Журнал ЗАКОН

The article examines the reasons why Anglo-American law has had an impact on Israeli legislation. Although Israel’s legislature abandoned English law as a source of law in 1980, the influence of Anglo-American procedural law continues to be noticeable, particularly in the new Rules of Civil Procedure of 2018. Additionally, there are certain changes that are unique to the Israeli legal system, such as legal pluralism that is evident in the operation of parallel jurisdictions. The article also discusses the abandonment of certain procedures in Israel’s legal system.

---

Keywords: civil procedure, Israeli law, sources of common law, English law, commercial arbitration, alternative dispute resolution

The article concentrates on Jewish law approach to the notions of self-defence, necessity and duress. From this perspective the article turns to the permissibility of the surgical separation of conjoined twins when only one of the twins has the chance to survive. The parallel situations are: a birthing mother, when the lives of the child and the mother can not be saved together and terrorists claiming life of one member group, either chosen at the discretion of the group members or specifically named by the terrorists. The basic teaching which emerges as defining the criterion by which Jewish law resolves most problems is the obligation to “sanctify the divine name” that permeates all layers of Jewish legal culture.

---

Keywords: self-defence, necessity, murder, Jewish law, duress

According to religious Jewish law in Israel, a marriage is dissolved by the husband giving a special letter (ghet) to his wife. Should such dissolution of marriage be considered as performed in compliance with the legislation of a foreign state on the competence of bodies in the sense of paragraph 3 of Article 160 of the Family Code of the Russian Federation or should it be considered as a transaction and subject to conflict of laws test for substantive validity?

---

Keywords: dissolution of marriage, Israel, Ghet, functional qualification, method of procedural recognition, exequatur, substitution

The article focuses on freedom of speech in the State of Israel in the context of the ongoing war with Hamas. Throughout its modern history the Jewish state has faced national security threats from some neighboring countries and military groups in the Middle East, that is why freedom of speech regulation has had to reflect these factors. However, parties’ compliance with the rules and customs of war (international humanitarian law) is not within the scope of this article. The first part of the study shows the evolution of the legislation, as well as key precedents of the Supreme Court of Israel, where the highest court of the land consistently considered freedom of speech as a core element of Israeli democracy. Then, the author moves on to current challenges, namely anti-war student protests on campuses and foreign media coverage of the war. Regarding freedom of speech at universities, Israeli legislation is quite ambiguous, leaving wide discretion to the administration of educational institutions and creating legal uncertainty. In contrast, foreign media face the opposite problem, i.e. the rigid regulation and military censorship. Consequently, both situations present equal challenges to freedom of speech in the country that require Israeli legislature and courts to act. In conclusion, the author fully acknowledges that the State of Israel, faced with military aggression, has a legitimate and justified interest in ensuring national security and it may lead to certain restrictions on freedom of speech. Meanwhile, it is important that such restrictions are clearly formulated in the statutes, balanced and proportionate. Today, more than ever, it is important that Israel preserves its democratic values that have always formed the very foundation of the Jewish state.

---

Keywords: freedom of speech, freedom of the media, censorship, wartime, judicial activism, proportionality

Psychological operations as a tool to influence the enemy’s conscience and behaviour were widely spread over the whole human history. Despite the stigmatisation of psychological operations (or psychological warfare) they were an integral component of state measures designed to achieve national objectives. Amid the development of the Internet and digital technologies, the use of psychological operations becomes even more frequent and inventive. The damage caused by their usage increases as well. Therefore, in order to limit uncontrolled use of psychological operations in violation of human rights and freedoms, it is necessary to regulate the procedure and conditions for conducting psychological operations in domestic law based on ethical principles and a human-oriented approach. At the same time, legal framework should include certain provisions to protect the state and its citizens from psychological influence of the enemy country.

---

Keywords: psychological operations, psychological warfare, propaganda, digital technologies, human rights, safety of the state

The article deals with the issue of business methods patentability. Rapid development of information technology stimulates the creation of new business models based on the use of artificial intelligence and modern technological advances in data processing and transmission. The author concludes that there are conditions for business-methods patent protection in Russia by analysing the examples of Russian and Japanese patent and judicial practices, as well as by way of systematic law interpretation. She offers the definition of the notion of businessmethod for the purposes of patent protection seeking and reveals the factors influencing the acknowledgement of subject patentability.

