ARCHIVE FOR 2019 RUSSIAN
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Май 2019
CONTENT
Chief editor’s column
Interview of the issue
L. Lessig AI Technology Is Going to Displace a Huge Class of Lawyers Interview with Lawrence LESSIG, Roy L. Furman
Professor of Law and Leadership at Harvard
Law School, with Vladimir Bagaev, Director of
“Zakon” Publishing Group, Alexey Ivanov, Director
of HSE — Skolkovo Institute for Law and Development,
and Alexander Vereshchagin, Editor-in-Chief
of “Zakon” Journal
The Event. Comments of the Experts
Topic of the issue
A.V. Gracheva From Legal Informatics to Legal Tech: History of Development in Russia and Abroad This article offers an analysis of the historical development
of legal informatics in Russia (Soviet Union) and other
jurisdictions. The research aims to structure the knowledge
in the field of legal and technological convergence from
the standpoint of legal engineering. The empirical material
of the research includes both contemporary articles and
fundamental publications from the corresponding historical
periods. The article provides a brief historical report on
the development of legal informatics over decades, starting
with the prerequisites for its formation in the 40s — 50s of
the XXth century. As a result, special aspects of Russian
(Soviet) and foreign legal informatics are identified. The USSR,
and later — Russia, is characterised by a large number of
legal teach developments in forensic science and criminal
investigation. Foreign legal informatics for commercial and
non-governmental purposes evolved much earlier. Moreover,
legal tech research projects developed at universities also
have their own features, e.g. foreign universities organise legal
hackathons, support start-up projects; legal theory professors
raise questions at the interface of law and artificial intelligence.
All above mentioned aspects require a more active involvement
in the international dialogue.
Keywords:
artificial intelligence and law, history of legal informatics, legal cybernetics, legal technology
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I.V. Tsvetkov, S.Yu. Filippova Contractual Regulation of the Commodity Market: Trends and Prospects in the Age of Digital Economy and Use of Modern Technologies This article discusses how modern technologies in
financial markets can be used to modernise the contractual
regulation of commodity markets. The authors describe
possible improvements in the structure and infrastructure
of commodity markets. They predict the transformation of
the commodity market because of the introduction of smart
contracts, which fundamentally change the interaction
between the parties. The use of smart contracts will impact
and significantly simplify contractual work. The main obstacle
to the use of smart contracts in the commodity market is
the complexity of tokenisation of heterogeneous goods, but
the authors believe that the product range will be inevitably
and dramatically changed. This poses new challenges to law
and legal doctrine. The authors present their experience of
legal futurology: their views of the nearest future of domestic
commercial law, forced to follow the technological progress
and the needs of traders.
Keywords:
commodity market, commercial law, tokenisation, blockchain, commodity warehouse, distribution centers, standard contracts, smart contracts, standardisation, self-regulation
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R.M. Yankovskiy Legal Design: New Challenges and New Opportunities The topic of the article is Legal Design, which generally
consists in a creative approach to legal tasks. This method
has spread widely with the development of legal technologies
that improve the efficiency of everyday aspects of legal job
(aggregators, machine learning algorithms, distributed
instruments etc.) As IT developers are using the method
of design thinking (UX/UI design, prototyping, a/b testing,
scaling), it is also gradually getting into to the legal
community. When I started to write this article, I faced a hard
choice: either to use legal design methods (client-oriented
approach, visualisation, simplification) or mask the content
under the layer of pseudo-scientific jargon and sophisticated
citations related to behavioristic psychology. I’ve chosen
the first option following the Legal Design philosophy and I
hope the reader will appreciate that.
Keywords:
legal design, legal writing, Legal Tech, legal drafting
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N.A. Kulikov Jurisprudence in the Era of Industry 4.0 The author considers the prospects of automation of the legal
profession in times of intensive automation and robotisation
of production processes. It is noted that, along with Legal
Tech as a tool for lawyers, Law Tech has recently fully declared
itself as a new concept of legal services and legal assistance,
and this is where the main dangers of replacing lawyers with
artificial intelligence lie. Taking this into account, the author
proposes to discuss not the possibility of automation but
its moral side, and comes to the conclusion that despite
all the technological progress, even the least serious
development of automation in the legal environment will be
impossible until the ethical aspects are covered: in a perfect
world, automated decision-making should not be rechecked
and duplicated by an additional participant in the process —
this contradicts its very essence.
