Sbornik_Mezhdunarodnogo_mezhdistsiplinarnogo_nauchno-prakticheskogo_kongressa_AKTUAL_NYE_PROBLEMY_MEZhDUNARODNOGO_ChASTNOGO_PRAVA_P

Актуальные проблемы международного права

циями1, Следовательно, необходимо обновить морально устаревшее Двустороннее инвестиционное соглашение (ДИС) между РФ и КНР2.

Современное типовое двустороннее инвестиционное соглашение в российском понимании3 приняло комплексную стратегию необходимости, процесса заключения, формы и содержания подобных соглашений в интересах взаимного делового успеха при сохранении национального суверенитета и необходимой правовой гармонизации с совершенствованием кооперации административных органов договаривающихся государств и современной арбитражной оговорки.

Современные международные инвестиционные соглашения с участием китайской стороны достаточно прогрессивны по форме и содержанию: национальный режим и режим наибольшего благоприятствования «справедливый и равноправный правовой режим», разумные ограничения и контроль за иностранными инвестициями, стабильная либерально-рыночная правовая деловая среда, гармонизация правового регулирования иностранных инвестиций с надлежащими международными

1Россия и Китай продлили Договор о добрососедстве и дружбе на пять // РГ: офиц. интернет-сайт от 23.03.2021 URL: https://rg.ru/2021/03/23/Rossiia-i-kitaj-prodlili-dogovor-o- dobrososedstve-i-druzhbe-na-piat-let.html (дата обращения: 24.03.2021) ; Договор о добрососедстве, дружбе и сотрудничестве между Российской Федерацией и Китайской Народной Республикой от 16.07.2001 // МИД РФ. 2020 URL: https://www.mid.ru/web/guest/maps/cn/-/asset_ publisher/WhKWb5DVBqKA/content/id/576870 (дата обращения: 24.01.2020) ; Совместное заявление Российской Федерации и Китайской Народной Республики к двадцатилетию подписания Договора о добрососедстве, дружбе и сотрудничестве между Российской Федерацией

иКитайской Народной Республикой от 28.06.2021 // Президент России : офиц. сайт. URL: http:// static.kremlin.ru/media/events/files/ru/hkwONx0FSpUGgXPaRU3xUHRmkRneSXIR.pdf (дата обращения: 10.09.2021).

2Соглашение между Правительством РФ и Правительством Китайской Народной Республики о поощрении и взаимной защите капиталовложений: международный договор от 09.11.2006 // Бюллетень международных договоров, 2010. № 2. С. 21. URL: https://www. mid.ru/ru/foreign_policy/international_contracts/2_contract/-/storage-viewer/bilateral/page- 1/45914?_storageviewer_WAR_storageviewerportlet_advancedSearch=true&_storageviewer_ WAR_storageviewerportlet_sdAttr_countries_key_field=%D0%9A%D0%98%D0%A2%D0%90% D0%99&_storageviewer_WAR_storageviewerportlet_fromPage=search&_storageviewer_WAR_ storageviewerportlet_sdAttr_subjects_key_field=%D0%9F%D0%9E%D0%9E%D0%A9%D0%A0%D 0%95%D0%9D%D0%98%D0%95+%D0%98+%D0%92%D0%97%D0%90%D0%98%D0%9C%D0%9D% D0%90%D0%AF+%D0%97%D0%90%D0%A9%D0%98%D0%A2%D0%90+%D0%9A%D0%90%D0%9F %D0%98%D0%A2%D0%90%D0%9B%D0%9E%D0%92%D0%9B%D0%9E%D0%96%D0%95%D0%9D %D0%98%D0%99&_storageviewer_WAR_storageviewerportlet_andOperator=1 (дата обращения: 10.09.2019).

3О заключении международных договоров Российской Федерации по вопросам поощрения и защиты инвестиций : постановление Правительства РФ от 30.09.2016 № 992 // URL: http:// pravo.gov.ru/proxy/ips/?docbody=&nd=102412234&rdk=&backlink=1 (дата обращения: 10.01.2020).

