public legal nature, the purpose of which is to protect public, i.e. national, interests. Protection of public interests within the framework of civil legal relations becomes the main task of private international law. At the same time, international treaties and national legislation, in which civil law plays a major role, in particular the rules governing investment relations, become sources of regulation of economic relations between participants of different nationalities. “Whether we are talking about contractual or corporate relations, about real rights or intellectual property rights, about contractual
13 Cm.: Basedoff J. Conflicts of Economic Regulation // American Journal of Comparative Law. V. 42. 1994. P. 424.
law or torts, when it comes to investments, the main thing we mean is the efficient allocation of funds, and in a market economy, the efficiency of resource allocation depends on the investment decision of a private individual”14.
The problem of codification of private international law
The adoption of laws on private international law in various countries indicates the development of the process of formation of an independent branch of law within the framework of the national legal system. The Rome Convention of 1980 “On the Law Applicable to Contractual Obligations” had a great stimulating effect on the development of the legislative process. The adoption of this convention was aimed at unifying private international law in the countries of the European Union. In order to uniformly apply conflict of laws rules, general provisions were formulated on the procedure for their application: the rule regarding the application of mandatory rules (lois de police), on public order, revocation, qualification, etc. In its significance, the Rome Convention went beyond the scope of regional unification of private international law . Its effect can be compared with the effect of universal unification of private international law achieved as a result of the International Convention on Private International Law of 1928, known as the Bustamante Code15. The last way is
14 Ibid. P. 425.
15 “Starting from the 19th century. Many scientists in continental Europe dreamed of creating a comprehensive codification of international private law. Manci Pasquale Stanislao (1817-1888) advocated the codification of PIL in international basis. Mancini's idea was supported by the Institute of International Law, founded in 1873, and in 1893 by the Danish scholar Tobias Michael Karel Asser
contributed to the development of conflict of laws as a special area of law by formulating various types conflict forms and territorial principle their applications. The Rome Convention formulated general provisions on conflict of laws rules.
The provisions of the Rome Convention were taken into account when developing the corresponding section of the Civil Code in the Russian Federation. However, the section on private international law in the Civil Code of the Russian Federation does not concern complex forms of economic cooperation arising in the field of culture, healthcare, exploitation of energy and other natural resources, in which the participation of foreigners presupposes an appeal not to certain species civil contracts, but to the system of contractual relations.
In our opinion, the law on private international law should reflect the features of those civil contracts that are used when moving material assets from one jurisdiction to another - making investments abroad. These are agreements regulated by the Civil Code of the Russian Federation, as well as agreements classified as agreements for the regulation of which special laws have been adopted.
(1838-1912), with the participation of the Danish government, convened the first Hague Conference on PIL in order to begin work on conventions aimed at the universal unification of PIL. South American states also began preparing international conventions for their region. Without waiting for this work to be completed, states adopted laws on private international law" (Siehr K. General Problems of PIL in Modern Codifications // Yearbook of Private International Law. Vol. VII. 2005 / Ed. by P. Sar...evi... , P. Volken, A. Bonomi (Lausanne, 2006. P. 19).
Xia: Financial lease agreement (leasing) (Chapter 34, Article 665 of the Civil Code of the Russian Federation); Targeted loan agreement (Chapter 42, Article 814 of the Civil Code of the Russian Federation); Property trust management agreement (Chapter 53, Article 1012 of the Civil Code of the Russian Federation); Commercial concession agreement (Chapter 54, Article 1027 of the Civil Code of the Russian Federation); Simple partnership agreement (Chapter 55, Article 1041 of the Civil Code of the Russian Federation); Financing agreement for the assignment of a monetary claim (Chapter 43, Article 824 of the Civil Code of the Russian Federation).
Civil law contracts, called agreements, include: Production Sharing Agreement (Law of December 30, 1995 No. 225-FZ); Concession agreement (Law of July 21, 2005 No. 115-FZ); Agreement on carrying out activities in the SEZ between the resident and the SEZ management body (Law of July 22, 2005 No. 116-FZ); Agreement on the conduct of industrial and production activities (Article 12 of the Law on Special Economic Zones of July 22, 2005 No. 116-FZ); Agreement on the conduct of technology and innovation activities (Article 22 of the Law on Special Economic Zones of July 22, 2005 No. 116-FZ); Agreement on the implementation of tourism and recreational activities (Article 311 of the Law on Special Economic Zones of July 22, 2005 No. 116-FZ); Agreement on carrying out activities in a port special economic zone (Article 311 of the Law on Special Economic Zones of July 22, 2005 No. 116-FZ).
