Volume V (2018) Issue 4 - BRICS Law Journal

Volume V (2018) Issue 4

International Editorial Council

Brazil – Professor Teresa WamBier

(Pontifical Catholic University of São Paulo)

russia – Professor Dmitry maleshin (Lomonosov Moscow State University)

india – Professor Deepankar sharma

(National Law University, Jodhpur)

China – Professor Yulin Fu (Peking University)

south africa – Professor Danie van loggerenBerg

(University of Pretoria)

Russian Editorial Board

michael anTonov (Higher School of Economics)

Ksenia BeliKova (Peoples’ Friendship University of Russia)

elena glaDun (Tyumen State University)

Paul KaliniChenKo (Kutafin Moscow State Law University)

Dmitry maleshin (Lomonosov Moscow State University)

sergey maroChKin (Tyumen State University)

Danil vinniTsKiY (Ural State Law University)

issn 2412-2343 (online)

Key title: BriCs law journal (Print)abbreviated key title: BriCs law j. (Print)

variant title: BriCs lJ

Frequency of Publication: four issues per year

Published byllC "Publishing house "Business style",

119602, moscow, Troparyovskaya st., Bldg. 4, Floor 2, room 802.

www.ds-publishing.ru

issn 2409-9058 (Print)

Contacts: [email protected]

"BriCs law Journal" is registered by the Federal service for supervision of legislation in mass communications and cultural heritage protection (russia). reg. no. Fs77-69105 of march 14, 2017.

all rights reserved. no part of this journal may be reproduced in any means without the prior permission of the publisher. The views expressed in this issue are those of the authors and do not reflect the views of BriCs lJ editorial Council.

Chief Editor Dmitry maleshin

Deputy Chief Editor sergey maroChKin

Executive Editor elena glaDun

Тhe journal's founder is

BRICS LAW JOURNAL Volume V (2018) Issue 4

BRICS Law JouRnaL (BRICS LJ)

an independent, professional peer-reviewed academic legal journal.

Aims and ScopeThe BRICS Law Journal is the first peer-reviewed academic legal journal on BriCs

cooperation. it is a platform for relevant comparative research and legal development not only in and between the BriCs countries themselves but also between those countries and others. The journal is an open forum for legal scholars and practitioners to reflect on issues that are relevant to the BriCs and internationally significant. Prospective authors who are involved in relevant legal research, legal writing and legal development are, therefore, the main source of potential contributions.

The BRICS Law Journal is published in english and appears four times per year. all articles are subject to professional editing by native english speaking legal scholars. The BriCs lJ is indexed by scopus.

Notes for Contributorsmanuscripts must be the result of original research, not published elsewhere.

articles should be prepared and submitted in english. The BriCs lJ doesn’t accept translations of original articles prepared not in english. The BriCs lJ welcomes qualified scholars, but also accepts serious works of Ph.D. students and practicing lawyers.

manuscripts should be submitted electronically via the website www.bricslawjour-nal.com. articles will be subjected to a process of peer review. Contributors will be notified of the results of the initial review process within a period of two months.

Citations must conform to the Bluebook: A Uniform System of Citation.


TABLE OF CONTENTS

Articles:

Thiago Ferreira Almeida (Belo horizonte, Brazil)Roberto Luiz Silva (Belo horizonte, Brazil)

The Development Bank of BriCs ......................................................................................... 5

Vladimir Kiselev (moscow, russia)Elena Nechaeva (moscow, russia)

Priorities and Possible risks of the BriCs Countries’ Cooperation in science, Technology and innovation ...........................................................................33

Wálber Araujo Carneiro (salvador, Brazil)

Fundamental rights of Peripheral Constitutions: a new Theoretical approach and the Zika virus in Brazil .........................................61

Sergey Markuntsov (moscow, russia)

Characteristics of Changes in the Criminal legislation of russia and China .................................................................................................................90

Comments:

Azhaham Perumal Saravanan (Kharagpur, india)Subramanian Ramamurthy Subramanian (Kharagpur, india)

Transparency and Confidentiality requirements in investment Treaty arbitration ................................................................................................................. 114

Pallavi Khanna (new Delhi, india)

state sovereignty and self-Defence in Cyberspace ................................................. 139

Evgeny Smakhtin (Tyumen, russia)Roman Sharapov (st. Petersburg, russia)

Combating Crime with the help of Criminalistics .................................................... 155

BRICS LAW JOURNAL Volume V (2018) Issue 4 4

Conference Review Notes:

Damir Valeev (Kazan, russia)Elena Bazilevskikh (Kazan, russia)

e-Justice and information Technologies in Civil Procedure .................................. 175


ARTICLES

THE DEVELoPMEnT BanK oF BRICS

THIAGO FERREIRA ALMEIDA,

Municipality of Belo Horizonte, Health Sector (Belo Horizonte, Brazil)

ROBERTO LUIZ SILVA,

Federal University of Minas Gerais (Belo Horizonte, Brazil)

Doi: 10.21684/2412-2343-2018-5-4-5-32

This paper takes aim at the international financial system through the lens of the New Development Bank of the BRICS countries with an analysis of the Bank’s impact and relevance vis-à-vis the system. The work compares the traditional characteristics of international development institutions such as the World Bank and financial entities directed by national authorities with international solutions such as the New Develop-ment Bank, whose goals are to boost the infrastructure and renewable energy sectors of its five member countries as well as those of other developing countries. The work lays out insightful data on foreign direct investment of BRICS, GDP growth analyses, imports and exports inside and outside the BRICS group for a clearer understanding of the companies and businesses involved in the group. The work highlights an outlook of investment and development engaged in this new form of South-South cooperation which has been created by BRICS.

Keywords: BRICS; New Development Bank; investment; development; international organizations; World Bank.

Recommended citation: Thiago Ferreira almeida & roberto luiz silva, The Develop-ment Bank of BRICS, 5(4) BriCs law Journal 5–32 (2018).


Table of Contents

Introduction1. BRICS Overview2. The Investment Scenario Among the BRICS Countries3. Doing Business in BRICS4. ICSID and BRICS5. Brazil-China Bilateral Investments6. Development Banks in the BRICS Countries7. The New Development Bank of the BRICS CountriesConclusion

Introduction

The financial crisis of 2008 (the so-called “subprime mortgage crisis”) struck the financial core of the united states, leading many institutions such as leman Brothers to bankruptcy. The emerging markets were decisive in tackling the crisis and sustaining the u.s. institutions with a considerable amount of financial resources.

Brazil, russia, india and China were key countries in putting the international financial system back onto the right path. Those countries form the BriC, an acronym created by Jim o’neill of goldman sachs in 2001, who affirmed that the four countries of this group would be the next strong world economies within a few decades. in 2009, the BriC countries formally met in Yekaterinburg, russia, launching a new platform for cooperation in international affairs composed only of emerging countries. The newly formed group demanded reforms in the international organizations, especially the Bretton Woods institutions, the international monetary Fund (imF) and the World Bank group, in order to equate international political power to global economic realities.

in 2010, in sanya, China, BriC became BriCs with the addition of south africa to the group. This move symbolized the act of welcoming an african country to represent the new approach of south-south relations.

in 2014, in Fortaleza, Brazil, BriCs declared the creation of the new Development Bank (nDB) and the Contingency reserve arrangement (Cra), which brought new entities to the international financial system. These acts reinforced the BriCs’s plea to the international financial institutions for the need of wider representation of emerging markets. Furthermore, the BriCs agenda showed that they were prepared to join not only international economic forums, but also political ones.

The events of the first decade of the 21st century relate to the new changes and arrangements facing the world, mainly as new countries from the economic south are leading the world in growth and bringing development to more people. stuenkel1

1 oliver stuenkel, The BRICS and the Future of Global Order (lanham: lexington Books, 2015).

THIAGO FERREIRA ALMEIDA, ROBERTO LUIZ SILVA 7

has stressed that the 2000–2010 period was the BriC decade, with these countries characterized by strong economic growth, huge increases in gDP and international reserves, and broad government programs for poverty alleviation. additionally, the period was marked by an unparalleled boom in commodities which directly benefited these countries, and the developed countries too.

owing to the positive momentum in the commodities market and the political void created after 2008, when Western institutions were engulfed in financial instability, the BriCs countries entered into the international arena as a strong group defending the recognition of their political and economic relevance on the international stage. From their first informal meetings in the beginning of the 21st century to their annual official summits, these countries continue to present themselves as a relevant group worldwide.

The aim of this paper is to analyze the international investment scenario of the BriCs countries and, specifically, to understand the impact of the new Development Bank created in 2014 and its relevance to the international financial system. The focus of this work consists in promoting a comparison of the traditional characteristics of the international development institutions such as the World Bank with the new approaches led by the new Development Bank, whose goals are to boost the infrastructure and renewable energy sectors of the five BriCs countries as well as those of other developing countries.

1. BRICS Overview

BriCs has been consistently described as a heterogeneous group with only a few geographical, demographical and economic similarities. according to World Bank data, Brazil, india, China and russia are still among the main economies in the world.2 in particular, China and india have maintained strong economic growth since 2008.3

Chart 1 below shows gross Domestic Product rankings in 2016, with the BriCs countries ranked among the highest gDPs in the world: China was second, india seventh, Brazil ninth and russia twelfth. south africa was ranked thirty-eighth.

2 The World Bank (nov. 10, 2018), available at www.data.worldbank.org/data-catalog/gDP-ranking-table.3 international monetary Fund (nov. 10, 2018), available at www.imf.org/external/datamapper/ngDP_

rPCh@Weo/oemDC/aDveC/WeoWorlD/Bra/Chn/inD/rus/ZaF.


Chart 1: gross Domestic Product 2016

Gross Domestic Product 2016 – World Bank group Data

Ranking Economy (millions of U.S. dollars)1 united states 18,569,1002 China 11,199,1453 Japan 4,939,3844 germany 3,466,7575 united Kingdom 2,618,8866 France 2,465,4547 India 2,263,5238 italy 1,849,9709 Brazil 1,796,187

10 Canada 1,529,76011 republic of Korea 1,411,24612 Russian Federation 1,283,16213 spain 1,232,08814 australia 1,204,61615 mexico 1,045,99816 indonesia 932,25917 Turkey 857,74918 netherlands 770,84519 switzerland 659,82720 saudi arabia 646,43821 argentina 545,86638 South Africa 294,841

(Chart prepared by the authors)

Considering their share of global gDP, the BriCs countries are immensely important. according to the World economic Forum, the gDP forecast in 2017 puts the united states in first position with almost a quarter of the total global gDP (24.3%) followed by China in second position with 14.8% of the world economy. next come Japan, germany, the united Kingdom and France. india remains the seventh largest economy and Brazil the ninth. The forecast underlines that China’s economy grew 6.7% in 2016 and the u.s. economy only 1.6%, and it anticipates that in 2050 China and india will each surpass the u.s. economy owing to their population growth and technology-driven productivity.4

4 alex gray, The World’s 10 Biggest Economies in 2017, World economic Forum, 9 march 2017 (nov. 10, 2018), available at https://www.weforum.org/agenda/2017/03/worlds-biggest-economies-in-2017/.


Chart 2: real gDP growth

-5,3

0

5,3

10,5

15,8

1980 1985 1990 1995 2000 2005 2008 2009 2010 2011 2012 2013 2014 2015 2016

Real GDP Growth (annual percent change) – IMF Data 2017

Brazil China, People's Republic of India Advanced economies World


according to Chart 2, the gDP growth of both China and india in 2007 was far superior compared to the advanced economies, and superior as well to the economic performance of Brazil.5 World gDP growth thus maintained a relatively stable position thanks to the emerging economies of China and india.

BriCs represents (according to the Brazilian ministry of external relations) 26% of the earth’s land mass and comprises 46% of the world’s population. moreover, gold-man sachs projected a forecast of 14.2% share of the world’s gDP, not considering south africa. The group is responsible for 18% of the world’s gDP. in addition, the participation of the BriCs countries in total global exports doubled between 2001 and 2011, from 8% to 16%, with an increase in total exports of more than 500% compared to an increase in global export growth of 195% in the same period.

each BriCs country has potentialities. China and india are the fastest growing economies, russia is an important player in military and diplomatic relations, south africa concentrates on major regional cooperation and Brazil is the most important economy in latin america. on the other hand, the recent reduction of China’s annual gDP growth rate to 6.5% and the political and economic crises in russia, south africa

5 Chart 2 traces real gDP growth for only three of the BriCs countries: Brazil, india and China. The gDP growth performance of south africa and russia was similar to Brazil’s. For the last several years, Brazil, south africa and russia have been facing a number of economic and political constraints that differed from the experiences of China and india.


and Brazil raise questions about the BriCs future. in order to confront the recent crises, so serious that some experts suggest a change to the acronym from “BriCs” to “iC,” maintaining only india and China,6 the strongest markets in the club, it is necessary to recognize that these five countries must concentrate on their internal markets and at the same time are responsible for a large percentage of foreign trade, especially in energy, commodities and manufactures.

moreover, the BriCs countries hold huge amounts of foreign exchange reserves, which is desirable in the service of boosting development among the members, instead of only supporting funds such as those of the imF and World Bank group. China has the world’s highest foreign exchange reserves, and Brazil and the russian Federation are in the top ten. according to stuenkel,7 the BriCs countries have more reserves allocated in the Bretton Woods institutions than in their own institutions (the nDB and the Cra).

it is well known that the total sum of resources allocated for international cooperation is lower than what is necessary to cope with the demands related to development. Therefore, the creation of new organizations represents a paradigm shift to other countries, to work together in cooperation and eliminate protectionism.

2. The Investment Scenario Among the BRICS Countries

There are different kinds of international investments. mainly, there are: (i) com-mercial loans, which are bank loans issued to foreign businesses or governments; (ii) official flows (or aid resources), aimed at promoting development assistance, from one country, or international organization, to another country; (iii) foreign direct investment, in which an investor from one country obtains an asset in another country, with the intent to manage that asset; and (iv) portfolio investment (speculative capital), which represents the movement of investment in financial stocks, bonds or other financial instruments.8

Foreign direct investment (FDi) is considered a vital source of development means in the world today and responsible for the main share of domestic capital, employment, income and promotion of technology transfer and know-how.9

6 Wpcomimportuser1, Is It Really BRICs, or Just ICs?, Time, 12 July 2007 (nov. 10, 2018), available at http://business.time.com/2007/07/12/is_it_really_brics_or_just_ics/.

7 stuenkel 2015, at 118.8 http://mastersincommerce.blogspot.com.br/2013/11/nature-and-types-of-international.html; http://

www.globalization101.org/what-are-the-different-kinds-of-foreign-investment/; http://unctad.org/en/Pages/Diae/Foreign-Direct-investment-(FDi).aspx; https://www.oecd.org/daf/inv/investmentstatisticsandanalysis/40193734.pdf

9 There are some questions about the relation between FDi and the concept of sustainable development and environmental protection, due to the increased concerns about pollution and climate change.


Concentrating only on FDi, the BriCs countries are a relevant group in attracting this kind of investment. according to an unCTaD report from 2014, the aPeC and BriCs countries almost doubled their share of global FDi inflows from the figures of pre-crisis 2007–2008. moreover, the aPeC10 countries are responsible for more than half of global FDi flows, similar to the g20, while the BriCs countries jumped to an amount equal to one-fifth.11

an analysis of the FDi of the BriCs countries and the united states shows that, according to oeCD FDi data from 2005 to 2016, only China has an FDi flow capable of competing with u.s. foreign investment. The other BriCs countries have maintained the same rate of FDi without considerable changes over recent years.12

Chart 3: FDi outward Flows13

-156 250

0

156 250

312 500

468 750

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

FDI outward flows in US$ millions

United States Brazil China India Russia South Africa


albeit the divergences in economic theories, FDi is a reliable indicator for recognizing the growth of a country. mihaela Kardos, The Relevance of Foreign Direct Investment for Sustainable Development. Empirical Evidence from European Union, 15 Procedia economics and Finance 1349 (2014).

10 aPeC is the asian-Pacific economic Cooperation established in 1989 as a regional economic forum with 21 member countries, aimed at promoting balanced, inclusive, sustainable, innovative and secure growth in the region (https://www.apec.org/about-us/about-aPeC).

11 global FDi rose by 11%; Developed economies are Trapped in a historically low share, global invest-ment Trends monitor, report no. 15, unCTaD, 28 January 2014 (nov. 10, 2018), available at http://unctad.org/en/Publicationslibrary/webdiaeia2014d1_en.pdf.

12 latest data on FDi trends, up to the first quarter of 2017, of the organization for economic Co-operation and Development – oeCD (nov. 10, 2018), available at http://www.oecd.org/daf/inv/investment-policy/investmentnews.htm.

13 FDi outward flows consist of the amount of capital of foreign companies when they invest assets in other countries.


Chart 4: FDi inward Flows14

0

125 000

250 000

375 000

500 000

625 000

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

FDI inward flow in US$ millions

United States Brazil China India Russia South Africa


The international investment arena is recognized as a potential strength for the BriCs countries. however, intra-BriCs foreign investments are almost irrelevant compared to the foreign investment of each country to non-BriCs countries. The only exception is the investment flow from China to each BriCs country.

China, therefore, is the most important commercial and investment partner of the other BriCs countries. since 2009, China has consistently been the main commercial partner of Brazil, surpassing even the united states. China’s participation in Brazil is extensive, with investments in infrastructure, communications, machinery, banking services, agriculture and mining.

moreover, Chinese international investments flow not only to the other BriCs countries, but also to a number of countries in africa. Between 2000 and 2014, Chinese banks, private companies and the government disbursed more than us$86 billion to africa, with the primary beneficiaries being the Democratic republic of Congo, ethiopia, Kenya and sudan.15 That considerable amount of resources helped economic growth and spurred sub-saharan gDP to grow by 5% in 2011, although this dropped to 1.4% in 2016, which was considered the lowest level of gDP growth in more than twenty years.

The World investment report 2017, released by the united nations Conference on Trade and Development (unCTaD),16 compared the intra-group investments for a number of selected groups of states: g20, asia-Pacific economic Cooperation (aPeC),

14 FDi inward flows consist of the amount of capital of national companies when they invest assets in other countries.

15 eleanor albert, China in Africa, Council of Foreign relations, 12 July 2017 (nov. 10, 2018), available at www.cfr.org/backgrounder/china-africa.

16 World investment report 2007: investment and the Digital economy, united nations Conference on Trade and Development – unCTaD (nov. 10, 2018), available at https://unctad.org/en/Publicationslibrary/wir2017_en.pdf.


north american Free Trade agreement (naFTa), BriCs, Commonwealth and asian Caribbean and Pacific (aCP) nations between 2010 and 2015 (Chart 5 below).

Chart 5: unCTaD report of investments in selected groups

Chart 5 shows the significance of g20 and aPeC investment compared with the other groups. Clearly, FDi is still concentrated in the developed countries and recently moved towards asia. aPeC has almost half of world’s FDi, which shows how important asia is to the financial and economic system. at the same time, the report highlighted that aPeC received 53% of FDi inflows in 2016, but during the same year the group contributed 60% of the global gDP. additionally, the increase in intra-BriCs investment is relevant, rising from less than us$ 1 trillion to almost us$ 2 trillion. Considering the recent BriCs political convergence, the group shows growing prospects in trade and investment cooperation. Thus, the report on intra-BriCs investments contrasts with the criticism that the group is too frail to be counted as a relevant actor in the international economic arena. The report stressed:

FDi flows to the five BriCs countries last year rose by 7 per cent to $277 billion. The increase in inflows to the russian Federation, india and south africa more than compensated for the decline of FDi to Brazil and China.


Cross-border m&a [mergers & acquisitions] sales declined from $44 billion in 2015 to $37 billion in 2016. (unCTaD, 2007)

FDi flows are aligned with the growth in the BriCs countries’ economies. The political and economic crises in Brazil, south africa and russia led to a decrease in gDP. on the other hand, india continues to experience solid growth. in the second quarter of 2017, China showed growth in its economy, beating the forecast which had anticipated a decrease. according to the Financial Times, China grew 6.9% in the first quarter of 2017 and was expected to maintain that level. The result at the end of 2017 could be the first year of acceleration of China’s growth since 2010.17

3. Doing Business in BRICS

according to the Brazilian ministry of Foreign affairs (mre), with regard to commercial exchange between Brazil and the other BriCs countries, in 2015 83% of Brazilian exports went to China, and only 17% went to india, russia and south africa combined. regarding Brazilian imports, in 2015 China represented 81%, and india, russia and south africa (again, combined) represented 19%. The most important commercial BriCs partner to Brazil is clearly China, and the trade with the other BriCs countries is minimal.

With regard to the types of Brazilian export goods that the country sends abroad (again, for 2015), 75% are basic products, 15% are semi-manufactured products and 10% are manufactured products. additionally, the type of import goods from BriCs are 94% of manufactured, and 3% of basic and semi-manufactured goods each, in 2015.18

The main Brazilian products for export to the other BriCs countries are soybeans, seeds, ores, fuels, meat, wood paste and sugar. as for the import goods from the other BriCs countries, the main products are electrical and mechanical machines, organic chemical products, fuels and fertilizers.

Therefore, it is possible to infer that Brazil maintains traditional north-south trade relations with China, sending commodities and receiving manufactured products.

Considering the relevance of the Brazil-China trade, the Brazilian government should implement measures to bring technology and market value to its export goods, for example measures such as adding value to commodities, promoting agro-industrial mechanisms and increasing research. Chart 6 below presents data compiled by the Brazilian ministry of Foreign affairs on exports of the BriCs countries for 2012.19

17 China gDP growth Points to 2017 economic rebound, Financial Times, 17 July 2017 (nov. 10, 2018), available at https://www.ft.com/content/6e46e302-6878-11e7-8526-7b38dcaef614.

18 Brazilian ministry of Foreign affairs (nov. 10, 2018), available at https://investexportbrasil.dpr.gov.br/arquivos/indicadoreseconomicos/web/pdf/iCBrasilXBriCs.pdf.

19 Brazilian ministry of Foreign affairs (nov. 10, 2018), available at http://brics.itamaraty.gov.br/about-brics/economic-data.


Chart 6: BriCs outlook

member CountriesBrazil, China, india, russia and south africa

gDP us$ 15.76 trillion

share (%) of world gDP 19.8%

Population 2.998 billion

share (%) of world population 41.6%

Total exports (2012)(2) us$ 3.19 trillion

share (%) of global exports 17.7%

Total imports (2012)(2) us$ 2.95 trillion

share (%) of global imports 16.1%

Total Trade (2012)(2) us$ 6.14 trillion

share (%) of world trade 16.9%

Trade balance (2012)(2) us$ 244 billion

(Brazilian ministry of Foreign affairs)

Considering the BriCs countries’ share of world gDP and world trade, there is still a low level of intra-BriCs trade.20

Chart 7: exports inside and outside BriCs

Exports Inside and Outside BRICS(1) US$ trillion

Year Total TradeInside BRICS Outside BRICS

value share % value share %

2008 2.35 0.17 7.2% 2.18 92.8%

2009 1.89 0.14 7.6% 1.74 92.4%

2010 2.46 0.21 8.6% 2.25 91.4%

2011 307 0.27 9.0% 2.79 91.0%

2012 3.19 0.28 8.8% 2.91 91.2%

20 Brazilian ministry of Foreign affairs, mre/DPr/DiC – Trade intelligence Division, based on un/unCTaD/iTC/Trademap.


2012 (Jan-sep)

2.35 0.21 8.9% 2.14 91.1%

2013 (Jan-sep)

2.35 0.22 9.2% 2.13 90.8%

(1) some BriCs members have not informed unCTaD of their 2012 trade statistics. in such cases, data were obtained based on information provided by other trade partners.

noTe: values of exports and imports inside BriCs are theoretically identical. Differences between them are due to the inclusion of insurance and freight in imports.

(Brazilian ministry of Foreign affairs)

From Chart 7 it is clear to see that intra-BriCs trade amounts to less than 10% of total trade; trade outside BriCs amounts to more than 90%. although there is a slight increase inside the group, the increase is small if we consider how huge BriCs’s markets are.

regarding other business sectors, many emerging markets, characterized by having cheap labor, have been recently associated with innovation, surpassing even the Japanese boom in innovation of the 1980s. multinationals are investing in emerging markets, and the BriCs countries are the leading group, and among the group especially China and india.

multinationals expect about 70% of the world’s growth over the next few years to come from emerging markets, with 40% coming from just two countries, China and india. They have also noted that China and to a lesser extent india have been pouring resources into education over the past couple of decades. China produces 75,000 people with higher degrees in engineering or computer science and india 60,000 every year.21

The assumption that Western capitals control all the processes of innovation and globalization is no longer true. according to The Economist (2010), Western companies are embracing polycentric innovation22 by spreading research centers around the world, and emerging markets are becoming powerhouses in innovation. other trends in innovation are the improvements in products and processes aimed

21 The World Turned upside Down: a special report on innovation in emerging markets, The economist, 17 april 2010 (nov. 10, 2018), available at https://www.economist.com/node/15879369.

22 stephanie Jones, BRICS and Beyond: Executive Lessons on Emerging Markets (Chichester: Wiley, 2012). according to Jones, polycentric innovation is the concept of innovation based on multiple centers that might come not just from the headquarters, but from different places around the world where the company is present, or according to its strategy.


at reaching the middle or the bottom of the income pyramid,23 which are the large populations in the developing countries.

From an analysis presented by the Financial Times global 500 2015,24 a considerable number of the top 500 companies in the world come from the BriCs countries. This marks an important new participation by major BriCs companies alongside traditional Western companies.

according to the rankings, Brazil, russia and south africa marked their presence with less than 10 companies. on the other hand, india has 14 businesses and China 57. it is important to point out that in the research conducted hong Kong and Taiwan were considered to be businesses of China. all in all, the total number of major BriCs companies amounts to only 85 of the 500; this figure corresponds to 17% of the top businesses in the world, where emerging market businesses are competing with the traditional multinationals from the developed world.

Chart 8: number of BriCs Companies from the Financial Times global 500 2015 rankings


in addition, the presence of BriCs major companies in the top 500 is a combination of national private investment and government support via subsidies and selected protectionism in a number of key sectors.25

23 Jones 2012. according to Jones, the concept of the bottom of the pyramid or the base of the pyramid was formulated by C.K. Prahalad as identifying the business opportunities among the poorest strata of society, at the lowest level of the socio-economic pyramid.

24 FT 500 2015, Financial Times, 19 June 2015 (nov. 10, 2018), available at www.ft.com/ft500?mhq5j=e7.25 Jones 2012, at 183.


With the support of the BriCs countries’ governments in specific sectors, in the global 500 rankings banks and financial services, oil and gas producers, and construction and industrials are the main business sectors in the BriCs top 500 companies (see Chart 9 below).

Chart 9: number of BriCs Companies from the Financial Times global 500 2015 rankings by main sectors


it is necessary to draw special attention to the banks and other financial services, such as insurance companies, which are the most relevant components, corresponding to 35% of the top BriCs companies in the Financial Times rankings. oil and gas producers are also important due to the characteristics of some BriCs countries as major commodities exporters, for instance vale and Petrobrás in Brazil, gazprom and rosneft in russia and PetroChina in China.

4. ICSID and BRICS

Considered to be an international organization and one of the five institutions of the World Bank group, the international Centre for settlement of investment Disputes (iCsiD) provides facilities for conciliation and arbitration of international investment disputes that involve states and foreign companies or investors.

specifically, iCsiD is a jurisdictional institution aimed at settling investment conflicts between foreign investors and states. The organization was established in


1996 under the Convention on the settlement of investment Disputes between states and nationals of other states, known as the iCsiD Convention (or the Washington Convention). iCsiD works to provide confidence in the dispute resolution process, which involves conciliation and arbitration.

in addition, iCsiD can be seen as a third party in these kinds of disputes, as an inde-pendent arbitrator to whom foreign investors are more willing to submit their disputes than to a national court.

Therefore, when a country is a contracting (or signatory) state to the iCsiD Conven-tion, this organization presents itself as a defender of international standards of equal treatment for domestic and foreign investors, and may attract more confidence for further investments.

Chart 10: Contracting states and signatories to the iCsiD Convention

(iCsiD website)

according to the iCsiD website, Brazil, south africa and india are not contracting (or signatory) states to the convention, thus not members of this international organization. russia only signed the convention in 1992, but did not deposit its ratification, which means that iCsiD norms are not applied in russian territory. among the BriCs countries, only China is a full member of this international organization: it signed the convention in 1990 and ratified it in 1993.26,27

26 iCsiD (nov. 10, 2018), available at https://icsid.worldbank.org/en/Pages/icsiddocs/list-of-member-states.aspx.

27 about iCsiD and China, there are only three cases in iCsiD, two of them already concluded and only one pendent. The case Ekran Berhad v. People’s Republic of China (iCsiD Case no. arB/11/15), concluded in 2013 after both parties reached an agreement and the proceedings were suspended. The case Ansung Housing Co., Ltd. v. People’s Republic of China (iCsiD Case no. arB/14/25), registered in 2014, involved a bilateral


5. Brazil-China Bilateral Investments

in 2004, Brazil and China decided to create the sino-Brazilian Commission (CosBan is the acronym in Portuguese), which aims to establish regular contacts between high representatives of China and Brazil in order to promote investments and their bilateral relationships. The commission meets every two years.

in 2014, Brazil and China signed a joint communication during a visit of the President of China Xi Jinping to Brazil. The agreement set goals for bilateral relations and actualization of the Joint action Plan for the period 2015–2021. This agreement aims to establish strategic and broad orientations to deepen bilateral relations and development projects between China and Brazil. The agreement defines strategic areas for joint work by sub-commissions, submitted by CosBan: politics, commerce, economy, energy and mining, finance, agriculture and quality security measures, industry, information technology, space cooperation, science and innovation, and culture and education.

in spite of the many areas for cooperation, there is no bidding document in Brazilian budgetary laws referring to this agreement and provision of specific resources to apply to this cooperation. The (multi-year) plan for 2016 to 2019, revised for 2017, only refers to China in broad terms in reference to an initiative for the Brazilian ministry of Foreign relations to consolidate the role of Brazil as a global player, reinforcing strategic relations with countries on all continents.

The initiative 06a8 for the Brazilian ministry of Foreign affairs is described as

the deepening strategic relations of Brazil with south africa, China, india, russia, assuring the implementation of joint activities, like those defined in

investment treaty between China and the republic of Korea signed in 2007. in 2006, the south Korean company ansung identified a 1,500 mu parcel of land (about 0.165 acres or 546 square meters) for a golf course project in sheyang-Xian (a sub-district of Yancheng-shi) to be developed partially with a joint venture company called sheyang seashore international golf Course Co. ltd – the sheyang seashore. in the same year, the Korean company decided to build the golf resort and acquired the Chinese joint venture company, planning to develop the 3,000 mu (the Chinese company land and adjacent areas). The Korean company submitted the master plan to the Chinese Committee and was informed that the government would provide the adjacent land for the company. in 2007, the government said that it would not provide the adjacent land requested at the agreed price (specified in the original agreement) and that the company would have to apply for land-use rights through a public sale at higher prices. in addition, the company was informed of the necessity to establish a Chinese subsidiary in order to be eligible to develop a clubhouse and condominiums around the golf course. in 2008, the Committee required the company to agree to pay higher prices for the land and later they awarded only a small part of the land for construction, refusing to respect the original local investment agreement. The Korean company also learned that other golf courses were to be established nearby and that the local government Committee had refused to grant the adjacent land for their project. unable to finish its project, the company did not earn enough return on capital and could not pay the loans arranged by the Committee. in 2011, ansung had no alternative but to dispose of its entire assets invested in the golf business to a Chinese purchaser at a price significantly lower than the original Korean investments. The Chinese government alleged that the investment agreement between the country and the Korean company set a maximum period for the submission of any complaints at three years. according to the iCsiD decision, this period was not observed by the Korean company, and thus its complaint was not upheld.


the Commission of high level Brazil-russia; intergovernmental Commission for economic, Commercial, scientific and Technological Cooperation Brazil-russia; sino-Brazilian Commission of high level; the global strategic Dialogue Brazil-China; and the Bilateral ministerial Commission Brazil-india.28

Therefore, there is no specific program to boost this kind of cooperation, only general statements to conduct Brazilian foreign affairs in these matters.

6. Development Banks in the BRICS Countries

in the BriCs countries, the participation of the national banks for development is important, for they are the engines of the economies. in most of the BriCs countries, these national banks are the main entities for infrastructure financing for public and private projects. in addition, these banks for development projects use interest rates below market standards in order to increase investments in their domestic markets.

Chart 11: BriCs national Development Banks


according to Chart 11, each BriCs country has a relevant national bank for development. in China, in addition to the China Development Bank (CDB), there are other designated banks for development, such as the asia infrastructure investment

28 Plano Plurianual 2016–2019, revised in 2017, Brazilian ministry of Planning, Budget and management, 22 november 2017 (nov. 10, 2018), available at http://www.planejamento.gov.br/assuntos/planeja/plano-plurianual.


Bank (aiiB), the asian Development Bank (aDB) and the export-import Bank of China (C-exim).29,30

Chart 12: China’s national Banks for Development


29 The new Development Bank (nDB), also called the BriCs bank for development, will be analyzed in section 7 below.

30 While the asian Development Bank (aDB) has Japan as the main contributor, the main investor of the aiiB is China. The aDB, located in manila, Philippines, aims to act together with the aiiB, in the same way as the World Bank, which acts in almost every country in the world.


Chart 13: members of aiiB, aDB and the World Bank


Therefore, the national banks are relevant for public development and for attrac-ting investments in long-term projects, such as those relating to infrastructure, public services and technology. in China, the number of banks for development and investment is a sign of their importance for the economy.

specifically, two of China’s banks, CDB and C-eXim, already hold more assets than the combined sum of the assets of the Western-backed multilateral development banks. The CDB is often the largest single source of development bank funding for projects.


Table 1 shows that the C-eXim and CDB have over us$ 1.8 trillion in assets, whereas the Western-backed banks hold just over $700 billion. The CDB’s international holdings are just 30% of total assets, putting the two banks’ international assets at around us$ 500 billion.

7. The New Development Bank of the BRICS Countries

Following group studies for a development bank in new Delhi, india in 2012 and in Durban, south africa in 2013, official approval came in 2014, in Fortaleza, Brazil, for the creation of the new Development Bank (nDB) and the Contingency reserve arrangement (Cra).

according to stuenkel,31 the Cra is similar to the Chiang mai initiative (Cmin), which is a regional arrangement created to avoid periodical financial crises and stabilize the country’s balance of payments. The Cra allows for access to resources equal to 30% of the maximum access for each party and to the remaining 70% with imF approval. The innovation lies in the fact that the Cra is not a multilateral fund, like the imF or the Cmin in eastern asia, but is an arrangement in which each country deposits their individual commitment in each central bank. This structure is more flexible in the context of payment imbalance, in order to provide for quick action to resolve cyclical crises.

31 stuenkel 2015, at 115.


Furthermore, the nDB is an institution aimed at providing development funding to each of the five BriCs countries, and other developing countries through financial and technical assistance.

as initially set out in the Fortaleza Declaration of 2014: the bank will have an initial capital of us$ 100 billion and an initial subscribed capital of us$ 50 billion equally shared among the five BriCs countries; the first Chair of the Board of governors will be from russia, the first Chair of the Board of Directors from Brazil, the first President of the Bank from india, the headquarters of the nDB will be located in shanghai, and the new Development Bank africa regional Center will be established in south africa, which will also be the location for the Center’s headquarters.

The nDB’s articles of agreement specify that all members of the united nations are eligible to become members of the nDB; however, the BriCs countries can never hold less than a 55% share of the total voting power. The un determines the concentration of voting power to be in the hands of the five BriCs countries, as it similarly determines voting powers in the imF and the World Bank to be controlled by the developed countries.

Following the 2008 financial crisis and the 2009 g20 summit in london, a joint action of the BriC countries led to the common position to restore the economic and financial order and promote a soft reshaping of the world order in international affairs. since the creation of the imF in 1944, voting power expresses the over-representation of the developed countries, where Belgium and luxembourg, as an example, control more share votes than Brazil, China or india. a major change to voting power in the imF was agreed in 2010, when the BriC countries joined the top ten share voters, along with the united states, Japan, germany, the united Kingdom and France. With reference to the World Bank, China, india and the russian Federation were already in the top ten of major share voters (not including Brazil). The 2010 voting power reform was approved only for the imF and not for the World Bank, whose structure remains as before.

Table 2: Top Countries voting Powers in the imF and World Bank

Top Countries Voting Powers

Rank

ing International Monetary Fund

(after the 2010 Reform)

Rank

ing

International Bank for Reconstruction and Development

(World Bank Group)

CountryPercentage

of Voting PowerCountry

Percentage of Voting Power

1º usa 17.46 1º usa 16.28

2º Japan 6.48 2º Japan 7.02


3º China 6.41 3º China 4.53

4º germany 5.60 4º germany 4.11

5º uK 4.24 5º uK 3.85

6º France 4.24 6º France 3.85

7º italy 3.17 7º india 2.98

8º india 2.76 8º russia 2.84

9º russia 2.71 9º saudi arabia 2.84

10º Brazil 2.32 10º italy 2.71

– Canada 2.22 – Canada 2.50

– saudi arabia 2.10 – Brazil 1.82

– south africa 0.64 – south africa 0.77

(Table prepared by the authors32)

representing the strong desire of BriCs to create a new development bank and to be the leader of the emerging economies of the world, the nDB is an expression of the will of the global south and the importance of south-south cooperation. according to this view, the BriCs’s decision to concentrate 55% of the voting power in the hands of the group’s five founding members has important symbolism for the south in international affairs. The control of the majority of votes by the five founding members indicates the political will to maintain the priority of southern interests and the possibility to implement new approaches in cooperation for development.

The main goals of the nDB are the promotion of infrastructure and renewable energy. The bank aims to foster the development of the member countries, support economic growth, promote competitiveness and facilitate job creation, and build a platform of shared knowledge among developing countries. The bank started its operations in 2016 and up to the present time has approved projects only in the five founding member countries. in the first year of operations, the Board of Directors of the Bank approved loans involving financial assistance of over us$ 1.5 billion for projects in the areas of green and renewable energy, and transportation. according to the nDB’s official website, thirteen projects have been approved since the beginning of banking operations.33

32 Data is drawn from the latest information from the imF and iBrD (World Bank group) on voting powers of the member countries (nov. 10, 2018), available at www.worldbank.org/en/about/leadership/votingpowers; www.imf.org/external/np/sec/memdir/members.aspx.

33 new Development Bank (nov. 10, 2018), available at https://www.ndb.int/wp-content/uploads/2017/02/ list-of-all-projects-1.pdf.


Table 3: nDB Projects by BriCs Countries

Nº Country Loan Amount Target Sector

1 ChinarmB 2 billion

(us$ 298 million)renewable energy (wind power)

2 ChinarmB 2 billion

(us$ 300 million)Water, sanitation and flood control,

environment

3 China us$ 200 million energy conservation

4 ChinarmB 252 million (us$ 81 million)

renewable energy (solar rooftop Pv)

5 India us$ 250 million renewable energy (wind, solar, etc.)

6 India us$ 350 million upgrading major district roads

7 India us$ 470 millionWater supply and sanitation, rural

development

8 India us$ 345 million irrigation agriculture

9 Brazil us$ 300 million renewable energy (wind, solar, etc.)

10 South Africa us$ 180 million renewable energy (transmission)

11Russian

Federationus$ 100 million

renewable energy (hydro-power) + green energy

12Russian

Federationus$ 460 million social infrastructure

13Russian

Federationus$ 68.8 million Transportation

(Table prepared by the authors)

China and india account for the highest number of projects (4), followed by the russian Federation (3) and Brazil and south africa (each with one). india received the highest loan amount since the beginning of operations, according to the nDB.34

34 new Development Bank, supra note 33.


Chart 14: nDB Projects loan amounts


Considering that the nDB’s core activity is to promote projects in infrastructure and renewable energy, there are seven renewable energy and four infrastructure projects, including the fact that all of the BriCs countries have at least one project.

it is important to underline that only the five nDB founding members are the beneficiaries of the resources. no other developing country has up to the present time been a recipient of the bank’s initiatives. This fact raises doubts about the aim of the nDB to be considered a bank for developing countries. The lack of development projects in other southern countries could undermine the image of BriCs, which in every summit reaffirms itself as a leader of the developing countries of the world.

Within the World Bank group, the international Bank for reconstruction and Development (iBrD) has several projects in each of the five BriCs countries. Comparing the number of current projects signed by each of the BriCs countries with the irBD and nDB, it is possible to see (and emphasize) how important each of these international organizations is in the five BriCs countries themselves.


Chart 15: Comparing irDB and nDB number of Projects in BriCs Countries


The number of iBrD loans or projects present in the russian Federation and south africa in 2017 was significant. For Brazil, the number was 20 iBrD projects and one nDB project; for india, 33 iBrD projects and four nDB projects; and for China 79 iBrD projects and four nDB projects. it is important to recall that the nDB was created only in 2014 and went into operation in 2016, while the iBrD has been in operation since the 1940s. Beyond that, the World Bank group is more complex, established and trusted than the nDB, with 187 member countries and is an institution seen as a beacon for development aid and good governance in the world. The range of sectors in which the World Bank group works is broader than that of the nDB, which decided to operate mainly in infrastructure and sustainable development. The common goal of these two institutions is the commitment to promoting development, with consideration of the environment and sustainable measures, which indicates that both are aligned with international concerns. Chart 16 below compares the loan amounts handled by the iBrD and nDB for 2017.


Chart 16: number of Current iBrD and nDB loan amounts in 2017 (us$ million)


There is a more significant loan amount approved by the iBrD compared with the total loan amount made by the nDB in 2017. india and China received approximately us$ 11 billion and us$ 10.7 billion, respectively, in iBrD loans. nDB loans to india amounted to us$ 1.4 billion and us$ 879 million to China. Brazil received almost us$ 4 billion from the iBrD and only us$ 300 million from the nDB. But the russian Federation and south africa were more contemplated by the nDB than the iBrD in respect of loans, which could be interpreted as meaning that the nDB benefits more from these two countries.35 however, the reason for the greater amount of nDB loans in russia and south africa than iBrD loans is not explained simply through inference by examining these figures. many different motives are involved: the countries’ financial stability, the duration of projects, local needs and the historical trajectory of the relationship of donor-beneficiary, among others.

Considering the BriCs’ decision to create a regional office in south africa, the new Development Bank of the BriCs countries will increase its operations in that country and could eventually extend its resources throughout the african continent.

35 The World Bank (nov. 10, 2018), available at https://finances.worldbank.org/en/countries/.


Conclusion

The foundation of a bank for development by the BriCs countries can be considered to be a huge step towards more institutionalized cooperation in financial and economic matters. Following the approval of a new rebalancing of share voting quotas in the imF, the nDB and Cra are the next most relevant group, without even considering the importance of a variety of technical cooperation and governmental meetings in other areas between the national administrations of the BriCs countries.

The nDB puts into practice the core intentions of the BriCs summits in promoting development and bringing closer together south-south cooperation. moreover, the majority of the bank’s voting power will remain in the hands of the founding member countries, similar to the majority of voting power that is concentrated in the hands of the developed countries with regard to the imF and the World Bank group.

Beyond the symbolism it has of a new alternative to engage south-south cooperation, the nDB needs to expand its activities to benefit other developing countries, in order to reinforce the BriCs desire to represent the global south.

notwithstanding the increase the nDB brings in the BriCs countries’ influence in the international financial arena, the nDB still has few resources and is incapable of surpassing the World Bank in initiatives. Furthermore, the Bretton Woods institutions are present all around the world, even at work in the BriCs countries themselves, and possess an enormous amount of resources and political and technical capacity to have a significant impact in the south.

The new Development Bank needs to be seen as a contributor to international development, as an institution designed to remedy the lack of infrastructure and cope competently with issues such as inequality and poverty. The development bank of BriCs is strong evidence that the group plays an important role in the international agenda for development.

What is more, the BriCs annual meetings underline their commitment to preserve the status quo of the international order, for the five countries demand reforms in the international organizations, in order to strengthen the financial system. at the 9th BriCs summit in Xiamen, China,36 the group reiterated its commitment to the defense of globalization and the preservation of the international liberal order, acknowledging the prominence of the g20, reemphasized its respect for international law and reaffirmed the central role of the united nations.

References

Jones s. BRICS and Beyond: Executive Lessons on Emerging Markets (Chichester: Wiley, 2012).

36 available at http://www.postwesternworld.com/2017/09/07/leaders-declaration-analysis/.


stuenkel o. The BRICS and the Future of Global Order (lanham: lexington Books, 2015).

Information about the authors

Thiago Ferreira Almeida (Belo Horizonte, Brazil) – lawyer and specialist in international law and Public-Private Partnerships (PPP), municipality of Belo hori-zonte, healthcare sector (925 goncalves Dias st., City of Belo horizonte, state of minas gerais, 30140-091, Brazil; e-mail: [email protected]).

Roberto Luiz Silva (Belo Horizonte, Brazil) – Dean, school of law, Federal uni-versity of minas gerais (100 João Pinheiro av., City of Belo horizonte, state of minas gerais, 30130-180, Brazil; e-mail: [email protected]).


PRIoRITIES anD PoSSIBLE RISKS oF THE BRICS CounTRIES’ CooPERaTIon In SCIEnCE, TECHnoLoGY anD InnoVaTIon

VLADIMIR KISELEV,

Interdepartmental Analytical Center (Moscow, Russia)

ELENA NECHAEVA,

Presidential Administration (Moscow, Russia)

Doi: 10.21684/2412-2343-2018-5-4-33-60

The viewpoint of most countries towards participation in programs and projects of international science and technology cooperation (ISTC) is based on the fact that collaboration in research and development allows them to increase the efficiency of national research systems and accelerate the inflow of new knowledge and technologies. The BRICS countries share this viewpoint; however, their aspirations go further, extending their concerns and expectations to cooperation in the sphere of innovation. BRICS – the association of Brazil, Russia, India, China and South Africa – was established in June 2006 at the St. Petersburg economic forum (South Africa a participant since 2011). Its results in establishing frameworks for cooperation in many sectors of their economies including science, technology and innovation demonstrate an unusually rapid growth. The BRICS countries’ cooperation in science, technology and innovation started in 2014; since then, the five countries have carried out important steps in bringing together their practical approaches to science, technology and innovation cooperation.

