Problematic issues of submitting of counterclaims in International centre for settlement of investment disputes

The counterclaim institute is one of crucial legal defense options during the dispute settlement in domestic and international jurisdictions; investment arbitration is not an exception. The most famous dispute settlement platform is International centre for settlement of investment disputes (ICSID). One of the key ideas of establishment of such a dispute settlement instrument was an implementation of autonomous and objective system of Investor-states dispte sttlement (ISDS) by the “independent forum”. While procedural rights of ISDS parties are conceptually equal. However, the concept of equal procedural rights of ISDS parties has not been translated into reality. Notwithstanding the fact that the counterclaim institute is an important instrument of ensuring the objectivity and comprehensiveness of the dispute settlement, tribunal`s approaches are “restrictive” and “cautious”.Taking into account that States are “perpetual respondent” in ICSID, problematic issues of submitting of counterclaims influence the realization of interest of the State in ICSID. Problematic issues of submitting of counterclaims clearly show the imbalance of the exercise of procedural rights by the respondent-state.The article is intended to draw the attention of readers to problematic issues of submitting of counterclaims in ICSID and on the alternative view of the isuue.

Ewolucja cywilnych postępowań nakazowych i upominawczych w kierunku respektowania wymogów demokratycznego państwa prawnego

Although writ proceedings in the Polish civil proceedings have been in operation since the beginning of the modern Polish civil process, there are still controversies in the aspect of fairly structured court proceedings. The defendant may be convinced that their procedural rights have been violated. It is a consequence of considering the case without prior notification of the defendant about the initiation of the proceedings. In such an approach, the judiciary may be perceived as not respecting the standards of a democratic state ruled by law. At the same time, to be closer to the notions of a totalitarian or authoritarian state, because it is not the procedural rights of an individual that are primary, but the effectiveness of the authorities’ actions. However, the concerns about the order for payment mechanism are unfounded as long as the model in which the order for payment is applied complies with the necessary requirements. First, the public authority deciding the case should have the attribute of impartiality. It is not necessary that payment orders are issued by a court. However, if the case is not heard by the court, the judicial control of such decisions is necessary. Second, the evidence should not be assessed. The presentation of specific evidence may, however, be a necessary condition for issuing an order for payment. The issue of the public body examining cases is related to the issue of evidentiary proceedings. These two elements define the nature of the order for payment by defining a procedure model. Finally, it should be pointed out that the order mechanism in a democratic state ruled by law should only supplement the examination of cases in ordinary proceedings (or separate proceedings distinguished by the party types). If the number of cases examined in separate proceedings is significant, and even more so if this way of dealing with cases prevails, ordinary proceedings may be merely an illusion. If in a significant number of cases simplified procedures leading to issuing an order for payment are applied, procedural guarantees related only to ordinary proceedings are irrelevant in such cases.

Dispositivity principle in the criminal procedure of Azerbaijan Republic: concept and application in individual rights

Unlike other principles of criminal procedure (such as legality, presumption of innocence, etc.), the principle of dispositivity (the principle of autonomy of the will of a participant in the proceedings) does not have an independent legal formula, enshrined in a separate article in the current criminal procedure legislation of Azerbaijan. In this regard, questions about the existence, concept, content, individual elements, manifestations, and scope of the principle are becoming relevant and at the same time highly disputable. The author aims to determine the essence of dispositivity, to consider its individual manifestations, as well as to develop scientifically sound recommendations for optimizing the application in practice of the norms of the Code of Criminal Procedure in regulating issues related to the dispositive basis of the criminal process. The set goals predetermined solution for such basic issues as study of the philosophical and legal concept of dispositivity; determination of determinants-manifestations of dispositivity in criminal proceedings as a whole; recognition of dispositivity as one of the autonomous principles of the modern criminal process of Azerbaijan. The study was conducted by methods of dialectical cognition based on the principles of reflection, comprehensiveness, unity of induction and deduction, determinism, contradiction, and unity of analysis and synthesis. The author has studied and summarized a great deal of doctrinal material and jurisprudence, and some selected judicial acts have been used as real models for casuistry of the issues addressed in the article. As a result of the study, the author substantiates that, despite the absence of an independent article in the CPC on this principle, dispositivity is an autonomous principle of criminal procedure, not covered by other principles; on the contrary, it enters into various correlative relations with them. In other words, the Code of Criminal Procedure does not provide a binding feature of the principle of criminal procedure. As the main determinants of the principle under study, the author proposes to consider a system of procedural rights of non-governmental participants in the proceedings that have the effect of initiating some kind of proceedings, and the consent of a participant category, which is a mandatory condition in the procedural decision-making mechanism of entities with power.

