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Legal thought: history and contemporarity
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4–24
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The development of state institutions occurs under the pressure of many factors, includingglobalization of the economy, internationalization of law, informatization of public and private life are taking an increasing place. This forces the state to look for new modelsof public administration. Libertarianism, represented by F. Hayek, M. Friedman andmany others, suggests that we go beyond the classical understanding of the role of thestate and focus on the active implementation of certain forms of power deconcentration:deregulation, co-regulation, self-regulation, quasi-regulation. Administrative reform,claimed in Russia, uses almost all of the named forms. The article shows the experienceof their application in law-making and law-enforcement practice. It was proved that manyof the conclusions formulated in the foreign legal science regarding co-regulation andself-regulation could be used in Russian legislation. The article singles out the criteriathat the process of deconcentration of state power must meet: the presentation ofspecial requirements to the institutional basis of forms of deconcentration; subsidiarity atall stages of the management process, including the freedom and responsibility of bothparties; transparency of the system, ensuring public control; indication of all participantsin the managerial process, when everyone should clearly represent expectations of someform of deconcentration of power; ideological support, which assumes both a rationalefor initiating the process of deconcentration, and propaganda of best practices. Theconclusion is that there is no systematic approach to administrative reform in Russia. Itsbasis to the present time is the Presidential Decree of 2003, which did not find its consistentdevelopment in the basic acts of the state bodies. They made attempts to create a quasiministerialin the form of the state corporation Rosatom, while consistently criticizingthe form itself, but creating public-law entities and public firms. It is experimenting withpreferential administrative regimes, using an individual approach when passing laws onindividual participants in the management process (Skolkovo Center, medical cluster,Vladivostok harbor, etc.). Each experiment is not based on well-elaborated concept ofpublic administration reform, adapted to the rapidly changing economic situation. For citation: Romanovskaya O.V. (2019) Deconcentration of Public Administration: Law and Administrative Reform. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 1, pp. 4–24 (in Russian) DOI: 10.17-323/2072-8166.2019.1.4.24 |
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25–44
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The purpose of the research is to determine the macro level elements of the institutionof legal responsibility, their characteristic features and functional interconnections. Suchmethods of analysis as formal legal, comparative legal and historical legal were applied.Philosophical laws of the unity and struggle of opposites and the passage of quantitativechanges into qualitative changes were used. Legal responsibility is one of the centraland dynamically developing inter-sector institutions of law that provides functioningother legal institutions and influences the condition of legality, law and order, as well asexecuting rights and freedoms by citizens. The author emphasizes the need to examinethe institution of legal responsibility as a multi structural unit in its interconnection withall elements of the legal system. The issue of the macro level of the institution of legalresponsibility is studied based on its understanding as an integral legal phenomenon,including positive and negative aspects of its realizations. The author proves that theinstitution of legal responsibility is inter-sector and functional one. At the same time, it hasa complex structure that includes micro and macro levels. The study has determined thatthe macro level of the institution of legal responsibility involves material and proceduralresponsibility; positive and negative legal responsibility. It is revealed the institutionalnature of positive legal responsibility that includes the norms and principles, formalizedprohibitions, obligations and permissions, as well as such a major element as theinstitution of incentives. Considering division of the legal system into private and publiclaw, a conclusion is made that the classification of legal responsibility into public legal and private legal ones at the macro level is not acceptable. The macro level of the legalsystem is not identical to the macro level of the system of legal responsibility. It is arguingthat to the present day the institution of constitutional procedural responsibility has notbeen formed yet. Therefore, it should be viewed as a sub institution of constitutionalresponsibility. Characteristic features of procedural responsibility as well as the featuresthat differentiate it from responsibility in material law are provided. For сitation: Lipinsky D.A. (2019) Macro Level of the Institution of Legal Responsibility. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 1, pp. 25–44 (in Russian) DOI: 10.17-323/2072-8166.2019.1.25.44 |
Russian law: conditions, perspectives, commentaries
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45–70
