Showing papers in "BRICS Law Journal in 2020"

Regulatory sandboxes (experimental legal regimes) for digital innovations in brics

Abstract: Step by step, new digital technologies are capturing different spheres of our life. The opportunities of their application are almost infinite, and potential is very promising. But digital innovations as a trend represent a challenge for every modern state. Especially for member-countries of the BRICS union who seek to become the world’s leading countries. For this reason, the most important task for the members of BRICS is to create adequate “smart” regulation, which offers alternative ways of regulatory impact on transforming business relations. Using the regulatory sandbox as an experimental legal regime is one of the ways to test the creation, production, and realization of digital innovation. Having been first applied in 2016 in the United Kingdom, nowadays this model is successfully implemented in such countries as Singapore, Australia, and the United Arab Emirates. Member-countries of BRICS are only beginning to adopt this unorthodox tool; in most of its countries the legal framework is ongoing now. The aim of this research is to analyze current legislation and legal framework on the regulatory sandboxes in BRICS countries, define features of national models, difficulties and further prospects of its usage. This research is based on the comparative and formal juridical analysis of legislation, draft laws, and research papers dedicated to regulatory sandboxes in BRICS. The authors identify different barriers and risks of using regulatory sandboxes for the digital innovations successfully and offer some ways to overcome these challenges, including the formulation of guidelines for operating regulatory sandboxes based on a balance of public and private interests. The authors conclude that it is necessary to update legislation on the regulatory sandboxes for reaching positive effect from the digital transformation and make several suggestions for optimization its provisions. The results achieved in research paper can be used both in the lawmaking process as well as the foundation for further scientific researches.

Telework in BRICS: Legal, Gender and Cultural Aspects

Abstract: With the rapid development of digital technologies and globalization, telework is becoming increasingly common. For the BRICS countries, the formation of a modern legal regulation model for telework is of great importance. In drafting legislation, it is essential to take into account economic and cultural factors, as well as the need to ensure gender equality. This article presents an analysis of current trends in telework development in the BRICS countries. Its findings reveal various reasons for a growing need to regulate telework. For Brazil, the issue of ecology plays an important role; for China and India, the possibility of integration into the world economy; in Russia, the focus is still on the procedural issues concerning the conclusion and termination of employment contracts; in South Africa, the issue of ensuring not only gender equality, but also racial equality is acute. The analysis gives the authors grounds to conclude that the BRICS countries are still lagging behind the United States and the European Union in the area of telework labor law, despite its widespread prevalence. The BRICS countries do not yet produce the necessary statistics on the prevalence of telework. Issues relating to BRICS's deepening integration require the development of common approaches to regulating the work of teleworkers. The harmonization of legislation between Russia and China is of particular importance due to the territorial factor.

Unified digital law enforcement environment - necessity and prospects for creation in the “brics countries”

Abstract: The article examines the prospects for the development of an interstate association of BRICS member nations and concludes that it is necessary to expand cooperation in addition to the economic sphere through other areas, in particular, the organization of interaction to combat crime. The article focuses on the fact that an important area of joint cooperation between the BRICS member nations will be activities in the field of security and combating crime. The main promising areas of cooperation between the BRICS member nations in the field of security are formulated and forms of joint activities in these areas are proposed. This area of cooperation of the BRICS member nations should be based on modern information technologies, which is due to the need for coordination of law enforcement activities of the BRICS member nations. The article analyzes the joint system for preventing international crime in the BRICS member nations and concludes that no improvement of this system is possible without appropriate information support for law enforcement based on general principles and approaches. To this end, the necessity of creating a Unified Digital Environment for Law Enforcement Services in the BRICS member nations is substantiated, which implies the speed of achieving the objectives of law enforcement in the BRICS member nations; reduction of corruption risks in this area; as well as automation of individual work processes by replacing a human resource with software. The article describes the concept of a Unified Digital Environment for Law Enforcement Services of the BRICS member nations, substantiates the components that make up its structure. The modern methods of information processing that can be used to build the specified information system are presented. Possible interested users of this environment are highlighted and the capabilities of the Unified Digital BRICS Law Enforcement Services Environment provided to these users are presented.

