Том 3_Актуальні питання державотворення_КНУ_2016

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Article 2 of the Convention incorporates three principles: positive duty to protect life; a negative obligation to refrain from the unlawful taking of life; a positive duty to carry out an effective investigation when an individual has been killed.

Regarding this, we can define positive and negative obligations of the state. As it is seen a state should not only refrain from the intentional and unlawful deprivation of life, but should also take appropriate steps to safeguard lives of people within its jurisdiction in particular by issuing effective criminal law provisions backed up by law-enforcement machinery. That being so, the domestic authorities have as their «primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person», but also «the duty to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual» [Osman v. the United Kingdom, 28 October 1998, §115].

Jean-François Akandji-Kombe defines four situations, where the state unconditionally has a duty to protect life: where death is caused by agents of the state, where it is the result of risks arising from the activity of public authorities, where it is caused by third parties, or by the victim himself or herself [Akandji-Kombe J.-F. Positive obligations under the European Convention on Human Rights. A guide to the implementation of the European Convention on Human Rights / Council of Europe: Human rights handbooks, 2007. - Р. 23-26]. Before examining these cases, it should be noted that certain factors are excluded from the scope of Article 2 §1.

The first factor that is excluded from the positive obligation to protect life is the right to die. The question arises if one can consider that the right to life ensured by the Convention also has a negative aspect, which would oblige the domestic authorities to take positive measures to assist a person to end his/her own life? That was the question raised in the case of Pretty v. the United Kingdom, where British authorities refused to permit her husband to kill her. The

Court‘s answer was negative: «no right to die, whether at the hands of a third person or with the assistance of a public authority, can be derived from [it]» [Pretty v. the United Kingdom, 29 July 2002].

The second factor excluded from the positive obligation to protect life conserns the foetus‘s right to life. This question was examined in the Boso v. Italy and Vo v. France cases. In these cases the Court was asked to say whether abortion could be regarded as an infringement of the right to life of the foetus. In both cases it declined to decide that, in view of the diversity of legal conceptions and cultures existing in Europe, determining the point at which life begins must be subject to a margin of appreciation for states. However, the Court came to the conclusion, that a foetus cannot from the standpoint of the Convention, be regarded as a protected legal person towards whom the state has obligations.

Now I want to examine cases, when state unconditionally has positive duty to protect the right to life. For example, let us take a situation, when a person is killed by agents of the state, in particular in the course of police or security operations, the state is held responsible for failing in its duty of non-interference. To this negative duty, case law has added a positive obligation, essentially linked to the supervision of operations of this kind. The state has a duty to organize its legal system so as to strictly supervise the action of law enforcement agencies and permit effective control of them [Nachova and Others v Bulgaria, 6 July 2005]. The European Court went even further and set forth an obligation to provide suitable training for members of the police and security services. In similar situation the Court examines the general context of the operation, the measures taken, the orders given and the information supplied to

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agents, the hierarchy, in order to conclude if there was ―absolute necessity‖ for the use of force within the meaning of Article 2 paragraph 2 of the Convention.

The second case, when the state may also be held responsible is when it failed to prevent risks arising from the acts of public authorities (L.C.B. v. the United Kingdom, case concerned nuclear tests carried out by the British government). The Court considers that in such circumstances – where the public authorities themselves engage in dangerous activities – they incur certain obligations to safeguard people‘s lives, while adopting suitable regulations governing the licensing, informing the public of the risks incurred, etc.

In addition, the last obligation of the state is to protect individuals in their relations with others. As the right to life is an individual right, to satisfy the claim, concerning the infringement of the right, the European Court on Human rights (hereinafter – the Court) after careful examining of the facts in every single case should establish that «the authorities knew or ought to have known at the time of existence of a real immediate risk to life of an identified individual from criminal acts of a third party, and that they failed to take measures within the scope of their powers which might have been expected to avoid risks» [Osman v. the United Kingdom, 28 October 1998, §57]. So, article 2 does not mean that an impossible burden to protect every single life is imposed on the state.