---

Keywords: patentability, invention, patent, business method, artificial intelligence, machine learning, Big Data, informatisation, business ideas monetisation

The article is devoted to the study of novelties in normative regulation of judicial activity in criminal proceedings. The period from the end of 2022 to the end of 2023 is taken. The issues of drafting and pronouncing a verdict, the digitalisation of judicial activity, and the timing of judicial response to violations of the law are being considered. The study confirms the tendency in the legislative process to replace the legal essence with procedural formality and concludes that a threat to the authority of the judiciary is hidden in the novels.

---

Keywords: legislative novelties, justice, judicial power, criminal procedure, immediacy, verbality, publicity, digitalisation, right to appeal, sentence, procedural deadlines

In the August Chronicle read comments on the laws on raising court fees and tax reform, significant rulings of the Constitutional Court in relation to real estate and intellectual property rights and the Supreme Court on the possibility of confiscation of shares (“Iset plant” case), as well as on possible prospects for the development of the practice of state authorities to recover budget losses in addition to sanctions under the rules of civil law.

---

Keywords: tax reform, court fees, real estate, intellectual property rights, confiscation of shares, Iset plant, tax sanctions, budget losses

The article examines the problems of local (particular) international customs, which until recently remained on the periphery of the interests of domestic researchers. It is noted that modern ideas about particular customary international law were largely formed by several decisions of the UN ICJ made at different times, in which he briefly addressed these issues. In the decision on the dispute between Costa Rica and Nicaragua, the ICJ finally eliminated the differences between universal and local customs in terms of expressing consent to the binding nature of customary norms, thereby depriving supporters of a consensual approach to the formation of customary norms of one of their key arguments.

---

Keywords: local customs, particular international customary law, the International Court of Justice, State consent

The current stage of economic development requires transparency of asset ownership, which implies disclosure of all levels of corporate structures and final beneficiaries. This trend can be traced in tax, anti-sanction, and bankruptcy legislation. Disclosure of the corporate ownership structure is the main prerequisite for the realisation of the beneficial owner’s right to sue in the interests of a controlled corporation. A formal legal approach that denies such a right creates an imbalance between the interests of investors and the economy as a whole, strengthens the agency problem, which negatively affects the activities of diversified holdings. The circumstances testifying to the violation of the subjective rights of the beneficiary are the unfair actions of the prevailing beneficiary and the management controlled by him in the context of a corporate conflict. The choice between the recovery of the reflected losses in favour of the beneficiary (parent company) and the recovery of losses in favour of the controlled company at the claim of the beneficiary is the main debatable issue. The domestic legal order generally recognises the admissibility of protecting the interests of beneficiaries when making insignificant corporate decisions at the operational level of the holding and making unprofitable transactions by management in collusion with a counterparty.

---

Keywords: beneficial owner, protection of the rights of the beneficiary, holding, multi-level corporate structures, transparency of the corporate structure, double (multiple) derivative suits

The authors consider the essence of the concept of ‘property isolation of a legal entity’, different approaches to the definition of property isolation are given and analysed. The authors conclude that property isolation is characteristic not only of legal entities, but also of individuals and contractual associations, while for legal entities the value of property isolation is high, due to the fact that it allows to participate in turnover and bear property responsibility. Since the degree of property isolation of different types of legal entities differs, the authors propose the respective classification of legal entities. The authors conclude that there are no universal criteria of property isolation for civil, criminal, administrative and other forms of legislation. Thus, direct application of concepts and rules of civil legislation on property isolation to the areas of public law is unreasonable.

