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Kutafin University Law Review

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Vol 5, No 1 (2018)

LAW IN GLOBAL AND REGIONAL CONTEXTS. SUSTAINABLE DEVELOPMENT AND SOCIAL RIGHTS 

2-20 16
Abstract
The article provides the authors’ original rationale of the concept of inter-branch systems links between labour law and other branches of Russian law. It also addresses the foundation and purposes of inter-branch interaction. Further the authors analyse the forms of such inter-branch relationship, including: subsidiary, parity-based, choice-of-branch regulation of employment & labour relations and suggest respective inter-branch regulatory methods for each of the forms.
21-45 15
Abstract
The growth of the number of persons working in the grey zone between traditional workers and those genuinely self-employed poses the question if EU labour law is still fit for purpose, i.e. providing those in need with the protection they require. Changes either refining the concept of the worker as well as the introduction of a third, intermediary category between workers and selfemployed on the EU-level do not seem too realistic in the near future though. Therefore, one is guided towards the possible activities of the ECJ when called upon to interpret the concept of “worker” in EU labour law.
46-64 11
Abstract
The article discusses recent measures regulating smart working in Italy in the Jobs Act on Autonomous Work, Act No. 81, 22 May 2017. In particular, it examines the problems of compatibility of the new legal provisions with national and European norms and the advantages compared to other flexible work arrangements such as telework.
65-79 13
Abstract
The approval of the European Pillar of Social Rights, by the highest authorities of the European Union in the Social Summit of 17 November 2017, as well as the ever more widespread recommendations by the most important international institutions and organisations, such as UN, ILO, OECD, WB. IMF, are all initiatives and signals that go in the direction of imprinting a profound correction of the current global economic development. Also it is increasingly widespread awareness that improving economy and growth as well as promoting employment and social cohesion depends, ultimately, on the capability of a society to adapt institutions, laws, norms, procedures, industrial relations acts and behaviors to face adequately the new challenges; in other words on the quality of the regulatory system. Labour markets structures are totally involved in such type of issues. Here are the open problems which refer to the relationship between the government and governance of the development processes, two very different concepts and practices. The issue government-governance calls ultimately the system of public-private relationships, roles and responsibilities in the management of the development processes.
80-108 21
Abstract
The article reveals and analyses the key features of the new Labour Code of Lithuania of 2016. The reforms of the Lithuanian labour market were initiated to deal with the issues of the increasing international competition, to find a new balance between the flexibility required by employers and the relevant social security benefits for employees, as well as to bring the law in compliance with the recent developments in the employment sector. At the same time, recodification implies not only changes in the institutions of working hours, protection in the course dismissal, term contract or other atypical forms of employment. The new Labour Code is intended to update the industrial relations on a wider scope: to revive the partnership spirit both on the personal and collective level, to enforce the judicial protection of employees, to ensure a wider application of technologies and human asset investment, to increase the respect for the personality of an employee and his/her family commitments. Changes in the collective representation to boost the collective bargaining process and build up “industrial democracy” in the work place are also called for.
109-138 7
Abstract
The article focuses on the issues arising in the course of arranging healthcare provision for foreign nationals employed in the Russian Federation. The article outlines the range of persons subject to compulsory medical insurance, the procedure and the necessary requirements for obtaining medical assistance. The voluntary medical insurance agreement is presented as a means of obtaining medical care. Healthcare services for employees from Eurasian Economic Union (EAEU) countries are detailed.
139-164 38
Abstract
The award of the 2022 World Cup football to Qatar is highly controversial because of the human and labour rights infringements due to the Kafala-system. The argument in this contribution is though that it has also brought something good, namely it created the momentum for change, in particular, to abolish the Kafala-system. It is difficult to enforce such change through judicial review, as is illustrated by the case FNV c.s. vs FIFA. Soft law procedures, on the other hand, which are based on dialogue, trust and commitment are able to set changes in motions, which is illustrated by the Art. 26 complaint initiated by twelve delegates of the ILO against Qatar and the Specific Instance with the Swiss NCP initiated by BWI against FIFA. This contribution describes the consequences of the Kafala-system, explains why FIFA also fulfils a role in this, even though it concerns the law of the sovereign State Qatar, describes three cases addressing the poor circumstances of the migrant workers in Qatar, and concludes that for these kind of situations soft law proactive processes may be more effective than hard law retrospective judicial review.
165-181 15
Abstract
This article focuses on the study of the problems of legal regulation of payment and settlement system oversight. The results of the study showed certain shortcomings of legal techniques in the sphere of legal regulation of public relations, formed in the process of providing this oversight in the national payment system. These shortcomings arise from inaccuracy and inconsistency of the concept of payment and settlement system oversight, as well as difficulty to establish the precise range of objects of oversight, as well as a number of other challenging issues. In this respect, the author suggests an original definition of payment and settlement system oversight in the Russian Federation, which can be brought into use in the federal legislation. The work makes a distinction between payment and settlement system oversight and supervision, which makes it possible to consider the latter as a separate direction of the control and supervision of the Bank of Russia, the main body of monetary regulation. The article also examines the impact of the Bank for International Settlements (BIS) documents on the process of introducing Russian national legislation into the national payment system oversight, as well as the definition of the subject of assessment conducted during such monitoring. This suggests that the Bank of Russia adequately approaches the implementation of the principles set out in the BIS documents. It introduces the best international practice, with due consideration of features of the legal regulation of public relations developing in the Russian national payment system. Currently, the oversight model in the national payment system fully corresponds to the oversight proposed by the BIS.