The question also arises whether the first sentence of Article 2, paragraph 1 of the Convention applies to suicide. As to the principle, the Court has ruled that this provision does not imply recognition of a right to death [Pretty v. the United Kingdom, 29 July 2002]. However, at the same time, can this be interpreted as imposing on the state a general obligation to prevent all suicides in society? The question will only arise if the person concerned is under surveillance or in the care of the public authorities. This applies to persons in custody, to persons doing military service.

In conclusion, I want to emphasize on the significance of the positive obligations of the state in accordance to the protection of the right to life and the importance to interpret this obligations correctly by national authorities and the Court in order to minimize risks and to protect people‘s lives and other rights covered by the Convention.

Науковий керівник – к.ю.н, ас. Ромащенко І.О.

Oleksandr Melnyk

Taras Shevchenko National University of Kyiv, Law Faculty 2nd year Master’s student

CCBE's Guidelines on Legal Professional Secrecy

The joint voice of legal professionals across Europe is represented by the Council of Bars and Law Societies of Europe (―CCBE‖). It was founded in 1960 for studying, consulting and providing representation with regard to problems and opportunities arising from the Treaty of Rome, 1957, which established the European Community.

Stanley A. Crossick, practicing lawyer from the American Bar Association, characterized CCBE as ―strictly a liaison committee, officially recognized by the European Community authorities as representing the practicing legal profession‖ [Stanley A. Crossick, The CCBE:

An EEC Bar Association, 67 A.B.A. J. 170]. Nowadays, this Europe-wide independent professional association of lawyers consists of bars and national associations of lawyers from 45 European countries, with 32 of them being full members, other 10 (including Ukraine) having a status of observers and the remaining 3 acting as associated members.

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The issues related to professional secrecy of lawyers have always been among concerns and core interests of CCBE. In particular, it is shown by the content of fundamental acts adopted within the CCBE: the Declaration of Perugia on the Principles of Professional Conduct of the Bars and Law Societies of the European Community, adopted on October 16, 1977, the Code of Conduct for European Lawyers, adopted on October 28, 1988, and the Charter of Core Principles of the Legal Profession, adopted on November 25, 2006.

First time in modern history the fundamental ideas of the European legal community on professional secrecy rules were listed in the Declaration of Perugia on the Principles of Professional Conduct of the Bars and Law Societies of the European Community. Recognizing the fundamental value of the professional secrecy, the Perugia Declaration, inter alia, enshrined: ―It is of the essence of a lawyer's function that he should be told by his client things which the client would not tell to others, and that he should be the recipient of other information on a basis of confidence. Without the certainty of confidentiality there cannot be trust. The obligation of confidentiality is therefore recognized as the primary and fundamental right and duty of the profession‖.

However, the European lawyers found that the Perugia Declaration was insufficient to guide the whole European professional legal community. Hence, after the Perugia Declaration, next document trying to uniform the European understanding of the legal professional secrecy was the Code of Conduct for European Lawyers.

Actually, creating such an ethical code was one of the main goals of CCBE‘s functioning.

The work on the Code of Conduct was launched in May 1982 after the CCBE at its meeting in Athens decided to ―consider the feasibility of establishment of a code of conduct that would act as a set of principles to be translated into a disciplinary code in each Member State‖ [John

Toulmin, On the CCBE after Lisbon, Laws. Eur., Nov. / Dec., 1992, at. 674]. The final edition of the Code of Conduct for European Lawyers was presented to the CCBE Plenary Session in October 1988 in Strasbourg, were it was adopted by a unanimous vote.

In its Article 2.3.1, by giving further life to the Perugia Declaration‘s notions and principles, the Code of Conduct for European Lawyers enshrines that: ―It is of the essence of a lawyer‘s function that the lawyer should be told by his or her client things which the client would not tell to others, and that the lawyer should be the recipient of other information on a basis of confidence. Without the certainty of confidentiality there cannot be trust. Confidentiality is therefore a primary and fundamental right and duty of the lawyer. The lawyer‘s obligation of confidentiality serves the interest of the administration of justice as well as the interest of the client. It is therefore entitled to special protection by the State‖. The last sentence added to this Article, in comparison to the respective statement of the Perugia Declaration, means that legal professional secrecy shall not be merely a principle declared by lawyers‘ community, but rather an effective instrument for protecting client‘s interests protected by the state.

