In the article describes the features of the social situation of certain population’s groups, problems of social exclusion and inclusion. Particular attention is focused on the methods of solving the needs of people with disabilities, ensuring appropriate conditions for realization of their rights and freedoms as equal citizens.
Key words: social exclusion, inclusion, disablement, discrimination.

The issue of human rights has always been a question of availability (stratification of society and equal division between higher and lower over time). Accessibility issues in the plane of human rights lies primarily in providing of people the opportunity to live independently and have the right to access all resources to exercise their rights. It should be noted that the issue of accessibility exist despite legislative strengthening and even clearly calculated mechanism for its implementation. There is also an issue of accessibility, despite legislative strengthening and clearly calculated mechanisms for implementation. While there is an established principle of equality for all state citizens, negative effects such as illegal inequality exist also. Society and the state, reaching new economic and technological heights, lift citizens to a new level of development while others are left behind. The Convention for the Protection of Human Rights and Fundamental Freedoms indicates that the enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. However, historic formations, traditions and mentality create inequality, which continues to exist and gain scale. There is a new development evident in many cases of discrimination that is gaining more momentum and leads to irreversible changes in society. It is social isolation, also called social exclusion.
This concept of social exclusion, or isolation, was formed in developed European countries as a unique method of describing the situation of certain groups in the state population. The concept is widely used in many countries in order to characterize the modern forms of social obstacles to proper human rights availability for different segments of the population. In some countries, the concept of social exclusion is legally established. For example, the Vienna Declaration and Programme of Action adopted in 1993,at the World Conference of human Rights states that, extreme poverty and social exclusion violate human dignity: and we need to take urgent measures to achieve a better understanding of the causes of poverty and to eliminate them in order to defend the rights of the poorest people and put an end to social exclusion.
In a European Commission report, the EC defines social exclusion as a process by which groups or individuals are “pushed” to the margins of society and become unable to participate fully in public life because of their poverty, lack of basic knowledge and capabilities, and also because of discrimination. They have limited access to government and participation in decisions that affect their livelihoods and, accordingly, do not have authority and capacity to participate in the development and discussion of such decisions. So, even though there are relevant conventions and legislation to protect human rights and ensure them for all, other factors such as social exclusion prevent this from happening.
When analyzing the problems associated with the phenomenon of social exclusion, special attention should be paid to the social position of people with disabilities, and what actually makes them excluded. Lack of rights or equality for the disabled is a newer concept than similar treatment due to race, gender, or social class; a situation that has become apparent in more recent years and presents a new dynamic of human rights issues. Is it the physical defect itself that excludes them from opportunities or discrimination because of it such as a person being excluded from access to a building because of that defect? It should be noted that the social exclusion of people with disabilities is the lack of conditions for the realization of their rights to education, employment, health care, access to needed resources and services and not the disability itself. For example, under certain circumstances, a cause of social isolation for them may be the unavailability of public transport that makes it impossible to arrive at their work places, employment center, medical institutions, entertainment establishments, etc.
The problem lies in the attitude of others towards people with disabilities and legal regulation in this sphere which treats them primarily as patients who require medical services first and citizens second. This limitation on equality is less apparent than direct discrimination due to race, for example, and is even more difficult to address because the discrimination is much less obvious. Omitting resources for the disabled is a more difficult kind of discrimination to prove and address than more obvious violations of human rights such as lack of rights due to gender or race. It is important to remember that people with disabilities are citizens of the state, same as all of us and they are capable of proving themselves in the cultural, economic, political, financial and scientific spheres. Such specific relationships require conscientious compliance of general principles set in classic human rights conventions and newer legislative initiatives such as the Convention on the Rights of Persons with Disabilities which requires:
•Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
•Non-discrimination;
•Full and effective participation and inclusion in society;
•Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
•Equality of opportunity;
•Accessibility;
•Equality between men and women;
•Respect for the evolving capacities of children with disabilities and respect for the rights of children with disabilities to preserve their identities
An alternative to social exclusion is a concept called social inclusion, the former being more common than the latter. Society ceased to believe in utopia, not realizing that they are the only source of power and all leverage over control is in their hands. Thus, the term social inclusion appeared as opposed to the spread of discrimination cases and inequality in society. It covers a wide range of strategies and resources focused on those groups who are disadvantaged relative to others. The defining point of the concept of social inclusion regarding people with disabilities, for example, is a sufficient level of material and moral support for them to implement their goals themselves and suggest opportunities for learning, creativity, and intellectual personal growth. A number of points also complement this with appreciation, recognition, and respect for people with disabilities.
