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BRICS Law Journal

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Academic peer-reviewed journal “BRICS Law Journal”

The BRICS is an acronym for an association of Brazil, Russia, India, China and South Africa, evolved from mere investment lingo to an organized network, in the process assuming a greater geopolitical role aimed at institutional reforms that shift global power. All five countries adhere to principles of inclusive macroeconomic and social policies and are focusing on responsible national growth strategies. The BRICS Law Journal is a platform for relevant comparative research and legal development not only in and between the BRICS countries themselves but also between those countries and others. The journal is an open forum for legal scholars and practitioners to reflect on issues that are relevant to the BRICS and internationally significant. Prospective authors who are involved in relevant legal research, legal writing and legal development are, therefore, the main source of potential contributions.

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Current issue

Vol 6, No 2 (2019)

ARTICLES

4-32 29
Abstract

Guarantees play an important role in large commercial contracts internationally. Guarantees can be either independent (demand) guarantees or accessory guarantees. The legal consequences of the two differ significantly and, therefore, it is important to differentiate clearly between the two. In the case of independent (demand) guarantees – the focus of this contribution – the guarantor’s liability is independent of the underlying performance it is guaranteeing, and is accordingly to be determined, in principle, with reference only to the terms of the guarantee. However, this is not an absolute principle. Jurisdictions throughout the world recognize exceptions to this principle, the most important and prevalent being fraud on the part of the beneficiary. A Judicial Interpretation by the Supreme People’s Court of the People’s Republic of China relating to independent guarantees came into operation in December 2016. Its rules depart in some important respects from the law of guarantees in South Africa, both in relation to the determination of the nature of the guarantee (as independent or accessory) and in relation to the exceptions to the principle of independence. This article explores these issues against the background of the law of contract of both countries.

33-59 42
Abstract

Collective labor disputes based on the differences in economic interests between workers and employers can be effectively resolved exclusively through conciliation procedures. Contemporary alternative methods arose mostly due to the necessity to resolve collective labor disputes; mediation for this purpose is applied differently in various countries. National legislation equally provides various means for collective labor dispute resolutions and determines relevant intermediary procedures. An intermediation in a collective labor dispute resolution can be private and/or state-appointed and mandatory or alternative and remains a very perspective means of alternative dispute resolution. An analysis of different countries’ legislation distinguishes several common features of intermediation in collective labor disputes, concerning mainly the goals, objectives and principles. For bodies and persons conducting intermediation, the degree of compulsion in their decisions varies greatly from country to country. However, the obtained experience reveals common and distinctive procedural features and provides the possibility to classify existing approaches, having combined them into groups. The analysis also follows general development trends of collective labor dispute intermediation in different countries and identifies several shortcomings that are characteristic to different systems of intermediation legal regulation. Further research on the most effective ways of collective labor dispute conciliation is necessary for establishing new harmonious labor relations as the grounds for social progress.

60-81 31
Abstract

This article focuses research on a comparative analysis of the legal and regulatory framework of the payment and e-money services in the BRICS countries. These services are the most receptive to innovation and considerably contribute to financial inclusion. The central banks of the BRICS countries play key roles in their national payment systems, and they each have different statutory authorities on regulation and supervision or oversight of payment services providers, payment schemes and payment systems. Nevertheless, there are a number of features common to all the BRICS countries and the research emphasizes and describes these features as well as distinguishes national particularities.

82-107 91
Abstract

The concept of transitional justice has been associated with the periods of political change when a country emerges from a war or turmoil and attempts to address the wrongdoings of the past. Among various instruments of transitional justice, truth commissions stand out as an example of a non-judicial form of addressing the crimes of the past. While their setup and operation can be criticized on different grounds, including excessive politization of hearings and the virtual impossibility of meaningfully assessing their impact, it has been widely acknowledged in the literature that the Truth and Reconciliation Commission in South Africa can be regarded as a success story due to its relatively strong mandate and widespread coverage and resonance it had in South African society. We would like to compare this commission from the 1990s with a more recent example, the Brazilian National Truth Commission, so as to be able to address the question of incorporation of gendered aspects in transitional justice (including examination of sexual violence cases, representation of women in truth-telling bodies, etc.), since gender often remains an overlooked and silenced aspect in such initiatives. Gendered narratives of transitional justice often do not fit into the wider narratives of post-war reconciliation. A more general question addressed in this research is whether the lack of formal procedure in truth commissions facilitates or hinders examination of sexual crimes in transitional settings.

COMMENTS

108-131 22
Abstract

This article deals with the problems involved in implementing simplified forms of legal proceedings in the Russian civil process, which is one of the important directions for optimizing commercial court proceedings. The study is largely based on the analysis of previously unpublished statistical information on the commercial courts of three districts for the period of 2016–2018, showing the results of their procedural activities in the framework of the procedures of simplified and writ proceedings in the context of court data of the commercial court system as a whole. The obtained results are highlighted taking into account domestic, foreign and international experience, doctrinal approaches and the existing need for the optimization of commercial court proceedings. The authors substantiate the conclusion that the consideration of cases in the procedures of simplified production facilitates significantly reducing the caseload burden on the commercial courts of first instance, both by simplifying the procedures for the consideration of these cases and by drawing up judicial acts on them. The article formulates proposals for the development of the current commercial procedural law, in particular the proposal to unify the procedural order of commercial court cases on the recovery of compulsory payments and sanctions. It further proposes possible variants of such unification.

132-153 30
Abstract

Legal techniques were initially developed as a kind of repeater of the legislatorʼs will into the language of law with the help of special skill in legal design. Historically, the theory of legal technique was formed in stages with state reforms, social transformations and active work on systematizing legislation having significant impact on it. At the present stage, legal technique resources are legislated in some CIS and European countries, and the status of legal technique is firmly entrenched in legal theory and practice in continental law countries as well as common law. Complications from modern legal life in society and the need to optimize legal activity drive the search for new ways to improve the legal technology field. The uniqueness of legal technology is that it links all types of legal activity into a single production process, standardizes its potentially separate segments and introduces sound stability into legal processes. This makes it possible to improve effectiveness indicators for consolidating legislative priorities and implementing them in practice, in order to ensure the national interests of the state. Combining the potential of legal technology and legal technique provides legal activity a systematic and constructive validity for legal transformations, hinders the expansion of legal errors, optimizes the stages of legislative activity, systematizes the actions and operations that are being implemented, and ultimately ensures high indicators for legal development and the achievement of the stateʼs constructive tasks.

CONFERENCE REVIEW NOTES

154-161 22
Abstract

Legal scholars from Brazil, South Africa and Russia gathered in Saint Petersburg on 25 January 2019 to attend the International Legal Science Seminar hosted by the Department of Labor Law and Labor Protection at Saint Petersburg State University.

This review is prepared based on the material in the presentations provided by the speakers at the International Legal Science Seminar.



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