International Commercial Arbitration in Ukraine: Practice for Tajikistan
International Commercial Arbitration in Ukraine: Practice for Tajikistan, 2017
25 years of cooperation between Ukraine and the Republic of Tajikistan; Embassy of Tajikistan to ... more 25 years of cooperation between Ukraine and the Republic of Tajikistan; Embassy of Tajikistan to Ukraine and Diplomatic Academy of Ukraine at the Ministry of Foreign Affairs of Ukraine. 2017. 68 p.
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Papers by Sam Noshadha
One of the issues in the modern sport epoch is the war situation and making the decision to put sanctions to a targeted party of an international sport event by other international sport organizations under international laws.
In this article authors compared different views concerning sport sanctions; history of sanction in ancient Greece; the Olympic Truce; practices of sport sanctions in Olympic games; understanding war and sanction terminologies and doctrines; differences between suspension, boycotted and ban in sport sanction; current (2022) practice of sanctions on Russian and Belarusian sport teams because of invasion to Ukraine, as well as, analyzing and clarifying arguments concerning these sanctions which they are issued by international sport organizations leading with the International Olympic Committee; smart sanctions and how rights of athletes who they respect to lex sportiva from sanctioned states is protected to participate in international sport events; positive effects of sport sanction as a lesson to states which they violate lex sportiva.
In this article, authors considered to doping in sport and its challenges, doping dispute resolutions in the CAS, position of the WADA Code in current sport arena, as well as, the CAS procedural approach for dispute resolution, and analyzing some of doping dispute cases in accordance to modern sport, human rights and Olympic movement needs.
Methods:
This article developed based on the grounded theory to close the gap between theory and empirical research in modern sport problems, especially doping issues.
Additionally, research on private international law, court practices, international legal acts in the field of sport: Olympic Charter; the WADA Code; the Copenhagen Declaration on Anti- doping in Sport; the Swiss Civil Code (1912); the Regulations, Rules and practices of the CAS and ICAS; practices of the Swiss Federal Tribunal; the Swiss Private International Law Act; judicial practice of the International Sports Arbitration Courts; laws in the field of physical culture and sport, etc.
Results:
According to modern sport, human rights and Olympic movement specifics, long-term activities of the WADA did not bring Olympic sports closer to solving the problem of doping, despite the constantly increasing financial, personnel and legal capabilities, strict sanctions, intensive propaganda activities, the manifold increased volume of testing, the most severe sanctions, the support of authoritative international organizations (UN, UNESCO, Council of Europe), have not bring Olympic sport closer to a solution for the doping problem, but it also sharply exacerbated, made it dangerous for the authorities and well-being of the Olympic movement.
Conclusions:
Doping in sport, WADA Code and procedure of doping dispute resolution by the CAS, are metadisciplinary issues which need to be updated and optimized according to the specific aspects of modern sport, human rights and Olympic movement.
In this article, the authors considered: conclusion of arbitration agreement by parties of a sport rela-tion as a basis for sport dispute resolution via applying to an international arbitration court; concept of the “Сompetence–Сompetence” doctrine and its effects in legal practices of Canada, the United States, France and Switzerland.
Methods: This article developed based on the grounded theory to close the gap between theory and empirical research in modern sport problems. The article examines current issues of private international law, court practices, international legal acts in the field of sport, some of the judicial procedures of various countries and organizations, judicial practice of the Inter-national Sports Arbitration Courts; laws in the field of physical culture and sport, etc.
Results: Concluding arbitration agreement by parties of a sport relation is an important step before applying to international sport arbitration courts. The jurisdictional issues of a sport dispute decide according to the effects of Competence–Compe-tence doctrine.
Conclusions: Problem is not a part of modern sport. This issue creates sport disputes. Referring a dispute to international sport arbitration is a jurisdictional intervention mechanism of dispute resolution. In this case, parties of a sport dispute need to agree on an arbitration agreement, and consider the Competence–Competence doctrine as the most important principles which its effects define jurisdiction of dispute resolution.
The authors considered the need of concluding the arbitration agreement to apply to an international arbitration court for sport disputes resolution. As well as, types of arbitration agreements; the problems of applying national courts for sport disputes resolution; history and definition of the agreement; effects of the arbitration agreement and positive and negative doctrine of these effects, according to the current paradigm of modern sport are described.
Methods:
This article developed based on the grounded theory to close the gap between theory and empirical research in modern sport problems which needs to metadiciplinary approach for sport dispute resolution under an arbitration agreement. Additionally, research on private international law, international legal acts in the field of sport:
- Code of International Sport Arbitration on November 22, 1994,
- Olympic Charter,
- European Charter for Sport,
- New York Convention,
- 1958, UNCITRAL Model Law 2006,
- judicial practice of the International Sports Arbitration Court,
- laws in the field of physical culture and sport, etc.
Results:
Parties of a contract which directly or indirectly connected to sport activities need to architect and agree on method(s) of sport dispute resolution, to realize this aim, the parties need to conclude an arbitration agreement. To understand arbitration agreement, it is needed to understand the definition and history of agreement. Arbitration agreement defines scopes of sport dispute resolution, the jurisdiction of sport arbitration institution; as well as, circumstances which may affect the conditions for recognition and enforcement of awards issued by the sport arbitration courts.