Articles 2.3.2-2.3.4 of the Code of Conduct for European Lawyers further prescribe: ―A lawyer shall respect the confidentiality of all information that becomes known to the lawyer in the course of his or her professional activity. The obligation of confidentiality is not limited in time. A lawyer shall require his or her associates and staff and anyone engaged by him or her in the course of providing professional services to observe the same obligation of confidentiality‖.

By this statement scope, temporal and subjective spheres of legal professional secrecy were firstly defined, which was further upheld in national legislation of most European countries.

And the last cornerstone act establishing rules on lawyers‘ professional conduct within the

CCBE is the Charter of Common Principles of the European Legal Profession. It was

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unanimously adopted on November 25, 2006 and contains the list of ten uniform principles, which are common to the whole European legal community. The principle ‗b‘ – one of ten of the Charter‘s principles states: ―[The core principles are, in particular], the right and duty of the lawyer to keep clients‘ matters confidential and to respect professional secrecy‖.

The Commentary to the Charter explains this principle as follows: ―The rules of ―legal professional privilege‖ prohibit communications between lawyer and client from being used against the client. In some jurisdictions the right to confidentiality is seen as belonging to the client alone, whereas in other jurisdictions ―professional secrecy‖ may also require that the lawyer keeps secret from his or her own client communications from the other party‘s lawyer imparted on the basis of confidence. Principle (b) encompasses all these related concepts – legal professional privilege, confidentiality and professional secrecy. The lawyer‘s duty to the client remains even after the lawyer has ceased to act‖.

By this concise but sufficiently formulated principle the Charter of Common Principles of the European Legal Profession has covered the core and vital aspects of the professional secrecy, which are common for all lawyers across Europe: firstly, the dualistic character of the professional secrecy – as the lawyer‘s obligation corresponding to the fundamental human right of the client and, secondly, the three-dimensional essence of professional secrecy, as the lawyer‘s obligations vis-à-vis client (confidentiality), vis-à-vis court (legal privilege) and vis-à- vis professional community (professional secrecy of lawyers). Therefore, Ukrainian professional and academic community shall adopt this experience and implement it in the professional discussion steering from the current approach of the legal professional secrecy merely in two aspects - as lawyer‘s and client‘s secrecy.

Науковий керівник – к.ю.н., доц. Кухнюк Д.В.

Oksana Myronets

National Aviation University,

Educational and Research Institute of Law

Senior Lecturer

A concept to implement a protective function of administrative law

A protective function of administrative law provides protection of legal relations that are regulated by this field of law, rights, freedoms of subjects of this kind of relations in case of their violation. In accordance with our point of view its implementation consists of fixation of measures of legal responsibility for administrative offences on the legislative level and determination the effectiveness and law enforcement activity to bring offenders to justice in the limits of administrative responsibility. Based on the specified a protective function of administrative law operates continuously while administrative law and regulated by it relations exist, but the nature of its implementation depends on subjects‘ behavior of administrative relations.

In our opinion the implementation of a protective function of administrative law is a concept that goes beyond its understanding only as a ―reaction‖ on violation of regulations of the investigated area of law. It is important to note that in case of violation of legal norms the protective nature of a protective function begins to work, but it does not mean that before a fact of an offence it did not work.

We believe that understanding of the implementation of the protective function just as an administrative law enforcement process due to violation of regulations, of course, is an element of validity, but does not take into account the breadth of this function in a society.

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We think that determination of the fact and measures of administrative responsibility on the level of legislation plays very important role in the implementation of the function of administrative law and it is the stage of its implementation. According to V. Zinchenko there is no need to understand the protective function of law only in connection with a made offence. The fact of prohibition or sanction makes a serious impact on some people, motivate them to refrain from committing punishable acts [Зінченко В.М. До питання про сутність і значення охоронної функції права // Часопис Київського університету права. – 2012. – № 3. – С.

47].

