ACTIVITIES OF THE WTO DISPUTES SETTLEMENT BODY: OVERCOMING DISPARITIES | Author : MAZARAKI Nataliia, GONCHAROVA Yuliia | Abstract | Full Text | Abstract :Background. The crisis of WTO Dispute resolution body, that escalated at the end of 2019, is not only a reflection of the need to reform the WTO’s trade and economic dispute settlement mechanism, but also a reflection of the leading powers of the world tending for towards bilateral trade and economic settlement relations. It can also be assumed that the trade war between the United States of America and the People’s Republic of China, which began in 2018, was, among other things, the result of an inability to effectively and quickly resolve trade and economic disputes based on the provisions of the Understanding on Rules and Procedures Governing the Settlement of Disputes. While avoiding and resolving trade and economic disputes, preventing trade wars are defining functions of the WTO, that is why the efficiency and demand of the WTO dispute settlement mechanism is the key to the functioning of this international organization and the provision of multilateral regulation of world trade and economic relations.
Analysis of recent research and publications. One of the most thorough domestic investigations into the WTO dispute settlement mechanism is considered to be S. Osyka’s scientific work. The specific scientific attention has been given in the context of our study, which directly related to the functioning of the WTO Dispute Settlement Body during 2018-2020, by R. Brewster, T. Adekola etc. Despite the significant amount of research onthe subject, there is room for justification for amending the provisions of the Understanding on Rules and Procedures Governing the Settlement of Disputes.
The aim of the article is to determine the essence of the negative aspects of the functioning of the WTO Dispute Settlement Body in the current geo-economic conditions and to argue the feasibility of amending the provisions of the WTO Dispute Settlement Rules and Procedures.
Materials and methods. The normative basis of the study is the Agreement on Establishing the WTO, the Understanding on Rules and Procedures Governing the Settlement of Disputes, panel reports. The methodological basis of the research was the general scientific and special legal methods of cognition.
Results. The crisis of the WTO Dispute resolution body has been caused by a number of reasons: lengthy dispute resolution procedures low effectiveness of the measures envisaged by the Understanding, in particular, such as temporary suspension of concessions and other obligations under covered agreements, theoretical and unproductive nature of the measures applied to the offenders, since the possibility of avoiding compensation weakens the position of the WTO member concerned in negotiating the amount of compensation, perspective rather than retrospective nature of the measures, which makes it possible to avoid liability for damages, limited scope for applying such a measure as compensation. Another major component of the WTO Dispute Settlement Crisis was the United States’ dissatisfaction with the work of the Appellate Body due to the considerable time spent reviewing the disputes and standards of the body’s decision making.
Conclusion. The events of 2018–2020 call into question the continued decisive role of the WTO in resolving interstate trade and economic disputes and, to a certain extent, the stability of world trade. The negative aspects of WTO dispute settlement outlined in the study, on the one hand, are conditioned by the nature of the organization itself, the need to adhere to the principles of international law, and at the same time a significant factor in reducing the effectiveness of the dispute settlement mechanism. Webelieve that introducing retrospective countervailing measures can indeed deter States from trade wars and balance their position in interstate trade relations. |
| UKRAINE AND THE EU: INSTITUTIONAL AND LEGAL ENSURING TRANSPARENCY | Author : KREGUL Yuriy, BATRYMENKO Vasyl, KOSTIUCHENKO Yaroslav | Abstract | Full Text | Abstract :Background. One of the cornerstones of legal science today is the recent transparency problem. Therefore, the study of the relevant category was carried out by analyzing approaches to understanding the concepts, identifying a number of features and clarifying its meaning for the aim of implementation in the national legislation of Ukraine.
Analysis of recent research and publications has identified the importance of further study of the transparency issue in international cooperation.
The aim of the article is to substantiate the features of transparency ensuring in modern relations between Ukraine and the EU, in particular on issues of cross-border cooperation.
Materials and methods. The methodological basis of the article is the system of general scientific methods of cognition (dialectical method, scientific induction and deduction, method of comparison and synthesis); determining the direct and inverse relationships between economic phenomena and processes, as well as the method of abstraction.
Results. The strategic orientation of the state-legal development of Ukraine, which is integration into the European political, economic and humanitarian space, is considered. The category of "transparency" from the economic, managerial and political-legal perspectives of the research is studied. It has been proved that, from a political and legal point of view, cooperation with the EU can be considered as one, which promotes to deepening democracy and respect for human rights, improving the national legal framework. It is determined that within the framework of cross-border cooperation, the role of a legal institute and a legal regime, created on its basis, composed of a set of legal relations regarding the accessibility of various information subjects may be given to transparency.