Conclusions:
Sport arbitration practices show that because of the existence of sport problematic and mutual rights and obligations of parties, the dispute is an inseparable part of sport. Parties of a sport contract need to architect and agree on method(s) of sport dispute resolution, to realize this aim, the parties need to conclude an arbitration agreement. The article II of the New York Convention (1958) rules obligation of the contracting States to recognize and enforce arbitration agreements. An arbitration agreement may be concluded as a separate agreement or a clause to a contract related to sport, before or after arising a sport dispute.There are four types of arbitration agreements and courts have relatio perfecta and relatio imperfecta approach to them.The majority of domestic and international laws, rule the arbitration agreement to identify a “defined legal relationship”. Therefore, parties by applying to an arbitration court according to an arbitration agreement cause two effects which they have “positive” or “negative” doctrines.
In this article, the authors consider the lack of an independent and modern dispute resolution mechanism in the area of sport relations as a sport problem; the lack of qualification of sport disputes; and, the need to develop a modern mechanism for sport disputes resolution that is compatible with the current paradigm of modern sport.
Methods:
This article developed based on the grounded theory to close the gap between theory and empirical research in modern sport problems especially sport dispute resolution at the international arena. According to Ralph, Birks & Chapman thesis, grounded theory integrates diverse traditions in sociology, positivism, and symbolic interactionism.
Results:
The authors considering the importance of modern sports in life, education, and the economy, as well as, the need to define the concept of sport dispute; developing a modern mechanism for dispute resolution harmonized with the paradigm of modern sport, as the current practices of the CAS specify this necessity.
Conclusions:
Choosing the correct jurisdiction for considering sport disputes and a professional institution for sport dispute resolution requires an exact definition of “sport dispute” and a study of the classification of sport disputes.
Applying international sport dispute resolution institutions that developed under the UNCITRAL Model Law is one of the most common sport dispute resolution ways and, issued decision of these institutions are granted to be recognized and enforced by the States which signed the New York Convention 1958.
Sport disputes have their own specifics and required qualified arbitrators and lawyers in the field of both law and sport knowledge, parties of a sport dispute are strongly recommended to apply correct sport dispute resolution institutions and choose qualified arbitrators and lawyers to avoid losing their rights.
The most common sport arbitration court is the CAS.
The CAS experienced several reforms, but, some of the issued decisions after 2000 which many of them under the public policy are appealed to the Swiss Federal Tribunal, show proof of the necessity of developing a mechanism of sport dispute resolution which is more updated and compatible with the current paradigm of modern sport.
Keywords: modern sport, sport arbitration, CAS, dispute resolution, sport dispute, ICAS, ADR, lex sportive, sport problems
In recent years, as a response to this need, we have seen the formation and use of new methods for the peaceful settlement of disputes. These methods are known as Alternative Dispute Resolution (ADR).
One of the most effective alternative dispute resolution ways is “mediation”. The fact that many parties are looking for a soft kind of judgment, as well as a quick, less hassle, and cheaper dispute resolution mechanism, caused calling the mediation method one of the best alternative dispute resolutions before applying sport arbitration courts.
In this article, differences between the dispute and conflict, seeking mediation before applying international sport arbitration courts and also challenge skills that seem to come more naturally as a part of normal competence, will be discussed.
The following methods will be explained:
• Using silence technique;
• Critical thinking skills;
• Complex problem solving.
Additionally, some practices of mediation as an effective dispute resolution method in sport disputes will be provided.
Conclusion:
The concept and exercise of mediation are well interesting enough. Mediation shows a way to participate in the adversarial process without being an adversary. It requires a sport mediator to use many skills in order to help competing parties put the controversy behind them and move on with their lives. To be a skilled mediator the practices of daily life must be considered and must be put together to get people thinking about settlement.
The mechanism of mediation before applying international sport arbitration courts has different regulations, processing documentation, and conditions comparing mediation before commercial or investment arbitration courts. Also, for sport mediation, the mediator needs to have professional understanding and knowledge in the specific area of sport.
In commenting efforts to acquire these skills mediators which have come more easily (practicing seldom), and those that have not, are recommended to practice more as well as have admiration for the art of effective mediation.
Additionally, possession of professional knowledge in the field of sport is a necessary criterion for the competence of a skilled sport mediator. An important condition for mastering the professional competencies of a sport mediator is the presence of a mediator's constant practice of dispute resolution, which it gives professional art of effective mediation.
In fact, mediation as a mechanism of sport dispute resolution is a gentle way which keeps the friendly relationship between Parties and, this method of sport dispute resolution follows the Fundamental Principals of Olympism at the Olympic Charter.
International organizations called the financial and political corruptions as state management worries and one of the most important reasons of lack of development in a many states. As much as the political and economic corruptions rise up, the level of national security of a state decreases.
The most fundamental economic and political anti-corruption activities are:
- Creating employment options and decreasing unemployment;
- Fair distribution of opportunities and fighting against bribery;
- Preparing minimum standard level of life for all people of a state;
- Fair judicial system.
This article is titled as the “Analyze and prevention ways of the economic and political corruptions in engineering of developed states management systems and International Commercial Arbitration Courts as an effective mechanism of anti corruption to incentive foreign investors”. Therefore, plan of the article will be as follows:
- Entering to the legal conceptual literatures, then explaining the economic and political corruptions that stops development and they are bases of other corruptions;
- Pointing to the types, levels and definitions of the corruption in some countries;
- In summery explaining the effective reasons of the economical and political corruptions;
- By comparing corruption levels in developing countries, we explain to you the consequences and the effective ways for fighting this destructive phenomenon;
- International Commercial Arbitration Courts in summery;
- How the International Commercial Arbitration Courts may be as an effective mechanism of anti corruption.