Price Algorithms as a Threat to Competition Under the Conditions of Digital Economy: Approaches to Antimonopoly Legislation of BRICS Countries

Abstract: The authors examine certain legal problems of antitrust regulation in the digital economy facing the international community, including BRICS member countries. This article focuses on the problems associated with the use of price algorithms by enterprises as a threat factor to competition. The concept of “price algorithm” and the goals of its use by enterprises are analyzed; it is concluded that the use of price algorithms is just one of the tools for conducting economic activity. At the same time, enterprises can pose a threat to competition by using price algorithms as an element of concluding anti-competitive agreements (concerted actions) between enterprises and illegal coordination of their activities. Restriction of competition through the use of price algorithms can harm consumers of goods, works, and services and should be controlled by antitrust authorities. Based on the analysis of the antitrust laws of the BRICS member countries, it is concluded that currently the concept of a “pricing algorithm” is not enshrined in the laws of any of the BRICS member states, however, there are prohibitions on anticompetitive agreements of enterprises and illegal coordination of economic activity. We refute the need to legally enshrine the concept of “price algorithm” in antitrust law. At the same time, it proves that enterprises should be held accountable for the use of the price algorithm as atool to limit competition. The paper proves that within the framework of interstate cooperation of the BRICS countries in the field of competition law, it is necessary to develop common approaches to antitrust regulation in the digital economy, including to ensure auniform approach to regulating and controlling the use of price algorithms by enterprises in the framework of economic activity.

The Protection of Consumer Rights in the Digital Economy Conditions – the Experience of the BRICS Countries

Abstract: Online contracts are characterized by unequal economic opportunities. The consumer, traditionally, has fewer economic opportunities, the seller – more. Digitalization of consumer-seller relations did not solve the old problem of insufficient consumer protection, but rather exacerbated it. Now the consumer needs to be protected from unscrupulous actions of both the seller and the aggregator of the information on goods, works, and services, i.e. the owner of the site on which the consumer buys the good, orders the work or the service. Acontract concluded on a site is a special type of adhesion contract. If a site sells goods from different sellers (which often happens), the terms and conditions of the adhesion contract are determined not only by the seller, but also by the site owner. Thus, the economically weak party – the consumer, needs to be protected both against the seller’s abuse, and against the site owner’s abuse. The article compares the experience of regulating the relations between the consumer, the seller (contractor) and the information aggregator accumulated by the EU countries, on the one hand, and BRICS countries, on the other. It is concluded that the development of regulation in all the BRICS countries is currently moving towards providing the consumer with the widest information opportunities. It is necessary to support the idea of holding the e-commerce aggregator responsible for any failure to fulfill its obligations to the consumer. The responsibility is considered acceptable when the aggregator has not informed the consumer that it does not provide goods, work, services, or in cases of the aggregator’s gross negligence in identifying the user when registering a potential seller on the site. A separate problem is the public legal status of the online platform aggregator, since when an onsite contract is concluded, the consumer should not receive less secure goods than when a contract is concluded through an exchange of documents in the ordinary “paper” form.

The ecosystem of cryptocurrency as an object of civil rights in brics countries

Abstract: The article presents a comparative legal analysis of the modern legal regulation of the multidimensionality of digital electronic currency in BRICS countries. It assesses the possibility of civil circulation of a digital property right as an economic and legal segment without clear legal regulation. It analyzes the judicial practice related to confidentiality, acquisition, and trading of virtual currency. The article justifies the ability to integrate a single digital currency – CRYPTOBRICS, a single equivalent for all payments in the form of cryptocurrency within the framework of BRICS for settlements and increase in the trade exchange volume on these international platforms. This will provide for the legalization and consolidation of the legal framework of cryptocurrency within the context of objects of civil rights, allowing BRICS members to become regulatory leaders in the field of digital assets. We formulated a proposal to create an international agreement defining the parameters of the digital currency issue based on blockchain technology for interstate transactions, which allows the BRICS counties to establish the next stage of their mutual integration for the free trade zone and the customs union. Unifying the civil circulation of cryptocurrency and using the platform of modern non-monetary digital circulation as our foundation, we concluded that BTC can be classified as a type of digital property right. The article justified the theoretical definition of digital property right in the form of cryptocurrency as a resource stored in a device or electronic system which allows the end user to complete transactions using virtual currency and denominated in another payment unit, as opposed to currencies issued by sovereign states. We suggested that insurance companies be insured against all possible risks associated with cryptocurrency circulation and cybersecurity as a civil measure to protect the order of intangible digital codes – cryptocurrencies.

Justice in the contemporary world

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.

Contributions of Indian Authors in the Subject Category Law of the Web of Science Core Collection: ABibliometric Analysis

Abstract: This paper presents a bibliometric analysis of research works in the subject category Law published with the affiliation of India in the Web of Science Core Collection. A total of 529 published works by Indian authors from Indian law schools and institutions on or relating to the subject of the law have appeared in law journals and other sources. The works are indexed in the Core Collection for the years 1999–2019 and have been cited 2,041 times over this 20-year period. To conduct the analysis of the published data based on norms such as author-wise, country-wise and citation-wise figures, normative bibliographic techniques were applied to attain the objectives. After adetailed discussion of the analysis of the data, the research arrives at the conclusion that Indian authors have fewer published works in the subject category Law in the Core Collection than two other Asian countries, but that there has been a gradual increase in their number since 2011.