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The paper reveals main trends in the development of rules on liability of main participantsof corporate relations in the course of civil legislation reform in Russia. Such liability isconsidered as a separate type of civil liability, along with contractual and tort, which hasits own distinctive features, including: a special basis for corporate liability (corporateoffence), the principle of specialness. Corporate liability in this sense is based on theviolation of subjective civil (corporate) rights and corporate duties of a managerial nature.The principle of corporate liability means that liability cannot be of a “general” nature andcomes only for those violations and in relation to those subjects that are expressly statedin the law. Based on this approach attention is drawn to the particular importance ofcorporate civil liability in the system of types of shareholders of commercial corporationsliability. The following types of corporate liability are considered: liability of shareholdersto the creditors of commercial corporations; liability of shareholders to the commercialcorporations themselves; liability of shareholders to other shareholders of commercialcorporations; the liability of shareholders to members of governing bodies of commercialfirms. Each of the above types of corporate liability is analyzed on the basis of legislation,doctrine and the author’s approach to the concept of corporate liability in general. Thepurpose of the article is overview of conditions and issues of legal regulation of varioustypes of civil liability of shareholders of commercial corporations in Russia and thedefinition of directions for its improvement. Based on the study of the Russian doctrine,court practice and taking into account the positive foreign experience, conclusions andproposals were prepared, aimed at improving the Russian legislation on the liability ofshareholders of commercial corporations. It is substantiating a need to establish anequitable balance of interests in corporate commercial relations among all stakeholders,including shareholders, beneficiaries, managers, creditors (including the state). Thebasics of the study are general methods of study (analysis and synthesis, induction anddeduction, system analysis) and methods of legal science (methods of comparative law,literal, systematic, teleological and historical interpretation of legal norms). For citation: Gutnikov O.V. (2019) Corporate Liability of Shareholders of Commercial Companies in Russia: Issues and Prospects. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 1, pp. 46–70 (in Russian) DOI: 10.17-323/2072-8166.2019.1.46.70 |
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71–88
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The paper considers the concept of budget being shaped for 200 years within financiallaw concept. The paper touches upon the evolution of the theory in the Westernstates and the influence of the Western legal scholars on the concept of financial lawand budget theory in Russia. The achievements of Russian researchers are shown, inparticular created by I.T.Tarasov theory of financial laws as a special type of statutesrepresenting the subject matter of financial law. He systematized the concept of financiallaw in postulates: financial laws as a concept in financial law; financial laws as a remedy for treasury rights and taxpayers; financial laws and taxes and duties; financial laws andexpenses; execution of financial laws and state inventory (budget). Tarasov’s conceptinfluences the development of the Russian theory of financial law and the role of statebudget. The author attempts to answer the question what a budget represents in terms ofRussian, Soviet and modern Russian researchers. He shapes his own opinion based onfinancial law, in particular the fact approving budget as a legislative norm legalizes publiccosts and revenues and stresses the social economic relevance of budget as financialplan, guarantee of its absolute execution. The paper concludes that materially budgetlaw is a statute as it is a statute regulating public costs and revenues. Formally, budgetlaw is a document serving as a source of financial and budget law regulating public costsand revenues. For citation: Yalbulganov A.A. (2019) Theory of Budget in the Russian Financial Doctrine. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 1, pp. 71–88 (in Russian) DOI: 10.17-323/2072-8166.2019.1.71.88 |
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89–111
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The article is devoted to the examination of tax compliance as a system for preventingviolations of tax legislation, on the one hand, assessing and managing tax risks, onthe other hand. This approach to tax compliance allows for the examination of both:approaches, aimed at identifying violations of tax legislation, to the assessment of taxauthorities’ tax risks; and taxpayers whose goal is to optimize tax by lawful means. Taxcompliance is analyzed as a system, simultaneously, of preventive and incentive measures of administrative enforcement as well. The analysis of the system of such measures isconstructed having regard to both their purposes and the grounds for their application,the method by which they secure legal order, and the content of the measures in question.This has allowed the author to identify shortcomings in the legal regulation and in thepractice of applying the measures under consideration of administrative enforcement forviolations of tax legislation, as well as to devise and to propose in the article methods forresolving these problems. In the article, a conclusion is reached concerning improperlegal and organizational guarantees of the implementation of the legal status of ataxpayer, a tax agent or a credit institution owing to the absence in tax legislation of adefined and closed (i.e. exhaustive) list of tax risks and criteria for assessing them. Sucha conclusion is made based on systemic legal research of the mechanism of the legalregulation of tax control, specific aspects of organizing it, and the structure and legalstatus of tax control in Russia. Preventive measures of tax compliance are examined aspart of a system of measures of administrative enforcement together with preclusive,provisional, punitive and restorative administrative enforcement measures are appliedfor the violation of tax legislation. At the same time, advantageously for the improvementof tax compliance, the prospects are assessed for a transition from vertical to horizontaltax relationships, i.e. wide implementation of tax monitoring as a method of tax controland a gradual withdrawal from tax audits to the extent that the effectiveness increases ofa risk-oriented approach in tax control. However, all this is possible only if the conceptof lawfulness is unconditionally embedded in the mechanism of legal regulation of taxcontrol, such concept presupposing that all constitutional principles of taxes and levieswill be implemented in legal regulation and law enforcement practice. For citation: Ovcharova E.V. (2019) Tax Compliance in Russia: Balance between Administrative Enforcement and Stimulating Measures. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 1, pp. 89–111 (in Russian) DOI: 10.17-323/2072-8166.2019.1.89.11 |