This article is devoted to an analysis of the dynamics of the BRICS countries’ cooperation in science, technology and innovation, and the possible risks and problems in the organization and implementation of joint projects. The need to go further in elaborating legal frameworks for international science, technology and innovation cooperation that would support the transition of their cooperation activities from science and technology to innovation is underlined.

Keywords: BRICS; science; technology; innovation; cooperation; risks; research coordination.


Recommended citation: vladimir Kiselev & elena nechaeva, Priorities and Possible Risks of the BRICS Countries’ Cooperation in Science, Technology and Innovation, 5(4) BriCs law Journal 33–60 (2018).

Table of Contents

Introduction1. The Meaning and Purposes of International Cooperation in Science, Technology and Innovation2. Advancement of the BRICS Countries’ Cooperation in Science, Technology and Innovation3. Development of the BRICS STI Cooperation Areas4. Specifics of the BRICS’ Plan for Innovation Cooperation5. Possible Problems and Risks of the BRICS’ Countries Cooperation in InnovationConclusion

Introduction

The globalization of economies, science internationalization, global technological chains and corresponding aspects of international science and technology cooperation (isTC) are becoming powerful drivers of technological development for many countries. in the context of the BriCs countries’ economic cooperation, isTC is regarded more broadly than simply science and technology collaboration, it foresees as well cooperation in innovation. The transition from joint science and technology projects to cooperation in innovation is often aggravated by problems and risks predetermined by the different characters and aims of these two types of activities, since science and technology research activities are aimed at acquiring new knowledge, while innovation activities are aimed at the development of new products (goods and services).

1. The Meaning and Purposes of International Cooperation in Science, Technology and Innovation

in one of his articles, J.P. holdren, former u.s. President Barack obama’s science advisor and Director of the White house office of science and Technology, pointed out a number of important factors that motivate countries to develop and support international science and technology cooperation.1 of these, the most important factors are:

1 John P. holdren, How International Cooperation in Research Advances Both Science and Diplomacy, scientific american, 27 april 2017 (nov. 18, 2018), available at https://blogs.scientificamerican.com/guest-blog/how-international-cooperation-in-research-advances-both-science-and-diplomacy.

VLADIMIR KISELEV, ELENA NECHAEVA 35

– science and technology are being internationalized and advanced all across the globe. Joint research and development (r&D) with other countries can provide access to valuable additional knowledge and competences. Cooperation in research shares costs, allows pursuing complementary lines of efforts and helps avoid duplication of efforts. The result of joint projects always hastens progress on common goals and at lower costs to national funders;

– Joint progress through science and technology cooperation is even more valuable when the goals are global public goods, for example combating epidemic disease, curing cancer, reducing oil dependence, mitigating climate change, improving nuclear reactor safety, providing water supply, which provide benefits for all countries;

– even when science and technology cooperation is implemented with technically less advanced countries to help them build their scientific and innovation capacity and apply science and technology to development goals, this means significant progress for mutual economic development including consolidation of the goods and services markets of the participating countries; and

– mutually beneficial science and technology cooperation also appears to be advantageous diplomatically, as the benefits provide a positive rationale for maintaining relations even in the face of disagreements on other issues.

one other factor that motivates countries to participate in isTC is the growing complexity and costs of conducting research. This factor, for example, motivates the collaborating countries to unite their resources in building large research infrastructure installations that would serve for mutual purposes.

While discussing the prospective benefits of international science and technology cooperation between the BriCs countries it should be noted that the above-mentioned factors that motivate countries to develop science and technology cooperation are relevant to the BriCs countries as well. This is true especially at the present stage when science becomes a real driver of economic growth.

at this point, one should understand that the declared cooperation in science, technology and innovation (sTi) with the main goal of raising the technological level and accelerating the economic development of the partner countries will have to pass through three principal stages, though in different forms and with different intermediate results.

generally these three stages include:1) Carrying out basic or fundamental research aimed at obtaining new knowledge;2) Carrying out applied research aimed at technological development; and3) implementing innovation projects aimed at creating new goods (products or

services).in the event that a group of countries (BriCs, for example) declares their intention

to jointly develop scientific research, technological development and innovation projects, the success of their joint activities will depend on how close their national legislations are in the field of international science cooperation, technology development and innovation cooperation projects.


if the partner countries intend to implement complex cooperation projects following the model “from an idea to a ready product,” they would need to bring national r&D legislation closer together and have elaborated model agreements on cooperation in science, technology and innovation that would regulate the relations of countries and research organizations, universities and companies at every stage of their joint efforts.

let us briefly consider the features of each sTi cooperation stage, with the assumption that the forms of joint activities of the partner countries’ organizations have been coordinated at the national level.

There are two levels of isTC: bilateral cooperation between two countries and multilateral cooperation implemented on the basis of multilateral agreement of a group of countries. isTC in the framework of international organizations is also considered to be multilateral cooperation.

Cooperation in research implemented in the framework of international bilateral agreements covers such forms of scientific interaction as carrying out coordinated or joint research projects; establishing joint research teams; holding international scientific conferences, seminars, symposia; exchange of scientific information; construction and operation of large scientific installations, etc. Bilateral agreements on science and technology cooperation usually include provisions on research staff mobility. This type of cooperation is usually aimed at obtaining new knowledge and is mainly implemented by research institutes and universities of the countries that participate in international research programs and projects. international research in science and technology may cover a wide range of areas and also may be aimed at solving problems of a global character including sustainable development, energy and the environment, cleaner technology, climate-oriented technology, etc.

The main goal of technology cooperation in the sphere of production-oriented technologies is carrying out applied research with the aim of improving technological knowledge and stimulating national technological and economic development at a new technological level. another goal of international technology cooperation is to withstand the global challenges in such areas as, for example, water or energy supply, and in mitigating natural and technological disasters at the national or regional level.

international cooperation in innovation stands somewhat apart from cooperation in science and technology. The main reason for this is the fact that innovation, being “…the implementation of a new or significantly improved product (good or service), or process, a new marketing method, or a new organizational method in business practices,”2 is aimed at commercialization of the results of scientific research and development, i.e. it is the instrument of entrepreneurial activities. For this reason, international innovation cooperation in most cases is being implemented by

2 oslo manual: guidelines for Collecting and interpreting innovation Data 46 (3rd ed., Paris: oeCD & eurostat, 2005).


business sector organizations (firms and enterprises) in cooperation with research organizations/universities based on direct agreements/contracts. The international outsourcing of r&D services has considerably expanded the opportunities of international cooperation in innovation, for example in the context of foreign investment in the science sector or in the context of global technology chains with the participation of research organizations of the partner countries.3

in the light of the above, it is reasonable to assume that the cooperation of BriCs countries in the sphere of science, technology and innovation in the framework of the BriCs sTi Framework Program for funding multilateral joint research projects, technology commercialization and innovation will require the development of mutually acceptable legal tools that would regulate the relations of the partner countries’ organizations while carrying out the transition from joint research projects to projects in the sphere of commercialization of the joint research results.

2. Advancement of the BRICS Countries’ Cooperation in Science, Technology and Innovation

although Brazil, russia, india, China and south africa have established the BriCs association quite recently, their results in establishing frameworks for cooperation in science, technology and innovation show rapid growth. as of august 2018, six meetings of the BriCs countries’ ministers responsible for science, technology and innovation have taken place.

since the first BriCs meeting at the level of ministers of science, technology and innovation in 2014 the five countries have managed to discuss and begin arranging cooperation in the areas of common interest and adopt a number of important documents that mark the legal framework for their cooperation in science, technology and innovation.

The initiative of a complex development of international science, technology and innovation cooperation was put forward at the first meeting of the BriCs ministers of science, technology and innovation in 2014, and already in the following year at their second meeting the ministers signed a memorandum of understanding (mou) on cooperation in sTi that appears to have become the basic instrument for the development of sTi cooperation of the BriCs countries.

The main objectives of the proposed sTi cooperation are formulated in the mou, and include:

1) establishment of a strategic framework for cooperation in sTi to address common global and regional socio-economic challenges, utilizing shared experiences and complementarities in sTi among the BriCs countries;

3 Киселев В.Н. Глобальные цепочки добавленной стоимости: вызовы и перспективы для российской науки и инноваций // Инновации. 2017. № 10(228). С. 17–23 [vladimir n. Kiselev, Global Value Chains: Challenges and Perspectives for Russian Science and Innovation, 10(228) innovation 17 (2017)].


2) addressing common global and regional socio-economic challenges in the BriCs member countries utilizing shared experiences and complementarities in sTi;

3) Co-generation of new knowledge and innovative products, services and pro-cess the BriCs member countries utilizing appropriate funding and investment instruments; and

4) Promoting, where appropriate, joint BriCs sTi partnerships with other strategic actors in the developing world.

The mou outlines nineteen main areas for cooperation on the way to obtain new knowledge and innovative products:4

(1) exchange of information on policies and programs and promotion of innovation and technology transfer; (2) food security and sustainable agriculture; (3) natural disasters; (4) new and renewable energy, energy efficiency; (5) nanotechnology; (6) high-performance computing; (7) basic research; (8) space research and exploration, aeronautics, astronomy and earth observation; (9) medicine and biotechnology; (10) biomedicine and life sciences (biomedical engineering, bioinformatics, biomaterials); (11) water resources and pollution treatment; (12) high-tech zones/science parks and technology business incubators; (13) technology transfer; (14) science popularization; (15) information and communication technology; (16) clean coal technologies; (17) natural gas and non-conventional gases; (18) ocean and polar sciences; (19) geos-patial technologies and their applications.

The mou is regarded as a principal mechanism for the BriCs countries’ sTi cooperation. The mou includes provisions that the parties or their designated insti-tutions can use to enter into sub-agreements which shall be governed by the terms of the mou.

The modalities of cooperation under the mou and sub-agreements arising there-from between the parties in the fields of sTi shall take the following forms:

– short-term exchange of scientists, researchers, technical experts and scholars;– Dedicated training programs to support human capital development in science,

technology and innovation;– organization of science, technology and innovation workshops, seminars and

conferences in areas of mutual interest;– exchange of science, technology and innovation information;– Formulation and implementation of collaborative research and development

programs and projects;– establishment of joint funding mechanisms to support BriCs research programs

and large-scale research infrastructure projects;– Facilitated access to science and technology infrastructure among BriCs

member countries;

4 memorandum of understanding on Cooperation in science, Technology and innovation Between the governments of the Federative republic of Brazil, the russian Federation, the republic of india, the People’s republic of China and the republic of south africa (nov. 18, 2018), available at http://brics.itamaraty.gov.br/images/BriCs%20sTi%20mou%20english.pdf.


– announcement of simultaneous calls for proposals in BriCs member countries; and

– Cooperation of national science and engineering academies and research agencies.

at this point, it is important to note that the BriCs countries’ mou on cooperation in science, technology and innovation specifies concrete modalities for cooperation in science and technology such as the establishment of joint funding mechanisms to support research programs and large-scale research infrastructures as well as the facilitation of access to science and technology infrastructures, but it does not include provisions on the concrete modalities for implementing cooperation in innovation.

in october 2015, the third BriCs sTi ministerial meeting was held in moscow, russia. The meeting adopted the moscow Declaration, extended the BriCs cooperation areas and approved new isTC cooperation mechanisms, including:

– Construction of large research infrastructures, including mega-science research installations;

– Coordination of the existing large-scale national programs;– Development and implementation of the BriCs Framework Program for funding

multilateral joint research projects, technology commercialization and innovation; and

– establishment of the BriCs research and innovation networking Platform.The meeting also approved the 2015–2018 BriCs Work Plan for science, Technology

and innovation.5

To address common societal challenges of the BriCs countries and to advance BriCs sTi cooperation, a number of contact institutions responsible for collaboration within the BriCs research and innovation networking Platform were appointed. also, five areas for potential sTi cooperation initiatives along with coordinating countries for potential sTi initiatives were selected (Table 1 below).

Table 1: The BriCs sTi Work Plan, 2015–2018 Contact institutions and areas for Potential sTi Cooperation initiatives

Cooperation Area Contact Institution, Country

1Prevention and mitigation of natural disasters (monitoring & early warning)

national Center for monitoring and early Warning of natural Disasters, Brazil

2 Water resources and pollution treatment

Technology Platform for sustainable ecological Development, russia

5 BriCs science, Technology and innovation Work Plan 2015–2018 (nov. 18, 2018), available at https://www.ranepa.ru/images/media/brics/china2016/BriCs%20sTi%20Work%20Plan%202015-2018%20%20revised%20action%20Plan%202017-2018.pdf. This Work Plan was revised on 8 october 2016 and again on 18 July 2017.


3 geospatial technology and its application for development

national spatial Data infrastructure, india

4new and renewable energy, and energy efficiency (solid-state lighting as a sub-area ssl)

ministry of science and Technology, China

5 astronomy national research Foundation, south africa

Thematic Areas for Potential STI Initiatives Coordinating Country

1Biotechnology and biomedicine including human health and neuroscience

russia or Brazil

2 information technologies and high-performance computing China and south africa

3 ocean and polar science and technology russia and Brazil

4 material sciences including nanotechnology russia and india

5 Photonics russia and india

source: BriCs science, Technology and innovation Work Plan 2015–2018, adopted on 28 october 2015 and revised on 8 october 2016.

The fourth meeting of the BriCs sTi ministers was convened on 8 october 2016 in the city of Jaipur, india. During the meeting its participants discussed such important aspects for further development of BriCs sTi cooperation as institution building, implementation of previous commitments, tapping synergies of the existing BriCs cooperation mechanisms, exploring a number of new areas for cooperation and maintaining continuity in the existing efforts. in the Jaipur Declaration, adopted at the fourth BriCs sTi meeting, the member countries resolved to intensify, diversify and institutionalize sTi cooperation through the BriCs research and innovation initiative.6

The fifth BriCs sTi ministerial meeting, held in hangzhou, China on 18 July 2017 brought about many important outcomes on sTi policy exchange, thematic areas cooperation, joint funding for multilateral r&D projects, youth innovation and entrepreneurship, among others.7 at their fifth meeting, the BriCs sTi ministers adopted

6 4th BriCs science, Technology and innovation ministerial meeting at Jaipur, Press information Bureau, ministry of science & Technology of india, 10 october 2016 (nov. 18, 2018), available at http://pib.nic.in/newsite/Printrelease.aspx?relid=151563.

7 5th BriCs science, Technology & innovation (sTi) ministerial meeting held in hangzhou, BriCs official website, 4 august 2017 (nov. 18, 2018), available at https://www.brics2017.org/english/headlines/201708/t20170804_1760.html.


a series of documents, including the BriCs action Plan for innovation Cooperation 2017–2020, the BriCs sTi Work Plan (2017–2018) and the hangzhou Declaration. at this meeting for the first time innovation became the central issue of the multilateral discussions. The meeting underlined the significance of innovation dialogue and sTi cooperation for innovation-driven development, global economic vitality and sustainable development. all of the BriCs countries agreed that innovation represents one of the major engines of global sustainable development and plays a crucial role in facilitating economic growth.

The hangzhou Declaration was in line with the theme of the 5th BriCs science, Technology & innovation ministerial meeting “leading Through innovation & Deepe-ning Cooperation.” The BriCs sTi ministers reaffirmed the importance of innovation dialogue leading to outcomes and sTi cooperation for promoting innovation-driven development and supporting the robust and sustainable growth of the BriCs countries as well as global sustainability.

in order to promote innovation and leverage the central role of science and technology in enhancing socio-economic development and driving global sustainable development, the BriCs sTi ministers agreed to adopt the BriCs action Plan for innovation Cooperation for the period 2017–2020.

The BriCs sTi ministers agreed that it would be vital to promote entrepreneurship and build platforms in the BriCs countries, and mainly “…collaborate in technology cooperation, technology transfer and translation, science and technology parks, youth innovation and entrepreneurship and in fostering strategic and long term university-industry partnerships so as to build sound ecosystems for innovation and entrepreneurship.”8

at the fifth sTi ministerial meeting the BriCs countries’ participants reached an agreement concerning one of the priorities for their countries’ research policy. in this regard, they underlined the importance of supporting cutting-edge, high-impact research and encouraging researchers from their countries to publish the results of their research in acclaimed international journals and participate as external foreign reviewers (whenever possible) in the review of research proposals submitted to funders in the other BriCs countries, ensuring the quality of the scientific review system within BriCs.

in order to strengthen science and technology cooperation, the BriCs countries took the decision to finance the second set of multilateral r&D projects and launched the second call for proposals for multilateral science and technology cooperation projects.

at the sixth BriCs sTi ministerial meeting in Durban, south africa held on 3 July 2018 the participants reviewed the BriCs sTi activities undertaken for the previous year,

8 hangzhou Declaration, Theme: leading Through innovation & Deepening Cooperation, hangzhou, China, 18 July 2017 (nov. 18, 2018), available at https://www.brics2017.org/english/headlines/201708/P020170825391206316687.pdf.


including the meetings of thematic working groups, proposals on the establishment of new initiatives and adoption of the Durban Declaration, under the slogan “leveraging BriCs science, Technology and innovation to enhance inclusive growth and Development.”9

The Durban Declaration welcomed and endorsed a number of initiatives in the context of BriCs sTi international cooperation, including:

– establishment of the BriCs vaccine research and Development Centre, which creates synergies between the BriCs sTi and BriCs health sectorial tracts from an sTi perspective;

– establishment of the BriCs Partnership on new industrial revolution (Partnir) with emphasis on innovation; and

– establishment of a permanent mechanism to manage and coordinate BriCs sTi activities, proposed by south africa and russia.

in the Durban Declaration, the BriCs countries reaffirmed their vision “…to promote science, technology and innovation for human development utilizing people-centered and public-good driven policy and implementation frameworks.”10 They also reaffirmed the strategic value of the BriCs sTi Framework Program as a mechanism for promoting BriCs research and technology development, and supported the launch of the third call for proposals of the BriCs sTi Framework Program in the fourth quarter of 2018.

The BriCs action Plan for innovation Cooperation adopted in hangzhou was discussed at the BriCs sTi ministers’ meeting in Durban, south africa in July 2018. out of eight items of the action Plan, items number 4 and 5 were supported by initiatives of Brazil and China.

in this respect the Durban Declaration says:

Pursuant to the BriCs action Plan for innovation Cooperation adopted in hangzhou, China in July 2017, we welcome Brazil’s proposal to establish the BriCs networks of science parks, technology business incubators and smes, and China’s proposal to establish a BriCs Technology Transfer Center under the direction of the BriCs science, Technology, innovation and entrepreneurship Partnership (sTieP) Working group. We take note of China’s proposal in consultation with india to host the 2nd meeting of the sTieP Working group, in mid-september of 2018 to give further impetus to this strategic area of cooperation.11

9 Durban Declaration, Theme: leveraging BriCs science, Technology and innovation to enhance inclusive growth and Development Durban, south africa, 3 July 2018 (nov. 18, 2018), available at https://www.ranepa.ru/images/media/brics/sapresidency2/BriCs_sTi_2018.pdf.

10 Id. at 2.11 Id. at 4.


3. Development of the BRICS STI Cooperation Areas

analysis of the documents adopted by the BriCs sTi ministers at their meetings allows one to conclude that the five countries demonstrate a common approach to formulating and following the main trend of their national science and technology policies: consistent transition from cooperation in science, including elaboration of joint thematic priorities, to cooperation in innovation and entrepreneurship in the context of the new industrial revolution.

The practical implementation of the BriCs countries’ sTi cooperation started in 2016 under the BriCs sTi Framework Program. The first pilot coordinated call for BriCs multilateral projects was announced for carrying out collaborative multilateral basic, applied and innovation research projects in ten areas of science:12

(1) Prevention and monitoring of natural disasters;(2) Water resources and pollution treatment;(3) geospatial technology and its applications;(4) new and renewable energy, and energy efficiency;(5) astronomy;(6) Biotechnology and biomedicine including human health and neuroscience;(7) information technologies and high-performance computing;(8) ocean and polar science and technology;(9) material science including nanotechnology;(10) Photonics.The basic rule of the collaborative call for project proposals says that each joint

project proposal should be applied by organizations from at least three BriCs countries. in the framework of the first call for project proposals the following research funding organizations from the BriCs countries agreed to jointly support multilateral cooperative research activities:13

Brazil: national Council for scientific and Technological Development (CnPq)russia: Foundation for assistance to innovations (Fai)

ministry of education and science (mon)russian Foundation for Basic research (rFBr)

india: Department of science and Technology (DsT)China: ministry of science and Technology (mosT)

national natural science Foundation of China (nsFC) south africa: Department of science and Technology (DsT)

national research Foundation (nrF)

12 BriCs sTi Framework Programme Coordinated Call for BriCs multilateral Projects – Pilot Call 2016 (nov. 18, 2018), available at http://brics-sti.org/index.php?p=opportunities/BriCs+Pilot+Call +2016.

13 BriCs sTi FP: 2nd BriCs Call 2017 – resulTs (nov. 18, 2018), available at http://brics-sti.org/?p=news/news.


an important fact should be noted: all of the above-mentioned funding organizations are experienced mainly in funding scientific research projects, and only the russian Foundation for assistance to innovations (Fai) is experienced in funding innovation projects, though in small business innovation initiatives and the corresponding projects.

in response to the BriCs sTi Framework Program Pilot Call 2016 a total of 320 pro-posals were submitted. as the outcome of the selection procedures, 26 collaborative project proposals were selected for funding,14 including the participation of the following numbers of the BriCs countries’ organizations:

20 proposals from russia;8 proposals from Brazil;22 proposals from india;20 proposals from China; and10 proposals from south africa.Distribution of the 20 supported proposals among the russian funding

organizations (ministry of education and science – 7, russian Foundation for Basic research – 13, Foundation for assistance to innovations – 0) testifies that:

– Firstly, most of the approved proposals were aimed at carrying out fundamental research. These projects were supported by the russian Foundation for Basic research;

– secondly, no innovation-oriented proposals were supported. The Foundation for assistance to innovations received five project proposals, but could not recommend any of them for funding.15

The second BriCs sTi cooperation call for proposals opened in september 2017 in six thematic areas:16

– Prevention and monitoring of natural disasters;– Water resources and pollution treatment;– new and renewable energy, and energy efficiency;– Biotechnology and biomedicine including human health and neuroscience;– information technologies and high-performance computing; and– material science including nanotechnology.

14 BriCs sTi FP: Pilot Call 2016 – resulTs (nov. 18, 2018), available at http://brics-sti.org/?p=new/12.15 Подведены итоги конкурсов в рамках программы «Интернационализация» // Фонд содействия

инновациям. 19 января 2017 г. [The results of the Competition Within the internationalization Program are summed up, Foundation for assistance to innovations, 19 January 2017] (nov. 18, 2018), available at http://fasie.ru/competitions/podvedeny-itogi-konkursov-v-ramkakh-programmy-internatsionalizatsiya/.

16 Памятка российским участникам скоординированного Конкурса проектов Рамочной программы БРИКС по научнотехнологическому и инновационному сотрудничеству [BriCs sTi Framework Programme: Coordinated Call for BriCs multilateral Projects – 2nd Call 2017] (nov. 18, 2018), available at http://brics-sti.org/files/guideline_for_russian_applicants_ BriCs_call_2017.pdf.


in response to this call, a total of 462 project proposals were submitted in the six thematic areas (Diagram 1 below) and 32 joint project proposals were selected for support.

By september 2018, all russian financing organizations announced the com-petition results. as to the Foundation for assistance to innovations, only one collaborative project proposal was submitted. But for reasons related to the formal criteria, this proposal was not allowed to participate in the competition.17 actually then no single innovation-oriented joint project proposal from the BriCs countries received financial support in the framework of the two BriCs sTi cooperation calls.

as to the russian Foundation for Basic research (rFBr), it received 257 project proposals in the framework of the second BriCs sTi cooperation call. Following the results of independent expert evaluation, 19 project proposals received rFBr financial support.

Diagram 1: Distribution of Project Proposals to the 2nd BriCs sTi Framework Program Call

17 Утверждены результаты конкурсных отборов в рамках программы «Интернационализация» // Фонд содействия инновациям. 17 августа 2018 г. [Fai results of Competition Within the Program internationalization, Foundation for assistance to innovations, 17 august 2018] (nov. 18, 2018), available at http://fasie.ru/competitions/rezultaty--otborov-v-ramkakh-programmy-internatsionalizatsiya/.


as to the ministry of science and higher education of the russian Federation (formerly the ministry of education and science), it received 33 project proposals, and following the results of independent expert evaluation six proposals were chosen for financial support from the ministry in the following r&D areas:

1 project proposal in “Prevention and monitoring of natural Disasters”;2 project proposals in “Biotechnology and Biomedicine including human health

and neuroscience”;2 project proposals in “information Technologies and high-Performance

Computing”; and1 project proposal in “material science including nanotechnology.”The results of the 2016 and 2017 BriCs sTi Framework Program calls allow one to

draw several conclusions concerning the thematic priorities in science, technology and innovation cooperation of the BriCs countries.

Firstly, it is evident that the structure of the scientific priorities of the BriCs sTi cooperation has changed. The 2nd BriCs sTi Framework Program Call was arranged in six scientific areas instead of ten as in the first call. This can be explained by certain revisions of the BriCs countries’ policy priorities to science, technology and innovation. The research areas of the second call focused on searching for solutions to global challenges and at the same time on creating a science and technology basis in the context of the research areas that underpin the next industrial revolution.18

secondly, the fact that project proposals to the Foundation for assistance to innovations are practically absent (only six in two calls were submitted and none were supported) indicates that research organizations, universities and companies of the BriCs countries are not quite ready for cooperation in the sphere of innovation and that there is a certain structural imbalance of cooperation of the BriCs countries in the sphere of science, technology and innovation.

it should be noted as well that the imbalance between the number of the projects proposed and adopted has increased greatly. in the first call, the ratio between adopted and proposed projects (26 of 320) was 1 to 12.3, and in the second call the imbalance appeared to be 1 to 14.4 (32 of 462).

in the Durban Declaration, adopted at the 6th BriCs sTi ministerial meeting (3 July 2018 in Durban, south africa), the participants reaffirmed the strategic value of the BriCs sTi Framework Program as a mechanism for promoting BriCs research and technology development and supported the launch of the third call for proposals of the BriCs sTi Framework Program in the fourth quarter of 2018

…in the following thematic areas: prevention and mitigation of natural disasters; water resources and pollution treatment; geospatial technology and its applications; new and renewable energy, and energy efficiency,

18 Klaus schwab, The Fourth Industrial Revolution (Cologny; geneva: World economic Forum, 2016).


including solid state lighting; astronomy; biotechnology and biomedicine including human health and neuroscience; information technologies and high performance computing; ocean and polar science and technology; material science, including nanotechnology; photonics; research infrastructures, including mega-science projects; science, Technology, innovation and entrepreneurship Partnership (sTieP); and aeronautics…19

it should be noted that the proposed thematic areas of the third call for project proposals within the BriCs sTi Framework Program almost exactly repeat the thematic areas of the BriCs countries’ sTi cooperation stated in the memorandum of understanding on cooperation in science, technology and innovation. The “science, Technology, innovation and entrepreneurship Partnership (sTieP)” was included in the third call for proposals as an addition to the mou thematic areas.

4. Specifics of the BRICS Plan for Innovation Cooperation

at the BriCs sTi ministerial meeting in hangzhou, the BriCs countries adopted the action Plan for innovation Cooperation, aiming

…to promote entrepreneurship and build platforms in BriCs countries and mainly collaborate in technology cooperation, technology transfer and translation, science and technology parks, youth innovation and entrepreneurship and in fostering strategic and long term university-industry partnerships so as to build sound ecosystems for innovation and entrepreneurship…20

it seems that the BriCs action Plan for innovation Cooperation (2017–2020) (action Plan) is the first program document of the BriCs countries’ sTi cooperation which is intended to turn the vector of cooperation measures from the plane of science and technology cooperation to the plane of innovation cooperation aimed at high-tech business development. it is worthwhile to comment on the main items of the action Plan for innovation Cooperation:

1. Promoting exchanges and good practices among the BriCs countries on innovation strategies and policies; enhancing mutual understanding, complementarity and coordination for the BriCs cooperation in innovation, and in particular, for the attainment of socio-economic progress driven by scientific, technological and social innovation, for the building of a BriCs

19 Durban Declaration, supra note 9, at 2.20 hangzhou Declaration, supra note 8.


community of shared values and common future, and for the realization of sustainable development goals.

This item of the Action plan is aimed at promoting mutual understanding between the BRICS countries concerning national specifics in understanding and implementing the national innovation policy priorities. It should be noted that this item implementation will have to be executed on a year to year basis.

2. strengthening cooperation in scientific and research activities, enhancing cooperation in innovation based on existing mechanisms and joint research programmes including such cooperation conducted through public-private partnerships; fostering strategic and long term university-industry partnerships to address the needs of industry and contributing directly to economic growth and development; continuing to encourage and support research and development projects in the areas of fundamental and applied research and innovation within bilateral and multilateral frameworks and continuing to carry out joint calls for sTi projects; understanding the importance of implementing BriCs initiatives related to research and innovation; promoting open science and the sharing of research infrastructure; developing and initiating international mega science programmes.

This item of the Action plan presents an attempt to outline main common drives for innovation policy of the BRICS countries. Although all BRICS countries have their national innovation strategies and their own understanding of innovation development drivers, the vision of the intersection of the five national approaches to innovation development is a useful exercise to attract attention to common innovation development drivers.

3. organizing joint activities on identifying priorities for sTi cooperation of BriCs countries based on foresight and monitoring of global sTi development.

It should be mentioned that the STI priorities of the BRICS countries are concretely expressed in the BRICS Memorandum of understanding on cooperation in science, technology and innovation. As to foresight and monitoring of the global STI development in order to identify priorities for STI cooperation of BRICS countries, it could be an interesting exercise and additional source of information.

4. in view of the importance of science and technology parks for regional economic development, encouraging cooperation among science parks including supporting the transnational establishment of BriCs hi-tech enterprises in s&T parks. We welcome the establishment of exchange mechanisms for science parks, and expanding areas of cooperation in these domains.

The idea to arrange cooperation between the BRICS countries’ science parks is timely and important, especially from the point of view of establishment of the BRICS countries joint hi-tech enterprises in S&T parks. The main objectives for these joint hi-tech enterprises could be innovation development based on the results of joint research projects carried out in the framework of the BRICS joint calls for proposals.


5. encouraging technology transfer among the BriCs countries, strengthening training of technology transfer professionals, developing platforms for collaboration among businesses and academia, enabling extensive and orderly transfer and translation of innovation achievements in the BriCs countries. utilizing existing technological network platforms as instruments of search for foreign partners for technological collaboration and initiation of joint sTi projects.

Technology transfer, platforms for collaboration between businesses and academia and utilization of existing technological network platforms are the best instruments for carrying out practical implementation and transformation of science and technology achievements into innovation goods and services. But it should be taken into consideration that technology transfer, including international collaboration between business and academia is a risky activity from many points of view, including regulations of the intellectual property rights, distribution of prospective profits and so on. For this reason the technology transfer, international collaboration between businesses and academia and other activities included into Item No. 5 need a legal framework elaborated and coordinated by all BRICS countries.

6. Promoting BriCs Partnerships on Youth innovation and entrepreneurship to carry out pragmatic cooperation, advocating the entrepreneurial spirit of encouraging innovation and tolerating failure, and to create a favorable ecosystem for innovation and entrepreneurship amongst the younger generation.

It should be noted that the problem of the research personnel aging in the sphere of science, technology and innovation seems to be a problem of many developed countries. For this reason promotion of the BRICS Partnerships on Youth Innovation and Entrepreneurship, being timely and reasonable, should be among priorities of the BRICS countries STI cooperation.

7. acknowledging the importance of supporting sTi investment and the need to establish inter-BriCs investment instruments, we support explore the possibilities of driving BriCs cooperation on innovation and entrepreneurship through the national Development Banks, new Development Bank and other existing financing institutions.

Under conditions when science and technology collaboration between the BRICS countries is financed by national funding organizations of the five countries through the BRICS STI calls for proposals for S&T projects, one of the main focuses in the activities of the National Development Banks, New Development Bank and other existing financing institutions should be aimed at funding joint innovation projects based on the results of science and technology projects carried out in the framework of joint calls for proposals. One of the main criteria for funding the innovation projects should be the prospective economic output of the funded projects.

8. supporting the mobility of sTi human resources, especially exchanges among young scientists and entrepreneurs, supporting efforts to help address


the future demand for new skills, sharing best practices on enhancing skills training for innovation and entrepreneurship, including improving access to science, Technology, engineering and mathematics (sTem) education, creating jobs through joint research and collaboration in innovation and entrepreneurship, and stressing the role of youth in innovation. stressing the role of women in science, technology and innovation activities as one of the key priorities of the BriCs sTi agenda.

One of the main preconditions of scientific, technological and innovation development of any country in the modern world is the intellectual capacity of its population and for this reason the initiatives that are mentioned in this paragraph are of the utmost importance.

implementation of the action Plan for innovation Cooperation assumes that the BriCs science Technology innovation and entrepreneurship Partnership (sTieP) Working group will be responsible for the development of mechanisms and opportunities to implement the action Plan. in the first turn, networks of science parks, technology business incubators and smes will be established and cross-cultural teams of experts will start working in the domains of: iCT, materials, water, health, energy, natural disaster risk reduction and resilience, and others as well.

5. Possible Problems and Risks of the BRICS Countries’ Cooperation in Innovation

it is possible to assume that one of the main reasons explaining the above-discussed results of the two BriCs sTi Framework Program Calls (in the part regarding innovation project proposals submitted to Fai) is insufficient understanding about the legal procedures on using the results of multilateral international innovation research projects aimed at the development of new products (goods and services). This conclusion is supported by the fact that the national annexes, of all of the BriCs countries, to the coordinated calls for BriCs multilateral projects (except for the indian national guidelines for Coordinated Call for BriCs multilateral research and Development Projects – BriCs Call for Proposal 2017) do not include recommendations concerning the prospective results of joint multilateral projects for commercialization.21 such a situation, if not improved at the initial stage of BriCs sTi cooperation, may cause serious problems and restrictions in the future.

The only source of information concerning intellectual property rights on the results of the BriCs multilateral sTi projects are the tender documents of the BriCs countries’ funding organizations that include provisions concerning the use of the results of the joint science and technology projects.

21 BriCs sTi Framework Programme Coordinated Call for BriCs multilateral Projects – Call 2017 (nov. 18, 2018), available at http://brics-sti.org/?p=new/15.


For example, the tender document of the russian Federation ministry of science and higher education in the framework of implementing activity 2.1 of the Federal Target Program “research and Development in Priority areas of science and Technology Development of russia for 2014–2020” says that,

The rights to results acquired by the subsidy recipient and his foreign partner(s) (further – the parties) in the joint working on the project belong to the Parties in accordance with the proved Parties’ contribution to implementation of the project.22

it should be admitted that this formulation in the tender document does not clearly explain how the parties to a multilateral research project should act to determine their contribution to a joint project.

The Foundation for assistance to innovations (Fai) for Coordinated BriCs sTi Calls uses provisions of its tender document elaborated for the Fai “international Programs” section. item 5.16 of the Fai tender document says:

The rights to results of science and technology activities acquired in the process of implementing the contract belong to the grantee.

The rights to the patent and the exclusive right to an invention, useful model or industrial design, selection achievements, topology of integrated chips, computer programs, databases and know-how, created in the process of carrying out activities under the contract belong to the grantee.23

it seems evident that this provision of the Fai tender document is not in accordance with another provision of the same document, which for its part says that “participation in the BriCs sTi Framework Program requires participation of three organizations from three countries (including russia).”24 This situation may be understood such that the common result of an innovation-oriented multilateral project of three BriCs countries’ organizations may belong to the grantee financed by Fai.

22 Конкурсная документация по проведению конкурсного отбора на предоставление субсидий в целях реализации федеральной целевой программы «Исследования и разработки по приоритетным направлениям развития научно-технологического комплекса России на 2014–2020 годы» [ministry of education and science of the russian Federation, Tender Documentation] (nov. 18, 2018), available at http://fcpir.ru/upload/iblock/876/Konkursnaya-dokumentatsiya.pdf.

23 Положение о конкурсе «Международные программы» // Фонд содействия инновациям [Provisions of the Programme “internationalisation,” Foundation for assistance to innovations] (nov. 18, 2018), available at http://fasie.ru/programs/programma-internatsionalizatsiya/polozhenie-o-konkurse-mezhdunarodnye-programmy.php.

24 Заявки на многосторонний конкурс в рамках программы BriCs принимаются до 20 декабря 2017 года // Фонд содействия инновациям. 1 ноября 2017 г. [Call for Proposals Within the multilateral BriCs Program, Foundation for assistance to innovations, 1 november 2017] (nov. 18, 2018), available at http://fasie.ru/competitions/zayavki-na-mnogostoronniy-konkurs-v-ramkakh-programmy-brics-prinimayutsya-do-20-dekabrya-2017-goda.


as far as scientific activities supported by the rFBr are concerned, it should be noted that the use of the acquired research results is executed in accordance with “[t]he rules of organizing and carrying out activities in the framework of projects supported by the federal state budgetary institution ‘russian Foundation for Basic research’” that are applied to all tenders of the rFBr. according to these rules the grantee must only inform “the rFBr about results of the project that have signs of patentability or possibility of commercial use.”25

unlike russian funding organizations, the Department of science and Technologies of india published the “DsT (india) national guidelines for Coordinated Call for BriCs multilateral research and Development Projects – BriCs Call for Proposal 2017” which includes a provision about sharing the intellectual property rights (iPr) created within joint projects. in accordance with this provision:

The iPr sharing will be govern by national domestic laws and under the framework of BriCs sTi mou and/or india bilateral s&T agreement with BriCs Countries as applicable. The indian public institution along with other BriCs partners will have to submit an iPr arrangements, technical annex documents and coordination agreement, in case, the proposal is finally selected for funding support.26

The national research Foundation (nrF) of south africa also published guidelines for national organizations that submit proposals together with their partners from other BriCs countries to the 2017 Call for Joint Project Proposals. But the south african guidelines do not include recommendations concerning managing the iPr created within a joint multilateral project.

The Brazilian guidelines (national annex) to Coordinated Call for BriCs multilateral Projects – BriCs Call for Proposal 2017 issued by the national Council for scientific and Technological Development (CnPq) do not contain any provisions concerning sharing iPr acquired within a joint project.27

as far as the position of China on the results of joint research activities in the context of the BriCs multilateral projects call for 2017 is concerned, it should be noted that neither the ministry of science and Technology nor the national natural science Foundation of China (nsFC) include any provisions about iPr management in

25 rules of organization and implementation of scientific projects supported by the rFBr were adopted by the decision of the bureau of the rFBr Council on 19 February 2015.

26 DsT (india) national guidelines for Coordinated Call for BriCs multilateral research and Development Projects – BriCs Call for Proposal 2017 (nov. 18, 2018), available at http://brics-sti.org/files/DsT_national_guidelines_2017_BriCs_Call.pdf.

27 national annex, national Council for scientific and Technological Development (CnPq), BriCs sTi Framework Programme, Coordinated Call for BriCs multilateral Projects – Call 2017 (nov. 18, 2018), available at http://brics-sti.org/files/CnPq_national_annex_2017_vCgsB_12-09-2017.pdf.


their guidelines (national annexes) to the BriCs sTi Framework Program Coordinated Call for BriCs multilateral Projects – 2nd Call 2017.

all of the above-mentioned facts testify to insufficient development and coordination of the BriCs countries’ rules of cooperation in the sphere of sTi. it is necessary to recall that implementation of technological innovations based on the results of large-scale and complicated research, especially in the framework of international multilateral projects, may be subject to certain risks and restrictions that can appear both because of the generally complicated character of research projects that form the basis for technological innovations and because of a number of challenges that cooperation projects sometimes demonstrate, as well as because of specific features that are inherent in international science and technology multilateral cooperation projects.28

similar to any other cooperative scientific activity, multilateral international science and technology cooperation is subject to a number of risks. These risks can be divided into three key groups.29

The first group includes risks that are inherent in any scientific research: errors in selecting the areas and subjects of research, errors in determining the amount of funding, the required research devices, etc.

The second group includes risks arising from organizing and conducting cooperative research projects, that is, projects carried out jointly by several entities, including scientific, industrial and financial organizations. in this case, the research project risks included in the first group can be accompanied by the risks related to errors in selecting partners for joint research activities that could prove unable to perform their part of the work; errors in distribution and allocation of responsibilities for performing different work stages to different partners; errors in distribution of the intellectual property rights to the results of joint work; and errors in planning how to use the results of the completed work.

The third group includes risks that are mainly inherent in international science and technology multilateral cooperation projects. This group comprises risks stemming from the following aspects:

– The lack of information regarding the competences of the foreign partners. its consequence is the risk that the competences of some partners may be overestimated, and the entire project could fail as a whole;

– The risk of losing the rights for some intellectual property. This risk can arise in cases where the contribution of one of the parties to the joint project consists of the use of earlier received research results, especially in the case where those results have not been properly registered;

28 ricky luppino et al., Risk Management in Research and Development (R&D) Projects: The Case of South Australia, 19(2) asian academy of management Journal 67 (2014).

29 The russian Federation’s international science and Technology Cooperation: an overview and Development issues (i.s. ivanov (ed.), moscow: spetskniga, 2014).


– The corporate and national specific features of some partners (recording insignificant results or oral agreements, the organization methods of joint work, etc.). such specific features in general could lead to difficulties with project management, and thus slow down research;

– a large number of participants in an international project can cause certain difficulties and thus present a risk for the project. in this case, difficulties could arise from many disputes concerning project management and the ways of achieving the set goals of the joint research;

– underestimating the strategic importance of the results of future projects completed jointly by an international group of partners obtaining an important result. This is perhaps the main risk inherent in international science and technology cooperation, particularly in the area of applied and innovation-oriented research which is potentially highly rewarding from the point of view of commercialization of the results of research. some foreign experts advise against organizing international projects in cases where the area of cooperation has a strategic importance in terms of security (information, technology, etc.) or in terms of significant economic value;30

– activities of foreign research and development organizations in the host country. initiatives of this kind are often aimed at using the human resources of the host country (primarily highly qualified researchers) to benefit the foreign organization’s own projects. The main risk such projects present is the “brain drain” from the host country. another potential risk involves losing the unprotected results of intellectual activity obtained by the host country’s scientists. it should be noted that this risk is also inherent in multilateral coordinated projects that are carried out in not one but several countries.

minimization of these and other risks is important for successful development of the BriCs countries’ cooperation in sTi, namely from the point of view of taking into account and balancing their scientific and economic interests.

The scientific interests of the BriCs countries’ organizations can be ensured through joint scientific publications based on the results of their joint research, especially in the fundamental sciences. as to the economic interests of the participating organizations (and consequently of their countries), they are inherent in the results of joint projects in applied research and innovation developments that promise commercialization potential. in this case the participating organizations can ensure their economic interests through the legal registration of the joint projects results, for example through joint patenting and further commercialization of their joint intellectual property.

one of specific features of the BriCs countries’ multilateral research projects is the separate funding of national research organizations in the framework of the joint

30 T. Finne, R&D Collaboration: The Process, Risks and Checkpoints, 2 information systems Control Journal 18 (2003).


projects. in projects of this type the integrated budget is not established, rather each country carries out the funding of its own participation. under such an approach disagreements concerning the purposes and amounts of financing may be less sharp than disagreements concerning distribution of the intellectual property rights and profits in the event that the project results hold potential for commercialization. Besides, in such an event there can be additional disagreements concerning distribution of the geographic markets in which the partners in the project have intentions to obtain exclusive rights for promoting the commercialized results of the project.

as to multilateral science and technology cooperation, one circumstance should be noted: the risks for all of the partners may lead to restrictions that would limit national research organizations in some activities within science and technology cooperation.

The most reliable and conventional way to avoid risks and restrictions inherent in international cooperation is to conclude a multilateral agreement between the parties that participate in the project. The agreement should include provisions necessary for regulating issues of organization, financing, performance, use of the project results, etc.

in this respect it should be mentioned that in most cases the tender documents of the organizations that provide financial support to national research organizations bidding for participation in the BriCs multilateral research and Development Projects include provisions concerning concluding agreements that are intended to regulate the use of the results of joint research activities. however, these provisions are very general, they do not offer any model agreement coordinated with foreign partners, but in fact they often appear to be formal and not designed to induce responsibility on the part of the parties for the unilateral use of common results.

For example, the tripartite russian-Chinese-indian agreement concerning research cooperation in the framework of the BriCs sTi Framework Program Pilot Call 2016, within the research project named “Development of novel Cooling systems for high-Power leDs for enhancing reliability and lifetime,” in the section “rights for intellectual Property,” indicates that,

the rights to results of research received by the Parties while implementing the mentioned project belong to the Parties according to their contribution established by the Parties within those activities in which the Parties jointly act as investors and performers. The Parties will conclude additional agreements on such kinds of activities. in case of using a previous intellectual property for implementing this project the Parties will conclude additional license agreements which will be a subject of independent interaction of the Parties.31

31 ministry of science and higher education of the russian Federation, agreement on scientific and technological cooperation in the framework of the project no. 14.613.21.0067.


at least two issues still remain unclear:– First, what would be the technique to determine the mentioned size of “contribu-

tion to those activities” in the event the parties have different financial possibilities?– second, if the parties jointly act as investors and performers in certain

activities and if their own investments (additional to those of the national funding organizations) are not equal, then what would be the technique to determine the access of each party to the results of the joint science and technology activities in the event the result is unique and holds potential for commercialization?

These are only two issues that may require elaboration of additional legal frameworks for the international cooperation of the BriCs countries in the sphere of sTi that can ensure better efficiency and help avoid risks in carrying out the projects in the framework of the BriCs countries’ sTi calls for cooperation projects.

it should be noted that the BriCs countries’ sTi cooperation is not free from the above-described risks inherent in any international science and technology cooperation in research, technology and innovation projects. if not regulated in due time and according to agreed formats, these risks may in their turn cause certain restrictions in implementing the BriCs sTi Framework Program.

as to restrictions that may be caused by certain risks in international science and technology cooperation (isTC), it is necessary to underline one circumstance: if the risks connected with international research projects are to some extent “universal” for each participant, the restrictions for them are different and depend on a combination of various factors, including the relative level of competences of the partners in the project, the “sensitivity” of the research area, the number of organizations participating in the project, their financial or other contribution to the project, and others as well.

Table 2 below shows the risks and possible corresponding restrictions that may occur at the stage of establishing an international research team for carrying out an isTC cooperation project.

