Журнал ЗАКОН

Interview with Roberto ANDORNO, Associate Professor at the Faculty of Law, University of Zurich, by Alexander Vereshchagin, Editor-in-Chief of “Zakon” Journal

Comments by M. Tserkovnikov, A. Karapetov, A. Pavlov, S. Sarbash, A. Latyev, S. Solomin, V. Belov

The article provides a comparative analysis of the legal regulation of vaccination in foreign countries on the example of France, Italy, Germany and the United Kingdom. Two opposite models of regulation are considered from the point of view of their constitutional and legal validity, one of which is based on the principle of individual autonomy and voluntariness, while the other establishes the obligation of vaccination, supported by measures of legal responsibility. The risks of infringement of constitutional values inherent in each of the models are analysed. To level out the identified risks and to create a legal mechanism that more effectively ensures a balance between private and public interest in vaccine prevention, the authors propose the introduction of “dormant” norms that begin to operate when certain indicators that signal the onset of an adverse epidemiological situation are reached.

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Keywords: vaccination, mandatory vaccination, informed voluntary consent, the principle of individual autonomy, balance of private and public interests

The article highlights the issues of legal regulation of involuntary medical intervention in the light of the spread of a new coronavirus infection. Based on the analysis of legislation on health protection and sanitary and epidemiological welfare of the population, the grounds for such intervention in connection with the COVID-19 pandemic are formulated. Arguments are made about the need to make changes to the current legislation and exercise judicial control over involuntary hospitalisation, isolation and other types of medical intervention in accordance with the procedure provided for by the Code of administrative procedure of the Russian Federation. Based on the provisions of the Code, the procedural rules for consideration of administrative cases on judicial control of involuntary medical intervention in connection with a coronavirus infection are defined. Various forms of implementation of procedural rights of citizens in the conditions of quarantine measures are considered.

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Keywords: administrative proceedings, judicial control, involuntary medical intervention, forced hospitalisation, isolation, coronavirus infection

The article considers the question of how much unilateral actions such as voluntary consent to medical intervention are allowed through a representative. It is concluded that voluntary consent to medical intervention is one of the actions that can be performed by a citizen strictly personally, the authority to perform such actions granted to another person would contradict the essence of such consent. The author defends the view that voluntary medical intervention is always given on his own behalf: even if the legal representative agrees to the treatment of a minor. At the same time, the author notes the absence in the Russian legislation and judicial practice of an institution that would allow a potential patient to determine in advance who, under what conditions and to what extent has the right to make medical decisions and receive health information. Such an institution exists in foreign legislation and in foreign doctrine, but in Russian law, due to the absence of an appropriate institution, the gap is filled by means of “powers of attorney”. The legal nature of such a “power of attorney for informed voluntary consent” will be discussed in this article.

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Keywords: informed consent, legal regulation of assisted reproductive technologies, fatherhood, power of attorney, representation

Russia and Estonia are neighbors with long-term relations and, previously, with a common legal system. After the USSR’s collapse the civil legislation of both States has undergone significant changes, which is clearly seen on the example of medical care regulation. While Estonian legislation provides for a special contract, which defines relationship between patient and health service provider, in Russia legal disputes between patients and medical care organisations are most often resolved through the rules of tort law. Despite the peculiarities of legal systems, patients in Russia and Estonia face similar obstacles in protecting their rights — the ambiguity of quality criteria of medical care, the difficulty of proving a causal link between treatment defects and harm to health, the significant impact of expert opinion on outcome of the case. Thanks to comparative analysis of the legal means used to overcome these problems, the authors were able to critically assess the current judicial practice in medical disputes, make a number of proposals for improving the legislation (on reversal of the burden of proof in favor of patient, on introducing a system of mandatory patient insurance based on the Scandinavian model, etc.).

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Keywords: patient, medical malpractice, causal link, liability insurance, medical malpractice

The author makes an attempt to critically interpret the existing criteria and of establishing the legal regime of the medical device ex ante and ex post, taking into account the practice of law enforcement. On the one hand, ex ante the manufacturer (before the product is released to the market) independently decides on the purpose of the product and its registration, and on the other hand, ex post the Roszdravnadzor (after the product is released to the market) can change the status of the product, recognising it as a medical one. This twofold approach and the lack of a common understanding of the definition of a medical device creates uncertainty and entails certain risks for manufacturers. The difficulty lies, among other things, in the very nature of medical devices as an initially dualistic object which in some cases can perform other functions not related to the provision of medical care.

