Научные журналы
Университета имени О.Е. Кутафина (МГЮА)


Статьи в номере 1 за 2018 год

Аннотация: The three-part paper analyses important issues in the field of Experts and Expert evidence in the arbitration process in particular problems — both in common and civil law jurisdictions. It covers legal proceedings and arbitrations as well as the limits to the use of Expert evidence. The key point here is that it is an opinion — what the Expert thinks — which is of evidentiary value. Ordinarily, evidence is fact based, not opinion based. Such opinions, therefore, have to reach a very high standard in proceedings where they are used. If judgments and decisions are to be used, and be based upon such opinions, they have to be sound, and be anchored in a real Expertise. Interesting and exciting new directions in case management of such evidence are discussed The overall objective of this paper is to provide the reader with an appreciation of Expert evidence, some of the current debates on its use, and how to challenge it when it is used. The paper also contributes to the current debates on Expert evidence with some observations on how t might be improved.

Автор: Charles Goddard , Inna Goddard


DOI: 10.17803/2313-5395.2018.1.9.182-197

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Аннотация: Financial derivatives are complex products of financial engineering. The interest rate swap is a very good example of widely used and very intricate two-way payments financial derivative. Interest rate swaps as other financial innovations posed a number of issues for legal systems and regulations. Among other problems there are problems of substance over form approach, the problem of classification for regulatory purposes, the issues of the replication of traditional financial instruments’ economics. The Application of regulations to interest rate swaps and other financial derivatives require the nature and context understanding of the transactions. It seems that separate transaction method is a prevailing approach to financial innovations. It implies that derivatives should be treated separately from underlying assets and obligations and should not be bifurcated to their economic components as well. Legal differences are not less important than economic similarities. The example of interest rate swap shows the opportunity for recharacterisation of transaction in cross-border situations for general civil law purposes (gambling, insurance), for regulatory and tax purposes.

Автор: Ekaterina V. Kudryashova


DOI: 10.17803/2313-5395.2018.1.9.198-208

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