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112–132
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The article analyzes the aforementioned (but not named in the law) agreement on theprovision (issue) of surety and its influence on formation of the “debtor-guarantorcreditor”relationship. This agreement has not been studied in the civil law, but is of interestfrom practical and academic sides as well. The paper substantiates the inability to matchthe figure in such a relationship of the debtor and the guarantor in one person. Despitethe fact that for the conclusion of the contract of guarantee is necessary to have the will ofa guarantor and the creditor, participate in the normal development of the situation of thedebtor himself in the appearance of the guarantor in the relations is beyond doubt. Sucha relationship between the debtor and the guarantor may be based not only on extra-legalrelations of personal friendliness, service, or related corporate dependence, but can alsoflow from the contract of surety. The article defines the legal nature of the transaction andits similarity to the individual agreements, such as the contract of commission, the paidservices, errands, providing independent assurance. The author comes to the conclusionabout the independent legal significance of contractual regulation of relations arisingbetween the debtor and the guarantor at the stage of formulating the terms of futuresecurity. The possible content of agreement on the provision of surety is determined,in particular, the right to include in such an agreement the terms of the fee paid to theguarantor for the issuance of security, the definition of the amount of the reverse claimof the guarantor to the debtor, etc. is justified. It is also considering issue of the influenceof the defects of the coverage relationship on the fate of issued guaranty, the prospectof contesting the guarantee agreement on these grounds is evaluated. Although theEuropean legal order provides ample protection to non-professional guarantee, incomparison with security given by entrepreneurs or in entrepreneurial activity, in theRussian judicial practice such persistent approaches are no longer fundamental. Thearticle justifies the rationality of the pro-creditor approach in matters of maintainingthe security, despite the existence of explicit prerequisites for recognizing voucheragreement as invalid, including for reasons of fraud or significant delusion. For citation: Trezubov E.S. (2019) The Contractual Regulating Coverage Relationships in Suretyship. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 1, pp. 112–132 (in Russian) DOI: 10.17-323/2072-8166.2019.1.112.132 |
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133–157
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There are two independent systems of legal protection of drugs: state registration ofdrugs and patent protection of drugs in most countries. Due to the common object ofprotection collisions, competition and inconsistency (issues of drug interchangeability,determining the point at which the generic drug manufacturer can begin to take actionsto introduce the drug into circulation, content of such actions, possibility of registering ageneric drug the term of patent for which has not expired, etc.) invariably arise betweenthese systems. One of the legal institutions ensuring the interaction of registration andpatent protection of drugs is the so-called patent linkage. The relevance of the study ofadditional mechanisms for the protection of exclusive rights of manufacturers of originaldrugs during registering of reproduced drugs in the form of patent linkage for Russia isassociated with international obligations. The integration legal regulation ensuring thefunctioning of the common markets of drugs and medical products in the EAEU providesfor establishing the patent status of the drug during registration. As a result of the analysisof the best foreign practices of regulating the registration of drugs from the point of view ofprotecting the exclusive rights of third parties to patents used in them, the main elementsof the patent linkage were identified, including: the additional obligations of applicantsapplying for state registration of drugs, protecting the rights to patents used in registereddrugs; legal mechanisms for preliminary verification of exclusive rights of third partiesfor patents used in registered drugs during applying for registration; state informationsystems containing information about patents used in reference drugs; registration ofdrugs with a deferred introduction into circulation due to the presence of third-partyrights to intellectual property items used in registered products; the applicant’s limitedrights to use the registered drug in the period from the moment of registration with adeferred introduction into circulation until the moment of complete introduction. Based onevaluation of the best foreign practices of regulating procedure for registering drugs andprotecting exclusive rights of third parties to inventions used, proposals were formulatedfor the domestic legal order. For citation: Tsomartova F.V. (2019) On Correlation of Drug Registration and theirs Patent Protection. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 1, pp. 133–157 (in Russian) DOI: 10.17-323/2072-8166.2019.1.133.157 |
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158–175
