PRIVATE LAW / JUS PRIVATUM
The article is devoted to the peculiarities of regulation of cross-border contractual relations that are being developed within the BRICS countries in compliance with universal international treaties. The author has outlined the prospects and problems with which traders from BRICS countries are facing when concluding contracts. International treaties, which contain, above all, uniform substantive rules, play a great role in concluding cross-border contracts. However, all the BRICS countries are member-states to very few treaties. The author of the article has revealed that such conventions still exist, although not only in the contractual field. The article pays special attention to the peculiarities of application of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, the Cape Town Convention on International Interests in Mobile Equipment of 2001 and, indeed, the Vienna Convention on Contracts for the International Sale of Goods of 1980 (although only three BRICS countries are involved, it can also be applied to India and South Africa).
The article has investigated the mechanisms of the national (both legal and non-legal) regulation of orphan works, i.e. works the holder (holders) of rights to which is (are) not identified and/or the location of the rights-holder is not established. Orphan works are supposedly protected by copyright, which means the validity of exclusive rights and the potential need to obtain permission from the copyright holder for any form of using the works under consideration, namely: reproduction including digitization, translation, processing, etc. However, in a situation where the right holder is not determined (is unavailable), the user does not have an objective opportunity to obtain such a permission, and the work actually remains unknown to the society, although it can be of artistic, cultural or historical value. Since the beginning of the new millennium, the national legal systems of a number of States have establish a special regime for the legal protection of orphan works, and about 20 states of the world have developed the foundations of such a regime so far. The article analyzes the regulation of orphan works in several states — in the EU and its member states, Great Britain, the USA, Canada, Korea, Japan, India. The authors have determined the foundations of the substantive and conflict of laws regulation of cross-border relations regulating orphan works. Features of regulation of works with an unidentified author in the era of a network society are highlighted: in particular, the need to digitize orphan works, since many of them are in a single copy on the medium ruined by time, and the fact that the digitized work can instantly spread from databases to other jurisdictions. The authors provide for the forecast of possible ways of evolution of legal regulation of relations in question with the use of mechanisms of national and international law.
In the context of integration, globalization and increasing complexity of private law relations complicated by a foreign element, private international law acquires special importance. Being influenced by the processes named above, it is not only rapidly developing and acquiring new directions for development. Private international law is also facing new global challenges. In this regard, the article attempts to analyze the main trends in the development of private international law in the 21st century revealing new trends and threats that it may face in modern conditions.
Based on the results of the analysis, the author comes to the conclusion that the main trends in the development of private international law include the expansion of the scope of its application, as well as the unification and harmonization carried out within the framework of various international organizations at both universal and regional levels. The Hague Conference on Private International Law and the United Nations Commission on International Trade Law (UNCITRAL) play the most important role in this process. Finally, one more important trend in the development of private international law is constituted by the attempt to adapt to new, rapidly changing realities leading to a substantial modernization of the methods of cross-border private law disputes resolution.
The article deals with some features of the systems of revision of decisions made in the compliance with the results of procurement procedures in the EU Member States in the light of the requirements of EU law. In particular, the author investigates the EU law requirements applied to bodies reviewing decisions in the context of the need to determine the balance between the principle of procedural autonomy of the European Union member States (Article 4 of the Treaty on European Union) and the principles of efficiency and equivalence (derived from jurisprudence interpreting Article 19 of the Treaty on European Union). Also, the paper analyzes the problems arising while determining the applicant’s locus standi, since an excessively narrow interpretation of the notion “interest in obtaining a relevant contract” may serve as an unreasonable restriction for the access to the procedures of reviewing and, more generally, access to justice. The author explores the issues of applying such grounds in order to exclude the procurement participant from the number of bidders on the ground of “commission of a significant violation of the rules of professional activity” in the understanding of EU restrictive measures applied to managers of the procurement participant. There may be situations when the actions of the sole executive body result in the application of restrictive measures and that may be considered as evidence of the commission of a fundamental violation of rules of professional activity; the article considers standings that both confirm this thesis and indicate an excessively broad interpretation of this rule. On the one hand, the European Court of Justice has affirmed that organs of governance, especially the sole executive bodies, have a decisive influence and effective control over business activity to such an extent that their actions can be regarded as actions of the company also with regard to issues of liability. On the other hand, restrictive measures themselves do not, by their nature, constitute a measure of liability. However, the question of whether national authorities have the right to reassess the conclusions of the EU Council with regard to challenging the bidding results remains open.