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органами координации и управления экономической интеграцией, а также большой вариативностью разрешения споров и страхованием от некоммерческих рисков1.

Подводя промежуточные итоги обзорного исследования двустороннего нормативного правового регулирования в области инвестиционного сотрудничества, следует заметить, что данные международные соглашения устанавливают лишь самые общие нормы-принципы и нормы-цели с установлением институциональной системы в области политических форумов и встреч, а также постоянных двухсторонних межправительственных консультативно-координационных организаций. Остальное пока продолжает быть вотчиной национального права. Это лишь отражает политизированность, формальную и институционализированную слаборазвитость китай- ско-российских отношений всеобъемлющего стратегического взаимодействия и партнерства даже в новую эпоху, что обусловлено прежде всего экономической слабо развитостью взаимоотношений РФ и КНР.

1 EU — China Comprehensive Agreement on Investment (CAI): международное соглашение от 22.01.2021 // European Commission. 2021. URL: https://trade.ec.europa.eu/doclib/press/index. cfm?id=2237 (дата обращения: 22.09.2021). Regional Comprehensive Economic Partnership (RCEP) Agreement : международное соглашение от 15.11.2020 // RCEP. 2021. URL: https://rcepsec.org/legaltext/ (дата обращения: 22.09.2021).

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СЕКЦИЯ 6

PRIVATE INTERNATIONAL LAW TALKS

Гаджиэменов А. Б.,

студент

Рашитханов Р. С.,

студент Университет имени О.Е. Кутафина (МГЮА)

Москва

Gadzhiemenov A. B., student

Rashitkhanov R. S., student

Kutafin Moscow State Law University (MSAL) Moscow

Legal framework for

the International Commercial Arbitration in Saudi Arabia

The present paper analyses the basis for the development and the current legal framework for arbitration in the Kingdom of Saudi Arabia and it gives an outline of key legislation in the field of arbitration.

Introduction

Saudi Arabia’s economic growth and influence have increased dramatically in recent decades. It became one of the world’s major oil-exporting countries as well as an important participant of the international commodity market. According to the UNCTAD report, Saudi Arabia’s foreign direct investment was 8.1 billion USD in 20151.

As reported by Doing Business 2020, a World Bank Group flagship publication, Saudi Arabia ranks third in protecting minority investors2. It also plays a leading role in the Organization of the Petroleum Exporting Countries (OPEC).

These factors such as economic expansion, increased foreign investment and international trade have all been factors of the emergence and further development of arbitration in Saudi Arabia.

The fact that arbitration is recognised by Shariah as a method for the settlement of disputes is also an important reason for the rapid development of arbitration in Saudi Arabia3.

1World Investment Report 2015: Reforming International Investment Governance // United nations conference on trade and development UNCTAD 2015. P. 14–65.

2World Bank. 2020. Doing Business 2020. Washington, DC: World Bank. DOI: 10.1596/978-1-4648- 1440-2.

3Z. Al-Qurashi; «Arbitration under the Islamic Sharia» TDM 1 (2004) // URL: www.transnational- dispute-management.com/article.asp?key=43 (accessed 04.03.2022).

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The popularity of the KSA as a place for international arbitration is proved by statistics released by the International Chamber of Commerce (ICC). According to ICC statistics, the KSA is at 11th position in the worldwide nationality ranking1.

Moreover, arbitration was the leading method of resolving disputes between Saudi and foreign companies from the beginning of oil exploration until the 1950s. However, that changed dramatically after the Saudi Arabia v. Arabian American Oil Co. (ARAMCO) arbitration award2 in 19583.

The main issues

Notwithstanding its deep roots, arbitration in the Kingdom transformed into a new, modern form of the ADR. However, practitioners should be mindful of some certain aspects of arbitration in Saudi Arabia.