---

Keywords: property isolation of a legal entity, signs of a legal entity, property of a legal entity, liability of participants of a legal entity, independent liability of a legal entity

The article is devoted to the problem of enforceability of judicial acts on public-law disputes, including those related to the imposition upon an administrative body or an official of the duty to exercise discretionary power. The author refers to the origins of this problem and comes to the conclusion that the measure of compulsion of administrative defendants to execute judicial acts should be indirect. Based on the analysis of available public law mechanisms of indirect coercion to the execution of a judicial act, the author points out that they either cannot be characterised as effective, or are disproportionate to the goal, and proposes a solution to the problem by introducing the mechanism of judicial forfeiture in the Code of Administrative Proceedings. The author notes that initially the legislator did not intend to extend it to cases of non-fulfillment of judicial acts on public law disputes, but the approach developed later in judicial practice, which allows the award of judicial forfeiture on certain public law disputes considered by arbitrazh courts, dictates the need to expand the scope of application of judicial forfeiture to cases of failure to fulfil any judicial decision on disputes arising from public legal relations, since there are no objective differences between them.

---

Keywords: judicial forfeiture, discretionary powers, discretionary administrative act, administrative proceedings, non-enforcement of a judicial act

This work is devoted to the study of problems related to the conduct of judicial economic examinations in bankruptcy cases. The article discusses general theoretical issues related to the use of special knowledge in the arbitrazh process, as well as the legal aspects of the use of forensic examinations and their evidentiary value. A special part of the study is devoted to bankruptcy issues. Particular attention is paid to the problems related to the classification and regulatory consolidation of the methods of financial examinations conducted within this category of cases. The paper also provides a detailed study of all available judicial practice of arbitrazh courts of the first, appellate and cassation instances in bankruptcy cases for the period from 2020 to 2023.

---

Keywords: bankruptcy, forensic examinations, financial and economic expertise, practice in bankruptcy cases, classification and methods of forensic examinations

Despite the potential of the blockchain in solving the problems facing intellectual property law, its use in this area has boundaries, which are determined both by the properties of the technology itself and by the characteristics of the results of intellectual activity and rights to them. These boundaries relate to the use of blockchain for registration and accounting of intellectual property objects, their tokenisation, protection of the interests of copyright holders, the State and society in the sphere of their turnover. The purpose of the article is to explore the limits of the use of blockchain in the field of intellectual property, considering the risks of such use, including the problems of duplication of information about objects in different distributed registries, the inconsistency of this information and its inconsistency with the real situation. The authors conclude that the solution to the problem is possible by adequate legal regulation in this area, as well as by expanding the powers of Rospatent through the mandate to authorise the entry of information on intellectual rights into blockchain information systems.

---

Keywords: blockchain, intellectual property, exclusive right, IPChain, digital right

The article analyses the decision of the Commercial Court of the King’s Bench Division in the case of Hulley Enterprises Ltd & Ors v. The Russian Federation. It sets out the positions of the parties and the court on the main problem — whether the Russian Federation is entitled to challenge in an English court the issue of the jurisdiction of the Arbitral Tribunal in circumstances where the existence of this jurisdiction is established in the decisions of the Dutch courts, and whether these decisions have the effect of estoppel; as well as on some specific issues associated with this problem: whether it is permissible to apply the rule of estoppel to the immunity of a foreign state; whether the conditions for the application of this rule are met, in particular, whether the issues resolved in the Dutch courts are identical to the issue being considered by the English court, whether the decisions of the Dutch courts are final and conclusive. The author’s assessment of the results of that decision and the chances of appeal are given.

---

Keywords: estoppel, issue estoppel, immunity, final judgment

The article is dedicated to class actions and class litigation in Canada. Initially evolved from legislative sources of England and the USA, class litigation in Canada has received independent and original development. The profound reform in Ontario that took place in July 2020 made significant amendments to Class Proceedings Act, 1992, which reflect the latest achievements in the field of class litigation. The latest changes in this Act are analysed in the article. Moreover, the following questions are raised: certification and authorisation as class proceedings, necessary to confirm the group for class action, its multiplicity, necessary to form the class action, questions of preferability of group procedure (predominance and superiority) and native language in class litigation. Special point of research is question of costs in class litigation, which has peculiar features in Canadian class action law. They consist in refusal to compensate the judicial costs or in compensation by third-party investor company or by the state (state funds). These approaches offer a fresh look at the problem of compensation of judicial costs in class litigation. The experience of Canada can be used in certain boundaries in Russia.

---

Keywords: class action, class litigation, Canada, Ontario, Class proceedings Act, judicial costs