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BRICS Law Journal

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Vol 7, No 1 (2020)
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https://doi.org/10.21684/2412-2343-2020-7-1

ARTICLES

4-26 382
Abstract
The creation of the BRICS as a non-traditional international organization in the status of a global forum brings new meaning to the norm-setting of international organizations, including in the field of scientific cooperation. This paper aims to identify and analyze the up-to-date and complete normative framework of scientific cooperation across the BRICS which is a result of the BRICS norm-setting. The achievement of the stated aim is pursued through the identification of the distinctive features of the BRICS norm-setting by comparison with the norm-setting of traditional international intergovernmental organizations and by analysis of the BRICS regulations dealing with issues of scientific cooperation. Within the process of researching this subject the author analyzed the BRICS regulations of different levels from the Joint Statements of the BRICS Countries’ Leaders and the Summits Declarations to the BRICS working papers as aframework program. The main finding of the research is that the normative framework of scientific cooperation across the BRICS is a set of non-legally binding norms contained in the regulations adopted at the various meetings of national officials within the BRICS. This finding can contribute to a better understanding of the application of the BRICS norms.
27-58 339
Abstract
This article explores the potential approaches to optimising the way the institutions of mutual common use by the BRICS countries are constructed. The topic is time-relevant, for it reveals the need to work out a new institutional basis to understand the workings of the BRICS institutions as a result of recent transformations, such as Brexit, in the phenomenon of international and regional economic integration. The article is founded on the hypothesis that the import of institutions by the BRICS may be a more effective approach to the member countries’ convergence than the conventional approach. The originality of the theme lies in the fact that the modern economic literature has not studied to the full extent the impact of this exogenous factor on financial integration. There is also a need for the further development of the least-studied areas of regional monetary integration, namely the lack of the ability of current world institutions to manage the common monetary policies and debt of the member countries. The author proposes principles for creating and operating a virtual contractual republic of the BRICS contrary to the exploitation-state model of the EU. The article rediscovers the institutionalist idea about democratic decisions by a group of subjects such as the member countries of a particular integration agreement. The author maintains that the new institutions of the BRICS may cause dramatic changes in the world monetary system, international liquidity and international reserves. The general conclusions of the article encompass the significance of creating integration institutions on the basis of the experience of the BRICS as a way to more economic and financial stability in the world. The results contribute to the search for opportunities of optimal operation of the BRICS regional debt market. In his closing remarks, the author outlines the prospects of settling the debt problems in the BRICS based on the virtual debt market.
59-90 593
Abstract
China and India face similar challenges in maintaining their aggressive rates of economic growth. While both countries attained economic independence in the late 1940s, each followed a different path in terms of growth. China preferred to open up its economy to foreign direct investment much earlier and only in recent times has it turned towards domestic capital. India, on the other hand, began by attempting to develop local talent and shifted its focus to foreign participation in 1991. This paper examines the politicoeconomic background and the resultant corporate governance paths undertaken by each of these countries. These paths, while diverse, lead to a convergence. In particular, given the nature of concentrated shareholdings in Chinese and Indian companies, by the State in China and by family promoters in India, the second agency problem and the requisite protection of minority shareholders assume considerable importance in both jurisdictions. However, given the nature of corporate governance norms having been transplanted from advanced economies to emerging economies, this convergence may not be suitable or even desirable. This paper posits that emerging economies such as China and India ought to develop and implement corporate governance norms that are separate from those of advanced economies to combat the unique issues arising out of shareholding patterns at home.
91-118 257
Abstract
The Companies Act 71 of 2008 (the 2008 Act) replaced the Companies Act No. 61 of 1973, effective 1 May 2011. The 2008 Act was aimed at keeping pace with developments in company law internationally. It is not intended to entirely replace the well-established principles and has largely retained the pre-existing South African company law. The mergers and acquisitions provisions are aimed at creating transparent, efficient, and simple procedures. Different types of mergers and acquisitions are clearly defined as “affected transactions” or “offers” in section 117. Section 118 provides for companies to which the provisions apply. The reasons for regulating these transactions and powers of the regulator – The Takeover Regulation Panel, have been reviewed, clarified, and improved. The previous section on disposal of all or greater part of assets or undertaking of a company has been re-written. The 2008 Act further introduces a new type of affected transaction in section 113, in the form of a “merger” or an “amalgamation.” The 2008 Act has retained the scheme of arrangement in section 114, but has changed its format by removing compulsory court application and approval. The courts get involved under certain prescribed circumstances. The 2008 Act has enhanced shareholder protection for fundamental transactions in the form of section 164 – Appraisal Rights and section 115, dealing with shareholder approval of fundamental transactions. Some scholars and practitioners have criticised certain provisions. However, in general, the provisions have received favourable commentary. They regarded as progressive and comparable with others internationally.
119-147 254
Abstract
The article reveals the essential characteristics of justice as a specific type of state activity and identifies the main signs of justice that distinguish it from other types of state activity as well as from other types of judicial activity. The article also analyzes the categories of “justice” and “judicial power” and defines the essence of judicial control in the context of its relationship with justice. As a result of the study, the authors come to the conclusion that the most important and promising approach is to consider justice to be one of the characteristics organically inherent in the judiciary or as a related phenomenon. In this sense, justice is defined as state activity within the framework of which the judicial power is exercised. The judiciary is, accordingly, the essential expression of the functional purpose and competent certainty of justice. Turning to the issue of the signs of justice, the authors touch upon the problem of its wide and narrow understanding arising in connection with the increasing role of mediation, conciliation and arbitration as alternative forms of resolving legal conflicts, as well as in connection with vesting certain state bodies with jurisdictional powers. They come to the conclusion that, unlike in a number of foreign countries, justice in Russia can be administered only by state courts. The study of the subject area of justice related to the situation of legal conflict is also of considerable interest. In this context, the analysis of the concept of “legal conflict” and the proposed differentiation of such conflicts into types with the subsequent study of each of them is quite justified. Having studied justice as acategory, which makes it possible to reveal the content and legal essence of this type of state activity, the authors define this concept in one universal definition.

COMMENTS

148-177 461
Abstract
Over the last four decades, China has sustained extraordinary economic development despite Western assertions of under-constructed economic markets and the lack of an independent adjudicative process. The purpose of this paper is to set out the context of China’s judicial independence and high economic development scenario in the global economy. The paper aims to establish that vast economic expansion is possible without the conventional concept of an independent judiciary in which China provides an important example for the world. The study is mainly qualitative in nature and takes the analytical approach. The data and statistics have been collected from sources of the World Bank, IMF, WTO, UNCTAD, The World Factbook of the CIA, and the Chinese National Bureau of Statistics. The content analysis references the Chinese Constitution and judges law, reports of the Supreme People’s Court, books, journal articles, newspaper articles, media reports, and internet documents. The findings of the study are that China preserves “adjudicative independence” as a unique feature instead of embracing the Western concept of judicial independence that promotes the confidence of investors to make more investments. Additionally, the initiatives of “Made in China” and “One Belt, One Road” attach new wings to China’s emergence as the world’s crucial economic power. The article concludes that China’s experience provides a lesson for policymakers and economists of other developing or transitional countries struggling with weak legal and court systems, and emerging financial markets. The study strengthens the flourishing literature on the connection between judicial independence and economic development.


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