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Kutafin Law Review

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Vol 10, No 1 (2023)
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EDITORIAL

BUSINESS LAW AND CIVIL SOCIETY

3-40 526
Abstract

The paper outlines the regulatory landscape of an anti-offshore policy in Russia. In the first part of this paper, the author gives an overview of effective regulations against offshore businesses that Russia has adopted in the past decade. The CFC rules were developed and subsequently passed because of Russia’s participation in the BEPS project. They are of the highest importance for the implementation of the anti-offshore policy. Other measures include transfer-pricing rules, registers of beneficial owners, exchange of financial information and revision of double tax treaties with Cyprus, the Netherlands, Luxembourg and Switzerland. Sanctions imposed by the EU, the USA, the UK and their allies against Russia, Russian individuals and companies in 2022 and counter-measures against Western countries and their residents introduced by Russian authorities also stimulate deoffshorization of the Russian economy. They have limited the free movement of capital between offshore holding companies and their Russian subsidiaries and, consequently, have contributed to the isolation of the Russian economy from the rest of the world, including its offshore infrastructure. The second part of the paper deals with the proposals for the Russian anti-offshore policy. The author shares his ideas on how to make the policy for deoffshorization of the Russian economy more effective. A few of these anti-offshore actions have already been implemented in draft laws and are currently being considered in the Russian Parliament. All of the measures that are being considered would result in unfavourable tax implications and possible damage to the reputations of those Russian individuals and organizations who still use offshore companies and trusts for the purposes of minimizing taxation and maintaining anonymity. The most important action proposed by the author for the implementation of the anti-offshore policy is the forced deoffshorization of strategic enterprises. Passing the relevant law would entail fundamental changes to the Russian business environment and result in the restoration of economic sovereignty over the Russian economy.

41-64 392
Abstract

 Various factors affect the development of small business. Among these are self-regulation and state regulation. The authors focus on the impact that self-regulation and state regulation have on small business, study their interrelation, and interplay in the infrastructural support for the small business development. Both self-regulation and state regulation have their own objectives, guiding principles, inherent functions, and a set of methods and tools to influence the development of small businesses. The authors conclude that, in present day Russia, the focus is on shifting from state regulation to self-regulation without providing additional conditions for development, which reduces the social efficiency of self-regulation. Self-regulation as an alternative to state regulation should be chosen based on the level of the social relations development in general and in the regulated area, in particular. Currently, the development of innovative small businesses as drivers in the economic development attracts much attention. Without state regulation of innovative processes, sustainable socio-economic development of Russia is almost impossible. The economic mechanism of control over the innovative business should include the infrastructure to favor the conditions for the development and introduction of innovative products by small enterprises; the regulatory framework to create equal conditions for business operations, considering the specifics of production and its priority for the region it takes place in; the HR-related matters to plan business activities considering the professional competence of specialists and the ability to improve their skills. The transition to the innovative development path should include the possibilities of both self-regulation and the need for state regulation to form the conditions for a favorable innovative environment.

65-87 236
Abstract

Non-profit associations of persons established to solve common social, charitable, cultural and other tasks take an important place in the economic, political, social life of society, along with profit associations. Thus, it is important to improve civil law regulation of relations with their participation. Current legal acts regulating non-profit organizations in general, and individual organizational and legal forms of associations of persons, including public associations, should be brought into compliance with the provisions of the Civil Code of the Russian Federation. The paper is devoted to the search for ways to solve the problem of defining the concepts used in the current legislation to designate associations of persons, the content of these concepts and relationships between them. The author substantiates that the category of a public association consolidated in domestic legislation requires clarification and determination of its relationship with the categories of an association of persons, civil-law community, legal entity and some other concepts used to designate formations performing joint activities of persons to protect common interests and achieve common goals (organization, corporation, association, etc.). The paper attempts to comprehend the concept of the public association and its relationship with other similar categories used in civil legislation. The author concludes that currently the category of public association is used in a rather narrow sense and does not cover all possible non-profit associations of persons, although it could be considered as a broader category, which would make it possible to determine the general principles of creation and operation of certain types of non-profit associations of persons, to classify them and harmonize possible organizational and legal forms of their operation, giving legal certainty to the status, primarily to the civil-law status, of various types of associations of persons.

HUMAN RIGHTS AND MODERNITY

88-109 615
Abstract

The Indian judiciary has been the sentinel of democracy and assiduously upholds the values of Indian constitutionalism. Thus, the Court is the interpreter, protector, and guardian of the Indian Constitution. The active and trustworthy role of the judiciary makes it the country’s only institution whose acceptability seems to be a national consensus. This paper discusses that judicial activism is a part of judicial review and does not violate the doctrine of separation of powers; instead, it protects and promotes constitutionalism. Further, this paper illustrates that judicial activism has played a vital role in protecting and promoting human rights in India.

110-136 247
Abstract

The article revolves around the question whether, given some very “fundamental threats” to future generations’ living, their very conditions of survival can be construed as rights. The issue has to tackle the problem of the non-existence of the presumptive holders of such a right, as well as with the problem of their (non-)identity. The article shows the reasons for separating what we owe to future persons under the challenge of some fundamental threats for humanity from our will to hand down our cultural and ethical ideas of the good information and eventually from paternalistic or selfish imposition upon future generations of our irreversible choices. The framework refers essentially to a conceptual grammar of justice. Moreover, it is suggested to articulate rights through the lens of “disposability” and “non-disposability” principles.