In my opinion, making hackneyed concepts and strategies with the expectation of solving the spread of inequality in society is useless. The concept of inclusion should be a simple guideline for implementation of equality in which a specific state structure should be taken into account. This unique combination of operations, to my mind, lies in harmonization between the state policy and guarantees for the circumstances of citizens such as care for people who suffer disabilities. This will, probably, cause the expected positive changes in the situations of people with disabilities at both the legal and moral level.
Certainly, by looking for those responsible for the processes of discrimination and inequality, one can always refer to the imperfection of the legislative regulation of this issue and inefficiency of management decisions. However, from my point of view, the root of the problem is buried deeper, in the minds of all of us. We must develop internal tolerant attitudes towards people with disabilities and should remember that civil society and the rule of law begin with every citizen of the country. Human rights do not depend on the state of health of medical diagnosis. Health status determines only which support this person requires from others and the state in order to feel full members of society without any discrimination.

References:
1. European Convention on Human Rights: Convention for the Protection of Human Rights and Fundamental Freedoms, – Rome, November 11,1950 – [Electronic resource] –http://www.echr.coe.int/Documents/Convention_ENG.pdf
2. Vienna Declaration and Programme of Action: World Conference on Human Rights in Vienna, June 25, 1993 – [Electronic resource] – http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx
3. The Social Determinants of URBAN MENTAL HEALTH: Paving the Way Forward: Global conference, September 19-20, 2012, 17 North Dearborn Street, Chicago, IL 60602, USA / Adler School of Professional Psychology – [Electronic resource] – http://www.adler.edu/page/institutes/institute-on-social-exclusion/2012-conference/about-the-conference
4. Equal in rights worldwide: [The European Instrument for Democracy and Human Rights ] – 2007-2010 / European Commission – [Electronic resource] –http://www.eidhr.eu/files/dmfile/EUAID_EIDHR_Activityreport_EN_LR_201106072.pdf
5. Convention on the Rights of Persons with Disabilities: Final report of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities on its eighth session – 6 December 2006, – [Electronic resource] – http://daccess-dds-ny.un.org/doc/UNDOC/LTD/N06/645/30/PDF/N0664530.pdf?OpenElement

The article describes aspects determining criterion of proof in international commercial arbitration. In particular, attention is focused on the problem of individualization process of determination and the ways to solve it.
Key words: international commercial arbitration, arbitration ad hoc, institutional arbitration.

The research of the German Institute of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit) shows that 90% of the international agreements in the sphere of global business contain some arbitration clause which stipulates that in the event of a conflict the parties to the contract should apply to the Court of International Arbitration [1, 6]. Therefore, international arbitration is becoming an increasingly common way to resolve disputes between entrepreneurs in many countries.
Assessing the purpose of consideration of any case in arbitration and the role that is played by referees, an attention should be paid to an extremely urgent problem, to my mind, related to this issue, which should be discussed, researched and further developed. The whole system of inaccuracies, which I have found, and an area for future reforms are connected with the notion of “own discretion,” which arbitrators are guided by in the arbitration proceedings while determining admissibility, sufficiency or reliability of evidence of the parties to the dispute. Taking into consideration the relevance and topicality of the research, I have decided to highlight the standard of proof from the view of “own discretion” of the referees in a plane of proof, weighing on the scales the rule of law and the own interests of both the disputing parties and the arbitrators.
The Article 2.5 of the Rules of the International Commercial Arbitration Court at the Chamber of Commerce of Ukraine [2] provides that arbitrators are independent, objective and impartial in the performance of their duties. The Article 4.1 also notes that the parties to the dispute must be treated equally and each party must be given every opportunity to express their position. However, the powers granted to the arbitration court include the power to determine the admissibility and appropriateness of any evidence.