Conclusion. Transparency should be a basic principle of international cooperation, in particular cross-border cooperation. Multiple trends have an impact on the state of cross-border cooperation. On the one hand, the country seeks to open its external borders of trade, and on the other – wants to restore the internal economic space in its entirety, by strengthening the external borders. The legislative consolidation of the definition of transparency is not possible because it is a voluntary affair. The transparency limit lies where the trade secret begins. |
| THE EVOLUTION OF CIVIL PROCEDURE AND MEDIATIONS: FOREIGN EXPERIENCE | Author : ROMANADZE Louiza | Abstract | Full Text | Abstract :Background. Ensuring the rule of law and access to justice remains a crucial goal of justice, while changing socio-economic conditions change the way in which such goals are achieved.
The peaceful settlement of disputes is inherent in the Ukrainian nation, so the promotion of mediation can be successful enough in the context of sound legislative regulation, which must certainly consider foreign experience.
The aim of the article is highlighting the decisive trends in civil litigation reform in the United States and EU Member States over the last decade and arguing that it is appropriate to use them in law-making in Ukraine.
Materials and methods. The normative basis of the study is legislative acts of the England and Wales, USA, Germany and France as well as EU legislation and CJEU decisions. The methodological basis of the research was the general scientific and special legal methods of cognition.
Results. The analysis indicates that there are two defining, at the same time, parallel processes: the reform of civil procedural law and the development of mediation legislation, which determines the theoretical and applied relevance of further studies of the interaction between alternative dispute resolution and civil justice. It can be assumed that such interaction can take the following forms: changing the paradigm of the exercise of the right to judicial protection and judicial recourse (in the context of introducing mandatory pre-trial dispute resolution methods); application of a dispute resolution institute with the participation of a judge; development of court mediation. The potential outcome of such engagement should be the further transformation of civil justice towards the prevailing conciliation character of justice.
Conclusion. Ukrainian law-making should be directed to the legislative regulationof the mediation procedure and the introduction of incentives for the parties to the dispute to resort to extrajudicial methods. Building public trust in mediation as one of the most recognized and effective ways of resolving disputes should be a task not only of the mediator community but also of the state. We believe that the introduction of court mediation can be one of the factors of the above processes, but at the same time requires a theoretical justification for observance of the principles of the rule of law and the right to judicial protection. |
| TRANSNATIONAL TRADE LAW AS A FORM OF NORMATIVE SELF-REGULATION | Author : HONCHARENKO Olena | Abstract | Full Text | Abstract :Background. The modern world is a world of alternatives. Such alternatives arise both for certain procedural and substantive rules and for substantive law.
Analysis of recent research and publications. The aspect of Lex mercatoria research through the lens of self-regulation of economic activity remains insufficiently studied.
The aim of the study is to identify the features of transnational trade law (Lex mercatoria) as a form of self-regulation of economic activity.
Materials and methods. General and special methods of knowledge of legal phenomena and processes are used. The main methods used in the work were: dialectical, systematic approach, formal-logical, generalization, comparative law, synergistic. Information base of the research – Principles of international commercial treaties of UNIDROU, Incoterms Rules, Code of Principles, Rules and Requirements of Lex mercatoria CENTRAL, works of domestic and foreign scientists.
Results. Lex mercatoria is an element of the soft law system that has its own peculiarity different from other sources of this system because it is formed taking into account the advantages and disadvantages of international trade.
Today, Lex mercatoria is a globalized system of norms of self-regulation (customs of trade), which is codified at the level of well-known international governmental and non-governmental organizations, research institutes. Lex mercatoria has an important sign of autonomy (it is developed, accepted, codified by a specific community that professionally organizes and organizes international trade). Business entities can choose and choose to apply a self-regulation rule in the form of Lex mercatoria. This is an opportunity to realize the potential of self-regulation. In this case, self-regulatory norms from potentially soft become binding on the parties that have chosen them.
Conclusion. In many cases, when dealing with commercial disputes with a foreign element, Lex mercatoria is used as a regulatory tool for self-regulation. In this case, there is acombination of two means of self-regulation: institutional and regulatory. To date, e-commerce is a source of change in transnational trade law, which is developed and implemented by the entities themselves, that is, international trade participants who are self-regulatory entities. The peculiarity of the new Lex mercatoria is its creation by precedent. |
| FOREIGN ECONOMIC AGREEMENT AND CONTRACT: TERMINOLOGICAL ASPECTS | Author : TYSHCHENKO Yulia | Abstract | Full Text | Abstract :Background. In the national legislation that regulates the foreign economic sphere, the terms «foreign economic agreement» and «contract» are used. Clarification of the content of legal categories, their clear and unambiguous wording is a condition for proper and effective enforcement.