Table 2: Possible restrictions Caused by the main risks of international science, Technology and innovation Cooperation Projects

ISTC-Related Risks Possible Restrictions in Carrying Out ISTC

1 risk of increasing the overall budget of the isTC project

restrictions on the number of the project participants that are not able to provide the necessary level of project funding

2 risk to increasing the competitiveness level of the partners in the project

restrictions on the number of the project participants that have low research competences


3 risk of a decrease of funding and flexibility of management

restrictions in terms of objectives of the project

4 risk to providing sufficient and reliable mechanisms that would guarantee participants’ long-term commitment to the project

restrictions in terms of selecting reliable and competent partners for the projectneed to provide governmental support to the project

5 risk to providing a fair distribution of expenditures and profits

restrictions on any interpretation of appropriate sections of the agreement on joint research

6 risk of losing critical national technologies

restrictions on technology transfer

7 risk of social and cultural differences restrictions on any interpretation of appropriate sections of the agreement on joint research

8 risk connected with difficulties in managing the project

restrictions on any interpretation of appropriate sections of the agreement on joint research

it follows from Table 2 that the main restrictions of international science and technology cooperation (including that of the BriCs countries’ sTi cooperation as well) can be presented within three groups:

1) restrictions connected with the level of the competences of the perspective partners for participating in the isTC project. in the case of the BriCs sTi calls for proposals, these restrictions are present at the stage of the initial negotiations between the research organizations of the partner countries willing to arrange a multilateral research and development project. rather often participation of a low competence candidate can be restricted or rejected at the stage of initial negotiations;

2) restrictions connected with the level of financial support to the applicants for participation in the isTC project. in the case of the BriCs sTi cooperation projects, these restrictions are mainly caused by the insufficient level of some participants’ financial resources in the event the project partners decide to conclude an additional agreement to commercialize the project results at the expense of their own financial resources. in the case where the multilateral research project of the partner countries’ organizations is fulfilled with a result which promises commercialization, but one or two participants do not have the finances to proceed with commercialization of the common result in the framework of an additional agreement, then commercialization of the project results may be put at risk of delay;

3) restrictions connected with the development of the agreement on implementation of the international research project. in the case of the BriCs sTi cooperation projects, these restrictions may arise and restrict the implementation period of the project. But these restrictions are not crucial, for the reason that the


cooperation agreement passes at two levels of consideration: at the level of the government authorities of the partner countries and at the level of the partner research organizations.

Conclusion

The aspirations of the BriCs countries to develop mutually beneficial multilateral cooperation in the sphere of science, technology and innovation correspond to the main global trends based on rapid changes in manufacturing, communication, services, medical technologies, and in other areas. The key condition for the BriCs countries to remain in accord with this global trend is to ensure rapid and mutually acceptable implementation of the results of their common research projects in innovation technologies, goods and services. at the same time it is highly necessary to elaborate certain measures of a legal character that would provide conditions for minimizing the described risks and restrictions in arranging the BriCs countries’ cooperation in science and technology. The most important measure at this point is to provide a legal framework for the transition from science and technology cooperation to cooperation in innovative business activities.

it should be noted that a certain shift in the main focus of the BriCs countries’ cooperation from science and technology to innovation business activities was done in 2017 and 2018 at the hangzhou and Durban BriCs sTi ministerial meetings. The results of these meetings were reflected in the hangzhou Declaration and the Durban Declaration.

The research areas of the 2nd BriCs sTi Framework Program Call focused on searching for solutions to global challenges and at the same time on creating the science and technology basis in the context of the research areas that underpin the next industrial revolution.

in this regard, the achievement of the main objectives of the multilateral cooperation of the BriCs countries, stated in the memorandum of understanding on cooperation in science, technology and innovation, namely

(a) To establish a strategic framework for cooperation in science, technology and innovation amongst the BriCs member countries;

(b) To address common global and regional socio-economic challenges in the BriCs member countries utilizing shared experiences and complementarities in science, technology and innovation;

(c) To co-generate new knowledge and innovative products, services and processes in the BriCs member countries utilizing appropriate funding and investment instruments; [and]

(d) To promote, where appropriate, joint BriCs science, technology and innovation partnerships with other strategic actors in the developing world,32

32 memorandum of understanding, supra note 4.


depends on elaboration of complex and multilevel legal frameworks, including bilateral intergovernmental agreements of the BriCs countries, and agreements between investors and performers of extra works within joint projects, especially in such sensitive cases where cooperation in research and development promises discoveries that may result in radical innovations.

it should be noted that the main objectives of the BriCs countries’ cooperation in science, technology and innovation stated in the mou are very ambitious and complex, for the reason that, being implemented within the BriCs sTi Framework Program, they assume the transition from one type of activity to another,33 that is to say, from research and development, having the aim of producing new knowledge, to innovation, having the aim of generating and manufacturing new products (goods and services). Cooperation in these types of activities assumes different types of results, and hence different types of additional agreements to the main agreement on science and technology cooperation. in this respect it seems expedient as well to determine the role of business and non-budget sources of funding in the BriCs countries’ cooperation in innovation, and to elaborate corresponding amendments to the BriCs countries’ memorandum of understanding on cooperation in science, technology and innovation, which is to be renewed in 2020.

Acknowledgement

This article is based on materials of the project: “Formation of the system of international science and Technology Cooperation and international integration in the Field of research and Technological Development allowing to Protect the identity of the russian scientific sphere and national interests under Conditions of the internationalization of science and to increase the efficiency of russian science Due to mutually advantageous international interactions” (the unique identifier of the project is rFmeFi57217X0005). The project is made possible through funding provided by the ministry of science and higher education of the russian Federation.

References

Finne T. R&D Collaboration: The Process, Risks and Checkpoints, 2 information systems Control Journal 18 (2003).

luppino r. et al. Risk Management in Research and Development (R&D) Projects: The Case of South Australia, 19(2) asian academy of management Journal 67 (2014).

oslo manual: guidelines for Collecting and interpreting innovation Data (3rd ed., Paris: oeCD & eurostat, 2005).

schwab K. The Fourth Industrial Revolution (Cologny; geneva: World economic Forum, 2016).

33 oslo manual, supra note 2.



Vladimir Kiselev (Moscow, Russia) – head of Division, interdepartmental analytical Center (31/29 Povarskaya st., moscow, 121069, russia; e-mail: [email protected]).

Elena Nechaeva (Moscow, Russia) – assistant, administration of the President of the russian Federation (4 staraya sq., moscow, 103132, russia; e-mail: [email protected]).


FunDaMEnTaL RIGHTS oF PERIPHERaL ConSTITuTIonS: a nEw THEoRETICaL aPPRoaCH anD THE ZIKa VIRuS In BRaZIL

WÁLBER ARAUJO CARNEIRO,

Federal University of Bahia (Salvador, Brazil)

Doi: 10.21684/2412-2343-2018-5-4-61-89

This essay proposes a new theoretical model directed towards the observation of fundamental rights present in the Constitutions of peripheral States. Parting from a critical revision of classic perspectives oriented by the dogmatic affirmation of fundamental rights and the institutional tradition derived from sociological observation, these rights perform a dual function. They are responsible for the structuring of normative expectations and, at the same time, they construct internal dogmatic limits within the system. Through the contributions of phenomenology and social systems theory, this model suggests autonomous spheres of fundamentality in contrast to the classical unity of fundamental rights. Furthermore, the balancing schemes are substituted for an internal “law of collision.” Conflict resolution undergoes a shift from the traditional method to the system’s reflexive pragmatics, contributing to the legal security and the democratic legitimacy of judicial review. Finally, it verifies how this theory could be applied to the advent of the Zika virus which affected Brazil from 2015 to 2017. As the Zika virus crisis involves different spheres of fundamentality, entailing a range of systems of law and therefore revealing different collision patterns, this essay demonstrates how this new approach could contribute to the control of solutions.

Keywords: fundamental rights; constitutional law; balance; systems theory; Zika virus.

Recommended citation: Wálber araujo Carneiro, Fundamental Rights of Peripheral Constitutions: A New Theoretical Approach and the Zika Virus in Brazil, 5(4) BriCs law Journal 61–89 (2018).


Table of Contents

Introduction1. The Fundamental Rights of the Constitution and the Theories of Fundamental Rights2. Foundations of the Flow of Meanings in the Legal Constitution

2.1. Asymmetric Constitution of Practical Rationality in Partial Systems2.2. Constitutive Structuring of Fundamental Rights

2.2.1. Social Dimension of the Meaning of Fundamental Rights2.2.2. Temporal Dimension of the Meaning of Fundamental Rights2.2.3. Objective Dimension of the Meaning of Fundamental Rights

3. From Balancing to the Collisions of Law4. The Epidemic of the Zika Virus in Brazil and the Connections Between Brazil’s Juridical System and Law in World Society

4.1. The Problem4.2. The Structuring of Normative Expectations4.3. The Hyper Cyclic Structuring of the Closure of the System

4.3.1. The Right to Abort4.3.2. Prohibition of Aerial Spraying with Chemical Products4.3.3. Control of Policies Directed Towards Victims of the Zika Virus

Conclusion

Introduction

This introduction shares a brief diagnosis of the role fulfilled by legal reasoning in Brazil. The Brazilian Constitution published in 1988 incorporated a wide selection of normative expectations from the social environment, many of which had existed previously in a repressed form.1 They range from corporate freedom to the dignity of workers; economic development to preservation of the environment; from freedom and individual guarantees to public safety; religious freedom to human dignity; from reduction of social inequalities to freedom of competition.

The 1988 Constitution, however, was unable to foresee solutions for the conflicts that the incorporation of the expectations caused. it represented a pact that would symbolically diminish conflicts, a phenomenon that, even in the 1990s Professor marcelo neves called “symbolic constitutionalization.”2 until the mid-1990s, the

1 See germano schwartz, Direito & Rock: O BRock e as Expectativas Normativas da Constituição de 1988 e do Junho de 2013 (Porto alegre: livraria do advogado, 2014).

2 marcelo neves, A constitucionalização simbólica (2nd ed., são Paulo: WmF martins Fontes, 2007).

WÁLBER ARAUJO CARNEIRO 63

symbolic character of this constitutionalization fulfilled its diabolical function,3 helping to cover up our institutional shortcomings and the limitations that the project sought to improve. inside the trajectory of this perversity, a space was opened for the political affirmation of the Judiciary in what should have been “effectiveness of constitution”; however, this provoked the emergence of judicial activism, a wave of intervention, and judicial control of public policies, all of which had an immediate effect on fundamental rights.

The problem was the legitimation of such intervention and control. The Judiciary could not truly assume that this form of action transited in a way to give a space for decisions that exceeded the limits of acceptable creative sentencing, where only representative or direct democracy could act. To fill the void of this deficit in legitimacy, the legal doctrine, strongly supported by actors linked to the Public Prosecutor’s office and Judiciary, believed that methodology of constitutional interpretation developed in germany4 could move political legitimacy into the epistemic scope.

after almost 30 years, it is possible to provide a brief diagnosis of the negative effects of this “hermeneutic revolution” in the name of the effectiveness of fundamental rights, highlighted by the following points:

a) The balancing of principles and the methods responsible for revealing constitutional semantics are not capable of legitimizing the level of intervention necessary for the Judiciary in forming public policies. The balancing model has become a magical solution to legitimize any decision, even for those decisions which do not entail collisions of fundamental rights. result of a poorly transferred importation, we do not know what we are balancing, or how we should rationally balance or control the process.5 methods of interpretation promote an ad hoc legitimation of constitutional semantics. With its select composition of elements, a “methodological combo” can cover up judicial activism and distort the functions of the legal system;

b) The way in which the communication of the legal system observes its environment does not correspond to the reality of the communication that is in its surroundings. it ignores the plural, complex and global character of the society6 by

3 The other side of the symbolically generalized medium of communication is diabolic. When the Constitution emphasizes the symbolic character of its principles there is also the emergence of a diabolic medium since it neutralises all other values on the level of codes. at the same time that the Constitution says that all of us have dignity, its symbolic force covers up the undignified living conditions of the people and cools down political tension. See Wálber araujo Carneiro, Crise e escassez no Estado Social: da constitucionalização à judicialização simbólicas in Estado e Constituição: Estado Social e Poder Econômico face a Crise Global. Vol. 1 200 (J.l.B. de morais & a. Copetti neto (eds.), Florianópolis: empório do Direito, 2015).

4 See virgílio afonso da silva, Interpretação constitucional e sincretismo metodológico in Interpretação constitucional 115 (v.a. da silva (ed.), são Paulo: malheiros, 2005).

5 The same problem occurs in other systems. See Thomas a. aleinikoff, Constitutional Law in the Age of Balancing, 96(5) Yale law Journal 976 (1987).

6 See niklas luhmann, La sociedad de la sociedad (méxico: herder, universidad iberoamericana, 2007).


reducing it to individuals who act in an environment of objective values and who might be capable of producing empirically verifiable consensus.7 The adaptation of the system to its environment is concealed by a corrupt reflexive autonomy of the law, giving rise to the silence of false complicity;

c) The “dream” of effectiveness of fundamental rights has not been achieved. The diabolical function of “constitutionalization” has only shifted to become a paradigm of “symbolic judicialization.”8 selectivity and the absence of generalized inclusion in public policies are marks of this phenomenon.

This paper proposes a functional revision of the theory of fundamental rights on the horizon of meanings for a complex and global society. on the one hand, it seeks to overcome the methodological farce and to reduce the diabolical effects of judicialization; but, at the same time, it aims to preserve an emancipatory role for law’s continuity on the periphery of world society.9 Taking fundamental rights as “sluice gates” of the flow of meaning between system and environment in the constitution of rights, the paper examines the variations provoked by this flow in three dimensions (social, temporal and objective). it also describes how law’s social communication reflects its environment through fundamental rights, highlighting the reserves of practical rationality found in the environment, the evolution of normative expectations, and the inner reproduction of objective complexity through the constitution of “spheres of fundamentality.” additionally, from inner reproduction of environmental complexity, the paper evaluates how law should deal with problems arising from normative collisions of different kinds of “spheres of fundamentality.” Finally, it verifies how the proposed theoretical model contributes to solving collisions of fundamental rights arising in the wake of the Zika virus which affected Brazil between 2015 and 2017.

1. The Fundamental Rights of the Constitution and the Theories of Fundamental Rights

although it is common to consider several types of theories on fundamental rights two main streams are vital to understanding this problem. The first stream will be called “classical.” in this theoretical line, we will find the works of smend,10 hesse,11

7 See Karl-heinz ladeur & ricardo Campos, Entre teorias e espantalhos – deturpações constitutivas na teoria dos principios e novas abordagens in Crítica da Ponderação: Método Constitucional Entre a Dogmática Jurídica e a Teoria Social 97 (r. Campos (ed.), são Paulo: saraiva, 2016).

8 Carneiro 2015.9 See marcelo neves, Comparing Transconstitutionalism in an Asymmetric World Society: Conceptual

Background and Self-Critical Remarks, adam smith research Foundation, Working Papers series 2015:02 (2015) (oct. 20, 2018), available at https://www.gla.ac.uk/media/media_401302_en.pdf.

10 rudolf smend, Verfassung und Verfassungsrecht (Berlin: Duncker & humblot, 1928).11 Konrad hesse, Elementos de Direito Constitucional da República Federal da Alemanha (Porto alegre:

Fabris, 1998).


müller12 and the approach of alexy.13 The role of fundamental rights in this context signifies blockage of possibilities of meaning for the legal system, and the protection of subjects in the face of the actions or omissions of the state; and to the extent individuals find themselves under obligation due to the “horizontalization” of these rights. From smend to alexy, we will observe a gradual acknowledgment of the complexity of the environment in which fundamental rights are embedded, although the flow of environmental demands is, in the syntactic semantic structural design of these theories, pushed into the inner semantic boundaries of fundamental rights. somehow, they remain destined towards their original mission of national integration,14 still perceptible in the search for a unity of the constitutional system.15

The second theoretical line has its origin in sociological orientation and, for this reason, puts into the foreground the function that fundamental rights play in the legal system. it has as a framework the book Grundrechte als Institution: Ein Beitrag zur politischen Soziologie, by niklas luhmann, published in 1965. since then, it has served as a reference for the critical analyses of authors like ladeur,16 Teubner17 and, in Brazil, marcelo neves.18 in this line, fundamental rights are not directed at the legal system through the imposition of programs. on the contrary, they fulfil a function of openness that even the “classical” theories have not been able to eliminate. in this sense, they operate against stagnation and, consequently, foster “de-differentiation” of society (the return to an “un-differentiated society”) insofar as they prevent the legal system and political system from taking control of society in the order of eliminating the inherent functions of other social systems.19

12 Friedrich müller, Strukturierende Rechtslehre (Berlin: Duncker & humblot, 1984).13 robert alexy, Teoria dos direitos fundamentais (são Paulo: malheiros, 2008).14 niklas luhmann, Los derechos fundamentales como institución 128 (méxico: universidad iberoamericana,

2010).15 Id. at 126–127 (luhmann describes the evolution of the theories on fundamental rights in three stages:

a classic one of jusnaturalistic nature; a second one that “tries to overcome political pragmatism and the merely legal-positivist conception, where natural law threatens to fall,” which, according to him, “designates itself as ‘humanistic philosophical science’ and can be said to have it as the dominant theory,” that found “a respectable elaboration in the doctrine of the integration of rudolf smend, although at the moment it practically lives only of the euphony of the concept of value and the lack of competition” and, lastly, a theory of value that he encounters in the 1960s that “renounces to be a complete state theory and is limited to a dogmatic analysis of the part of the Constitution regarding fundamental rights,” singularized by the use of “freer methods of interpretation, oriented historically”).

16 Karl-heinz ladeur, Postmoderne Rechtstheorie: Selbstreferenz, Selbstorganisation, Prozeduralisierung (Berlin: Duncker & humblot, 1992).

17 gunther Teubner, Verfassungsfragmente: Gesellschaftlicher Konstitutionalismus in der Globalisierung (Berlin: suhrkamp, 2012).

18 marcelo neves, Entre Hidra e Hércules (são Paulo: WmF martins Fontes, 2013).19 luhmann 2010, at 310.


Therefore, the “classical” theories seek in fundamental rights the ultimate foundation for the closure of the system. institutional theories, however, observe the function of the opening up of fundamental rights. The failures of the normative proposal of classical theories represent, from the perspective of institutional theories, an important function in the avoidance of politics and law becoming the super ego of society. The “classical” theories fail when they ignore the complex dynamics present in the environment.20 By failing, they mask the reasons why the legal system makes certain decisions. By identifying the fundamentality in the syntactic-semantic primacy of the Constitution, the “classical” theories overload the hermeneutic function responsible for “closing” the possibilities of meaning that partially reflect the complex environment, encouraging the strategic paths of “panprincipiologismo”21 or “principialismo”22 and, consequently, the trivialization of fundamental rights.

institutional theories, on the other hand, fail when they perceive environmental demands as expansive cravings from other partial systems of society. and as they fail, they ignore that the environment demands protection from the destructive effects of the expansive energies of the partial systems of society.23 it is a destruction that at once causes dedifferentiation and centralizing tendencies.24 a theory of fundamental rights needs, along the paths taken by institutional theories, to re-establish the structural contours of the flow and counter flow of practical meaning between the legal system and its environment, so that it is possible to communicate the reserves of practical reason present in social communication with the legal dogmatic tradition, overcoming the mythological bases of the classical approach.

a theory of fundamental rights must establish the structural frame of this flow/counter flow of practical meaning between environment and legal system in a way that fundamental rights may effectively communicate the reserves of rationality found in social communication’s interaction with the law doctrine’s traditional vocation for institutional decisions. at the same time it should come closer to the institutional side of sociological tradition’s dogmatic approach to legal tradition.25

2. Foundations of the Flow of Meanings in the Legal Constitution

in order to effectively analyze the foundations of the flow of meaning in the legal Constitution, the following theoretical fields must be addressed: a) the asymmetric

20 See luhmann 2010, at 310.21 lenio luiz streck, O que é isto – decido conforme minha consciência? (4th ed., Porto alegre: livraria do

advogado, 2013).22 neves 2013.23 Teubner 2012.24 luhmann 2010.25 See Id. at 317–318 (luhmann already drew attention to the distance between these two perspectives

and called for this approximation).


constitution of normative expectations and the desires for practical reasoning inherent to partial systems of world society;26 b) how the legal system structures these different expectations; c) the internal problems resulting from this structuring and, finally, d) in counter flow, the limits of regulation of asymmetries and the possibilities of horizontal impulses27 for the protection of spontaneous environments. here, we will try to outline the first three aspects, since they are determining factors for the paradigmatic transition that we wish to uptake.

2.1. Asymmetric Constitution of Practical Rationality in Partial SystemsThe complexity of world society has led to internal differentiation of its communication

systems due to the different meanings that the “world of life” can take on. This complexity encourages an increasingly specialized social communication in concrete individuals. on the other hand, the attempt to saturate meaning in these specialized areas also causes strategic blindness focused on self-perception and, consequently, produces self-centred cravings for each of these special perspectives. it was this same social complexity that led phenomenology to the conclusions about the contingency of meaning,28 to the impossibility of “absolute” understandings in the happening of meaning in a being29 and to the inescapability of the unspoken in all speech.30

Thus, a communicational “division of labor” stimulates reciprocal estrangement and promotes practical problems related to the actions of subjects or organizations. These conflicts can be observed within the organized scope of communication systems (e.g. between firms); between two different organized spheres of different partial systems of the complex society (e.g. between a company that maintains a university and its academic structure); between the organized scope of a partial system and its immediate spontaneous scope (e.g. between the company and its workers or its consumers); between the organized scope of a partial system and the spontaneous scope of other systems (e.g. between producers of alcoholic beverages and followers of a religion that see in the consumption of alcohol an attack on their dogmas).31 These different scopes obey neither territorially differentiated criteria, nor

26 See rudolf stichweh, Weltgesellschaft in Bonner Enzyklopädie der Globalität 549 (l. Kühnhardt et al. (eds.), Berlin: springer, 2017).

27 Teubner 2012, at 92.28 See edmund husserl, Experience and Judgment: Investigations in a Genealogy of Logic (evanston, il:

northwestern university Press, 1973).29 See martin heidegger, Lógica: la pregunta por la verdad (madrid: alianza, 2004).30 See hans-georg gadamer, Retrospectiva dialógica à obra reunida e sua história da efetuação in

Hermenêutica filosófica: nas trilhas de Hans-Georg Gadamer 203 (C.l. silva de almeida et al. (eds.), Porto alegre: edipucrs, 2000).

31 See Jean Clam, Questões Fundamentais de Uma Teoria Da Sociedade: Contingência, Paradoxo, Só-Efetuação 184 (são leopoldo: unisinos, 2006) (arguing that “the asymmetric valuation of cognitive and normative constructions of meaning (…) reinforces the tendency for the positivation of the law


the classical functional distinction proposed by luhmann. Within them, there are forms of communication aimed at stabilizing practical expectations and resolving conflicts, although they are not the result of an institutionalized policy.

The practical problems that will be processed by the state legal system are, in some way, anticipated in this communication that processes the meanings of world society. The tensions in the asymmetric relationship between organized and spontaneous environments reveal destructive risks that foster self-normatization observable in decision centers of functional systems,32 but also produce normative expectations and normative responses that can still be observed in the environment as a difference between the possibility/impossibility of the systems. This tension, traditionally observed between regulation and social emancipation,33 provokes, long before the law is able to reflect or colonize it, a reaction of partial scopes of world society. The tendency of the organized scopes of partial systems is to produce a communication symbolically oriented towards the assimilation of the demands of the spontaneous spheres, which produces a reserve of practical rationality very valuable for fundamental rights to the extent that these forms can be observed and their content “heard” in the dynamic of constitution of their rights. These are very practical rationales for legal systems. accordingly, it is the responsibility of the organization of fundamental rights to receive them.

2.2. Constitutive Structuring of Fundamental Rightshow will this reception take place? The central thesis is that fundamental rights

act as “locks” that control the flow of meaning between law and its environment, reflecting, internally, the differences in the practical possibilities/impossibilities of social systems. While the “possibilities” of the systems present in the environment can be observed as “impossibilities” of the legal system, the expectations of limitation are structured as “needs” of the legal system. This difference between the impossibilities/needs of the legal system marks fundamental rights in their three dimensions: a) the social (of consensus/dissent), b) the temporal (before/after) and finally the objective dimension (outside/inside). These dimensions correspond to the three forms assumed by the variation of the meaning of social communication.34

and for the operational deepening of the legal system. This means that the normative components of the meaning of any and every project of meaning will have to be withdrawn or explicitly isolated so that social discourses remain free of stealthy (ideological) prejudices. The counterpoint to this process is the composition of specialized ethical discourses and the deepening of the functional differentiation of an ethical subsystem. morality, however, cannot be condensed into such a system because of its relation to the inner disposition, as well as because of its hatred of any and all institutionalization. This leads to the concentration of the whole of the formalizable moral substance of social communication in the legal system. This, in turn, by virtue of its merely derived autopoietic character, is not capable of totalizing the referred substance in the act of its own”).

32 Teubner 2012, at 150.33 See Boaventura de sousa santos, Poderá o direito ser emancipatório?, 65 revista Crítica de Ciências

sociais 3 (2003).34 niklas luhmann, Sistemas Sociales: Lineamientos para una teoría general 90 (madrid: alianza, 1991).


a theory of fundamental rights formulated on the horizon of the flow of meaning of the constitution of rights creates possibilities of observing the constitutive complexity of the expectations of its surroundings in the peripheral zones of the legal system. This allows for both the cognitive capacity of the legal system and the starting point for the closure of the system to be considered in a single model. Taken as “sluice gates,” it becomes possible to control the opening and closure. The opening function will continue to exist, although it will have to cope with the “sluice gate” strength, just as the classic blocking function will also continue to exist – even though outside the quasi-theological semantic standards of classical theories – as flow control provides the starting point for reflective hyper cycles,35 where components of the system articulate among themselves in promoting their closure.

2.2.1. Social Dimension of the Meaning of Fundamental RightsThe social variation of meaning drives social differentiation. since the “social” is

not a gathering of individuals under the aegis of a particular covenant or a shared cultural identity, different perspectives of “world” assume different “horizons of meaning”36 and provoke different forms of reproduction of the social. This phenomenon allows for the formation of different organized (and spontaneous) spheres, as well as the observation of different groups based on criteria that include classes, genres, ethnicities, age,37 or even specific vulnerabilities. in this plural society, the most comforting alternative to allowing for a “cohesion” of all these different “horizons of meaning” is to believe in the existence of a consensual horizon. This would support the irregular variables surging from the social dimension of meaning, presenting us with a “conventional morality” capable of blocking possible irritations (or imploding them in our unconscious). one could even propose the existence of a “quasi-transcendental” consensus in view of the validity conditions of dialogues that seek to eliminate our disagreement. The alternative that luhmann offers us, however, is less optimistic.38 Complex and plural society produces a special kind of semantics that, one would hope, gives us a consensual base. There are generalized

35 See gunther Teubner, O direito como sistema autopoiético (lisboa: Calouste gulbenkian Foundation, 1989).

36 luhmann 1991, at 95 (arguing that “the social is felt not because it is linked to certain objects (men), but because it is a carrier of a particular reduplication of possibilities of understanding. Therefore, the concepts ego and alter do not designate roles, people or systems here, but special horizons that add and carry meaningful remissions. The social dimension, therefore, is constituted by a double horizon and becomes relevant to the extent that in its experience and action is shown that the perspectives of understanding that the system refers to itself cannot be separated from other, that is, that the horizontality of the ego and alter is impossible as a result of further exploration”).

37 See Jorge galindo monteagudo, La teoría sistémica de la sociedad de Niklas Luhmann: Alcances y límites in luhmann 2007.

38 See niklas luhmann, Wie ist soziale Ordnung möglich? in Gesellschaftsstruktur und Semantik. Vol. 2 195 (n. luhmann (ed.), Frankfurt am main: suhrkamp, 1981).


references where “everything fits neatly” and “little is said”; but these have a huge institutional force that guarantees symbolic recognition: the “symbolically generalized communication media.”39

The symbolically generalized media of communication (sgmC) guarantee a “malleable” coupling between different forms of social communication that operate on different “horizons of meaning.” Thus, the different forms of tension between the organized and spontaneous spheres of the complex society (see above) are stabilized at first by such couplings. however, the general sgmC will require the unfolding of communication that will reveal the variations of meaning assumed on the different horizons of the social (dissent), although the recursion to the “consensual presupposition” is kept alive in all subsequent communicational operations.40 Therefore, the recursiveness of semantics allows the generalizing nature to be replaced by dense “boundaries” of specialized communication, marks of the symbol present in the communicational unfoldings that “specify” what until then was only “generalized.”

Fundamental rights can be observed in this dynamic. They are couplings, initially malleable and generalizable, whose institutional (symbolic) strength, in addition to being reinforced by its constitutionalization, is recursively amplified by the specialized communication of law. Principles are capable of structuring, legally, different meanings of practical reason,41 and although this reveals the assimilation of social dissent, the legal system’s self-recursion to the principles produces (internally) spheres of fundamentality that go beyond the level of consensus on the symbolic-generalized structure of fundamental rights42 and constitute negative/positive limits on the impossibilities/needs of this system. Constitutional principles are therefore pivots in the flow of dissensual meaning of society for its law, welcoming external dissent. additionally, they enable the hypercyclic and self-referenced communication of the system, the construction of a material scope that accumulates the achievements of the recursion of fundamental rights, fulfilling, by equivalence, the function that once belonged to consensual morality. although the uncertainty (dissent) as to the best practical solution to a given problem remains in the legal system environment, the recursive pragmatics of the legal system connects a certain “firm” material content to “loosen” couplings of fundamental rights. Thus, it will be possible to understand the dual function of the “fundamental right to a living wage,” since it will allow both the normative expectations for the change in the system and the guarantees and protections for the limits that have been established.

39 See luhmann 2007, at 247–248.40 luhmann 1991, at 94 (arguing that “the social dimension concerns what is supposed to be respectively

equal, as alter ego, and articulates the relevance of this assumption for each experience of the world and fixation of meaning. also the social dimension has universal relevance of world, since if there is an alter ego, this is, like the ego, relevant for all objects and themes”).

41 Wálber araujo Carneiro, Hermenêutica jurídica heterorreflexiva: uma teoria dialógica do direito 256 (Porto alegre: livraria do advogado, 2011) and neves 2013.

42 See marcelo neves, Entre Têmis e Leviatã: Uma Relação Difícil (são Paulo: WmF martins Fontes, 2006).


This material content pragmatically constructed in the reflexive “hyper cycles”43 of the legal system is a mark of the recursion of the symbolic force of a sgmC in the subsequent communications of the system. The hyper cyclical return in the reflective game of the circular legal system (principles → rules → legal doctrine → jurisprudence → decisions → jurisprudence → legal doctrine → rules → principles) tightens the inner layer and separates the legal system from its environment, although it does not hinder the coupling and structuring of dissent on the outer part of its boundaries. in this way, this double function (of opening and closure) marks the fundamental rights as “sluice gates” of the flow of meaning. as a coupling between system and environment, these doors prevent immediate selections of variation of meaning and the consequent bypass of the reflexivity as well as structure the “reflexive gamble” of the system, either for the purpose of blocking possibilities (signifying impossibilities) or requiring the production of certain programs (signifying needs).

however, the boundaries between the system’s impossibilities/needs and the sphere of political freedom will not be static, as the current stage of the difference between the fundamental/non-fundamental is constantly under pressure to assimilate new possibilities of meaning in law, requiring that “sluice gates” of meaning also act on the temporal dimension of that flow.

2.2.2. Temporal Dimension of the Meaning of Fundamental RightsThe permanent flow of meaning between the legal system and its environment

requires and, at the same time, allows the control of temporal variations of meaning. “The temporal dimension prevents the ‘reified solidification’ (die dinghafte Verfestigung) of the social dimension.”44 rigid or directing constitutions often choose to reserve strict scrutiny to certain areas through rules that prevent or hinder changes in the constitution. however, mutation will be inevitable, and fundamental rights will, in reducing the flow of meaning, need to control the “before” and “after” boundaries between the fundamental and the non-fundamental.

on the other hand, it is possible for a political system to establish more rigorous mechanisms for the temporal evolutionary process, even if at times it pays a high price for this. any environmental overloads will not necessarily imply a lack of sustainability, especially when this blockade is not related to fundamental rights. The unsustainability of their environment will, on the other hand, provoke quasi-revolutionary moments of crisis that will propel constituent moments in the sociological sense45 and may jeopardize rigid constitutions. There is, therefore, a space for constituent policy options and, within these options, spaces for conditional programs that delay the assimilation of the temporal evolution of the system.

43 Teubner 1989, at 77.44 luhmann 2007, at 35.45 See Teubner 2012.


This function, however, will not be achieved through the use of legal principles, as these will necessarily provoke external pressure for modifications and, on the other hand, will depend on reflexive conditional programs that reflect the presumed consensus. The ontological pressurization made feasible by the principles may, on the other hand, hinder the mutations from the sedimentation of the consensual ambit explained above, provided that the societal conditions for both are present. otherwise, it will succumb to the changes remaining. however, there is the possibility of denouncing such changes from the archive of the fundamental/non-fundamental of the “before” and “after.” Choosing rules that establish fundamental guarantees is the most obvious strategy for blocking temporal evolution.

The temporal variation of fundamental rights is usually observed in its historical evolution. The famous “generations” of fundamental rights, however, are not used to register the substitution of the old for the new, for they have assimilated the “future” as if the “past” had not been left behind, constituting a “present” unity.

2.2.3. Objective Dimension of the Meaning of Fundamental RightsThe objective variation of meaning differentiates what is “within” from what is “outside”

the observing system. From the perspective of the observation of fundamental rights, the objective variations reflect within the system the difference that occurs outside. The possibilities (or needs) must be internally situated in differing “spheres of fundamentality,” a necessary condition for the reserves of rationality present in their environment to be properly explored. Classical theories observe the internal fragmentation of the constitution as a generational movement, and instead of exploring the characteristics of each sphere and the way each one assimilates the normative expectations of its environment, they seek a theological one, where the mythical figure of the “constituent” occupies the place of god. Classical theories try to integrate the generations in a three-dimensional unit that has reciprocal implications. a clear perspective on the differentiation in the legal system environment is, however, fundamental, so that the law can, in view of the complex range of information, mitigate the risks of its decisions, a function highlighted by ladeur.46 observing the reflexes of this complexity in “spheres of fundamentality” is a necessary starting point for a hetero reflexive dialogue47 with their environment as they approach the saturation of different operative “logics.” otherwise, the tendency will be to expand to all spheres the “logic” of a system that, upon corrupting the legal system, dominates the other scopes of society.

The reproduction of external differentiation in inner spheres of fundamentality also provides coupling for different translations of practical philosophy to “work” in the legal system and to reflect on dogmatic consequences. if freedom is associated with the way the legal system observes its environment, and equality with the way

46 ladeur 1992, at 205.47 Carneiro 2011, at 252–254.


that system observes itself, other “logics” are appropriate as long as they are observed in their respective spheres. The categorical logic of Kantian ethics makes sense in spheres of protection of the person of non-economic freedom, though improper when transposed into spheres related to the community ethos, best reflected by the logic of “recognition.” The complexity of the spheres of justice has already been addressed by michael Walzer,48 although his model is not able to reflect the degree of complexity of the present in the environment. likewise, the demarcation of the spheres of fundamentality will facilitate the connection of a legal system to the network of legal communications of the world society, helping in the flow of reciprocal and hetero reflexive learning49 and in the necessary “translations” that the systems need to perform in this connection that marcelo neves called transconstitutional.50 The formation of a network for the protection of fundamental rights represents, also, a possible way for the legitimation of “human rights.”51

law should reflect as many spheres as there are standards of practical rationality in its environment, as well as the conflict zones that these spheres produce. Fundamentality spheres are formed in the law to reduce the complexity of its environment. Thus, observing them is relevant to identifying and controlling the collision zones.

3. From Balancing to the Collisions of Law

Collisions are not strictly between principles, interests or “values.” These only structure the colliding discourse and enable the ontological pressurization of the system by permitting its connection with the environment. strictly speaking, the collision occurs between the “spheres of fundamentality,” reproducing internally a conflict present in the environment. unlike the internal conflicts in each of the spheres, the solution for the collision between different spheres will not be able to count on the same reservations of rationality present in the environment of the legal system, which indicates the formation of a select area for legal systems.

The best candidate to guide the dogmatic solution of these conflicts will be found on the theoretical horizon that deals with the conflicts between different normative orders present in the global network of legal communications.52 according to Teubner and

48 michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (new York: Basic Books, 1983).49 vítor soliano, Jurisdição Constitucional e Transnacionalidade do Direito 221–222 (rio de Janeiro: lumen

Juris, 2016).50 See marcelo neves, Transconstitucionalismo (são Paulo: WmF martins Fontes, 2009).51 See gregorio P.-B. martínez, Curso de derechos fundamentales: Teoría general 174–179 (madrid:

universidad Carlos iii de madrid, 1999) (arguing that “it is not uncommon for fundamental rights to be recognized before they become human rights. This was the movement that brought about the universal Declaration of human rights as a mark of the internationalization of fundamental rights”).

52 See gunther Teubner & andreas Fischer-lescano, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, 25(4) michigan Journal of international law 999 (2004).


Fischer-lescano, the collision of fragmented normative orders in world society “might be achieved through a selective process of networking that normatively strengthens already existing factual networks between the legal regimes: law-externally, the linkage of legal regimes with autonomous social sectors; and, law-internally, the linkage of legal regimes with one another.”53 From an external perspective, we have already referred to the hetero reflective and trans-subjective possibilities opened up by the fragmented perception of the environment. it is now necessary to reflect how the proposal conceived in face of fragmented autonomous normative orders and arranged in the global network can be transposed to the internal relation between the spheres of fundamentality. on the one hand, it is a less challenging proposal, since the institutional structural unity of national legal systems allows at least a presupposed or symbolic unity, as Thomas vesting54 prefers to tell us. on the other hand, the same institutional force that structures the state legal system is also, paradoxically, one that can endanger the autonomy of the law, institutionalizing the imposition of the reproductive “logic” of external systems and allowing systemic corruption. Transnational collisions make clearer, due to the low institutionalization of the mediating spheres, the level of interference and learning of each of the systems involved.

in the line proposed by Teubner and Fischer-lescano, it would be necessary to normatively strengthen the bonds between regime collisions. This would obey three principles:

1. simple normative compatibility instead of hierarchical unity of law. 2. law-making through mutual irritation, observation and reflexivity of autonomous legal orders. 3. Decentralized modes of coping with conflicts of laws as a legal method.55

These three canons can also guide the observation of a collisions law within the domestic legal system.

With regard to normative compatibility, it is possible to observe that the relation between the spheres of fundamentality does not occur just through a hierarchical pattern56 but also a heterarchical one, which has long been observed in the hermeneutic models aimed at constitutional concretization.57 The canons of “constitutional unity” and “practical agreement” already defend the inexistence of internal hierarchy

53 Teubner & Fischer-lescano 2004, at 1017.54 Thomas vesting, Ende der Verfassung? Zur Notwendigkeit der Neubewertung der symbolischen Dimension

der Verfassung in der Postmoderne in Der Eigenwert des Verfassungsrechts. Was bleibt von der Verfassung nach der Globalisierung? 71 (T. vesting & s. Korioth (eds.), Tübingen: mohr siebeck, 2011).

55 Teubner & Fischer-lescano 2004, at 1018.56 See Konrad hesse, Significado dos Direitos Fundamentais in Temas Fundamentais do Direito Constitucional

(K. hesse (ed.), são Paulo: saraiva, 2009).57 müller 1984.


between constitutional “values.” Dworkin58 also suggests a heteronomy among spheres,59 since the dimension of “weight” or “importance” of principles does not establish a prima facie hierarchy of constitutional principles but refers to the necessary casuistic adequacy of the criterion of integrity. The “hierarchical” residues remain in the relation between the constitutional order and the infra constitutional order and must be reviewed as reflective levels that interact in hyper cycles.60

The second canon (creation of law through mutual irritation, observation and reflexivity of autonomous normative orders) leads us to interpret these hyper reflexive cycles as a “collisions law.” Present both in the Constitution and in infra constitutional legislation, it results from the mutual irritation of the conflicting spheres. The practical possibilities that the spheres of fundamentality assimilated from the social environment are channeled towards this “collisions law,” and this is clear not only in the scopes belonging to each sphere but the collision scopes as well, demarcating the criteria of system integrity and the areas of risk control for which coherence should be achieved by methodologically appropriate models. The infra constitutional law, although reproduced with some autonomy, must assimilate the differences demarcated in the sluice gate of fundamental rights, reflecting, in the present condition of the system, the sides relative to the presumed social consensus in each one of its spheres. But it must also reproduce or decide on the collision of these spheres.

Finally, from this methodological perspective, the multiplicity of “logics” assimi-lated in each one of the spheres of fundamentality points to its own characteristic of the scope of collision: sustainability. high social differentiation, with its associated degree of specialization, produces a complex bundle of information that will imply decision-making in the context of the collision of high-risk spheres. The impossibilities of safe anchorages require that these decisions be made with “care” (Sorge) which suggests sustainability as its operational logic. The search for a collisions law in the reflexive hyper cycles of the legal system must be guided by the sustainability of its spheres and, consequently, by the social orders they reflect.61 in addition, in the collision between spheres of protection of economic freedom and ecosystems, sustainability will be present in any collision that involves the self-destruction of the social environment. Finally, this orientation will depend on methodologies that observe the internal reproduction of this law of collision using criteria based on problems, amplifying the potential for practical rationality that flows from the environment.62

58 See ronald Dworkin, O Império do Direito (são Paulo: WmF martins Fontes, 2007). See also ronald Dworkin, Levando os Direitos a Sério (são Paulo: WmF martins Fontes, 2002).

59 See Wálber araujo Carneiro, El eclipse de la esfera de protección de la libertad individual no económica en el constitucionalismo brasileño: la supresión de los ámbitos de protección categórica en los modelos estructurales de la comunicación normativa in Itinerarios constitucionales para un mundo convulso 203 (a. de Julios-Campuzano (ed.), madrid: Dykinson, 2016).

60 Teubner 1989, at 77.61 Teubner 2012, at 292.62 See Carneiro 2011. See also neves 2013; raimundo Panikkar, Cross-cultural Studies: The Need for a New

Science of Interpretation, 8(3–5) monchanin 12 (1975).


4. The Epidemic of the Zika Virus in Brazil and the Connections Between Brazil’s Juridical System and Law in World Society

4.1. The Problemat the end of april 2015, the institute of health sciences at the Federal university

of Bahia (uFBa/Brazil) identified the presence of the Zika virus63 in material collected from sick patients. in may of this same year, the Brazilian health authorities recognized the existence of sixteen cases of infection. Then, in november, with the exponential increase in the number of cases, the Brazilian ministry of health declared a state of emergency and recognized that the increase in the number of fetuses which carried microcefalia64 (an illness which can result in problems such as seizures, developmental delay, intellectual disability, hearing loss and problems with vision, movement and balance) was directly linked to mothers infected by the virus. The Zika virus is transmitted to people primarily through the bite of an infected Aedes species mosquito (Ae. aegypti and Ae. albopictus). These are the same mosquitoes that spread dengue, “yellow fever” and chikungunya viruses, all of which had already affected the Brazilian population. The environmental conditions for the proliferation of the Zika virus in Brazil were already present years ago – parallel to the policies for the fight against mosquitos, due to the existence of dengue and yellow fever, which have been practiced and debated since the start of the twentieth century.

Further still, in 2016, as Brazil was preparing to host the olympic games, zika65 and microcephaly66 remained serious issues. accordingly, Brazil’s Zika epidemic became an international concern, not only because of the risk of contamination to athletes, but also because of the possible spread of the disease throughout the globe.

63 Zika virus is a mosquito-borne flavivirus that was first identified in uganda in 1947 in monkeys through a network that monitored yellow fever. it was later identified in humans in 1952 in uganda and the united republic of Tanzania. outbreaks of Zika virus disease have been recorded in africa, the americas, asia and the Pacific. From the 1960s to 1980s, human infections were found across africa and asia, typically accompanied by a mild degree of ill feeling. The first large outbreak of disease caused by Zika infection was reported on the island of Yap (Federated states of micronesia) in 2007. in July 2015 Brazil reported an association between Zika virus infection and guillain-Barré syndrome. in october 2015 Brazil reported an association between Zika virus infection and microcephaly. See Zika virus, World health organization, 20 July 2018 (oct. 20, 2018), available at http://www.who.int/en/news-room/fact-sheets/detail/zika-virus.

64 microcephaly is defined as a head circumference more than two standard deviations below the mean for gender and age. it may be present at birth or develop postnatally. See emily hanzlik & Joseph gigante, Microcephaly, 4(6) Children 47 (2017) (oct. 2, 2018), also available at https://www.ncbi.nlm.nih.gov/pmc/articles/PmC5483622/.

65 information from July 2016 already indicated 174,003 cases of fever probably caused by Zika virus in Brazil. See monitoramento dos casos de dengue, febre de chikungunya e febre pelo vírus Zika até a semana epidemiológica 27, 2016, 47(31) Boletim epidemiológico 1 (2016) (oct. 20, 2018), also available at http://portalarquivos2.saude.gov.br/images/pdf/2016/agosto/09/2016-026.pdf.

66 7228 occurrences up to april 2016. See Id.


as the olympics approached, the possibility of the Zika epidemic spreading throughout the globe became more of a concern. as a result, innumerable government and non-government organizations held the debate about alternatives to the problem. in november 2015, Brazil declared an emergency for public health which holds national importance.67 The World health organization declared an international state of emergency in February 2016.68 on the same date the Brazilian government enacted the Decree 8.662,69 seeking the adoption of preventative measures alongside routine elimination of trouble spots where Aedes aegypti lays its eggs. in June 2016, the Brazilian Parliament approves law 13.30170 which regulates the adoption of sanitation measures during a situation of imminent danger to public health because of the mosquito’s presence. amid the actions undertaken, and alongside the expectations of organized and spontaneous spheres of society, some questions are worthy of being highlighted and can be explored inside the proposed theoretical model.