The mentioned above also provides an opportunity to understand how protective rules of administrative law make general social influence i.e. their informational, evaluative and orientational, educational functions. Determination of measures of administrative responsibility and its procedure on the legislative level gives information for subjects of administrative relations. In this case the fact of the information and the ability to know it clearly indicate that the protective rules of administrative law make their informative function. In addition, at the moment when a subject of administrative and legal relations begin to know the information an internally conscious process of its evaluation is made, which ultimately results in orientation of a subject on legitimate or illegal type of his behavior in the future. The mentioned above suggests that protective rules of administrative law make the evaluative and orientational function.

In some way the information that protective rules of administrative law contain, as well as its evaluation by a subject of administrative and legal relations have educational character for the mentioned subject. The fact that the choice of an internal attitude to the mentioned information is made by an individual on the base of his understanding of legal culture and legal consciousness. In this case, the impact of protective norms of administrative law has the task to make the influence on the person‘s choice of lawful behavior i.e. that the information is designed to prevent negative interest in human‘s consciousness to brake a legal rule. A fact of person‘s awareness that in case of breach of a certain regulative norm of administrative law definite measure of administrative responsibility may become and about its procedure may change a choice of person‘s legal behavior from illegitimate to legitimate. The mentioned above indicates that protective rules of the investigated sphere of law, of course, perform educational functions. I should be added that, in our opinion, bringing a person to administrative responsibility is the part of implementation of the protective function of administrative law too, but in this case it has a very close relationship with the educational function of this type of legal responsibility.

The mentioned above shows the importance of further investigation of the implementation of the protective function of administrative law because its efficient work promotes ordering of administrative relations, properly protection of rights, freedoms and creation appropriate conditions for the implementation of legal duties by subjects of this type of relations. We consider that understanding of the implementation of the protective function of administrative law as just enforcement process due to violation of regulations is incomplete. The implementation of this function must be understood as a phenomenon that consists of determination of measures of administrative responsibility for administrative offences on the legislative level and also determination and effectiveness of legal enforcement and prosecution activity to punish an offender according to administrative legal norms.

Науковий керівник – д.ю.н., проф. Бородін І.Л.

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Анна Мовчан

Київський національний університет імені Тараса Шевченка, юридичний факультет студентка 2 курсу ОР «Магістр»

Piercing the corporate veil: perspectives of application in Ukraine

The issue of creditors‘ protection from unfair debtors that try to avoid responsibility, abusing the form of legal entity remains open. The paper describes piercing the corporate veil doctrine as one of the most effective instruments for such protection. Besides, the work contains analysis of the elements of veil-piercing in the Ukrainian legislation and explains necessity of implementation of the doctrine.

The term ―piercing the corporate veil‖ means legal decision of the court, based on the certain factors to lift the ―corporate veil‖ that divides rights and liabilities of the company and its owners or shareholders. Factors that make courts to piece the corporate veil differ from county to country, but usually they are: fraudulent actions, undercapitalization, misrepresentation and absence of corporate records. It should be noted, that cases when courts pierce the veil is exceptional and the burden of proof is high.

Elements of piercing the corporate veil provided in paragraph 6 Article 126 of the Commercial Code of Ukraine. In case of insolvency and bankruptcy of the company caused by actions or omission to act of a holding company, the latter bears subsidiary liability for obligations of this company. But usually parent companies do not preserve any evidences of illegal decisions or manage them indirectly. This causes practical impossibility of proving fraudulent actions in the court.

According to Ukrainian legislation, there is no difference between "non-autonomous" and "autonomous" company, except that the company, which has acquired more than 20 or more percent of the shares in the charter capital of limited liability company or additional liability company, or 20 or more percent of common shares of joint stock company is obliged to publish this information in the manner prescribed by the law (paragraph two Article 118 of the Civil Code). However, the law does not specify this requirement, so it is unclear how and when this information should be made public. Paragraph four Article 126 of the Commercial Code prescribes that information about dependence of the subsidiary should be indicated in the record of its state registration and published in accordance with the law. At the same time, according to the explication of the Ministry of Justice there is no responsibility prescribed by the law for failure to provide information about owners of the qualifying amount of shares

Щодо подання відомостей про кінцевих бенефіціарних власників (контролерів) юридичної особи державному реєстратору: Лист Міністерства юстиції України від 27.11.2015 №1032/1375-0-2-15/8 // Законодавство України Електронний ресурс. –

Режим доступу: http://zakon5.rada.gov.ua/laws/show/v1032323-15 .

