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BRICS Law Journal

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Vol 11, No 1 (2024)
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https://doi.org/10.21684/2412-2343-2024-11-1

ARTICLES

4-31 835
Abstract

Legal literature in the past has often debated whether concentrated corporate ownership (i.e. sizeable corporate conglomerates and corporate enterprises owned by business families or the government of a State) in a relatively close market leads to a high volume of related party transactions between the corporations in the respective market. The emerging economies attract substantial foreign investment due to the rapid growth of their markets and the presence of large publicly listed companies. Concentrated ownership structures in these countries tend to result in the expropriation of resources by controlling shareholders for their personal enrichment. There has been a high corporate failure rate due to related party transactions, despite the adoption of regulatory reforms that promote transparency, accountability, and fairness. Listed companies in the BRICS countries are marked by concentrated ownership structures controlled by either a family or the State. Although there are differences in ownership structures as well as indications of agency problems in the United States and the United Kingdom, the BRICS countries have adopted the same legal strategies to prevent unfair or abusive related party transactions in their respective countries, such as the appointment of independent directors, independent audit committees, CEO duality, and disclosure requirements. This study seeks to conduct cross-country comparative research to assess the ways in which the BRICS countries have regulated related party transactions. Each of the BRICS countries has adopted different monitoring mechanisms to prevent abusive related party transactions, which will be examined in the course of this research.

32-57 991
Abstract

Tokens and other digital technologies, in essence, can be considered neither property nor objects of civil law, nor are they inherently a part of civil rights per se. These technical solutions acquire a corresponding legal status only when they become an object of such legal relations. When this occurs, they are considered digital assets and are consequently subject to legal regulations. The legal nature of tokens is amatter of much dispute: some define them as objects of civil law, while others view them as a means to confirm the rights to a legal object. This article aims to prove that tokens can serve both functions. In most cases, tokens serve as a means of confirming rights to certain tangible objects (for instance, tokens as a means to secure civil rights). In this function, tokens for cryptocurrencies and digital securities, however, become legal objects in and of themselves because they play a part in legal relations (that is, tokens serve as a legal object). Tokens can be objects of absolute and relative rights. The common law doctrine treats an absolute right to cryptocurrencies and digital securities as a property right. Continental law, on the contrary, cannot include them in the property rights category since property within this legal framework is always tangible. Digital assets, however, are intangible. Therefore, they are not property. This article suggests that digital assets are objects of a new absolute right that is similar to property rights, except for one distinction: an object is not necessarily a thing. Based on the authors’ concept, this new right can be referred to as an absolute digital right.

58-83 576
Abstract

This article presents the authors’ approaches to understanding the concept of corporeality in its normative dimension. The purpose of the study is to conceptualize the images of human corporeality that exist in the system of legal regulation. Based on the idea that the research category is a representation of certain characteristics of the human body, the authors substantiate the possibility of using institutional and functional-activity approaches to analyzing human corporeality. Both of these approaches are based on distinct foundations, which include social institutions, fields of activity and functional purposes of the human body. The common basis for the two approaches lies in the biosocial component, which is considered one of the defining characteristics of an image of corporeality. Depending on the approach used, the authors propose three classifications of images of corporeality: private and public, collective and individual and normal and abnormal. Regulatory practices that are aimed at consolidating these images of corporeality are analyzed within the framework of the current legal regulations in the BRICS countries. The authors conclude by noting that corporeality is a biosocial category that serves as the basis for legal subjectivity, while gaps in existing images of corporeality are the basis for its normalization.

