BRICS Law Journal最新文献

{"title":"Reinforcing Indigenous Peoples’ Right to Health in the Wake of the COVID-19 Pandemic: A Panacea for Sustainable Human Rights Protection","authors":"U. Nnawulezi, H. Nwaechefu","doi":"10.21684/2412-2343-2022-9-4-108-133","DOIUrl":"https://doi.org/10.21684/2412-2343-2022-9-4-108-133","url":null,"abstract":"The rights of indigenous peoples have become an important issue of international law and policy over the past three decades as a result of movements led by indigenous peoples, civil society, international mechanisms and states at the domestic, regional and international levels. Indigenous peoples are widely recognized as being among the world’s most vulnerable, disadvantaged and marginalized peoples. In order to identify, recognize and protect the rights of indigenous peoples, it is necessary to have a clear understanding of who the indigenous people are. Moreover, the definition that is derived cannot be static, but must change with the times and from place to place as well as adapt to the changing circumstances and environments. This paper analyses the statutory definitions of indigenous peoples and their rights as provided under the United Nations legal framework and other regional frameworks. Furthermore, it examines the unique perspectives on health held by indigenous peoples as well as their vulnerability to the COVID-19 pandemic. The question that was posed in this paper, however, was whether the right to health extends to indigenous peoples, thereby making it binding on a far greater number of actors. And what are the issues that pertain to the human rights of indigenous peoples. Nevertheless, this paper noted that the United Nations Human Rights System, as well as its mechanisms, laws and policies have been at the heart of these developments. This paper takes an analytical and qualitative approach to its research and builds its argument on existing literature, which is achieved through a synthesis of ideas. The paper concludes that the rights of indigenous peoples are increasingly being formally incorporated into the domestic legal systems of various countries.","PeriodicalId":41782,"journal":{"name":"BRICS Law Journal","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2022-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49115164","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Academic Researcher Work and the Confusion of Public Authorities. A Bleak Outlook for the Consequences of the Higher Education Reform in Poland – Comparative Approach","authors":"M. Świstak, P. Smoleń","doi":"10.21684/2412-2343-2022-9-4-134-161","DOIUrl":"https://doi.org/10.21684/2412-2343-2022-9-4-134-161","url":null,"abstract":"From the very beginning, it was assumed that the new regulation – Law on Higher Education and Science (LHES) would mark the implementation of a ground-breaking, comprehensive reform – “Constitution for Science.” It was emphasised that the project constituted the most extensive reform implemented within the framework adopted by the EC as the model for all large-scale systemic changes since the last thirty years. Unfortunately, the efforts made to date by the Minister of Finance and Minister of Science and Higher Education in the face of the many difficulties emerging at the meeting point between copyright, tax and education laws have to be deemed ineffective. Against the background of the analysed solutions in BRICS countries, the Polish solutions are the most far-reaching in terms of protecting the interests of academic teachers. They lead to a reduction of the tax burden (by applying 50% tax deductible costs) by exactly half. While the very idea adopted on the grounds of Polish legal solutions deserves a high assessment and may constitute an interesting model to be copied in the BRICS countries (as far-reaching benefits for university researchers), the manner of its introduction deserves criticism. The adopted legal basis, as shown in the study, is not internally coherent at the junction of tax law, copyright law and higher education law. In fact, they are even mutually exclusive. For this reason, the manner of proceeding with this legitimate regulation cannot be recommended in the BRICS countries.","PeriodicalId":41782,"journal":{"name":"BRICS Law Journal","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2022-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45572930","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Construction of an Assessment Index System of Law-Based Governance of a City in China","authors":"Ze-nian Li, N. Symaniuk","doi":"10.21684/2412-2343-2022-9-4-21-40","DOIUrl":"https://doi.org/10.21684/2412-2343-2022-9-4-21-40","url":null,"abstract":"Constructing an assessment index system of law-based governance of a city provides a data basis and an empirical basis for China’s urban construction of the rule of law and highlights its characteristics in the era of big data. A thorough understanding of the theory of the rule of law is required in order to establish this index system. The establishment of the index system needs to be based on a deep understanding of the theory of the rule of law. In particular, it is important to understand the relationship between the core content of the rule of law and the law-based governance of a city, and then to determine the connotation of law-based governance of a city. This serves as the starting point for constructing the index system. At the same time, it is necessary to have a solid grasp of the index theory, adhere to the method of index setting, break down the concept of law-based governance of a city into different levels of indicators according to the types and attributes of the indicators and continue to visualize and operationalize them until the content can be measured. As a whole, this forms a complete assessment index system. Of course, the content of the index system is not fixed and needs to be constantly tested and adjusted in practice.","PeriodicalId":41782,"journal":{"name":"BRICS Law Journal","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2022-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43930729","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Mandatory CSR in India – A Trailblazer from the East","authors":"Kirthana Singh Khurana","doi":"10.21684/2412-2343-2022-9-4-81-107","DOIUrl":"https://doi.org/10.21684/2412-2343-2022-9-4-81-107","url":null,"abstract":"The paper attempts to trace the evolution of the concept of Corporate Social Responsibility (CSR) and seeks to gather how it turned out to be a boon for the developing nations of the world, particularly countries like India. By the path-breaking promulgation of the Companies Act, 2013, CSR was made mandatory in