For example, some categories of disputes are considered as non-arbitrable in Saudi Arabia and must be litigated only in the local courts4. In addition, there is a high risk that an arbitral award may not comply with Islamic Shariah law, which may have an impact upon arbitral awards and its enforcement. Claims including interest, liquidated damages, loss of chance and consequential losses are not Shariah compliant. As regards procedure, the principles of Shariah might be breached if a tribunal permits a witness to give evidence without taking oath, or if the application of the rules would deprive a party of the opportunity to set out its case in full.

International players do not consider Saudi national courts as an effective instrument for resolving potential commercial disputes because of the following legal requirements, that complicate the dispute resolution process:

(1)a person who practices law must be a Saudi national and a resident of the Kingdom5

(2)the language of proceedings and legislation is Arabic6.

Given the fact that arbitration provides the parties with much greater party autonomy and recent reform made Saudi Arabia more «arbitration friendly», ADR became the preferred method of resolution of commercial disputes between international business parties in the Kingdom.

1ICC Dispute Resolution 2020 Statistics, ICC Publication No. DRS895 ENG // URL: www.iccwbo. org/dr-stat (accessed 04.03.2022).

2Saudi Arabia v. Arabian American Oil Company (Aramco) (1958) // 27 International Law Reports 117 (1963).

3Al Sewilem, Mohammed (2012) The legal framework for foreign direct investment in the Kingdom of Saudi Arabia: theory and practice. PhD thesis. SOAS, University of London. DOI: https:// doi.org/10.25501/SOAS. 00017354.

4Quinlan H, Al-Amr AA, Peters A and Alayoni A, ‘Arbitration procedures and practice in Saudi Arabia: overview // Practical Law, 2017.

5Code of Law Practice, article 3(a), Royal Decree No. (M/38)28. Rajab 1422H (15 October 2001).

6Basic Law of Governance. Royal Decree No. A/90. 27th Sha’ban 1412H (1 March 1992).

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Legislation in the Kingdom

Starting to analyse the legislation on commercial arbitration, it is worth noting that the KSA is a party to many international treaties and conventions. One of the most significant changes in the field of arbitration was the Saudi accession to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) in 1994 and the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States 1966 (the ICSID Convention). Saudi Arabia is also a party to a number of other conventions1.

The KSA has also ratified 21 out of the 24 bilateral investment treaties. It has signed and is a contracting party to a further 13 treaties containing investment protection provisions out of which eight are in force.

Recent changes in the regulation of commercial arbitration in Saudi Arabia were made by the adoption of the KSA Royal Decree No. M/34 dated 16 April 2012 («Arbitration law») which replaced the former thirty-year-old arbitration law, which was lacking in detail and did not contain limits on the scope of judicial review of awards. One of the new Arbitration law’s aims was to enhance Saudi Arabia’s standing as a potential place for international arbitration.

The new law generally changed the state’s approach to arbitration. It applies to domestic and international arbitrations seated in the Kingdom. Parties can also agree to the application of the new Arbitration law to international commercial arbitration proceedings conducted outside of Saudi Arabia.

The law is based on the UNCITRAL Model Law on International Commercial Arbitration. However, the law has additional provisions made to ensure that the arbitration process does not violate the principles of the Islamic Shariah upon which the Saudi legal system is based (Article 2, 25).

For arbitrations seated in the Kingdom, a sole arbitrator (or president in the case of a tribunal consisting of more than one arbitrator) must hold at least a university degree in Shariah law (Article 14). This eliminates the highly controversial requirements from the previous law, which were based on ethnicity or race.

Arbitration awards rendered in accordance with the provisions of the Arbitration law are not subject to appeal in Saudi Arabia, except for an action to nullify an arbitration award filed in accordance with the provisions of this law (Article 49). A competent court may nullify an arbitration award if:

(i)the award violates the provisions of Sharia and public policy in the Kingdom (which in practice are one and the same thing)

(ii)the subject matter of the dispute cannot be referred to arbitration under the arbitration law.

1 The Convention on Judicial Cooperation between States of the Arab League 1983 ; the Convention of the Arab League on the Enforcement of Judgments and Arbitral Awards 1952 ; the GCC Convention for the Execution of Judgments, Delegations and Judicial Notifications 1996.