The import of institutions to the brics countries

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.

Strong economic development without judicial independence in china: a review

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.

Transnational contracts and their performance during the COVID-19 crisis: Reflections from India

Abstract: The outbreak of COVID-19 has severely impacted the performance of contracts across the globe. In some situations, the outbreak may render the performance of contracts impossible as a result of governmental restrictions in the form of national lockdowns to curb the spread of the virus. In other situations, the pandemic may adversely impact the execution of contractual obligations by dramatically affecting the price of the performance and, thus, resulting in hardship or commercial impracticability, while in certain situations the pandemic may be legally construed to not affect the performance of a contract. In domestic contracts, the consequences of such non-performance would depend on the principles of national law. In comparison, agreements with a foreign element (international contracts) are likely to increase the complexity of deciding claims arising from the non-performance of contracts due to the COVID-19 outbreak. The rights and liability of the parties would chiefly depend on the law that will govern the agreement – which differs across the globe. Some contracts would include a force majeure clause to exonerate the parties from performance on the occurrence of an event such as a pandemic. The courts’ interpretations of such force majeure clauses similarly differ across the globe. The laws of some countries would excuse the parties from performing their contractual obligations even if the pandemic resulted in hardship. Others would strictly construe the terms of such clauses and would invalidate them if the occurrence of the pandemic did not make the performance impossible. This paper examines the non-performance of transnational contracts due to the COVID-19 outbreak when they are governed by Indian law. It highlights the situations when an international contract for the sale of goods or services whose performance has been allegedly hindered due to COVID-19 would (a) frustrate and (b) breach the agreement under Indian law. The paper provides a comparative analysis of Indian law with jurisdictions such as France, Germany, Austria, China, the United Kingdom, Australia and the United States to demonstrate that Indian law is not well equipped to deal with complex lawsuits arising due to the non-performance of contracts as a result of the pandemic.

Convergence in corporate governance: the case of china and india

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.

Formal Debt-Relief, Rescue and Liquidation Options for External Companies in South Africa

Abstract: This article discusses how foreign companies doing business in South Africa during periods of financial distress and registered locally as external companies are, as a recent High Court decision confirms, denied the formal debt-relief measures of business rescue and therefore a compromise with creditors because of being excluded by the definition of “company” in the Companies Act 71 of 2008. Nor, for the same reason, may these companies, if solvent, rely on the current liquidation procedures. But they may possibly use the procedure preserved in the otherwise repealed Companies Act 61 of 1973 for liquidation as far as the transitional arrangements in the Companies Act 71 of 2008 allow. The purposive solution suggested in this article for the interplay between the two Acts may need legislative attention. This article surveys other possibilities relevant to these companies such as informal voluntary arrangements, applications for winding-up, ordinary debt collection, and perhaps compulsory sequestration applications. Finally, it raises the policy issue for the legislature to consider why these companies should be denied business rescue and/or a compromise with their creditors when these formal debtrelief measures might help them survive their financial stress and emerge stronger, to the advantage of themselves, their creditors, their stakeholders and communities, and the entire nation. It is submitted that these issues could and should be considered as part of the current law reform process of South African insolvency law.

Breeders’ and Farmers’ Exceptions: How Valuable Are They for the World and Are They a Necessity for the BRICS Countries?

Abstract: These days, the world and every country in it are faced with the task of ensuring food security for people. It’s of current interest also for the BRICS countries. The ability to access genetic information and materials for seed production depends on intellectual property regimes. A lack of access to them is a main barrier for contribution in the development of plant varieties. This situation leads to dependence on obtaining hybrid varieties from foreign companies, which poses a threat to food security. It seems that to ensure freedom of research priorities there is a need to provide an opportunity to commercialize new breeding achievements resulting from such discoveries. Correct policymaking also includes the issue of regulating the situation when a patent and a certificate of ownership of the new plant variety are issued to different persons or companies. Capturing in legislation the breeders’ exception is necessary for the use of the patented invention in the frame of creating, discovering and developing a new plant variety. The biodiversity of seeds is a high stakes matter especially for the developing countries, where there are many challenges for smallholder farmers. The guarantee of the farmers’ right to use the saved seeds on their own farms and to exchange such seeds between themselves may be one of the aspects of food security as it is a base of the traditional agriculture economy in some countries, where smallholder farmers play a significant agricultural role. Also the position and scope of farmers’ rights and privileges, based on legislation and, especially, on judicial cases, shows a side of independence on international corporations in the agricultural sector.