All these contracts are united by the fact that they, as a rule, are concluded for a long period, their subject is separate property (asset), the transfer of which is carried out for the sole purpose of making a profit during the entire term of the contract. It is this goal - causa - that lies at the basis of the agreement, and allows us to classify these agreements as “investment agreements”.
There are questions about the relationship between property law and obligations law16, about the connection between a subcontract and a construction contract, which does not allow following the principle of “abstractness and neutrality” when resolving a conflict of laws17, etc. The choice between the property law and obligations statute when determining the law applicable to the contract, must take into account the content of contractual relations as investment ones.
The party to the contract transferring the property, or the investor, is provided with a guarantee only when the law establishes an attitude towards him as a “quasi-owner” of the transferred property. How this problem will be solved in the law on private international law is still unknown. However, we can say with confidence that the solution to this problem is possible only if it is solved using the entire toolkit of international private law in a complex, including super-mandatory rules, rules on public order, rules on the qualification of legal concepts when determining the law to be applied.
The application of agreements that provide for the investor’s obligation to resort to various legal means in order to implement the project also provides for the application of the law of the state to which the agreement itself underlying the project is subject. In order to take into account all the features of the
16 See: Zykin I.S. On the issue of the relationship between the property and obligations statutes // Civil Law modern Russia: Collection of articles of the Research Center for Private Law in honor of E. A. Sukhanov. M., 2008. pp. 45-57.
17 See: Pirodi P. International Subcontracting in EC Private International Law // Yearbook of Private International Law. Vol. VII. 2005/
Ed. by P. Sarwvm, P. Volken, A. Bonomi.
Lausanne, 2006. P. 289
temporary realities, it seems advisable to adopt a law on private international law in the Russian Federation, in which the issues of participation of foreigners in national projects and social development programs would receive a uniform solution.
Codification of private international law in Russia can help solve other problems. “The adoption of the Russian law on private international law and international civil procedure provides a rare opportunity to unite related institutions of civil, family and labor law”18.
When adopting a law on private international law, one cannot ignore the problems of civil regulation associated with the participation of the state as a subject of civil law and a party to a civil contract. To ensure the viability of such an agreement, a declaration in the law that it is subject to civil law is not enough. In this case, a civil contract, in accordance with the general principle of civil law on the equality of participants in a civil legal relationship, is the only instrument that can provide the necessary balance of public and private interests. In private international law, this balance of interests is ensured with the help of conditions on the law applicable to the contract and on the procedure for resolving disputes. Among the listed agreements, none of them fully resolved these issues that directly affected the interests and security of the state.
The adoption of a law on private international law involves resolving issues that are an integral part of substantive law.
18 Zvekov V.P. Collisions of laws in private international law. M., 2007. P. 366.
VA, which unites different branches of private law (civil, family and labor). Considering the uneven degree of regulation of relations of international private law in these areas, it is assumed that the adoption of a law on private international law will eliminate the existing gaps while maintaining a unified concept of private international law.
Problems of unification of legal regulation of private law relations
Public international law is the beginning in regulating relations of private international law.
In private international law, the key formula for the relationship between national and international public law is the recognition of the role of “the main starting point” for public international law. According to L. A. Lunts, “a number of basic principles of public international law are of decisive importance for private international law”19. Until recently, the initial principles of private international law included such general principles of public international law as the recognition of socialist property and the operation of laws on the nationalization of private ownership of tools and means of production, and foreign trade monopolies. When resolving private law disputes by courts national system law, taking these principles into account remains critical. This significance of generally recognized principles and norms of international law is discussed in Part 4 of Art. 15 of the Constitution of the Russian Federation.
Currently, the generally accepted principles of public international law include the principle of national treatment of foreign
19 Lunts L.A. Decree. op. M., 2002. P. 48.
knapsacks, which can be formulated differently in the norms of international treaties and agreements depending on the specific area of international cooperation in which it is applied. The principle of national treatment is also enshrined in the norms of national legislation. When resolving private law disputes, a court or arbitration body must solve a complex problem associated with the application of the relevant rule belonging to a particular system of law.
