A WORD TO THE READERS
KUTAFIN UNIVERSITY CHRONICLE
EXPERT OPINION
Sanctions which were imposed by unfriendly nations on the Russian state, legal entities and individuals are unilateral coercive measures which have no basis in international law. They are indiscriminate since they apply to large groups of individuals and legal entities on the basis of their nationality. They are aimed at infringing on the sovereign rights of the Russian state and changing its policy.
For compensation of losses which Russian companies have suffered abroad the latter should be provided with the opportunity to demand that the assets of foreign companies from the relevant unfriendly jurisdictions should be transferred to the external management of the Russian companies. Russian investors are also entitled to seek protection under international investment treaties due to the fact that the expropriation of their property was carried out without legal grounds and without payment of prompt, effective and adequate compensation. The legal reality which exists in relations with unfriendly countries demonstrates the crisis of traditional dispute resolution mechanisms and the necessity for establishing new effective international instruments.
VECTOR OF LEGAL SCIENCE. Topical Issues of Private International Law
Private international law stands apart in the legal system due to its special subject and method. Currently, the potential of private international law is being revealed in a new way due to the emergence of a new type of “space” — cyberspace, and many traditional institutions and problems of private international law are finding opportunities for a new interpretation or solution. At its core, private international law is the right of the avant-garde, in connection with which the idea arose of considering its individual institutions through the prism of art. And it was the work of the Belgian artist Rene Magritte that, according to the author, turned out to be most in tune with many of the sought-after issues of private international law. This article is an exclusively author’s attempt to combine legal matter with painting, aimed at illustration with the help of an artistic form of legal content.
VECTOR OF LEGAL SCIENCE. Economic Sanctions in Private International Law
The article deals with the problem of the influence of contractual relations on the issue of exhaustion of exclusive rights and the organization of parallel imports in general. The fact and form of the consent of the right holder to use the intellectual property object as part of a specific product, batch of goods, as well as determining the fact of the completed use of intellectual property rights during the primary sale of goods are of particular importance for understanding the nature of the exhaustion of rights and resolving disputes in the field of parallel imports. The solution of the problems under consideration is complicated by the territorial principle of protection of intellectual property rights. The author substantiates that contractual structures and specific provisions of contracts with right holders, as well as various related contractual structures, including sublicensing agreements, franchising agreements, can play the role of legal means that ensure parallel imports.
The conclusion is drawn that the possibility of expressing the consent of the copyright holder to the use of other objects of intellectual property, including a trademark, objects of patent rights, through a unilateral expression of will (statement of the copyright holder) should be provided for by law in the Civil Code of the Russian Federation.
The necessary balance between the intangible nature of intellectual property and the material nature of the object of property rights in which it is expressed, in the context of the initiative granting by the right holder of the right to use the object of intellectual property in a particular product, can be achieved through perception at the regulatory and law enforcement level. the concept of an implied license as a way of granting the right to use an object of intellectual property
The article analyzes the problem of the correlation between the restrictive measures introduced by Russia against foreign investors, as a response to sanctions from unfriendly foreign states, and the guarantees for foreign investors, provided for by treaties for the promotion and reciprocal protection of investments. After that many foreign investors stopped or suspended their activities in Russia.
To protect the national interests of Russia and ensure the stability of its economy, restrictive measures have been introduced against foreign investors: a ban to transfer assets from Russia abroad, a special procedure to carry out transactions with foreign persons from unfriendly states. A bill on external administration has been passed.
According to foreign experts, such measures can be understood as violation of international investment treaties, and may affect companies, whose investments in Russia can be expropriated without compensation, the investors may get protection under these treaties.
Russia introduced the above restrictions in response to the sanctions of unfriendly countries against our country and the departure of foreign investors, in order to maintain stability in the economic sphere, in order to ensure the security of the state. The author concludes that such restrictions based on the doctrine of reasonable state regulation are legitimate, since the state is forced to protect the national economy.
The article examines the practice of application of Article 248.1 of the Arbitrazh Procedural Code of the Russian Federation by Russian courts. On the basis of the doctrine and judicial practice analysis, the author highlights two approaches to the interpretation of the condition limiting the sanctioned party`s access to justice which allows to transfer a dispute to the jurisdiction of the Russian arbitration court despite the clause referring the dispute to a foreign court or arbitration.
Considering each of these approaches, the author concludes that this condition should not be interpreted broadly and that the mere fact of the existence of personal or sectoral sanctions is not sufficient to establish that he has obstacles in access to justice. In order to correct the prevailing approach and to ensure a uniform interpretation of para. 4 Art. 248.1 of the Arbitrazh Procedural Code of the Russian Federation, it is proposed to adopt the Resolution of Plenum of the Supreme Court of the Russian Federation. This Resolution must contain the rebuttable presumption that the sanctions imposed by a foreign state in respect of a Russian person limit his right of access to justice and, accordingly, provide grounds for “transfer” the dispute to the jurisdiction of the Russian court.