Guest editor’s note on digitalization in law

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The Legal Model of Responsible Parenthood on The Example of Regional Legislation of the Russian Federation

Abstract: The relevance of the research issue is its novelty and socially significant conditionality provided by law of the legal and social “scenario” of responsible parenthood, prescribing common standards for parents raising minors. It is well known that the regulation of family relations, including parents and children, is one of the most relevant international research topics. In this regard, this article aims to obtain an overall view of the institution of responsible parenthood, included in the legal regulation in a set of rules and regulations established by the state and forming its special content. The leading approach (method) to the study of this problem is legal and sociological, allowing for a comprehensive review of the legal and social content of responsible parenthood on the example of regulation. The article presents relevant issues of responsible parenthood and its development based on specific laws; revealing its legal and social content while considering the potential of this type of parenthood. The research has scientific novelty, as it is the first attempt to consider the legal model of responsible parenthood on the example of Russian legislation. These materials can provide theoretical and practical value for further scientific research, as well as updating the regulatory approach to the regulation of family relations.

Scientific cooperation across the brics

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.

Civil liability for marine oil pollution damage in the brics countries

Abstract: Until the 20 th century, most countries around the world focused on developing the benefits of maritime transport and paid little attention to oil pollution from ships. The truth of the matter is that the development of marine transportation was a leading cause of marine pollution. Today, marine oil pollution is considered a dangerous source of contamination of the marine environment, and the oil pollution from ships is the source that draws the greatest concern. This concern clearly is felt by the BRICS countries, whose members, with vast seas adjacent to their landmasses, are keenly interested in preserving and protecting the marine environment against pollution, including marine pollution caused by oil from ships. The BRICS member states are countries with large economies and significant influence on regional and global issues. In recent years they have played a vital role in the world economy in terms of total production, destinations for investment capital and potential consumer markets. Therefore, the development and improvement of the laws of these countries relating to civil liability for marine pollution damage have significance for protecting the marine environment. This paper explores the legal regimes relating to civil liability for marine pollution damage at the international level and in the BRICS member states. It compares the differences in the domestic legislation of the BRICS countries pertaining to civil liability for marine pollution damage and concludes with recommendations for better implementation.

Non-Standard Employment in the BRICS Countries

Abstract: Non-standardization of employment has become the main trend of the labour markets in the globalized economy. Attempting to enhance the flexibility of employment relations the legislators in BRICS countries are also the part of this trend. The forms of the nonstandard employment are numerous, the present paper concentrates upon the following ones: temporary employment, part-time and multi-party employment relationship. The authors review the experience of four BRICS countries in regulating non-standard forms of employment and determine what were the specific reasons for adopting them in Russia, China, Brazil, and South Africa. The national parts are introduced by the consideration of the international standards of protection of employees working under non-standard contracts. It is argued that even though these four states did not ratify the ILO Convention No. 181 Private Employment Agencies Convention (1997) and only Russia ratified ILO Part-Time Work Convention (No. 175), the ILO approach has influenced the development of national regulations. Though the equal treatment of all workers is lacking in many aspects of employment relations. In the national parts the authors trace the changes in employment law which reflect the pursuit of flexibilization of the labour market and, as in Brazil, the need to formalize employment relations.

Main Trends in the Development of Russian Law on Non-Profit Organizations

Abstract: The article is a comparative study of legal regulation on non-profits in the Russian Federation by federal law, including the Constitution, federal statutes, decrees of the President of the Russian Federation, resolutions of the Government and Constitutional Court rulings in connection with certain international legal acts dealing with the right to association, and by the law of the constituent entities of the Russian Federation. The main stages of the development of the law on non-profits both at the federal level and at the level of the constituent entities of the Russian Federation, as well as the main trends in the development of non-profit law in modern Russia, are explored.

People-Centered Approach and Youth Participation in BRICS: A Case of BRICS School

Abstract: International Research and Educational Program “BRICS School” took place in Moscow on 5–10 October 2020.