In private international law, it seems necessary to take into account that, since it is part of the national legal system, the understanding of the phrase “recognition of the original principle of international law” is limited to such an interpretation of the relevant norms and principles that exists within the framework of this legal system. On the other hand, the state has the right to formulate a norm on national treatment in its legislation. However, the interpretation of this norm must be based on the legislation in force in this state, that is, on the system of law in the depths of which this norm originated.
The approach adopted in conflict of laws law, according to experts in the field of private international law, should also be adopted in cases of appealing to the norms of international law as a source of law. “Through trial and error, the doctrine and practice of private international law have reached the only possible option (in terms of the application of norms belonging to different systems of law - N.G.): the norm of one legal system should be applied within the framework of another - as it would be applied in subsoil
the legal order to which she
belongs"20.
20 Bakhin S.V. International composition
of the legal system of Russia // Jurisprudence. 2007. No. 6. P. 130.
The legislative consolidation of this approach is contained in civil (Article 1191 of the Civil Code of the Russian Federation), family law (Article 166 of the RF IC) and in the Arbitration Procedure Code of the Russian Federation (p. 14). The dispersion of norms reflecting the fundamental foundations of the modern level of international communication should be considered among the shortcomings of the national legislation of the Russian Federation on private international law, which are unlikely to be corrected if we limit ourselves to section six of the Civil Code of the Russian Federation.
The question of the interaction of two systems of law - international and national - in the present conditions is becoming increasingly important. As an independent system of law, international law arose and developed in parallel with the state21. At the same time, international law continues to develop as a special branch, distinct from the national system of law, characterized by the presence of branches of law in it. International law is a system of law that is not based on any normative legal act, like the constitution of a state. The peculiarity of international law as a special system of law is manifested in the generally accepted principles of legal regulation, which are voluntarily accepted and implemented by states in their natural desire for self-preservation.
A feature of international law of the modern era is that in this system of law, a tendency towards regionalism has recently developed. This trend is expressed in the desire of states to unite into economic unions in order to accelerate the economic development of the states participating in the union. An example of the development of regionalism in international law, in addition to the European Union, is the North Atlantic Treaty Organization.
21 See, for example: Levin D. B. History of international law. M., 1962.
ical free trade area, or NAFTA. The regional association is based on international treaties called constituent acts. In NAFTA, the basis for integration was international investment arbitration, created on the basis of the Washington Convention.
The attitude towards European law as part of international law is supported by many European authors. At the same time, it was the regional structures that gave rise to the discussion of the problem of fragmentation of international law associated with the “multiplying of judicial institutions.” According to the President of the International Law Association (British branch) R. Higgins, “overlapping jurisdiction - characteristic international courts and tribunals. In connection with the deepening of international law, the courts are faced with the question of which rules of international law are subject to application. An alternative in the applicable rules of law may lead to the existence of different solutions”22.
In Russian scientific literature, the separation of European law into a special system of law is associated, rather, with the awareness of the importance of studying the law that underlies the economic integration of the state, and for educational purposes in training lawyers in universities. A feature of European law is that it affects the sphere of international economic cooperation, which, in turn, explains the specifics of the attitude towards private international law in the European Union. “The integration program set out in the Treaty of Rome clearly indicated only the role of the member states and bodies of the community. The rights and obligations of private individuals, both citizens and entrepreneurs, have not been directly established, including in the case of
direct connection between these (subjects) of law (my italics - N. G.) and the obligations assumed by the Member States”23.
Y. Basedov characterizes European law as a system that regulates relations between states as subjects of international law. According to him, ambiguity in certain formulations cannot give rise to the attribution of European law to a special supranational structure. “Even the provisions of Articles 81 and 82 on competition of the Treaty establishing the European Community are formulated in such a way that the rights of private individuals do not clearly arise from the provisions prohibiting concerted practices and abuse of a dominant position by economic entities.”24
The example of the NAFTA integration association shows how easily some seemingly indisputable truths can be shaken. The exaggeration of the role of international treaty investment arbitration, created on the basis of the Washington Convention, and the interpretation of the norms of international agreements on the protection of investments as contractual obligations regulated within the framework of the national legal system have led to errors in the practice of resolving investment disputes25.