The procedure of bankruptcy in Ukraine is known as not transparent and overlong. This is hardly a stretch to say that it does not protect the rights of creditors. In practice, it is hard to prove that the actions of the holding company led to the insolvency of corporate companies. Moreover, this rule applies only to holding company that is "public limited company, which owns, uses and disposes holding corporate block of stakes (shares) of two or more corporate enterprises" (part four Article 1 of the Law of Ukraine "On holding companies in Ukraine"), while the number of public limited companies in Ukraine is relatively small - even large enterprises choose limited liability company or private limited company.

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Progressive steps were taken in 2015 with the adoption of amendments concerning responsibility of persons related to bank. According to the paragraph six Article 58 of the Law of Ukraine ―On banks and banking activities‖ the person, related to bank, whose actions or omission to act caused damages to bank is responsible by his own assets. If actions or omission to act of the person, related to bank caused damages to bank and other person associated with this actions or omission to act received pecuniary benefits, those persons are jointly and severally liable.

Paragraph five of the Article 52 of the Law of Ukraine ―On the system of guaranteeing deposits of private individuals‖ contains the corresponding provisions: The Fund or the authorized person of the Fund, in case if the assessed value of assets, approved by the Fund, is less than creditors‘ demands, included to the registry of accepted creditors‘ demands, applies to related to bank person, whose wrongful actions or omission to act caused damages to bank, and related to bank person that because of these actions or omission to act directly or indirectly obtained pecuniary benefits, with demand to indemnify damages caused to bank. If the requirements were not satisfied the Fund may appeal to the court.

In the perception of the National bank of Ukraine, disclosure of the real owners of Ukrainian banks will help to the Fund of guaranteeing deposits of private individuals and prosecution authorities find persons liable for causing insolvency of banks НБУ заявив про завершення основного етапу розкриття власників українських банків // Інформаційне агентство УНІАН. – 04.04.2016 Електронний ресурс. – Режим доступу: http://economics.unian.ua/finance/1309261-nbu-zayaviv-pro-zavershennya-osnovnogo-etapu- rozkrittya-vlasnikiv-ukrajinskih-bankiv.html .

Even though the first steps were taken, there is a big gap between theory and practice. The mechanism of its application by courts is not elaborated. Therefore, the implementation of piercing the corporate veil doctrine as one of the instruments of creditors‘ protection into Ukrainian legislation can solve outstanding issues.

Науковий керівник – к.ю.н., ас. Ромащенко І.О.

Ievgeniia Olkhovyk

Taras Shevchenko National University of Kyiv, Law Faculty 2nd year Master’s student

Corporations according to German legislation

The timeliness of the topic of corporations according to the German legislation is caused by the tendency and need of bringing the Ukrainian legislation into compliance with the legislation of European Union. Whereas the most frequent examples of the national legislation on the territory of the European Union are France and Germany in the following article we will have a look at the latter one.

To begin with we shall clarify what the corporations are. It is worth mentioning, that there is no precise single definition made in the German legislation and the definitions that can be concluded from the notions mentioned in Commercial Code of Germany, Works Constitution Act and some other legal acts may vary. Nevertheless, all of them have the points, that the rightful corporation shall be founded by more than one person and shall pursue some unified goal. However, even here are some exceptions, as the Joint stock company and the Limited liability company can be founded by either one single person or by a few. As to the question of unified goal it also varies from a one type of a corporation to the other. So, the Company of

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civil rights can have ―any goal‖, the Full liability company shall have the goal of ―commercial trade‖ and the limited liability company can have ―any goal allowed by law‖. [Klunzinger E. Grundzüge des Gesellschaftsrechts (Introduction to the Corporation Law) //Verlag Franz Vahlen München. – 2012. – p.2].

The corporations can be classified on three different groups, each of which includes some types of corporations. So, the three groups are:

1.Personal Corporations;

2.Corporate enterprises;

3.Special forms for the specific branches.

The Personal Corporations are divided into two groups according to the criteria which relations are influenced most: inner or outer. To the inner-relations group belongs the silent company. The Silent company can have the agreements, in oral or written form, with a person, that wants to stay anonymous to the third parties, investing some money or labour, but still can get the access to all the documents of such corporation. There are two types of such silent companies: typical, when the investor takes part in the activity of the company only with the monetary investments and atypical, with the investor monetary involvement as well as with some managing powers in the company.