The first two questions are related to the legalization of the abortion of fetuses affected by microcephaly and assistance for the children who are victims of pathologies as a result of the virus. at the time, the high Commission of the united nations for human rights declared71 that family planning in relation to having children would be in vain in such circumstances of unwanted pregnancy, making it necessary for health services to consider emergency policies for contraception, sanitary assistance for mothers, and even the case for abortion. The national association of Public attorneys (anaDeP) took the case to the Brazilian Federal supreme Court72 to question the legality of some of the legal requirements of law 13.301, alleging, amongst other things, non-compliance of a basic constitutional provision. They questioned the time limitation for the financial benefit (maximum of three years) and the restriction in payment for microcephaly cases,73 a benefit which would not contemplate other neurological consequences transmitted by Aedes aegypti or caused by congenital Zika syndrome. in their complaint over the non-compliance for the basic requirement registered in the constitution, anaDeP demands the introduction of a series of policies – for

67 ministerial order 1.813 of the ministry of health of Brazil (2015), art. 1.68 See neurological syndrome and Congenital anomalies: Zika situation report, World health orga-

nization, 5 February 2016 (oct. 20, 2018), available at http://www.who.int/emergencies/zika-virus/situation-report/5-february-2016/en/.

69 Decree 8.662 of the Federal government of Brazil (2016).70 law 13.301 of Brazil (2016) (oct. 20, 2018), available at http://www.planalto.gov.br/ccivil_03/_ato2015-

2018/2016/lei/l13301.htm.71 See upholding Women’s human rights essential to Zika response – Zeid, office of the high Commis-

sioner for human rights, 5 February 2016 (oct. 20, 2018), available at https://www.ohchr.org/en/newsevents/Pages/Displaynews.aspx?newsiD=17014.

72 ANADEP v. União, aDin 5581 sTF (2016) (oct. 20, 2018), available at http://stf.jus.br/portal/peticaoinicial/verPeticaoinicial.asp?base=aDin&s1=5581%20&processo=5581.

73 law 13.301 of Brazil (2016), art. 18.


example, the guarantee of treatment for children with microcephaly at specialized centers with a maximum distance of 50 km from their residences; and delivery of material with information on the disease alongside long-duration contraception for women in a vulnerable situation. Furthermore, it considers the unconstitutional nature of article 124 of Brazil’s Criminal Code (the crime of abortion)74 for the termination of pregnancy in relation to women who have been infected by the Zika virus; or, at least, what one should consider to be constitutional in termination of the gestation period for such cases, “regarding the state of necessity in face of current risk to health provoked by the Zika epidemic and aggravated by the negligence of the state of Brazil in the elimination of the threat.”75

Then there is a third question regarding the use of airplanes in order to disperse chemical substances in combatting the Aedes aegypti mosquito, authorized by law 13.302. This was something approved by health authorities and its effectiveness was scientifically proven (art. 1, para. 3, incision iv). The attorney general of Brazil’s Federal Public ministry, in an action motioned together with the Federal supreme Court,76 alleged violation of the right to a balanced environment (foreseen in art. 225 of the Brazilian Constitution77) for considering that the damages caused are frequent, irreversible, irreparable or difficult to repair. it also alleges the violation of the right to health by considering that “aerial spraying of chemical products, besides not contributing to the elimination of Aedes aegypti in an efficient way, provokes significant harm in humans.”

as of June 2018, neither of the two actions had been judged yet, which suggests difficulties in judicialization in the face of emergency public policies. Yet in both actions it is possible to observe the ways in which social expectations in relation to life, the environment, and the handicapped, and to women, have been structured by the system. The response of the Federal supreme Court makes a late arrival and it will be difficult to modify the form of the structuring of expectations in their positioning, being quite probable that the court will have to consider the loss of the object in many of the plaints, the epidemic being considered under control since may 2017.78 This leads us to evaluate the design by which the system structures this plaint, confirming the crisis diagnosis sketched at the beginning of the text,

74 Brazilian Criminal Code (1940), art. 124 (oct. 20, 2018), available at http://www.planalto.gov.br/ccivil_03/decreto-lei/Del2848compilado.htm.

75 ANADEP v. União, aDi 5581 sTF (2016).76 Id.77 Brazilian Federal Constitution (1988), art. 225 (oct. 20, 2018), available at http://www2.planalto.gov.

br/conheca-a-presidencia/acervo/constituicao-federal.78 See ministério da saúde declara fim da emergência nacional para zika, governo do Brasil, 5 may 2017

(oct. 20, 2018), available at http://www.brasil.gov.br/saude/2017/05/ministerio-da-saude-declara-fim-da-emergencia-nacional-para-zika.


and to confront, in light of the theoretical model presented, the way in which the system should operate, be it in opening up into the complex environment of world society, be it in the operative closure which will have to be decided by the Brazilian Federal supreme Court. Finally, considering the affectation of different spheres of fundamentality in differing forms of collision, one can consider the three matters in contention which have been highlighted: a) the right to abortion; b) the prohibition of aerial spraying of chemical products and c) the possibilities for control over the omissions of policies directed towards victims of the Zika virus.

4.2. The Structuring of Normative ExpectationsThe external side of fundamental rights in fact possesses the function of structuring

the most varied forms of normative expectations. in the strictest sense, no “sin” has been committed when expectations managed in the social environment appeal to human dignity in the attempt of obtaining authorization, from the juridical system, for the abortion of fetuses which present signs of microcephaly; or when the issue of environmental protection is raised in order to prevent aerial spraying with insecticides, or even when the right to a healthy existence requiring the implementation of policies is raised, in the midst of the state’s omission. Yet it is evident that the structuring already strategically considers a certain pattern of response from the system, reinforcing the use of principles and removing the burden on postulants’ interests in recursive layers of the system. in any case, the existence of a “sluice gate” making access to the juridical system possible does not mean that the system will have to assimilate for the simple possibility of structuring the demand, nor even that a positive response to the demand should come about in the same shapes used in the structuring of the demand. on the level of social variation in meaning, the law does not only comply with the function of permitting flow of dissention, needing to consider the limits of fundamentality which, currently (in the time dimension), respond to this dissention. and, for this purpose, its hyper cyclic closure will still need to consider the spheres of fundamentality (objective dimension) involved in the problem. insofar as the system continues to reaffirm this reflexive pattern in its closure, it will end up altering the shortcuts to immediate causality. showing itself to be closed in its operative closure, it will stimulate a better cognitive opening.

Focusing on the case in question, with an effort to simplify, it is possible to identify the affectation of different spheres of fundamentality in, at least, three different collision dynamics in cases before the supreme Court. abortion affects a sphere of fundamentality linked to the protection of life insofar as it responds to expectations linked to the sphere of the exercise of non-economic individual freedom and, specifically, the self-determination of the woman’s body. The use of airplanes to disperse chemical substances, in responding to the pervasive demand of a health policy, affects a sphere of protection also pertinent to the environmental question. and the lawsuits for the implementation of policies directed towards children who are carriers of syndromes


resulting from the Zika virus seek to ensure, collectively, protection of the sphere of health for the individual. Different spheres are affected by different patterns of collision, which consequently entails the consideration of different “logics” of protection and the examination of different limits for fundamentality already present in the system and different recursive chains of communication, threatening not to stimulate the acceleration of flow in the environment-law direction and not to guarantee elevated levels of autonomy in the operations of closure. Therefore, the system will need to establish a standard of closure which is not found in its opening and that is, in terms of learning, the condition of possibility.

4.3. The Hyper Cyclic Structuring of the Closure of the System4.3.1. The Right to AbortThe right or authorization to abort will affect a sphere which operates with

categorical limits of protection. The existence of categorical limits does not imply absolute protection. otherwise, it would not be possible for determined systems, like the Brazilian system, to anticipate the death penalty or even abortion itself. it means, in reality, whatever the limit for protection may be, this limit will not be able to be put at stake for reasons to do with consequentialism. The line of protection cannot be crossed under any hypothesis and, in the case that a collision is head on with any other equally categorical sphere, the lines will need adjusting within limits which show themselves to be equally categorical. When, from the other side, there are found expectations linked to spheres of protection which do not obey categorical logics, for example spheres of economic protection, the categorical limits are imposed.

These categorical limits are ultimately associated with the sustainability of the body and the psyche. however, though they maintain a meta-juridical justification, their juridical affirmation (what should be) is not casually derived from the bio-psychic sphere (being). The lines of categorical protection of fetuses and the self-determination of the woman’s body, as well as the adjustments resulting from the collision, are already, in some measure, placed in the system. The fact of eventually having reasons (social, temporal or objective) for these lines to be reviewed and adjusted does not distance the previous analysis of identification from the “current” stage of limits of fundamentality constructed in the recursive pragmatics of the system. There is no way to start the system from zero, even when it is about problems which have never been trialed. The collision regime does not occur in an ad hoc fashion and any modification needs to be justified in the flow of meanings between the system and its environment. Besides, the existence of reasons for a change does not necessarily mean that it may come from the Constitutional Tribunal, since on many occasions it will depend on legislative intervention. The Tribunal can only modify limits of fundamentality if a) it considers that the new variables present in the environment of the system reveal themselves to be compatible with the logic of the affected spheres; b) when these new variables put the sustainability of systems, organizations, interactions, subjects


or individuals (psyche or body) at risk and when c) the protection of sustainability in play depends on counter-majoritative measures. This combination of necessary factors for the legitimization of the Court are still absent in the case of abortion.

in fact, it is possible to think of the right to abort as an affirmation of individual liberty under a counter-majoritative perspective. This would meet one of the requirements of legitimacy for the Federal supreme Court to intervene favorably, even if the protection for fetuses and embryos demanded protection under a similar logic. Yet, the possible reasons which would lead the Tribunal to modify limits of fundamentality in the collision between protection of life in the uterus and self-determination of the woman’s body do not introduce anything new and relevant to these spheres. in considering the limits executed on the occasion that the Federal supreme Court recognized the possibility of abortion of fetuses carrying anencephaly, the question assumed that the possibilities for survival in cases of microcephaly were similar to those in cases of anencephaly. in this aspect, it seems evident that the impossibility of survival after birth is not, contrary to what occurs in cases of anencephaly, a constant for cases of microcephaly. The new feature would be, however, merely a quantitative dimension provoked by the epidemic, but this reasoning would not be able to be structured in spheres of categorical fundamentality in the liberty of auto-determination of the woman’s body – only in spheres of fundamentality which operate under utilitarian logics. The outbreak of the Zika virus and the exponential increase in cases of microcephaly would not be, however, reasons for the Federal supreme Court to become flexible on the possibility of abortion. however, this difference will not be perceived if the Tribunal structures its closure of the juridical system, repeating the form of structuring of normative expectations at the moment of the opening of the system, being the usual benchmark in its decisions.79 if the Court modifies the limits of fundamentality in the context of this collision, it will have to do so for other reasons, that is to say, for reasons structured in the sphere of protection of individual liberty, equally categorical. or rather, altering the ethical aspects of self-determination for the woman’s body and those of protecting life inside the uterus, leave it clear that the Court is modifying the limits of fundamentality of the juridical system and bequeathing this new point of reference to future generations.

These modifications cannot be considered in ignoring the connection of the system with its environment, which implies cognitive opening to other juridical systems, to the world health system, to bioethical scientific debates, to the positioning of the social movements involved, etc., in the attempt to assimilate the state of the art of a debate which is not only moral or religious, and certainly not restricted to a national concern. Questions such as the time limit for performing the abortion can become the

79 See LILS v. MPF, sTF hC 152752 (2018) (oct. 20, 2018), available at http://portal.stf.jus.br/processos/detalhe.asp?incidente=5346092 (a recent example can be observed in the vote of minister luís roberto Barroso when he defended flexibility for categorical limits for penal guarantees in trials with utilitarian arguments favoring efficiency in the juridical system).


object of hetero reflection and reciprocal learning between juridical systems. other valuable points of awareness would be experiences with other epidemics which have occurred in other parts of the globe and consequences related to microcephaly, the current situations and the difficulties confronted by victims in other regions and the ways in which other juridical systems have responded to this problem. What should be explored are the networks in world society which have permitted the scientific system to seek global references for identification and treatment of microcephaly and which have acted politically and in a juridical manner, before world organizations, to benefit cognitive learning locally, within the constitutionalized national juridical system. This connection and consequent cognitive opening is in no way against the ethical worth of national sovereignty. The very idea of sovereignty and protection of “local” cognitive norms can only be thought of in the system/environment distinctions of a world society.

With respect to operative closure, the constitutionalized juridical system will not be able to ignore recursive forms where the protection of these spheres has already been pictured within an internal law of collision. in the treatment of abortion, the Brazilian juridical system confers authorization for its practice in some cases and, even in the confrontation of a situation which brings merit to alterations, the current stage of the system needs to be evaluated. Basically, the categorical lines of protection of the fetus are withdrawn under the following circumstances: a) pregnancy resulting from sexual violence; b) risk of death for the pregnant woman, also referred to in Brazil’s Criminal Code,80 and c) when the fetus suffers genetic anomalies which impede its survival after birth, an authorization granted by the supreme Court81 when it has made a decision favorable to the abortion of anencephalic fetuses. in these cases, the dividing line of the collision advances against the protection of the fetus.

in comparison to our paradigm case, it would be fundamental to examine what reasoning has previously caused protection for the fetus to perish in consideration of liberty and self-determination of the woman’s body, and to check if this reasoning is equally present in the case of microcephaly. and, at least in this case, the real possibility for survival and development of children who suffer from microcephaly prevents this equivalence. however, this conclusion does not block the function of structuring of expectations met by fundamental rights, in a way that the demand for the definitive affirmation of this self-determination will remain present as an internal variation inside the system. The fact that the system has favored, in its programming of conditions, the possibility of abortion in pregnancies resulting from sexual violence is a strong

80 Brazilian Criminal Code (1940), art. 128 (“art. 128 – an abortion practiced by a doctor is not punishable: i. if there is no other means of saving the life of the pregnant woman; ii. if the pregnancy results from rape and the abortion is preceded by the consent of the pregnant woman, or, when she is incompetent, of her legal representative”).

81 See CNTS v. União, sTF aDPF 54 (2013) (oct. 20, 2018), available at http://redir.stf.jus.br/estfvisualizadorpub/ jsp/consultarprocessoeletronico/ConsultarProcessoeletronico.jsf?seqobjetoincidente=2226954.


argument for considering the categorical protection to be withdrawn in all cases, and to convert itself into a benchmark for the interruption of pregnancy. The supreme Court would not easily find the legitimacy to promote such a change, but it would have difficulties in upholding unconstitutionality if a law or Constitutional amendment were to emerge which promoted this authorization, since the counter arguments which would probably be poised would not easily be able to free themselves from the pre-existing authorization in the hypotheses of sexual violence. The internal coherence of the spheres pressures the system for the formation of more rectilinear categorical limits, even though, simultaneously, this implies the withdrawal of these limits.

as for the role of law in relation to abortion in the periphery of world society, there is room for advancement in places where the differentiation of the law, morality, and religion is not affirmed adequately enough within the scopes of lay and liberal. in any case, the conditions which allow the blockage of systemic corruption pass through a closure which is consistent with the law and, thereby, through considering internal fragmentation of the Constitution. The fact that a lot of women die in clandestine abortion procedure is an important argument in an “ecological perspective of human rights,”82 but very dangerous when reduced to the utilitarian view. To invest in utilitarian or consequentialist reasoning to break barriers of categorical protection can help us “win” with abortion in the same way that, tomorrow, it could be possible to “lose” on the fields of torture or the self-determination of the body.

4.3.2. Prohibition of Aerial Spraying with Chemical ProductsThe collisions between spheres of fundamentality which involve collective rights

such as the protection of the environment83 and public health function in a variety of ways. agriculture, industry and many forms of urban intervention can provoke environmental damage, in a way that the logic of sustainability becomes reduced to the degree of degradation, to the possibilities of compensation and to the risk of catastrophes. Principles such as sustainable development and prevention of harm structure demands for environmental protection, but the fact that these premises are categorical protections does not mean that closures operate under this logic. The very idea of compensation and evaluation of harms and risk already suggests that protection for the environment can vary, depending on other spheres already involved in collision. in this sense, the Zika epidemic and the various consequences that it may provoke in the health of individuals, the emotional impact that it will cause to the families of the victims by its consequences and the economic costs of the policies necessary for the prevention and treatment of the illnesses, would be relevant variables in the order of a possible revision of the borders of fundamentality.

82 See raffaele De giorgi, Por uma Ecologia dos Direitos Humanos, 15(20) revista opinião Jurídica 324 (2017).83 here i do not refer to eventually and categorically protecting specific animals, which would involve

a categorical logic of protection similar to protection of humans, although the system does not attribute legal rights to animals. however, certain subjective demands show signs of formation of spheres of fundamentality when one considers the categorical protection for certain animals.


accordingly, it would be possible, at least in theory, for the state to reduce the degree of tolerance in the diffuse protection of the environment in order to, by emergency measures, permit methods of combat against the mosquito which would not be permitted under other circumstances. however, being “in theory,” this possibility does not give the green light to politics of intervention. if the Brazilian juridical system, be it because of earlier decisions in the Constitutional Court or by legal provision, prohibited in an absolute way the use of airplanes for the dispersion of chemical substances, the limit of fundamentality adopted would remain clear. since the Brazilian juridical system tolerates, in some circumstances, the use of this expedient, the questioning of the possible violation to fundamental rights and, consequently, the prohibition of the practice against the Zika mosquito should justly initiate the reconstruction of the frontiers of fundamentality which already exist. The response will lie between that which is already tolerated and the eventual necessity of widening these frontiers, which could bring impacts even to those practices which are already permitted.

given the essentially restrictive character for the use of airplanes in the dispersion of chemical substances in Brazilian legislation, the strong scientific appeal against the measure and the inexistence of consolidated precedents on the issue, the Constitutional Tribunal could legitimately consider that such regulating does not represent a provision for resolving conflicts of interests, but a collision in the law which recursively reproduces its own limits of fundamentality adopted by the system. setting out from this process of regulation one must evaluate if the combat of the mosquito would find itself inside or outside such possibilities, always considering, by equivalence, the possibilities for the allocation of the legal assets in play. even so, the Tribunal could consider that, since the measure is within current limits, these should be modified in the name of specific sustainability for individuals or biomes. an eventual modification of these limits would demand, to become legitimate, the three conditions that have already been pointed out:84 a) new external variables which are compatible with the logic of the affected spheres; b) the risk to the sustainability of systems, organizations, interactions, subjects or individuals (psyche or body) and c) the necessity of counter-majoritative measures.

The absence of any of these conditions blocks the political legitimacy of the Tribunal. at the same time, the presence of the three conditions makes for a considerably heavy burden in the demonstration of unsustainability. This would entail, in the hetero-reflexive opening, the connection with other normative experiences in world society, with scientific studies on these impacts, the perspectives of affected communities, etc.; and, in the closure, one must deal with limits of equivalent fundamentality,

84 Considering a) that the new variables present in the system environment reveal themselves to be compatible with the logic of the affected spheres; considering b) that these new variables are a risk for the sustainability of systems, organizations, interactions, subjects or individuals (psyche or body) and considering c) that the protection of sustainability at play calls for the necessity of counter-majoritative measures.


technological solutions, perhaps already regulated in the system, with doctrinarian critique and jurisprudence, understood here as a trans-subjective construction of the system and not only proceeding from the Court.

however it is not possible to integrally simulate the application of the case model, since this would depend on the functioning of complex systemic structures which are beyond reach,85 at least in terms of the present study. The Federal supreme Court would not be able to ignore the differences between spraying over farm and urban areas and would probably not have difficulties in balancing the heightened probability of intoxication of individuals with other prohibited practices which display similar risks. it would probably have difficulties in justifying the benefits of aerial spraying when compared to other practices, especially if it pays attention to environmental safety standards present in other systems, but it would be difficult for it not to consider exceptional use. The european union, for example, establishes that “member states shall ensure that aerial spraying is prohibited,” but authorizes exceptional use following prerequisites related to a series of precautions.86

But what is important here is to make evident the difference in the spheres in collision, not being possible to ignore the logics of each one of the spheres involved in the collision to avoid blockage of the flow of sense between environment and system. Besides this, even when the collision does not involve categorically protected spheres, it will not be possible to treat the problem simply as a case of “balancing of principles.” The cognitive opening to other normative systems of world society which have already experienced similar problems, as well as the way infra-constitutional law already responds to similar collisions, are phenomena of fundamental relevance for the evaluation of impacts and for the way in which law has behaved in other regions of the globe. The administration’s contrived ethical burden, alongside the presupposed values in its environment, is not enough for the principles involved.

4.3.3. Control of Policies Directed Towards Victims of the Zika VirusFinally, the limits and possibilities of the supreme Court, as to the omission of

the state in the implementation of policies directed towards health and well-being of individuals and families affected by the syndromes caused by the Zika virus, need to be evaluated. The conception of policies is not, in principle, a function of the Judiciary. under the circumstances, it is not for the Judiciary to decide if family planning should be longer or shorter in the distribution of contraceptives, or if the

85 Because of structural limitations, we are unable, for example, to make available technical reports or hold public meetings with organizations and communities who are interested in, or even affected by, such drastic measures.

86 See Directive 2009/128/eC of the european Parliament and of the Council of 21 october 2009 establishing a framework for Community action to achieve the sustainable use of pesticides (oct. 20, 2018), available at https://eur-lex.europa.eu/legal-content/en/TXT/PDF/?uri=CeleX:32009l0128&from=en (That establishes a framework for Community action to achieve the sustainable use of pesticides).


state will invest in logistical structures to make treatments at centralized health posts viable, or if treatment is to be decentralized. Contrary to what occurs in the collision between health protection measures and the environment, what is at play here is health provision towards a determined group of individuals – a type of subject – faced with the limitations of structure and budget in the hands of the state.

on the one hand, generalized considerations of health conditions and the needs of the subject to be protected suggest – when it is equal to individual care – categorical limits in provision. it would be difficult to deny, even in generalized policy, the duty of promoting certain clinical and laboratorial exams to a determined group of patients. Yet, beyond the categorical frontiers, generalizations by which public policy operates lead us towards a utilitarian logic. in these cases, the categorical frontiers of fundamentality tend to retreat in order to retain their strength. strategic decisions related to the distance between specialized centers, strategies for family planning and the media to adopt the distribution of information, must consider the capacity for reaching, in an efficient way, the greatest number of people and producing the best results possible for the majority. if the blind spots of these policies affect the categorical areas, it will be necessary to correct the policies punctually – however, neither ignoring the utilitarian logic of public policies nor, at the other extreme, internalizing environmental demands as if they were categorically protected phenomena.

The difficulties in judicial control of public policies, however, do not boil down to the fact that it is not possible to administrate the complexity and the risk which involve decisions in the matter of public policies at the organizational level of the juridical system.

here, it is about the control of omissions, which ampers the possibilities for the legitimation of the creative use of power by the Judiciary. The suppression of omissions in terms of public policies cannot consider the sum of necessities as synonymous with categorical protection. This would be, in an ideal context, to project such a sum as generalized impositions for the delivery of provisions. Thus, the legitimacy of the Judiciary in the context of omissions is not resolved in the semantics pertaining to principles as if this were capable of reducing the complexity of necessities. under current conditions, the system of justice is barely even marginally successful in administrating the juridical system. a radical modification of decision-making procedures is necessary, making the proposed model for solving problems more relevant still, since it is only when we start from the study of the case that it will be possible to reduce complexity, promoting cognitive opening as much as operative closure, always administrating risk in the decision. The problem is, fundamentally, the axis around which turns the initiation of the trans-subjective/hetero-reflexive dialogue and, from there, the hypercyclic engagement with the system.

From the point of view of the opening, the connection with other normative systems of world society, the resolutions of health organizations and even the provisional form of health systems which operate in other parts of the globe, will


all be relevant for delineating categorical limits of protection, evaluating degrees of omission and separating the contingent from what is necessary. and, even when the control of omissions in fundamental matters is associated with categorical protections of bio-psychic necessities, it does not distance the mediation of systems of communication – notwithstanding it is yelling and pain by which individual fundamentality is communicated. under the perspective of closure, it becomes necessary to evaluate the level of provision that the state gives in a normative infra-constitutional framework which already exists – especially the regulation of the public system of health in Brazil (sus)87 – and the level of effectiveness of these norms. on another level, a compared analysis is necessary for norms and provisions directed towards other similar needs.

Conclusion

indeed, if law still has an emancipatory role, this role passes through the idea of fundamental rights. however, the ideals of peripheral constitutionalism cannot ignore the social complexity of the legal system, the epistemic and societal impossibilities of semantic directives, and the inescapable connection of state law with other systems of world society that are not necessarily territorially defined. The dream of a legal revolution guided by the normative force of principles that reflect supreme values will be no more than a simulacrum for the diabolical uses of symbolic constitutional procedures. To sum up, its proportionality and the methods that support “unity” in “practical agreement” are undoubtedly perfectly adequate for this “staging.”

The proposed theoretical model, by diluting the fundamentality concentrated in semantic reserves of the constitutional text in the flow of meaning between the law and its environment, intends to situate fundamental rights in the place where they can excel in their role and, with this, reinforce their functions, including their “defense.” The myth gives way to a realistic hope. The “locks” decelerate the flow of meaning so that it can be recorded in the complex pragmatics of the legal system, making clear any variations, be they in the social, temporal or objective dimension of meaning. Thus, they prevent mutations from being camouflaged as historical errors of constitutional cognition, while also preventing the law from being the immediate and unreflective result of its environment.

in the collisions involving problems brought on by the Zika virus, the autonomy of the system will not be guaranteed by immediate auto-referencing to principles or constitutional “values.” These end up masking certain discrete elements in the juridical system, alongside the presence of corrupt motives. it is necessary to structure demands coming from the environment of world society in its respective spheres of fundamentality, and to observe the colliding principles in these demands.

87 The rules are available at http://bvsms.saude.gov.br/bvs/publicacoes/progestores/leg_sus.pdf.


The observation of the difference between corruption and efforts of learning presupposes respect for the logics of rationality which operate in each one of these spheres, paying attention to the patterns of collision in formation, the hyper cyclic acceleration of the internal layers of the system which already respond to these collisions and, in view of communicational recursiveness, the thorough verification of the limits of fundamentality already adopted by the system.

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Information about the author

Wálber Araujo Carneiro (Salvador, Brazil) – Professor of legal Theory and Philosophy of law, Federal university of Bahia law school (rua da Paz, s/n, graça, salvador/Ba, CeP 40.150140, Brazil; e-mail: [email protected]).


CHaRaCTERISTICS oF CHanGES In THE CRIMInaL LEGISLaTIon oF RuSSIa anD CHIna

SERGEy MARKUNTSOV,

National Research University Higher School of Economics (Moscow, Russia)

Doi: 10.21684/2412-2343-2018-5-4-90-113

This article explores and compares the changes in the criminal legislation of Russia and China. The author will first examine the history of the development of the criminal legislation of the two countries, identifying their common and distinguishing features in the process. The author will then compare the basic provisions and structure of the criminal codes of Russia and China as objects of comparative legal research. This article further analyzes the scale, direction and dynamics of changes in the provisions contained in the General and Special parts of the criminal codes of the two countries, in detail. It is concluded that the scale and speed of changes in the Criminal Code of the Russian Federation, is far greater compared to the changes in the Criminal Code of the People’s Republic of China, based on various indicators. The author gives general recommendations to the Russian legislator as far as the consideration of scientific developments goes.

Keywords: Criminal Code of the Russian Federation; Criminal Code of the People’s Republic of China; “ideal” reform; “real” reform; criminalization; decriminalization.

Recommended citation: sergey markuntsov, Characteristics of Changes in the Criminal Legislation of Russia and China, 5(4) BriCs law Journal 90–113 (2018).

Table of Contents

Introduction1. Common and Distinctive Features of the Genesis of the Criminal Legislation of Russia and China

SERGEy MARKUNTSOV 91

2. Description of the Structure and Basic Provisions of the Criminal Codes of Russia and China as Objects of Comparative Legal Research3. Comparative Characteristics of the Scale and Direction of Changes in the Provisions of the Criminal Codes of Russia and China4. Comparative Characteristics of the Dynamics of Changes in the Provisions of the Criminal Codes of the Two CountriesConclusion

Introduction

russian-Chinese relations have reached a new, unprecedentedly high level of partnership in today’s era. active interaction in various spheres of society and the study of mutual experience have become significant reasons for the development of these relations in recent years. as this close collaboration has shown, our countries have a lot in common, but at the same time there are also significant differences in their approaches and development trends, including in the context of the development of criminal legislation and criminal law.

1. Common and Distinctive Features of the Genesis of the Criminal Legislation of Russia and China

The foundations of Chinese criminal law in the middle ages and the modern Times were laid down by the Tang Code (Chinese Tan liu shu) and ming (Da minliuy), adopted respectively in 653 and at the end of the 14th century.1 it can undoubtedly be argued that the foundations of russian criminal law were also laid in the medieval period, if we proceed from the premise that the Drevneyshaya Pravda or the original charter of the russkaya Pravda (russian Truth being the oldest source of russian law) (short edition) (the beginning of the 11th century) is almost entirely devoted to russian criminal law.

however, despite their similar origins, the future strategic approaches to the development of domestic criminal law and the laws of the two countries diverged. This is clearly reflected in the words of the 19th century researcher of Chinese legislation v. Kozlov, when he said that:

Chinese criminal laws have kept and to this time the imprint of the greatest antiquity... Drawing on materials for its legislation from the experience of

1 Ахметшин Н.Х. История уголовного права КНР [nail h. akhmetshin, History of Criminal Law of the PRC] 7 (moscow: mZ Press, 2005). See details 高铭暄：中国刑法的形成和完善，北京：北京大学出版社，2012年版。[gao ming suan, Formation and Improvement of Criminal Law of the People’s Republic of China] (Beijing: Beijing university Press, 2012).


thousands of years of meaningful but closed life, China did not need imitations to the peoples of the West...2

This traditional approach of China can be contrasted with the fundamentally different and modern approach of the russian empire in the 19th century, which essentially adopted the basic design of the german criminal law as the basis for its criminal legislation.

in the 20th century, the criminal legislation of russia and China has repeatedly undergone significant changes. in russia, the first code was the Criminal Code of the russian empire of 1903, followed by the Criminal Code of the rsFsr of 1922, its large-scale revision – the Criminal Code of the rsFsr of 1926, and the Criminal Code of the rsFsr of 1960. in China, there was initially the imperial Criminal Code of 1912, the Criminal Code of the republic of China of 1928, followed by its revision, the Criminal Code of 1935, and the Criminal Code of the People’s republic of China (PrC) of 1979.

The adoption of the current Criminal Code of the russian Federation of 1996 was the product of a series of political and socio-economic changes that occurred in the state and society. at the same time, the state and political system of the PrC has not changed. according to some experts, the rapidly changing social situation and the development of criminal law3 was what led to the need for a new Criminal Code of 1997.4 according to other scholars, due to the various sources of criminal law, the criminal legislation of the People’s republic of China was constantly “swelled up,” becoming difficult to comprehend, contradictory and conflicting. Furthermore, the economic realities in the country also changed, demanding the introduction of corrections in the criminal legislation. The particularity of the correction carried out however, was that the legislator of the PrC decided against a profound reform

2 Козлов В.С. Китай. Гражданское и уголовное законодательство: справка об административном и судебном устройстве областей, входящих в состав Китайской империи, и о существующем в стране гражданском и уголовном законодательстве [vladimir s. Kozlov, China. Civil and Criminal Legislation: A Certificate of Administrative and Judicial Structure of the Regions That Make Up the Chinese Empire, and the Existing Civil and Criminal Legislation in the Country] 18 (st. Petersburg: Tip. v. Kirschbaum, 1899).

3 During the period 1980–1997 many criminal laws were adopted to improve the Criminal Code. all these laws can be divided into two groups: purely criminal laws and laws in other branches of law, but containing criminal norms. as for the laws of the first category, the standing Committee of the People’s national assembly adopted 25 such special laws... until 1997, 107 laws were issued that dealt with other problems of regulation of public relations, but containing norms of criminal law (130 norms). For more information see Медведев С.Н. Уголовный кодекс Китайской народной республики 1997 года // Юридические исследования. 2013. № 2. С. 58–59 [stanislav n. medvedev, Criminal Code of the Chinese People’s Republic of 1997, 2 legal research 58 (2013)]. The need to improve the criminal law of the PrC through its full codification served as the reason for the adoption of the new (second in the history of socialistic China) Criminal Code.

4 Id. at 59.


of the Criminal Code of the PrC (the literature suggests that there was no apparent need to carry out an extensive reform). The legislator chose to merely reissue the former Criminal Code of the PrC in a new edition instead.5 even though there are no significant differences in the scientific literature when it comes to the assessment of the reasons for the adoption of the 1997 Criminal Code of the PrC, different opinions are expressed6 on the question of whether this code is an edited version of the 1979 Criminal Code of the PrC or an independent normative legal act. Formally, the 1997 Criminal Code of the PrC is an essentially amended version of the Criminal Code of the PrC of 1979, as evidenced by information on its adoption.7 at the same time, given the extent of the actual changes made in the Criminal Code, the 1997 Criminal Code of the PrC appears to be a new criminal code altogether.

2. Description of the Structure and Basic Provisions of the Criminal Codes of Russia and China as Objects of Comparative Legal Research

The Criminal Code of the PrC, unlike the Criminal Code of the russian Federation, in which five principles of criminal legislation are singled out, specifies only three of these principles. it is essentially all about the principles of legality (article 3),8 equality of persons who committed a crime before the law (article 4) and justice

5 Коробеев А.И., Чучаев А.И. Общая характеристика Уголовного кодекса Китая // Уголовный кодекс Китая: Сборник документов [aleksander i. Korobeev & aleksander i. Chuchaev, General Characteristics of the Criminal Code of China in The Criminal Code of China: Collection of Documents] 8 (a.i. Korobeev & a.i. Chuchaev (eds.), h. Daosyu (transl.), moscow: infra-m; Contract, 2017). on the Criminal Code of China of 1997 as a new edition of the Criminal Code of the PrC of 1979, it is also in the preface to the first edition of this code in russian. See Коробеев А.И. Предисловие // Уголовный кодекс Китайской Народной Республики [aleksander i. Korobeev, Foreword in The Criminal Code of the People’s Republic of China] 3–12 (a.i. Korobeev (ed.), D. vichicov (transl.), st. Petersburg: Yuridichesky tsentr Press, 2001).

6 note that in another publication, co-authors of which are a. Korobeev and a. Chuchaev, already stated that “the current Criminal Code of China was adopted on 14 march 1997 at the 5th session of the 8th national People’s Congress of the People’s Congress; on 1 october 1997, it entered into legal force, becoming the second Criminal Code in the history of the People’s Republic of China [the italics is used by sm]. The first Criminal Code of the People’s republic of China, adopted in 1979, which began operations on 1 January 1980, was a typical example of socialist criminal law.” See Чанхай Л., Коробеев А.И., Чучаев А.И. Уголовный кодекс КНР: совершенствование в процессе реализации (к 20-летию со дня принятия) // lex russica. 2018. № 3. C. 129 [lun Changhai et al., Penal Code of the PRC: Improvement in the Process of Implementation (on the 20th Anniversary of Adoption), 3 lex russica 129 (2018)].

7 adopted at the 2nd session of the national People’s Congress of the 5th convocation on 1 July 1979. amendments were made at the 5th session of the national People’s Congress of the 8th convocation on 14 march 1997. See The Criminal Code of China: Collection of Documents, supra note 5, at 35. here and further quotations of the provisions of the articles of the Criminal Code of the People’s republic of China are given on the basis of the translation proposed in this work.

8 special attention is paid to the analysis of the content of the principle of legality. See 王世洲：第三章——法律原则，《中国现代刑法》总论，北京：北京大学出版社，2011年版。 [Wang shizhou, Modern Criminal Law of China. General Part: Textbook. Chapter 3 “The Principle of Legality”] (Beijing: Beijing university Press, 2011).


(article 5). it is important to note that in accordance with article 3 of the Criminal Code of China, the analogy of the criminal law which existed in the Criminal Code of the PrC of 1979 is abolished.

The Criminal Code of the PrC, as well as the Criminal Code of the russian Federation contains a formal material definition of crime. article 13 of the Criminal Code of the PrC states that

all acts harmful to state sovereignty, territorial integrity and tranquility, aimed at breaking up the state, undermining the power of the people’s democratic dictatorship, overthrowing the socialist system, violating the social and economic order, private or collective property of the working masses, infringing upon personal property of citizens, their personal, democratic and other rights, as well as other acts harmful to society, for which this Code provides for a punishment, are crimes.

The same article in the Criminal Code of the PrC also contains a provision on minor acts. articles 14 and 15 in the Criminal Code of the PrC give definitions of intentional and negligent crimes.

according to article 17 of the Criminal Code of the People’s republic of China, as a general rule on criminal liability, the recognized subjects of criminal liability are persons who have reached the age of 16 and committed a crime.

Persons who have reached the age of 14 and are under the age of 16 are only criminally liable if they have committed an intentional killing, intentional injury, resulting in grave bodily harm or death, committed rape, robbery, drug trafficking, arson, explosion, poisoning.

as far as the age for criminal liability is concerned, the Criminal Code of the russian Federation contains similar provisions. however, according to part 2 of article 20 of the Criminal Code, the list of crimes, for the committing of which there is criminal liability from the age of 14 onwards, is considerably broader. Taking into account relatively recent changes introduced in accordance with Federal law of 24 november 2014 no. 370-FZ and Federal law of 6 July 2016 no. 375-FZ, which expanded the list of crimes for which persons who have reached the age of 14 at the time of the committing of a crime are criminally liable, part 2 of article 20 of the Criminal Code of the russian Federation names 32 such crimes, whereas in paragraph 2 of article 17 of the Criminal Code of China the list of such crimes is four times shorter.

The Criminal Code of the PrC lists only two cases in which the criminality of an act is precluded: the defense of necessity (article 20) and the extreme (absolute) necessity (article 21). recall that list was compiled in accordance with the Criminal Code of the rsFsr of 1960. The current Criminal Code of the russian Federation also


includes injury during the detention of a person who committed a crime, physical or mental coercion, justified risk and execution of the order or directive.

as far the stages of the crime are concerned, the Criminal Code of the republic of China mentions, but unlike the Criminal Code of russia, does not define the preparation for a crime (article 22) and attempt to commit a crime (article 23), but at the same time it does define the concept of voluntary renunciation (article 24). however, in the Criminal Code of the PrC, as opposed to the Criminal Code of the russian Federation, the notion of a completed crime is nowhere to be found.

The “high point” of the Criminal Code of the PrC of 1997, compared with the Criminal Code of the PrC of 1979, is the institution of corporate crimes (paragraph 4 “Crimes Committed by the organization” of Chapter 2 “on Crime” of the Criminal Code of China) or criminal liability of legal persons, which is yet another thing that makes it distinct from the Criminal Code of the russian Federation. on the one hand, it is striking that only two articles of the general Part of the Criminal Code of the PrC are devoted to this institution. on the other hand, one of the articles creates in essence a corresponding legal institution. in particular, according to article 30 of the Criminal Code of China,

criminal responsibility must come for the act committed by the company, enterprise, institution, body, public organization and considered by law as an organized crime.

another article establishes the punishability of legal persons that have committed a corporate crime. as a single punishment, such a legal entity may be fined. a fairly broad list of crimes, for which there is criminal liability of legal persons, is provided for in the special Part of the Criminal Code of the PrC, that can also be established by special laws. in this context, direct managers and other directly responsible employees can be criminally liable on general grounds.

unlike the Criminal Code of the russian Federation, the Criminal Code of the PrC does not contain a definition of punishment and does not define the purposes of its application. Chapter Three “on Punishment” of the Criminal Code of the PrC lists the main types of punishment (article 33) and additional types of punishment (article 34). The main penalties include: supervision, arrest, fixed-term deprivation of liberty, life imprisonment and the death penalty. additional penalties include a fine, the deprivation of political rights and confiscation of property. it is interesting that additional types of punishments can also be used independently. Foreigners who have committed a crime, for example, may be expelled from the PrC as an independent or additional punishment.

The content of Chapter Five “other Provisions” of the Criminal Code of the PrC (articles 90–101) is intriguing, within the framework of which a legal interpretation of a number of concepts used in the code is given, such as public and private property, civil servant, grave bodily injury, etc.


With regard to the above mentioned, the number of articles in the general Part of the Criminal Code of the PrC and the Criminal Code were almost identical (in the original version there were 101 and 104 articles, respectively), but the special Part of the Criminal Code of China had a significantly higher number of articles than the special Part of the Criminal Code of the russian Federation (there were 350 and 256 articles respectively).

it was the special Part of the Criminal Code of the PrC of 1997 that underwent the greatest number of changes in comparison with the Criminal Code of the PrC of 1979. There were eight chapters in the special Part of the Criminal Code of the PrC of 1979, whilst the special part of the current Criminal Code of the PrC of 1997 was divided into 10 chapters. By comparison, the special Part of the Criminal Code of the russian Federation only includes six sections.

The order of the chapters in the special Part of the Criminal Code of PrC corresponds to the fixed priorities of criminal law protection – the chapters begin with crimes against the state, then the society, and they end with crimes against the person. The special Part of the Criminal Code of the PrC starts with the relatively small Chapter one “Crimes against state security” (articles 102–113). This is then followed by Chapter Two, “Crimes against Public safety” (articles 114–139-1), and the largest chapter of the code in terms of the number of articles, Chapter Three “Crimes related to the violation of the economic order of the socialist market” (articles 140–231). Further chapters are arranged in the following way: Chapter Four “Crimes against the rights of the individual and the Democratic rights of Citizens” (articles 232–262-2), Chapter Five “Crimes against Property” (articles 263-276-1), Chapter six “Crimes against the order of government and Public order” (articles 277–367), which is the second largest in terms of the number of articles in the special Part of the Criminal Code of the People’s republic of China, Chapter seven “Crimes against the interests of state Defense” (articles 368–381), Chapter eight “Corruption and Bribery” (articles 382–396), Chapter nine “official Crimes” (articles 397–419) and Chapter Ten “Crimes of servicemen the revolt of the military Duty” (articles 420–451). it is however surprising, that there is no independent chapter devoted to crimes of international character in the special Part of the Criminal Code of the PrC (for example, like the Criminal Code of the russian Federation, which contains section Xii “Crimes against the Peace and security of humanity”).

another feature of the Criminal Code of the PrC is that it contains the additional Part (article 452), which sets out the provisions on the implementation of the Code and its two annexes. annex one contains a list of rules, additional regulations and decisions adopted by the standing Committee of the national People’s Congress of the PrC that are included in the Code, but have lost their force since its introduction . The second annex contains a list of additional regulations and decisions that are still in force, but only with regard to administrative penalties and administrative measures; the provisions on criminal liability included in the Criminal Code of the PrC are no longer in force.


overall, there are a number of both differences and similarities in the structures of the 1996 Criminal Code of the russian Federation and the 1997 Criminal Code of the PrC, as well as in the content of their basic provisions. some of the similarities can partly be attributed to the fact that the formation and development of Chinese criminal law and legislation was certainly influenced by soviet criminal law at the time.

The current Criminal Code of the russian Federation and the Criminal Code of the PrC both came into force in 1997: on 1 January and 1 october respectively. although the Criminal Code of the russian Federation came into force 9 months earlier than the Criminal Code of the PrC, this is considered to be a trivial difference for the purposes of conducting a brief comparative analysis of the quantitative and qualitative changes in the criminal legislation of the two countries.

3. Comparative Characteristics of the Scale and Direction of Changes in the Provisions

of the Criminal Codes of Russia and China

in the past 21 years, the order of the Criminal Code of the russian Federation has changed significantly: there have been amendments and additions introduced to 214 federal laws (by year: 1998 – 2 federal laws, 1999 – 7, 2001 – 8, 2002 – 8, 2003 – 7, 2004 – 5, 2005 – 2, 2006 – 4, 2007 – 10, 2008 – 8, 2009 – 13, 2010 – 22; 2011 – 12, 2012 – 14, 2013 – 22, 2014 – 25, 2015 – 15, 2016 – 14, 2017 – 16 federal laws9). it is remarkable that in the first 15 years, 108 federal laws (or 50.5% of all laws that changed the norms of the Criminal Code of the russian Federation) were introduced in the Criminal Code of the russian Federation, and that 106 further laws were added in just the last six years, amounting to 49.5% of the specified number of laws. Different experts give different figures that characterize the “variability” of the russian criminal law. in particular, according to the estimates of v. Tsepelev, the number of changes made in the Criminal Code of russia reached two thousand.10

lun Changhai notes that throughout the 20 years of the existence of the Criminal Code of China, there have been huge changes in the structure of society, economy, culture and other aspects of life, including the transformation of the criminal justice system. During this period (just over 20 years), the legislative body of the PrC consistently promulgated one separate Criminal law, introduced 10 amendments

9 hereinafter, the calculations changes in the Criminal Code of the russian Federation were made taking into account the amendments and additions introduced by the Federal law of 31 December 2017 no. 501-FZ “on amendments to articles 205 and 207 of the Criminal Code of the russian Federation and article 151 of the Code of Criminal Procedure of the russian Federation.”

10 Цепелев В.Ф. Уголовный закон: современное состояние и перспективы развития // Качество уголовного закона: проблемы Общей части: Монография [valery F. Tsepelev, Criminal Law: Current State and Prospects of Development in Quality of the Criminal Law: Problems of the General Part: Monograph] 12 (a.i. rarog (ed.), moscow: Prospekt, 2016).


to the Criminal Code and 13 criminal legislative comments...11 The total number of changes made to the Criminal Code of the PrC in the last 20 years was 180.12 When comparing the two codes in this respect, in the comparable period that both codes underwent changes, the russian legislator in comparison to the Chinese legislator, adopted about 20 (!) times more laws by which the Criminal Code of the russian Federation was amended and the number of changes made was more than 12 times greater than the changes made by the Chinese.

During the period under review, six of the aforementioned 214 federal laws which were amended in the Criminal Code of the russian Federation, provided for the introduction of new articles in the general Part of the Criminal Code of the russian Federation (they introduced 12 new articles: articles 53.1, 63.1, 72.1, 76.1, 76.2, 80.1, 82.1, 104.1–104.5 of the Criminal Code of the russian Federation (the last five articles were incorporated in the Criminal Code in the following two new chapters: 15.1 “Confiscation of Property” and 15.2 “Judicial Fine”)). at the same time, only three articles were excluded from the general Part of the Criminal Code of the russian Federation (articles 16, 52 and 77 of the Criminal Code of the russian Federation). 77 (or more than 36%) of the above 214 federal laws provided for the introduction of new articles of the special Part of the Criminal Code of the russian Federation, i.e. the introduction of new criminal and legal prohibitions. Thus, in the 21 years of the Criminal Code of the russian Federation, its special Part was supplemented with 11313 (approximately 44%) new articles (based on the fact that the special Part of the Criminal Code initially contained 256 articles), whilst only 10 articles were deleted in total (about 3.9%). over the specified period, the total number of articles of the Criminal Code of the russian Federation increased by 112 and reached 472 articles. Compared to the original 360 articles, there has been a consequent increase of 31.1%.

