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BRICS Law Journal

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Vol 9, No 1 (2022)
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https://doi.org/10.21684/2412-2343-2022-9-1

ARTICLES 

4-34 486
Abstract

The purpose of this article is to identify the core trends in economic and legal cooperation among the BRICS countries through the prism of strategic documents and normative acts adopted to define national development benchmarks in certain economic sectors. The authors carried out an analysis of strategic and policy documents adopted by Brazil, Russia, India, China and South Africa with a view to developing certain sectors of the national economy. It is pointed out that international cooperation is now considered necessary to achieve sustainable economic growth. The relevance of the research topic is dictated by the need to determine and develop approaches to improve the legal fundamentals of economic cooperation among the BRICS countries, as well as to prepare proposals for their implementation. The analysis of national programs and development priorities of the economies of the BRICS member countries has shown that the programs of Russia and China are the most comprehensive. Brazil’s development priorities, the socio-economic development policy of India and South Africa’s national development plan are primarily aimed at overcoming the problems inherent in these countries. Among the main areas of interest for all of the BRICS countries are agriculture, digital economy, energy, environment, education and health, finances, labour and employment, infrastructure and transportation and trade. Cooperation among the BRICS countries is likely to develop mainly through the exchange of experiences and best practices, joint research and realization of specific economic projects supervised by executive authorities, central banks and other state bodies. An important institution for economic interaction between the BRICS countries is the New Development Bank; other successful mechanisms of economic cooperation include the Contingent Reserve Arrangement, the Energy Research Cooperation Platform and the Partnership on New Industrial Revolution.

35-61 394
Abstract

This article offers a comparative analysis of the particularities of the implementation of proceedings in cases of administrative offenses and pre-trial dispute resolution in the BRICS member states. The article observes that in the BRICS countries, the issues of pre-trial dispute settlement are resolved using the same mechanisms: negotiation and conciliation procedures, including mediation. The implementation of these mechanisms is possible by the parties to the dispute themselves, with the participation of third parties such as proxies or legal representatives who may be interested in carrying out the procedures, and with the services of independent, professional mediators. The article draws attention to the fact that the Federative Republic of Brazil, the Russian Federation, the Republic of India, the People’s Republic of China and the Republic of South Africa belong to different legal families, which undoubtedly is a feature of the legal regulation of their administrative offense proceedings as well as of their pre-trial dispute resolution. The article finds that Roman law largely influenced all of the BRICS countries, with the exception of India, whose legal system was formed under the influence of English law, and that the versatility of legal regulation does not allow one to speak fully about the balance of administrative legislation in the studied areas. Furthermore, it is characteristic of all of the BRICS countries that administrative punishment cannot be aimed at humiliating the human dignity of a natural person, causing him or her physical suffering, nor can it be aimed at damaging the business reputation of a legal person. The similarity of the tasks of the administrative legislation of the BRICS countries is noted, which should include the protection of the subjective rights and interests of citizens, ensuring the rule of law, the protection of public order and public safety, and the prevention of administrative offenses. Through the discourse presented by the authors, the concept of an administrative offense is revealed; the acts regulating the proceedings in cases of administrative offenses are considered, as well as the tasks and principles established by national legislation in this direction. Furthermore, the similarities and differences in the legal regulation of proceedings in cases of administrative offenses and pre-trial settlement of disputes are revealed.

62-86 436
Abstract

For many decades, international human rights law has recognised the danger of wrongful convictions and miscarriages of justice. It is against this background that measures have been taken to prevent or combat wrongful convictions. Thus, Article14 of the International Covenant on Civil and Political Rights provides for the right to a fair trial as well as compensation in the case of amiscarriage of justice. The BRICS nations have implemented measures at the national level to prevent or combat wrongful convictions before and during trial as well as after conviction. These have included constitutional protection of the right to a fair trial, the establishment of a system to review convictions after the appeals process has been exhausted, should the offender exercise his or her right of appeal, and compensation for wrongful conviction in some countries. The purpose of this article is to highlight these measures and where needed, suggest ways in which these countries can learn from one another to prevent or minimise cases of wrongful convictions.

87-113 398
Abstract

The article describes the main issues of tort liability regulation in the context of the principle of justice and its implementation into the legislation and law enforcement practice of the Russian Federation and the People’s Republic of China (PRC). The comparative method of the study revealed critical differences in the provisions of Russian and Chinese tort law. The analysis of the domestic and foreign scientists’ works and judicial practice in disputes on compensation for harm contributed to findings and results related to the forms of justice implementation in these countries. The authors argue the dominance of procedural form of justice implementation in the Russian legal system but distributive form in the Chinese legal system. Positive and negative aspects of both forms are discussed. The reform of Chinese civil law which completely changed legal regulation of tort liability and excluded many of the controversial provisions of the previous PRC law on liability for offenses required new theoretical studies aimed at evaluating new laws. Comparison of the new tort law of the People’s Republic of China and the tort law of the Russian Federation is especially acute in connection with the objective to integrate the BRICS member countries against the background of the increasing conflicts in international arena. Optimization of legal norms by choosing the most effective model for the principle of justice would improve the protection of victims’ rights. In particular, the authors conclude that it is necessary to integrate the Russian and Chinese approach for determining the compensation and defining clear criteria for resolving disputes. In addition, possibility of the tort liability parties to agree on the procedure, time frame and amount of compensation should be set out under the law.