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The Saudi Center for Commercial Arbitration

The first arbitration institution in Saudi Arabia named Saudi Center for Commercial Arbitration («SCCA») was established by KSA Cabinet Decree No 257 on 15 March 2014 and opened in Riyadh in 2016.

The SCCA is, in their own words,

»…dedicated to providing professional, transparent and efficient ADR services. SCCA services are inspired by Sharia principles and meet international standards. SCCA shall contribute in enhancing ADR awareness in order to create safe investment environment that attracts both domestic and foreign investments»1.

The SCCA administers arbitration and mediation procedures, and its arbitration rules (published on 15 October 2018) are largely based on the UNCITRAL Arbitration Rules which means that they would be familiar to international arbitration practitioners. The center became a preferred port of call for business parties wanting assistance to resolve disputes in Saudi Arabia.

Conclusion

The perception of arbitration in the Kingdom as unfriendly is gradually changing. Most notable in this context is that the state sought to bring the legislation on arbitration in line with international standards. The Kingdom’s path to codified law will increase the reliability of procedures and promote legal certainty.

Practice has shown that arbitration awards can be enforced in Saudi Arabia2. The government, which had a negative attitude towards arbitration for a long time, is gradually liberalizing legislation on dispute resolution. The reasons for this were economic factors and, of course, the desire of the new Saudi government to modernise their legal system in general and ensure adherence to global best practices.

Горюнов В. А., Ушакова В. Д.,

студенты Университет имени О.Е. Кутафина (МГЮА)

Москва

Goryunov V. A., Ushakova V. D., students

Kutafin Moscow State Law University (MSAL) Moscow

Conflict of laws regulation of cross-border relations between parents and children

Cross-border relations between parents and children belong to the objects of private law regulation. These relations can be complicated by a foreign element also,

1SCCA profile // URL: https://sadr.org/assets/uploads/SCCA_Profile_EN_2021.pdf (accessed 04.03.2022).

2Saudi courts oversee arbitrations, rulings worth billions // URL: www.arabnews.com/ node/1969451/saudi-arabia (accessed 04.03.2022).

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consequently, they are included in the subject of private international law. The most complex legal regulation in the field of child-parent family relations is typical for issues of cross-border adoption. At the same time, in case of complications of such relations by a foreign element, the conflict-of-laws method of regulation is mainly used.

Conflict of laws are fixed both at the supranational level and at the domestic level (for instance, in national acts). An example of the first category of sources for the Russian Federation is the Minsk Convention (1993). Under the article 32 of this act rights and obligations of parents and children are determined by the legislation of the contracting party in whose territory they have permanent joint residence. In the absence of such, mutual rights and obligations are determined by the law of the country of which the child is a citizen. In cases of legal relations between parents and children, the court of the State whose legislation is subject to application is competent. Regardless of the nationality of the child, the law of the State in whose territory he permanently resides is applied when executing court decisions in cases related to the upbringing of children and at the request of the plaintiff for alimony obligations.

However, the key problem is that the norms of the Minsk Convention are mostly of a fairly general nature. Specific rules for the choice of applicable law and the definition of competent jurisdictional authorities are fixed in other international treaties. An example is the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, developed within the framework of the Hague Conference, which Russia ratified with a number of reservations in 20121. As the name of the Convention implies, its provisions make it possible to determine the State whose authorities are competent to take measures to protect the person and property of the child, the law applied by such authorities, the law applicable to «parental responsibility», also the articles of the Convention are aimed at ensuring the recognition and implementation of measures to protect children in all Contracting States and the establishment of cooperation between their bodies necessary to achieve the objectives of the Convention (Part 1 of Article 1)2. The term «parental responsibility» used in the text of the Convention means parental authority and other relations defining the rights and obligations of parents (other legal representatives) concerning to the child’s personality and property (Part 2 of Article 1).