The outer-relations group includes limited partnership, full liability company and Company of civil rights. As there are not a lot of peculiarities in the first two types we will cast a glance at the last one: Company of civil rights. Company of civil rights can be founded through the conclusion of the foundation agreement either in written or oral form. It is not a legal entity, can not have the commercial name and its name shall consist of the names of its members, but it can operate in such form unless it is registered in the commercial register (by doing so the company automatically will be transferred into the full liability company) and has a turnover less than 250000 EUR and less than 25000 EUR of income per year.

The second type corporate enterprises includes unions, which can be divided into the commercial unions and so-called ideal, the goals of which is not the gaining of the profit; cooperatives and the capital corporations. The last one includes the Joint stock company, limited partnership on shares and limited liability company. Limited partnership on shares is a corporate entity with many similarities to the joint stock company. Its similarity to a normal limited partnership lies in the fact that it also has members who are liable to the full extent of their personal assets. [Robbers G. An introduction to German Law// Nomos Verlag – 2012 – p.227].

The Limited liability company can have any purpose, including the non-profit one. The LLC can be founded only by the notarial deed with the further its entrance into the commercial register. The charter capital shall be at least 25000 EUR. In case the LLC is founded by a single person and the amount of charter capital is not transfer in the full amount but only the half of it, then the notary before doing any further steps shall require some guaranties that the person can transfer the full amount of money.

The joint stock company, as the LLC, also has the charter capital minimum – 50000 EUR, but the initial transfer can include only the 1\4 of the required sum. What differs the most from the Ukrainian legislation is the process of its foundation. Even before the notarial deed of Charter of the company it can function fully, but in the form of the Company of civil rights. Moreover, it can conduct also the commercial activity. After the notarial deed of the Charter, but before the company will be entered into the register of legal entities, it can make all types of acts, that the joint stock companies can, even use the name of the company, but with some abbreviation after it ―i.Gr‖, which means ―in the process of foundation‖.

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The third group of special forms for the specific branches includes such types of the companies, which can be applied to the activity conducted in the very narrow branch. Thus, there are the type of ― shipping company‖ that does not have any urgent ground to be differentiated as a separate type. So, to such special forms also belong the mutual insurance company, partnership and the European corporations. The last type of European corporations was specifically created for the help on creating the common market in the EU and which allowed to launch the supranational corporations.

Analyzing all the abovementioned, we can say that there are some good things that shall be integrated into Ukrainian legislation, as for example, the form of limited partnership on shares or some specifics of the functioning of the joint stock companies, but there are also some elements that will cause only harm to Ukraine. To the last one, belong the silent companies, introduction of which, to our mind, under the Ukrainian reality, will help to legalize some corrupt schemes, also the existence of the society of civil rights, can cause the mass tax evasion. So, with those examples, we can see that the legal norms and developments that do exist in EU can not always do good in Ukraine and thus shall not be borrowed.

Науковий керівник – к.ю.н., доц. Отраднова О.О.

Mark Opanasiuk

University of Arkansas School of Law

LL.M. in Agricultural and Food Law

LL.M. candidate

Does Ukraine Need New Investment Treaties For Sustainable Investments?

The relevance of this topic can be explained by the latest development of international bilateral investment treaties (BITs). This abstract overviews international trends and its novelty stems from the analysis of their reflection in Ukrainian BITs.

The international investment treaty law is one of the most active areas of public international law. Accordingly to the UNCTAD since 1959, when Germany and Pakistan had signed the first BIT, various states have entered in more than 3000 investment agreements around the world. The BITs helped capital-importing countries to attract foreign investments and pushed their development in the second part of the XX century. The capital-exporting countries received additional guaranties and protection for the investments made by their individuals and businesses under BITs [Neumayer Eric & Spess Laura, Do BITs Increase Foreign Direct Investments to Developing Countries? London: LSE, 2005].

