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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 4 (2019)
View or download the full issue PDF

GUEST EDITOR’S NOTE

ARTICLES

6-33 71
Abstract

In the global arena, the cooperation between the BRICS countries – Brazil, Russia, India, China and South Africa – covers around 42% of the world’s population and some of the world’s most dynamic emerging economies. Initially, the BRICS cooperation was suggested as an idea, and it was later welcomed as a new addition to the global governance debate about the future. The BRICS countries have already held ten consecutive summits of heads of state plus a large number of meetings at the ministerial level. The cooperation describes itself as a “cooperation and dialogue” platform, but it has nonetheless signed a number of binding treaties and, notably, established the New Development Bank (NDB) as a permanent institution headquartered in Shanghai (China).
The cooperation has also met with resistance, criticism and problems caused by the overall complexity of global affairs in a rapidly changing world. The diversity and remote locations of the BRICS countries have also been thought of as an obstacle to their successful cooperation and their ability to play an active part in global governance in the twentyfirst century. The main challenge thus lies in their ability to overcome their differences and to make a difference in designing the future global political and economic world order. Against the backdrop of the global governance debate, the present paper therefore asks whether the BRICS cooperation constitutes a novel model of regionalism with multilateral aspirations, and what role law and, notably, the “rule of law” can play in this important task. The paper includes a discussion of the extent to which the BRICS cooperation needs to be upgraded in legal and institutional terms, and possibly to proceed from cooperation via consolidation to the codification of its most important sources of global law.

34-66 192
Abstract

The BRICS countries have aspirations to achieve sustainable development in their economies and environmental protection. These aspirations have an important social aspect in the area of employment protection as it relates to ensuring fair development. In order to establish national standards for dismissal protection in four of the BRICS countries (Brazil, Russia, China and South Africa) the authors have considered the legislation and relevant national case law. This paper includes a review of International Labour Organisation (ILO) standards of dismissal protection, which are used as a pattern for comparison. The paper consists of five parts: the first deals with the history and explores the legal standards adopted in the ILO Convention No. 158; the remaining four parts present the research on each of the national dismissal protection systems in the four BRICS countries under study. The authors conclude that even though the national systems are different and have dissimilar scopes in respect of dismissal protection, their regulations are largely in line with the Convention, which has not been ratified by any of the BRICS countries; and that international instruments even without ratification may be a helpful instrument for shaping the national system of dismissal protection, and for providing guidance to policymakers and legislators.

67-94 75
Abstract

The efforts of the BRICs countries to establish a fair international legal order determine the scholarly interest in conceptualizing the legal position on the inadmissibility of the use of unlawful unilateral coercive measures in international relations. This paper adopts an interdisciplinary approach to the study of the phenomenon of combating discriminatory sanctions policies of individual states and international organizations, including elements of economic, legal and international legal analysis. The subject of the authors’ interest is not the methodology of “economic analysis” of legal phenomena, which is recognized in legal science; rather, it is an attempt to synthesize the methods of various disciplines, allowing a comprehensive assessment of the possibility of countering “sanctions threats” to the state sovereignty of Russia as one of the members of BRICS. The main directions of the economic policy of the state in the conditions of the “sanctions regime,” the features of acts of Russian legislation aimed at protecting sovereignty from illegal unilateral restrictive measures, in the historical context, and taking into account modern views, the doctrinal approaches to the concept of “sanctions” in the science and practice of international law are all analyzed. As a result, it is found that the pluralism of approaches to the definition of “sanctions” is maintained, which is explained by the insufficient level of international legal regulation of international coercion and the continuing decentralization of the system of international law. The grounds for the legitimacy of sanctions mechanisms operate in the system of collective security of the U.N., based on the analysis of the provisions of the U.N. Charter and the normative array of recommendatory norms of the U.N. General Assembly. The evolution of the mechanism of non-military coercive measures of the U.N. Security Council is analyzed, and the parameters of the legitimacy of sanctions by regional international organizations on the basis of the provisions of the U.N. Charter are determined. Normative contours of “soft regulators” of counteractions to illegitimate unilateral coercive measures are established.

95-113 91
Abstract

In the environment of the current trend towards digitalization of the world economy, the issue of the legal regulation of the institute of digital financial assets as well as the activity relating to the generation of these assets is of considerable interest. As practice shows, individual countries face the situation where these assets are already turning over, but there is still no legal regulation. This state of affairs may give rise to cases of illegal turnover of financial assets and fraud in this sphere. Presently, the geopolitical map on digitalization of the economy is fragmented. Some countries have recognized and legalized the turnover of digital financial assets, others have so far not adopted an unambiguous attitude with respect to this new institute, while a third group of countries has not even recognized their legal nature nor their very existence. This ambiguity raises many issues relating to the legitimacy of digital financial assets and the feasibility of the introduction of this new financial product. The article analyzes the state of the legal regulation of the institute of digital financial assets in the BRICS countries, considers the standpoints of legislators and scientists on the legal nature of these financial assets.

COMMENTS

114-133 73
Abstract

This article analyzes the legal assessment of the human genome modification experiment at the pre-implantation stage conducted by a group of scientists headed by He Jiankui, professor at the Southern University of Science and Technology (SUSTech) in Shenzhen, Guangdong Province, China, by means of the CRISPR/Cas9 technology. Chinese scholars have different opinions concerning He Jiankui’s experiment, but on the whole condemn it as illegal. Though CRISPR/Cas9 has been applied for quite a long time, the legislation of most developed countries is not ready to respond. The author of the article underlines the fact that despite the consolidated opinion of scholars, there is no binding international act which would restrict human genome editing. The author relies on Chinese sources in considering the main approaches to the assessment of He Jiankui’s actions in terms of criminal law (illegal medical activity, forgery of documents or fraud). Based on the analysis of Chinese criminal law doctrine, the author offers possible models of classifying separate actions related to human genome manipulation. The following cases of human genome manipulation are considered by the author as publicly dangerous and criminally liable: (a) when the embryo genome is changed by genetic engineering technologies for the purpose of its further implantation in the situation where the child’s parents are not aware of such intervention and its possible implications; (b) when genetic therapy or any other gene transfer (transgenesis) is applied to a person who is not aware of the nature of such manipulation and the possible implications of the application of the technology.

134-158 61
Abstract

The legal entity is one of the most common forms of business activity in the Russian Federation and the People’s Republic of China. The regulation of legal entities in Russia and China has changed in recent years, which makes the study of this issue especially relevant. This article explores and compares the concept of business activity, the system of legal entities and several types of particular legal entities in regard to companies found in Russia and China. The research concludes that the system of legal entities in the Russian Federation has an exhaustive regulation that facilitates the interpretation of the civil legislation and allows distinguishing the relevant characteristics of any type of organization. In China, there was no unified system of legal entities until 2017. While the General Provisions of the Civil Law of the People’s Republic of China adopted in 2017 is a serious and important attempt to establish a system of legal entities, the law does not contain the essential characteristics of legal entities; additionally, a number of the provisions of the legal acts in force devoted to the regulation of the activities of legal entities have not yet been brought in line with the new law.



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