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BRICS Law Journal

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Vol 5, No 4 (2018)
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https://doi.org/10.21684/2412-2343-2018-5-4

ARTICLES

5-32 210
Abstract

This paper takes aim at the international financial system through the lens of the New Development Bank of the BRICS countries with an analysis of the Bank’s impact and relevance vis-à-vis the system. The work compares the traditional characteristics of international development institutions such as the World Bank and financial entities directed by national authorities with international solutions such as the New Development Bank, whose goals are to boost the infrastructure and renewable energy sectors of its five member countries as well as those of other developing countries. The work lays out insightful data on foreign direct investment of BRICS, GDP growth analyses, imports and exports inside and outside the BRICS group for a clearer understanding of the companies and businesses involved in the group. The work highlights an outlook of investment and development engaged in this new form of South-South cooperation which has been created by BRICS.

33-60 230
Abstract

The viewpoint of most countries towards participation in programs and projects of international science and technology cooperation (ISTC) is based on the fact that collaboration in research and development allows them to increase the efficiency of national research systems and accelerate the inflow of new knowledge and technologies. The BRICS countries share this viewpoint; however, their aspirations go further, extending their concerns and expectations to cooperation in the sphere of innovation. BRICS – the association of Brazil, Russia, India, China and South Africa – was established in June 2006 at the St. Petersburg economic forum (South Africa a participant since 2011). Its results in establishing frameworks for cooperation in many sectors of their economies including science, technology and innovation demonstrate an unusually rapid growth. The BRICS countries’ cooperation in science, technology and innovation started in 2014; since then, the five countries have carried out important steps in bringing together their practical approaches to science, technology and innovation cooperation.

This article is devoted to an analysis of the dynamics of the BRICS countries’ cooperation in science, technology and innovation, and the possible risks and problems in the organization and implementation of joint projects. The need to go further in elaborating legal frameworks for international science, technology and innovation cooperation that would support the transition of their cooperation activities from science and technology to innovation is underlined.

61-89 225
Abstract

This essay proposes a new theoretical model directed towards the observation of fundamental rights present in the Constitutions of peripheral States. Parting from a critical revision of classic perspectives oriented by the dogmatic affirmation of fundamental rights and the institutional tradition derived from sociological observation, these rights perform a dual function. They are responsible for the structuring of normative expectations and, at the same time, they construct internal dogmatic limits within the system. Through the contributions of phenomenology and social systems theory, this model suggests autonomous spheres of fundamentality in contrast to the classical unity of fundamental rights. Furthermore, the balancing schemes are substituted for an internal “law of collision.” Conflict resolution undergoes a shift from the traditional method to the system’s reflexive pragmatics, contributing to the legal security and the democratic legitimacy of judicial review. Finally, it verifies how this theory could be applied to the advent of the Zika virus which affected Brazil from 2015 to 2017. As the Zika virus crisis involves different spheres of fundamentality, entailing a range of systems of law and therefore revealing different collision patterns, this essay demonstrates how this new approach could contribute to the control of solutions.

90-113 214
Abstract

This article explores and compares the changes in the criminal legislation of Russia and China. The author will first examine the history of the development of the criminal legislation of the two countries, identifying their common and distinguishing features in the process. The author will then compare the basic provisions and structure of the criminal codes of Russia and China as objects of comparative legal research. This article further analyzes the scale, direction and dynamics of changes in the provisions contained in the General and Special parts of the criminal codes of the two countries, in detail. It is concluded that the scale and speed of changes in the Criminal Code of the Russian Federation, is far greater compared to the changes in the Criminal Code of the People’s Republic of China, based on various indicators. The author gives general recommendations to the Russian legislator as far as the consideration of scientific developments goes.

COMMENTS

114-138 369
Abstract

he values of confidentiality and transparency are often invoked in the theory and practice of investment treaty arbitration. Transparency is considered to be one of the key aspects of good governance and corporate social responsibility. It includes the obligation of the host state to publish all the legal rules, regulations and other statutory requirements affecting investors. Confidentiality is considered the hallmark and unique feature of arbitration as a dispute resolution mechanism. However, it is difficult to balance these two values, in principle due to the difference in the various investment arbitration cases, as well as the high degree of public interest involved in such proceedings. The competing interests between transparency and confidentiality have significantly increased in the recent past, and the difficulty lies in drawing a medial line between them. There is also debate as to what extent non-disputing parties are allowed to participate in investment arbitration, and what the essential requirements are to admit them.

It is in this connection that this article makes an in-depth analysis of how investment arbitration frameworks have approached the questions of transparency, confidentiality and amicus curiae participation over the years. The article assesses and explores similar issues within the International Convention on the settlement of investment disputes between States and nationals of other States, 1965 (ICSID), the North American Free Trade Agreement, 1994 (NAFTA) and the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, 1978. The study also makes a critical analysis of celebrated cases falling within each category. The article further elaborates the transparency requirements in the U.S. Model Bilateral Investment Treaty (BIT), 2012, and the recently adopted Indian Model BIT, 2015. The study is very significant because the United Nations has recently adopted the Convention on Transparency in Treaty-based InvestorState Arbitration, 2014 (Mauritius Convention), which ensures transparency and public accessibility to investor-state arbitration.

139-154 464
Abstract

Given the increasing role and use of cyberspace in our daily lives, it is important to consider the large-scale dynamics of the cyber forum. Shifting the focus from individuals to nation states as participants that engage in activities in cyberspace raises doubts over the status of nations in this domain. Do they continue to remain sovereign entities on such a platform? Do they have the right to defend themselves against attacks from other nations? These questions have been subject to a lot of debate in the context of international law. The aim of this paper is to study the implications of the principle of state sovereignty and selfdefence in cyberspace. The paper focuses on two prime considerations of sovereignty and self-defence in the context of cyberspace and its link to international law. Thus the scope is limited to concepts such as territorial jurisdiction, sovereignty, attribution and selfdefence. While doing so, the researcher seeks to answer questions such as, Is international law applicable to cyberspace? Can cyberspace be called a sovereign domain? Do principles of territorial jurisdiction apply to cyberspace? How does the attribution mechanism work in cyberspace? Under what circumstances are states permitted to exercise the right of self-defence against cyber attacks? and What are the deficiencies in international law governing cyberspace?

155-174 223
Abstract

This comparative study examines the issue of combating crime with criminalistic methods. It focuses on the role and significance of criminalistics in the system of substantive and criminal procedural law as a science standing at the forefront of the fight against crime. The criminals and their offenses as well as the investigation of criminal cases and judicial proceedings are the objects of the analysis. The correlation between the criminal sciences and general trends in the development of a number of European and BRICS countries (with China as an example) has been emphasized. Joint research into the most pressing problems of combating crime is believed to improve the efficiency of law enforcement activities. From this perspective, there is a need to develop a universal framework of categories and concepts which will help to create a unified forensic area in Europe and the BRICS countries.

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ISSN 2409-9058 (Print)
ISSN 2412-2343 (Online)