The Law of Ukraine “On International Commercial Arbitration” [3] complements the right to determine the standard of proof of arbitrators with such categories as materiality and significance of any evidence (Art. 19.2). There is a question then: is it appropriate to speak of a single standard of proof? Does it exist at all? Is it possible to define the standards of appropriateness or admissibility of evidence in international arbitration? In my opinion, this question requires a systematic analysis from the side of both legislator’s presentation and the cumulative views of arbitrators in the plane of the very purpose of arbitration – to solve misunderstanding between the disputing parties and to achieve the compromise. This standard of proof should be evaluated as a tool to achieve this goal, and the views of arbitrators and the law on international commercial arbitration – as a kind of leverage on the effectiveness of an evidential force that can be used by the skillful hands of a lawyer to strengthen the chosen position.
Thus, while defining the basic categories that should guide the litigant in protection of their own interests, I have identified two fundamental vectors for determining the criterion of proof by arbitrators. Firstly, it is certainly an objective factor which makes an influence on the decision of an arbitrator in the case. The regulations of arbitration, the parties to the dispute may determine the scope of the admissibility of evidence, their sufficiency or reliability; these powers are separated according to the type of international arbitration, which governs the proceedings. The so-called institutional arbitration is conducted in accordance with the procedural rules (regulations) of a certain arbitration institution (organization). There are regional arbitration centers (such as the Cairo Regional Centre for International Arbitration) and some separate arbitration institutions. By choosing institutional arbitration, the parties rely on their experience, professional administrative staff and regulated possibilities to solve the issues related to the arbitration proceedings and the appointment of arbitrators. These arbitration institutions retain total non-interference in the settlement process, and if it is necessary they give referees only administrative assistance, such as sending correspondence to the parties, providing premises for hearing, interpreting services during the arbitration, etc. As to the competence of arbitrators, in the practice of international arbitration there are already established traditions and trends of determining by arbitrators of the course of the arbitration process and proof that differ depending on the used rules of arbitration, the country where the process takes place, and the experience of referees in the dispute. While accepting the proofs which each party gives, the panel of arbitrators determines the admissibility and appropriateness of a given evidential line. Summarizing the only standard of proof, each of arbitrators, who may be citizens of different countries, representatives of different legal systems and cultures, contributes to the solution of the conflict. The ability to defend his/her line persuasively shows the professionalism of a lawyer. It is worth noting that most national laws on international arbitration, as well as permanent arbitration institutions regulations do not contain clear guidelines or rules of evidence, still giving the advantage to the same “discretion” of arbitrators both in conducting of the research of evidence, and in assessing of their relevance, admissibility and materiality. That is, following objectively defined legal rules, the referees actually are not limited in their subjective belief while determining the standard of proof. An alternative way in this situation is the free choice of another kind of international arbitration.
Arbitration ad hoc, as opposed to institutional arbitration, is not conducted under any arbitration institution. The cases in such arbitration are heard by the arbitrators previously agreed by the parties. The arbitration agreement stipulates the procedure of hearing, although the parties may address to arbitrators to form such procedure or may note in the arbitration agreement the reference to accepted rules of arbitration ad hoc, in particular UNCITRAL Arbitration Rules. Arbitration ad hoc enables litigants to indicate their limitations related also to the evidence, determine the admissibility, sufficiency and other criteria, but the final decision rests with arbitrators who refer to established traditions, generally accepted rules, their own experience and discretion. That is, in any case there is a personal factor which influences the solution – whether proceedings are in institutional arbitration or in arbitration ad hoc. The only advantage of the second kind is the possibility to set the frame before it is made by referees, using their categories.