11 The standing Committee of the national People’s Congress of the People’s republic of China has the right to give explanations to the laws, i.e. legislative comments.

12 Чанхай Л. 20 лет Уголовному кодексу КНР: с 1997 по 2017 гг. // Социология уголовного права и реформирование уголовного законодательства: Сборник статей (материалы iv Международной научно-практической конференции «Социология уголовного права и реформирование уголовного законодательства», состоявшейся 28 сентября 2017 г.) [lun Changhai, 20 Years of the Criminal Code of the PRC: From 1997 to 2017 in Sociology of Criminal Law and Reform of Criminal Law: Collection of Articles (Materials of the IV International Scientific and Practical Conference “Sociology of Criminal Law and Reform of Criminal Law,” held on 28 September 2017)] 156 (e.n. salygin et al. (eds.), moscow: Yurisprudentsiya, 2018).

13 The point is about articles 110.1, 110.2, 116.1, 127.1, 127.2, 128.1, 138.1, 141.1, 142.1, 142.2, 145.1, 151.1, 151.2, 158.1, 159.1–159.6, 170.1, 170.2, 171.1–171.4, 172.1, 172.2, 173.1, 173.2, 174.1, 185.1–185.6, 191.1, 193.1, 199.1–199.4, 200.1–200.3, 201.1, 204.1, 204.2, 205.1–205.6, 212.1, 215.1–215.4, 217.1, 217.2, 222.1, 223.1, 226.1, 228.1–228.4, 229.1, 230.1, 230.2, 234.1, 235.1, 238.1, 240.1, 242.1, 242.2, 243.1–243.3, 258.1, 263.1, 264.1, 267.1, 271.1, 274.1, 280.1, 282.1–282.3, 283.1, 284.1, 285.1–285.4, 286.1, 291.1, 291.2, 292.1, 298.1, 314.1, 322.1–322.3, 325.1, 327.1, 327.2, 330.1, 330.2, 354.1, 361 of the Criminal Code of the russian Federation.


The Сriminal Code of the PrC initially contained 452 articles, 101 of which were part of its general Part, with the special Part containing 350 articles and the additional Provisions containing one article. During the period under review, the general Part of the Criminal Code of the PrC, under amendments no. 8 and no. 9, was supplemented with two articles (articles 17-1 and 37-1 of the Criminal Code of China), regulating thereby the possibility of criminal sentencing for persons over 75 years old and the possibility of the prohibition to engage in the relevant profession. The introduction of new articles in the special Part of the Criminal Code of the PrC was practically envisaged by all amendments (with the exception of amendment no. 2). in the last 20 years of the Chinese Criminal Code, its special Part was supplemented by 37 (approximately 11%) new articles (articles 120-1–120-6, 133-1, 135-1, 139-1, 162-1, 162-2, 169-1, 175-1, 177-1, 185-1, 205-1, 210-1, 224-1, 234-1, 244-1, 253-1, 260-1, 262-1, 262-2, 276-1, 280-1, 284-1, 286-1, 287-1, 287-2, 291-1, 307-1, 308-1, 388-1, 390-1, 399-1, 408-1 of the Criminal Code of the PrC), while only one article was excluded from it (article 199 of the Criminal Code of the People’s republic of China, which in essence contains a specially qualified composition of certain types of fraudulent activities, drawn up on the basis of committing them on an especially large scale or inflicting especially serious damage to the state or national interests, and the punishment of which was imprisonment or the death penalty and confiscation of property). During the specified period, the total number of articles of the Criminal Code of the People’s republic of China increased by 38, amounting to a mere total increase of 8.4%. in summary, over the comparable period of time, there were almost three times fewer new articles introduced in the special Part of the Criminal Code of the PrC, compared with the new articles introduced in the special Part of the Criminal Code of the russian Federation.

as far as the special Part of the Criminal Code of the russian Federation is concerned, the most new articles in relative terms (i.e. in comparison with the total number of articles originally contained in the corresponding section of the Criminal Code) were introduced in section viii “economic Crimes” of the Criminal Code of the russian Federation (36 articles or about 76.5%) (the section contained 47 articles in its original version). section iX “Crimes against Public safety and Public order” of the Criminal Code of the russian Federation had the greatest increase in the number of its articles in absolute terms (38 articles or about 54%) (the original version consisted of 70 articles). section X “Crimes against state Power” of the Criminal Code of the russian Federation had an increase of 24 articles or approximately 43% (the section originally contained 56 articles), while section vii “Crimes against the Person” of the Criminal Code of the russian Federation was supplemented with only 13 new articles (approximately 24.5%, with the section originally containing 53 articles) and section Xii “Crimes against Peace and human security” of the Criminal Code of the russian Federation was supplemented with two articles (25%) (in the original version, the section includes eight articles). at the same time, only 10 articles were


removed from the special Part of the Criminal Code of the russian Federation during the period under review. half of all articles in the special Part of the Criminal Code of the russian Federation, which are no longer in force (five out of ten), were contained in section viii of the Criminal Code (articles 159.4, 173, 182, 188, 200 of the Criminal Code), three articles (articles 129, 130, 152 of the Criminal Code) were contained in section vii of the Criminal Code, one article was contained in section iX of the Criminal Code (article 265 of the Criminal Code) and section X of the Criminal Code (article 298 of the Criminal Code).

at this point, an analysis will follow on the position of new articles in the chapters of the special Part of the Criminal Code of China and a comparison with the distribution of articles in the special Part of the Criminal Code of the russian Federation will be made. The same number of articles (nine each) was introduced in Chapter Two “Crimes against Public security” and Chapter Three “Crimes related to the violation of the economic order of the socialist market.” however, in relative terms, these chapters had an increase of approximately 35% and 10% in their articles respectively (in the original version, Chapter Two contained 26 articles and Chapter Three included 92 articles). one should nonetheless take into account that Chapter six of “Crimes against governance and Public order” had eight articles added to it (or approximately 9%) (originally this chapter contained 91 articles) and the majority of prohibitions contained in the articles were based on the structure of the Criminal Code of the russian Federation refers to crimes relating to public security and public order (section iX of the Criminal Code of the russian Federation). although the framework of Chapter Five “Crime against Property” of the Criminal Code of the PrC on prohibited crimes is based on the structure of the Criminal Code of the russian Federation and evidently refers to crimes in the sphere of economy (section viii of the Criminal Code), there was only one article added to it (article 276-1 of the Criminal Code of China). in both absolute and relative terms, a relatively small number of new articles was introduced in Chapters Three and Five of the Criminal Code of China, possibly due to the economic sphere in China being subject to very detailed penal regulation. This is evidenced, in particular, by the fact that the original wording of Chapter Three of the Criminal Code contained almost three times more articles than the original version of Chapter 22 of Crimes in the sphere of economic activity of the Criminal Code (92 and 32 articles respectively). Two articles (articles 388-1 and 390-1 of the Criminal Code of the PrC) (or approximately 13%) were added to Chapter eight “Corruption and Bribery” (initially the Chapter included 15 articles) and two more articles (articles 399-1 and 408-1 of the Criminal Code of China) (or about 9%) were added to Chapter nine “official Crimes” (initially the Chapter included 23 articles). it should be noted that the crimes listed in Chapters eight and nine of the Criminal Code of the PrC can be conditionally compared with crimes against state power contained in the structure of the Criminal Code of the russian Federation (section X).


Chapter six and Chapter Four “Crimes against the rights of the individual and the Democratic rights of Citizens” had an increase of six articles (or approximately 19%) (the original version of Chapter Four contained 31 articles). in the Criminal Code of the russian Federation, these crimes relate to crimes against the individual (section vii). Therefore, during the period under review, Chapter Two of the Criminal Code of the PrC experienced the greatest increase of new articles, both in absolute and relative terms. it is noteworthy that Chapter Four comes second, as far as the number of newly introduced articles in relative terms is concerned. it would seem that in this sphere of life of the Chinese society over the past 20 years, there have been significant changes that required the reform of criminal law regulation. in this regard, academics rightly point out that

despite the fact that the chapter on crimes against these social values (the speech on Chapter Four of the Criminal Code of China) is not in the first place, as far as the system of the special Part of the Criminal Code of China is concerned, this does not diminish its potential.14

it should be noted that the only article that lost its force in the Criminal Code of the PrC (article 199) was contained in Chapter Three “Crimes related to the violation of the economic order of the socialist market.” more detailed data characterizing the designated aspect of the reform of sections in the special section of the Criminal Code of the russian Federation and the chapters of the special Part of the Criminal Code of the People’s republic of China are presented in the table below.

section of the CC of the rF

The amount of introduced new articles

The amount of introduced new articles

in absolute terms

% of original

amount if articles

Chapter of the CC of the PrC

in absolute terms

% of original

amount if articles

section vii “Crimes against

the Person”

13 (articles 110.1, 110.2, 116.1, 127.1, 127.2, 128.1, 138.1, 141.1, 142.1, 142.2, 145.1, 151.1,

151.2 of the CC of the rF)

24,5

Chapter 4 “Crimes

against the Person and the

Democratic rights of Citizens”

6 (articles 234-1, 244-1, 253-1, 260-1, 262-1,

262-2 of the CC of the PrC)

19

14 See Changhai et al. 2018, at 135.


section viii

“economic Crimes”

36 (articles 158.1, 159.1–159.6, 170.1, 170.2, 171.1, 171.2, 172.1, 172.2, 171.3, 171.4, 173.1, 173.2, 174.1, 185.1–185.6, 191.1, 193.1, 199.1, 199.2, 199.3, 199.4, 200.1–200.3, 201.1, 204.1,


76,5

Chapter 3 “Crimes

related to the violation of

the economic order of

the socialist market”

9 (articles 162-1, 162-2, 169-1, 175-1, 177-1, 185-1, 205-1,

210-1, 224-1 of the CC of the

PrC)

10

Chapter 5 “Crimes against

Property”

1 (article 276-1 of the CC of the

PrC)7

section iХ “Crimes against Public safety

and Public order”

38 (articles 205.1–205.6, 212.1, 215.1–215.4, 217.1, 217.2, 222.1, 223.1, 226.1, 228.1–228.4, 229.1, 230.1, 230.2, 234.1, 235.1, 238.1, 240.1, 242.1, 242.2, 243.1–243.3, 258.1, 263.1, 264.1, 267.1, 271.1,


54

Chapter 2 “Crimes

against Public safety”

9 (articles 120-1–120-6, 133-1, 135-1, 139-1 of the CC of the

PrC)

35

Chapter 6 “Crimes against

the Public administration

and Public order”

8 (articles 280-1, 284-1, 286-1, 287-1, 287-2, 291-1, 307-1,

308-1 of the CC of the PrC)

9

section Х “Crimes against

state Power”

24 (articles 280.1, 282.1–282.3, 283.1, 284.1, 285.1–285.4, 286.1, 291.1, 291.2, 292.1, 298.1, 314.1, 322.1–322.3, 325.1, 327.1, 327.2,

330.1, 330.2 of the CC of the rF)

43

Chapter 1 “Crimes

against state security”

0 0

Chapter 8 “Corruption and Bribery”

2 (articles 388-1, 390-1 of the CC

of the PrC)13

Chapter 9 “malfeasance”

2 (articles 399-1, 408-1 of the CC

of the PrC)9


section Хi “Crimes against military service”

0 0

Chapter 7 “Crimes

against the interests of the

state”

0 0

Chapter 10 “Crimes by

Combatants against Their military Duty”

0 0

section Хii “Crimes against

the Peace and

security of humanity”

2 (articles 354.1, 361 of the CC

of the rF)25 – – –

ToTal 113 44 37 11

The comparison of Chapter 21 “Crimes against Property” and Chapter 22 “Crimes in the sphere of economic activity” included in section viii “economic Crimes” of the Criminal Code of the russian Federation with Chapter Three “Crimes related to the violation of the economic order of the socialist market” and Chapter Five “Crimes against Property” of the Criminal Code of the People’s republic of China is quite clear. The comparison between section X “Crimes against state Power” of the Criminal Code of the russian Federation and Chapter one “Crimes against state security,” Chapter eight “Corruption and Bribery” and Chapter nine “official Crimes” of the Criminal Code of China, may at first glance seem rather restricted and qualified. This is, first and foremost, due to the fact that Chapter eight of the Criminal Code of China, based on its name,15 contains not only provisions against bribery, but also other corruption crimes. Based on the russian legal definition of the concept of corruption, proposed in paragraph 1 of article 1 of the Federal law of 25 December 2008 no. 273-FZ, it follows that corruption crimes can also be committed beyond the sphere of public administration. one of the basic corruption crimes is commercial bribery. article 204 formulates the prohibition of the committing of an appropriate crime and is contained in Chapter 23 “Crimes against the interests of service in Commercial and other organizations” of section viii in the structure of the Criminal Code of the russian Federation. however, in this case the russian rather broad definition of corruption will be followed, which as explained,

15 note that the title of this chapter in various translations of the Criminal Code of the PrC in russian sounds uniformly, without alternative.


can be found in paragraph 1 of article 1 of the Federal law of 25 December 2008 no. 273-FZ “on Combating Corruption.” according to article 382 of the Criminal Code of China: “assignment, embezzlement, fraudulent acquisition or unlawful acquisition of public property by public employees by using public servants with the use of their official advantages” is regarded as corruption. at the same time, an analysis of the penal prohibitions contained in Chapter eight of the Criminal Code of the PrC showed that the overwhelming majority of them involve civil servants, i.e. they are aimed at protecting state power. Thus, it is argued that the aforementioned comparison of section X of the Criminal Code with Chapters one, eight and nine of the Criminal Code of the People’s republic of China is a purposeful and justified one. a comparison of section iX “Crimes against Public safety and Public order” of the Criminal Code with Chapters Two “Crimes against Public security” and six “Crimes against the order of government and Public order” of the Criminal Code of the PrC was made with a certain degree of limitation and exclusion. Chapter six of the Chinese Criminal Code provides not only for prohibitions on crimes related to crimes against public safety and public order, which are contained in section iX of the Criminal Code of the russian Federation. in addition to these prohibitions, which are contained mainly in paragraphs 4–10 and in paragraph 1 of the indicated chapter, the chapter also contains prohibitions in paragraph 2 on “Crimes against Justice” (articles 305–317 of the Criminal Code of China) and paragraph 3 “Crimes against the regime of the state Border” (articles 318–323 of the Criminal Code of the PrC), related to crimes against state power (section X) in the structure of the Criminal Code of the russian Federation. recognizing this element of qualification in the comparison between Chapter six of the Criminal Code of the PrC and section iX of the Criminal Code of the russian Federation, it should be emphasized that most of the crimes enshrined in Chapter six of the Criminal Code of the PrC have public order and public safety as a common theme, and similar prohibitions are included in section iX of the Criminal Code of the russian Federation. incidentally, the translation of the title of Chapter six of the Criminal Code of the PrC in russian, is given in some sources as “Crimes against Public order and order of government”16 or “Crimes against the order of Public administration.”17

at this point, an analysis of the reforms of the Criminal Code of the russian Federation and the Criminal Code of the PrC, in terms of the number of new crimes introduced, will follow. The number of crimes contained in the special Part of the Criminal Code of the russian Federation has increased over the comparable period from 534 to 890, by 66.666% (or by 2/3). section viii of the Criminal Code of the russian Federation had the greatest number of crimes added to it, increasing by more

16 See Особая часть УК КНР // Бизнес в Китае: информационно-аналитический портал [a special Part of the Criminal Code of China, Business in China: informational and analytical Portal] (nov. 14, 2018), available at http://asia-business.ru/law/law1/criminalcode/code/#6.

17 Korobeev 2001, at 186.


than two (more precisely 2.05) times in the last 21 years – from 102 to 209 crimes. in section iX of the Criminal Code of the russian Federation, the number of crimes have increased by 1.77 times (from 160 to 283), in section X of the Criminal Code the number of crimes increased by 1.67 times (from 106 to 177), in section Xii of the Criminal Code the number of crimes increased by 1.54 times (from 13 to 20) and in section vii of the Criminal Code the number of crimes increased by 1.46 times (from 105 to 153 crimes). in section Xi, the number of crimes (48) remained unchanged. With respect to the Criminal Code of the PrC, experts note that in the 20 years of the Criminal Code, 60 new acts have been criminalized, with the Criminal Code containing only 473 crimes at the present time.18 it should furthermore be taken into account that in the criminal legal doctrine of China, apart from the traditional one, there is a new (systemic) theory of offence.19 issues of the concept and structure of crime are actively discussed by Chinese experts in the field of criminal law. in terms of the number of offences contained in the special Part of the Criminal Code of the russian Federation, the special Part of the Criminal Code of the PrC has changed to a much lesser extent than the special Part of the Criminal Code of the russian Federation.

4. Comparative Characteristics of the Dynamics of Changes in the Provisions of the Criminal Codes of the Two Countries

having described the scale of the reforms of the Criminal Code of the russian Federation and the Criminal Code of the PrC that occurred over a comparable time period in general terms, it is also deemed necessary to examine the dynamics of this process in detail. it should be noted that the Criminal Code of the russian Federation and the Criminal Code of the People’s republic of China have been reformed in different ways and at different points in time.

The legislative body of China introduced amendments to the Criminal Code at least once a year on average, with the longest interval between making changes being 1646 days and the shortest interval only 120 days.20 overall, the frequency of amendments to the Criminal Code of the PrC is at a high level.21 The longest period of non-introduction of any changes in the Criminal Code of the russian Federation was 608 days, but at the same time, there were also several times when several

18 Changhai et al. 2018, at 134.19 For more details see 何秉松，(俄)科米萨罗夫，(俄)科罗别耶夫主编：中国与俄罗斯犯罪构成理

论比较研究，北京：北京大学出版社2009年版。[The Doctrine of the Elements of the Crime in the Criminal Law of China and Russia: Rather-Legal Research] (v.s. Komissarov et al. (eds.), Beijing: Beijing university Press, 2011).

20 赵秉志：中国刑法立法晚近20年之回眸与前瞻，中国法学研究2017年第5期48页。 [Zhao Binji, Review and Perspectives of Chinese Legislation in the Field of Criminal Law over the Past 20 Years, 5 Jurisprudence of China 48 (2017)].

21 Changhai 2018, at 157.


federal laws were adopted on the same day, thereby introducing amendments and additions to the Criminal Code of the russian Federation. one such example would be the 23 april 2018, when four Federal laws were signed, which then introduced amendments and additions to the Criminal Code of the russian Federation (Federal laws no. 96-FZ, no. 99-FZ, no. 111-FZ and no. 114-FZ). The first three of these Federal laws came into force simultaneously, on 4 may 2018.

it is widely known that the first changes in the Criminal Code were introduced in 1998. it is however fascinating that the changes introduced by Federal law of 27 may 1998 no. 77-FZ22 (the first law that introduced changes to the Criminal Code of the russian Federation) can be attributed to the results, so to speak, of an “ideal reform” (which ends with the introduction or exclusion of a provision in the Criminal code). The main indicators of the “ideal reform” of the Criminal Code of the russian Federation and the Criminal Code of the PrC can be found earlier on in the article. a distinction between an “ideal” and a “real” reform should be drawn, with the latter referring to the amendment of existing provisions in the Criminal Code, as opposed to the introduction of new regulations or the exclusion of existing ones. This kind of reform will be explored at a later stage in this article.

The average “speed” of the “ideal” reform of the Criminal Code of the russian Federation has increased by approximately four times in the last seven years. in the first fourteen years (2/3 of the term) of the Criminal Code, about three new articles per year were introduced, whilst around 12 such articles were added in the last incomplete seven years (about 1/3 of the validity period). it is interesting that exactly 12 new articles were introduced in the special Part of the Criminal Code of the russian Federation in 2017.

The dynamics of the “ideal” reform of the Criminal Code of the russian Federation will now be explored in detail. in 1998, there was one article introduced in the special Part of the Criminal Code of the russian Federation and three new ones in 1999. in 2000, as well as in 2005 and 2007, no new articles were introduced in the Criminal Code of the russian Federation. in 2001, the special Part of the Criminal Code was supplemented with only one and in 2002 with four new articles. in accordance with the Federal law of 8 December 2003 no. 162-FZ,23 11 articles were introduced

22 Федеральный закон от 27 мая 1998 г. № 77-ФЗ «О дополнении Уголовного кодекса Российской Федерации статьей 215.1» // Собрание законодательства РФ. 1998. № 22. Ст. 2332 [Federal law no. 77-FZ of 27 may 1998. on the supplementation of the Criminal Code of the russian Federation with article 215.1, legislation Bulletin of the russian Federation, 1998, no. 22, art. 2332].

23 Федеральный закон от 8 декабря 2003 г. № 162-ФЗ «О внесении изменений и дополнений в Уголовный кодекс Российской Федерации» // Собрание законодательства РФ. 2003. № 50. Ст. 4848 [Federal law no. 162-FZ of 8 December 2003. on amendments and additions to the Criminal Code of the russian Federation, legislation Bulletin of the russian Federation, 2003, no. 50, art. 4848]. recall that this law was changed 265 articles, of which 227 articles of the special Part of the Criminal Code. assessing the scale of the changes, many scientists spoke only of the new Criminal Code of the russian Federation.


in the Criminal Code of the russian Federation (including one article in the general Part of the Criminal Code of the russian Federation – article 80.1). in accordance with this Federal law, seven articles were deleted from the Criminal Code of the russian Federation for the first time – articles 16, 52, 77, 152, 182, 200, 265). in the same year, in 2003, two more articles were added to the special Part of the Criminal Code of the russian Federation. overall, 13 new articles were added to the Criminal Code of the russian Federation in 2013. This made 2013 an exceptional year, seeing as never before had there been so many new articles introduced in the Criminal Code of the russian Federation all at once. in 2004 and 2008, only one new article was introduced in the special Part of the Criminal Code of the russian Federation. in 2006, five new articles were introduced in the Criminal Code of the russian Federation, three of which (Chapter 15.1 “Confiscation of Property” (articles 104.1– 104.3 of the Criminal Code of the russian Federation)) were introduced in the general Part of the Criminal Code of the russian Federation. in 2009, four such articles (including one article in the general Part of the Criminal Code – article 63.1 of the Criminal Code) were introduced. in 2010, the special part of the Criminal Code was supplemented with six new articles, whilst in the same year one article was excluded from it (article 173 of the Criminal Code of the russian Federation). 14 articles were further introduced in accordance with Federal law of 7 December 2011 no. 420-FZ24 of the Criminal Code of the russian Federation, (including three articles in the general Part of the Criminal Code of the russian Federation). in accordance with the same law, four articles (articles 129, 130, 188 and 298 of the Criminal Code of the russian Federation) were removed from the special Part of the Criminal Code of the russian Federation. after 2011, the pace of the “ideal” reform of the Criminal Code of the russian Federation changed significantly. in 2012, 13 new articles were introduced into the special Part of the Criminal Code of the russian Federation. in 2013 and 2014, 14 new articles were introduced in the special Part of the Criminal Code of the russian Federation, and one more article (article 72.1 of the Criminal Code) was added to the general Part of the Criminal Code of the russian Federation in 2013. in 2015, only four new articles were added to the special Part of the Criminal Code of the russian Federation. 14 new articles were introduced in the Criminal Code in 2016, three of which were introduced in the general part (Chapter 15.2 “Judicial Fine” (articles 104.4–104.5 of the Criminal Code) and article 76.1 of the Criminal Code). in the same year, article 159.4 was removed from the special Part of the Criminal Code of the russian Federation. in 2017, 12 new articles were introduced in the special Part of the Criminal Code of the russian Federation (articles 110.1,

24 Федеральный закон от 7 декабря 2011 г. № 420-ФЗ «О внесении изменений в Уголовный кодекс Российской Федерации и отдельные законодательные акты Российской Федерации» // Собрание законодательства РФ. 2011. № 50. Ст. 7362 [Federal law no. 420-FZ of 7 December 2011. on amendments to the Criminal Code of the russian Federation and Certain legislative acts of the russian Federation, legislation Bulletin of the russian Federation, 2011, no. 50, art. 7362].


110.2, 151.2, 171.3, 171.4, 142.2, 199.3, 199.4, 201.1, 274.1 and 285.4 of the Criminal Code of the russian Federation). For greater clarity, the data describing the speed of the “ideal” reform of the Criminal Code of the russian Federation is presented in the table below.

The amount of intro-duced articles

The Year of introduction of new articles

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

2017

in general Part of the CC of the rF

0 0 0 0 0 0 1 0 0 3 0 0 1 0 3 0 1 0 0 3 0

in section vii of the CC of the rF

1 4 2 1 1 4

in section viii of the CC of the rF

1 1 3 3 3 3 6 2 3 1 5 5

in section iХ of the CC of the rF

0 1 1 1 3 2 1 4 3 9 6 2 3 2

in section Х of the CC of the rF

1 2 2 1 1 2 2 3 3 4 1 1 1

in section Хi of the CC of the rF

1 1

in section Хii of the CC of the rFin the special Part of the CC of the rF

0 1 3 0 1 4 12 1 0 2 0 1 3 6 11 13 14 14 4 11 12

Total in the CC of the rF

0 1 3 0 1 4 13 1 0 5 0 1 4 6 14 13 15 14 4 14 12

We must now consider the dynamics of the “ideal” reform of the Criminal Code of the People’s republic of China. The first new (not contained in the original version) article is article 162-1, establishing liability for concealing or deliberately destroying accounting documents, books, financial and accounting reports under aggravating circumstances. it was first introduced in the Criminal Code of the PrC in accordance with the law “amendments no. 1”, adopted on 25 December 1999. Two more new articles (articles 120-1 and 291-1) were added to the special Part of the Criminal Code


of the People’s republic of China in accordance with the law “amendments no. 3” of 29 December 2001. one new article was introduced in accordance with “amendments no. 4” of 28 December 2002 and “amendments no. 5” of 28 February 2005. eight articles were introduced in the special Part of the Criminal Code of the People’s republic of China at once, in accordance with “amendments no. 6” of 29 June 2006 and four articles were introduced according to “amendments no. 7” of 28 February 2009. one new article (article 17-1) was introduced in the general Part and six articles in the special Part of the Criminal Code of the PrC, in accordance with “amendments no. 8” of 25 February 2011. The peak of the ideal reform of the Criminal Code of the PrC is associated with “amendments no. 9” of 29 august 2015, which together with “amendment no. 8” introduced one article in the general Part of the Code, and 14 new articles in its special Part, in that way making it the year with the highest number of new articles. The unusually large number of amendments made to the Criminal Code of the PrC as a result of the law “amendments no. 9” is partly explained by the fact that no amendments at all were carried out between 2012–2014. For clarification purposes, the data illustrating the speed of the “ideal” reform of the Criminal Code of the PrC is also presented in the table below.

The amount of intro-duced articles

The Year of introduction of new articles

3 m

onth

s of 1

997

1998

1999

(am

endm

ents

no.

1)

2000

2001

(am

endm

ents

nos

. 2 &

3)

2002

(am

endm

ents

no.

4)

2003

2004

2005

(am

endm

ents

no.

5)

2006

(am

endm

ents

no.

6)

2007

2008

2009

(am

endm

ents

no.

7)

2010

2011

(am

endm

ents

no.

8)

2012

2013

2014

2015

(am

endm

ents

no.

9)

2016

2017

(am

endm

ents

no.

10)

in the general Part of the CC of the PrC

0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 1 0 0

in Chapter 1 оf the CC of the PrC

in Chapter 2 of the CC of the PrC

1 2 1 5


1 1 4 1 2



1 1 2 1 1


1


1 7



1 1


1 1


in the special Part of the CC of the PrC

0 0 1 0 2 1 0 0 1 8 0 0 4 0 6 0 0 0 14 0 0

Total in the CC of the PrC

0 0 1 0 2 1 0 0 1 8 0 0 4 0 7 0 0 0 15 0 0

There are some things which should be noted about the “real” reform of the Criminal Code of the russian Federation and the Criminal Code of the PrC. in the Criminal Code of the russian Federation, the relative number of articles that existed in the original wording of the code, to which amendments or additions were made (often repeatedly), is more than 85%. at the same time, there were 62 articles amended in the general Part of the Criminal Code of the russian Fede-ration (or approximately 60% of the total number of articles that existed in the original version of the general Part of the Criminal Code of the russian Federation). There are currently 245 articles in the special Part of the Criminal Code of the russian Federation (or 96.5% of the total number of articles that existed in the original version of the special Part of the Criminal Code). according to lun Changhai, the percentage of edited articles is 39.82% overall. among them, changes were made to 23 articles in the general Part of the Criminal Code of China, with the percentage of the edited articles being 22.77%. 145 articles were further edited in its special Part, with the


percentage of the edited articles being 41.42%. in the two decades of the existence of the Criminal Code of China, almost 40% of its content has been modified.25

Conclusion

in terms of assessing the changes and additions made to the russian criminal law, the opinion of scholars who believe that numerous changes to the Criminal Code have made the russian criminal law unsystematic should be followed. in particular, v. luneev came to the conclusion that russian criminal law-making does not have a historical, economic, criminological, sociological, purely scientific and legal basis or tradition. it is unstable, situational, superficial, scientifically unreasonable and, as a result of all the above, is not effective and even criminogenic.26

Concerning the assessment of changes and additions to the Chinese criminal law, Pan Dunmei rightly points out that the changes and additions to the Chinese Criminal Code are caused by a real need in the Chinese society and they will lay the foundation for further development and improvement of Chinese criminal legislation.27 The specifics of the implementation of changes and additions to the Criminal Code of the PrC, in comparison with the changes implemented in the Criminal Code of the russian Federation, is manifested in the fact that they have a systemic nature, with the changes being well-thought-out and more rational. Perhaps one of the reasons for this success was the negative experience of lawmaking, when it came to the Criminal Code of the PrC of 1979. in this sense, the russian legislator has made the same mistakes more often. on the other hand, the Chinese legislator approaches the evaluation of the introduction of a new legal criminal norm very carefully. This is clearly displayed not only by the introduction of a relatively small number of new articles in the Criminal Code of the PrC over a long period of time, but also due to the fact that only one article lost its force in the CPC in the comparable period of time.

in this regard, let us recall that even more than thirty years ago, v. Kudryavtsev wrote that in order to make a decision in the legislative practice to classify a conduct as criminal and punishable, it is necessary to consistently consider at least four specific issues, namely: a) whether there is a need (necessity) for a legislative prohibition of such actions; b) whether this prohibition is permissible within the existing public and legal system; c) if it is feasible from a practical point of view; d) whether it is a useful (expedient) prohibition, taking into account the complexity of all other social, political,

25 Changhai 2018, at 157.26 Лунеев В.В. Истоки и пороки российского уголовного законотворчества [viktor v. luneev, Origins

and Vices of Russian Criminal Lawmaking] 216 (moscow: Yurlitinform, 2014).27 Дунмэй П. Изменения уголовного законодательства Китая: общая характеристика // lex russica.

2016. № 8. С. 87 [Pan Dunmei, Changes in China’s Criminal Legislation: A General Characteristic, 8 lex russica 87 (2016)].


psychological, etc. circumstances.28 The need for a prohibition, its permissibility, practical feasibility and expediency are the four aspects, which according to the academic are the scientific prerequisites of criminalization. it seems that the Chinese legislator has carefully learned and applied this lesson and principles, bearing in mind the rather unsuccessful codification linked with the Criminal Code of the PrC of 1979. in this regard, the russian legislator does not only ignore the scientific guidelines on criminalization and decriminalization that exist in the domestic doctrine of criminal law and criminology, but continues to make the same mistakes, thus being stuck in the eternal search for “his own way,” making changes and additions to the Criminal Code of the russian Federation with the method of constant trial and error.

in this regard, it is necessary to take a leaf out of the Chinese legislator’s book, as far as their thoughtfulness, balance and consistency in making decisions on changing the criminal law is concerned. it is necessary to understand that through the introduction of another penal prohibition, it is impossible to solve many social problems, “criminal law is more than an acute tool” for these purposes.

it seems that each penal prohibition should be subject to a legal assessment in the process of both lawmaking and law enforcement. The necessity of a prohibition, its permissibility, practical feasibility, and most importantly expediency, as the four scientific prerequisites for criminalization, should, in the writer’s opinion, be continuously assessed, and not only when an appropriate penal prohibition is introduced. in this sense, it is obvious that it has long been necessary to “revise” the Criminal Code of the russian Federation through the prism of the scientific prerequisites for criminalization.

References

Ахметшин Н.Х. История уголовного права КНР [akhmetshin n.h. History of Criminal Law of the PRC] (moscow: mZ Press, 2005).

Козлов В.С. Китай. Гражданское и уголовное законодательство: справка об административном и судебном устройстве областей, входящих в состав Китай-ской Империи, и о существующем в стране гражданском и уголовном законо-дательстве [Kozlov v.s. China. Civil and Criminal Legislation: A Certificate of Adminis-trative and Judicial Structure of the Regions That Make Up the Chinese Empire, and the Existing Civil and Criminal Legislation in the Country] (st. Petersburg: Tip. v. Kirsch-baum, 1899).

高铭暄：中国刑法的形成和完善，北京：北京大学出版社，2012年版。 [gao ming suan, Formation and Improvement of Criminal Law of the People’s Republic of China] (Beijing: Beijing university Press, 2012).

28 Кудрявцев В.Н. Научные предпосылки криминализации // Криминология и уголовная политика [vladimir n. Kudryavtsev, Scientific Prerequisites for Criminalization in Criminology and Criminal Policy] 105 (s.g. Kelina et al. (eds.), moscow: Publishing house igiP of the ussr academy of sciences, 1985).


何秉松，(俄)科米萨罗夫，(俄)科罗别耶夫主编：中国与俄罗斯犯罪构成理论比较研究，北京：北京大学出版社2009年版。 [The Doctrine of the Elements of the Crime in the Criminal Law of China and Russia: Rather-Legal Research] (v.s. Komissarov et al. (eds.), Beijing: Beijing university Press, 2011).


Sergey Markuntsov (Moscow, Russia) – Professor, Department of Public law Disciplines, Faculty of law, national research university higher school of econo-mics (3 Bol’shoy Trekhsvyatitel’skiy pereulok, moscow, 109028, russia; e-mail: [email protected]).


COMMENTS

TRanSPaREnCY anD ConFIDEnTIaLITY REQuIREMEnTS In InVESTMEnT TREaTY aRBITRaTIon

AZHAHAM PERUMAL SARAVANAN,

Indian Institute of Technology Kharagpur (Kharagpur, India)

SUBRAMANIAN RAMAMURTHy SUBRAMANIAN,

Indian Institute of Technology Kharagpur (Kharagpur, India)

Doi: 10.21684/2412-2343-2018-5-4-114-138

The values of confidentiality and transparency are often invoked in the theory and practice of investment treaty arbitration. Transparency is considered to be one of the key aspects of good governance and corporate social responsibility. It includes the obligation of the host state to publish all the legal rules, regulations and other statutory requirements affecting investors. Confidentiality is considered the hallmark and unique feature of arbitration as a dispute resolution mechanism. However, it is difficult to balance these two values, in principle due to the difference in the various investment arbitration cases, as well as the high degree of public interest involved in such proceedings. The competing interests between transparency and confidentiality have significantly increased in the recent past, and the difficulty lies in drawing a medial line between them. There is also debate as to what extent non-disputing parties are allowed to participate in investment arbitration, and what the essential requirements are to admit them.

It is in this connection that this article makes an in-depth analysis of how investment arbitration frameworks have approached the questions of transparency, confidentiality and amicus curiae participation over the years. The article assesses and explores similar issues within the International Convention on the settlement of investment disputes between States and nationals of other States, 1965 (ICSID), the North American Free Trade Agreement, 1994 (NAFTA) and the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, 1978. The study also makes a critical analysis

AZHAHAM PERUMAL SARAVANAN, SUBRAMANIAN RAMAMURTHy SUBRAMANIAN 115

of celebrated cases falling within each category. The article further elaborates the trans-parency requirements in the U.S. Model Bilateral Investment Treaty (BIT), 2012, and the recently adopted Indian Model BIT, 2015. The study is very significant because the United Nations has recently adopted the Convention on Transparency in Treaty-based Investor-State Arbitration, 2014 (Mauritius Convention), which ensures transparency and public accessibility to investor-state arbitration.

Keywords: bilateral investment treaty; confidentiality; ICSID Convention; investment treaty arbitration; NAFTA; transparency; UNCITRAL Arbitration Rules.

Recommended citation: azhaham Perumal saravanan & subramanian ramamurthy subramanian, Transparency and Confidentiality Requirements in Investment Treaty Arbitration, 5(4) BriCs law Journal 114–138 (2018).

Introduction

Transparency is considered to be one of the key aspects of good governance and corporate social responsibility. it requires the government to publish all documents and avoid secrecy in its administration. in a general sense, the term “transparency” is not immediately associated with international law. however, it has lately become a foundation of international law due to the active participation of public and non-governmental organisations (ngos) in globa l governance.1 since the 2000s, increasing recognition has been given to transparency in international dispute settlement processes. This has been the case with amicus curiae briefs. Transparency is an evolving concept and has become increasingly evident in the practice of investor-state dispute settlement (isDs). The term “transparency” in international investment law connotes that host states have an obligation to publish all of the legal rules, regulations and other statutory requirements affecting investors.2 it is pertinent to note that in relation to amicus curiae briefs, World Trade organization (WTo) decisions have undeniably influenced investment treaty arbitral awards.3

1 andrea Bianchi, On Power and Illusion: The Concept of Transparency in International Law in Transparency in International Law 1 (a. Bianchi & a. Peters (eds.), Cambridge: Cambridge university Press, 2013).

2 rudolf Dolzer & Christoph schreuer, Principles of International Investment Law 133 (oxford: oxford university Press, 2008); see the discussion in Joachim Delaney & Daniel B. magraw, Procedural Transparency in The Oxford Handbook of International Investment Law 756 (P. muchlinski et al. (eds.), oxford: oxford university Press, 2008); also see Christina Knahr & august reinisch, Transparency versus Confidentiality in International Investment Arbitration – The Biwater Gauff Compromise, 6(1) law and Practice of international Courts and Tribunals 97, 110 (2007); see The energy Charter Treaty, 2080 u.n.T.s. 95, art. 20 (entered into force 16 april 1998); also see maupin’s adaptations of “transparency” definition in Julie a. maupin, Transparency in International Investment Law: The Good, the Bad, and the Murky in Transparency in International Law, supra note 1, at 149.

3 laurence Boisson de Chazournes & rukia Baruti, Transparency in Investor-State Arbitration: An Incremental Approach, 2(1) Bahrain Chamber for Dispute resolution international arbitration review 59, 69 (2015).


on the other hand, confidentiality is considered the hallmark and unique feature of arbitration as a dispute resolution mechanism. however, it has different dimensions in the context of investor-state disputes. Confidentiality in international investment law means the evidence, claims, documents, counterclaims, any other information prepared for and exchanged during the course of arbitration, awards, and any other decisions cannot be disclosed to any third parties. it also restricts the participation of amicus curiae in the arbitral process.4

it is significant to note that in the recent past the investment treaty arbitral tribunals have witnessed the increased participation of ngos as non-disputing parties in order to gain access to these forums as amicus curiae. The acceptance of amicus briefs clearly shows the public interest and principles of transparency. however, it is noted that confidentiality still remains a general rule in investment arbitration, because amicus curiae are not allowed to take part in the arbitration proceedings and also refused access to documents. But the competing values between confidentiality and transparency have significantly increased in the recent past, and the difficulty lies in drawing a medial line between them.5 There is also debate as to what extent non-disputing parties are allowed to participate in investment arbitration, and what the essential requirements are to admit them.

it is in this connection that this paper reiterates how investment arbitration frameworks have approached questions of transparency, confidentiality and amicus curiae participation over the years. in line with the central theme of this paper, section 1 sets the legal framework governing transparency in investment arbitration. section 2 examines the practice of transparency, confidentiality and public interest representation in the north american Free Trade agreement (naFTa) rules. section 3 assesses and explores similar issues within the international Convention on the settlement of investment disputes between states and nationals of other states (iCsiD) framework. The study also makes an in-depth analysis of celebrated cases falling within each category. section 4 elaborates the transparency requirements in the united nations Commission on international Trade law (unCiTral) framework including recently adopted unCiTral rules on Transparency, 2013 and the mauritius Convention on Transparency, 2014. The final section, section 5, of the paper suggests a number of possible ways to resolve the competing interests between transparency and confidentiality.

4 loukas mistelis, Confidentiality and Third Party Participation: UPS v. Canada and Methanex Corp v. United States in International Investment Law and Arbitration: Leading Cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law 173 (T. Weiler (ed.), london: Cameron may, 2005).

5 Cindy g. Buys, The Tensions Between Confidentiality and Transparency in International Arbitration, 14(1–2) american review of international arbitration 121, 136 (2003); also see the discussion in Federico ortino, External Transparency of Investment Awards, online Proceedings, siel – Working Paper no. 49/08 (2008); for a discussion on concerns about the legitimacy of isDs, Florentino P. Feliciano, The Ordre Public Dimensions of Confidentiality and Transparency in International Arbitration: Examining Confidentiality in the Light of Governance Requirements in International Investment and Trade Arbitration, 87 Philippine law Journal 1, 11 (2013); see the critique on the system in Kirsten mikadze, Uninvited Guests: NGOs, Amicus Curiae Briefs, and the Environment in Investor-State Dispute Settlement, 12(1) Journal of international law and international relations 35, 66 (2016).


1. Legal Framework Governing Transparency in International Investment Arbitration

Transparency plays a vital role in many of the on-going debates in international investment law such as those concerned with fair and equitable treatment, expropriation, compensation, full protection and security, and publication of awards.6 Transparency also touches on the feasibility of amicus curiae participation in investor-state dispute settlement proceedings, access to information and documents, and publication of investment arbitral awards.

notable international legal instruments such as the iCsiD Convention, 1965, the united nations Convention on the recognition and enforcement of Foreign arbitral awards, 1958 (the new York Convention), naFTa, 1994 as well as the unCiTral arbitration rules, 1976 all play a significant role in ensuring transparency in the investment arbitration system. The comprehensive examination of relevant provisions of transparency, confidentiality and amicus requirements are laid down in Table 1 below.

it is pertinent to note that while these legal instruments are accessible to everyone, the state of affairs under stand-alone “bilateral investment treaties” (BiTs) are worked out in closed processes and controlled by government bureaucrats. The earlier scenario of reduced public participation in investment arbitration changed after 1995 with civil societies strongly registering their participation in investment arbitration through amicus curiae submissions.7 This situation has led to the conducting of mandatory public review while drafting a new model BiT.

2. Chapter Eleven of NAFTA

naFTa aimed at creating a trilateral trade group between the usa, Canada and mexico. in particular, Chapter eleven of the agreement sought to protect foreign investors from discrimination by host states and to facilitate settlement of investor-state disputes. it may be noted that this is one of the first such agreements to allow foreign investors to directly challenge the host state through an arbitral mechanism.8 Therefore, investors can initiate arbitration pursuant to any one of the methods stipulated in article 1120, either through the iCsiD Convention, 1965 or the additional Facility rules of iCsiD, 1978 or the unCiTral arbitration rules, 1976.

6 Delaney & magraw 2008, at 756–758; also see noah rubins, Opening the Investment Arbitration Process: At What Cost, for What Benefit? in The International Convention on the Settlement of Investment Disputes (ICSID): Taking Stock After 40 Years 124, 125 (r. hofmann & C.J. Tams (eds.), Baden-Baden: nomos, 2007).

7 maupin 2013, at 151–152.8 north american Free Trade agreement, 32 i.l.m. 289 and 605, arts. 1119–1120 (entered into force 1 Janu-

ary 1994).


naFTa is notable for some of its transparency provisions. For instance, article 1126(13) requires that “public register of arbitration claims… be maintained by the naFTa secretariat.”9 however, it also provides that publication of arbitral awards is possible only with the consent of the parties.10 nonetheless, in practice this provision is restricted only to the arbitration claims initiated against mexico, as the other naFTa members often resort to the publication of awards even without the consent of the parties.11 in the case of public hearings, all naFTa members are committed to open hearings with the mandatory consent of the disputing parties.12

Table 1: Comparison of the relevant Provisions on Transparency, Confidentiality and Amicus Curiae Participation in naFTa, iCsiD and the unCiTral

arbitral Framework (including recent amendments and revisions)

Sl. no.

Require-ments naFTa ICSID unCITRaL

1 access to Documents, and Publication of awards, orders and Decisions of the Tribunal

Article 1137(4) and Annex 2(b):– The award can be made publicly available, subject to the redaction of confidential and other protected information.

requirements for publication of other documents provided in Article 1137(4):– Without consent, if the respondent is either the usa or Canada.– With consent, if mexico is a respondent

Article 48(5) of the Convention and Rule 48(4) of the Additional Facility (Arbitration) Rules:– Prohibits the publication of awards without the consent of the parties.

– however, iCsiD can publish excerpts of the legal reasoning, even without the consent of the parties

Article 3 of 2013 Rules:– Wide range of documents mandatory and automatically disclosed to the public, but subject to certain exceptions mentioned in article 7.

– The award can be made publicly available even without the consent of the parties.

Article 34(5) of 2010 Rules and Article 32(5) of 1976 Rules:– The award can be made publicly available with the consent of the parties

9 J. anthony vanDuzer, Enhancing the Procedural Legitimacy of Investor-State Arbitration Through Transparency and Amicus Curiae Participation, 52(4) mcgill law Journal 681, 683 (2007).

10 The iCsiD rules of Procedure for arbitration Proceedings, Doc. iCsiD/15 (april 2006), r 48(4) (“iCsiD arbitration rules”); The united nations Commission on international Trade law (unCiTral) arbitration rules, u.n. Doc. a/31/17, art. 32(5) (entered into force 28 april 1976) (hereinafter unCiTral arbitration rules).

