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Май 2019




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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