Keywords:
Legal Tech, Law Tech, automation of legal activities
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S.L. Budylin Chilling Effect Law on disrespect of government. — Law on fake news. —
Law on sovereign Internet. — Law on digital rights. —
Case of a bankruptcy tourist. — Case about the place of
offshore company administration. — Advo-gate: civic duty
or ratting? — Mueller report. — EU Copyright Directive. —
Elections in Ukraine
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Discussion Board
A.A. Ivanov Many Shades of Grey: Absolute and Relative Rights (Digital Practice with a Touch of Theory) In the era of the digital revolution, the nature of rights to digital
content is becoming more and more acute, and a new category
of civil rights is increasingly being talked about. The author,
however, believes it would be useful for practice to analyse
rights to digital content in light of the classical dichotomy
of absolute and relative rights, so he performs this analysis
using the example of products of a well-known manufacturer
of mobile devices and applications. As a result, the author
concludes that despite all the apparent complexity, it is still
possible to determine the point (criterion) of differentiation
between absolute and relative rights to digital content, which
is the ability to dispose of such content without the help of
a counterparty under the contract stipulating this right.
Keywords:
dichotomy of absolute and relative rights, digital rights, exclusive rights, digital content
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Press Release
Theory and practice
M.L. Galperin, Ya.Yu. Borisova International Courts: Facts vs Law? This article analyses contemporary approaches in the European
Court of Human Rights practice to the collection and
considering of evidence in international litigation. The conclusion
is made that the existing “flexible” evidential practice,
which relies on different presumptions and the “beyond
reasonable doubt” concept, could pose serious risks to
the entire international dispute resolution system. It is an
especially important statement with regard to the cases of
massive human rights abuses, including interstate disputes.
The mentioned problems can be solved only through dialogue
between the national and supranational jurisdictions and
acceptance by the international tribunals of the instruments
developed by national courts.
Keywords:
evidence, international courts, human rights protection, international law
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A.V. Neznamov, B.W. Smith It’s Not the Robot’s Fault! Russian and American Perspectives on Responsibility for Robot Harms This article covers the problem of responsibility for
the actions or inactions of robots from the standpoint
of two jurisdictions — the United States and Russia.
With reference to the provisions of national law authors
demonstrate existing approaches to the problem of liability
in legislation, as well as in the theory of law and in the law
enforcement acts. The authors propose a comprehensive
approach to the problem of determining civil liability based
on the relationship between a specific subject and the cyberphysical
system and its culpability for the harm.
Keywords:
legislation, robot, responsibility, international experience, robotics, development of legislation, comparative legal analysis, concept, legal regulation, research, cyber-physical systems
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V.A. Korneev, M.A. Kolsdorf Disputable Issues of Database Regulation This article deals with the issues related to the interpretation
and application of the Russian Civil Code provisions on
databases. Special attention is paid to analysing the key
concepts, which define the database protection under
neighboring rights. For the purposes of comparison, the authors
consider the current regulation of databases in the European
Union and provide the viewpoints of the European Court of
Justice on the interpretation of the same key concepts.
Keywords:
database, term of protection, database maker, extraction, substantial part, re-utilisation, infringement
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V.G. Akimova, K.Yu. Litvinova, I.B. Shtukmaster, A.B. Kuznetsov Limits of Interference in Tax Planning in Tax Administration The article touches upon the crucial problem of the efficiency
of anti-avoidance strategies applied in tax control in
Russia — the wide discretion of tax authorities in assessing
the conditions of taxpayers’ business transactions. As practice
shows, tax authorities use neither civil law mechanisms
nor standards of proof of fake transactions, replacing
them with general statements about fictitious actions and
nominal document flow. In addition, they actively interfere in
the assessment of the method chosen by the entrepreneur to
achieve the economic goal, despite the fact that courts have
repeatedly declared such interference inadmissible. All this
leads to greater uncertainty in the tax sphere.
Keywords:
tax administration, tax control, business purpose of transaction, fictitious transaction, sham, tax evasion, anti-avoidance strategies
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E.V. Mokhova Transnational Turnover in Light of the Draft Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters The article is devoted to the draft Convention on the
recognition and enforcement of foreign judgments in civil or
commercial matters, developed by the Hague Conference on
Private International Law. The article analyses the creation
and architecture of the Convention, its scope and the
concept of indirect international jurisdiction, which implies
verification of the competence of the foreign court that issued
the judgment. The problem of jurisdictional gap between
direct and indirect international jurisdiction is considered.
The author supposes that legal systems will be increasingly
influenced by two key trends: on the one hand, uniformity
and simplification of the cross-border foreign judgments
circulation, and the diversification of recognition and
enforcement of judgments in different categories of cases,
on the other. The article draws parallels with Russian judicial
practice.
Keywords:
recognition of foreign judgments, enforcement of foreign judgments, jurisdiction, indirect international jurisdiction, Judgments Convention
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M.V. Gassiy Trends in Transition from Natural Monopolies to Competitive Environment in Russia This article analyses preliminary results and prospects
for the implementation of the main documents that have
been determining domestic policy in the field of natural
monopolies in recent years. Using the example of the unitary
enterprise procurement reform, the author shows that
seemingly sound efforts to denationalise less competitive
economic activities might produce a negative effect and
cause new threats to competition. To avoid this, a gradual
transition of natural monopoly markets to competitive ones
should be ensured.
Keywords:
regulation of economic activities, natural monopolies, protection of competition, public procurement, unitary enterprises
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