Currently, the activities of international treaty investment arbitration, which considers disputes between one state
23 Bazedov Yu. European civil society and its law: on the issue of determining private law in the community // Bulletin of civil law. 2008. No. 1. T. 8. P. 228.
theta on the annulment of ICSID decisions in the Vivendi case are based on the difference between claims from treaties and from international agreements // ICSID Case N. ARB/97/3; Solution
gift and person of another state, is greatly facilitated by the fact that the UN International Law Commission at its 53rd session in 2001 adopted the final version of the articles “On the responsibility of states for unlawful acts of an international nature.” According to K. Hober, this means that “in the new era of investment arbitration, what is important, first of all, is one aspect of the legal responsibility of the state, the role of which is constantly increasing, namely the qualification of actions as actions of the state.”
Qualification issues undoubtedly relate to issues of private international law, as, in fact, does the very nature of an investment dispute, which is classified as a private law dispute. These issues have not been resolved in the Civil Code of the Russian Federation in relation to relations with the participation of the state, and this is not accidental, since the protection of the interests of the state goes beyond the scope of civil law relations.
The new law on private international law should reflect the changes that have occurred in international law in connection with the development of new methods of unifying law based on economic integration. It is also important to determine the principles for resolving conflicts in connection with the application of the norms of two different systems of law - international and national.
In our opinion, we should join the opinion expressed by experts that “at least in the context of investment law, it is not enough to simply refer to international law as the applicable law”26. This approach is due to the fact that the interpretation of the norms of international treaties must be based on the general provisions of the system of international law.
26 Campbell McLachlan QC. Investment Treaties and General International Law // International and Comparative Law Quarterly. 2008. V. 57. P. 370.
As for civil law contracts, their effect is ensured by the norms of the national legal system. The interaction of the two legal systems should be aimed at ensuring the fulfillment of each of these obligations, but this goal is achieved through different legal means.
Back in the 70s. XX century Many well-known experts in private international law have spoken out against the so-called transnational law governing civil agreements or contracts. The dispute was about whether such contracts belonged to the international or national legal system. This is how D. Bettem describes in his doctoral dissertation the discussion that took place at that time on the issue of classifying concession agreements (state contracts) as international law: “A war broke out between international lawyers over the issue of applying international law to contracts concluded by the state. Having settled on the position put forward by lawyer Garcia Amador, a supporter of the idea of internationalization of contracts, the UN International Law Commission stopped dealing with this problem and turned to the development of a draft Convention on State Responsibility proposed by Ago. Ago, examining the reasons for the occurrence of violations of international (my italics - N. G.) obligations, asserted with all certainty that contracts are not subject to the norms of international law”27.
In total, the International Law Commission several times addressed the issue of state responsibility in
27 Bettems D. Les contrats entre Etats et personnes privees etrangeres. Droit applicable et responsabil^ internationale. These de License et de doctorat presentee a la Facu^ le droit de l"Univers^ de Lausanne. Lausanne, 1988.
within the framework of contractual obligations. In the 50s XX century The question of the international responsibility of states was raised in connection with the adoption by states of acts of nationalization28. During that period, the International Law Commission, at its session in 1952 in Siena, recognized that states are obliged to comply with the contracts they enter into, but no resolution was adopted in relation to international law.
In the 60s XX century The problem related to government contracts was discussed by the International Law Commission in connection with the problem of legal regulation of investments. At the regular session of the UN Commission in 1967 in Nice, when discussing Wortley’s report on the topic “Legal conditions for investing capital in developing countries and investment agreements,” the issue of international responsibility of the state in connection with government contracts was again raised, but no solution was reached was taken.
The participation of the Russian side in discussing the problem made it possible to record in the decisions of the International Law Commission the point of view on the private law nature of government contracts and their belonging to the national legal system. When discussing the issue of conflict of laws in Athens in 1979, a number of international lawyers participating in the discussion (Colombos, Fawcett, Giraud) supported the view that the application of international law to government contracts is permissible. However, after the Soviet lawyer Tunkin voiced a different position, he was supported
28 See: Durdenevsky V.N. Concession and convention of the maritime Suez Canal in the past and future // Soviet State and Law. 1956. No. 10; Sapozhnikov V.I. Neo-colonialist doctrines of international protection of foreign concessions // Soviet Yearbook of International Law. 1966-
1967. M., 1968. P. 90-99.
other jurists (Wright, Ago and Rolin) and a resolution was passed stating that in private international law there is a general rule that parties may choose international law as the law applicable to a contract. It should be noted that this resolution dealt exclusively with resolving a conflict of laws issue in private international law, i.e., within the framework of the national legal order29.