The author has investigated the basic principles of industrial property protection in their dynamic development in cross-border relations. The author elucidates the territorial principle of industrial property protection in the context of the necessity to overcome it. It is noted that in most industrial property cases the principle of territoriality (territorial independence of protection in respect of objects of industrial property) is more often used as compared with copyright cases.
In fact, States create certain conditions for overcoming the (partial) territorial principle of protection when, at the international level, international protection mechanisms are being developed to protect industrial property. The creation of such mechanisms obliges the States to recognize declaratory documents (international applications) and single sign-ons (international registrations), to provide protection to the facility that has been granted protection abroad (e.g. in the case of appellation of origin or geographical indication registered in the country of origin). Indeed, such an overcoming is conditional, but it always reflects the interests of applicants and rights holders and seems to be extremely important in the modern context of globalization, expanding markets and cross-border technology exchange.
At the same time, at the current stage of development of the system of the legal regulation of industrial property in cross-border relations, the principle of national treatment on the basis of unified action of international mechanisms applied for the industrial property protection has been partly transformed into the principle of the international treatment extending the common rules for establishing rights to industrial property on actors from a large number of countries.
It would be possible to speak about overcoming the territorial principle of protection if the fundamental principle of protection of industrial property — the principle of national treatment — were transformed into the principle of international treatment.
The author highlights an important character of the principle of conventional priority and the need for its extension to other objects of industrial property except for those in respect of which priority is not inherently possible (appellations of origin, geographical indications, indications of origin). The problem of implementation of the principle of exhibition priority has been explored separately.
The article is devoted to the protection of the Russian Federation public policy interests in the field of intercountry adoption. It is established that strengthening of such protection entails changes in the legislation. Such changes are connected either with the super-mandatory character of already existing statutory mandatory substantive rules or with the emergence of new super-mandatory rules. In the field of intercountry adoption in Russia, this process is particularly striking. The study highlights that the general equation contained in Art. 1192 “Rules of direct application” of the Civil Code of the Russian Federation establishes two ways that allow by analogy to determine the super-mandatory nature of certain mandatory substantive rules stated in the Family Code of the Russian Federation: “by reference in the mandatory rules themselves” (the over-mandatory character of the rule is expressly determined by the legislator) or “because of their particular importance also for the protection of rights and legally protected interests” (the over-mandatory character of the rule is determined by the executor of law). It is concluded that the emergence of constitutionally significant values/public interests in the content of the mandatory substantive rule (“protection of morals, health, rights and legitimate interests of other family members and other citizens”, etc.) forms a criterion that allows the executor of the law to determine such rules as rules of over-mandatory character. Based on the analysis of international treaties of the Russian Federation on interstate cooperation in the field of adoption of children, the article defines the fundamental principles that make up the structure of intercountry adoption in the Russian Federation. It is established that the additional conditions and requirements of the state of child’s origin are included in the regulation of intercountry adoption (provisions of articles 165, 124-133 of the Family Code of the Russian Federation; provisions of bilateral treaties between Russia and European countries where more than 85% of Russian children are adopted (France, Italy, Spain)) to protect the interests of the RF public policy.
INTERNATIONAL LAW / JUS GENTIUM
International law rules with regard to the regulation of sports activities at the universal and regional levels developed by states and international intergovernmental organizations have formed a set of norms ensuring international cooperation in the field of sport, namely, international sports law.
What is the nature of the set of rules governing cross-border relations in the field of sport? They are mainly the result of rule-making carried out by the International Olympic Committee (the IOC) and the international Olympic Sports Federations. The article analyzes the approaches proposed by Western authors and applicable to the solution of the issue under consideration, elucidates the main provisions of the concepts of unified law governing relations between groups proposed by Georges Scelle, transnational law proposed by Phillip C. Jessup, and true international law proposed by C. Vedder.
