INTERNATIONAL COMMERCIAL ARBITRATION AS A SELF-REGULATORY INSTITUTION | Author : HONCHARENKO Olena | Abstract | Full Text | Abstract :Background. It is important to determine the features of international commercial arbitration as a procedural means of self-regulation. Is international commercial arbitration able to provide effective protection to businesses in today’s environment, considering the challenges of the digital economy (which is the most dynamic self-regulatory mechanism), environmental changes, hybrid wars, and so on?
Analysis of recent research and publications.The issues of principles, elements and other features of arbitration self-regulation have not been properly investigated.
The aim of the study is to determine the features of international commercial arbitration as a self-regulatory institution.
Materials and methods. During the study, both general scientific and special methods of cognition were used: dialectical, systemic, synergetic, formal-logical, generalization, functional, comparative jurisprudence. Information base of the research – international agreements, national legislation, decisions of international commercial arbitration courts, decisions of state courts, works of domestic and foreign scientists.
Results. International commercial arbitration is an autonomous, unique system with special laws of origin, formation and development. This tool was created as a unified dispute settlement mechanism that is clear and convenient for the business community of all countries. International commercial arbitration has a sign of adaptability, which is emphasized by the speed and flexibility of improving the legal regulation of its activities by relevant self-regulatory organizations.
Challenging, recognizing and enforcing the decisions of international commercial courts are proceedings that are related to the state judicial system, so the elements of self-regulation of arbitration are quite few.
Dispute settlement in a hybrid war can be called a «hybrid investment dispute» or a «hybrid commercial dispute», depending on the subject matter of the dispute.
Conclusion. The arbitration court, which is part of the system of institutionalization of self-regulatory mechanisms, has taken one of the important places and points to the ability of business to resolve disputes independently, without resorting to government instruments.
Functional purpose of international commercial arbitration as a self-regulatory institution: to change quickly and at the same time to be a universal and clear procedure for business originating from different countries. |
| THE UNIVERSAL MEDIATOR’S CODE OF ETHICS: UTOPIA OR REALITY? | Author : ROMANADZE Luisa | Abstract | Full Text | Abstract :Background. The entry into force of the United Nations Convention on International Settlement Agreements Resulting from mediation (Singapore Convention) has given new impetus to discussions among scholars and practitioners on the content and essence of the concept of «standards for mediators or mediation procedures» (p. «E» Part 1 of Article 5 of the Singapore Convention), as well as the feasibility of agreeing on universal standards of mediation and professional conduct of the mediator.
The aim of the article is to determine the expediency of unification of ethical norms of professional conduct of a mediator at the international level.
Materials and methods. The normative base of the study consists of international treaties and UNCITRAL model laws, mediators’ codes of ethics, foreign legislation. The methodological basis of the conducted study were general scientific and special legal methods of cognition.
Results. The nature and essence of mediation as a flexible and informal method of dispute resolution determines the formulation of its ethical provisions mainly within the framework of «soft law» («codes of ethics of mediators», «mediation rules», «professional standards of mediators») mostly at the national or institutional level. Nevertheless, the gradual popularization of mediation in resolving international commercial disputes leads to discussions about the feasibility of formulating certain «global» codes of ethics for mediators.
The existence of various forms and content of codes of ethics for mediators, which are somewhat difficult to unambiguously interpret and evaluate for the non-mediator community, including judges, in particular when assessing the grounds for refusing to implement an international agreement on mediation, respectively to the provisions of paragraph «e» Part 1 of Art. 5 of the Singapore Convention.
Conclusion. The development and adoption of universal norms of professional ethics of mediation will obviously lead to heated discussions and debates in the mediation community, which always supports the flexibility of this procedure and the avoidance of formalization. However, in the conditions of legal uncertainty regarding the standards and norms of professional ethics of a mediator, the implementation of the idea of adopting a universal Code of Disclosure can be a good guide for the domestic mediation community. Moreover, the adoption of a certain universal standard of professional ethics of a mediator in the form of a Code of Disclosure will eliminate the problem of uncertainty for the judiciary in resolving the issue of lack or existence of grounds for refusing to implement international dispute settlement agreements under paragraph «e» of Part 1 of Art. 5 of the Singapore Convention. At the same time, the solution of this problem will clearly contribute to the further intensification of ratifications of the Singapore Convention and, as a consequence, the realization of the goals set during its development and signing. |
| THE INSTITUTE OF PRIVATE PROPERTY | Author : ZAKHARCHUK Andriy | Abstract | Full Text | Abstract :Background. The institution of private property is constituted as a component of inalienable natural human rights, a guarantor of freedom and equality of subjects of public relations. This mechanism works objectively, regardless of the aspirations of the individual or the state. Therefore, the implementation of these relations requires legal protection of property.