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The article shows the groups of social relations, which form the subject of sports law.The author analyzes current academic views on this issue, conducts a discussion andproves current legal literature operates on a false notion of what the subject of sportslaw is, according to which it includes relations, connected to sports, but related to thesubjects of labor, administrative, civil, business and land law. Thus, according to the viewof the majority of scholars, sports law is a complex branch of law. The author arguessports law is an independent branch of law and defines its place in the system of Russianlaw. Subject of sports law are social relations in the fitness/sports field (sports relations)in respect to: physical education, athletic performance, conduction of sporting events;providing for fitness and sports activity and international cooperation in the sportssphere; settlement of athletic disputes. Thus, sports relations making up the subject ofsports law should be characterized as organizational sports relations. The connectionsbetween these relations, which make up the subject of sports law, are determined bytheir inherent nature and are of a structural, but not functional, character. The authormakes a distinction between sports legal relations and other types of relations arisingbetween athletic subjects during physical culture and sports activities, in particular,the relations arising in the training process and sporting events, which are not relatedto their organization. Such relations, relating to sport, are regulated not by legal norms,but by the rules of the athletic organizations (sporting rules) and do not make up a partof sports law. It is proving that sports legislation in the sphere of preparing for sportingevents and participation in them (unlike labor law) regulates issues of organizing suchsporting events, and such relations arise not only within the sports organization, butalso on a territorial level (of municipality, region, or Russia as a whole). The subjects ofsuch relations are citizens and organizations are not bound by labor agreements. At thesame time, participation in the training process and competitions it is not considered asobligation of an athlete, but as his right. It is claiming sports relations do not cross pathswith relations regulated by other branches of law. Sports relations have an intrinsic unitywhich comes out of their interconnection and correlation and characterizes the subject ofsports law as a whole formation, which has clear dividing lines from other branches of lawthat affirms its independent nature of sports law. For citation: Buyanova M.O. (2019) On the Subject Matter of Sports Law. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 1, pp. 158–175 (in Russian) DOI: 10.17-323/2072-8166.2019.1.158.175 |
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176–194
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The article analyzes the main approaches to the concept of sports law in the Russian legalscience. As a result of generalizing different opinions on the interpretation of this termfrom the view of such theoretical and legal categories as legal system, system of law andsystem of legislation, it is pointed to several approaches to understanding the essenceof sports law. That law is considered as an integral part of the legal system, branch oflaw, branch of law at the stage of its formation and branch of legislation. The questionabout possibility of recognition of the sports law as a branch of the law is consideredas the most debatable. In addition, it is noted at lack of theoretical development of theapproach to the consideration of sports law as a special component of the legal system.It is making an attempt to reveal more details of this issue. Several theoretical and legalphenomena as parts of the legal system are considered from the standpoint of sportslaw. Among them there are external and internal forms of expression of legal norms, theimplementation of law, legal culture. The author focuses on the important component ofsports and legal culture, i.e. sports consciousness, implying a certain legal mentality in the field of physical culture and sports. A special attention is paid to prospects of sportslaw in Russia as a special cut of the legal system, as a branch of law, and as a branch oflegislation. In particular, the paper touches upon the systematization of sports legislation,modernization of the regional block of legal acts about fitness and sports, improvementof sports and legal consciousness. The article points that the essence of sports law isrevealed also from the standpoint of the academic and educational sphere. In this case,this concept refers to the relevant field of jurisprudence. Conclusions made aboutpronounced debatable nature of the issue about recognizing sports law as a branch oflaw, as well as the lack of theoretical development of the approach to the consideration ofsports law as an integral part of the legal system. Besides, possible directions of evolutionof the sports law in Russia are outlined. For citation: Savichev A.A. (2019) Concept of Sports Law in the Russian Legal Doctrine. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 1, pp. 176–194 (in Russian) DOI: 10.17-323/2072-8166.2019.1.176.194 |
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195–213
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Introducing the institution of neighboring rights in the Russian legislation in 1993,the legislator defined the broadcast as the object of protection, to which the rightsof broadcasting organizations apply. The reform of civil legislation, which led to thecodification of intellectual property rules, also affected the rights of broadcastingorganizations. In the Civil Code of the Russian Federation (Part four), broadcasting orcablecasting of radio or TV programs (broadcasting of broadcasting organizationsor cablecasting organizations) is indicated as the object of the exclusive right ofbroadcasting organizations. However, the legal status of the broadcasts, which arebroadcast by broadcasters, has not fully defined by law. The legal status of the broadcastsin the foreign legislation is also ambiguous. The article identifies legal problems thatarise not only from the point of view of theoretical approaches, but also in the processof law enforcement. If some broadcasts can be audiovisual works and are protectedby copyright, there is less legal certainty regarding sports broadcasts. Since the use ofsports programmes creates a significant economic impact, the number of infringementsincreases through the misuse of broadcasting, and broadcasts in particular. Withdevelopment of information and telecommunications networks, such infringements aremoved to the Internet, where there is a lack of regulation regarding