The Protection of the Fundamental Procedural Rights of Business Entitiesby Applying Sanctions and the Results of the Legal Systematization of These Rights

The present article analyses the extent of influence the adopted Article of the Law on Public Administration of the Republic of Lithuania (Art. 368, currently Art. 37), which systematises the basic procedural rights of business entities, has on the protection of business entities’ procedural rights, which are assured by the Supreme Administrative Court of Lithuania in its case law. The precise provisions invoked as basis for procedural rights protection in the case law of the Supreme Administrative Court of Lithuania regarding sanctions imposed on business entities are showcased. Furthermore, the results and plausible reasons for the application or non-application of procedural rights systematized in the Law on Public Administration are appraised.

The concept and essence of the principle of inadmissibility of abuse of procedural rights in administrative judiciary

The article is devoted to the definition of the peculiarities of observance in administrative proceedings of the principle of inadmissibility of abuse of procedural rights. The concept and essence of abuse of procedural rights in administrative proceedings are clarified, the meaning of the principle of inadmissibility of abuse of procedural rights is established. The legal basis of the principle of inadmissibility of abuse of procedural rights in administrative proceedings is investigated. Based on the analysis of the case law of the Supreme Court, the European Court of Human Rights established the content of the principle of inadmissibility of abuse of procedural rights. The opinion that the abuse of procedural rights is opposed to the conscientious abuse of procedural rights by the parties is substantiated. The author argues that the abuse of procedural rights may be recognized as actions or omissions of a party to the case, which are characterized by a sign of apparent legal legitimacy, but are used for the opposite or inconsistent with the pursuit of the relevant procedural right or obligation. Based on the analysis of the Constitution of Ukraine, international acts, laws of Ukraine and case law, it is proved that the main purpose of the principle of inadmissibility of abuse of procedural rights is to guarantee the fair use of their procedural rights. The author discloses the content of the fair use of the parties' procedural rights, which includes the use of the relevant rights for the purpose for which these rights are granted, and in the manner prescribed by procedural law, as well as conscientious performance of duties specified by law or court. The study made it possible to state that the introduction of the principle of inadmissibility of abuse of procedural rights is important for improving the effectiveness of administrative courts to protect the rights and interests of individuals, public interests and the interests of the state.

Procedural Rights Supporting Expeditious Trials for Juveniles

Delays pending trials can negatively impact juveniles. Encouragingly, the right of juvenile defendants to be tried within a reasonable time has been enshrined in international and regional human rights instruments. To support and strengthen the realisation of this specific right, several additional procedural entitlements, to which existing scholarship has paid limited attention, are of importance. This article focuses on how the rights to an effective remedy and legal representation can support the fulfilment of expeditious trials for juveniles. Furthermore, it analyses to what extent these two identified rights have been incorporated into significant international human rights standards and, specifically, in the Cambodian, Philippine and Vietnamese legislative frameworks. It identifies lessons Cambodia can draw from the latter two countries.

Mogućnost zloupotrebe prava u postupku javnog nadmetanja za prodaju nekretnina u izvršnom postupku u pravu BiH

The primary goal of the reformed enforcement law in Bosnia and Herzegovina (B&H) is efficient compensation. However, many impediments exist. In this paper, the authors present some of the problems and potential abuses of procedural rights in the enforcement law of B&H. Two instances of abuse of rights regarding real estate are presented, which can open the doorway to other abuses, as well. Also, the abuse of procedural rights in the enforcement procedure is seen as underexplored in legislation, doctrine and case law. The paper addresses similarities and differences between the entities’ and the Brcko District legal systems regarding the presented abuses, as well as comparative law. It is focused on the analysis of legislation and the interpretation thereof in light of recent case law in B&H and problems arising from it. The identified problems often prevent the goal of the enforcement procedure from being fulfilled. The paper has two parts, each dealing with one instance of abuse. The first part concerns the engineering of the most favourable offer in the bidding. The second part concerns the problem of a fictional offer to purchase real estate in the bidding and the character of the deposit. The paper provides suggestions for amending legislation based on some good legal solutions in the region.