Federalism in Russia: Current State and Emerging Trends

Abstract: The article considers the phenomenon of federal relations in modern Russia from a theoretical and normative point of view. Studying related categories, such as federalism, federation and federal system, the author comes to the conclusion that it is federal relations, which by their nature are purely legal relations, are the core of any federal system. It is the analysis of the dynamics of development of these relations that shows the viability of a particular federal system. Using the concept of systems theory, the author reveals the structure of federal relations, which includes their subjects, objects and content. In turn, the content of federal relations can be revealed using the principles of both the horizontal and the vertical separation of powers. In this regard, not only normative regulation (the Constitution, federal and regional laws), but also judicial practice are of great importance: namely, decisions of the Constitutional Court of the Russian Federation, which handed down a significant number of decisions revealing the essence of federal relations in specific cases and resolving existing problems. The development of the federal system, and, consequently, the actual federal relations can be traced in examples of an institutional and regulatory nature. Vivid examples of this development are structural changes in the federal system associated with the formation of a new constituent entity of the federation and the adoption of a new constituent entity in the federation. Such examples have occurred in modern Russia, although in the case of the adoption of new entities in the current regulatory framework, certain problems are found that should be eliminated by making appropriate amendments to the law governing the procedure for such adoption. The COVID-19 pandemic, unfortunately, has affected virtually every nation in the world. The relationship between the federal center and the constituent entities of the federation in such an extraordinary situation has been affected too and has undergone certain changes. Their analysis cannot but lead to a correction of the normative regulation of federal relations in the event of similar situations in the future. Amendments to the Constitution of the Russian Federation have affected a large layer of public relations. Federal relations are no exception, since the “Federated Structure” section of the Constitution includes a number of rather interesting changes.

Regulation of mergers and acquisitions in terms of the south african companies act 71 of 2008: an overview

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.

The Form of Ordinary Testaments Under Chinese and Russian Law and in the European Legal Tradition

Abstract: This paper analyses regulations concerning ordinary forms of testament in Russian and Chinese legislation against the background of selected solutions specific for particular European legal systems. It begins with a brief analysis of the development of Chinese and Russian civil law. This is intended to show the differences, but also the similarities, between them, caused, among other things, by the influence of Soviet law as well as ongoing reforms of succession law in both countries. Such similarities justify the need for a comparative examination of these legal orders, while the European context makes it possible to highlight their specific features. Taking into account the aim of this study, particular attention is paid to the normative sources of inheritance law and the traditional division of testaments into ordinary and special wills, something which is a common feature of Russian law, Chinese law and European legal traditions. The paper then examines particular forms of wills commonly found in European legislation, and follows this with a discussion of whether such solutions exist in Chinese and Russian law. Forms of holographic and notarial wills are presented in this manner. Particular attention is paid to forms of wills that occur only in one legal order, e.g. printed testaments as well as video and audio testaments in Chinese law, as well as the several types of notarial wills in Russian law. The paper concludes with a discussion of Russian and Chinese legislation’s various approaches to preserving the genuine will of the testator and the security of the legal transaction.

Control over the Human Body Before and After Death: The Civil Law Aspect

Abstract: In this article, an attempt is made to determine the legal status of the human body (organs and tissue) both while a person is alive and after a person dies. The article discusses the points of view of various authors in relation to the possibility of considering the human body, its organs and tissue, after their separation from the body, as objects of a person’s property rights, and also as an object of a person’s non-property rights. The article argues the impossibility of qualifying the human body and the organs that were not separated from it during life as parts – and perhaps critical parts – of the existence of the total human being, as objects of real (property) rights including the rights of the persons themselves. The human body as a single object is a personal non-property benefit. The organs and tissue separated from the body may be considered objects of real rights, but on several conditions: if they were indeed separated from the body and if the person gave permission for this in a will. The specific characteristics of the legal status of the separated organs and tissue of a human being are analyzed as things (possessions) with limited turnover. The specific characteristics of the legal status of the organs and tissue separated from the body as possessions in limited turnover are reviewed as well as the impact of personal non-property rights on this status. The main focus of the article is on the legal status of the human body and the organs separated from it after death in view of the fact that transplantology and postmortem organ donation are becoming more and more widespread. This issue is analyzed in terms of the body as a whole and as it applies to the organs and tissue that are not used for transplantation. The proposal is to base our analysis on the status of the human body after death which as a rule cannot be the object of property rights. The human body is disposed of within the framework of the protection of the personal non-property rights of the deceased, including the right of physical inviolability that covers the organs and tissue separated from the body. The article characterizes the legal nature of living wills when people give instructions as to the procedure of their burial and other means of handling their body, including donation of their bodies to science. The article examines the possibility of the right of ownership to organs and tissue separated from the body after death. This right can exist if a complex legal construct is present, including a direct or assumed living will of the person. The specific characteristics of living acts concerning the possibility of after-death organ and tissue harvesting for further use, including for transplantation purposes, and the differences between such acts and last wills are determined.