Журнал ЗАКОН

Interview with Alexander V. KONOVALOV, Minister of Justice of the Russian Federation, with Yan Piskunov, Editor-in-Chief of the “ZAKON” Journal

The St. Petersburg International Legal Forum is a place for the representatives of the widest possible range of jurisdictions and practices to meet and discuss the most vital legal issues. It allows building a likeness of the legal picture of the world. We approached the participants of the Forum 2017 with the following question: what challenges will require that law evolve in the nearest future and why?

The paper presents the concept of beneficial ownership for income. The author determines approaches to identifying and proving the facts of misapplication of double taxation treaties. The paper reasonably concludes that treaty benefits may be granted only to the companies with substantial economic activities in the country of residence and exercising their right to dispose of the income. Thus, the company’s activities require a comprehensive analysis of not only its personnel, premises or business expenses but also its disposal of income in terms of independent decision-making, transfer of assets, flows of money, as well as derivation of economic values through use of income and commercial undertakings. The author gives examples of how the concept is applied by Russian law enforcers and explains sufficient evidence for the proof of entitlement to the treaty benefits.

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Keywords: income receiver, beneficial ownership for income, actual income receiver, double taxation agreements, OECD Model Tax Convention

The paper focuses on modern market mechanisms for stimulating users of natural resources to adopt effective environmental technologies. The authors analyse the legislation on ecological payments, tax benefits, emission quotas, green subsidies, and practices of applying these provisions in OECD countries and Russia. Finally, court decisions on disputes over environmental management are reviewed, and a set of measures is proposed for improving the legal regulation of environmental incentives, first of all, through the specific use of adverse environmental impact charges.

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Keywords: environmental payments, green subsidies, tax benefits, adverse environmental impact charges, environmental investment deduction, green technologies

The arbitration potential for Russian corporate disputes will be under the spotlight at the round-table “Corporate and Complex Business Disputes in Arbitration. New Opportunities and New Challenges”. Besides, the “Arbitration Battle” between the teams of RULFs and ILFs develops around corporate dispute. The legislative reform has recognised both external and internal corporate disputes as arbitrable. A special procedural form of internal corporate dispute resolution has been introduced to ensure the efficient participation of both a legal entity and all its shareholders in the arbitration. The paper explores the conditions under which Russian corporate disputes may be referred to arbitration along with key features of the special procedural form of arbitration of corporate disputes.

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Keywords: corporate dispute, arbitral tribunal, international commercial arbitration, arbitrability of a dispute

Using the US experience as a benchmark, the author is showing how the compulsory licensing is extensively utilised as a tool for stimulating innovation, as well as an essential balancing element for the efficient intellectual property regime. The paper outlines the questions to be discussed at the session “Promoting competition and innovation through access to non-voluntary licensing: the pharmaceutical industry experience” jointly organised by the Federal Antimonopoly Service of Russia and the HSE — Skolkovo Institute for Law and Development in the framework of the VII St. Petersburg International Legal Forum.

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Keywords: compulsory licensing, intellectual property, TRIPS, competition law and policy, innovation

This paper is focused on the analysis of certain legal issues, associated with the implementation of blockchain technologies and smart contracts. Specifically, it addresses the possibility of qualification of blockchain records as electronic documents; applicability of electronic signature legislation to transactions performed in the blockchain, as well as certain issues associated with qualification of blockchains and smart contract codes as computer programmes and liability for the quality of such code. Special attention is given to the definition of ‘smart contract’ and possibility of its qualification as civil law agreement. The paper also covers certain questions about using blockchain data as evidence in litigation. It includes the analysis of possible legitimising grounds for personal data processing in blockchains and compliance with data localisation requirements since blockchain data may be considered as personal data in some cases.

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Keywords: blockchain, smart contract, electronic document, electronic signature, electronic evidence, computer programme

Corporate legal community has become increasingly involved into dealing with various challenges stemmed from inevitable invasion of technology into legal profession. While some can still view these subjects as terra incognita and other consider innovations and automation as fierce competitors aimed at replacing lawyers with machines. However, most leaders in the corporate legal world acknowledge that technological breakthroughs are a new reality. Strategically driven corporate legal leaders clearly realise that embracing innovation will bring a significant competitive edge going forward. Below we are sharing the views of a number of corporate legal leaders on how technology and innovation help them advance legal department strategies and improve efficiencies. We will discuss these topics in more detail in RCCA session at the VII St. Petersburg International Legal Forum on May 17, 2017.