11 andrea J. menaker, Piercing the Veil of Confidentiality: The Recent Trend Towards Greater Public Partici-pation and Transparency in Investor-State Arbitration in Arbitration Under International Investment Agreements: A Guide to the Key Issues 129, 129–131 (K. Yannaca-small (ed.), oxford: oxford university Press, 2010).

12 Worthy of note here is the joint statement issued in 2003 by Canada and the united states declaring their intent to consent to open hearings in every case. mexico issued a similar statement in 2004.


2 open Hearings

Article 1126(13):– naFTa Parties (respondent) have already consented to making the hearings open to the public; the only requirement is that claimants have to approve this

Rule 32(2):– Disputing parties have a right to deny public access to open hearings

Article 25(4) of 1976 Rules and Article 28(3) of 2010 Rules:– require mandatory consent from both of the disputing parties.

Article 6 of 2013 Rules:– The default position in all substantive hearings is public, subject to certain exceptions mentioned in article 7

3 Confiden-tiality(also Exceptions)

Articles 2102 and 2105:– The information or documents affect the national security and are contrary to essential security, thus to be kept confidential

Rule 6(2):– The declaration obligates the arbitrator to keep all the information confidential.

– it also includes the contents of the award coming to the knowledge of the arbitrator.

Rule 15(1):– no third persons except members of the tribunal are allowed to take part in the deliberations of the tribunal

Article 7(2) of 2013 Rules:– Provides an exhaustive list of confidential or protected information which will give rise to the exception for transparency.

Article 25(4) of 1976 Rules:– The hearings shall be held in camera, and the parties have to maintain the confidentiality of all documents submitted for the purpose of court proceedings.

Article 28(3) of 2010 Rules:– all hearings are to be kept confidential

4 Third- Party Sub-missions

Article 1128:– upon written notice to the disputing parties, third parties may make submissions to the tribunal.

– They can be filed for the purpose of interpretation of the naFTa agreement

Rule 37(2):– after consulting the disputing parties, the tribunal may allow amicus submissions.

– They can be filed by a person or entity that is not a party to the dispute.

– The subject matter should be within the scope of the dispute

Article 4 of 2013 Rules:– Provides the standard for a third party who is not a disputing party and not a party to the treaty.

Article 5 of 2013 Rules:– sets a standard for non-disputing parties, who are not a disputing party, but a party to the Treaty.

Articles 4(5) and 5(4) of 2013 Rules:– submissions shall neither disrupt the proceedings nor unduly burden either party.

Articles 4(6) and 5(5) of 2013 Rules:– ensures the equal opportunity of the disputing parties to convey their observations in the amicus submissions


2.1. Amendments and Clarificationsas noted above, the naFTa agreement did not incorporate very detailed

provisions providing for transparency in the investor-state dispute settlement process. however, the relevant provisions were later incorporated through amendment of naFTa in 2003 and supported by clarifications by the Free Trade Commission (FTC) in october 2001,13 200314 and 200515 providing for the participation of amicus curiae in investment arbitration.16 The FTC clarification of 2005 (i.e. FTC statement, 2005) contained various procedural aspects regarding submissions from “a person or entity that is not a disputing party” (para. 1 of the FTC statement, 2005). The scope of the FTC statement, 2005 is much broader than article 1128 of naFTa, and the content of the statement is similar to the additional procedures adopted by the WTo’s appellate Body in the EC-Asbestos dispute.17

2.2. Practice Under NAFTABefore the emergence of naFTa, confidentiality was the norm and transparency

the exception. however, the present situation is quite uncertain, as neither naFTa nor other arbitral rules presuppose the status of confidentiality in matters of arbitration.18 in practice, arbitral tribunals have generously allowed transparency, provided that openness should maintain a balance between the confidentiality concern and the transparency burden of investors.19 The subject matter of disclosure may vary from case to case: for instance, in Ethyl v. Canada20 the naFTa tribunal restricted disclosure only to the investor’s statement of claim, statement of defence and the orders of the tribunal.21 But the transcripts of hearings, evidence and other submissions remained confidential. later, in the case of Pope & Talbot v. Canada the permissible list of

13 naFTa Free Trade Commission, notes of interpretation of Certain Chapter 11 Provisions, 31 July 2001 (nov. 1, 2018), available at http://www.sice.oas.org/tpd/nafta/Commission/Ch11understanding_e.asp.

14 statement of the Free Trade Commission on non-Disputing Party Participation, 7 october 2003 (nov. 1, 2018), available at https://goo.gl/ZvcQ1D.

15 statement of the Free Trade Commission on non-Disputing Party Participation, 44 i.l.m. 796 (2005).16 alexis mourre, Are Amici Curiae the Proper Response to the Public’s Concerns on Transparency in Investment

Arbitration?, 5 law and Practice of international Courts and Tribunals 257, 259 (2006).17 Christina Knahr, Transparency, Third Party Participation and Access to Documents in International

Investment Arbitration, 23(2) arbitration international 327, 340 (2007).18 maupin 2013, at 155; also see the comparison of the iCsiD Framework and the naFTa/unCiTral

Framework examined in Table 1 of this paper.19 Loewen Group, Inc. and Raymond L. Loewen v. United States of America, iCsiD Case no. arB(aF)/98/3,

26 June 2003, paras. 231–233; vanDuzer 2007, at 699.20 Ethyl Corporation v. The Government of Canada, unCiTral (naFTa), award on Jurisdiction, 24 June 1998, 38

i.l.m. 708; it is important to note that this is the first Chapter eleven arbitration instituted before the naFTa Tribunal and administered under the unCiTral arbitration rules, 1976 (hereinafter ethyl award).

21 Id.


disclosures was extended to the written submissions, transcripts of oral submissions, amicus curiae briefs and correspondence from the tribunal.22 in order to understand the current practice, it is important to discuss the celebrated cases in detail.

2.3. Amicus Curiae Briefs Under NAFTAit is important to note that the earlier claims in cases such as Ethyl23 and Metalclad24

were instituted by the parties against each other, and no third parties sought to submit an amicus curiae brief to the arbitral proceedings. The tribunal in the Ethyl case held that no transcripts or accounts of oral submission should be published without permission of the parties.25 however, in Metalclad the tribunal entirely rejected mexico’s contention on confidentiality and held that

neither naFTa nor iCsiD additional Facility rules contain an express restriction on freedom of [the] parties. Though it is frequently said that one of the reasons for recourse to arbitration is to avoid publicity unless the agreement between the parties incorporates such a limitation, each of them is free to speak publicly of the arbitration.26

Following the success of the Metalclad award, non-disputing parties also sought to take part in naFTa Chapter eleven arbitration.27 The first recognition for the participation of amicus curiae in investment arbitration came before the naFTa tribunal in the celebrated case of Methanex Corporation v. USA.28

To validate these arguments, the following subsections will discuss Methanex and other seminal cases.

2.3.1. Methanex v. United States of AmericaThe case relates to the regulation of “methyl tertiary butyl ether” (mTBe) for the

production of gasoline. mTBe is used as a fuel additive and also as a source of octane

22 vanDuzer 2007, at 700.23 The ethyl award.24 Metalclad Corporation v. The United Mexican States, iCsiD Case no. arB(aF)/97/1, 30 august 2000;

it is noted that this is the first Chapter eleven arbitration administered under the iCsiD additional Facility rules, 2000.

25 Para. 21 of the ethyl award; Jack J. Coe, Jr., Transparency in the Resolution of Investor-State Disputes – Adoption, Adaptation, and NAFTA Leadership, 54 university of Kansas law review 1339, 1367 (2006).

26 Metalclad Corporation v. The United Mexican States, iCsiD Case no. arB(aF)/97/1 (iCsiD Procedural order 1), 27 october 1997, para. 13; menaker 2010, at 132; monique Pongracic-speier, Confidentiality and the Public Interest Exception: Considerations for Mixed International Arbitration, 3(2) Journal of World investment 231, 245 (2002).

27 Coe 2006, at 1371.28 Methanex Corporation v. United States of America, unCiTral, decision of the Tribunal on Petitions from

Third Persons to intervene as amici curiae, 15 January 2001 (hereinafter methanex amicus order).


and oxygenate.29 in due course, a scientific study was conducted on mTBe, and the result of the study showed that the use of the chemical-based oxygenates causes a serious threat to the environment and public health. Following this study, in 1999 the state of California imposed a ban on the sale of gasoline manufactured with mTBe.30

The claimant, methanex, was a Canadian company that was considered one of the primary producers of methanol and it used mTBe as one of their components. subsequent to the ban imposed by California, the methanex Corporation initiated arbitration proceedings against the united states under Chapter eleven of naFTa complaining of expropriation, and asked for us$970 million in compensation for its losses.31 The claimant alleged that the executive action violated various provisions of naFTa, such as article 1102 (national treatment), article 1105 (minimum standard of treatment) and article 1110 (expropriation and compensation).

During the proceedings, the tribunal received first-ever amicus briefs from the Canadian international institute for sustainable Development (iisD), and a joint brief from three us-based ngos, Bluewater network of earth island institute, Communities for a Better environment and the Centre for international environmental law (collectively known as earth Justice). Their request included permission to make oral and written submissions, to participate in the proceedings, to take part in the judicial proceedings, to review memorials and other submissions, and to be given the status of observer.32 The legal basis for these requests relied on article 15 of the unCiTral arbitration rules, 1976.33

The tribunal heard the petitions together in view of the similarities in the submissions.34 The tribunal relied on the discretion and “procedural flexibility” of the unCiTral arbitration rules to determine the authority of the tribunal to accept amicus curiae submissions.35 The tribunal ultimately accepted the written submissions from the petitioners and stated that it had jurisdiction to address the amicus standing

29 Federico ortino, The Impact of Amicus Curiae Briefs in the Settlement of Trade and Investment Disputes in Economic Law as an Economic Good: Its Rule Function and Its Function Tool in the Competition of Systems 310 (K.m. meessen et al. (eds.), munich: sellier, 2009).

30 andrew newcombe & axelle lemaire, Should Amici Curiae Participate in Investment Treaty Arbitrations?, 5 vindobona Journal of international Commercial law and arbitration 22, 24 (2001).

31 mistelis 2005, at 192.32 Jorge e. vinuales, Amicus Intervention in Investor-State Arbitration, 61(4) Dispute resolution Journal

72, 74 (2006); also see Tomoko ishikawa, Third Party Participation in Investment Treaty Arbitration, 59(2) international & Comparative law Quarterly 373, 398–399 (2010).

33 art. 15(1) of the unCiTral arbitration rules states that, “subject to these rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at any stage of the proceedings each party is given a full opportunity of presenting his case.”

34 Knahr 2007, at 330.35 Paras. 26 and 27 of the methanex amicus order.


under article 15(1) of the unCiTral arbitration rules.36 The tribunal strongly relied on the Carbon Steel dispute,37 wherein the appellate Body held that it had the power to accept amicus briefs under article 17.9 of the understanding on rules and Procedures governing the settlement of Disputes (Dsu). The tribunal furthermore examined the legal provisions of naFTa on the issue of amicus submissions and observed that no provision in Chapter eleven either explicitly supports or rejects the amicus submissions.38 accordingly, the tribunal was convinced that “the legal nature of arbitration remains wholly unchanged” even after the admission of third-party submissions.39

however, the determination of other requests such as to participate in proceedings, to review memorials and to declare observer status raised serious debate over issues of confidentiality and privacy. The tribunal realised the importance of public concerns in respect of the arbitration taking place and observed that

there is an undoubtedly public interest in this arbitration, therefore the arbitral process could benefit from being perceived as more open or trans-parent or conversely be harmed if seen as unduly secretive.40

in this regard, the tribunal’s willingness to accept amicus submissions not only supports this arbitration matter in particular, but also the arbitral process in general.41 The tribunal decided that it had the power to accept only amicus curiae submissions, and rejected all other requests made by the petitioners.42

2.3.2. United Parcel Service of America Inc. v. Canada43

The united Parcel service (uPs) is a us-based courier company incorporated under the laws of the state of Delaware. uPs initiated arbitration proceedings against Canada for unfair competitive practices. The claimants alleged that Canada Post had acquired a monopoly in the parcel and courier services sector throughout Canada, and that the government had failed to ensure free and fair competitive markets, thereby breaching its obligations set down in naFTa, such as the principle of national treatment stipulated

36 Paras. 31 and 53 of the methanex amicus order; also see the discussion in ortino 2009, at 311.37 united states – imposition of Countervailing Duties on Certain hot-rolled lead and Bismuth Carbon

steel Products originating in the united Kingdom, WT/Ds138/aB/r, adopted on 7 June 2000.38 Para. 39 of the methanex amicus order.39 Id. para. 30.40 Id. para. 39.41 ishikawa 2010, at 379; also see Knahr 2007, at 331.42 Para. 48 of the methanex amicus order.43 United Parcel Service of America Inc. v. Canada, unCiTral, award on Jurisdiction, 22 november 2002

(hereinafter uPs award on Jurisdiction).


in articles 1102 and 1202, fair and equitable treatment, full protection and security requirements referred to in article 1105, and the monopolies and state enterprises provisions mentioned under article 1502(3)(a) and (d), and article 1503.44

subsequently, the tribunal received amicus briefs from the Canadian union of Postal Workers, a Canada-based trade union, and the Council of Canada. The petitioners requested the tribunal add them as a standing party, and if that option was not available, to grant them permission to participate in the arbitral proceedings as amicus curiae.45 The petitioners raised two important issues before the tribunal: firstly, whether the petitioners can be added to the proceedings as parties; secondly, whether the tribunal can accept amicus briefs under the unCiTral rules. To justify their locus standi, the petitioners argued that they had a direct public interest in the subject matter, and also that they had pursued their legal arguments under article 15(1) of the unCiTral arbitration rules.46 The disputing parties contended that the tribunal should not agree with the request of the petitioners to allow them to stand as a third party.47 The parties, however, later agreed that the tribunal has the discretion to accept amicus briefs, subject to the limitations of the tribunal.48

The tribunal firstly emphasised its power to add parties to the arbitration taking place, and it clearly stated that “the arbitration might be different from the private, contract-based, narrowly focused norm, neither naFTa nor other relevant provisions provided the basis to accept the petitioners as standing parties.”49 Therefore, it rejected the petitioner’s request to stand as a third party to the dispute.50 The tribunal secondly analysed the discretionary power of the tribunal to accept amicus curiae submissions. While doing so, the tribunal found that it had indeed the discretion to accept amicus curiae briefs which came within the ambit of article 15(1) of the unCiTral arbitration rules.51 access to the public hearing and documents can be granted only with the consent of the parties, and there was no such agreement that arose in this case. Therefore, the tribunal refused to grant all other requests made by the petitioners.52

44 mistelis 2005, at 191–192.45 Pongracic-speier 2002, at 255.46 Knahr 2007, at 332.47 Paras. 6–10 of the uPs award on Jurisdiction.48 Id. it is worth mentioning here that the usa also argued the same view as the disputants that the

tribunal should not authorise granting the petitioners the status of parties under Chapter eleven of naFTa, but they could accept amicus curiae submissions under the unCiTral arbitration rules. in contrast, mexico had the different opinion that the petitioners should neither be granted the status of parties nor could amicus briefs be accepted from them.

49 Paras. 36–42 of the uPs award on Jurisdiction; also see the critique in mistelis 2005, at 193–194.50 Para. 43 of the uPs award on Jurisdiction.51 Id. para. 6; Jorge e. vinuales & Folrian grise, Amicus Intervention in Investor-State Arbitration: A Con-

temporary Reappraisal in Handbook on International Arbitration and ADR 445 (american arbitration association, huntington, n.Y.: Jurisnet, 2010).

52 Paras. 67 and 73 of the uPs award on Jurisdiction; Pongracic-speier 2002, at 256.


2.4. AnalysisBoth the Methanex tribunal and the UPS tribunal held that they had no power

to add third parties to the arbitration proceedings. however, they acknowledged the importance of public concern and supported the participation of third parties as amicus curiae. The Methanex tribunal firmly upheld the need for transparency in Chapter eleven arbitration proceedings. it is, however, important to note that both of the tribunals failed to address how their powers were to be exercised while dealing with amicus curiae submissions. Following the Methanex and UPS awards, the FTC issued a clarification statement in 2003 which facilitated the participation of non-disputing parties in naFTa arbitrations.53

3. Transparency Provisions in the ICSID Framework

The main objective of the iCsiD Convention is to promote international cooperation for economic development and to establish a better arbitral forum to settle disputes arising in connection with foreign investment. The Convention also laid down detailed procedures, rules and institutional support to conduct arbitral proceedings.54 The iCsiD arbitration rules are regularly used as a procedural tool in most of the investor-state arbitral proceedings. however, the practice of the iCsiD tribunals on amicus submissions has developed in a direction similar to that of the naFTa tribunals. Therefore, it is important to discuss the evolution and development of arbitral jurisprudence on transparency and public participation in arbitration proceedings administered under the iCsiD Convention and iCsiD additional Facility rules. in this regard, the following subsections discuss the relevant iCsiD provisions governing transparency, and examine the iCsiD tribunal’s approach on transparency, with the help of celebrated cases.

3.1. Rules on Access to DocumentsThe iCsiD Centre publishes the award only with the consent of the parties, as

required under article 48(5) of the Convention.55 The text of the award is available on the iCsiD website and it can also be published in the ICSID Review – Foreign Investment Law Journal provided that the parties to the dispute have consented.56 in any case, the Centre makes available the excerpts of the legal reasoning of the tribunal in its publications. it is also suggested that if one party refuses the publication of the award, the other

53 also see vanDuzer 2007, at 710–712.54 Christoph h. schreuer, The ICSID Convention: A Commentary 823 (Cambridge: Cambridge university

Press, 2009).55 also see Table 1 of this paper for a comparison of the iCsiD framework and the unCiTral arbitration rules.56 art. 53 of the iCsiD additional Facility rules; also see the discussion in Peter malanczuk, Confidentiality

and Third-Party Participation in Arbitration Proceedings under Bilateral Investment Treaties, 1(2) Contem-porary asia arbitration Journal 183, 192 (2008); see generally giuseppe Bianco, Article 2. Publication of Information at the Commencement of Arbitral Proceedings in Transparency in International Investment Arbitration: A Guide to the UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration 80 (D. euler et al. (eds.), Cambridge: Cambridge university Press, 2015).


party may submit the award for publication in other international legal sources, such as international legal materials, iCsiD reports or Journal du Droit International.57 The Centre has to treat all other decisions of the tribunal, including preliminary decisions, procedural orders, or recommendations of provisional measures, in the same manner as if they were final awards.58

3.2. Amendment to the ICSID Arbitration Rules, 2006The iCsiD secretariat published a discussion paper in 2004 that called for greater

transparency in the iCsiD arbitral system.59 The discussion paper suggested that member states amend the iCsiD arbitration rules, which would ameliorate the active participation of non-disputing parties in the iCsiD arbitral system. Based on the recommendations of the iCsiD secretariat, rules 32(2), 37(2) and 48(4) of the iCsiD arbitration rules were amended in 2006.60

Firstly, paragraph 2 of rule 32 was amended with respect to amicus curiae submissions; the mandatory requirement of consent was removed, and the amended rule provides that

unless either party objects, the Tribunal, after consultation with the secretary-general, may allow other persons, besides the parties, their agents, counsel and advocates, witnesses and experts during their testimony, and officers of the Tribunal, to attend or observe all or part of the hearings, subject to appropriate logistical arrangements. The Tribunal shall for such cases establish procedures for the protection of proprietary or privileged information.61

Secondly, paragraph 2 of rule 37 was amended by adding the title submissions of non-Disputing Parties.62 The revised rule states that

57 The iCsiD secretariat incorporated this provision in art. 48(4) through an amendment in 2006; see generally malanczuk 2008, at 193.

58 Federico ortino, Transparency of Investment Awards – External and Internal Dimensions in Transparency in International Trade and Investment Dispute Settlement 119, 121 (J. nakagawa (ed.), london: routledge, 2013); also see schreuer 2009, at 82.

59 See the discussion in the World Bank, Working Paper of the iCsiD secretariat, suggested Changes to the iCsiD rules and regulations, 12 may 2005 (nov. 1, 2018), available at http://www.worldbank.org/icsid/052405-sgmanual.pdf; amanda l. norris & Katina e. metzidakis, Public Protests, Private Contracts: Confidentiality in ICSID Arbitration and the Cochabamba Water War, 15 harvard negotiation law review 31, 72 (2010).

60 The iCsiD additional Facility rules, 10 april 2006 (nov. 1, 2018), available at https://icsid.worldbank.org/en/Documents/icsiddocs/aFr_english-final.pdf.

61 richard happ, ICSID Rules in Institutional Arbitration: Article-by-Article Commentary 963 (r.a. schütze (ed.), münchen: C.h. Beck, 2013).

62 Id. at 969.


after consulting both parties, the Tribunal may allow a person or entity that is not a party to the dispute to file a written submission with the Tribunal regarding a matter within the scope of the dispute.63

The tribunal shall consider three requirements to determine whether to accept or reject the submissions from non-disputing parties, which was adopted in the Aguas Argentinas case:64 (a) the submissions would assist the tribunal in the determination of a factual or legal issue, and it would also bring a new perspective or insight which should be different from that of the disputing parties; (b) the subject matter of submissions should fall within the scope of the dispute; (c) the non-disputing parties should have a significant interest in the proceeding.

Thirdly, rule 48(4) was amended to require the prompt publication of excerpts of the legal reasoning of the tribunal. Together, these changes heralded the transparency in the iCsiD process.

3.3. The ICSID’s Approach on Transparencyit is interesting to note that the iCsiD was quite reserved in its approach on

transparency, even after the amendment. also, there have been several instances after the amendment where non-disputing parties have submitted their briefs, and only a few of them have resulted in awards. Thus it is necessary to discuss the most seminal cases in this regard.

3.3.1. Aguas Del Tunari v. Republic of Bolivia65

at the request of the World Bank, Bolivia had decided to privatise the water services in Cochabamba, its third largest city. owing to severe corruption and several other issues, the Bolivian government could no longer afford to make the necessary improvements to supply quality water to the general public.66 as a result, a concession agreement was finalised between the Bolivian government and aguas del Tunari (“adT”), a Bolivian company, on 2 september 1999 for a period of forty years. according to the agreement, adT had to supply a certain volume of good quality water to Cochabamba city and in exchange would receive a 16 per cent return on its investment. The returns would

63 eric De Brabandere, Investment Treaty Arbitration as Public International Law 169 (Cambridge: Cambridge university Press, 2014); see generally Christian schliemann, Requirements for Amicus Curiae Participation in International Investment Arbitration: A Deconstruction of the Procedural Wall Erected in Joint ICSID Cases ARB/10/25 and ARB/10/15, 12(3) The law & Practice of international Courts and Tribunals 365, 370 (2013).

64 schreuer 2009, at 704; happ 2013, at 969; a. saravanan & s.r. subramanian, The Participation of Amicus Curiae in Investment Treaty Arbitration, 5(4) Journal of Civil and legal sciences 1, 6 (2016).

65 Aguas del Tunari, S.A. v. Republic of Bolivia, iCsiD Case no. arB/02/3, Decision on respondent’s objec-tions to Jurisdiction, 21 october 2005 (hereinafter adT decision on objection).

66 norris & metzidakis 2010, at 35.


subsequently be increased each year depending on the u.s. Consumer Price index. it was later discovered that the majority of the shareholders in adT were associated with Bechtel, a u.s.-based construction company. The terms of the contract had not been disclosed to the public.67

The lack of transparency in the agreement led to widespread protests in all parts of Cochabamba city. after five months of continuous agitation, Bechtel left Bolivia and the government rescinded the contract.68 The aggrieved party, aguas del Tunari requested the iCsiD Centre to proceed with arbitration with Bolivia for breach of contract. The claimant sought $50 million to recover losses and damages for the loss of profits.69 The tribunal was constituted in July 2002, and it finally accepted jurisdiction in pursuance of Bolivia and netherlands BiT.70 in august 2002, the tribunal received requests from four ngos71 to participate in the arbitral proceedings as amicus curiae. on behalf of these ngos, earth Justice filed a petition before the tribunal to grant them standing as parties to the dispute, and if this were denied, to allow them to participate in the arbitral proceedings as amicus curiae.72 The petitioners also sought to attend the hearings, make an oral presentation during the hearings, and have access to all documents, which included written submissions, claims and the defences of the parties.73 The petitioners argued that each of them had a direct interest in the subject matter of the dispute.74 The petitioners also contended that their involvement in the proceedings would enhance the level of transparency.75

The tribunal rejected the petitioners’ requests in their entirety, for three reasons. Firstly, the claims were made “beyond the power or the authority of the tribunal to grant,”76 because

67 Krista nadakavukaren schefer, International Investment Law: Text, Cases and Materials 135 (Cheltenham: edward elgar, 2013); stephan Wilske & Willa obel, The “Corruption Objection” to Jurisdiction in Investment Arbitration: Does It Really Protect the Poor? in Poverty and the International Economic Legal System: Duties to the World’s Poor 177 (K. nadakavukaren schefer (ed.), Cambridge: Cambridge university Press, 2013).

68 rene uruena, No Citizens Here: Global Subjects and Participation in International Law 189 (leiden: martinus nijhoff, 2012).

69 Pierre Thielborger, The Right(s) to Water: The Multi-Level Governance of a Unique Human Right 159 (Berlin: springer, 2014); schefer 2013, at 137.

70 also see the adT decision on objection 2005.71 The Coalition for the Defense of Water and life (Coordinadora), the Cochabamba Federation of

irrigators’ organizations, Friends of the earth-netherlands and semaPa sur.72 uruena 2012, at 190.73 Id.74 Knahr 2007, at 338.75 Para. 16 of the adT decision on objection 2005.76 The adT decision on objection 2005, at the order-appendix iii; moshe hirsch, Investment Tribunals

and Human Rights Treaties: A Sociological Perspective in Investment Law Within International Law: Integrationist Perspectives 85, 98 (F. Baetens (ed.), Cambridge: Cambridge university Press, 2013).


the interplay between the two treaties involved (iCsiD and BiT) and the consensual nature of arbitration places the control of the issues [sought to be raised] with the parties, not the Tribunal.77

Secondly, there was no consent from the parties to grant amicus curiae status to the petitioners. Therefore, the tribunal decided that petitioners’ requests cannot be granted78 and stated that at this stage there was no need to seek any assistance from the petitioners.79 The tribunal relied on the provisions of the treaties, observing that

there is no less our duty to follow the structure and requirements of the instruments that control this case.80

This case gained significant importance on transparency requirements in invest-ment arbitration, which was reflected in the Suez-Vivendi and Suez-InterAguas cases.

3.3.2. Aguas Argentinas et al. v. Argentine Republic (“Suez-Vivendi”)81

subsequent to the privatisation of public water service to the claimant, certain restrictive measures were brought about due to the severe economic and financial crisis faced by argentina.82 Confrontations between the parties led to an arbitration claim instituted under BiTs signed by argentina with France, spain and the uK. The arbitration claims were based on the concessions given to spanish, French and British shareholders to operate water and sewage facilities in Buenos aires. in this regard, five ngos83 submitted amicus curiae petitions before the tribunal in order to protect the interests of consumers and the human rights of citizens. Their requests included permission to submit amicus briefs, access the court hearings, present their legal arguments and access case materials.84

77 Communication Between the President of the Tribunal, David D. Caron, and the Director of earth Justice, J. martin, dated 29 January 2003; schreuer 2009, at 705; uruena 2012, at 191.

78 adT decision on objection 2005.79 Knahr 2007, at 338.80 adT decision on objection 2005; see, e.g., the views expressed in nigel Blackaby & Caroline richard,

Amicus Curiae: A Panacea for Legitimacy in Investment Arbitration? in The Backlash Against Investment Arbitration: Perceptions and Reality 262 (m. Waibel (ed.), london: Kluwer law international, 2010).

81 Aguas Argentinas S.A., Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v. The Argentine Republic, iCsiD Case no. arB/03/19, order in response to a Petition for Transparency and Participation as Amicus curiae, 19 may 2005 (hereinafter suez/vivendi amicus order).

82 Blackaby & richard 2010, at 262.83 Asociaciуn Civil por la Igualdad y la Justicia (ACIJ), Centro de Estudios Legales y Sociales (CELS), Center for

International Environmental Law (CIEL), Consumidores Libres Cooperativa Ltda. de Provisiуn de Servicios de Acciуn Comunitaria, and Uniуn de Usuarios y Consumidores.

84 ishikawa 2010, at 383.


initially, the tribunal had to address whether amicus requests were in pursuance of rule 32(2) of the iCsiD arbitration rules.85 it is interesting to note that while the respondent approved the petition, the claimant rejected it in its entirety.86 The tribunal found it difficult to assess its power under article 44 of the iCsiD Convention, as there were no explicit provisions either in the iCsiD Convention or in the iCsiD arbitration rules at that time on amicus curiae briefs. The tribunal further observed that the decision on acceptance of amicus curiae submissions depends on the justification of a three-criteria approach:

i) The appropriateness of the subject matter of the case;ii) The suitability of a non-party to act as amicus curiae in the case, andiii) The procedure in which the submission has been made (to protect the

substantive and procedural rights of the disputing parties).87

With respect to the first criteria, the public interest in the case would justify the acceptance of amicus submissions from the petitioners.88 The tribunal further observed that amicus submissions would increase the transparency and legitimacy of the international arbitral process when they involve states and matters of public interest.89 The tribunal was also satisfied with the second criteria and found that the petitioners do possess “the expertise, experience and independence to be of assistance in the case.”90 similarly, the tribunal noted in respect of the third criteria that the acceptance of amicus submissions, in this case, is part of the “procedural question [and] does not affect the substantive rights of the parties.”91 Thus, the tribunal finally accepted the amicus curiae submissions and confirmed that the dispute raised public interest concern.92 however, the tribunal allowed the petitioners to attend the court hearings, make oral arguments and have access to documents only if the parties reached the required consensus under rule 32(2) of the iCsiD arbitration rules. since no such agreement was made, the tribunal rejected all other requests of the petitioners.93

85 Knahr 2007, at 334.86 Para. 3 of the suez/vivendi amicus order.87 Para. 17 of the suez/vivendi amicus order; schreuer 2009, at 705.88 Paras. 19 and 20 of the suez/vivendi amicus order.89 Paras. 19–22 of the suez/vivendi amicus order; also see in Yusuf Caliskan, Dispute Settlement in

International Investment Law in Implementing International Economic Law: Through Dispute Settlement Mechanisms 148 (Y. aksar (ed.), leiden; Boston: martinus nijhoff, 2011); vanDuzer 2007, at 718.

90 Para. 24 of the suez/vivendi amicus order; also see vinuales & grise 2010, at 455–456.91 Para. 14 of the suez/vivendi amicus order.92 vanDuzer 2007, at 718.93 Paras. 6–7 of the suez/vivendi amicus order; saravanan & subramanian 2016, at 5.


3.3.3. Aguas Provinciales et al. v. Argentine Republic (“Suez-InterAguas”)94

The background of the case is similar to that of the Suez-Vivendi case. it is interesting to note that the tribunal was comprised of the same arbitrators appointed for the Suez-Vivendi case.95 During the proceedings, three individuals along with a mexico-based ngo96 requested the tribunal to accept and grant them amicus curiae status. The tribunal invoked the three-criteria approach adopted in the Suez-Vivendi case. in this case, the dispute was related to the distribution of water and sewerage systems in a metropolitan city and generally considered more appropriate for admitting amicus briefs.97 in order to assess the suitability of the petitioners, the tribunal critically examined their expertise, their interests and their independence in this case.98 after careful examination, the tribunal concluded that the petitioners had failed to provide sufficient information on how they met the qualities required of amicus curiae. accordingly, the tribunal refused to grant permission to the petitioners to make amicus submissions.99

The iCsiD arbitration rules did not expressly address the question on the acceptance of amicus curiae submissions in arbitral proceedings until 2006. Aguas Argentinas was the first iCsiD arbitration to accept amicus curiae briefs, which eventually led to an amendment of the iCsiD arbitration rules in 2006. The revised rules expressly authorise the tribunal to grant access to amicus briefs.

4. Transparency Provisions of the UNCITRAL Arbitration Rules

The united nations Commission on international Trade law (unCiTral) arbitration rules, 1976 provide a detailed and comprehensive framework within which to conduct arbitration proceedings that is widely used in ad hoc arbitrations, including in naFTa Chapter eleven arbitrations. The 1976 rules were revised in 2010100 in order to reflect modern arbitration practices and to “enhance the efficiency of

94 Suez, Sociedad General de Aguas de Barcelona S.A., and InterAguas Servicios Integrales del Agua S.A. v. The Argentine Republic, iCsiD Case no. arB/03/17, order in response to a Petition for Participation as Amicus curiae, 17 march 2006 (hereinafter suez/interaguas amicus order).

95 Knahr 2007, at 339.96 Fundacion para el Desarrollo sustentable (aC sustainable development Foundation) & Professor

ricardo ignacio Beltramino, Dr ana maria herren, and Dr omar Dario heffes.97 Paras. 18–19 of the suez/interaguas amicus order.98 Id. paras. 30–32.99 Para. 34 of the suez/interaguas amicus order; see the critique in Tomoko ishikawa, NGO Participation

in Investment Treaty Arbitration, Connected Accountabilities in Environmental Justice & Global Citizenship 101, 107 (s. vemuri (ed.), oxford: inter-Disciplinary Press, 2009); see generally Chiara ragni, Role of Amicus Curiae in Investment Disputes: Striking a Balance Between Confidentiality and Broader Policy Considerations in Foreign Investment, International Law and Common Concerns 86, 90 (T. Treves et al. (eds.), new York: routledge, 2014).

100 The unCiTral arbitration rules (2010), 49 i.l.m. 1640.


arbitration.” it is important to note that the Commission has initiated several measures to promote transparency in investor-state dispute settlement, such as the adoption of the unCiTral rules on Transparency, 2013101 and the mauritius Convention in 2014,102 the latter being to ensure the effective application of the 2013 rules. This section elaborates the transparency provisions enshrined in these rules.

4.1. The UNCITRAL Arbitration Rules, 1976 and Amended Rules, 2010The 1976 rules, in their original form, employ the most restrictive approach on

aspects of transparency, and under the rules transparency is said to be an exception rather than a rule.103 For instance, article 25(4) provides that “hearings [are] to be held in camera unless the parties agree otherwise.” similarly, article 32(5) states that “the award can be made public only with the consent of the parties.” it is interesting to note that the 1976 rules previously did not contain any express provisions to grant access to documents and court hearings. it was a matter of discretion of the disputing parties, and the tribunals have rarely discussed this issue during proceedings.104

The united nations general assembly made a number of amendments to the unCiTral arbitration rules in 2010 in order to update their content in respect of transparency. The revised rules discussed only a few aspects of transparency. For instance, the tribunal had the power to restrict the opportunity to participate in open hearings unless both the disputing parties consented to it.105 similarly, it was stipulated that no award could be published without the agreement of the parties.106 in matters of transparency and public participation, the unCiTral arbitration rules lagged behind other legal instruments such as naFTa and iCsiD arbitration rules until the adoption of the unCiTral rules on Transparency, 2013.

4.2. The UNCITRAL Rules on Transparency, 2013The u.n. general assembly formally adopted the rules on Transparency on 10 De-

cember 2013,107 and they came into force on 1 april 2014.108 These rules serve as a tool

101 The unCiTral rules on Transparency (2013), g.a. res. 69/116, u.n. Doc. a/res/69/116.102 united nations Convention on Transparency in Treaty-based investor-state arbitration, g.a. res.

69/116 (entered into force 18 october 2017).103 samuel levander, Resolving “Dynamic Interpretation”: An Empirical Analysis of the UNCITRAL Rules on

Transparency, 52(2) Columbia Journal of Transnational law 506, 516 (2014); also see Table 1 of this paper for a detailed comparison of the iCsiD framework and the unCiTral arbitration rules.

104 also see neale Bergman, Transparency of the Proceedings and Third Party Participation in Litigating International Investment Disputes: A Practitioner’s Guide 402 (C. giorgetti (ed.), leiden; Boston: martinus nijhoff, 2014); Knahr & reinisch 2007, at 99.

105 art. 28(3) of the unCiTral arbitration rules (2010).106 Id. art. 34(5); also see levander 2014, at 517.107 The unCiTral rules on Transparency (2013), supra note 101.108 levander 2014, at 523–524.


to enhance transparency by allowing the submission of amicus briefs and providing access to the information submitted to the tribunal.109 The 2013 rules automatically apply to all the BiTs concluded between the member states on or after 1 april 2014, unless the parties have expressly “opted out” of the treaty.110

article 3 of the 2013 rules empowers the tribunal to publish three categories of documents, subject to certain exceptions mentioned in article 7.111 article 3 provides that the documents described in the first category should be mandatorily and automatically disclosed, which includes notice of arbitration, response to the notice of arbitration, statement of claim, statement of defence, written submissions by the disputing parties, transcripts of hearings, orders, decisions and arbitral awards.112 The documents mentioned in the second category may not be automatically disclosed, but upon the request of any person to the arbitral tribunal, they may be disclosed. This category includes witness statements and expert reports.113 on the other hand, any other documents that do not fall under the first or second categories are classified as the third category, which may be ordered to be disclosed at the discretion of the tribunal after consultation with the parties.114

article 6 of the 2013 rules adopted a default rule that all hearings shall be made public, and the arbitrators have the discretion to conduct hearings in camera only in certain exceptional cases provided in article 7, such as to protect confidential information or to maintain the integrity of the arbitral process.115 The arbitral tribunal shall make necessary logistical arrangements to facilitate public access to hearings.116 article 7(2) provides an exhaustive list of confidential or protected information which will give rise to the exception for transparency. This list includes confidential business information, protected information under the treaty, protected information under

109 markus gehring & Dimitrij euler, Public Interest in Investment Arbitration in Transparency in International Investment Arbitration, supra note 56, at 27; see, e.g., the views expressed in gabriele ruscalla, Transparency in International Arbitration: Any (Concrete) Need to Codify the Standard?, 3(1) groningen Journal of international law 1, 19 (2015).

110 art. 1(4) of the unCiTral rules on Transparency dealt with the scope of application.111 Bianco 2015, at 91.112 art. 3(1) of the unCiTral rules on Transparency; Chazournes & Baruti 2015, at 69.113 art. 3(2) of the unCiTral rules on Transparency; also see n. Jansen Calamita & ewa Zelazna, The

Changing Landscape of Transparency in Investor-State Arbitration: The UNCITRAL Transparency Rules and Mauritius Convention in Austrian Yearbook on International Arbitration 271, 288 (C. Klausegger et al. (eds.), Wien: manz, 2016).

114 art. 3(3) of the unCiTral rules on Transparency; also see Bergman 2014, at 391.115 art. 6(2) of the unCiTral rules on Transparency; levander 2014, at 523–527; Klint alexander, Article 6:

Hearings in Transparency in International Investment Arbitration, supra note 56, at 227.116 art. 6(3) of the unCiTral rules on Transparency (2013); Chazournes & Baruti 2015, at 71; also see

Fernando Dias simoes, A Guardian and A Friend? The European Commission’s Participation in Investment Arbitration, 25(2) michigan state international law review 233, 244 (2017).


the law of the respondent state, and any other protected information determined by the tribunal under any law which would impede law enforcement.117

4.3. The United Nations Convention on Transparency in Treaty-based Investor-State Arbitration, 2014 (the Mauritius Convention on Transparency)

The Convention was adopted by the u.n. general assembly on 10 December 2014, and it entered into force on 18 october 2017. The Convention together with the 2013 rules on Transparency contributes to a fair and efficient settlement of investment disputes, to increased transparency and to promoting good governance. The Convention also supplements the existing international investment law instruments with respect to transparency-related obligations. article 2 is a key provision of the Convention. it determines when and how the rules on Transparency, 2013 shall apply to investor-state arbitration for the purposes of the Convention.118 Paragraph 1 of article 2 stipulates the general rule of bilateral or multilateral application. it states that the 2013 rules shall apply to any investor-state arbitration proceedings, whether or not administered under the unCiTral arbitration rules, in which the disputing parties have not made any reservations under article 3(1) of the Convention. Paragraph 2 of article 2 refers to the unilateral offer of application of the rules on Transparency only when the respondent state is a party to the Convention.119

4.4. Adoption of Transparency Principles in the U.S. and Indian Model BITsThe changes brought about in the naFTa agreement influenced not only

the iCsiD framework and the unCiTral arbitration rules, but also several other bilateral investment treaties (BiTs) as well. This paper attempts to explain this by reference to the BiTs of two countries, namely, the usa and india. The usa revised its model BiT in 2012, incorporating key reforms including an obligation for arbitral transparency enshrined in articles 11 and 29 and the provision for acceptance of amicus submissions in article 28. The new provisions incorporated general standards of transparency practices as adopted in the naFTa and iCsiD frameworks.120 in particular, article 29 requires the publication of all pleadings, memorials and briefs submitted by the disputing parties. it also requires public hearings, and the publication of the minutes or transcripts of the hearings of the tribunal, as well as all orders, awards and decisions of the tribunal. similarly, article 28(2) authorises

117 art. 7(2) of the unCiTral rules on Transparency (2013); Thierry P. augsburger, Article 7: Exceptions to Transparency in Transparency in International Investment Arbitration, supra note 56, at 265.

118 also see esme shirlow, Dawn of a New Era? The UNCITRAL Rules and UN Convention on Transparency in Treaty-Based Investor-State Arbitration, 31(3) iCsiD review – Foreign investment law Journal 622, 623 (2016).

119 See generally Jansen Calamita & Zelazna 2016, at 274–278.120 Katia Fach gomez, Rethinking the Role of Amicus Curiae in International Investment Arbitration: How to Draw

the Line Favorably for the Public Interest, 35(2) Fordham international law Journal 510, 529 (2012).


the tribunal to accept oral or written submissions from non-disputing parties for the purpose of treaty interpretation, while article 28(3) empowers the tribunal to accept amicus curiae submissions from any person or entity.121

india has recently adopted a revised model BiT, as a reaction to the “White industries” award and a series of investment disputes initiated against india. The revised model BiT has a number of key proposals to improve the conduct of arbitral tribunals, including the obligations of transparency.122 article 22 authorises the defending party to make “certain documents” publicly available, subject to “redaction of confidential information.” These documents include notice of the dispute, notice of arbitration, pleadings, written submissions on jurisdiction, and transcripts of hearings, decisions, orders and awards of the tribunal.123 The 2015 model BiT also expressly recognises oral and written submissions from a non-disputing party on matters of interpretation of the treaty.124

Conclusion and A Way Forward

after analysing the relevant provisions and celebrated cases, we found that naFTa Chapter eleven arbitrations have taken a leading role in the matters of transparency and the acceptance of amicus briefs. The reason for this could be its limited mem-bership which may result in greater consensus among its member states. We also found that under the u.s. and indian model BiTs transparency is a requirement, not an option. it is also significant to note that these legal instruments equally respect the confidentiality principle, which is considered the hallmark of arbitration. Two seminal cases, Biwater Gauff125 and Piero Foresti,126 have made a valuable contribution to the on-going debate on transparency versus confidentiality.

121 greg hicks, U.S. Model BIT Sets the Global Standard for ISDS Transparency, Center for strategic and international studies, 11 march 2015 (nov. 1, 2018), available at https://www.csis.org/analysis/us-model-bit-sets-global-standard-isds-transparency.

122 Prabhash ranjan, As India’s New Bilateral Investment Strategy Sputters out, the Secrecy and Opaqueness Must Go, The Wire, 1 may 2017 (nov. 1, 2018), available at https://thewire.in/130524/bits-investment-strategy-failure/.

123 The model Text for the indian Bilateral investment Treaty (2015), art. 22(1) (notified on 28 December 2015) (hereinafter model BiT (2015)), also this provision is similar to art. 6 of the unCiTral rules on Transparency (2013).

124 art. 22.4 of the model BiT (2015); also see Kavaljit singh, An Analysis of India’s New Model Bilateral Investment Treaty in Rethinking Bilateral Investment Treaties: Critical Issues And Policy Choices 81, 96 (K. singh & B. ilge (eds.), amsterdam; new Delhi: Both ends, madhyam & somo, 2016); also see a. saravanan & s.r. subramanian, Paradigmatic Shifts in Indian Bilateral Investment Treaties, The indian economist, 6 september 2016 (nov. 1, 2018), available at https://qrius.com/indian-bilateral-investment-treaties/.

125 Biwater Gauff v. United Republic of Tanzania, iCsiD Case no. arB/05/22, 24 July 2008.126 Piero Foresti, Laura de Carli & Others v. The Republic of South Africa, iCsiD Case no. arB(aF)/07/01,

4 august 2010 (hereinafter Piero Foresti award).


The central question of the Biwater Gauff dispute arose on second Procedural order and the minutes of the first session meeting because the respondent published both the documents on the internet without the consent of the claimant.127 The claimant had asked the tribunal for provisional confidentiality measures. after careful examination of all the documents produced during the proceedings, the tribunal firmly held that the “concerns on procedural integrity no longer apply” after rendering the award,128 but that it has to be handled restrictively when the proceedings are pending.129 it is pertinent to note that, on the one hand, the tribunal did not impose any restrictions on publication of documents such as decisions, orders and directions, because “the presumption should be in favour of allowing the publication.”130 on the other hand, the tribunal reached a restrictive conclusion on the publication of another set of documents, such as transcripts, minutes of the hearings, pleadings, written memorials and communication between the parties.131

it is significant to note that the iCsiD tribunal for the first time in Piero Foresti granted an amicus request to access key documents and observed that

this would assist them to focus their submissions upon the issues arising in the case and to see what positions the parties have taken on those issues.132

however, the tribunal refused to permit the petitioners to participate in oral hearings.133 instead, the tribunal limited the role of non-disputing parties to engage in arbitral proceedings.134

127 nathalie Bernasconi-osterwalder, Transparency and Amicus Curaie in ICSID Arbitration in Sustainable Development in World Investment Law 194, 201 (m.-C. Cordonier segger et al. (eds.), alphen aan den rijn, The netherlands: Kluwer law international, 2011); Knahr & reinisch 2007, at 103; also see Yearbook on International Investment Law & Policy 2010–2011 120 (K.P. sauvant (ed.), new York: oxford university Press, 2012).

128 Para. 142 of the Biwater gauff Procedural order no. 3; Knahr & reinisch 2007, at 107.129 schreuer 2009, at 703.130 Paras. 153–56 of the Biwater gauff Procedural order no. 3; Bernasconi-osterwalder 2011, at 204–205.131 Para. 163(a) of the Biwater gauff Procedural order no. 3; see Cristoffer nyegaard mollestad, No Evil?