Legal anomalies within human rights implementation in court: Ukrainian heritage and perspectives

The law is a regulator of relations based on an orderly, generally accepted system of ideas and norms for the behaviour of subjects in a particular relationship. A large number of regulations, which are an external reflection of the content of law, sets the boundaries of such behaviour, but under the influence of relevant factors that have a subjective and/or objective nature, there are cases of deviation from generally accepted regulations, the so-called legal anomalies that occur in the exercise of a person’s rights in court. This article contains an analysis of current legal anomalies that may arise in the exercise of a person’s procedural rights in the administration of justice, given the reasons that provoke their occurrence. Both legal anomalies related to the subject of realisation of rights in court and anomalies that indirectly affect the possibility and completeness of such realisation were subject to research. The authors assessed the phenomenon of abuse of law, legal nihilism of the participants in the process, inconsistencies of judicial practice, etc., in terms of classifying such phenomena as legal anomalies. The possibility of recognising a legal anomaly at the legislative level (abuse of law) and the transformation of a legal anomaly into a rule of procedural law (written proceedings) is investigated. Variants of vulnerabilities of the modern mechanism of administration of justice are offered, where there is a high probability of emergence of new legal anomalies in the sphere of realisation of the rights of the person at protection by a court of the broken, unrecognised, or disputed rights.

ESTOPPEL IN THE CONTEXT OF RUSSIAN CIVIL PROCEDURE: ASPECTS OF THEORY AND PRACTICE

Substantive due process is commonly recognized as fundamental guarantee of a person’s access to justice. One of the main conditions guaranteeing observance of the due process is litigants’ comprehensive sets of procedural rights. Ways in which they can assert their rights should be exhaustively defined as well. The extent of thoroughness of regulation may be different but it may not be absent. In that respect estoppel as a legal principle, which lacks formal requirements in the law, is problematic. The sustainability of judgements which are reasoned by way of employing a broad undefined concept of estoppel is questioned. One of the biggest doubts discussed is the viability of an idea where promissory estoppel is used as a source of a general estoppel concept. It is argued that promissory estoppel being a specific English obligation law instrument cannot be used as a source of limiting procedural rights of litigants. As for estoppel by representation, it can be safely adopted because of its nature as a source of identifying principal issues of fact. It has nothing to do with establishing or banning any personal or procedural rights. But in order to safely implement this type of estoppel it has to be thoroughly considered as to how exactly this instrument of procedure will be married with the current court’s legal duties. It has to decide cases upon all and truly established issues of fact in question. The problem is not a trivial one as even in leading English legal texts it is recognized the contradiction between court’s inquisitorial duties and using of these types of estoppel.

The right to information in criminal proceedings in the context of international legal standards.

It has been noted that such activities are a sphere of public life, which is inextricably linked with the need and possibility of coercion, which clearly indicates the restriction of certain human rights and freedoms to ensure the effectiveness of pre-trial investigation and trial. The provisions of international legal acts proclaiming and ensuring human rights and fundamental freedoms in criminal proceedings have been analyzed. It has been emphasized that in the specified international legal acts there is no interpretation of the right to information, and also it is not considered as the separate right. The essence of the right to information and its place in the system of human rights and freedoms has been determined. The author’s understanding of the concept of the right to information in criminal proceedings has been offered, its content has been revealed and its compliance with international standards of human rights and freedoms has been clarified. The right to information in criminal proceedings has been defined as the possibility and procedure for obtaining, using, disseminating, storing and protecting information provided by the criminal procedure legislation of Ukraine, which determines the principles of criminal proceedings and ensures the solution of its tasks. It has been emphasized that the right to information in criminal proceedings in the context of international legal standards is multifaceted in nature, which allows us to consider it in several aspects, namely as: the basis of criminal proceedings; providing information on procedural rights; informing the person about his / her detention, suspicion / accusation of committing a criminal offense; gaining access to information on material evidence; a ban on the disclosure of information obtained during the pre-trial investigation and court proceedings, and its use not to solve the problems of criminal proceedings.