Materials and methods. The theoretical basis of the article are scientific works of scientists, normative methodological – general scientific and special legal methods of cognition.
The aim of this paper is an analysis of the definition of «private property»as a category, which is caused both by the development of human civilization as a whole and the specifics of its design in Ukraine, as well as the mechanisms for its protection.
Results. The definition of «private property»as a legal category due to the development of human civilization as a whole and the specifics of its constitution in Ukraine. Theoretical and legal substantiation of the phenomenon of «private property», in its modern sense, was preceded by the development of ideas about the nature, content, role and functions of private property. One of the factors that led to the progress of social relations was the transition from collective to private ownership.
Conclusion. The evolution of the institution of private property reflects the mechanism of integration of the individual into society and, subsequently, separation from him as a gradual and long process. The society of Ancient Rome formed the institution of private property, which was implemented in the system of European law. It is based on the idea of individual freedom.
In a market economy based on private ownership of the means of production, the economic mechanism operates without external state intervention. It does not require additional incentives to make a legitimate profit, special legal mechanisms other than the protection of property and the performance of the contract. Therefore, in modern European law, the concept of positive obligations of the state is aimed at protecting the institution of property rights, an effective component of which is the European Court of Human Rights.
Therefore, the concept of positive obligations of the state in the field of human rights in general, and the institution of private property, in particular, requires a deep understanding of the decisions of the ECtHR and consistent implementation in the legal system of Ukraine. |
| ORGANIZATIONAL AND LEGAL FORMS OF LEGAL ENTITIES: ENGLISH AND UKRAINIAN LAW | Author : ILCHENKO Hanna | Abstract | Full Text | Abstract :Background. Among the many issues raised in the field of scientific discussion, it is necessary to highlight a critical view of how the Civil Code of Ukraine regulates the legal status of legal entities and their types. Given that one of the tasks of working group on recoding (updating) the civil legislation of Ukraine is to conduct a comprehensive analysis of existing civil law of Ukraine and identify areas of private law relations that need to be brought into line with global trends in private law, it is advisable to analyze the types of legal entities under English law.
Theaim of the articleis a comparative analysis of the legal regulation of types of legal entities in Ukraine and the UK in the context of the proposed recoding of the Civil Code of Ukraine.
Materials and methods. The normative base of the study is the Acts of Ukraine, Acts of the UK and information provided on the official government website of the country. The methodological basis of the study were general scientific and special legal methods of cognition.
Results. The Civil Code of Ukraine does not provide an exhaustive list of types of legal entities under private law, which in turn leads to confusion and uncertainty. Types of legal entities are scattered under various regulations. In general, Subsection 2 of the Civil Code of Ukraine, entitled "Legal Entities", has undergone significant changes since the adoption of this Code. When studying the main types of legal entities regulated by current legislation, taking into account the existing terminological discrepancy between Civil Code of Ukraine and Commercial Code of Ukraine, should be taken as the basis of the norms of the Civil Code of Ukraine. However, consider in which area these legal entities operate and whether they are for profit.
Among the most common forms of legal entities in the world are joint stock companies and limited liability companies.
Conclusion. Given the commitments made by Ukraine in signing the Association Agreement, as well as trends in the Europeanization of private law in post-Soviet countries, it is appropriate to update the Civil Code of Ukraine to take into account a number of aspects proposed by the author of this article. |
| INFORMATION AND LEGAL RELATIONS ON THE INTERNET | Author : NESKORODZHENA Larysa, LYTVYN Yulia | Abstract | Full Text | Abstract :Background. The course of digitalization necessitates effective legal regulation of this process. It is worth noting a significant number of challenges that arise in the development of information relations, which necessarily require proportionate control by the government. At the same time, it is extremely important to ensure the rule of law, create an effective mechanism for the protection of rights and ensure a balance of public and private rights.
An analysis of recent research and publications showed that despite the large number of scientific sources that study the information society and Internet relations, this topic has not yet been fully explored.
The aim of the article is the information society and Internet relations.
Materials and methods. In the course of the research general and special methods of cognition of legal phenomena and processes were used: dialectical, system approach, formal-logical, generalizing, comparative jurisprudence. The information base of the article is the information legislation of Ukraine, the decisions of the European Court of Human Rights, the works of domestic scientists.
