ARCHIVE FOR 2018 RUSSIAN
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Май 2018
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
A.A. Ivanov Penetration of Mechanisation in Law The author takes a sceptical look at short-term prospects
for mechanisation of law, but nevertheless does not
exclude the possibility of this process. Major obstacles to
mechanisation include inconsistencies in law which are
indeed intentional and human free will that will inevitably
break legalistic barriers. Artificial intelligence is a concept
central to the analysis of mechanisation of law. Although
lawyers lack a single approach to its definition, it actually
serves as a foundation for Legal Tech since all other specific
aspects might well evolve alongside the legal developments
in general.
Keywords:
automation of law, Legal Tech, artificial intelligence, legal logic, formal regulation
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A.Yu. Ivanov, E.A. Voinikanis Laws for the Fourth Industrial Revolution: in Search of New Foundations The article analyses the problem of growing inequality as
a key feature of the current stage of industrial revolution in
Russia and worldwide. In this context, the authors assess
the effectiveness of legal responses to this challenge. They
explore the problematics of mechanistic nature and limited
capacity of the current legal system regulating economic
relations in the new technological environment and suggest
some novel approaches to upgrade the potential of the legal
system to effectively coordinate economic activities and to
adapt the Russian laws to the demands of the digital economy.
Keywords:
digital economy, economic development, law reform, diffusion of knowledge and skills, competition law
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V.O. Kalyatin The Correlation between Ownership and Exclusive Right in Modern IT-Society Both ownership and exclusive right are absolute and perform
the same functions, although in relation to different objects.
At the same time there is substantial difference between
the two concepts; besides, they have different directions
of application. Therefore, it is not possible to claim that
both cases amount to the same kind of right, though with
variations. Attempts to use the ownership model in relation
to information are still inappropriate and may even disrupt
the normal course of social development. There are also some
points of collision between these two rights. The legislator
provides some instruments for collision resolutions but not
all the conflict situations are covered by the law.
Keywords:
intellectual property, ownership, information, collision of rights
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P. Rawlinson, Eu.A. Arievich, D.Ye. Ermolina Intellectual Property Created Using Artificial Intelligence: Special Features of the Legal Framework in Russia and Other Countries This article analyses (i) the concept of artificial intelligence,
(ii) key issues in intellectual property law arising in connection
with the use of technologies based on artificial intelligence,
and (iii) regulatory approaches in this field that have
been adopted in various countries worldwide. On the basis
of academic research, the conclusion is made that AI-based
technologies are playing an increasing role in the creation of
intellectual property. The authors call attention to key questions
connected with the implementation of artificial intelligence,
such as the protectability of items created by artificial
intelligence and determining the rights holders to such
items). After a broad examination of the relevant laws and judicial
practice in a number of countries, the authors conclude
that no country currently has a comprehensive and uniform
approach to these issues, and offer suggestions for potential
adaptation of legal regulation to the use of fast-moving technologies
based on artificial intelligence.
Keywords:
intellectual property, artificial intelligence, intellectual property law, patent law
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R.S. Ibragimov, T.V. Chirkova Legal Profession Evolution in the Age of the World’s Digitalisation The changing role of corporate counsels against the backdrop
of development of enabling technologies, digital economy
and innovations has recently become a topical issue.
Therefore, addressing this theme might provide lawyers with
an opportunity to keep abreast of the most urgent and vital
issues faced by corporations and large businesses in order
to promote continuous development of professional expertise
and managerial capacity in legal department managers.
The discussion of lawyers’ competences at the panel session
of the Non-Commercial Partnership Russian Corporate
Counsel Association “Legal Profession Evolution: From Legal
Language to Digital One” will become an ideal platform for
exchange of experiences and ideas among lead managers of
legal departments of major Russian companies and corporations,
who run the legal work of a thousand of corporate counsels,
business representatives and government agencies.