137-156 813
Abstract

The subject of the study is the specifics of the application of international humanitarian law (IHL) to the resolution of the humanitarian crisis in the Ethiopian state of Tigray. Crimes against humanity committed by Ethiopian and Eritrean troops in the conditions of warfare have been studied. It is argued that according to Article 3 of the II Additional Protocol to the Geneva Convention on the Protection of Victims of War, the federal center of Ethiopia, which protects the sovereignty of the State, acts correctly by suppressing the rebels of Tigray. However, this is in contradiction with the UN Security Council resolution on the situation with human rights and the human situation in Ethiopia and the 2021 Human Rights Council resolution S-33/1 “The situation of human rights in Ethiopia” indicating Ethiopia’s violation of its international legal obligations with respect to civilians in armed conflict and IHL norms. Thus, the operation of IHL on the territory of the state is objectively suspended. The provisions and priorities of Refugee Law are considered separately in relation to the specifics of the refugee situation in Ethiopia, in particular the specifics of the Kampala Convention for the Protection and Assistance of Internally Displaced Persons in Africa of 2009. It was found that both the federal authorities and the opposing belligerents controlling the settlements of internally displaced persons on the territory of Ethiopia, do not fulfill their obligations under the Сonvention, which refers to the need for urgent further development of regional international treaties on assistance to forced migrants.

LEGAL PROTECTION OF VULNERABLE GROUPS

157-178 382
Abstract

Based on the analysis of the main risks of the information environment for minors, the authors substantiate the need to form a constitutional and legal model for ensuring the information security of minors. The authors represent their understanding of the concepts of “threat,” “challenge,” “danger,” which are close in a categorical series with the concept of “risk,” is presented, and propose their definitions of the concepts of “information security,” “security worldview.” The main goals for ensuring the information security of minors are both security and the creation and maintenance of the most favorable conditions for the adaptation of a minor to the information environment of modern society, which contributes to his personal development, improvement of spiritual, moral, intellectual, creative abilities and self-realization, subject to minimization (and exclusion) of possible risks and threats to life, health and its comprehensive development. The elemental composition of the constitutional and legal model of information security of the child is presented, the formation of which is associated with the national model for the protection of the rights and freedoms of minors. The right to information security of minors comes from the meaning and spirit of the Constitution, as it ensures the implementation of other constitutional rights and freedoms of minors.

179-198 553
Abstract

At both universal and regional levels, women are identified as a vulnerable category of individuals, as they are at the increased risk of becoming victims of human rights violations. Historical experience points to practices and traditions that have purposely limited women’s rights, resulting in entrenched stereotypes against women. The most acute form of violation of women’s rights is gender-based violence. In 2021, at least 4,473 women in Latin America and the Caribbean were victims of feminicide,1 an extreme and deadly form of gender-based violence. The purpose of this article is to analyze the Inter-American international legal mechanisms for the protection and promotion of women’s rights. Both universal international legal instruments and regional Inter-American agreements provide mechanisms that enable individuals, whose rights were violated as a result of discrimination or violence, to submit individual communications. In addition, both universal mechanisms and regional Inter-American mechanisms promote the gender agenda in Latin America and the Caribbean, as well as the implementation of international law in national legislation. The in-depth analysis of Inter-American mechanisms for the protection and promotion of women’s rights reveals both the system’s unique features and its shortcomings. In particular, the two-level system of individual communications submission means that not all cases, which deal with the protection of women’s rights against violence, reach the Inter- American Court of Human Rights. Moreover, the insignificant number of cases of women’s rights violations heard before the Court points to the weak law enforcement practice within the existing Inter-American mechanisms. In addition to the Inter-American regulation within the framework of the OAS, this article examines the activities of integration sub-regional unions, such as Mercosur and the Andean Community. In particular, these integration unions, as well as ECLAC — the Economic Commission for Latin America and the Caribbean, contribute to gender equality and the empowerment of women within the region.

199-216 2274
Abstract

Human trafficking as a term is often used in everyday life. As a manifestation of organized crime, it is a form of modern slavery and affects all states, both developing and developed, highlighting the seriousness of the problem for the entire international community. Human trafficking is a gross violation of human rights, such as the right to life, freedom of movement, etc. All people can become victims, regardless of gender, age, social status, skin color, but often victims are the most vulnerable groups of the population. In the framework of this study, we will analyze the international legal mechanisms that are designed to counter human trafficking. Women and girls are particularly vulnerable to the challenge of human trafficking, and we will pay special attention to this category in our analysis of legal protection. Protection of human rights is certainly one of the most important aspects of the development of each country. The United Nations treaties on human rights are the foundation of the international system for the promotion and protection of human rights.

PHILOSOPHY OF LAW

217-236 505
Abstract

Today, society faces a number of challenges driven by excessive consumption and extreme proliferation of utilitarian and radical individualistic ideals. This study is focused on searching for new constitutional models that would mitigate social and environmental risks of the consumerist era. To this end, the author has conducted a comprehensive review of relevant Ancient Greek concepts. In the 5th and 4th centuries BC, Greece put forward the first abstract notions of the ideal and material realms, as well as of individualism and collectivism. Particular attention is given to Plato’s theory of inevitable constitutional decline, its causes and potential solutions. Re-examining the classical holistic methodology — where the whole is larger than the sum of its parts — now seems as essential as ever before. Although such an approach is foreign to contemporary world steeped in division and individual’s alienation from nature, society and other individuals, classical holistic principles remain quite relevant, as they are largely aligned with the 20th century notion of sustainable development, which sees economic, social and environmental challenges as intrinsically linked, without dividing them into separate realms. Due to this perspective, the author has been able to come up with a general normative framework that also takes the fields of ethic and aesthetic — separate, but linked by a complex interrelation system — into account.



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ISSN 2713-0525 (Print)
ISSN 2713-0533 (Online)