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Keywords: automation, innovation, lawyers, legal department

The paper analyses the development of such phenomena as globalisation of cross-border insolvency cases in Russia in their increasing complexity and multi-jurisdictional nature. A retrospective of westbound bankruptcies is presented by the cases of recognition of Russian proceedings in Western Europe and USA, where near-insolvent debtors frequently siphon off their assets and migrate themselves. The prospects for bankruptcy globalisation in the Eurasian direction (into the EAEU states) are assessed in terms of three factors, including classical freedoms of integration, freedom of judgments’ movement, and access of foreign persons to domestic bankruptcies. For finding solutions, the author notes the importance of examining the extensive experience worldwide and crossborder insolvency regulation models throughout Europe, Latin America, Africa, and Asia.

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Keywords: cross-border insolvency, cross-border bankruptcy, foreign insolvencies recognition, foreign judgments recognition, Eurasian Economic Union (EAEU), Eurasian integration, insolvency in the EAEU member states

The paper looks at economic, social, tax and legal aspects of how aggregators (Uber, Gett, Airbnb etc.) function. These entities has recently appeared and are now considered by experts as a brand new form of business organisation which might beat other forms in future. The author proves that the role of aggregation industry is vastly overestimated, however, in economic terms aggregators may be defined as certain facilitators which function using the Internet and mobile applications. The paper largely focuses on the analysis of organisational and legal forms of aggregators, structure of their contractual relationships, and the role electronic devices, Internet, and mobile applications play in their activity. Contractual network is a distinctive feature of aggregators. The way how aggregators establish their legal relations might result in negative attitude of states towards them since states strive for different goals. Thus, aggregators are unwelcome in certain market segments.

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Keywords: digital economy, aggregation business, Internet, mobile applications, conclusion of contracts, facilitation

The paper provides one of the possible approaches to analysis of robotics-related legal issues concerning potential legal personality of robots. For the purposes of this paper, the term “robot” is defined along the lines of a complex device operating on the basis of its own information system, able to act autonomously and physically interact with the environment. The authors suggest considering the approaches of “robot as animal”, “robot as legal entity” and the issues of legal responsibility. The paper discusses potential effects of legal interpretation of the term “will” in legal meaning in application to robots, examines legal responsibility in the context of autonomous actions of robots, and also suggests potential grounds to consider the analogy between robots and legal entities. In addition, based on the examples of criminal law definitions, problems of form of guilt with respect to human-robot relationships are considered. The paper primarily aims to engage in the discussion.

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Keywords: robot, artificial intellect, legal personality, civil law, responsibility, robotics

The paper focuses on the state’s legal status as a party to a corporate relationship, and specifically, its shareholder liability (in a limited liability company). The author considers the particularities of management of public joint-stock companies, including issuing voting directives to Board members nominated to the Board of Directors by the state, and arrives at the conclusion that the state may be brought to secondary liability due to being an actual controlling person. The author believes that the state may be recognised as a controlling person and, where other statutory grounds are met, may be held liable for the debts of the controlled entity that became bankrupt through its fault. Nevertheless, despite the legal opportunities of bringing the state being a party to a corporate relationship to pecuniary liability we encounter actual difficulties with a conflict of private and public interests arising, for example, from treasury restraints.

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Keywords: asset liability of the state, tort liability of the state, state as a shareholder, liability of the controlling shareholder (participant), liability in corporate relations

International and foreign fora are increasingly calling into question statutory instruments and judgments emanating from Russian authorities. Instead of unconditional recognition of their legal force, the courts of England and the United States begin to inquire into the validity, the origin of these acts and the context in which they were adopted. Despite this, Russian litigants still believe in the absolute nature of the act of state doctrine, and, at the first opportunity, put forward respective arguments. However, such a tactic is based on misunderstanding by Russian participants to a dispute of the modern act of state doctrine, which was formed by 1983 and operates as a bar to courts to adjudicate upon sovereign acts of foreign states. However, since the mid-1980s onward as London became an international center for dispute resolution, the case law began to depart from absolute positions toward exceptions in the application of this doctrine, and not the least role began to play here considerations of natural justice and the standards of justice.

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Keywords: act of state, non-justiciability, international comity, immunity, standard of justice, rule of law