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Май 2018




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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