Analysis of recent research and publications. Some domestic scientists paid attention to the study of these definitions in their writings. However, the authors considered these concepts in the plane of the study of foreign economic activity, without focusing on the features of contractual terminology.
The aim of this article is to study the theoretical and legislative aspects of the concepts definition of «foreign economic agreement» and «contract».
Materials and methods. A set of general scientific and special methods of scientific research, such as dialectic, comparative legal, formal logical methods, was chosen as the methodological basis.
Results. Domestic scientists have researched the definitions of «foreign economic agreement» and «contract». Some of them use the concept of «foreign economic contract» in a broad sense. Others consider legal forms «foreign trade agreement» and «contract» as synonyms. Sometimes authors use only the term «foreign economic agreement». In national legislation, various approaches to the application of the terms «foreign economic agreement» and «contract» are observed. The concept of «contract» in Ukrainian law is usually used to determine a particular form of employment contract. However, in some legislative acts we find the use of the term «contract» in the meaning of civil law relations. The Economic Code of Ukraine contains several formulations of foreign economic contractual relations – «foreign economic agreement (contract)», «foreign economic contract», but «foreign economic agreement» is not mentioned. We find a separate use of the terms «treaty» and «contract» in international business practice. We find the similar approach in the national legislations of different states.
Conclusion. In domestic legislation there is inconsistency regarding the use ofthe terms «foreign economic agreement» and «contract». The elimination of certain shortcomings is aimed at unifying these terms in national legislation, their clear and unambiguous formulation will contribute to proper and effective enforcement in the foreign economic sphere. |
| FEATURES OF INHERITANCE UNDER ENGLISH LAW | Author : ILCHENKO Hanna | Abstract | Full Text | Abstract :Background. The long history of the formation and operation of English law, its impact on the development of social and economic relations in many countries, as well as the widespread practice of choosing a place to settle contractual disputes in London, the desire of many people to buy real estate in the United Kingdom of Great Britain and Northern Ireland to obtain the nationality of that country demonstrates the importance and practical value of exploring the features of the process of inheritance under English law, since inheritance issues, both with and without a foreign element, may be borne by foreigners or citizens of the United Kingdom, many unpleasant surprises.
Analysis of recent research and publications. The works of M. Bondareva, V. Vasilyeva, E. Fursa and others are devoted to the problems of the inheritance in the countries of the Anglo-American legal system or the comparative aspects of inheritance with a foreign element.
The aim of the article is a theoretical and legal analysis of the particularities of the inheritance procedure in the United Kingdom of Great Britain and Northern Ireland.
Materials and methods. The regulatory framework for the study is the laws of the United Kingdom (Probate and Legacy Duties Act 1808, Inheritance Act 1833, Inheritance (Provision for Family and Dependents) Act 1975, Inheritance Tax Act 1984, Inheritance and Trustees ’Powers Act 2014) and information is provided on the country’s official government website. The methodological basis of the study was general scientific and special legal methods of cognition.
Results. The process of inheritance in the United Kingdom begins with the need to obtain a court’s endorsement of a will or to obtain special authority (permission) to manage a deceased person’s property in the absence thereof. Unlike in Ukraine, where notaries certify wills and then conduct a succession, in the United Kingdom a person has to go to court. An application for a legal right to dispose of one’s property, money, real estate after the death of a person is called an application for probate by a court (applying for probate). If a person leaves a will, in this case you need to receive a «grant of probate». In the absence of a will, it is necessary to go to court to obtain the authority (permission) to manage the property of the deceased person (letters of administration).
A feature of inheritance in the countries of the Anglo-American legal system is the inheritance of debt-exempt property. As noted above, only after the payment of all the debts of the testator, the executor of the will can distribute the property between the heirs according to the will of the testator. The same rule applies in the absence of a will.
Conclusion. Summarizing the foregoing, it should be emphasized that the inheritance in the United Kingdom has its own characteristics to be aware of who ownsthe property, plans to acquire citizenship or invest in certain projects. There aredifferences in the process of inheritance in England and Wales, Scotland and Northern Ireland.