84-102 775
Abstract

A growing trend shows that global economic power is shifting away from the United States and Europe and towards the BRICS nations. The BRICS nations are predicted to hold the dominant position in the world by 2050. The rapid development of these economies and their markets is also raising a serious concern for the national antitrust enforcement authorities of the BRICS countries in their respective jurisdictions. This study attempts to examine the effectiveness of antitrust law, with a special focus on new developing trends in each of the BRICS jurisdictions. In addition, the study examines the proposed changes and limitations of the Indian Competition (Amendment) Bill 2022. The study reveals that the national antitrust laws and their enforcement processes are not fully developed and in need of considerable changes. Furthermore, the study indicates that while the proposed Amendment Bill 2022 is a progressive step in the right direction, it fails to cover certain key areas of the digital era, requiring further modifications to anticipate future impacts of economic development. In conclusion, the author recommends some points for effective policymaking, along with their future implications.

103-130 1109
Abstract

Language forms the basis of written contracts, but the use of language may also function as a barrier to contracting parties, particularly when the parties are not proficient in the commercial language of choice, such as English in the case of South Africa. The plain language movement and specifically legislative interventions have placed significant pressure on lawmakers to reform the use of traditional legal English, and consequently, traditional drafting styles. However, many contracts continue to exhibit convoluted language, legalese and poor visual appeal, which ultimately functions as a language barrier for many people. This article examines the various language barriers that exist in contracts from a South African perspective. It does so by assessing the barriers that exist under first, the common law (or the so-called default rules), second, the use of standard contracts, and third, the resistance to the use of plain language as well as the limited application of existing plain language legislation in certain types of contractual engagements. The author proposes dismantling the language barriers by adopting both textual and visual communication devices in order to achieve clear and comprehensible language in all types of contracts. Furthermore, it is suggested that such communication devices should not necessarily be limited to consumer contracts that are legislatively required to comply with plain language requirements. It is only by dismantling existing language barriers that social justice within contracts can be achieved in a society with diverse language proficiencies, such as South Africa. Therein, this article offers insights that are relevant not only within the South African context but also for countries that may face similar language barriers characterised by multiple languages and varying language proficiencies within their populations.

131-148 511
Abstract

This scientific article is devoted to the study and analysis of legal relations between the Republic of Kazakhstan and the BRICS countries in the field of the production and operation of medical electric vehicles with artificial intelligence technologies. Particular attention is paid to legislative measures that promote the formation and development of a new industrial sector, such as the production of medical electric vehicles with artificial intelligence technologies. The research uses a number of methods, including studying empirical data, comparative legal analysis, synthesis, generalization, and scientific forecasting. The article proposes legislative measures to solve the problems facing the medical electrical machinebuilding industry and the unmanned medical electric vehicle industry, as well as the difficulties of integrating automation and digitalization into the production process of transportation plants in Kazakhstan and the BRICS countries. In the order of forecasting, the authors propose the adoption of several laws that are relevant to the issue under consideration. These proposals include the signing of new international cooperation agreements between Kazakhstan and the BRICS countries aimed at the introduction of digitalization at machine-building plants in Kazakhstan for the production of medical electric vehicles equipped with artificial intelligence technologies.

BOOK REVIEW NOTES

149-164 691
Abstract

The Shanghai Corporation Organisation arose from a set of desired ideals in the Eurasian region bolstered primarily by countries such as Russia and China. With diverging cultural, political, religious, and economic values, the security and economic values were primate on the Organisation’s Agenda giving way to the formation of a strong regional alliance that grew from a five Member State Organisation. Within the Organisation, the ideals of human security, regional security, information sharing and economic development with cooperation find common ground. Though challenged differing values, the work traverses the historical, legal, and other journeys to one that has successfully found its way into the international arena with the likes of the United Nations. This paper reviews the work.

165-171 511
Abstract

This article is a review on the two-volume book called “Comparative History of Foreign Law” written by Dmitry Poldnikov, the Professor of the Theory of Law and Comparative Law Department at MGIMO University of Russia. The authors of this review are convinced that the book is a new word in Russian legal-historical editions because it presents an unconventional analysis of the development of state and legal systems of various jurisdictions through the prism of legal values, legal traditions and legal diversity.



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