Procedural Transparency in International Investment Law and Dispute Settlement, PluriCourts research Paper no. 14-20 (2014).

132 Piero Foresti, Laura de Carli & Others v. The Republic of South Africa, iCsiD Case no. arB(aF)/07/01, letter regarding non-Disputing Parties, 5 october 2009, para. 2.

133 lucas Bastin, The Amicus Curiae in Investor-State Arbitration, 1(3) Cambridge Journal of international and Comparative law 208, 2018 (2012).

134 it is worthy to note here that the tribunal adopted a “novel procedure” in order to address these issues, i.e., “after all submissions, written and oral had been made, the Tribunal would invite the parties and the nDPs to offer brief comments on the fairness and effectiveness of the procedures adopted for nDP participation in this case. The Tribunal would then include a section in the award, recording views (both concordant and divergent) on the fairness and efficacy of nDP participation in this case and on any lessons learned from it”; also reference Piero Foresti award (2010).


it is noted that the Biwater Gauff tribunal for the first time addressed the issue on the publication of documents in a “detailed fashion.”135 The tribunal separately examined various kinds of documents, weighing the competing interests of transparency on one side and procedural integrity that protects confidentiality on the other. The balanced approach adopted by the Biwater Gauff tribunal has influenced subsequent cases as well.136 interestingly, the Piero Foresti tribunal went even further and adopted an “innovative step” to allow amicus curiae to access documents.137

our discussion has confirmed the ubiquitous presence of the competing interests between confidentiality and transparency in investment arbitration, which originated in the WTo’s Dispute settlement Body, was further elaborated by naFTa, followed by the iCsiD arbitration rules, and finally refined by the unCiTral rules on Transparency. Current arbitration practice has departed from its earlier position: it has reversed the obligations of confidentiality and shifted towards transparency and openness. however, the current arbitral system still remains unsatisfactory for the admission of amicus curiae; therefore, it is necessary to bring uniform or minimum standard requirements in all the legal instruments we discussed in these pages. arbitral tribunals should engage in the careful weighing of the quest for transparency and the need for confidentiality. such balancing will greatly benefit the international community as a whole.

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malanczuk P. Confidentiality and Third-Party Participation in Arbitration Proceedings under Bilateral Investment Treaties, 1(2) Contemporary asia arbitration Journal 183 (2008).

mourre a. Are Amici Curiae the Proper Response to the Public’s Concerns on Trans-parency in Investment Arbitration?, 5 law and Practice of international Courts and Tribunals 257 (2006).

ortino F. Transparency of Investment Awards – External and Internal Dimensions in Transparency in International Trade and Investment Dispute Settlement 119 (J. naka-gawa (ed.), london: routledge, 2013).

Pongracic-speier m. Confidentiality and the Public Interest Exception: Considerations for Mixed International Arbitration, 3(2) Journal of World investment 231 (2002).

ragni C. Role of Amicus Curiae in Investment Disputes: Striking a Balance Between Confidentiality and Broader Policy Considerations in Foreign Investment, International Law and Common Concerns 86 (T. Treves et al. (eds.), new York: routledge, 2014).

saravanan a. & subramanian s.r. The Participation of Amicus Curiae in Investment Treaty Arbitration, 5(4) Journal of Civil and legal sciences 1 (2016).


Azhaham Perumal Saravanan (Kharagpur, India) – PhD Candidate, rajiv gandhi school of intellectual Property law, indian institute of Technology Kharagpur (Kharagpur, Paschim medinipur, West Bengal, 721302, india; e-mail: [email protected]).

Subramanian Ramamurthy Subramanian (Kharagpur, India) – assistant Professor, rajiv gandhi school of intellectual Property law, indian institute of Technology Kharagpur (Kharagpur, Paschim medinipur, West Bengal, 721302, india; e-mail: [email protected]).


STaTE SoVEREIGnTY anD SELF-DEFEnCE In CYBERSPaCE

PALLAVI KHANNA,

High Court of Delhi (New Delhi, India)

Doi: 10.21684/2412-2343-2018-5-4-139-154

Given the increasing role and use of cyberspace in our daily lives, it is important to consider the large-scale dynamics of the cyber forum. Shifting the focus from individuals to nation states as participants that engage in activities in cyberspace raises doubts over the status of nations in this domain. Do they continue to remain sovereign entities on such a platform? Do they have the right to defend themselves against attacks from other nations? These questions have been subject to a lot of debate in the context of international law. The aim of this paper is to study the implications of the principle of state sovereignty and self-defence in cyberspace. The paper focuses on two prime considerations of sovereignty and self-defence in the context of cyberspace and its link to international law. Thus the scope is limited to concepts such as territorial jurisdiction, sovereignty, attribution and self-defence. While doing so, the researcher seeks to answer questions such as, Is international law applicable to cyberspace? Can cyberspace be called a sovereign domain? Do principles of territorial jurisdiction apply to cyberspace? How does the attribution mechanism work in cyberspace? Under what circumstances are states permitted to exercise the right of self-defence against cyber attacks? and What are the deficiencies in international law governing cyberspace?

Keywords: sovereignty; self-defence; jurisdiction; cyberspace; cyber attack; attribution; international law.

Recommended citation: Pallavi Khanna, State Sovereignty and Self-Defence in Cyber-space, 5(4) BriCs law Journal 139–154 (2018).


Introduction

“here be lions,” an expression used by ancient cartographers to describe unex-plored territories and dangers, would suit cyberspace if it was not merely a virtual domain.1 Cyberspace is characterised as being something more than the internet. it is a vast field which affects a variety of human conduct. it is transnational in nature, having no central authority and few points of control. it is largely facilitated via third parties. given the ubiquity of information and computer technology, the increasing dependence on cyberspace is perceived as a security concern. Thus, states seek to preserve their access and safeguard their dependence on cyberspace, and this often entails a departure from set norms.

it has become a trend to classify cyberspace as a novel aspect of warfare, insulated from international law and capable of being abused. malicious governments and institutions tend to exploit the cyber domain to attack global infrastructure and critical cyber assets. The results of these operations range from the disruption of governmental functions and financial loss to the physical destruction of property, strategic defence equipment, etc., and deaths as well.2

Cyberspace is not disjoined from state sovereignty. it requires physical infrastructure to function and an entity to monitor its development. since the potential to cause harm is very real in cyberspace, it cannot be left ungoverned. Cyberspace is also capable of challenging state sovereignty, since it can question the state’s ability to regulate movement across borders. an individual in a given state can freely enter another state through cyberspace and engage in harmful activities in the latter. in furtherance of their commitment to protect cyber borders, nation states can take robust measures to regulate the information technology infrastructure that operates within their domestic territory.3

however, the prospect of monitoring cyberspace has been the subject of controversy and has not received general acceptance given its tendency to compromise on potential human rights obligations.4

Through the course of this paper, the researcher seeks to understand the principles of international law which govern the conduct of states in cyberspace by analysing aspects of state sovereignty, response mechanisms and problems of attribution. The

1 marco roscini, World Wide Warfare – Jus ad bellum and the Use of Cyber Force, 14 max Plank Yearbook of united nations law 85, 86 (2010).

2 michael n. schmitt, Cyberspace and International Law: The Penumbral Mist of Uncertainty, harvard law review Forum, 5 april 2013 (nov. 10, 2018), available at http://harvardlawreview.org/2013/04/cyberspace-and-international-law-the-penumbral-mist-of-uncertainty/.

3 andrew liaropoulos, Power and Security in Cyberspace: Implications for the Westphalian State System in Panorama of Global Security Environment 541, 545–546 (m. majer et al. (eds.), Bratislava: Centre for european and north atlantic affairs, 2011).

4 eric T. Jensen, Cyber Sovereignty: The Way Ahead, 50(2) Texas international law Journal 275, 297 (2015).

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first part undertakes to establish a connection between the norms of international law and their applicability to cyberspace. The second part is a discussion on the territoriality and jurisdiction of states over the cyber domain. This extends in the third part into the issue of state sovereignty in the context of internet regulation. The fourth part studies the measures that may be employed by states to counter cyber attacks and unauthorised entry to servers. in the final part, the question of attribution of responsibility for cyber operations is analysed.

1. International Law and Cyberspace

The application of customary international law to cyberspace is not a new question and it has garnered a lot of attention. The classification of cyberspace as a novel avenue to which international law is not applicable is disappointing, and it is believed that demands for new international law solely governing cyberspace is not justified since states, in principle, agree to the application of customary international law to cyberspace though sometimes a consensual adaptation may be required.5

The President of the united states of america, at the international strategy for Cyberspace, has also observed that there is no need to develop or reinvent norms of customary international law for regulating state conduct in cyberspace, as traditional international norms will guide the behaviour of states even in cyberspace. however, in doing so, governments must work together in consensus.6

There are unavoidable hurdles that one encounters in applying the customs of international law to cyberspace since a majority of those rules originated before the advent of this new domain. Those opposing the application of international law to cyberspace argue that cyber attacks are inherently distinct from traditional warfare which involves the actual use of instruments of war and hence cyberspace requires new systems of regulation. however, others believe that this is a flawed assumption and that the rules of war can be reconciled with this new domain since the effect of both these kinds of attacks is similar even though the means employed are not the same.7

it has often been debated whether or not cyber operations are attributable to a state on account of the law of state responsibility. states thus have started considering how current international law regulates cyberspace. restrictions on the cyber world further limit the freedom of states to act in cyberspace. nevertheless, these problems can be overcome if the states exercise due diligence and undertake

5 Wolff heintschel von heinegg, Legal Implications of Territorial Sovereignty in Cyberspace in 4th International Conference on Cyber Conflict 7, 8 (C. Czosseck et al. (eds.), Tallinn: naTo CCD Coe Publications, 2012).

6 Id. at 10.7 ella shoshan, Applicability of International Law on Cyber Espionage Intrusions, Thesis (Faculty of law,

stockholm university, 2014), at 32 (nov. 10, 2018), available at http://www.diva-portal.org/smash/get/diva2:799485/FullTeXT01.


to initiate measures ensuring that their territories are not forums for cyber operations put to the detriment of other states.8

2. Territorial Jurisdiction

Cyber-libertarians propound the belief that the cyber world is only subject to an internal means of governance, and there are those who echo the sentiment of cyberspace being an independent area free from the rules of other spheres of human activity.9 The early users of cyberspace strongly believed in the idea of cyberspace being a terra nullius, i.e. a space free from any kind of government regulation.10 This view translates into the idea that no state has cyber territory and hence the question of extra-territorial intervention by states does not arise.11

The supra territoriality of cyberspace makes it hard to locate cyber actions territorially. This gives rise to more instances where multiple territories experience consequences at the same time. hence, allocating jurisdiction to a specific state is not merely a technical question but also one that entails making distributional and political choices as well.12

Though it has been suggested that the emerging sovereignty of cyberspace extends beyond the judicial sovereignty of countries, this view is open to challenge since no country has expressly recognised the independent sovereignty of cyberspace, which is deemed to be dependent on the sovereignty of states.13 The non-territoriality of cyberspace imposes no embargo on states from partially territorialising it by instituting surveillance mechanisms to secure information flowing across their borders.14

For instance, in the Yahoo! case a French court had ordered Yahoo! to suspend the auctioning of nazi memorabilia. The site refused to comply by arguing that it is an “american” company and not a French one, and that it operates in cyberspace and not within the territory of France. in its legal defence, Yahoo! also proposed that not only would the ordered action be impossible, but that there was the risk of the government’s being unreasonable and exercising indiscriminate tyranny. however, the high Court of Paris rejected these claims since evidence shown indicated that

8 michael n. schmitt, In Defence of Due Diligence in Cyberspace, 125(1) Yale law Journal Forum 68 (2015).9 shoshan, supra note 7, at 35.10 Id.11 Id.12 Joel Trachtman, Cyberspace, Sovereignty, Jurisdiction and Modernism, 5(2) indiana Journal of global

legal studies 561, 569 (1998).13 alireza hojatzadeh & afshin Jafari, Cyber-attacks and Jus Ad Bellum, 1(2) international Journal of huma-

nities and social sciences 76, 79 (2014).14 liaropoulos 2011.

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there were adequate links to France to vest the country with the jurisdiction to hear the complaint. The fact that the auctions were open to bidders from France, and that the display of these objects was forbidden under French criminal law and amounted to public nuisance, and the fact that Yahoo! was aware that French residents were accessing the auction site since the site displayed advertisements in the French language when accessed by users from France, etc., further established the territorial jurisdiction of the French court.15

Cyberspace, though an abstract entity, has physical manifestations through its servers which are subject to state jurisdiction akin to being actors existing in cyberspace, and this shows that cyberspace does not operate within a vacuum, and that the infrastructure and actors as part of this domain are subject to the jurisdiction of the state.16

For instance, it is believed that cyber espionage constitutes intrusiveness viola-ting the sovereignty and territorial jurisdiction of states since unauthorised entry to servers located in a state violates the right of states to sovereignty and territorial jurisdiction. moreover, cyber espionage does not fall within the ambit of article 2(4) of the u.n. Charter17 since it does not involve the use of force. since data is stored on servers which are part of cyber infrastructure, intrusion into such data located within the territory of the target state empowers the target state to exercise sovereign prerogatives with respect to such data. in recognition of this the Tallinn manual acknowledges that states have the exclusive right to exercise jurisdiction over cyber infrastructure and activities that fall within their sovereign territory.18 Thus the territorial sovereignty and physical location of the cyber infrastructure creates a right to control the same in favour of the state.19

3. Sovereignty

respect for the territorial sovereignty of independent states is a significant basis of international relations, confirmed in the ruling of the international Court of Justice

15 liCra v. Yahoo! (Ligue contre le racisme et l’antisémitisme et Union des étudiants juifs de France c. Yahoo! Inc. et Société Yahoo! France), decided by the high Court of Paris (Tribunal de grande instance) in 2000. also see Jon henley, Yahoo! Cleared in Nazi Case, The guardian, 13 February 2003 (nov. 10, 2018), available at http://www.theguardian.com/technology/2003/feb/12/newmedia.media.

16 Catherine lotrionte, State Sovereignty and Self-defense in Cyberspace: A Normative Framework for Balancing Legal Rights, 26(1) emory international law review 825, 829 (2012).

17 article 2(4) of the Charter of the united nations: “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the united nations.”

18 rule 1 – sovereignty, Tallinn manual, at 15–17 (nov. 10, 2018), available at http://insct.syr.edu/wp-content/ uploads/2015/06/Tallinn-manual-sovereignty.pdf.

19 shoshan, supra note 7, at 34.


in the Nicaragua case.20 hence, hostile cyber operations aimed against the cyber infrastructure on another state’s territory involves a violation of the sovereignty of the target state even if it does not result in any harm or injury since it amounts to an unlawful intervention by the exercise of jurisdiction by the other state.21

The effects-based approach qualifies a cyber attack as an armed attack if its effect is similar to destruction by physical weapons. however, it ignores the damage caused by non-physical consequences, and the denial of the right of self-defence prevents states from instituting any methods of deterrence.22

The realist assumption is founded on the idea that laws based on geography seem logical when the government exercises control over the physical domain and the people or things located within that jurisdiction are the ones that are affected.23 however, given the fact that the internet operates throughout multiple jurisdictions and that effects are not concentrated in a single geographical location, imposing exclusive jurisdiction does not always seem reasonable.24

The sovereignty of states has been a common theme across discussions, given the borderless world of the internet. Concerns for state sovereignty have instigated several regulatory initiatives. China’s attempts to preserve its informational sovereignty by insulating its internet from Western websites are a clear example of how anxiety over sovereignty has been responsible for restrictions. restrictions on the regulation of the internet have often been based on arguments of state sovereignty, which primarily raise the issue that regulating the internet activities arising in other states amounts to illegitimate encroachment on their sovereignty.25

states often rely on the realist conception of sovereignty, which believes that states are the principal actors in the international legal system, to justify regulation of the internet by asserting jurisdiction on the basis of the principles of territoriality and the effects doctrine. The territorial principle translates into the states having authority to regulate the transmission of information across their borders and the use of such information by the people within their territory. This is reflected in China’s filtering of possibly harmful information. The territorial principle is also invoked by states to monitor the hardware and software used in internet communications within the state.26

20 michael n. schmitt, The Law of Cyber Warfare: Quo Vadis?, 25(2) stanford law & Policy review 275 (2014).21 Id.22 sheng li, When Does Internet Denial Trigger the Right of Armed Self-Defense?, 38(1) Yale Journal of

international law 179, 187 (2013).23 Cyberspace Regulation and the Discourse of State Sovereignty, 112 harvard law review 1680, 1685 (1999)

(nov. 10, 2018), also available at http://cyber.law.harvard.edu/property00/jurisdiction/hlr.html.24 Id.25 Id. at 1681.26 Id. at 1684.

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application of the principle of territorial sovereignty to cyberspace translates into vesting the territorial state with the right to exercise jurisdiction over its cyber infrastructure and cyber activities. This means that the cyber facilities located within the territory of a state are subject to a wide array of state enforcement, regulation and prohibitions which extends into the global cyber domain, and thus states are not prevented from applying their domestic laws over cyber activities. The effects doctrine is an interesting manifestation of territorial jurisdiction. as per this doctrine, the state has jurisdiction not only over actions taking place within their domestic territory, but also over those actions that generate harm in that territory though the actions causing this effect did not happen on the territory. in order to make use of domestic laws to regulate the out-of-state activities on the internet which cause some effects to be seen within the state, states rely on the effects principle since control over their territory implies legitimacy of state actions within that territory.27

government officials also rely on the representational conception of sovereignty to support internet regulation. This is usually in circumstances where they think that the online activities undermine the sovereign state’s capability to represent the populace. This stems from the belief that the ability of the internet to penetrate all borders can challenge the sovereignty of states. hence it seeks to justify the regulations as mechanisms to protect the sovereignty of states.28

Consequently, we see that the principle of sovereignty is directly applicable to cyberspace. all states are on an equal plane when it comes to exercise of “cyber-sovereign” prerogatives. This implies that, irrespective of capabilities, all states have the same right to exercise sovereignty over their territory. in a similar way in which states exercise their sovereign rights, states are entitled to do the same in cyberspace as well, but they are required to accept the obligations that correspond to such rights. By virtue of the right of sovereignty, states are authorised to develop cyber infrastructure as they wish. however, this comes with the proviso that states are to peacefully settle cyber conflicts that threaten international peace and security, and that in the exercise of cyber activities states must have due regard for the rights of other states, and not intrude into the domestic cyber affairs of other states except through mutual agreement.29

4. Response Mechanisms

as per the territoriality rule, cyber infrastructure falls within the jurisdiction of the flag state and is also subject to that state’s sovereign prerogatives. The principle of sovereignty read with the idea of non-intervention adds to the responsibility of the state to secure its networks.30

27 heinegg 2012, at 14.28 Cyberspace Regulation, supra note 23, at 1687.29 Jensen 2015, at 285–288.30 liaropoulos 2011, at 546.


Though states exercise sovereignty over their cyberspace, sometimes there are reasons for them to take steps in the cyber domain of foreign countries in the form of legitimate countermeasures or illegitimate probes or even armed attacks. however, some attacks which may not constitute the use of force may amount to illegal interference as well.31 The principle of non-intervention is applicable to cyberspace also; yet, there is debate as to whether damage caused is crucial for classifying an act as an illegal intrusion and thus violative of territorial sovereignty.32

The u.s. international strategy for Cyberspace also espouses a broad interpretation of the idea of territorial sovereignty since it seeks to assert its right to respond to these kinds of acts by all necessary means, including employing force if needed.33

Cyberspace is enmeshed in a web of international law which outlaws malevolent cyber operations and also permits states to respond robustly to the same. Pursuant to customary international law and article 51 of the u.n. Charter, if the armed attack threshold is exceeded by the cyber operations, target states can defend themselves through the use of force. The increasing use of the cyber domain for attacks has strengthened the belief that cyber attacks constitute use of force and hence defending against them is legitimate as per article 51.34 however, others feel that article 51 is applicable only when the intensity and consequences of such attacks are along the same lines as a physical armed attack.35

There is continuing debate over what meets the threshold of use of force. non-destructive cyber operations may also amount to use of force. For instance, supplying malware to rebels which they then misuse to cause destruction can be called use of force. Yet, it must be noted that all unfriendly acts do not rise to the level of use of force. The international group of experts has devised a list of factors that influence how states use cyber operations as use of force, and acts of economic coercion have been excluded from the ambit of use of force.36 These last include aspects such as severity, directness, immediacy, invasiveness, military character, measurability, presumptive legality and

31 Pål Wrange, Intervention in National and Private Cyber Space and International Law, Fourth Biennial Conference of the asian society of international law, new Delhi, 14–16 november 2013 (nov. 10, 2018), available at http://www.diva-portal.org/smash/get/diva2:682092/FullTeXT02.

32 Id. at 7.33 heinegg 2012, at 12.34 article 51 of the Charter of the united nations: “nothing in the present Charter shall impair the inherent

right of collective or individual self-defence if an armed attack occurs against a member of the united nations, until the security Council has taken the measures necessary to maintain international peace and security. measures taken by members in exercise of this right of self-defence shall be immediately reported to the security Council and shall not in any way affect the authority and responsibility of the security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

35 hojatzadeh & Jafari 2014, at 81.36 schmitt 2014, at 281.

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state involvement. This is not an exhaustive list and additional factors such as the political environment, the nexus between cyber operations and the military, the identity of the perpetrator, the nature of the target, etc., are also considered to be relevant. over time, the meaning of use of force will be subject to different interpretations. For instance, states may start characterising operations that non-destructively harm crucial infrastructure as use of force, and data destruction which disrupts societal functions may also be characterised as being an example of use of force.37

experts on the Tallinn manual acknowledge that states must refrain from knowingly allowing the cyber infrastructure within their territory or under the government’s control to be used for otherwise unlawful acts which may be detrimental to the interests of other states. if the state fails to meet this obligation, the victim state should be at liberty to adopt countermeasures.38

Contemporary discussion does not focus on the proximity of the prospective attacks to the defensive actions but on the opportunity of self-defence which is qualified by three prerequisites. in order to react by use of armed attack in the form of self-defence against a cyber attack, the conditions of necessity, immediacy and proportionality must be met. necessity implies that force is being used as a last resort and that all other mechanisms have failed. Thus identification of source, the unfeasibility of alternate means of retaliation and the intentional nature of the cyber attack must be clearly established before one avails oneself of this right. nevertheless, the most crucial condition which needs to be fulfilled by states exercising the right to self-defence is the proportionality rule. This rule seeks to restrict the force to what is in proportion to the aggression it seeks to end. it should also meet the object of exercising self-defence, which usually is to restore the status quo. hence, states must carefully evaluate the damage that may be caused if they intend a forceful response.39

The “unwillingness test” enables balancing the right of self-defence against the sovereignty of the host state since it allows self-defence involving violation of the sovereignty of the host state only if the host state is unwilling or incapable of preventing armed attacks launched from within its territory. This is a corollary of the necessity principle which allows self-defence as a legitimate action only when other alternatives to using force have been exhausted.40

any forced defence action in cyberspace easily qualifies in respect of the conditions of necessity and immediacy. This is because any such action in the form of cyberspace warfare is likely to occur only as a response to armed attack warranting recourse to force as a last resort. moreover, all cyber attacks require immediacy in

37 schmitt 2014, at 281.38 schmitt 2015.39 Jay P. Kesan & Carol hayes, Self Defense in Cyberspace: Law and Policy, illinois Public law and legal Theory

research Paper series no. 11–16 (2011), at 12.40 li 2013, at 205.


countermeasures in order to mitigate or prevent the destructive potential of a cyber attack.41

The law regarding self-defence suffers from uncertainty in two respects. Firstly, it is a subject of controversy as to whether activities which do not cause any physical disruption are armed attacks. The international group of experts clarified that the use of force which injures or destroys people or property is an armed attack and states can resort to using force for purposes of self-defence in these situations.42 While a narrow view of the same limits the law to physical effects, an alternative approach is not to focus on the nature of the effect but on the severity of the consequences.43

secondly, while it is imperative to define a standard of armed attack, it has yet to be done. merely characterising a cyber operation as being a wrongful use of force only seeks to label the state as contravening international law. Though countermeasures are limited to non-forceful means, armed attack allows states the right to respond by their own use of force. hence the chances that cyber operations launched by a state may be miscalculated by the target state as having grave consequences are quite high.44

some interpret the right of self-defence as extending to those states that are unable or disinclined to prevent their territory from being used for cyber operations. states harbouring such operations may not have the technical capacity to detect or take measures to stop attacks. There may be occasions when the quick escalation of the attack prevents a state from notifying the target state about the operations underway and thus precludes their ability to take remedial action. Thus target states will have to face situations where they are left with no choice but to take immediate action against such attacks.45

When a state undertakes a harmful cyber act it is seen as an internationally wrongful act, and hence it opens the door to countermeasures by the injured state. Countermeasures refer to acts that, otherwise unlawful, are justified when taken in response to a wrongful act of another state. Consequently, countermeasures can take the form of steps that are in violation of the sovereignty of a state by affecting its government’s cyber infrastructure. Countermeasures are not necessarily cyber in nature and may take the form of sanctions. moreover, they may be directed against governments and private entities alike.46

international law governing the extent of self-defence permissible must not be so wide that it may be invoked as an excuse for aggression. however, the guidelines

41 Dimitrios Delibasis, State Use of Force in Cyberspace for Self-Defence: A New Challenge for a New Century, 8 Peace Conflict and Development: an interdisciplinary Journal 13 (2006).

42 schmitt 2014, at 282.43 Id. at 283.44 schmitt 2014, at 284.45 Id. at 288.46 schmitt 2015.

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regarding self-defence must also not be extremely restrictive, since restraining states from responding lawfully with force against acts of aggression would encourage aggressors. moreover, while international law in respect of countermeasures limits the right to respond to attacks only to states that have been injured, the self-defence system does not suffer from such a drawback, as the u.n. Charter recognises the collective right of self-defence, and thus allows states to defend allies who have suffered armed attacks.47

5. Attribution

it is difficult to respond to cyber attacks because unlike traditional battles cyber attacks are invisible by nature. The anonymity of the attacker creates further hindrances to legitimate defence. attribution and ascertaining intent are crucial factors because they prevent states from retaliating against innocent countries. moreover, the laws governing response mechanisms differ for state and non-state perpetrators. The ban in respect of the use of force under article 2(4) of the u.n. Charter extends to states and not to private individuals. Thus, international law bars states from employing force against other states, but actions by individuals are subject to prosecution under national criminal law.48

if taking countermeasures against actions aimed abroad is impractical, failure on the part of the state to do so does not imply that there is a breach of its obligation of due diligence. The legal standard expected is subject to the capabilities of the state.49 While constructive knowledge will be assessed on the standard of due care, the dissimilar capabilities of states to attribute or locate harmful cyber operations makes due care also subjective. however, states may attempt to evade their duty by giving false information about their capabilities.50

states have a duty to prevent cyber attacks originating from their territory and inflicting harm on other states. such an obligation presumes active knowledge of such acts by the state when a cyber attack is traced to that state by the state organs themselves or by the target state.51

Cyber attacks when attributable to a state constitute a transgression of the custom of non-intervention on matters which the state by virtue of the principle of sovereignty can decide freely.52

47 li 2013, at 211–212.48 hojatzadeh & Jafari 2014, at 80.49 schmitt 2015.50 schmitt 2014, at 278.51 heinegg 2012, at 16.52 roscini 2010, at 103.


For lawfully exercising self-defence against states which are the source of cyber attacks, there must be confident identification of the state as the regional origin of the cyber attack and also as being responsible for the attack.53 since countermeasures are usually permitted only for state actions, it is uncertain how target states can react to the cyber operations of non-state actors.54 Though the stance with respect to state-sponsored cyber attacks is firm, states usually resort to the plea of necessity to base their response against non-state actors whose actions cannot be attributed to a state, and this plea is also raised in support of operations whose author is unknown and only the technological source is identified. if despite best efforts a state is unable to restrain the harmful cyber actions, the state being so affected may retaliate by doing all that is needed to end such operations even if it extends to affecting the non-cyber activities of the other state. however, the threshold of the plea of necessity is hard to define in strict terms.55 it is also said that there is no requirement to attribute the attacks to a specific person: it is sufficient to identify the jurisdiction to which the operator/networks belong in order to give rise to acting in collective self-defence, as the level of hostilities will be the decisive factor.56

moreover, non-state actors sometimes act in ways such that the target state can trace their actions to a state and thus respond with force against the non-state actor as well as the state to which their actions can be attributed. Cyberspace provides fertile ground within which to acquire the means and opportunity to undertake operations at the level of armed attacks in order to attack states. This would lead states to resist relying solely on law enforcement mechanisms to fight serious attacks by non-state actors; failure to take prompt and forceful action against destructive attacks by non-state actors would be politically dire and unsound in practical terms. given the hidden and instant nature of cyber operations which are difficult to attribute and which may have dire consequences, in addition to the ease of acquiring cyber capabilities, it is illogical to seek adherence to a temporal standard. if the right of exercising self-defence is to be effective, states must be allowed to act forcefully in order to avert any armed attack the moment they learn that a cyber operation is going to be mounted, and they will lose the opportunity to defend themselves effectively if they delay or hesitate in responding urgently.57

The current attribution scheme puts the focus on the level and kind of support extended by the state in respect of the non-state actor. if there is a close nexus between the state and cyber actions, other states are more likely to perceive those actions as the use of force by the source state. The greater the support, the higher

53 li 2013, at 203.54 schmitt, supra note 2.55 schmitt 2015.56 Kesan & hayes 2011, at 11.57 schmitt 2014, at 286–288.

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the chances are that the state will be held responsible for the acts of the non-state actor. moreover, the fact that cyber attacks can be located almost anywhere, and not necessarily in the target or attacking state, creates evidentiary problems in finding the attackers who may also try to deceive everyone into believing that the attack is being launched from inside or by a country other than the real country of origin. Thus, the anonymity of location raises hurdles in assigning responsibility except when the attack by a non-state actor was manifestly undertaken in order to promote the territorial ambitions of a particular state. The increasing involvement of non-state actors in armed conflicts and cyber attacks also raises concerns about the attribution issues that are prevalent in cyber conflicts. While devising rules of state responsibility, states should be conscious of the difficulty in identifying the perpetrators of cyber attacks. The ease of launching and financing cyber warfare must also be acted upon.58

Conclusion

as a new forum, cyberspace contains many uncertainties, but this does not preclude international law from being applicable to cyberspace. in the perspective of international law, the discussion on cyberspace has focused on the use of force. Cyber attacks that are not designated as use of force or violative of article 2(4) of the u.n. Charter have often been considered to be unproblematic, although they often constitute illegal intrusion into the sovereignty of other states. nevertheless, it is not absolutely clear as to how the principles of international law operate in this field. states have not been very proactive in clarifying these issues, nor have they shown any initiative to frame a new set of legal instruments for the same, and hence the lack of opinio juris coupled with the lack of state practices to rely on create problems for a comprehensive understanding of this field.59

since some states are perceived as being cyber sanctuaries, i.e. they are breeding grounds for cyber operations into other territories, these states mostly interpret their duty to end harmful cyber activities as undertaking preventive measures alone. This may be justified on the grounds that extensive monitoring of cyber infrastructure will raise concerns surrounding privacy and policy matters.60

however, it is unlikely that such a laissez-faire approach is sustainable. given the lack of conclusive state practices and the infancy of the law of self-defence, non-destructive cyber operations have not risen to the level at which they would be regarded as armed attacks. however, states over time will start treating such cyber operations as armed attacks to which they may respond forcefully when the

58 Collin s. allan, Attribution Issues in Cyberspace, 13(2) Kent Journal of international and Comparative law 78 (2013).

59 Kesan & hayes 2011, at 18.60 schmitt 2014, at 277.


consequences are grave. The dangerous potential of cyber operations will raise such threats to security that the evolution of the law of self-defence will become inevitable. as cyber activities become crucial to the functioning of societies, the law will adapt by allowing them enhanced protection. The law will require states to act as responsible inhabitants of the cyber domain and lower the threshold at which cyber operations are said to violate the prohibition on the use of force, empowering states to respond forcefully and increase protection of cyber activities during armed conflicts. These transitions will not be free of cost and will encounter obstacles such as privacy concerns, etc., but states will eventually realise that it is in their interest to take measures to safeguard access to cyberspace.61

in order to attribute responsibility, target states will need to discover ways in which to improve the level of knowledge of the states which are the bases for launching cyber operations. apart from preventing trans-boundaries harm, states are also obligated to cooperate with victim states that face adverse cyber effects on infrastructure either located in their territory or under their governments’ control if the effects pose a threat to international peace.62 all states should pass strict criminal laws and conduct vigorous investigations and prosecution of attackers, and also cooperate with the victim states in order to discourage non-state actors.

The claim that cyberspace is disjoined from state sovereignty can be dismissed on the basis of five principal considerations. First, in order for cyberspace to function and to even exist, there must be an entity controlling it and a physical infrastructure which is territorially grounded for providing access to users. second, financial relationships in cyberspace require laws to govern them that are usually the laws of states, and this is proof of the fact that cyberspace is subject to state sovereignty. Third, the content transmitted through cyberspace has implications in the real world and hence is subject to the laws of the respective states since they have an interest in as well as legitimate control over cyber transactions. Fourth, states are gradually attempting to assert themselves in cyberspace for purposes of national security and, in order to prevent harm and reduce their vulnerability, they cannot afford to leave cyberspace ungoverned. Fifth, like the real world, cyberspace also requires state sovereignty for regulating, protecting and punishing various actors.63

as a result, to translate sovereignty in cyberspace into reality states should arrive at a consensus on the underlying norms based upon which an international regime can be founded. The right to access may be allowed to all for peaceful ends, but all should have the legitimate right to protect their sovereignty in this domain. states must assert and crystallise their interests in order to exercise more control. it is also important for states to cease being silent on issues that violate their sovereignty

61 schmitt 2014, at 299.62 Jensen 2015.63 Patrick W. Franzese, Sovereignty in Cyberspace: Can It Exist?, 64 air Force law review 11–14 (2009).

PALLAVI KHANNA 153

and they must not refrain from publicly acknowledging this, as this would help in future endeavours to establish sovereignty. states would also be required to enter into agreements for creating attribution mechanisms to facilitate identification. Furthermore, they should be capable of controlling the cyber domain and responding to intrusive violations of cyber sovereignty as well.64

References

allan C.s. Attribution Issues in Cyberspace, 13(2) Kent Journal of international and Comparative law 78 (2013).

Delibasis D. State Use of Force in Cyberspace for Self-Defence: A New Challenge for a New Century, 8 Peace Conflict and Development: an interdisciplinary Journal 13 (2006).

Franzese P.W. Sovereignty in Cyberspace: Can It Exist?, 64 air Force law review 1 (2009).

goldsmith J.l. The Internet and the Abiding Significance of Territorial Sovereignty, 5(2) indiana Journal of global studies 475 (1998).

heinegg W.h.v. Legal Implications of Territorial Sovereignty in Cyberspace in 4th In- ternational Conference on Cyber Conflict 7 (C. Czosseck et al. (eds.), Tallinn: naTo CCD Coe Publications, 2012).

hoisington m. Cyberwarfare and the Use of Force Giving Rise to the Right of Self-Defense, 32(2) Boston College international and Comparative law review 439 (2009).

hojatzadeh a. & Jafari a. Cyber-attacks and Jus Ad Bellum, 1(2) international Journal of humanities and social sciences 76 (2014).

Jensen e.T. Cyber Sovereignty: The Way Ahead, 50(2) Texas international law Journal 275 (2015).

Kesan J.P. & hayes C.m. Mitigative Counterstriking: Self-Defense and Deterrence in Cyberspace, 25(2) harvard Journal of law & Technology 415 (2012).

Kesan J.P. & hayes C.m. Self Defense in Cyberspace: Law and Policy, illinois Public law and legal Theory research Paper series no. 11-16 (2011).

Koh h.h. International Law in Cyberspace, Yale law school Faculty scholarship series, Paper 4854 (2012).

lewis J.a. A Note on the Laws of War in Cyberspace, Center for strategic and inter-national studies (april 2010).

li s. When Does Internet Denial Trigger the Right of Armed Self-Defense?, 38(1) Yale Journal of international law 179 (2013).

lotrionte C. State Sovereignty and Self-defense in Cyberspace: A Normative Frame-work for Balancing Legal Rights, 26(1) emory international law review 825 (2012).

Perritt h.h., Jr. Cyberspace and State Sovereignty, 3 Journal of international legal studies 155 (1997).

64 Franzese 2009, at 28–32.


Poché C.C. This Means War! (Maybe?) – Clarifying Casus Belli in Cyberspace, 15 oregon review of international law 413 (2013).

roscini m. World Wide Warfare – Jus ad bellum and the Use of Cyber Force, 14 max Plank Yearbook of united nations law 85 (2010).

schmitt m.n. The Law of Cyber Warfare: Quo Vadis?, 25(2) stanford law & Policy review 275 (2014).

shackelford s.J. & andres r.B. State Responsibility for Cyber Attacks: Competing Standards for a Growing Problem, 42(4) georgetown Journal of international law 971 (2010–2011).

Tallinn Manual on the International Law Applicable to Cyber Warfare (m.n. schmitt (ed.), Cambridge: Cambridge university Press, 2013).


Pallavi Khanna (New Delhi, India) – Judicial Clerk-cum-law researcher at the hon’ble high Court of Delhi (B 52 hill view apartments, vasant vihar, new Delhi, 110057, india; e-mail: [email protected]).


CoMBaTInG CRIME wITH THE HELP oF CRIMInaLISTICS

EVGENy SMAKHTIN,

Tyumen State University (Tyumen, Russia)

ROMAN SHARAPOV,

St. Petersburg Law Institute (Branch) of the Federal Establishment of Higher Education University of the Office of the Prosecutor of the Russian Federation

(St. Petersburg, Russia)

Doi: 10.21684/2412-2343-2018-5-4-155-174

This comparative study examines the issue of combating crime with criminalistic methods. It focuses on the role and significance of criminalistics in the system of substantive and criminal procedural law as a science standing at the forefront of the fight against crime. The criminals and their offenses as well as the investigation of criminal cases and judicial proceedings are the objects of the analysis. The correlation between the criminal sciences and general trends in the development of a number of European and BRICS countries (with China as an example) has been emphasized. Joint research into the most pressing problems of combating crime is believed to improve the efficiency of law enforcement activities. From this perspective, there is a need to develop a universal framework of categories and concepts which will help to create a unified forensic area in Europe and the BRICS countries.

Keywords: criminal law; criminal proceedings; criminalistics; crime; offender; characte-ristics; trace.

Recommended citation: evgeny smakhtin & roman sharapov, Combating Crime with the Help of Criminalistics, 5(4) BriCs law Journal 155–174 (2018).

Introduction

The globalization of the world economy and joint projects conducted by different countries in a number of spheres including the fight against crime necessitate an


understanding of counter-crime methods and means. There are several different mechanisms with which to combat international crime. Traditionally, the most significant tools in this fight are the instruments in the fields of criminal substantive law, criminal procedure and criminalistics. however, the approaches to the definition of the same concepts, both in science and in practice, differ throughout the world. For example, the countries with the anglo-saxon legal system make use of the term “forensic science,” which is defined as the application of scientific methods to legal matters, civil and criminal cases.1 in France, Belgium and some other european countries, the terms “scientific police,” “police techniques” and “technical police” are used; they relate to a set of methods and techniques for detecting and fixing traces left at a crime scene.2

in addition, european countries have also developed a broader concept of “police science” which covers the full spectrum of police matters,3 including crime investigation. germany and countries of eastern europe use the term “criminalistics” to define the doctrine of methods and means of combating certain crimes and crime in general through preventive and repressive measures.4 at the turn of the 20th century, russian scientists were greatly influenced by their german colleagues, thus the first books on criminalistics in russia were translated from german into russian5 and the term “criminalistics” became widely accepted, both in theory and in practice.

in the east, for example in the People’s republic of China, the use of special knowledge in the course of criminal case investigation and hearings is also widespread.6 Finding promising areas in the study of crime in China7 that are systematic and comprehensive8 is of increasing interest to scientists and practitioners.

1 suzanne Bell, Encyclopedia of Forensic Science 162 (revised ed., new York: Facts on File, inc., 2008).2 Хаткевич Е.П. Сравнительная характеристика представлений о судебной науке, криминалистике

и смежных понятий в странах Европы // Криминалистика и судебная экспертология: наука, обучение, практика [Еlena P. Khatkevich, Perception of Forensic Science, Criminalistics and Related Concepts in European Countries: Comparative Analysis in Criminalistics and Judicial Expertology: Science, Training and Practice] 93–94 (vilnius: nicolo ramiros university, 2013).

3 hans-gerd Jaschke et al., Perspectives of Police Science in Europe: Final Report, CePol (april 2007), at 23–24 (nov. 2, 2018), available at https://www.cepol.europa.eu/sites/default/files/website/research_science/PgeaPs_Final_report.pdf.

4 hinrich de vries, Ist die Kriminalistik eine Wissenschaft, 3 siaK-Journal − Zeitschrift für Polizeiwissenschaft und polizeiliche Praxis 27, 28 (2010).

5 Вейнгарт А. Уголовная тактика. Руководство к расследованию преступлений [albert Weingart, Criminal Tactics. A Guide to Investigating Crimes] 272 (v.i. lebedev (ed.), st. Petersburg: Bulletin of Police, 1912).

6 Лэй Т. Судебная экспертиза в уголовном процессе КНР и СССР (опыт сравнительного исследования): Автореф. дис. … канд. юрид. наук [Tan lei, Forensic Examination in Criminal Proceedings of the PRC and USSR (Experience of Comparative Research): Synopsis of a Thesis for a Candidate Degree in Law Sciences] 20 (voronezh, 1991).

7 lin liu & Jessica C.m. li, Progress and Future Directions of Crime Research in China with Selected Case Studies, 4(1) Journal of research in Crime and Delinquency 213 (2017).

8 Kam C. Wong, The Study of Criminology in China: Historical Development: Part I, 44(3) China report 213 (2008).

EVGENy SMAKHTIN, ROMAN SHARAPOV 157

We easily notice that the highlighted terms differ in name as well as in content. however, they all share similarities. in fact, they refer to the use of special methods, tools and techniques for fighting crime; all the branches of scientific knowledge mentioned above are supposed to have common objects of cognition. specifically, all scientists, regardless of the country, identify criminal activities and police actions aimed at investigating crime as objects of study.

since criminal sciences share common objects of cognition, it is necessary to specify and differentiate their subject areas. This is due in part to the improvement of information technology used both in the commission of a criminal act and in the investigation of crime. Therefore, it seems important to determine the content of the regularities that are included in the subject of criminalistics, to define its place in the general system of the criminal sciences and to develop common approaches to the definition of the same terms in the science of crime.

This article aims to reveal the main laws that are part of criminalistics in russia and to identify the possible directions of scientific cooperation with international colleagues. The intended objective predetermines the tasks which will be resolved by exploring the objects of knowledge and clarifying the definitions of certain concepts in criminalistics. more specifically, the authors attempt to define the mechanisms relating to the commission of crimes, their criminalistic characteristics, and some other matters as well.

The assumption to proceed with is that the object has a certain reality knowable in the process of scientific activity. in its turn, the subject stands for “some integrity identified while learning”9 about the object.

as the targets of the research, the authors have identified the crime (criminal activity) and the criminal, as well as the activities for investigation of the crime and judicial review, the latter being the two types of human activity viewed through the prism of the system-activity approach. These two types of human activity constitute the dual object of cognition in criminalistics.

1. Crime (Criminal Activity) and Criminals as an Object of Cognition of Criminalistics

1.1. The Origin of Criminalistics as a Science. Scientific Discussions of its Subject Matter

in the 19th century, in several european countries scientists focused on the prob-lems of combating crime, which were difficult to explain in terms of substantive and procedural criminal law. The “birth” of criminalistics as a science is associated with the name of the austrian scholar hans gross. he managed to systematize fragmented

9 Возгрин И.А. Объект, предмет и понятие криминалистики // Вестник Санкт-Петербургского университета МВД России. 2000. № 4(8). С. 68 [igor a. vozgrin, The Object, Subject and Concept of Criminalistics, 4(8) Bulletin of st. Petersburg university of the russian interior ministry 68 (2000)].


knowledge and propose a system of a new science. With regard to the object of cognition under consideration, gross succeeded in substantiating the need to study the techniques used by criminals, Thieves’ Cant (thieves’ language), various types of simulations and false testimony, secret signs among criminals as well as superstitions regarding, among other things, objects left at the crime scene.10

in russia, i. Yakimov also studied the data characterizing criminal activities and the criminal: the types of criminals and their customs; the existing categories of criminals by type of crime in the context of the criminal law; and common tricks used by criminals. in addition to the classification of criminals, the impact of prostitution, alcoholism, drug addiction and the nature of criminals on crime activities was investigated.11

other russian criminalists also emphasized how important it was, when investi-gating a crime, to be aware of the criminal’s traits of character and experience.12

The study of crime and the criminal required the differentiation of subject areas in the sciences of substantive law, criminal procedural law and criminalistics, since all of them dealt with the object of cognition to some extent.

For example, m. strogovich believed that only “scientific methods of detecting and investigating material evidence and traces of crime, i.e. techniques borrowed from the natural and technical sciences and adapted to use in the investigation of crimes,”13 could be the subject of criminalistics. The well-known professor defended his position for quite a long time, but softened it in the 1960s.14

no less famous a scientist, the processualist m. Cheltsov, sharing the views of strogovich, noted that

the subject of criminalistics is only the technique of detecting, fixing, and processing material evidence.15

This reaction to the definition of the subject of criminalistics on the part of the above-mentioned processualists is quite understandable, as questions of tactics and

10 Гросс Г. Руководство для судебных следователей как система криминалистики [hans gross, A Manual for Forensic Investigators as a Forensic System] 346–514 (moscow: leksest, 2002).

11 Якимов И.Н. Криминалистика. Руководство по уголовной технике и тактике [ivan n. Yakimov, Criminalistics. Manual on Criminal Techniques and Tactics] 229–247 (Мoscow: leksest, 2003).

12 Громов В.И. Дознание и предварительное следствие. Методика расследования преступлений. Осмотр места преступления [vladimir i. gromov, Inquiry and Preliminary Investigation. The Methodology for Investigating Crime. Examination of the Crime Scene] 453–465 (Мoscow: leksest, 2003).