Analyzing the objective factors, it is easy to notice a regularity of direct influence of internal beliefs of referees in a dispute. Defining it as an obvious problem and the plane for reform, I want to note that the changes and further improvement should be made in the direction of strengthening of an objective regulation of the problem, that is to legitimize the general and special rules of hearing and prior consideration of evidential lines by arbitrators. You must first coordinate them with continental and common legal fields, a plurality of traditions. In my opinion, the uniform criteria of proof should be determined at the legislative level and classified according to analogous principles of justice, carried out at the national level. It should be borne in mind that international arbitrations, despite the existence of similarities, have their own peculiarities, caused not only by “national” affiliation, but also by the result of a long-term practice of the development of international arbitrations, which is known to be formed on the basis of an individual approach. So, in this case the most appropriate solution to the problem is to consolidate the special principles of arbitration proceedings at the international level by concluding conventions such as the New York Convention [4] or the UN Convention on Contracts for the International Sale of Goods (Vienna Convention on Contracts for the International Purchase and Sale of Goods) [5], taking into account the factor of national influence and vision of standard of proof by arbitrators through established intrastate traditions, that is to consolidate the criteria of distinction between these contradictions and at the same time the way for their generalization. The specialty of these principles should be based on the specific character of the concept of “arbitration” which sets forth interstate relations, ability to find compromise and independence of arbitrators. In this case it is an essential component to ensure a fair decision. At a special level the limits of interference into the process and conducting of the procedure by arbitrators should be clearly defined – separately for arbitration ad hoc, and institutional one. Then, at the basic level the fundamental components of the standard of proof should be noted, the threshold of admissibility and appropriateness of the given evidential line should be determined. After that, taking into consideration the specificity of the case in question, the materiality and significance of evidence should be stated, involving independent experts and conducting more research. The determination of the standard of proof should be based on the totality of these principles and values, founded on individual factors of arbitrators, although the frames of it are clearly defined in legal acts. The tool to achieve all abovementioned is a parallel consolidation of general principles of justice at the state level and their detailed definition. At the first glance, this will not affect the international arena, however, in my opinion, it will contribute to the development of an appropriate legal culture of citizens, since no person shall be denied the right to act as an arbitrator because of his/her nationality (Art. 11.1), that is any citizen of any state without considering his/her age, life position and priorities may act as an arbitrator. The reform and improvement of the judicial power at the national level will improve its position internationally. As an example, I want to mention the Constitution of the Fifth Republic of France, which contains a concise provision on the organization of the judiciary and its hierarchical structure and common rules for the administration of justice [6]. The legislative regulation of the judiciary in France is exceptional due to a special constitutional law which develops in detail the issue of constitutional principles of judicial power – “Organic Law on the Status of Master” 1978 and the Judicial Code of the French Republic on March 16, 1978.
After determining the impact of an individual factor in the plane of the objective regulation, it is necessary to conduct the analysis of each of the stages of evidence submission, powers of arbitrators in each of them, and the right to form the procedure and its rules by the parties themselves and their representatives, and, as a result, the impact of certain evidence and ways of its submission on determining of standard of proof by arbitrators.
So, first of all, it should be noted that the generally accepted rule of most national legal acts on international arbitration and arbitration regulations themselves – to submit together with a claim (reference) the main documentary evidence in support of the stated requirements (objections). Sometimes the hearing of the dispute in court may be based only on documentary evidence, but any of the parties to the dispute as well as the arbitrators may apply for an additional oral hearing. The legislation does not set uniform standards for the submission of documentary evidence that is why a counsel may submit the evidential documentation that best underlines its line arguments. However, despite some freedom for activity, the lawyer should make a detailed analysis of the practice of the process of evidence submission in a particular arbitration. For instance, as a warning it can be given some example of practice, when one of the disputing parties seeks to hide unwanted document, and the other is entitled to demand it for a wide hearing of arbitration proceedings. The same applies to demanding of any information and documents by arbitrators what is being widely used under the influence of common law.
In international arbitration there are hearings of witnesses (without submitting of legal arguments) and hearings on the merits of a case (it may have a mixed character, includes the hearing of witnesses). The main difference between the definition of standard of proof by the arbitrators of civil and common law is to whether or not to pay significant attention to oral hearings of witnesses and testimony of experts. Most legal systems of civil law do not consider the testimony of witnesses as a proper source of evidence, or even waive the hearing of them. The similar situation in the system of civil law is observed as for the testimony of an expert, whom they perceive as a previously hired and paid professional, and therefore do not consider as a proper source of evidence. It is generally set out that the lawyers take into consideration the expert testimony while deciding about the motion of oral testimony hearing or their omissions. However, in any case, in the choice of any kind of international arbitration the hearing of oral evidence of witnesses and experts, and generally the use of it as a source of evidence are the greatest expenses in a financial aspect and in the time dimension. The interpretation of their evidential value is carried out in an individual aspect of an arbitrator and, as a result, his/her definition of the standard of proof can lead to an unexpected result.