The experience of applying the norms of this Convention is known in Russian judicial practice. So, in the autumn of 2013, the Moscow City Court, guided by the requirements of the Convention, issued a ruling on the compulsory execution on the territory of the

1Federal Law «On the Accession of the Russian Federation to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children» dated 05.06.2012 № 62-FZ // URL: https://rg.ru/2012/06/08/ deti-dok.html.

2«Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children» (signed in The Hague on 19.10.1996) // URL: https://docs.cntd.ru/document/499023340.

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Russian Federation of a court order of the High Court of England and Wales dated 04.06.20131. The background and essence of the case were as follows. In 2004, a marriage was concluded in Austria between Ilya Neustadt (born in the USSR, but at a young age taken by his parents to Germany, where he received German citizenship) and an American Rachel Elizabeth Rapp. Subsequently, the family moved to Switzerland, where a son, Daniel Jacob, was born in 2006, and two years later, Jonathan. At the beginning of 2011, the Neustadts moved permanently to London, where the couple had their youngest child, Meir. All three sons received American citizenship at birth, and Jonathan also received German citizenship2. Soon Rachel, taking the children, left her husband. Their marital relationship has virtually ceased.

On March 31, 2011, the District Court of the Willesden district of London issued an order prohibiting the father from taking the children from the supervision of the mother. The only exceptions were meetings with children previously agreed with the mother in writing. Ilya Neustadt, in turn, filed a counterclaim, in which he asked to expand his right to participate in the upbringing of children. As a result, the court gradually expanded the powers of the father, issuing separate orders with the consent of the mother, and a year later determined the temporary order of communication between the father and the children, according to which the boys had to spend part of the New Year holidays with their father from 2012 to 2013. Rachel agreed to the trip of the eldest sons with their father to relatives in Russia during the holidays. In addition, Ilya convinced his wife to consent to the registration of Russian citizenship for Daniel Jacob and Jonathan, citing the complexity of obtaining and the high cost of Russian visas.

At the end of the holidays, Neustadt did not return to London with the children, but presented his wife with the ultimatum: either she should move to Russia with him, or she would not see the children again. The reaction of the British side was as follows — the District Court of the Willesden district in the next session canceled all previously issued orders allowing father visits with children, and transferred the case to the High Court of England and Wales on generic jurisdiction. In March 2013, the Neistadts’ marriage was officially dissolved, and in June the High Court issued an order according to which Ilya Neistadt was obliged to return the children to London. However, Neustadt voluntarily refused to comply with the court’s requirements, and on June 28, on the basis of the 1996 Convention, Rachel appealed to the Moscow City Court with a petition in accordance with Chapter 45 of the Civil Procedure Code of the Russian Federation for recognition and enforcement in Russia of the order of the High Court of England and Wales of June 4, 2013. In autumn, the Moscow City Court issued a ruling on the enforcement of the order. The process of returning Daniel Jacob and Jonathan home was delayed for another six months, because their father hid their location. Nevertheless, the story

1Appeal ruling of the Moscow City Court of November 20, 2013 in case No 11-35494/2013 // URL: http://www.consultant.ru/.

2Egorov I. A. Judged in English. Russian judges for the first time confirmed the decision of their colleagues from London // Rossiyskaya Gazeta — Federal Issue. 2013. No 205(6181).

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ended well, in July 2014, the order of the High Court was executed, and the children and their mother returned home1.

Unfortunately, not all such stories have a happy ending, and the problem of child abduction is acute in society. In order to counter this practice, the Convention on the Civil Aspects of International Child Abduction of 1980 was adopted at The Hague Conference (ratified by Russia). The Convention makes it possible to ensure the immediate return of children in case of their illegal presence in the territory of a Contracting State (paragraph a of Article 1), approves the criteria for the illegality of the transfer or retention of a child (art. 3), defines the competence of the bodies responsible for implementing the provisions of the Convention (Chapter II), regulates the procedure for the return of children (Chapter III) and regulates a number of other issues2. It is noteworthy that the application of the Convention ceases when the child reaches the age of 16 (Article 4), while the absolute majority of such acts protect the rights of the child until his majority.