However, the best explanation for the interaction between national sports associations and international nongovernmental organizations of the Olympic Movement is provided by lex sportiva. Lex sportiva is similar to lex mercatoria that is used to regulate international trade. Both complexes have such properties as normativeness, non-systematicity, autonomy in the regulation and resolution of disputes. However, lex sportiva is characterized by a greater degree of institutionalization than lex mercatoria. There are two factors that contribute hereto: a pyramidal structure of the Olympic movement and activities of the Court of Arbitration for Sport (CAS) in Lausanne that was founded in 1983 at the IOC initiative. A greater degree of institutionalization of lex sportiva provides the right method for selection of norms and contributes to a stronger regulatory order in the field of Olympic sport.
At the present stage, there is a tendency whereby the law created by States perceives useful designs that have arisen in non-legal regulatory complexes giving them legal effect. Therefore, modern lawyers should familiarize themselves with the content of the norms and rules emerging in non-legal complexes in areas of their concern in order to foresee what impact such norms can have on the development of the legal norms in the near future.
CYBERSPACE / CYBERSPACE
The paper deals with the problems of application of artificial intelligence (AI) in the field of justice. Present day environment facilitates the use of AI in law. Technology has entered the market. As a result, "predicted justice" has become possible. Once an overview of the possible future process is obtained, it is easier for the professional to complete the task-interpretation and final decision-making (negotiations, litigation). It will take a lot of work to bring AI up to this standard. Legal information should be structured to make it not only readable, but also effective for decision-making. "Predicted justice" can help both the parties to the case and the judges in structuring information, and students and teachers seeking relevant information. The development of information technology has led to increased opportunities for "predicted justice" programs. They take advantage of new digital tools. The focus is on two advantages of the programs: a) improving the quality of services provided; b) simultaneously monitoring the operational costs of the justice system. "Predicted justice" provides algorithms for analyzing a huge number of situations in a short time, allowing you to predict the outcome of a dispute or at least assess the chances of success. It helps: choose the right way of defense, the most suitable arguments, estimate the expected amount of compensation, etc. Thus, it is not about justice itself, but only about analytical tools that would make it possible to predict future decisions in disputes similar to those that have been analyzed.
The paper deals with the problems of definition of the concept "investment" in multilateral and bilateral investment treaties. The author shows how the approach to the definition of "investment" in international investment agreements has changed over time, how this concept differs in modern agreements from those enshrined in agreements concluded more than ten years ago. It is noted that today we can talk about the trend of a broad definition of the concept of investment in international treaties, that is, investments are understood as any kind of property values; further the author specifies what applies to them.
International treaties on the protection and promotion of investment also include the right to engage in business activities. It turns out that investment disputes can arise from ordinary commercial activities, for example from a contract of sale. However, there are documents that do not include monetary claims arising from commercial contracts, such as the 2012 model bilateral investment Treaty of the South African development Community.
Generally, investment protection agreements do not distinguish between direct and portfolio investments. Therefore, portfolio investments also enjoy the protection of these investment treaties. However, some of the international investment agreements that are currently being concluded specify that portfolio investments are excluded from their scope, such as the Model bilateral investment Treaty of the South African Development Community.
In the literature there are three approaches to the qualification of foreign arbitral awards as a foreign investment. According to one of them, the award is an investment, because it is part of the entire activity of the investor. Some modern international investment agreements contain provisions according to which arbitration, judicial decisions are not investments.
The paper examines the issues of establishing international judicial jurisdiction in relation to crossborder consumer disputes in the digital environment. To this end, the author makes a comparative analysis of the grounds for establishing judicial jurisdiction in the form of "distribution of advertising in the information and telecommunication network "Internet", aimed at attracting the attention of consumers" enshrined in art. 402 part 3 para. 2 of the Civil Procedural Code of the Russian Federation, and the criterion of "directed activity of the professional party to the territory of the country of residence of the consumer", provided for in EU law.