India, for companies meeting the financial thresholds mentioned in Section 135 of the Act. The author seeks to study the journey of CSR in India, the present law, and the latest amendments made to the same in recent times. The paper evaluates the rationale behind the mandatory CSR law and how it can be a game-changer in India Inc.’s commitment to social causes. The author has also suggested how the mandatory CSR regime in India can be further strengthened to contribute meaningfully, particularly in the fields of education and healthcare, through better project identification, stronger execution linkages, an overhaul of the board committees, flexible and pragmatic government rules, and synchronization of the corporate CSR activities with the lead programmes of the Government of India. These reinforcements can go a long way in making the CSR approach much more effective and value accretive.","PeriodicalId":41782,"journal":{"name":"BRICS Law Journal","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2022-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45034626","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Tax Challenges Arising from the Digitalisation of the Economy: The Development of the OECD Project and Possible Implementation in Russia","authors":"K. Ponomareva","doi":"10.21684/2412-2343-2022-9-4-41-63","DOIUrl":"https://doi.org/10.21684/2412-2343-2022-9-4-41-63","url":null,"abstract":"The digitalisation of the economy has created a number of complex problems in the area of taxation. A majority of these problems relate to the issue of the distribution of taxing rights between states in the context of taxing income received as a result of crossborder activities. This article discusses the initiatives of the Organisation for Economic Cooperation and Development (OECD) regarding the taxation of international groups of companies in the era of the digital economy. It considers methodological approaches to taxation of the digital economy and highlights the features of the digitalisation of the economy that play an important role in tax policy. The study undertaken is based on a comparative legal method that allows for the examination of similar legal problems found in legislation and international treaties, as well as the identification of optimal ways to solve them. The following main problem with taxation of the digital economy is highlighted: tax systems laid down in the 1920s traditionally take into account the principles of the source of income and residency. In the new world of globalization and the digital economy, these principles have become significant obstacles to international trade. It is on this ground that the issues of the new nexus as well as the new model of allocation of taxing rights should be established. The article provides an analysis of the OECD’s two-pillar approach to these issues. Pillar 1 deals with the reallocation of profits of multinational enterprises to market jurisdictions. Pillar 2 deals with the issue of a global minimum tax. Additionally, the article discusses the various ways in which the new OECD concept could potentially be implemented in Russia.","PeriodicalId":41782,"journal":{"name":"BRICS Law Journal","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2022-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48785375","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Transformation of the Concept of Administrative Liability in the Protection of the Rights, Legitimate Interests and Security of Citizens","authors":"V. Panteleev","doi":"10.21684/2412-2343-2022-9-4-64-80","DOIUrl":"https://doi.org/10.21684/2412-2343-2022-9-4-64-80","url":null,"abstract":"This article discusses key areas of harmonization of administrative legislation and administrative responsibility between the Russian Federation and the Eurasian Economic Union (EAEU) countries. The most important issue in modern law is understanding that the uniform practical application of consistent administrative liability will enable the creation of a customs, tax, technological, and environmental space in the EAEU and BRICS. The author, on the basis of the findings of other researchers, gives an original definition of legal and administrative liability, which can be used in the harmonization of Russian legislation with the legislation of other BRICS and EAEU countries. The author also determines the regulation of the administrative process and the difference between administrative liability and other types of legal liability in accordance with modern Russian legislation.","PeriodicalId":41782,"journal":{"name":"BRICS Law Journal","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2022-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44171198","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Territories with a Special Regime for Business Activities: Legal Frameworks of Social Policy","authors":"I. Mikheeva, A. Sarnakova ","doi":"10.21684/2412-2343-2022-9-3-174-194","DOIUrl":"https://doi.org/10.21684/2412-2343-2022-9-3-174-194","url":null,"abstract":"The article focuses on the social dimension of territorial development and investments in Russian regions. The conducted research is devoted to territories with a special regime for business activities in Russia, their investment and innovation background and policy aiming at improving social environment and population well-being. Based on legal analysis and regulatory practices, the authors reveal drivers for strategic management of social and economic development, recommend some rules and underline possible benefits for territories’ residents. The paper discusses the advantages and perspectives of developing territories with aspecial regime for business activities in Russia, alongside with constraining factors discouraging their development. Theoretical issues are exemplified by some priority social and economic development areas created in the Far East. Most attention is paid to the infrastructural development of priority social and economic development areas, while special emphasis is placed on the cluster approach to the development of such territories, a comparison is made with technoparks and industrial parks.","PeriodicalId":41782,"journal":{"name":"BRICS Law Journal","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2022-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47414646","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Patentability of Computer Program Algorithms in the G20 States","authors":"A. Matveev, E. Martyanova","doi":"10.21684/2412-2343-2022-9-3-144-173","DOIUrl":"https://doi.org/10.21684/2412-2343-2022-9-3-144-173","url":null,"abstract":"Ubiquitous computerization and digitalization are contributing to the unprecedented