Also, in contrast to Ukraine, where a notary is a successor, in the United Kingdom,you must go to court to obtain a grant of probate and determine the executors of the will in the United Kingdom, and in the absence of a will, go to court for authorization (permits) to administer the estate of the deceased person (letters of administration) and the appointment by the court of the person of the «administrator» (the administrator), who will distribute the hereditary property in accordance with the law.
It should also be noted the privileged position of the second spouse in the case of officially registered marriage (this applies to same-sex marriage), which can receive all property without paying inheritance tax. |
| STATE SUPPORT FOR THE DEVELOPMENT OF AGRICULTURAL ADVISORY ACTIVITY | Author : MUSHENOK Victor | Abstract | Full Text | Abstract :Background. Overcoming the crisis of the economy of Ukraine is impossible without the legal provision of state interests of agricultural producers. Improving the legal mechanisms of budget support for agricultural advisory activity remains an important part of the problem of legal regulation of relations in the agricultural sector.
Analysis of resent researches and publications. It is established that only some representatives of domestic economic and legal science, such as M. Bloodless, T. Kovalenko, R. Korinets, N. Pokhilenko, L. Taranenko, B. Swanson and R. Rajalahti, J. Gayo and others have some achievements in studying the problems of legal regulation of agrarian advisory relations.
The aim of the article is to characterize the state of legal regulation of budget support for agricultural advisory as an important socio-economic activity for the development of our country and justify the feasibility of further budget support by the state for such activity.
Material and methods. The information base of the research was the current normative legalacts of Ukraine, the works of scientists. The methodological basis of the study was the general scientific and special legal methods of cognition, the use of which provided a high degree of reliability of the results.
Results. The Law of Ukraine «On Agricultural Advisory Activities» defines: advisory as one of the methods of implementation of state policy in the field of agriculture. This law also guarantees the allocation of budget funds for the financing of the state targeted program of agricultural advisory activities. An analysis of the official position of the Ministry of Economy leads to the conclusion that the state does not intend in 2020 to provide state support to entities of advisory activity. The author substantiates the flawed position of the Ministry of Economy and the defense of the position on the provision of state budget support for agricultural advisory activity, as evidence, respectively, statistical material, facts of failure to comply with regulations, and examples of foreign experience.
Conclusion. State support for advisory activities is a way of effectively influencingthe state to raise the incomes of agricultural producers and maintain sustainable development of rural areas. The low level of development of the advisory system in Ukraine impairs the competitiveness of the agricultural sector entities. The domestic agricultural advisory system is to be financed from the state budget in 2020. The proof of the effectiveness of such state support is that government spending on advisory activities can be offset by an increase in agricultural yield and, accordingly, will be repaid due to an increase in the level of tax revenue from agrarian entities. |
| PROTECTING THE RIGHTS OF MINORS WHEN BRINGING TO ADMINISTRATIVE RESPONSIBILITY | Author : VESELOV Mykola | Abstract | Full Text | Abstract :Background. The choice of the topic of the article is dictated by the existence of significant problems and the need to improve the mechanisms of applying administrative responsibility in the juvenile justice system for children on the basis of securing their rights.
Analysis of recent research and publications. Over the last five years, this topic has become the subject of research by O. V. Alekseieva, O. V. Gorbach, Ye. Yu. Kolosovsky,O. O. Kukshynova, M. M. Stefanchuk, O. G. Strelchenko, B. P. Urbansky and more. This article explores those problematic issues that still do not have a proper solution.
The aim of the article is to improve the procedure of bringing juveniles to administrative responsibility in the part of the regulatory definition of the circumstances to be taken into account when imposing administrative penalties or taking measures of influence on children, as well as exempting them from payment of court fees in such types of proceedings.
Materials and methods. The empirical basis of the research was the acts of Ukrainian law, data of analytical and statistical records, case law and scientific works of other scientists. Due to the combination of general scientific and special methods of cognition, it was possible to work out the empirical material and obtain our own scientific conclusions, which correlate with the purpose and tasks of the article.
Results. Attention is drawn to the lack of a clear definition in the legislation and, in the case law there was no unified approach to the circumstances that the court should take into account when imposing or applying measures of influence for administrative offenses against minors. The second controversial issue, analyzed in the article, is the collection of juvenile court fees, which in some similar situations puts them at a disadvantage compared to adult offenders.
Conclusion. According to the results of the study, it is proposed to supplement the Code of Administrative Offenses with a new Article 35-1 «Circumstances taken into account when imposing or applying measures of influence for administrative offenses against minors», as well as to amend the said Code and the Law of Ukraine «On Court Fees» on the release of children from the payment of court fees in all court cases. |
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