Results. To address issues of legal regulation, information relationships related to the use of the Internet are necessary, firstly, to consider the content and features of regulation of the information society in general, and, secondly, to pay attention to the peculiarities of regulating relations, related to the network Internet. It should be noted that it is implied that the legal relations that arise in this area are governed by the rules of both public and private law, i.e. the rules of various branches of law. In Ukraine, there is no single normative document that would regulate the issues of information society and information relations.
Conclusion. It is worth noting the obvious need to improve the legal regulation of information relations that are formed in the process of using the Internet. In addition to the problems and challenges described above, this is also due to the globalization of information technology, significant socio-economic changes in society, digitalization of public authorities and local governments, the rapid development of international economic relations using global computer networks and more. Currently in Ukraine there is virtually no effective, legally established legal mechanism for information security in the network, which increases the gap between our country and most developed countries in the level of implementation of information and communication technologies. |
| CONTRACT OF PURCHASE AND SALE OF GOODS: GENERAL RESTRICTIONS ON SELF-REGULATION | Author : BABADZHANIAN Haiane | Abstract | Full Text | Abstract :Background. The article considers the peculiarities of the restriction of the contract of sale of goods in the field of management. The treaty is a unique mechanism of private law, which gives its participants a wide freedom of action, gives the opportunity to act as a kind of "legislators" for themselves, but within the limits set by law.
Analysis of recent research and publications. The issue of self-regulation is the subject of discussion by many scholars and practitioners. The topic of improving the modern domestic system of normative self-regulation is being actively discussed in scientific circles. However, in the considered works the main attention is paid to self-regulation of the contract and contractual relations in general. Such a means of normative self-regulation as a contract of sale has not been given sufficient attention, which is the scientific novelty and relevance of the article.
The aim of this article is to determine the content of the restrictions of such a means of regulatory self-regulation as a contract of sale in the field of management.
Materials and methods. The information base of the article is the civil and economic legislation of Ukraine, the decisions of the Supreme Court, the works of domestic scientists. In the course of the research general scientific methods of cognition of legal phenomena and processes were used: dialectical, formal-logical, comparative, method of generalization.
Conclusion. Self-regulation of the economic contract is limited by the imperative norms defined in the legislation. The self-regulation of a commercial contract is most clearly manifested in the fact that the parties can independently determine the terms of the contract and at the same time set restrictions on it. It is concluded that the contract of sale of goods is a kind of economic contract, and therefore it has both general features of regulatory self-regulation, features of self-regulation of the economic contract and specific features of self-regulation, which are decisive only for the sale of goods. |
| MEDIATIONIN POLITICAL CONFLICTS | Author : MOZHAIKINA Olena, KONONETS Olena | Abstract | Full Text | Abstract :Background. Conflict is an essential element of social relationships. Along with the progress of the society, the number of conflicts and their varieties is increasing instead of decreasing. Regardless of the material component or relationships, the cost of unresolved conflicts is high.
Analysis of recent researches and publications. Currently, numerous researches are devoted to political conflicts and mediation. Despite the close attention of scholars to this problem, the specific of the mediation used in political conflicts is left out of consideration.
The aim is the definition of the role and opportunities of mediation in resolving political conflicts. This aim requires for research based on the analysis of scientific doctrines in political science, sociology and law, as well as the analysis of Ukrainian legislation and relevant mediation practices used in political conflicts.
Materials and methods. The research process involves a set of modern scientific methods of understanding reality, combining general and special methods of cognition. Methods of analysis and synthesis, generalization, comparison allowed to obtain scientifically substantiated results.
Results. The study identified the features of political conflict, which include: numerous participants; publicity; and also, that the relationship of power and subordination is the basis.
The analysis of the categories "political conflict" and "mediation" allowed to identify a separate type of mediation - political mediation, which means a separate type of mediation with its acceptable features, principles and rules, aimed at resolving the political conflict between political actors and with the involvement of the third neutral party (mediator).
It was determined that the main principles on which mediation is based include: voluntariness, awareness, neutrality, impartiality and independence of the mediator, confidentiality, equal rights of participants, activity and self-determination of the parties (principle of personal responsibility) and structure.
Conclusion. A particularly dangerous social phenomenon is a political conflict, which as a result of its escalation can negatively affect not only its parties but also other individuals and/or groups, as well as affect economic, social and other spheres of life. One of the most effective ways to resolve a political conflict is mediation, which has its own characteristics and rules. At the same time, it should be noted that the specific features of political conflict must be taken into account by experts in the field of mediation. |
| PEACEFUL ASSEMBLIES IN UKRAINE: ENSURING THE RIGHT | Author : ALIONKIN Olexiy | Abstract | Full Text | Abstract :Background. The formation of normative and legal support for the human right to peaceful assembly in Ukraine is an important element in the formation of the Ukrainian people in the process of building Ukraine as a democratic, social and legal state.