Keywords:
legal profession evolution, professional competences of lawyers, digital economy, legal education
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V.V. Arkhipov ESports Law: Fact or Fiction? The article discusses legal problems in eSports (computer
sports) as a key phenomenon of the entertainment industry
in the context of digital economy. The emergence of eSports
as a social institution is related to the gaming revolution
accompanying the evolution of the information society. Two
main factors characterising relationships within eSports
are the following: the use of multiplayer computer games,
which connects legal problems with legacy-related problems
of virtual worlds; and the sporting nature of activity, which
puts eSports into the context of sports law as such. In its
turn, the first factor predetermines the connection of the legal
problems with eSports to legal problems with information
and telecommunication technologies, the magic circle and
intellectual property. The problem with the magic circle is
interpreted through the general concept of communicative
limits of law. Complementary concepts of the subjective
side, objective side and consent are highlighted. As regards
the intellectual property aspect, the limits of right-holders’
rights are analysed given that computer games are seen as
sports inventory and competition programme at the same
time. An outline is provided for the overall impact assessment
of official recognition of computer sports as another kind of
sport at the level of sports law.
Keywords:
computer sports, eSports, magic circle, intellectual property, theory of law, civil law, digital economy
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Press Release
Theory and practice
M.L. Galperin Russia and ECHR: Is There a Strain? In the present article, the author analyses the key problems
in the development of international justice in conjunction with
international law and policy. Using the European Court of
Human Rights as an example, he demonstrates the underlying
trend of development of international adjudicative bodies.
In the author’s view ensuring the balanced development of
international law as well as the viability of existing international
human rights mechanisms is impossible in the absence of
an effective dialogue between national and supranational
courts.
Keywords:
international law, international justice, protection of human rights, Constitutional Court
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S.A. Arakelov Anti-Avoidance Rules in International Practice. New Legislative Techniques for Countering Tax Avoidance in Russia The Federal Tax Service will be delivering a regular round table
session on anti-avoidance rules in international practice and new
legislative anti-avoidance techniques in Russia during the VIII
St. Petersburg International Legal Forum. This discussion will
involve tax authorities, academics, leading international and
national consulting firms. Assessing domestic approaches to
base erosion and application of anti-avoidance provisions against
taxpayers acting in bad faith will be a major issue for the panel.
The author addresses this issue by describing the criteria for
determining overseas companies as support operations and
concludes that Russian approaches to reclassification of
the aggregate amount of transactions into hybrid instruments
are based on the substance-over-form doctrine and aligned to
the global trends.
Keywords:
aggressive tax planning, base erosion, anti-abuse measures, anti-avoidance rules in taxation, double taxation agreements, beneficial owner
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G.P. Ivliev Patent Expertise: from Monopoly to Competition This paper reviews Rospatent’s initiative to improve
the registration
services for utility models and inventions.
Improvements aim to streamline the process of search and
preliminary examination in respect of the claimed technical
solution, which are carried out by technology specialists in
the specified area in order to determine the state of the art
for Rospatent to make sure an invention or utility model
is patentable. It explains how this initiative can benefit
the applicants. Moreover, it specifically examines the existing
Russian legislation for similar regulations and explores patent
practice in other jurisdictions.
Keywords:
patent, patent examination, patentability assessment, Rospatent’s powers, self-regulation
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A.I. Savelyev Big Data Regulations and Privacy Protection Practices in New Economic Realities The paper is focused on the analysis of possible ways of
improvement of existing personal data legislation in order
to eliminate unreasonable barriers to the implementation
of Big Data technologies in light of associated risks: data
leaks, improper use of data, processing of imprecise data,
and discriminatory practices. The author criticises legislative
initiatives to liberalise collection processing and aggregation
of user data in social networks and other publicly available
data by exempting it from the existing regulatory framework
for data protection. It is argued that adequate protection of
privacy rights of internet users is necessary, since user data
is a continuation of personality in digital area and any noncontrolled
use of it by commercial companies may lead to
loss of trust in online services and dictatorship of data.
