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The Author demonstrates the practical applicability of O. Bulow’s concept of the autonomy of procedural law relations. Such idea can be useful to ground the inadmissibility of challenging by one person, participating in a dispute, a ruling on return of an appellation (cassation) complaint of an another person; as well as to ground the inadmissibility of one party to the dispute pleading for not allowing the representative of another party to participate in court seatings.
This article is devoted to the questions to the notions “digital economy,” “digital rights”, “digital financial asset”, “utilitarian digital right”
It provides the reader on the view’s resident in economic and legal doctrines as to the notions of “digital asset,” “digital rights”, “digital financial asset”, “utilitarian digital right.”
The purpose of this article is to investigate the legal nature and legal regime of the digital rights and also the terms of their turnover.
It should be stressed that the digital rights are mainly investment tools, which can be used by various entities. As a result, the legislator tries to ensure a balance of interests between the recipients of investments and investors, as well as to protect unsophisticated investors from possible risks. In this regard, a system of norms has been formed that establishes the legal status of professional participants in the digital market (the operator of an information system, the operator of the exchange of digital financial assets, the operator of an investment platform, etc.), whose powers and responsibilities are similar in some of their functions to the activities of professional participants in the securities market.
The article analyzes the legal regime of a new investment instrument - a digital certificate, which was introduced into Russian legislation recently. It should be stressed that the appearance of this investment instrument in Russian law is determined by the requirement to introduce digital rights (utilitarian digital rights) to the securities market. The requirement of the introducing digital rights will help to increase the circle of potential investors, because they haven’t to obtain the status of a participant in the investment platform.
The purpose of this article is to investigate insufficiently developed problems related to the legal nature, the legal regime of the digital certificates, also the conditions of their turnover.
Methodological basis of the research consists of general scientific and special methods of cognition, in particular system-structural, formal-legal, formal-logical methods, method of interpretation of law.
In the article, the author notes that the existing legal regulation of relations arising over a digital certificate can hardly be considered satisfactory. In particular, the current legislation contains contradictions and gaps that need to be eliminated. For example, the legislator doesn’t answer to the question of who is the original owner of the digital certificate. As a result of the conducted research, the author of the article came to the conclusion that the digital certificate is a non-emissive, non-documentary, investment security intended for the introduction of such investment instruments as digital rights (utilitarian digital rights) into the securities market.
This study describes and analyses the recently adopted foreign investment law (i.e., the Law). This paper presents reasons for the adoption of the Law. For example, this study focuses on the trade war between the United States and China, which has greatly affected the adoption of the Law. The political background that influenced the adoption of the law is revealed. Of note, legal techniques used by the Chinese legislators in the Law are evaluated. For example, a list system for investment sectors is used, which divides all industries into categories with a special regime. This system divides all industries into four categories: (1) encouraged, (2) permitted, (3) restricted, and (4) prohibited. In conclusion, this study emphasizes that changes achieved by the Law are not revolutionary. Some of the consequences that the adoption of the law entails is analyzed. Thus, the Law represents a gradual evolution in how foreign investors access the Chinese economy.
The chapter reviews the mechanism of foreign direct investment controls as implemented in Russia under the auspices of the Federal Law “On Foreign Investments in Russia” No. 160-FZ and Federal Law No. 57-FZ “On the procedure for making foreign investments in companies which are of strategic importance for ensuring the country’s defence and state security”. The author examines the definition of the foreign investor provided by the laws, analyzes the types of activities deemed of strategic importance for national defence and security and describes the thresholds triggering obligations of obtaining prior clearance of foreign investment transactions. A separate section of the chapter is devoted to the analysis of the procedures for obtaining clearances and the consequences of non-compliance. The paper also addresses other rules of the Russian legislation that restrict foreign direct investment to Russia. In the last section of the chapter, the author summarizes the experience of 10 years of application of foreign direct investment control mechanisms in Russia and poses questions on the possible implications of Russia’s experience for the EU Regulation establishing a framework for the screening of foreign direct investments into the Union.
This book presents the very first, interdisciplinarily grounded, comprehensive appraisal of a future “Common European Law on Investment Screening”. Thereby, it provides a foundation for a European administrative law framework for investment screening by setting out viable solutions and evaluating their pros and cons.