114-135 450
Abstract

As has been the case around the world, the real estate sector has played a pivotal role in the overall growth process of the Indian economy. Since the privatisation of the Indian economy in 1991, the government of India has introduced a variety of investment instruments to capture the interest of millions of potential investors over the last three decades. One such instrument is the Real Estate Investment Trust (REIT). In order to make the market more accessible to investors interested in REIT investments, the Draft Regulations were introduced in 2007. Following numerous modifications, the REIT regulations were finally ratified in 2014 by the Securities and Exchange Board of India. The Indian REIT regulations are aimed at providing an organized market of retail investors in aprofessionally managed ecosystem. However, since its launch in 2014, the REIT regime in India has failed to attract the expected number of investors. Through this paper, the legal structure of REITs in India is reflected, along with changes experienced up to the 2019 amendment. This study also takes a comparative approach in examining the structural aspects of Indian regulations in comparison to those of other countries, and comes up with some recommendations for the improvement of REIT regulations in India.

136-167 407
Abstract

Ensuring market discipline, integrity, and transparency with the overall aim of protecting the investing public is critical to the wellness of a capital market and a financial system. However, one corporate ill besetting the securities markets in all jurisdictions is insider trading. Apart from being unethical, insider trading disrupts market dynamics. In South Africa, over the years, successive Acts have been enacted, amended, and repealed to ensure discipline and protect the integrity of the nation’s securities market. In 2012, the Financial Markets Act of 2012 (FMA) was enacted to improve, among others, the enforcement of insider trading regulation in South Africa. However, the regulation of insider trading and its enforcement in terms of the FMA have been insufficient. This article therefore seeks to benchmark the South African position against Canadian model with the objective of drawing lessons for South Africa. The choice of Canada was informed by the fact that Canada has a well-developed anti-insider trading regulatory framework and presents a case study of international best practices in the regulation of insider trading. Therefore, the conclusion in this article is that with creative and appropriate reforms of the FMA, using the Canadian model, the investing public will be adequately protected against insider trading, and investors’ confidence and the financial markets’ integrity and efficiency will be better enhanced.

4
Abstract

Real estate sector has played a pivotal role in the overall growth process of the Indian economy and so has been the case worldwide. Since the privatisation of Indian economy in 1991, the government of India in the last three decades have introduced many investment instruments to capture the interest of millions of potential investors. One such instrument is the Real Estate Investment Trust (REITs). To market facilitate investors for REITs Investments, the draft regulations were introduced in 2007. After many updates, the REIT regulations were finally notified in 2014 by Securities and Exchange Board of India. The Indian REIT regulations aim at providing an organized market of retail investors in a professionally managed ecosystem. However, since its launch in 2014, REIT regime in India has not attracted investors expected before its launch. Through this paper the legal structure of REIT in India is reflected with changes experienced till 2019 amendment. This Study also takes a comparative approach in examining the structural aspects of Indian regulations with that other countries and comes up with some suggestions for the improvement of REITs regulations in India.

2
Abstract

The study addresses the main problems of the regulation of tort liability in the context of the implementation of the principle of justice in the legislation and law enforcement practice of the Russian Federation and the People's Republic of China. The comparative method of the study revealed critical differences in the provisions of Russian and Chinese tort law. The analysis of the works of domestic and foreign scientists, judicial practice on disputes on compensation for damage, contributed to the formulation of conclusions about the forms of justice in these countries. The authors argue for the dominance of the procedural form of the principle of justice implementation in the Russian legal system, and the distributive form in the Chinese legal system. Both positive and negative sides of both the first and second forms are indicated.

The reform of Chinese civil law, which completely changed the legal regulation of tort liability and excluded many controversial provisions of the previously existing law of the People's Republic of China on liability for offenses, required new theoretical studies aimed at evaluating the introduced novelties. The topic of comparing the new tort law of the People's Republic of China and the tort law of the Russian Federation is particularly acute in connection with the objective need for integration of the BRICS member countries against the background of increasing confrontation in the international arena. Optimization of legal norms based on the choice of the most appropriate model for the principle of justice, would improve the effectiveness of the protection of the rights of victims. In particular, the authors come to the conclusion that it is necessary to integrate the Russian and Chinese approaches to the issue of the procedure for determining the amount of compensation for damage and fixing it at the level of the law by identifying clear criteria. In addition, at the level of the law, the possibility of the parties to the tort obligation to agree on the procedure, terms, and amount of compensation (not lower than the minimum stipulated in the law) should be fixed.

Abstract

The securities market represents a very important component of the financial sector in every free-market economy. Ensuring market discipline, integrity and transparency with the over-all protection of the investing public is critical to the wellness of a capital market and a financial system. The need for an effective legal framework that would guarantee a fair and economically safe securities market built on sound policy and practical consideration has therefore become compelling. One corporate ill besetting the securities markets in all jurisdictions is insider trading. Apart from being unethical, insider trading is disruptive of market dynamics. In South Africa, over the years, successive Acts had been enacted, amended and repealed to ensure discipline and protect the integrity of the nation’s securities market. In 2012, the current legislation, Financial Markets Act (FMA), was enacted to improve among others, the enforcement of insider trading regulation in South Africa. The regulation and enforcement of insider trading in terms of the FMA are however insufficient. This article therefore seeks to interrogate whether the FMA offers adequate protection to the investing public in South Africa against the menace of insider trading. The authors conclude that the regulation and enforcement of insider trading in terms of the FMA is insufficient and posit that with creative and appropriate reforms of the FMA, the investing public will be adequately protected against insider trading and investors’ confidence and the financial markets’ integrity and efficiency will be better enhanced.

  


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