growth of the software market. Computer programs are protected as subject of copyright law in international law and domestic legal systems. However, copyright law does not protect the interests of the copyright holder from borrowing ideas and algorithms which often have agreat commercial value. This circumstance has prompted the legal science and law enforcement practice of the most developed states to justify the possibility of protecting computer programs and their algorithms. The leading states chosen for in this paper are the G20 states. The relevance of this choice is due to the following: 1) The G20 states account for 86% of global GDP; 2) All world leaders in computer software development are G20 members; 3) All BRICS states are G20 members; 4) The law-and-orders of the G20 states are relevant to all existing traditions of the legal protection of intellectual property in the world. The legal systems of the G20 states follow one of three approaches according to the criterion of patentability of computer programs and their algorithms. We call the first approach “neutral.” It includes States which legislation does not explicitly prohibit the patenting of computer programs, but computer programs themselves are not mentioned among the subject matters of inventions. The second (“positive”) approach includes those states which legislation explicitly classifies computer programs as patentable inventions. On the contrary, the third (“negating”) approach includes states where it is legally established that computer programs as such are unpatentable. The results of the research demonstrate that there is no direct correlation between the way of solving the issue of patentability of computer program algorithms in different legal systems and the state’s place in the global IT market. For example, the United States and China take aneutral approach, Japan takes apositive approach, the EU Member States and India take anegating approach. We believe that the most flexible approach is aneutral approach from the point of view of patent law policy. The most liberal and consistent approach is the positive approach presented by the Japanese legal system. Finally, the negating approach is the most controversial and at the same time widespread among the G20 and BRICS states.","PeriodicalId":41782,"journal":{"name":"BRICS Law Journal","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2022-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48286187","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Comparative Analysis of the Legal Regulation of International Commercial Arbitration in Russia and Mainland China","authors":"O. Berzin, E. Shliagina, L. Ying","doi":"10.21684/2412-2343-2022-9-3-4-38","DOIUrl":"https://doi.org/10.21684/2412-2343-2022-9-3-4-38","url":null,"abstract":"This article examines international commercial arbitration, one of the most popular methods for the resolution of disputes that arise in the context of international commercial relations. The volume of trade between Russia and China has been gradually increasing in recent years, which testifies to the fact that the study of international commercial arbitration legal regulation in both nations is extremely relevant. The authors examine the concept of international commercial arbitration entities, as well as the sources of legal regulation that govern their establishment and operation in Russia and Mainland China. In addition, the procedures for case consideration, the elaboration of arbitration agreements, the rules for the creation of an arbitration commission, the requirements for arbitral awards and other aspects are investigated. The authors come to the conclusion that the regulations governing international commercial arbitration are similar in the two countries and are based on international law and national legal acts. Both Russia and China have adopted the norms outlined in the United Nations Commission on International Trade Law (UNCITRAL) Model Law into their legal systems although to different degrees. Both countries provide similar arbitration agreement norms and support the arbitration clause autonomy principle. The difference lies in the fact that China does not follow the competence-competence principle (the arbitrators’ power to determine their own competence to consider a certain dispute). Instead, the issue is referred either to the arbitration commission or to the state court for resolution. On the other hand, arbitrators in Russia have the right to determine their competence by themselves. According to Chinese law, a party requires arbitration court mediation in order to be able to submit a request for provisional protection measures to the state court, while under Russian law adirect request is allowed. In China, the norms for the recognition and enforcement of aforeign arbitration award by the court do not provide for the court’s ruling to be challenged; the refusal of the recognition and enforcement shall be possible only after the award has been considered by the Supreme People’s Court of the People’s Republic of China. In Russia, the legislation allows for both challenging and refusing the decision to recognize and enforce the award.","PeriodicalId":41782,"journal":{"name":"BRICS Law Journal","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2022-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42852783","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"In Search of a Comparative Methodology in the Jurisprudence of the South African Constitutional Court","authors":"M. Staden","doi":"10.21684/2412-2343-2022-9-3-84-116","DOIUrl":"https://doi.org/10.21684/2412-2343-2022-9-3-84-116","url":null,"abstract":"This article examines whether a judicial methodology to the use of comparative law has developed in the jurisprudence of the South African Constitutional Court. It does so by examining 10 recent cases where the Constitutional Court has considered foreign law. The author finds that a clear legal methodology to the use of foreign law has not developed in the jurisprudence of the South African Constitutional Court. Foreign law is often relied on in a piecemeal fashion and these examples are often “cherry picked” with little or no justification provided by the Court. The Court still shows apreference for considering “Global North” experiences. In addition, the Court has mostly failed to consider the social realities and cultural considerations of the comparator countries vis-à-vis those of South Africa.","PeriodicalId":41782,"journal":{"name":"BRICS Law Journal","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2022-09-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47234560","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}