GLOBAL DIMENSION OF LAW 

182-197 12
Abstract
The three-part paper analyses important issues in the field of Experts and Expert evidence in the arbitration process in particular problems - both in common and civil law jurisdictions. It covers legal proceedings and arbitrations as well as the limits to the use of Expert evidence. The key point here is that it is an opinion - what the Expert thinks - which is of evidentiary value. Ordinarily, evidence is fact based, not opinion based. Such opinions, therefore, have to reach a very high standard in proceedings where they are used. If judgments and decisions are to be used, and be based upon such opinions, they have to be sound, and be anchored in a real Expertise. Interesting and exciting new directions in case management of such evidence are discussed The overall objective of this paper is to provide the reader with an appreciation of Expert evidence, some of the current debates on its use, and how to challenge it when it is used. The paper also contributes to the current debates on Expert evidence with some observations on how t might be improved.
198-208 17
Abstract
Financial derivatives are complex products of financial engineering. The interest rate swap is a very good example of widely used and very intricate two-way payments financial derivative. Interest rate swaps as other financial innovations posed a number of issues for legal systems and regulations. Among other problems there are problems of substance over form approach, the problem of classification for regulatory purposes, the issues of the replication of traditional financial instruments’ economics. The Application of regulations to interest rate swaps and other financial derivatives require the nature and context understanding of the transactions. It seems that separate transaction method is a prevailing approach to financial innovations. It implies that derivatives should be treated separately from underlying assets and obligations and should not be bifurcated to their economic components as well. Legal differences are not less important than economic similarities. The example of interest rate swap shows the opportunity for recharacterisation of transaction in cross-border situations for general civil law purposes (gambling, insurance), for regulatory and tax purposes.

EUROPEAN LAW CONTEXT 

209-221 22
Abstract
This article discusses issues related to the overall effect of Bulgaria’s accession to and membership in the European Union. The authors analyse the influence as a positive one since it has provided the opportunity for the Bulgarian nation and economy to be involved in a complex economic and legal system regulations as well as an adjustment mechanism. The price for this was paid at every level of the Bulgarian society - the closing of ineffective enterprises, business and public institutions, the loss of jobs and the adjustment of the workforce to unfavourable labour market conditions.

LAW WITHIN EURASIAN AREA 

240-255 25
Abstract
The Northern Sea Route is very significant for the Russian Federation both as a maritime space under its jurisdiction and as a maritime transport highway. Geopolitical, economic, military-strategic, as well as environmental interests of the state are concentrated in the water area of the Northern Sea Route. Russia has a long history of development and legislative regulation of navigation in the water area of the Northern Sea Route. At the present stage of development, the legal regulation of the Northern Sea Route is carried out on the basis of norms of international law and the legislation of the Russian Federation. The effectiveness of legal regulation is equally dependent on compliance with these types of legal norms by all states operating in the water area of the Northern Sea Route.
256-269 9
Abstract
Risk assessment plays a significant role in negotiation and drafting of oil services contracts. There are diverse types of such risks which may occur during production process or compliance with legal regulation adopted in the states where the Contractor has its residence and where it delivers goods or provides services. The Contractor should be aware of sanctions, anticorruption policy and mandatory rules of public law governing taxation, currency control and administrative offences. Although these issues have ancillary character in terms of provision of oil services they should be considered by the parties during negotiations as there are several tactics to address them in contracts. This article will demonstrate how it is important to choose the correct wording in drafting relevant clauses if the Contractor is going to deliver goods and/or provide services in Russia or Central Asia.
270-288 40
Abstract
This paper focuses on competition law issues arising from the existence of the state monopolies in Vietnam. The assertion “the leading role of the state economy” serves as the focal point of the Vietnam’s state monopolies’ formation and development, despite having a number of adjustments in the light of a market economy (with socialist orientation). There are significant concerns with respect to a state monopoly, including, but not limited to, the ‘monopoly existence in general and the close relationship between state monopolies and state management bodies. In this regard, Vietnam’s competition authority, additionally, lacks the independence and capacity of a deal with their anti-competitive practices. The last part of this paper seeks to find answers for the question what needs to be done to address these matters.


ISSN 2313-5395 (Print)
ISSN 2410-2059 (Online)