The paper provides proposals for the interpretation of the grounds of jurisdiction of the Russian court, i.e. "advertising in the information and telecommunications network "Internet", aimed at attracting the attention of consumers in the territory of the Russian Federation", which should determine the use of protective judicial mechanisms in relation to the consumer from the use of an adverse judicial jurisdiction of a state, and against the employer, with the reasonable possibility of foreseeing the establishment of judicial jurisdiction of the consumer.
MEGA-SCIENCE / MEGA-SCIENCE
The integration of states in the field of education has given rise to the expansion of various forms of cooperation in this area. The subject of the study is one of the large-scale scientific projects called "megasience" — Institut Laue-Langevin (ILL), based in Grenoble, France. Such international research centers are designed to achieve breakthrough discoveries, like the Large Hadron Collider (LHC) in Europe, the Laser Interferometric Gravitational-wave Observatory (LIGO) in the United States, and neutron research through the research reactor complex PIK, under construction in Russia. Large research infrastructures are an important phenomenon of public life. In France, megasience installations are officially called "very large research infrastructures", briefly TGIR, in Australia — "landmark research infrastructures".
The Institut Laue-Langevin is established as a national legal entity and is managed by three partner countries: France through the French Alternative Energies and Atomic Energy Commission (CEA) and the French National Centre for Scientific Research (CNRS); Germany through the Jülich Research Centre (FZJ) and the United Kingdom through the Science and Technology Facilities Council (STFC).
This form of cooperation between countries, integration of states in the field of education has a number of positive aspects and can be used in Russia to find the most effective model for organizing mega-science projects. Thus, ILL make ot possible to use different sources of funding-funds from both the state and private research and grants, as well as European projects. The ILL provides for the possibility of diverse cooperation and participation of various states, the involvement of scientists and individuals, including non-European countries, open membership. The positive features are also the ease of management and reorientation of ILL, flexibility, as well as the ease of cooperation with various institutions of both national and European and international level.
Formation and development of the modern network society is accompanied by domination of informatization, wide use of the Internet, information interaction of various technical means in interests of public, social and economic relations. This directly affects such important areas as security and the development of science and education. It makes revolutionary changes in pedagogical practice, transfer and exchange of knowledge, creation of a new professional community of teachers, scientists and engineers. Innovative approaches to the organization of training of specialists in various fields, virtual universities, network transnational consortia of researchers and developers are being formed. In these conditions, it is legitimate to talk about a new branch of law, i.e. the "network law", which regulates public relations, built with the use of infosphere, which is correct and in the interests of national security. Legal regulation of science and education in the interests of national security in a networked society should be considered as a complex, systematic and continuous process that requires improvement of organizational and managerial mechanisms, the legislative framework based on the strategic goals of ensuring national security of Russia, the priorities and objectives of the state national policy. The paper substantiates the existence of a systemic relationship between the features of the network society, national security, education and science, which are in close interaction, complementing and conditioning each other. Taking into account the research goals and objectives, the main provisions of the National Security Strategy of the Russian Federation 2020, the Federal law "On education in the Russian Federation", presidential decrees and government resolutions on science and education are analyzed. The conclusion is formulated that the legal regulation of science and education in the interests of national security in a network society acquires a special role as a strategic resource for sustainable development of modern society and an important factor of socio-economic and technological development of Russia.
COMPARATIVE STUDIES / COMPARATIVE STUDIES
The paper analyzes the key supranational public procurement instruments adopted within the framework of the West African economic and monetary Union, especially the legally binding directives (Directive 04/2005 on the award, performance and payment of public contracts and Directive 05/2005 on the control and regulation of public procurement), which require further implementation into the national legislation of the member states. Special attention is given to the documents that, although they are advisory in nature or only indirectly affect the issue under study, but have had a significant impact on the formation of directives — the Regional program for improving the efficiency of public procurement and the UEMOA Code on transparency in public finance management. The principles of legal regulation of public procurement in the UEMOA are revealed: the principle of cost — effectiveness and efficiency of procurement; the principle of free access to the public procurement market; the principle of equal treatment of candidates and mutual recognition; the principle of transparency, rationality, modernity of procurement procedures and the possibility of tracking them; the principle of non-discrimination on the basis of nationality in relation to enterprises of the UEMOA member states and the principle of non-violation of competition when transferring a state contract to subcontracting; de minimis principle. A brief description of the procedures for awarding public contracts established in this organization, namely tender (there are several varieties of tender, the main of which are open and closed) and procurement from a single supplier. Some aspects of the legal regulation of public procurement in UEMOA are compared with other integration associations, in particular with the European Union and the Common market of South America (MERCOSUR).