VECTOR OF LEGAL SCIENCE. Disputes in private international law
The possibility of a harmful effect from information in cyberspace creates «libel tourism», when plaintiff looks for favorable jurisdiction in the absence of close connection between the alleged defamation and forum. In order to correctly interpret the close connection in asserting jurisdiction over defamation disputes it is proposed to use a combination of objective factors and subjective factors.
The methodological basis of the article is general scientific methods of cognition. The main importance in the research are special legal methods: the method of formal legal analysis, the comparative that let to identify the key features of judicial jurisdiction to resolve cross-border defamation disputes based on flexible criteria in cyberspace.
This article analyzes the risks that may arise for Russian companies in the event of applying to the state courts of the Russian Federation or China, or choosing an arbitration method for resolving a dispute with Chinese partners. The features of the recognition and enforcement of the decision in the PRC and the Russian Federation are determined.
In this work, it was found that when concluding a cross-border contract with Chinese counterparties, it is necessary to adhere to the following rules: in order to avoid difficulties an arbitration clause should be written with the consolidation of one of the well-known Chinese institutional arbitration centers; if the counterparties do not want to consider the dispute in arbitration, it can be advised to fix the prorogation clause on the resolution of the dispute in the Chinese state court, since the Russian courts are more willing to recognize the decisions of the courts of the PRC.
VECTOR OF LEGAL SCIENCE. Information and Communication Technologies in Private International Law
In the modern world, some components of legal relations that do not have legal personality — animals, technical devices, artificial intelligence systems — are able to generate results comparable to works. However, neither regulation of this process, nor legal protection regime of its results are provided in international treaties, and are established less than fragmentary in national law. In this regard, the following questions arise: are the results of the activities of the listed components protected under copyright law and who exactly is the author of such results — the owner of the animal/device/technology, or the direct creator of the result, who is not a human being.
A general term “generators of results comparable to the results of intellectual activity” is introduced into the doctrinal turnover, by which it is proposed to understand a component of a legal relation that does not have legal personality in accordance with the law of modern states — animals, technical devices, artificial intelligence, etc., — which, participating in process, partly comparable to human creative activity, are capable of producing (generating) results comparable to objects protected by intellectual property law, in particular, works.
Up to date, the idea of generators as objects, not subjects of law, has not been shaken, and copyrights are not granted to them. In view of the possible commercial and artistic value of the results of their “creativity,” it may be advisable to establish a special protection regime without granting anyone non-property (moral) rights, however, with the recognition of all or some of the property rights in the created object for the generator’s proprietor for a reduced period of time.
The article deals with the problems of formation and change of the value content of contractual monetary obligations in international commercial contracts. The connection of the value content of monetary obligations with the dynamics of changes in the purchasing power of currencies used to denote the amount of monetary obligation is noted. The dependence of the monetary obligation to pay the contract price on the valuation of goods (services, works, intellectual property rights, information products) that serve as a counter representation is analyzed. Attention is drawn to the principle of nominalism, which retains its significance, historically developed in the legal doctrine and legal regulation of monetary obligations. The article highlights topical issues of stabilization of the value content of contractual monetary obligations, taking into account the property interests of the parties to an international commercial contract. The role of currency reservations in the conditions of changes in the purchasing power of the debt currency and the payment currency is shown. Various aspects of the value content of payment obligations involving the use of cryptocurrencies and digital platforms, including in the implementation of international settlement transactions, are considered.
The article notes that the purpose and mechanism of protection of public order in private international law can be understood only at the origins of the rationale for this protection, — in the doctrine of F. K. Savigny. The reasons for the formulation of F. K. Savigny only two exceptions to the displacement of foreign laws by local law, and the characteristics of fixing these rules in Art. 30 of the Introductory Law to the GGU. Analyzed are attempts to misinterpret the doctrine of F. K. Savigny after the adoption of the Rome Convention “On the law applicable to contractual obligations” (1980) and the Decision of the EU Court (2016), which gave a final assessment of these attempts. The influence of the Dutch school on modern international private law in Russia is noted. The consolidation of super-imperative norms in the legislation of Russia and the Netherlands is investigated. It has been established that the first group of norms of direct application of Art. 1992 of the Civil Code of the Russian Federation, the super-imperative nature of which in private cross-border legal relations is directly indicated by the legislator, has, in accordance with the theory of private international law, not a material, but a conflict character. The definition of super-imperative norms of the legislation of the Russian Federation, which ensure the protection of the constitutionally significant values of the state, is given.