Despite the economical benefits the BITs system was often criticized in recent decades that the design of investment treaties did not impose obligations on investors, but created too much responsibilities and limited state policies . The BIT provisions could limit state policies by freezing conditions favorable for investors on such issues as labor standards, environmental protection, and etc. In many states the policy changes regarding social, environmental and economical issues were challenged in investor-state arbitrations. Investors demanded compensation for damages caused by ―unexpected‖ changes, expropriation, violation of treatment standards [Cristina Bodea, Fangjin Ye, BITs: The Global Investment Regime and Human Rights, 2015, pg.26].

The tribunals in investor-state arbitrations usually interpret BITs narrowly in favor of investors even despite that BITs are the part of international law and should be interpreted with regard to ―any relevant rules of international law applicable in the relations between the parties‖ in accordance with art. 31(3)(c) of the VCLT of 1969. Often states were found liable even

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when they acted in public interest, tried to protect human rights, environment or fulfill other obligations under international law [Marc Jacob, International Investment Agreements and Human Rights, INEF Research Paper Series, Human Rights, Corporate Responsibility And Sustainable Development, March 2010].

In 2014 OECD had surveyed 1113 investment arbitration cases and concluded that 26% involved issues much broader than investment protection. These cases dealt with human rights, labor standards, environmental protection or anticorruption. Because many states became dissatisfied with the design of their original BITs they started to include in new BITs additional provisions to promote sustainable investments. The environmental concerns firstly appeared in China-Singapore BIT (1985), labour issues — in Poland-United States BIT (1990), anticorruption clauses — in Austria-Uzbekistan BIT (2000), general human rights concerns were mentioned in Austria-Malta BIT (2002). Virtually since 2012 all new BITs include such language to some extend. Many developed states (USA, Canada, etc.) adopted own model BITs in response to new concerns related to environment, social issues, and other matters in the public interest [Gordon, K., J. Pohl and M. Bouchard, Investment Treaty Law, Sustainable Development and Responsible Business Conduct: A Fact Finding Survey, OECD Working Papers, 2014].

In addition since 1990s more than 160 BITs were renegotiated for different reasons. For example, in 2004 the new EU members (Czech Republic, Estonia, Latvia, Lithuania, Poland, Slovak Republic) were required to amend own BITs to meet the EU standards. South Africa radically revised own investment policies in 2012 after Piero Foresti and others v. South Africa case. The European investors claimed that SA expropriated their mineral rights by adopting new mineral legislation which was aimed to modernize legal system, empower black people affected by previous apartheid policies, protect environment and local communities, promote optimal exploitation of mineral resources [Yoram Z. Haftel, Alexander Thompson, When Do States Renegotiate International Agreements? The Case of Bilateral Investment Treaties, 2013].

Ukraine is far behind the modern trends in the international investment law. Accordingly to the UNCTAD Ukraine has 75 BITs with other states. Majority of these BITs was signed in the first years of the independence, when Ukraine as a post-soviet country tried to attract investments and did not analyze all risks and benefits from the BITs.

As of today only few Ukrainian BITs has some language regarding human rights, environmental protection, labor standards or fight with corruption. There are risks if Ukraine tries to improve some standards in future, they can be challenged under current BITs. Ukraine already is the ‗popular‘ respondent in ICSID, comparing the number of cases with other countries — there are 14 arbitral awards in investor-Ukraine arbitrations.

In the sample of 24 analyzed Ukrainian BITs only 4 have some language aimed on sustainable development and responsible investments. Canada-Ukraine BIT (1994) in art. 17 allows states to adopt ―any measure... to ensure that investment activity is undertaken in a manner sensitive to environmental concerns;‖ the Finland-Ukraine BIT (2004) and the USUkraine BIT (1994) in preambles address labor standards and working rights; the recent JapanUkraine BIT (2015) prohibits corruption in investments (art. 11) and does not allow to relax health, safety and environmental measures (article 25).

Many developed countries have revised own BITs towards more sustainable approaches. But still Ukraine uses old BITs with those countries. Nowadays Ukrainian government is dealing with important reforms addressing many sensitive and debatable issues: privatization of state-owned enterprises, deregulation of economy, creation of agricultural land market, etc. If the reforms succeed, the new investments are expected in Ukraine. It also may cause more risks

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