Daimler, the harbour terminal in Zeebrugge, or Saxo Bank are only three recent examples of controversially discussed company takeovers in Europe. The “elephant in the room” is China and its “Belt and Road Initiative”. The political will in Europe is growing to more actively control investments flowing into the EU. The current regulatory initiatives raise several fundamental, constitutional and regulatory issues. Surprisingly, they have not been addressed in any depth so far. The book takes stock of the current rather fragmented regulatory approaches and combines contributions from leading international academics, practitioners, and policy makers in their respective fields. Due to the volume’s comprehensive approach, it is expected to influence the broader debate on the EU’s upcoming regulation of this matter.
The book is addressed to participants from academia as well as to representatives from government, business, and civil society.
The Author emphasizes on that procedural norms, regulating class actions and discovery of evidence as well as the concept of interim court decision, shall be applied for the effective functioning of challenging transactions extra-bankruptcy. The discourse on standards of proof in such challenging is put up in the article.
The Author demonstrates, that the problem of interrelation between a claim of bringing to subsidiary liability and a claim, asserted by means of a civil action in a criminal case, leads us to the question of solidary obligations. A broad approach towards solidary obligations is reflected in the article, but however it is stressed, that solidarity has to be discussed from a procedural perspective.
This article is a commentary on the decision of the Constitutional Tribunal of the Republic of Poland dated October 22, 2020, in which paragraph 2 of part 1 of article 4a of the Act of January 7, 1993 about family planning, protection of the human fetus and conditions for the acceptability of abortion was found to be contrary to the Constitution of the Republic of Poland. By this decision, which caused a colossal public outcry, the Republic of Poland established a ban on abortion if medical circumstances indicate a high likelihood of severe and irreversible fetal impairment. The author pays special attention to the factual recognition by the Constitutional Tribunal of the Republic of Poland of the subjectivity of persons who physically do not possess either consciousness or their own will, and also assesses the change in the category of legal personality in the Polish constitutional concept, formed by the practice of the Constitutional Tribunal of the Republic of Poland.
The Author concludes, that in bankruptcy cases the ideas of a derivative action and of a class action find their way. The first is typical for the bankruptcy initiation stage and the second – for separate disputes on bringing to subsidiary liability and challenging of transactions. In the context of the chosen problematics the question of creating a mechanism of collective funding of bankruptcy procedures is put up.
The Author grounds, that confessions and affirmations, made by a party to a future dispute earlier, than a case was initiated, shall be considered by the court during trial. It is asserted that criminal liability for deliberately false testimony from a party to the dispute is unnecessary; a softer procedural sanction as a total disqualification of a party’s testimony is needed.
The Author, discussing on the moment when obligations terminate by means of judicial set-off, concludes, that the answer to this question is concealed in the concept of a court decision. The solutions to the put up question depending on application of declaration theory or order theory are analyzed.
The article examines the question of whether such violations of the rules of procedural law by the arbitration courts of the first and appellate instance, which together can be designated as a violation of the principles of adversariality and equality of the parties, can be considered as a violation of the principles of adversariality and equality of the parties - an illegal ban on a party to provide evidence, an illegal refusal to assist in reclaiming evidence that is missing from a party failure to provide a party with the opportunity to familiarize itself with the evidence of the other party in a timely manner, acceptance of evidence in violation of the law, while prohibiting the other party to provide evidence to the contrary, lead to the cancellation of judicial acts in the arbitration court of the cassation instance. The analysis is carried out on the basis of comparing the limits of the consideration of the case in the cassation instance, the powers of the arbitration court of the cassation instance, as well as the grounds for canceling or changing judicial acts in cassation. The classic problem of cassation proceedings about what constitutes a check by the court of the cassation instance of the discrepancy between the conclusions contained in the contested judicial acts, the factual circumstances established in the case or the evidence available in the case is subject to special analysis.
The up-to-date practice of the Arbitration Court of North-West Region and Thirteenth Arbitration Court of Appeal on adopting interim measures in separate disputes within bankruptcy cases is analyzed. In the second half of the article the Author shares his views on the legal nature and procedure of adoption of interim measures.