The article deals with the problem of the protection of exclusive rights to trademarks, which has an extraterritorial potential, with the protection of rights to domain names, also not limited by the geographical boundaries of states. The author analyzes the correlation of international and national regulation of trademark protection with the regulation of domain name rights. The article notes that a domain name is still not an independent means of individualization. The author predicts the possibility of further attribution of domain names to means of individualization through the adoption of appropriate norms at the national and international levels. The article concludes that in the absence of an international treaty on the protection of rights to domain names and its relationship with the protection of rights to other means of individualization, the provisions of article 10 bis of the Paris Convention for the Protection of Industrial Property of 1883 on protection against unfair competition have significant potential.
Currently, sustainability factors have a significant impact on the economic and investment decisions of companies around the world. ESG data is included as part of the non-financial information, the disclosure of which poses a number of challenges in practice. The main being the lack of universal reporting rules. This article examines the most successful global initiatives aimed at developing and implementing international ESG disclosure standards. The provisions of the latest standards and guidelines governing the procedure, scope and principles for preparing reports on the company’s impact on environmental, social and governance aspects of responsible production are analyzed.
VECTOR OF LEGAL SCIENCE. Contractual Obligations in Private International Law
This article is devoted to the variety of legal relationships in the system of cross-border relations between charterers and charterers of ships. Leasing in the global shipping industry takes on a variety of forms, depending on the sources of financing. The current state of the market is conducive to taking advantage of bareboat charter, known for its inherent tructurality, as well as the legal rigor with which the contracts are qualified for real and consensual. The systematic nature of its regulations concerning the conflictof-laws aspects of the form and procedure for concluding a transaction is reflected in international standards prepared by BIMCO and BARECON, which, however, does not interfere with the self-sufficiency of leasing companies, in this regard, especially if they consider bareboat charter as a source of attracting fixed assets. The need for their depreciation, payment of intangible assets also makes the practice of insurance relevant. Keywords: leasing transaction, vessel chartering, ex
In this article, the author analyzes modern mechanisms for protecting the rights of the child in the context of a regulated transformation of international cooperation between states. On a regular basis, a medical institution appears in the Russian Federation and the development of institutions for the protection and protection of human rights as a universal mechanism for the protection of human rights. This approach is based on the so-called European model of human rights protection, but the adoption of politicized decisions of international bodies for the protection of human rights.
The authors presented sustainable changes that have affected Russian citizens in the exercise of their rights to international protection in the context of a global crisis between states. The methodology is conditioned by the goal of the research and includes, first of all, general and general scientific methods of research: systemic, unified, functional, historical.
As a result of the study, the author concludes that it is necessary to create alternative instruments for the protection and promotion of human rights, the platform for which can be the Commonwealth of Independent States or the community of friendly states. The scientific and practical significance of the presented conclusions is due to a comprehensive analysis of the existing international mechanisms for the protection of the rights of the child in conditions that may affect their modification — the crisis of international cooperation.
The article provides a comparative legal analysis of the concepts of appellation of origin and geographical indication. Often there is an identification of these concepts, in connection with which it seems necessary to correlate these designations and conduct their comparative characteristics in accordance with the norms of international agreements and the legislation of the Russian Federation. The norms of international agreements in the field of protection of the appellation of origin and geographical indication are analyzed. Examples from judicial practice are given. Examples of the appellation of origin of goods and geographical indication known in the Russian Federation are considered. As examples of the appellation of origin of goods, such goods as “Krasnodar tea”, “Vologda butter”, “Tula gingerbread”, “Astrakhan watermelons”, “Zhostovo”, “Khokhloma”, “Gzhel”, “Altai honey”, “Astrakhanskaya sturgeon caviar”. Well-known examples of geographical indications are cheese “Roquefort”, “Shuyskoye soap”.
States are trying to develop the sector of medicine and healthcare in general, as they are one of the factors contributing to the economic development of states. The trend towards the need to invent innovations, both in the field of technology and medicines, leads to changes in the legislation of regional integration associations, as well as in the domestic legislation of the member states of these integration associations. The development of medicine contributes to the development of medical tourism, which is a positive trend. At the same time, the need for innovative development of medicine cannot go in isolation from the norms of religion. With the development of the innovative pharmaceutical business, such issues as the development of modern education, labor legislation, constitutional legislation, as well as the norms of international public and international private law intersect when it comes to private medical companies, cross-border pharmaceutical business. Indeed, the innovative development of health care is possible in the consolidation of the medical community, the exchange of experience, in combination with the norms of religion.
