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BRICS Law Journal

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Vol 4, No 1 (2017)
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https://doi.org/10.21684/2412-2343-2017-4-1

ARTICLES

7-25 372
Abstract
In this article the decentralization process and decentralization method are reviewed. Decentralization is the process of redistributing or dispersing functions, powers, people or things away from a central location or authority. While centralization, especially in the governmental sphere, is widely studied and practiced, there is no common definition or understanding of decentralization. The meaning of decentralization may vary in part because of the different ways in which it is applied. In this article the concepts of decentralization are researched. Decentralization in any area is a response to the problems of centralized systems. Decentralization in government, the topic most studied, has been viewed as a solution to problems such as economic decline, government inability to fund services and the general decline in performance of overloaded services, the demands of minorities for a greater say in local governance, the general weakening legitimacy of the public sector, and global and international pressure on countries with inefficient, undemocratic, overly centralized systems. The authors also research the issues of personal federalism and the subsidiarity principle.
26-39 547
Abstract

The Russian Parliament has modified the Civil Code recently. This reform has also covered the regime of uncertificated securities. Under the modified Civil Code (RCC) uncertificated securities do not constitute chattels but claims and other rights against the issuer. The legislator has also precised such issues as the methods of transfer and the creation of an interest upon those securities (Art. 149.2 of the RCC), the protection of the titleholder including the rights of a bona fide purchaser (Art. 149.3 of the RCC) and the liability of an intermediary resulting from the loss of the records (Art. 149.5 of the RCC).

In 2008, in Switzerland, the Parliament has adopted the Federal Intermediated Securities Act (FISA). The present Act has introduced a new object to the Swiss legal order: an intermediated security. The intermediated securities are distinguished from those in paper form and from the immobilized securities. The Swiss delegation has participated actively in the preparatory works that resulted later in the adoption of the UNIDROIT Convention on Substantive Rules for Intermediated Securities, also known as Geneva Securities Convention. However, this Convention has not been ratified by Switzerland.

The author analyzes the key issues of the reform in relation to uncertificated securities. We examine in particular whether the provisions governing the regime of uncertificated securities under the modified Civil Code of the Russian Federation have become more compatible with Geneva Securities Convention. Finally, we will try to explain why this Convention is not in force and whether the Russian Federation and Switzerland could ratify it. 

40-57 825
Abstract

Following the lead of the U.S. Senate on May 17, 2016, the House of Representatives of the United States of America unanimously adopted the Justice Against Sponsors of Terrorism Act (JASTA), which will allow victims of terrorism to bring class actions against any state directly or indirectly involved in terrorist acts against American citizens. U.S. president Barack Obama attempted to impose his veto against this legislation, but was overridden by both houses in September, 2016. As a result, the Act entered into law, risking a real revolution in international law with potentially very serious political consequences.

While it may be anticipated that those countries directly complicit in terrorism will see their assets – including their sovereign assets in the United States – seized to finance the compensation of the victims, such prosecutions will undoubtedly also involve European countries, many of which have themselves been targeted by terrorism. This is especially likely when their nationals are involved in terrorist acts.

There is now a great risk that U.S. law will unilaterally modify several fundamental principles of international law, such as the sovereign immunity of states, creating genuine legal conflict in which victims of terrorism will seek redress from all states, including allied nations or countries that have themselves been victims of terror. 

58-71 563
Abstract
In order to give effect to the UNICITRAL Model Law on Arbitration and due to radical change in its economy as the result of the 1991 New Economic Policy (NEP) India enacted the 1996 Arbitration & Conciliation Act. This Act provides a pragmatic legal basis for resolution of commercial disputes outside the court procedures. It circumscribes the older laws and consolidates multiple legal norms dealing with arbitration. However, the experiences in application of this Act for the last 20 years suggest that it needs to be amended as it contains serious drawbacks primarily due to poor legal technique which necessitated excessive judicial interventions and judicial overreach having led to resentment among those willing to resort to alternative dispute resolution under this Act while keeping the seat of Arbitration in India. Several attempts were made by the successive governments aiming at amending the 1996 Act. Yet all those attempts failed. Finally the present Union Government under the leadership of the Prime Minister Mr. Narendra Modi was able to bring in sweeping changes in existing arbitration law. These changes were carried out with the commitment of the Government in doing business in India through the Ordinance route and proper legislative procedures which finally led to the amendments having come into force on January 1, 2016. This paper attempts to analyse the key changes brought through the 2015 Amendment Act and their impact on the application of arbitration law in India. Moreover, the authors overview the prospects of India to acquire the preferred position in International Commercial Arbitration in the future as envisioned by the present Modi Government.

COMMENTS

72-83 318
Abstract
The paper aims to explore the role of ethics regulations on the backlog of cases in the state of Uttar Pradesh, India. There, there are many local practices which hinder the disposal of cases in the courts. The paper examines several, beginning with the theoretical training in ethics at the law schools and its impact in practice. The paper then explores the legal status of strikes and how they are conceived by lawyers in delaying the disposal of cases. Next it deals with adjournments in the courts and unravels the myriad frivolous reasons cited in seeking adjournments, as well as how, despite statutory limitations, courts succumb to the pressure of the Bar in granting them. The author echoes concern for creating transparency, efficiency and a system that inspires integrity, and argues for the need to rethink and redesign the whole system and create independent tribunals to enquire into lawyers guilty of professional misconduct.
84-99 795
Abstract

The stages of reforms under the influence of requirements of the World Trade Organization are considered on the basis of an analysis of Chinese legislation. Four stages of preparation by the People’s Republic of China for accession to the WTO within which there was a transformation of the legal system of China from 1982 to 2001 are described. The sources of Chinese lawmaking are presented and systematized as the basis of the economic legislation of the PRC at the stage of preparation for inclusion of China in the WTO. Attention is drawn to the particularities of the power organization of the Chinese state, in which there is no separation of powers into three branches: legislative, executive and judicial. This, in turn, allows to mark the feature in the economic sphere of legal regulation in China connected with the existence of the rules established by the Supreme National Court as a source of law. To represent the dynamics of normativelegal regulation of foreign trade activities, China has used the system of dialectical and universal methods of knowledge; general scientific methods (induction and deduction) and techniques (analysis and synthesis); as well as a special method – formally-legal. The identified course and direction of changes in legal support of domestic and foreign economic processes in China suggests the possibility to consider the experience of China in the promotion of Russia in the international trading community.

The authors propose that the entry of China into the WTO is of interest to the BRICS countries as long as China achieves optimal utilization of the WTO’s external economic opportunities. In addition, China has established a legally solid basis for the development of market relations in the state.

BOOK REVIEW NOTES

100-104 391
Abstract
Reviewed book: Marcos Degaut, Do the BRICS Still Matter? (Washington, DC: Center for Strategic and International Studies, 2015).


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