So, having a significant degree of discretion, the referees have the right to determine the standard of proof, taking into account the generally accepted rules and established traditions. The rules of the International Bar Association on research of evidence in international arbitration (International Bar Association Rules on Taking of Evidence in International Commercial Arbitration), 1999. [7] specify the provision and give the arbitrators the right to exclude, on demand of a party or at their own discretion, any evidence or refuse to grant it due to one of the following reasons:
•insufficient relevancy and materiality;
•legal obstacles or privileges (professional and other secret, conflict of interests) prescribed by law or the rules of professional ethics which an arbitral tribunal finds applicable in a particular case;
•excessive burden of submitting of evidence;
•loss or damage to the document;
•interest in protecting confidential information relating to the know-how, trade or state secrets, the other reasons of political or state significance that an arbitral tribunal finds important;
•considerations of justice and / or equality of the parties that an arbitral tribunal finds important.

Thus, having analyzed the objective and subjective factors which make an effect on the determination of the standard of proof by arbitrators, the conclusion may be drawn that the only criterion still does not exist. This is explained by the specific character of international arbitration and uniqueness of each case. However, in my opinion, the direction for further improvement is a harmonization of the national legislation with the legislative regulation of arbitration in the international arena in order to further resolve disputes and meet the interests of the parties. It is necessary to organize common rules and principles generally and distinguish special ones among them. As it was already noted, the definition of the standard of proof should be based on the totality of these principles and values, which are founded on individual factors of arbitrators, and still the frames of this factor will be clearly defined in legal acts. The reform should be made in implementing common standards in the regulation of the burden of proof that partially destroys self-government of arbitrators and improves the position of lawyers by giving them a simplified way to find the single standard of proof.

References:
1. Серова И.Н. Практические аспекты международного арбитража [Текст] / И.Н.Серова // Судебно-юридическая газета. – 2009. – №2. – С.6.
2. Регламент Міжнародного комерційного арбітражного суду при Торгово-промисловій палаті України від 25 серпня 1994р. (із змінами): ст. 2.5 // Законы Украины: информационно-правовой портал [Електронний ресурс]. – Режим доступу: http://www.uazakon.com/documents/date6b/pggccgof.htm
3. Закон України «Про Міжнародний комерційний арбітраж» від 24 лютого 1994р. (зі змінами та доповненнями): ст.19.2 // Відомості Верховної Ради України [Електронний ресурс]. – Режим доступу: http://zakon4.rada.gov.ua/laws/show/4002-12
4. Конвенція про визнання та виконання іноземних арбітражних рішень від 10 червня 1958р. (із змінами) // Відомості Верховної Ради України [Електронний ресурс] – Режим доступу: http://zakon4.rada.gov.ua/laws/show/995 070
5. Віденська конвенція про договори міжнародної купівлі-продажу товарів від 11 квітня 1980р. [Електронний ресурс] – Режим доступу: http://www.cisg.ru/tekst-venskoj-konvencii.php
6. Constitution de 1958, Ve République – 4 octobre 1958an. // Les Constitutions de 1791 à 1958 sur le site du Conseil constitutionnel [Електонний ресурс] – Режим доступу: http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/la-constitution/la-constitution-du-4-octobre-1958/texte-integral-de-la-constitution-du-4-octobre-1958-en-vigueur.5074.html
7. Правила Міжнародної Асоціації адвокатів щодо дослідження доказів у міжнародному арбітражі (International Bar Association Rules on Taking of Evidence in International Commercial Arbitration) від 29 травня 2010р. [Електронний ресурс] – Режим доступу: http://www.sccinstitute.com/filearchive/4/43003/IBA%20Rules%20on%20the%20Taking%20of%20Evidence%20in%20Int%20Arbitration.pdf