The position of Russian lawyers, in particular Ushakov, was supported by foreign experts in the field of international law (Wengler, Bindschedler, Salmon and Mosler). As a result, a resolution was adopted in which, although no conclusions were made regarding the legal nature of government contracts, it directly stated that the contract could not be classified as an “act of international law.”
The resolution of that time did not contain, and could not contain, any conclusions regarding how applicable the principle of autonomy of the will of the parties is to such contracts and what the applicable law should be, as well as what the content of “international contract law” is. These issues of private international law must be resolved within the framework of the national legal order and are most likely expressed in the law on private international law.
Lack of resolution of these issues at the end of the 20th century. made it possible to postpone the resolution of the issue of international responsibility of the state
29 According to Art. 2 of the adopted resolution, the parties may choose the law applicable to the contract, or several national legal systems applicable to the contract, or name the general principles of international law, the principles applicable to international economic relations, or international law, or a combination of these sources, applicable to the contract.
parties - parties to a contract. Currently the situation has changed. The expansion of the scope of state participation in large infrastructure projects financed from private sources has led to the fact that the International Law Commission, acting within the boundaries of exclusively international law, has formulated a number of rules on the international responsibility of states, which are of a recommendatory nature. The articles on state responsibility formulated by the International Law Commission include rules for the qualification of state actions affecting relations of private international law: the behavior of individuals and (or) legal entities that are not organs of the state is qualified as state actions, provided that the conduct in question constitutes their exercise of state powers30.
The articles “Responsibility of States for Internationally Wrongful Acts” were approved by a resolution of the UN General Assembly31 and are currently the starting point for the formation of rules of law on private international law in individual states interested in attracting private investment in social sphere. In the interests of the state, it is necessary to determine the specific scope of application of these rules, including by
30 See: Hober K. Responsibility of States and Investment Arbitration // International Commercial Arbitration. 2007. No. 3. P. 30.
31 UN General Assembly Document A/56/589. Resolution 56/83 adopted by the UN General Assembly at the 56th session (agenda item 162). Russian text of the article “Responsibility of States for Internationally Wrongful Acts”, developed by the UN International Law Commission, see: International Commercial Arbitration. 2007. No. 3. P. 31-52.
resolving issues of private international law (on the autonomy of the will of the parties in a state contract, applicable law, dispute resolution procedure) by a special law.
The adoption of a law on private international law will also solve such a problem as achieving unity in the approach to resolving procedural issues. Issues of international jurisdiction of judicial and arbitration bodies have traditionally been considered outside the framework of private international law. The development of a law on private international law will also make it possible to solve the problems of civil procedure, which are currently regulated separately (in the Civil Procedure Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation).
Thus, maintaining Sect. 6 in the Civil Code of the Russian Federation will help avoid possible losses in the integrity of the regulation
Bibliography
Bazedov Yu. European civil society and its law: on the issue of determining private law in the community // Bulletin of civil law. 2008. No. 1. T. 8.
Bakhin S.V. International component of the Russian legal system // Jurisprudence. 2007. No. 6.
Durdenevsky V.N. Concession and convention of the Suez Canal in the past and future // Soviet State and Right 1956. No. 10.
Zvekov V.P. Collisions of laws in private international law. M., 2007.
Zykin I. S. On the issue of the relationship between the real and obligatory statutes // Civil law of modern Russia: Collection of articles of the Research Center for Private Law in honor of E. A. Sukhanov. M., 2008.
Levin D. B. History of international law. M., 1962.
Lunts L. A. Course of international private law. M., 2002.
International private law. Foreign legislation. M., 2001.
International private law: Textbook. / Ed. N. I. Marysheva. M., 2004.
Sapozhnikov V.I. Neo-colonialist doctrines of international protection of foreign concessions // Soviet Yearbook of International Law. 1966-1967. M., 1968.