The aim of the article is a theoretical and applied understanding of the meaning of the concept of "human right to peaceful assembly" and the state and prospects of its legal support in Ukraine.
Materials and methods. The information base of the study is the Constitution and laws of Ukraine and the work of scientists. The methodological basis of this scientific article is a number of philosophical, general scientific and special scientific methods and principles.
Results. It is determined that the modern theory of constitutional law and the Constitution of Ukraine on the human right to peaceful assembly in general corresponds to the content of international human rights standards. A partial analysis of the current Ukrainian legislation to ensure the relevant law in our country was performed. Certain shortcomings and significant gaps have been identified.
Conclusion. The content of the right to freedom of peaceful assemblies enshrined in the Constitution of Ukraine needs to be adjusted in accordance with leading international agreements on this issue. Today in Ukraine there is an urgent need for the adoption of the Law of Ukraine on Peaceful Assemblies. |
| CIVIL SOCIETY IN A PANDEMIC | Author : BONDARENKO Nataliya | Abstract | Full Text | Abstract :Background. Today, it is important to track new directions in the development of civil society in the context of the COVID-19 coronavirus pandemic, both nationally and internationally. We see that civic activity and volunteerism are expanding within the country, and in the global space there is a revision of civil rights and freedoms, the de-intensification of international non-governmental cooperation. Therefore, it is important to conduct a comprehensive analysis and identify those institutional systems that need to involve civil society to remain effective in combating the coronavirus pandemic, as well as an equal partner with the state in building a post-pandemic world order.
The aim of the article is to analyze changes in the institutional systems of civil society in the context of the spread of the coronavirus pandemic, to establish new tools so that it remains effective in combating COVID-19 and maintains a balanced partnership with the state for further effective post-pandemic world order.
Materials and methods. The methodological basis of the study were general scientific methods of cognition: dialectical, comparison and synthesis, scientific induction and deduction, the method of abstraction.
The information basis of the article is Ukrainian and international regulations, national statistical and factual data, which contain scientific literature and periodicals.
Results. In a pandemic, it is advisable to talk about a systemic public-civil partnership. Since its announcement (March 2020), the world community has been subjected to severe restrictive quarantine measures to preserve the health of the population. History has shown that pandemics can have more devastating effects than war and natural disasters. Population mobility turned the epidemic into a pandemic, globalized it, which meant the globalization of the fight against it. WHO and the Ministry of Health have developed clear hygiene rules, additional social and economic requirements, which required the subjects to respond adequately and seek new opportunities for development in a crisis. The pandemic became an indicator of the formation of civil society and intensified the volunteer movement in Ukraine. In the context of the epidemic, the national government was unable to properly address all the socio-economic problems that arose. The experience of developed democracies, which actively involve civil society in solving the problem, has become indicative.
Conclusion. Thus, the world community has demonstrated that civil society remains effective in combating the coronavirus pandemic, and maintaining an equal partnership between the state and the community during the development of a post-pandemic world order is possible only in countries with developed democratic traditions. |
| EUROPEAN STANDARDS FOR ENSURING THE RIGHTS OF SUBJECTS OF CRIMINAL OFFENSES | Author : NIKITENKO Victor | Abstract | Full Text | Abstract :Background. The topical issue is to ensure and protect the rights of subjects of criminal offenses in accordance with the provisions of international legal acts (treaties), which must be implemented in domestic criminal law and implemented with the help of relevant institutions.
The aim of the article is to determine the European standards of ensuring and respecting human rights and fundamental freedoms of the subject of a criminal offense and their enshrinement in the legislation of Ukraine.
Materials and methods. Current international legal acts, legislation of Ukraine, criminological conceptual apparatus. The methodological basis is a number of general scientific, special criminal law and criminological methods.
Results. A person who is prosecuted has human rights and fundamental freedoms defined by international legal acts (treaties), except as provided by law. Ensuring such rights and freedoms is based on a number of European conventions and declarations, which are embodied in domestic criminal law and reflected in the theory of criminal law as principles of criminal law and sentencing. First of all, European legal standards are implemented in the form of principles of sentencing, which guarantee the observance of the rights, freedoms and legitimate interests of the subjects of criminal offenses.
Conclusion. The domestic legislator should determine the set of the most important principles of sentencing in accordance with international legal acts and enshrine them in the Criminal Code of Ukraine, including the principle of humanism. |
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