In our opinion, all the examples listed above illustrate conflict-of-laws regulation at the international level. Domestic regulation of cross-border child-parent relations in our country is carried out in accordance with Article 163 of the RF IC, the provisions of which are similar to the norms of the Minsk Convention of 1993 regarding the choice of applicable law in determining the rights and obligations of parents and children (in the case of their joint or separate residence), alimony obligations and other relations between parents and children at the request of the plaintiff. It should be noted that the possibility of applying legislation at the request of the plaintiff is not an obligation, but the right of the court, and it will make the final decision taking into account the interests of the child. Article 164 of the Family Code duplicates the provisions of the Convention on Alimony Obligations of Adult Children and Other Family Members3.

In order to protect the rights and interests of children, conflict-of-laws regulation also covers the relationship of establishing and challenging paternity (motherhood). According to paragraph 1 of Article 162 of the RF IC, the establishment and challenge of paternity (motherhood) are determined by the legislation of the state of which the child is a citizen by birth. Thus, if the child is a Russian citizen by birth, this article refers to Chapter 10 of the Family Code, which establishes the procedure for establishing the origin of children. In turn, art. 31 of the Minsk Convention also indicates the need to apply the law of the Contracting Party whose citizen the child is by birth.

In conclusion, we want to demonstrate three main conclusions on this topic. Firstly, the process of recognition and enforcement of court decisions in the presence of a foreign element in the relationship between parents and children is currently still difficult due to many conflicts. Secondly, in view of the geopolitical issues of the process of implementing

1Zakharina M. M. Gaps in Russian legislation create difficulties in the application of the Hague Convention of 1996 // Advocate Newspaper. 2015. № 8 (193).

2«Convention on the Civil Aspects of International Child Abduction» (signed in The Hague on 10/25/1980) // URL: https://docs.cntd.ru/document/1902309.

3Viktorova N. N., Dmitrieva G. K. Decree. op. P. 290.

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international treaties into their own legislation, the effectiveness of which has long been confirmed in practice. Thirdly, the unwillingness of countries, including Russia, to ratify some significant international treaties containing important unified conflict of laws rules slows down the unification process as a whole, which will cause new conflicts to arise in determining the applicable law. Therefore, the Russian Federation should take into account the methods proposed above for resolving conflicts in cross-border relations between parents and children in order to ensure comprehensive protection of their rights and legitimate interests.

Додон Д. А.,

студент Университет имени О.Е. Кутафина (МГЮА)

Москва

Dodon D. A., student

Kutafin Moscow State Law University (MSAL) Moscow

Is cryptocurrency a way to technically

and legally circumvent the sanctions for Russia?

Cryptocurrency is a digital currency, a relatively new alternative to electronic or fiat money used in P2P transactions, in most cases within a decentralized system. One of the main features of cryptocurrency is the decentralization, because tokens are created and moved by loose, decentralized networks of individual computers based in dozens of countries. Therefore, transactions can be quick and in theory are free from control by intermediaries, such as banks, which can be regulated by national governments. Thus, cryptocurrency was designed as a modern way for people to use deliberately their financial assets on their will.

In spite of all cryptocurrency’s unique characteristics, today we are witnessing persistent tendencies towards centralization of the cryptocurrency transactions. Prerequisites are the adoption of new laws in different jurisdictions, which oblige crypto exchangers that conduct transactions in that area, to comply with the new rules. Usually, such rules relate to several procedures, such as Know your Costumer (hereinafter KYC), legal registration of the exchanger, responsibility for notifying law enforcement of suspicious transactions, etc. For example, in the US, the Financial Crimes Enforcement Network (hereinafter FinCEN) required all the entities that deal with convertible virtual currency (hereinafter CVC) on the territory of the US, to register as a Money Services Business (hereinafter MBS), in order to not fall under suspicion of illicit trading.

The sanctions imposed by the global community had a huge impact not only on Russian economy, but also on the world. The main task of the sanctions is to maintain the restrictions imposed and file down all the loopholes so that the subjects from sanctions

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