Hober K. Responsibility of states and investment arbitration // International commercial arbitration. 2007. No. 3.
lation of international civil law relations. However, when improving it, it would be necessary to take into account the difficulties that arise when solving the problem of immunity of the state participating in civil legal relations. The development of investment relations associated with the movement of various types of resources (natural, human, monetary and material) from one jurisdiction to another can be resolved in the law on private international law, which does not interfere with the work to improve the norms of section. 6 Civil Code of the Russian Federation. Proposals to amend Section. 6 of the Civil Code of the Russian Federation are contained in the Concept proposed by the Council for the Codification of Civil Legislation under the President of the Russian Federation.
Yablochkov T. M. Works on private international law. M.
Adolfo Miaho de la Muelo. Las Normas Materiales de Derecho International Privado // Revista Espanola de Derecho Internacional. V. XVI. No. 3.
Basedoff J. Conflicts of Economic Regulation // American Journal of Comparative Law. V. 42. 1994.
Belgian Private International Code // Moniteur belge of July 2004;
Bettems D. Les contrats entre Etats et personnes priv "ees "etrangeres. Droit applicable et ^spo^an!^ internationale. Thise de Licence et de doctorat presente a la Facu^ le droit de l "Université de Lausanne. Lausanne, 1988.
Campbell McLachlan QC. Investment Treaties and General International Law // International and Comparative Law Quarterly. 2008. V. 57.
Siehr K. General Problems of PIL in Modern Codifications // Yearbook of Private International Law. Vol. VII. 2005/Ed. By P. Sar...evi..., P. Volken, A. Bonomi. Lausanne, 2006.
Pirodi P. International Subcontracting in EC Private International Law // Yearbook of Private International Law. Vol. VII. 2005/Ed. By P. Sar...evi..., P. Volken, A. Bonomi. Lausanne, 2006.
And its branches - international criminal law, international economic law, etc., are called upon to carry out a coordinating and regulatory function in the international cooperation of states in the fight against international crime on the basis of a set of legal norms that determine the conditions for international judicial assistance of states to each other in the exercise of their punitive power in field of international communication.
At the same time, international cooperation in the fight against transnational crime, including in the economic sphere, is carried out by countries, primarily with the aim of protecting their national economy, national, political, territorial and economic from attacks by transnational organized crime.
The main problem in strengthening and consolidating the legal foundations of the fight against transnational crime, is the interaction of the norms and principles of international law and its branch of international criminal law, with the norms and principles of national criminal law.
International law and international criminal law are factors stimulating the internationalization of national criminal law. This internationalization is determined primarily by the need to unite the efforts of states in the fight against transnational crime. On the other hand, international law, in the process of cooperation between states in the fight against international crime, borrows the experience of countries with more developed national criminal law. Subsequently, norms and principles are formed at the international level, which have an increasingly significant impact on national law. Maintaining, developing and improving this rule-making process is one of the areas of activity of the UN and all its bodies in the fight against international crime, including in the economic sphere.
International law and its branch - international criminal law, constitute a unique legal basis for international cooperation in the fight against economic crimes of an international nature, especially in terms of identifying and classifying committed illegal actions as crimes of an international nature in international economic relations, establishing the responsibility of subjects of international law and punishing persons guilty of committing such crimes.
The UN has formed a mechanism for international cooperation in the fight against international crime, including crime in the economic sphere. Together with other intergovernmental and non-governmental organizations of a universal and regional nature, operating in the context of the fight against international crime, a unique global system for combating international crime is formed.
The Constitution of the Russian Federation (Part 4, Article 15) establishes that the generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system.
From the point of view of content (subject of regulation), the following groups of international treaties can be distinguished, which received particularly wide application at the turn of the 20th - 21st centuries, which contain provisions related to the field of economic security:
- legal assistance agreements;
- treaties on the promotion and protection of foreign investment;
- agreements in the field of international trade and economic cooperation;
- contracts on property rights;
- agreements on international payments;
- avoidance agreements double taxation;
- agreements in the field of intellectual property;
- social security agreements;
- agreements on international commercial arbitration.
Among bilateral treaties, complex treaties such as treaties on legal assistance are of greatest interest to Russia. They contain provisions not only on the cooperation of judicial authorities, including on the execution of letters rogatory, but also rules on the law to be applied to the relevant relations.