Keywords:
Big Data, personal data, publicly available data, profiling
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R.B. Nikitina, M.M. Appak, K.E. Kozhina Selective Distribution in Russia: Problems and Prospects The article addresses the problems of selective distribution
regulation in Russia. Authors analyse the best practices related
to the regulation of selective distribution in the European
Union along with landmark cases reviewed by the European
Court of Justice. This article considers the current regulation
of selective distribution in Russia. Authors note that
currently there are questions related to the implementation
of selective distribution model, which can be resolved on
the basis of existing regulation, and the “grey zone” where
the permissibility of each particular model will be decided by
the regulator on a case-by-case basis. The article contains
a list of measures which can be performed by the Russian
legislator and the competition authority in order to ensure
a more transparent and straightforward regulation of selective
distribution in Russia.
Keywords:
selective distribution, authorised distributor, competition rules, protection of competition
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E.S. Burova, K.V. Koroteeva The Wind of Change: Deliberating Reformof Investor State Dispute Settlement This article analyses the most relevant and debated aspects
of the reform of investor-state dispute settlement (ISDS) and
scrutinizes the concerns voiced within UNCITRAL Working
Group III. The authors examine the idea of a permanent
investment court proposed by the EU and Canada as a possible
substitute for the existing ISDS system. The authors note that
the proposed mechanism highly resembles the model tribunal
in the CETA, a trade agreement between the EU and Canada.
The authors also assess the compatibility of the mechanism
of a permanent investment court with the EU law in light of
the Court of Justice of the European Union’s recent judgment
in Slovakia v. Achmea. The authors come to the conclusion
that involving the professional arbitration community into
the ongoing ISDS reform is essential.
Keywords:
investment arbitration, ISDS reform, UNCITRAL, EU law, European Court of Justice, international law
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A.V. Grebelsky Approaches to Regulation of International Practice across National Jurisdictions One of the issues raised by the reform of the professional legal
services market is the form of activity of foreign law firms
that is acceptable in the territory of the Russian Federation.
Evaluation of the experience of the most important foreign
jurisdictions on this issue has shown that many barriers still
exist in most countries for international law firms. For example,
in the BRICS countries, there are strict restrictions on foreign
law firms’ ownership of shares in local law firms, on foreign
lawyers’ practice of local law, and even on employment of
national lawyers by foreign law firms. However, this does not
prevent international law firms from engaging with closed
markets and consolidating national offices in specific forms.
Keywords:
legal assistance market reform, advocacy monopoly, forms of legal practice, international law firms, partnership with foreign lawyers, Swiss Verein, Directive 98/5/EC
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N.A. Sheveleva, M.Yu. Lavrikova, I.A. Vasiliev Juridical Massive Open Online Courses (MOOCs): Expectations and Possibilities In recent years, the number of Massive Open Online Courses
offered in Russian by Coursera and the Open Education
National Platform has been growing rapidly. There are
legal courses intended for different audiences, but mostly
Law (Jurisprudence) students. At the same time, questions
remain over implementation of Massive Open Online Courses
and results of their integration into the educational process
and the curricula in particular. The current federal educational
standards do not see online courses as separate components
of the academic programme or as any form of its delivery.
However, the recent rules regarding the use of e-learning
and distance learning technologies offer certain solutions for
Massive Open Online Courses and leave regulation of other
issues in the field to the discretion of educational institutions.
In this article, the authors will present their vision of prospects
for legal online courses as part of principal educational
programmes for lawyers.
Keywords:
Massive Open Online Courses, components of educational process, curriculum, legal education
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R.T. Miftakhutdinov The Evolution of Secondary Liability in case of Bankruptcy: the Rationale and Results of Legal Reform In this paper, the author examines the rationale and results of
bankruptcy reform relating to the liability of persons in control
of the debtor. He concludes that the reform was intended
to secure subsidiary liability in torts, thereby providing more
effective regulations for the liability of controlling persons.
The reform milestones are identified and illustrated by
the Russian Supreme Court clarifications.
Keywords:
insolvency (bankruptcy), debtor’s controlling entities, secondary liability in case of bankruptcy, piercing the corporate veil, losses incurred by a legal entity
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