In a situation when the climate on the planet continues to change catastrophically, and the consequences of this change can only be prevented by the rapid joint efforts of the global community, the role of instruments of carbon regulation and their harmonization increases significantly. Among the most important such instruments are carbon pricing instruments and the carbon price that they form. This paper is the first part of an extensive theoretical research of acute issues of carbon pricing on the international and national levels. It compares and analyzes different approaches to the list and elements of carbon pricing instruments, critically analyzes various approaches to the classification of such instruments developed in foreign jurisdictions, and for the first time formulates universal principles on which the carbon price should be based. The author emphasizes the need for a conservative approach to defining carbon pricing mechanisms and carbon price, as well as the importance of distinguishing between carbon pricing instruments and other mechanisms for incentivizing greenhouse gas emissions reduction.
VECTOR OF LEGAL SCIENCE. Foreign experience
Global digital transformation and fundamental changes in the management system open up new opportunities for the development of digital trade along the Belt and Road. The Digital Silk Road received a new mission and task, attracted active attention and broad participation of the countries located along the Belt and Road. In the process of developing digital trade along the Belt and Road, certain dilemmas must be overcome during the construction of the Digital Silk Road. These include problems such as the imbalance in the value of the global digital order, the deregulation of international rules of digital governance and large differences in the regional development of the Belt and Road. Guiding and promoting the construction of digital trade along the Belt and Road in compliance with the rule of law principle, as well as promoting the development of digital rule of law in various countries through the Belt and Road digital trade is of great importance for promoting the qualitative development of digital trade along the «Belts and Paths». Specific ways include: creating a rule of law framework for a «Digital Community of One Destiny», establishing rule of law rules for global digital governance and promoting mutual trust in the rule of law in multilateral cooperation, etc.
STANDPOINT
SCIENTIFIC RESEARCH
Currently, the problems of sovereignty in various functional areas have significantly expanded, which is naturally reflected in modern research, which is influenced by the processes of digitalization, technology development, and foreign policy aspects on the agenda.
With progress and development, the newest threats to the Russian Federation have emerged, namely its independence and independence, which are inextricably linked and interdependent with the socio-economic development of the Russian state, the state of protection of its interests.
The relationship between the established components of sovereignty — the supremacy and independence of state power throughout the territory as static elements with the functional side of the implementation of these components through new spheres of public relations is unconditional, and this fact should be taken into account in the current concept of sovereignty.
The newest types of sovereignty highlighted in the article are objectively significant, but so far, in terms of the level of general theoretical elaboration, they are still “lagging” behind the “classical” theory of sovereignty that has developed within the framework of public law, both in terms of the scale of elaboration and in legal regulation.
TRIBUNE FOR YOUNG SCIENTIST
The article presents the coverage of doctrinal approaches and law enforcement practice of Russian courts in the issue of execution of a foreign judgment using the mechanism of execution of a foreign letters rogatory. On the basis of analysis of legal and doctrinal sources the question of normative regulation of execution of foreign judgment with the use of mechanism of execution of foreign letters rogatory is raised. The mentioned possibility is stipulated as an exception in the Hague Convention on the Civil Process of March 1, 1954 on the issue of recovery of court expenses in the territory of a foreign state, as well as in some legal assistance treaties. However, the trend of law enforcement practice of domestic courts deviates from the provisions of international treaties. In the course of the research, it has been established that there is a substitution of legal mechanisms. This assumption is due to the complexities of translating legal terms that may be given additional content beyond that provided for in international treaties.
PEN TEST
This article is devoted to the analysis of the impact of sanctions and counter-sanctions measures on the formation of the approach of Russian courts to the consideration of disputes in insolvency cases. under the influence of integration processes on a global and regional scale, there is an intensification of foreign economic relations of economic entities from different countries, the interdependence of legal entities is formed within the framework of the international economic process. the active development of international economic activity brings with it not only great profits, opportunities for cost reduction and the development of international communication, but also the most severe crisis phenomena, a great risk of not staying afloat, resulting in a relatively new phenomenon of cross-border insolvency. The author noted the problematic aspects of the impact of sanctions on the consideration of insolvency disputes, including the initiation of bankruptcy proceedings, the inclusion of foreign creditors in the register of creditors’ claims, the recognition and enforcement of foreign judgments. The author studied cases from the latest practice of Russian courts, noted the features of the consideration of insolvency cases involving creditors and debtors of «unfriendly» countries, made conclusions and assumptions about the further development of judicial practice.
BOOKSHELF OF THE DEPARTMENT
LAW IN HISTORICAL INTERPRETATION
POST SCRIPTUM
ISSN 2782-6163 (Online)