The paper deals with the problems of consumer protection rights in the distance selling and service provision, e-Commerce under the law of the European Union (the main and additional requirements for the information provided at various stages of the agreement; the consequences of non-fulfillment of the information obligations by the counterparties of the consumer provided by the EU law). The provisions of the acts of primary and secondary law of the European Union affecting the regulation of consumer protection rights in the distance selling and provision of services, e-Commerce are analyzed. The responsibility of service providers acting as intermediaries in the implementation of e-Commerce is considered. The classification of prohibited types of unfair influence on the economic behavior of the consumer is provided, i.e. improper influence, unfair commercial activity (and its types), etc. The prospects of studying and adapting the experience of the European Union in the field of regulation of consumer protection in the distance selling and provision of services, e-Commerce for the Russian Federation are noted. Some features of regulation of sale of goods (services) through the Internet are highlighted, and general recommendations on improvement of the current legislation are given.
The paper considers the reform of the Chinese legislation regulating foreign investments carried out in 2019. The author aims to identify the principles on which the reform was based, which took the form of the law on foreign investment. The methods of comparative analysis of accepted norms and those norms that have been audited were used. The revealed principles were analyzed from the point of view of their system. As a result of the analysis, the author comes to the conclusion about the fundamental principle underlying the reform — the principle of openness. However, the specification of this principle is possible through the formation of legal mechanisms that ensure its implementation. Thus, the Chinese legislator establishes equality of the Chinese and foreign investors, uses the receptions of legal writing worked out in the previous period, forms the system for ensuring administrative-legal and judicial protection of the rights of foreign investors. At the same time, the emerging regulation is largely focused on those standards of investment regulation that have developed in international practice. This suggests that the Chinese authorities are "denationalizing" investment regimes. In general, the paper concludes that, despite the progressive nature of the adopted Law, it is largely based on the legal and technical methods developed in the previous period. In addition, a significant part of the norms is declarative and requires the adoption of additional regulations establishing the mechanism of implementation of the Law. At the same time, the paper predicts the problems that will manifest themselves in the process of applying the Law and which, most likely, will be overcome by judicial practice.
RECOMMENDED BOOKS AND REVIEWS / INDEX LIBRORUM
The reviewed monograph is devoted to the theoretical and legal puzzle — complex conflicts of law (coincidence of conflicts, competition of conflict of laws). The book contains a number of valuable ideas on the topic of research. In particular, the authors correctly distinguish between positivized conflict-of-laws rules and principles (maxims) developed by lawyers to overcome conflicts (conflict-of-laws rules of interpretation), which may be inconsistent with each other. This gives rise to complex conflicts. The authors successfully demonstrate this by the example of the complex fate of the lex posteriori derogat priori principle in the legal system of Armenia. The work provides a comparative legal study of the legal regulation of the resolution of conflicts of norms, including complex conflicts, in the post-Soviet States. The hierarchical system of conflict criteria proposed by the authors to overcome complex conflicts of law is very interesting. In addition, the monograph describes in detail the problems of "non-systemic conflicts" in law, which are understood as antinomies of principles and norms of law and inconsistency between the principles of law. At the same time, there are a number of controversial theses in the work, for example, on the priority of the humanistic substantive criterion of conflict resolution over traditional legal criteria (such as lex superior, lex specialis, lex posterior); on the need to allocate competence and industry criteria as separate criteria for overcoming conflicts; on the restrictive author’s interpretation of the scope of application of the lex specialis conflict principle. These controversial ideas are criticized in the review in a well-reasoned manner.
ISSN 2686-7869 (Online)