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Keywords: medical device, life sciences, Roszdravnadzor

Based on the example of the most famous case in which the question of the human right to seized biomaterials was raised, the article explores the nature of the patient’s lawful interest in his own tissues removed for cell line preparation. Specific lawsuits under the laws of Russia and the USA are considered and their applicability in a situation of commercial use of human body tissues is assessed. The author shows that the donor’s property interest in the seized biomaterial is not protected by suits based on violation of informed consent, and suggests ways to provide due legal protection to the patient’s property interests through the use of rei vindicatio, condictio or joint invention.

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Keywords: cell line, informed consent, body property, vindication, joint invention

The article deals with certain provisions of the newly adopted Plenary Resolution of the Supreme Court of the Russian Federation dated 30 June 2020 No. 13 “On the application of the Arbitrazh Procedure Code of the Russian Federation when considering cases in the arbitrazh court of cassation instance”. Attention is drawn to the issue of competition between cassation and appeal complaints filed simultaneously against the same judicial act. The author (1) defines the criterion for determining the composition of the court to consider an application for suspension of the execution of a judicial act, (2) pays attention to the reevaluation of the court’s conclusions in respect to the powers of the cassation instance, and (3) discloses how approved terms of the settlement agreement and the termination of the proceedings in this regard are connected in one judicial act. The author also focuses on the issue of submitting evidence to the cassation.

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Keywords: cassation instance, competition of complaints, suspension of execution, composition of the court, powers of cassation, revaluation of the court’s conclusions, approval of the terms of the settlement agreement, termination of proceedings

The article considers the consequences of enactment of the Federal Law No. 171-FZ dated 8 June 2020. That law allows submitting to the State arbitrazh courts of Russia the disputes which involve Russian nationals and companies (and also foreign companies connected with those Russians) if such persons believe that their activities outside Russia were restricted in any way. The State arbitrazh courts of Russia were also allowed to render anti-suit injunctions prohibiting the proceedings in foreign courts and arbitral tribunals. The author raises questions about the viability of enactment of that law and indicates numerous deficiencies in its norms.

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Keywords: international civil proceedings, international arbitration, exclusive jurisdiction, anti-suit injunction

Bitter fruits of constitutional amendments — All-round (and worldwide) elimination of freedom of speech — Is e-justice friendly to the competitiveness? — Unexpected affection to precedent — Anti-money laundering stains judicial independence — Alfa Group develops English law — Indians reclaim part of Oklahoma — Death penalty returns to America

The article examines the prospects for the application of exclusive rights to Big Data, in the first place the rights of the manufacturer of a database. Regulation of Big Data is based on the priority of free access to information, and intellectual property rights do not protect data as such. However, the problem of protecting Big Data is no less acute than the problem of accessing big user data or protecting competition. The analysis of the development of Russian and foreign judicial practice shows that the features of Big Data collection and processing technologies are not an obstacle to their protection by intellectual property rights. At the same time, according to the author, the tendency to expand opportunities for the use of exclusive rights leaves open the question of the risks associated with data monopolisation and how to prevent them.

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Keywords: Big Data, intellectual property, database, database manufacturer, competition

There are hardly a few difficulties, deep study of which can truly enrich civil law science. One of these is conditional transactions, in particular the position of their parties before a suspensive condition is resolved. The present paper investigates only the property component of such a position and only in relation to a conditional obligation. On the basis of the comparative analysis, the author acknowledges the necessity of differentiated consideration of the property status of the parties to conditional suspensive obligation — not only in the light of possible future rights, duties and related transactions, but also through prism of existing chances/risks, which have autonomous (i.e. independent of the occurrence or non-occurrence of the condition, detached from possible future rights and duties) property value and therefore among other things can be the subject of the transaction. The author also demonstrates practical prospects of this conclusion, making the emphasis on chances/risks due to their almost complete ignorance in legal literature. In particular, the issues of independent negotiability of chances/risks from conditional obligations, their termination and insurance of such risks are analysed.

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Keywords: conditional transaction, conditional obligation, property, chance, risk

The authors consider Australia’s experience of regulating inside dealing and pay particular attention to the definition of the terms “insider” and “inside information”, and to the approaches which the Australian courts apply when qualifying information as inside information. The authors conclude that the approach now taken in the Russian legislation, which implies using closed list of insiders and inside information, is acceptable only at the nascent stage when the insider dealing only becomes to be considered as illegal. At a later stage regulation of such relations can develop within the global framework of extending insider status to a wider range of persons and viewing insider information on the basis of its temporary confidential status and ability to have a material effect on financial instrument.

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Keywords: insider dealing regulations in Australia, insider, inside information, generally available information, readily observable test, publishable information test