the use of intellectualactivity results of broadcasting organizations. In practice, to combat the misuse of sportsbroadcasts on the Internet, “anti-piracy legislation” is applied, which allows the impositionof prohibitions on the use of information intermediaries, rather than prosecute violators.Some violations of broadcasting organizations’ rights are transboundary, however, theinternational legal framework, in particular the International Convention on the Protectionof Performers, Producers of Phonograms and Broadcasting Organizations, regulates thelegal relationship on the use of broadcasts of broadcasting organizations at the 1961level without taking into account the development of information and telecommunicationsnetworks, not even covering cable broadcasting. Decisions are needed to fully protectbroadcasting on the Internet, both nationally and internationally, and to grant appropriatepowers to broadcasting organizations. For citation: Buzova N.V. (2019) Sport Programs: Issues of Legal Protection and Protection of its Rights. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 1, pp. 195–213 (in Russian) DOI: 10.17-323/2072-8166.2019.1.195.213 |
Inna Panova,
S.V. Sinitsyna
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214–231
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Legal regulation of relations in fisheries and the preservation of fish biological resourcesis inseparable from the state policy in this area, which is implemented within theframework of legal acts determining the development of fisheries as an important branchof the Russian economy and the economy of foreign countries. In turn, the documentsdefining the state policy in the field of fisheries and the development of fisheries, as wellas ensuring the rational use, conservation and protection of aquatic biological resourcesshould be interconnected with the main documents of strategic planning. Recently, theenvironmental law doctrine has paid particular attention to these issues in relation to theformation and implementation of state policy in the field of environmental protection,environmental safety, rational use of natural resources, and environmental management.The strategic (environmental) goal of the state policy in the field of fisheries andconservation of aquatic biological resources is the solution of related socio-economicitems that ensure environmentally safe, qualitatively oriented growth in the extraction andprocessing fish resources, preservation of a favorable state of the environment, biologicaldiversity and natural resources to meet the needs of present and future generations,the execution of the right of every person to accessible biological resources, ensuringenvironmental safety. However, in modern Russia regulatory framework and legalmechanisms that provide protection and rational use of fish stocks and other aquaticbiological resources are not sufficiently developed. The significance of the fishing industryfor the economic development of Russia, not excluding the existence of relevant issues,both in the economic and legal regulation of the field, necessitates solution of the issue,relying upon rich experience of foreign states. This article attempts to analyze foreignand Russian legislation in the field of administrative and legal regulation of the rules offisheries and the protection of fish stocks. In the course of this study, both complianceand different interpretations of the norms of the Russian legislation and states of theCommonwealth of Independent States were established, as well as on the basis of theanalysis of the norms of foreign legislation, regulatory proposals were made for Russianlegislation that are of practical importance, since the protection of fish resources is animportant part of the overall task of protecting the natural environment. Failure to taketimely and appropriate measures to protect natural object leads to its destruction. For citation: Panova I.V., Sinitsyna S.V. (2019) Administrative and Legal Regulation of Fishing and Protecting Fish Stocks: Analysis of Russian and Foreign Legislation. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 1, pp. 214–231 (in Russian) DOI: 10.17-323/2072-8166.2019.1.214.231 |
Law in the modern world
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232–250
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This article addresses the interaction between two important rights established by theUnited Nations Convention on the Law of the Sea 1982 — the right to lay submarinecables and the right to explore and exploit mineral resources of the seabed. The activity oflaying and using submarine cables have been bringing economic and social values for along time already and became an object of international legal regulation which is, though,to date cannot be considered as developed and comprehensive. In contrast, the historyof international legal regulation of the exploration of mineral resources of the seabed isrelatively short. Inside states’ maritime zones this activity is regulated by domestic ruleswhile beyond states’ maritime zones there is a possibility of conflict between interestsof cable industry representatives and those entities who are engaged in the activityrelated to extraction of mineral resources of the seabed. Gradually increasing activity inthe international seabed area could lead to potential conflicts between cable companieslaying submarine cables and subjects developing mineral resources of the seabed sinceboth businesses are conducted at the same sites of the seabed. The United NationsConvention on the Law of the Sea of 1982 does not give a priority to any of the activity inthe international seabed area and there is no guideline on how the potential disagreementbetween cable company and contractor shall be resolved. In this article, the authorsexplore collaboration on how this gap can be filled by the alternative means other thanchanging the text of the Convention mentioned. For citation: Rylova M.A., Shvets D.A. (2019) Laying Submarine Cables and Development of Mineral Resources of Seabed: “at Crossroads of Equivalent Roads”. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 1, pp. 232–250 (in Russian) DOI: 10.17-323/2072-8166.2019.1.232.250 |
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