13 Строгович М.С. Труды Военно-юридической Академии Красной Армии [mikhail s. strogovich, Proceedings of the Military-Law Academy of the Red Army] 6 (Мoscow: gosyurizdat, 1942).

14 Строгович М.С. Уголовный процесс [mikhail s. strogovich, Criminal Procedure] 22 (Мoscow: gosyurizdat, 1958); Строгович М.С. Курс уголовного процесса [mikhail s. strogovich, The Course of Criminal Procedure] 101–102 (Мoscow: gosyurizdat, 1968).

15 Уголовный процесс: Учебник [The Criminal Procedure: Textbook] 32 (Мoscow: gosyurizdat, 1948).


methods of investigating crimes at that time belonged to the subject of the science of criminal procedure. naturally, the scientific research carried out by criminologists, who in one way or another were connected with the problems arising in the crime investigation, was regarded by those and some other scientists as an attempt to unreasonably “invade” the area of evidence.

The analysis of theoretical studies conducted in the middle of the 19th century testifies that criminalistics met all the requirements typical of an independent branch of scientific knowledge. Thus, contrary to what the processualists stated, the role of an auxiliary, exclusively technical discipline, firstly, did not correspond to the objective reality, that is, to existing scientific developments. secondly, the adoption of that point of view meant nothing more than a return to the first definitions of the subject matter of criminalistics.

such a decision no longer corresponded to the realities of the time and hampered the development of criminalistics. in the opinion of some criminalists, scientists in the field of criminal procedural law would have reduced the investigation methodology to the consideration of the circumstances to be proven for various types of crime, and the investigative tactics would only illustrate the procedure of the investigation.16

The significance and systemic nature of criminalistics were shown in its definition given by a. vinberg. The scientist defined criminalistics as a science “about technical and tactical methods and means of detecting, collecting, fixing and investigating judicial evidence used to solve crimes against law and order, to identify those responsible, and to find ways to prevent crime.”17 obviously, the scientist writes not only about detection and examination, but also about evidence collection and fixation. The definition indicates the technical and tactical nature of the techniques and tools used in evidence management and the sequence of such work, beginning with detection. in addition, there is a reference to the fact that criminalistic methods and tools are used to uncover and prevent crimes.

of special note is the definition of criminalistics proposed by s. mitrichev. The scientist writes:

Criminalistics, as a special legal discipline, is a science about technical means, tactical methods and tools used to perform the actions taken in accordance with the criminal procedure law by the judicial and investigative bodies for the evidence detection, collection, recording and examination in order to investigate crimes.18

16 Кирсанов З.И. Теоретические основы криминалистики: Учебное пособие [Zinovy i. Kirsanov, Basic Theory of Criminalistics: Textbook] 20–57 (Мoscow: military unit 33965, 1998).

17 Криминалистика [Criminalistics] 4 (Мoscow: gosyurizdat, 1950).18 Митричев С.П. Предмет, метод и система советской криминалистики [stepan P. mitrichev, The

Subject, Methodology and System of Soviet Criminalistics] 24 (Мoscow: gosyurizdat, 1956).


The definition contains some amendments. unlike in all previous concepts, for example, there is an indication that criminalistics is a special legal discipline. moreover, the authoritative participants in the trial are mentioned – the judicial and investigative bodies that carry out actions to detect, collect, record, examine and evaluate evidence. at the same time, mitrichev emphasized the internal interconnection of all sections of criminalistics, which complemented one another and in their unity formed scientific investigation methods.19

Thus, we can state that in the 1920s–1950s criminalistics in its development went through several stages:

– The emergence of criminalistics as an applied technical discipline;– The accumulation of empirical material and the formation of the main sections

of criminalistics;– The formation of criminalistics as an independent science.20

1.2. Content Specification for the Subject Matter of Criminalistics in Examining Crime (Crime Activities) and the Criminal

Further study of the investigated object and the accumulation of knowledge have resulted in the need for a more precise definition for the subject matter of criminalistics and its interdisciplinary links to substantive and procedural criminal law.

For instance, n. Yablokov, examining the criminalistic aspects of organized criminal activities, writes that:

if the criminal law deals with the constituent criminal law acts of this activity and the criminology is concerned with the content, structure, types, causes and conditions contributing to it, then criminalistics investigates the peculiarity of its structural elements, the patterns of their formation and use by criminals in criminal activities as well as the nature of the interlinkages among those elements.21

subsequently, the scientist further elaborated his position, having defined that:

[T]he criminal activity, outlined and normatively described in the Criminal Code, includes all kinds, types and groups of crime provided for by law. in terms of criminalistics, this activity as a system consists of elements. The information on the said elements contained in the traces, the consequences, of

19 Криминалистика [Criminalistics] 5–7 (Мoscow: gosyurizdat, 1959).20 Kirsanov 1998, at 27.21 Овчинский В.С., Эминов В.Е., Яблоков Н.П. Основы борьбы с организованной преступностью:

Монография [vladimir s. ovchinsky et al., The Basics of Fighting Organized Crime: Monograph] 237 (Мoscow: infra-М, 1996); Яблоков Н.П. Расследование организованной преступной деятельности [nikolay P. Yablokov, Investigations of Organized Crime] 44 (Мoscow: Yurist, 2002).


any criminal activity has mainly an informative and investigative character and provides an idea of its criminalistic features and their interconnections.22

Criminalists from latvia, ukraine and russia such as r. Dombrovsky,23 n. Karpov,24 a. Kaminsky,25 a. Kustov,26 a. lubin27 and others greatly contributed to the development of the criminalistic scientific ideas about crime and criminal activity.

in China, scientists began a thorough study of crime and criminal activity after the economic reforms of 197828 to a greater extent in criminalistic terms,29 notably at the empirical research level.30

Probably Professor r. Belkin was most accurate in determining the subject matter of criminalistics in the object under consideration. The scientist focused his attention on the functional side of illegal activities, that is, on the system of relations and actions that form the mechanism of crime.31 Without prolonging the discussion, the term “mechanism of committing crime” seems to be more suitable, and it will be used hereinafter.

at the functional side of any illegal activity, the most significant thing is the trace evidence (in a broad sense), characterized not only by different physical traces, but also by non-physical ones that remain in the memory and consciousness of people. since the investigator’s cognition of the crime event is directed to the past, it is

22 Криминалистика: Учебник [Criminalistics: Textbook] 15–16 (n.P. Yablokov (ed.), 2nd ed., Мoscow: Yurist, 1999).

23 Домбровский Р.Г. Познание и доказывание в расследовании преступлений: Дис. … докт. юрид. наук [reyngard g. Dombrovsky, Cognition and Evidence: Thesis for a Doctor Degree in Law Sciences] 324 (riga, 1991).

24 Карпов Н.С. Криминалистические основы изучения преступной деятельности: Автореф. дис. … докт. юрид. наук [nikifor s. Karpov, Criminalistic Basis of Crime Examination: Synopsis of a Thesis for a Doctor Degree in Law Sciences] 32 (Kiev, 2008).

25 Каминский А.М. Некоторые методологические положения теоретико-криминалистического анализа организованной преступной деятельности // Вестник криминалистики. 2000. № 4(12). С. 60–66 [alexander m. Kaminsky, Some Methodological Guidelines for the Theoretical and Criminalistic Analyses of Organized Crime, 4(12) Bulletin of criminalistics 60 (2004)].

26 Кустов А.М. Криминалистическое учение о механизме преступления: Дис. … докт. юрид. наук [anatoly m. Kustov, Criminalistic Study of Crime Mechanisms: Thesis for a Doctor Degree in Law Sciences] 355 (Мoscow, 1997).

27 Лубин А.Ф. Методология криминалистического исследования механизма преступной деятельности: Дис. … докт. юрид. наук [alexander F. lubin, Methodology for Criminalistic Research of Crime Mechanism: Thesis for a Doctor Degree in Law Sciences] 337 (n. novgorod, 1997).

28 shanhe Jiang & eric g. lambert, Views of Formal and Informal Crime Control and Their Correlates in China, 19(1) lambert, international Criminal Justice review 5 (2009).

29 Jianming mei & mu Wang, Social Change, Crime, and Criminology in China, 23(1) Crime & Justice inter-national 14 (2007).

30 liu 2007.31 Белкин Р.С. Курс криминалистики: Общая теория криминалистики. В 3 т. [rafail s. Belkin, Crimi-

nalistics: General Theory of Criminalistics. In 3 vol.] 116–117 (Мoscow: Yurist, 1997).


retrospective, and the past is learned precisely by the traces left at the scene. it is the trace examination that the investigation of the entire crime event begins with. This reflects both the special nature of criminalistics and the relationship with the criminal law (substantive and procedural).

often, it is due to the advances in criminalistics that a particular criminal is identified by the traces left behind, his/her actions are properly defined and other tasks of criminal proceedings are successfully solved.

The functional side of the crime or the mechanism of its commission can be represented as a system of the interaction in a crime of persons, material objects and processes. in the mechanism of committing crime, scientists identify the elements, the knowledge of which as well as the knowledge of the regular connections between them provide an information basis for the activities of the investigator and the court. This is the so-called empirical level of cognitive perception of events, phenomena and processes of objective reality associated with crime commission and its mechanism. at this level, there is a further comprehension of the facts obtained and a transition to the theoretical level of cognition which has a certain degree of abstraction. such an abstract scientific concept forming the substantive sphere of criminalistics in the object studied is the criminalistic characteristics of a crime.

Thus, one of the objects of cognition in criminalistics is the crime (criminal activity) and the criminal; consequently, the subject includes the mechanism patterns of the commission of a crime and the leaving of traces, which collectively form the criminalistic characteristics of the crime.

a few words should be said about such elements of the crime mechanism as the mechanism of trace formation and the identity of the offender. Criminalists pay special attention to its study, as it carries trace information, i.e., criminalistically significant information.

investigation of the offender’s personality on an empirical level, as a rule, takes place in the following sequence: the trace – the criminal – the characteristics of the criminal. it is this algorithm that criminologists use as a basis in shaping the criminalistic characteristics of specific types and groups of crimes, one of the basic elements of which is the identity of the criminal. The theoretical level of cognition involves developing a theory of the criminalistic characteristics of the criminal’s personality.

n. vedernikov can be considered the founder of the criminalistic study of the criminal’s personality because he justified the need for its study in criminalistics.32 g. Zorin’s opinion is also interesting; he reasonably believes that “one of the approaches to the research of a criminal activity is the approach via the identity of the offender, and his/her qualities.” it is through the personality that the complex interaction “cause – environment – situation – personality – deeds – concealment” is realized. The person acts not simply as a “repeater,” but as an element actively interacting with

32 Ведерников Н.Т. Понятие личности преступника // Вопросы предупреждения преступности [nikolay T. vedernikov, The Concept of the Perpetrator in Crime Prevention Issues] 22 (Tomsk: Tomsk university, 1967).


the environment and situation, ensuring selective assimilation of information and the choice of behavior. it is necessary to identify and retrospectively study the criminals’ personal deformations and the typical variants of their social conditioning.33

The basic universal image of a criminal’s personality was described following the results of the research conducted by r. akhmedshin.34

The criminalistic characteristics (model) of a crime make it possible to adapt and implement the scientific research results in practice. The introduction of scientific findings in the practice of investigating and prosecuting criminal cases is an important direction for scientists – criminalists, not only in russia but also overseas.

studies of crime models,35 drug-related crimes,36 corruption37 and the identity of young people at risk, conducted in recent years by scientists from China,38 are interesting for russia and european countries.

2. Investigation and Judicial Examination as the Second Object of Cognition in Criminalistics

2.1. Shaping the Views on the Subject of Criminalistics When Examining Investi-gation Activities

at the beginning of the 20th century, german criminologists, adherents to the ideas of the austrian scientist h. gross, reconfirmed the opinion that the subject of criminalistics includes the study of the criminal’s and investigator’s actions as well. in most cases in the literature, the tactical aspects in the actions of the investigator were revealed first, and then the criminals were described.39

in their works, russian scientists committed to the ideas of their foreign colleagues, in particular a. Weingart and r.-a. reissa, focused not only on the activities of the investigator, but also on the work of the expert.40

33 Зорин Г.А. Теоретические основы криминалистики [georgy a. Zorin, Theoretical Basis of Criminalistics] 30–31 (minsk: amalfeya, 2000).

34 Ахмедшин Р.Л. Криминалистическая характеристика личности преступника: Дис. … докт. юрид. наук [ramil l. akhmedshin, Criminalistic Characteristics of the Perpetrator: Thesis for a Doctor Degree in Law Sciences] 416 (Tomsk, 2006).

35 Jianhong liu, Crime Patterns During the Market Transition in China, 45(1) The British Journal of Crimino-logy 613 (2005).

36 Zhonglin Chen & Kaicheng huang, Drug Problems in China Recent Trends, Countermeasures, and Chal-lenges, 51(1) international Journal of offender Therapy and Comparative Criminology 98 (2007).

37 iaogang Deng et al., Official Corruption During China’s Economic Transition: Historical Patterns, Characte-ristics, and Government Reactions, 26(1) Journal of Contemporary Criminal Justice 72 (2010).

38 Chau-kiu Cheung, Police and Social Work Preventions of Offending Among At-Risk Youth in Shanghai, 83(1) Children and Youth services review 112 (2017).

39 Weingart 2012, at 1–64.40 Трегубов С.Н. Основы уголовной техники, научно-технические приемы расследования преступлений

[sergey n. Tregubov, Fundamentals of Criminal Techniques, Scientific and Technical Methods of Investigating Crime] 5 (Мoscow: leksest, 2002).


in addition, in the works devoted to the “methodology of investigating crimes,” ukrainian criminalists considered different issues, including those related to the functioning of the forensic examination cabinets, the order of the inspection of the scene, and the detection and investigation of traces of substances such as, for example, blood, hair and semen, to name just a few.41

naturally, not only processualists42 but also criminalists43 paid attention to the work of investigators. For example, scientists studying criminalistic issues devoted their work to the principles of a systematic approach,44 as well as to its application in criminalistics.45 research on the theory of investigative situations46 and criminalistic situology47 also aroused interest. evident progress in the development of the criminalistic theory was made through the works of such scientists as v. Komissarov,48 v. lavrov,49 s. lavrukhin,50 i. luzgin,51 l. samygin52 and others. Professor o. Baev’s work devoted to modern problems and development areas of criminalistics can be viewed as a certain result of the discussion on the subject of criminalistics.53

41 Макаренко Н.П. Техника расследования преступлений [nikolay P. makarenko, Crime Investigation Techniques] 5–28 (Kharkov: Yuridicheskoye izdatelstvo nKo ussr, 1925).

42 Ларин А.М. Я – следователь [alexander m. larin, I Am an Investigator] 800 (Tula: avtograph, 2008).43 Лузгин И.М. Расследование как процесс познания [igor m. luzgin, Investigation as a Process of Cognition]

177 (Мoscow: Мoscow university, 1969).44 Жбанков В.А. Принципы системного подхода в криминалистике и в практической деятельности органов

внутренних дел при собирании, исследовании, оценке и использовании доказательств [victor a. Zhbankov, Principles of the Systematic Approach in Criminalistics and Practical Work of Law Enforcement Bodies When Collecting, Researching, Evaluating and Using Evidence] 109 (Мoscow: Мoscow university, 1977).

45 Головин А.Ю. Криминалистическая систематика: Монография [alexander Yu. golovin, Criminalistic Taxonomy: Monograph] 305 (n.P. Yablokov (ed.), Мoscow: leksest, 2002).

46 Драпкин Л.Я. Основы теории следственных ситуаций [leonid Ya. Drapkin, Basics of the Investigative Situation Theory] 165 (sverdlovsk: Publishing house of ural university, 1987).

47 Волчецкая Т.С. Криминалистическая ситуалогия: Дис. … докт. юрид. наук [Tatyana s. volchetskaya, Criminalistic Situology: Thesis for a Doctor Degree in Law Sciences] 395 (Мoscow: Мoscow university, 1997).

48 Комиссаров В.И. Криминалистическая тактика: история, современное состояния и перспективы развития [vladimir i. Komissarov, Criminalistic Tactics: History, Current State and Development Prospects] 192 (Мoscow: Yurlitinform, 2009).

49 Лавров В.П. Предмет, история и методология криминалистики [vladimir P. lavrov, The Subject, History and Methodology of Criminalistics] 178 (Мoscow: Мoscow university, 1994).

50 Лаврухин С.В. Предмет, задачи, методы и система криминалистики [sergey v. lavrukhin, Subject, Tasks, Methods and System of Criminalistics] 156 (saratov: saratov university, 1998).

51 Лузгин И.М. Моделирование при расследовании преступлений [igor m. luzgin, Modeling in the Crime Investigation] 152 (Мoscow: Мoscow university, 1981).

52 Самыгин Л.Д. Расследование преступлений как система деятельности [lev D. samygin, Crime Investigation as a System of Activities] 180 (Мoscow: Мoscow university, 1989).

53 Баев О.Я. Российская криминалистика начала XXi в.: направления развития, современные проб-лемы // Вестник криминалистики. 2000. № 1. C. 5–10 [oleg Ya. Baev, Russian Criminalistics at the Beginning of the 21st Century: Directions of Development, Modern Problems, 1 Bulletin of Criminalistics 5 (2000)].


in China, scientists paid more and more attention to the activities of the so-called authorities of criminal proceedings. For instance, in recent years, a number of articles and system studies have been devoted to issues about the role of the Chinese police54 and the prosecutor’s office,55 including the cases of abuse of power56 in the field of drug control57 and the development of investigative files.58

in the study of the second object, the question arose again as to what is relevant to the subject matter of the criminal process, and what the criminalists should investigate, especially in those works that have studied the collection, verification and evaluation of evidence.

additionally, the question arose again as to what the subject of the criminal process refers to, and what the criminalists should examine. The issue is especially relevant because all the scientists studied the collection, verification and evaluation of evidence in their works.59

2.2. Specification of the Subject Matter of Criminalistics Considering Crime Investigation and Prosecution

in many of the studies mentioned above, criminalistics was also defined as the science of investigating crime. The thought requires some clarification, since criminal procedural law may well be referred to as the science of investigating crime even more than criminalistics. Thus, it can be stated that there are at least two branches of scientific knowledge that study the same object. in our opinion, it is obvious that the terminology of both criminal procedural law and criminalistics should be clarified.

a significant number of monographs devoted to the theoretical issues of investigating crime have been published at present. The authors of this article are repre-sentatives of russian criminal procedural law (also, e.g., o. andreeva,60 v. Balakshin,61 Yu.

54 Zheng Chen, Measuring Police Role Orientations in China: An Exploratory Study, 44(1) international Journal of law, Crime and Justice 43 (2016).

55 Xifen lin & Wei shen, Reforms to China’s Pretrial Detention System: The Role of the Procuratorate, 44(1) international Journal of law, Crime and Justice 183 (2016).

56 Fenfei li & Jinting Deng, The Power and the Misuse of Power by China’s Local Procuratorates in Anticor-ruption, 45(1) international Journal of law, Crime and Justice 1 (2016).

57 mengyan Dai, Perceptions About the Police in Drug Control: A Survey of Drug Users in Kunming China, 87(3) The Police Journal: Theory, Practice and Principles 201 (2014).

58 Yu mou, The Constructed Truth. The Making of Police Dossiers in China, 26(1) social & legal studies 69 (2017).59 li li, High Rates of Prosecution and Conviction in China: The Use of Passive Coping Strategies, 42(3)

international Journal of law, Crime and Justice 271 (2014).60 Андреева О.И. Пределы проявления диспозитивности в уголовном судопроизводстве [olga i.

andreeva, Limits to Dispositiveness in Criminal Proceedings] 136 (Tomsk: Tomsk university, 2000).61 Балакшин В.С. Оценка допустимости доказательств в российском уголовном процессе:

Монография [victor s. Balakshin, Assessment of Evidence Permissibility in Russian Criminal Proceedings: Monograph] 384 (Мoscow: Yurlitinform, 2016).


Derishev,62 m. romanovsky, o. voltornist, i. mikhailovskaya,63 etc.) and criminologists (also, e.g., v. Karagodin,64 v. novik,65 a. Cheburenkov,66 s. Yakushin67). some scientists have approached the solution to the problems in a comprehensive way, considering both procedural and criminalistic issues (e.g. a. aleksandrov, s. grishin,68 o. Baev,69 e. ezhova,70 s. rossinsky,71 i. smirnov72 and others).

however, after examining the works cited, it becomes obvious that, firstly, they do not cover all the issues faced at the investigation and trial of criminal cases. secondly, in the study of the common object of cognition, the subject areas of criminal procedural science and criminalistics are not clearly defined.

We share the position of those authors who, when examining the investigator’s activities, indicate the substantive aspects to be investigated.73

62 Деришев Ю.В., Романовский М.Э., Волторнист О.А. Проблемы соотношения досудебного и судебного производства в уголовном процессе России [Yury v. Deryshev et al., Problems of Correlation of Pre-Trial and Judicial Proceedings in Criminal Procedure of Russia] 168 (moscow: Yurlitinform, 2009).

63 Михайловская И.Б. Настольная книга судьи по доказыванию в уголовном процессе [inga B. mikhai-lovskaya, Judges’ Handbook on Proof in Criminal Proceedings] 192 (moscow: velbi; Prospekt, 2006).

64 Карагодин В.Н. Основы методики расследования умышленных убийств: Учебное пособие [valery n. Karagodin, Basics of the Methodology for Investigating Intentional Homicide: Textbook] 244 (Yekaterinburg: raritet, 2010).

65 Новик В.В. Криминалистические аспекты доказывания по уголовным делам: проблемы теории и практики [valery v. novik, Criminalistic Aspects of Proving in Criminal Cases: Theory and Practice] 471 (st. Petersburg: Yuridicheskiy tsentr Press, 2005).

66 Чебуренков А.А. Основы теории расследования: Монография [alexander a. Cheburenkov, Fundamentals of Investigation Theory: Monograph] 176 (Мoscow: Yurlitinform, 2010).

67 Якушин С.Ю. Тактические задачи и средства их решения при расследовании преступлений [stanislav Yu. Yakushin, Tactical Tasks and Means for Their Solution in the Crime Investigation] 322 (v.n. Karagodin (ed.), Kazan: Kazan university, 2014).

68 Александров А.С., Гришин С.П. Перекрестный допрос: Учебно-практическое пособие [aleksander s. aleksandrov & sergey P. grishin, Cross-Examination: Training Manual] 296 (Мoscow: velbi; Prospekt, 2005).

69 Баев О.Я. Уголовно-процессуальное исследование преступлений: проблемы качества права и правоприменения [oleg Ya. Baev, Criminal Procedural Investigation of Crimes: Problems of the Quality of Law and Enforcement] 288 (Мoscow: Yurlitinform, 2009).

70 Ежова Е.В. Проблемы раскрытия преступлений в современной России: Монография [elena v. ezhova, Problems of Crime Detection in Modern Russia: Monograph] 226 (ufa: Bashkir state university, 2008).

71 Россинский С.Б. Результаты «невербальных» следственных и судебных действий как вид дока-зательств по уголовному делу: Монография [sergey B. rossinsky, The Results of “Non-Verbal” Investigative and Judicial Actions as a Form of Evidence in a Criminal Case: Monograph] 224 (Мoscow: Yurlitinform, 2015).

72 Особенности расследования отдельных категорий уголовных дел и уголовных дел в отношении отдельных категорий лиц: Монография [Investigation of Certain Categories of Criminal Cases and Criminal Cases in Relation to Certain Categories of Persons: Monograph] 336 (i.g. smirnova (ed.), Мoscow: Yurlitinform, 2016).

73 Попов И.А. Расследование пожаров: Правовое регулирование. Организация и методика: Учебное пособие [ivan a. Popov, Fire Investigation: Legal Regulation. Organization and Methodology: Textbook] 310 (Мoscow: Yurinfor, 1998).


it is quite obvious that attempts to comprehensively study the objects of cognition of criminal legal sciences without specifying the subjects of jurisdiction will not differ in depth and in the systematic presentation of the results obtained.

For the same reason, it is not entirely true to state that the subject of criminalistic scientific research is the investigation activity pattern without mentioning that these regularities are also studied by other criminal law sciences.74

in the process of examination, the functional side of the object under conside-ration should also be singled out, which means not only the criminalistic description of the investigator’s activity, but also the criminalistic characteristics of the judicial examination of criminal cases75 or criminalistic activity,76 which seems more accurate.

in this respect, it is possible to use the positive experience accumulated by scientists from China. in particular, when studying the so-called alternative methodology and critical analysis,77 the shortest path algorithms are used to identify associations in criminal networks78 and develop intelligent decision-making models.79

We believe that criminalistic activity is aimed at establishing the circumstances that have to be proven, principally the events of the crime, including its trace pattern and the mechanism of committing crime, especially taking into account the progress in electronic document management.

on the other hand, the circumstances that are subject to proof are established by the criminal process participants who possess power. Consequently, they are the subjects that carry out criminalistic activities. This statement does not exclude the possibility of using the achievements of criminalistics by other participants in the criminal process, e.g. a lawyer. however, the latter does not conduct any criminalistic activities.

74 Севрюков В.В. Основы криминалистической методики расследования преступлений, совершаемых бандами: Автореф. дис. … канд. юрид. наук [vyacheslav v. sevryukov, Fundamentals of the Criminalistic Methodology for Investigating Crimes Committed by Gangs: Synopsis of a Thesis for a Candidate Degree in Law Sciences] 6 (Barnaul: altai state university, 2004).

75 Гавло В.К., Ким Д.В. Криминалистическая характеристика судебного рассмотрения уголовных дел: проблемы становления и развития (исторический аспект) // Уголовно-процессуальные и криминалистические чтения на Алтае: Материалы научно-практической конференции [veniamin K. gavlo & Dmitry v. Kim, Criminalistic Characteristics of Judicial Consideration of Criminal Cases: The Problems of Formation and Development (Historical Aspect) in Criminal Procedure and Criminalistic Readings in Altai: Materials of the Scientific-Practical Conference] 36–44 (Barnaul: altai state university, 2005).

76 Криминалистика: Учебник [Criminalistics: Textbook] 24–27 (n.P. Yablokov (ed.), 3rd ed., Мoscow: Yurist, 2005).

77 Jianhua Xu et al., Doing Criminological Ethnography in China: Opportunities and Challenges, 17(2) Theoretical Criminology 271 (2013).

78 Jennifer J. Xu & hsinchun Chen, Fighting Organized Crimes: Using Shortest-Path Algorithms to Identify Associations in Criminal Networks, 38(3) Decision support systems 473 (2004).

79 sheng-Tun li et al., An Intelligent Decision-Support Model Using FSOM and Rule Extraction for Crime Prevention, 37(10) expert systems with applications 7108 (2010).


Taking into account the criminalistic activity subjects, the object under consideration can be properly defined as the activity of investigation and judicial proceeding. The regular methods and techniques selected in the object under consideration form the content of the criminalistic activity.

material criminal law regulates public relations through criminal prohibitions on committing socially dangerous acts under the threat of criminal sanctions. Criminal procedure is a “form” of material criminal law. The distinction between criminalistic activity and the activity of criminal procedure also seems quite logical. Within criminal procedure “form” of activity there is some criminalistic “content.” Finding trace information about the crime does not mean that it constitutes proof. The task of criminalistics is to ensure the transition from trace information to evidence through its detection, qualitative recording, and fixation in the procedural document.

3. Interrelation of Objects of Cognition in Criminalistics

The scientific and educational literature emphasizes the unity of the examined objects of cognition. For example, n. Yablokov underlines the relationship of the dual object of knowledge – “criminal activity and criminalistic activity for its investigation and prevention.”80

The position of m. Kaminsky is also interesting. he believes that the structure of criminal activities and the structure of the crime investigation must dovetail according to the methodological principle of isomorphism (“mirror image”).81 The correlation between objects of cognition in criminalistics is also emphasized in later works of the scientist.82

on the empirical and theoretical levels of cognition, the relationship between the objects is supposed to be as follows: first comes the criminal (as the first object of knowledge). a participant in the process possessing authority (the second object of knowledge) learns of a single offense and a criminal retrospectively according to the traces left (material and non-physical). Direct contact with the crime is often

80 Criminalistics: Textbook, supra note 22, at 23–27.81 Каминский М.К. Криминалистическая характеристика деятельности по выявлению, раскрытию

и расследованию преступлений // Правовые и общественно-экономические науки и борьба с хищениями социалистического имущества [marat K. Kaminsky, Criminalistic Characteristics of the Activities to Identify, Uncover and Investigate Crime in Legal and Socio-Economic Sciences and Combating the Theft of Socialist Property] 153–158 (gorky: high school mvD ussr, 1977).

82 Каминский М.К. Современные проблемы криминалистической идентификации в свете работ профессора А.И. Винберга // Значение творческого наследия профессора А.И. Винберга в развитии отечественной криминалистики (к 100-летию со дня рождения): Сборник материалов 49-х Криминалистических чтений [marat K. Kaminsky, Modern Problems of Criminalistic Identification in the Light of Professor A.I. Vinberg’s Works in The Importance of the Creative Heritage of Prof. A.I. Vinberg in the Development of National Criminalistics (on the Occasion of the 100th Anniversary of His Birth): Collection of Materials of the 49th Criminalistic Readings] 40 (Мoscow: academy of management of the russian ministry of internal affairs, 2008).


possible only through the material evidence that is left at the scene. The results of the examination of the trace evidence help to establish a picture of what happened, and the mechanism of committing crime becomes known. in the course of empirical scientific generalization, scientists create an abstract model – a criminalistic description of the crime (criminal activity) that takes into account, among other things, the typological characteristics of the criminal with consideration of his/her criminal specialization. Then criminalistic regularities are determined in the activity of the investigator and the court: the standard versions, situations and the activity algorithm. on this basis, a particular criminalistic methodology for investigating and prosecuting specific types or groups of crimes is developed. The obtained scientific knowledge is specified in the course of the subsequent generalization of the investigative and judicial practice as well as the positive experience and errors in the investigation and judicial examination of specific crimes.

in fact, the information about the crime and the perpetrator reflected in the trial helps to solve the crime through the achievements of criminalistics. Therefore, it is the information that needs scientific understanding; this information lies at the heart of the subject of criminalistics and criminalistic research.

notably, establishing the mechanism of committing crime (criminal activity) by a participant in a criminal process with powers at the pre-trial stage, even with his/her internal conviction that the person charged is guilty of committing the offense, by virtue of the presumption of innocence, does not mean that a guilty verdict will be returned, since the court can come to a different conclusion.

obviously, the legal sciences of the criminal law cycle are interrelated in considering the objects of cognition, especially crime (criminal activity) and the criminal. it is worth repeating that the information relating to the subject of criminalistics should be identified. obtaining and subsequent generalization of the information significant for criminalistics make it possible to characterize (make a model of ) any kind (group) of crime.

at the same time, not only crime itself, as an act of human behavior, is of interest to criminologists. Besides findings about the crime commission, criminalistics considers information about the crime preparation and concealment, the trace pattern of the case, the offender’s behavior both before and after the offense, and the interaction of living and inanimate objects in the mechanism of committing crime. however, some criminalistic details may not be included in the object of evidence. in this regard, the term “criminalistic characteristics of crime” is of a conditional nature, because the sphere of interest of criminalistics often goes beyond the scope of the crime itself. since the term “criminal activity” has long been used in criminal law, it is possible to use the term “criminalistic characteristics of a criminal activity” in criminalistics in this context. The introduction of such a concept emphasizes the general object of study and the difference between criminalistic knowledge and the knowledge of other criminal sciences.


By criminalistic characteristics of an offense (a criminal activity) we mean a set of generalized, criminalistically significant information about the system of interacting and interdependent elements in the mechanism of committing crime (criminal activity); the elements form the standard trace evidence of a crime event.

The knowledge of typical trace evidence, in its turn, allows evaluating specific trace information on a practical level; on its basis, a conclusion is made about the presence or absence of other elements in the mechanism of committing crime (criminal activity). establishing the relationship with other elements of the mechanism of committing crime helps to solve it and to cope with other tasks of the investigation.

4. Positions on the Relationship of Criminal Sciences in Some Countries of Europe and in China

as previously noted, scientists from eastern europe have very similar views regarding the definition of the subject of criminalistics. For example, a well-known lithuanian criminalist, h. malevski, generally sharing the ideas of the authors of this article, proposes to separate one part in criminalistics, i.e. the criminalistic strategy.83

a scientist from ukraine, v. shepitko, has a position which is similar in meaning and content. having analyzed the experience of russian colleagues, the criminalist reasonably concludes that the relevant objectives of criminalistics in modern conditions are: the interpenetration of criminalistics and the practice of law enforcement agencies; the introduction of innovations in practical activities; the development of the latest “product” of criminalistics for practice; and some others.84

Polish colleagues are also working to determine the prospects for the deve-lopment direction of criminalistics. Through the prism of their pilot survey, changes in practical criminalistics have been revealed and conclusions made regarding trends in its development. They include the modernization of research methods of traces in criminalistic analysis and prognosis. The prospects for the development of criminalistics have also been predicted.85

h. Ditrich, a german scientist, also investigated the subject matter of criminalistics, drawing attention to its connection with forensic expert activity.86

in addition to our european colleagues, special mention should be made of issues related to the improvement of the system of law enforcement practice in the People’s

83 hendryk malevski, Criminalistic Strategy, Strategy in Criminalistics or Strategy of Criminal Policy?, 13 Criminalistics and Forensic expertise: science, Training, Practice 31 (2013).

84 valery shepitko, The Subject, System and Objectives of Criminology in the XXI Century, 13 Criminalistics and Forensic expertise: science, Training, Practice 33 (2013).

85 grażyna Kędzierska, Meanders of Criminology of the 21st Century, 13 Criminalistics and Forensic expertise: science, Training, Practice 45 (2013).

86 hans Ditrich, How “Scientific” is “Forensic Science”?, 8 Criminalistics and Forensic expertise: science, Training, Practice 20 (2012).


republic of China. The criminal procedural law and special means of combating crime in China seem to be well developed.87 They have many similar approaches to those of their russian colleagues.88 however, in contrast to russian criminal procedure legislation, China should establish an objective truth in the investigation of a criminal case through special forensic means, which is absolutely justified and correct.89

To conclude, the approaches in russia, some countries of europe, and China to the issues of combating crime by applying criminalistic techniques seem to have many common features as well as differences.

Conclusion

The integrative nature of criminalistics does not imply any unreasonable “intrusion” into the subject areas of the other legal sciences of the criminal law cycle. What is necessary is to differentiate knowledge in the study of common objects of cognition.

attempts to comprehensively study the objects of cognition of criminal law without specifying the subjects of reference will not excel at profound and systematic presentation of the results obtained.

Differentiating knowledge in the study of common objects of cognition is one of the main issues both in criminal science and in any other branch of scientific knowledge. one of the ways to solve this is to determine the criteria for distinguishing the subject of criminalistics from the subjects of other legal sciences in the criminal law cycle. such criteria can, for example, be the goals and objectives of cognition. The aim of cognition in criminalistics in its turn is the establishment of trace evidence of a crime scene, and, accordingly, the task is to find and work with material and non-physical crime traces.

specification of the regularities included in the subject of criminalistics makes it possible to define it in a more accurate way. it is often difficult to do this without defining the nature of the science. The majority of russian scientists consider criminalistics to be a special legal discipline. however, there also exist proponents of the non-legal nature of criminalistics, who advocate dividing all the legal sciences into legal and non-legal disciplines; only branch legal sciences can be recognized as legitimate. They state that criminalistics belongs to non-legal sciences, since it

87 lening Zhang et al., Criminological Research in Contemporary China: Challenges and Lessons Learned From a Large-Scale Criminal Victimization Survey, 51(1) international Journal of offender Therapy and Comparative Criminology 110 (2007).

88 ninghua Wang et al., Analyzing Crime Displacement with a Simulation Approach, 41(2) environment and Planning B: urban analytics and City science 359 (2014).

89 Миньянь Л. Совершенствование системы уголовного судопроизводства Китая // Вестник Бурят-ского государственного университета. 2015. № 2(1). С. 173–176 [liang minyan, Development of a System of Criminal Legal Proceedings in China, 2(1) Bulletin of Buryat state university 173 (2015)].


does not have its own system of rules of law regulating social relations arising in its domain.90

The point of view relating to the non-legal nature of criminalistics is also common among our european colleagues. For instance, some german scientists believe that criminalistics belongs to the criminal sciences, and, along with criminology, is a non-legal science.91

such a position does not seem to be correct. Particularly in russia, the theory of police work, forensics expertise, together with criminalistics comprise the scientific specialty coded 12.00.12; they have their own system of rules of law, and as a kind of state activity exist alongside the activity of criminal procedure. moreover, at all stages of operational-search, forensic and criminal-procedure activities, the scientific potential of criminalistics is used directly, and the usage is exclusively of a legal nature, that is to say, in the work of the crime scene investigator, criminalistic experts, during the criminalistic examinations, etc. Consequently, it is quite reasonable to speak of criminalistic activity, which is currently regulated not only by criminal procedure and operational-search legislation as well as the law on forensic activity, but also by subordinate regulatory acts. Through the prism of the structural and system approach, it is quite logical to develop and adopt a federal law that will regulate the criminalistic activity issues.

Thus, criminalistics is a special legal science of the criminal law cycle about the regularities of the mechanism of committing crime, its reflection in material traces and ideal images, and the activity based on this knowledge aimed at the implementation of the criminal justice process by criminalistic methods and means.

unanimity of scientific views on the subject matter of criminalistics and its nature can be considered a positive trend, a unifying factor that will lay the foundation for developing a single criminalistic science area in russia, europe and the BriCs countries (on the example of the People’s republic of China). moreover, the countries of europe have already begun work in this direction and in 2011 conceptually formulated the idea of creating a single “forensic science” area 2020.92

90 Лаврухин С.В. Природа криминалистики и вопросы правоприменения // Криминалистика в системе правоприменения: Материалы конференции (Москва, МГУ им. М.В. Ломоносова, 27–28 октября 2008 г.) [sergey v. lavrukhin, The Nature of Forensic Science and Law Enforcement Issues in Forensic Science in the Law Enforcement System: Conference Papers (Moscow, Lomonosov Moscow State University, 27–28 October 2008)] 50–51 (moscow: maKs Press, 2008).

91 rolf ackermann et al., Zum Stellenwert der Kriminalistik, Artikelserie in Kriminalistik, H. 9-12/2000 32 (heidelberg: Kriminalistik verlag, hüthig gmbh & Co., 2001).

92 Council of the european union, Council Conclusions on the vision for european Forensic science 2020 including the Creation of a european Forensic science area and the Development of Forensic science infrastructure in europe, 3135th Council meeting, Justice and home affairs, Brussels, 13–14 December 2011 (nov. 2, 2018), available at https:// www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/126875.pdf.


The creation of a single criminalistic area of russia and China looks even more prospective due to the identity of national legislations regulating the issues of combating crime and strengthening interstate cooperation in recent years.

Joint scientific research in the field of so-called cyberterrorism93 looks very promising as well as the collection of digital evidence which is already being done by scientists from China94 and russia.95 research cooperation will enhance the efficiency of law enforcement activities in russia and abroad. This will enable the development of common approaches to theoretical issues and combating crime, especially international crime, which is known to have no borders.

References

Chen Z. & huang K. Drug Problems in China Recent Trends, Countermeasures, and Challenges, 51(1) international Journal of offender Therapy and Comparative Criminology 98 (2007).

Chen Z. Measuring Police Role Orientations in China: An Exploratory Study, 44(1) international Journal of law, Crime and Justice 43 (2016).

Cheung C. Police and Social Work Preventions of Offending Among At-Risk Youth in Shanghai, 83(1) Children and Youth services review 112 (2017).

Dai m. Perceptions About the Police in Drug Control: A Survey of Drug Users in Kunming China, 87(3) The Police Journal: Theory, Practice and Principles 201 (2014).

Deng i. et al. Official Corruption During China’s Economic Transition: Historical Patterns, Characteristics, and Government Reactions, 26(1) Journal of Contemporary Criminal Justice 72 (2010).

Jiang s. & lambert e.g. Views of Formal and Informal Crime Control and Their Correlates in China, 19(1) lambert, international Criminal Justice review 5 (2009).

li F. & Deng J. The Power and the Misuse of Power by China’s Local Procuratorates in Anticorruption, 45(1) international Journal of law, Crime and Justice 1 (2016).

li l. High Rates of Prosecution and Conviction in China: The Use of Passive Coping Strategies, 42(3) international Journal of law, Crime and Justice 271 (2014).

93 Bin liang & hong lu, Internet Development, Censorship, and Cyber Crimes in China, 26(1) Journal of Contemporary Criminal Justice 103 (2010).

94 shiuh-Jeng Wang, Measures of Retaining Digital Evidence to Prosecute Computer-Based Cyber-Crimes, 29(2) Computer standards & interfaces 216 (2007).

95 Вехов В.Б. Понятие, виды и особенности фиксации электронных доказательств // Расследование преступлений: проблемы и пути решения. 2016. № 1. C. 155–158 [vitaly B. vekhov, The Concept, Types and Peculiarities of Fixing Electronic Evidence, 1 investigation of Crimes: Problems and solutions 155 (2016)]; Вехов В.Б. Работа с электронными доказательствами в условиях изменившегося уголовно-процессуального законодательства // Российский следователь. 2013. № 10. С. 22–24 [vitaly B. vekhov, Work with Electronic Evidence in the Changed Criminal Procedure Legislation, 10 russian investigator 22 (2013)].


liang B. & lu h. Internet Development, Censorship, and Cyber Crimes in China, 26(1) Journal of Contemporary Criminal Justice 103 (2010).

lin X. & shen W. Reforms to China’s Pretrial Detention System: The Role of the Procuratorate, 44(1) international Journal of law, Crime and Justice 183 (2016).

liu J. Crime Patterns During the Market Transition in China, 45(1) The British Journal of Criminology 613 (2005).

liu l. & li J.C.m. Progress and Future Directions of Crime Research in China with Selected Case Studies, 4(1) Journal of research in Crime and Delinquency 213 (2017).

mei J. & Wang m. Social Change, Crime, and Criminology in China, 23(1) Crime & Justice international 14 (2007).

mou Y. The Constructed Truth. The Making of Police Dossiers in China, 26(1) social & legal studies 69 (2017).

Wang n. et al. Analyzing Crime Displacement with a Simulation Approach, 41(2) environment and Planning B: urban analytics and City science 359 (2014).

Xu J. et al. Doing Criminological Ethnography in China: Opportunities and Challenges, 17(2) Theoretical Criminology 271 (2013).

Xu J.J. & Chen h. Fighting Organized Crimes: Using Shortest-Path Algorithms to Identify Associations in Criminal Networks, 38(3) Decision support systems 473 (2004).

Zhang l. et al. Criminological Research in Contemporary China: Challenges and Lessons Learned From a Large-Scale Criminal Victimization Survey, 51(1) international Journal of offender Therapy and Comparative Criminology 110 (2007).


Evgeny Smakhtin (Tyumen, Russia) – Professor, Department of Criminal law and Procedure, Tyumen state university (38 lenina st., Tyumen, 625000, russia; e-mail: [email protected]).

Roman Sharapov (St. Petersburg, Russia) – Professor, st. Petersburg law institute (Branch) of the Federal establishment of higher education university of the office of the Prosecutor of the russian Federation (44 liteiny av., st. Petersburg, 191104, russia; e-mail: [email protected]).


CONFERENCE REVIEW NOTES

E-JuSTICE anD InFoRMaTIon TECHnoLoGIES In CIVIL PRoCEDuRE*

DAMIR VALEEV,

Kazan (Volga Region) Federal University (Kazan, Russia)

ELENA BAZILEVSKIKH,

Kazan (Volga Region) Federal University (Kazan, Russia)

Doi: 10.21684/2412-2343-2018-5-4-175-179

Recommended citation: Damir valeev & elena Bazilevskikh, E-Justice and Information Technologies in Civil Procedure, 5(4) BriCs law Journal 175–179 (2018).

The opening ceremony and the scientific discussion of legal issues at the symposium took place in the hall of the Board of Trustees of Kazan university on 29 september 2017. The participants and invited guests discussed the most urgent issues of civil procedural law in connection with information technologies, the introduction of robotics into the legal profession and its work processes, and the opportunities – and the associated challenges – afforded by artificial intelligence in the practice of law. The use of information technologies in the framework of civil procedure has given rise to spirited discussion, as legal technology and the increasing prevalence of e-justice has become an integral part of modern law practice and judicial administration. all of the participant’s speeches focused on issues of the exchange of information in electronic form between and among litigants. symposium participants discussed not only the problems associated with e-justice, but also the benefits that it brings about in the routine work of lawyers, as well as “best practices” in using electronic technologies.

* Fourth annual symposium of the journal Herald of Civil Procedure, “2017 – e-justice and information Technologies in Civil Procedure,” which took place in Kazan, republic of Tatarstan, russian Federation, on 29 september 2017.


The symposium opened with greetings from editor-in-Chief of the journal Herald of Civil Procedure Professor Damir valeev. he emphasized that holding the symposium on the premises of Kazan Federal university is not just a tradition of the last four years, but also a tribute to the time-honored traditions of Kazan imperial university, which was one of the oldest classical universities in the territory of russia. moreover, Professor valeev confirmed that information technologies have a huge impact on modern life, thus making it especially important to study their impact on the practice and administration of law.

The floor was then given to representatives from the judiciary. First, marat Khairullin, Deputy Chair of the supreme Court of the republic of Tatarstan, addressed the symposium. he underlined the importance of information technologies support in the court system and cited statistical data from the electronic system “Justice” in the republic of Tatarstan. he also noted the need for widespread use of advanced technologies such as videoconferencing in court work. Judge Khairullin then briefly reviewed changes in legislation which increase the integration of information technologies in civil and arbitration procedure.

next to address the symposium was arthur shakaraev, a Judge of the Consti-tutional Court of the republic of Tatarstan. he brought into focus the fact that the symposium’s chosen topic corresponds to transformations now taking place in public life, and also noted that information technologies increase the effectiveness of judicial protection of citizens and contribute to faster application processes when applying to state authorities. This has a favorable impact not only on the speed of processing appeals, but also on the quality of service and transparency.

academic discussions followed the opening remarks.

1. Information Technologies in Civil Procedure in Russia

The first paper presented was delivered by vladimir Yarkov, Professor at ural state law university and head of the Department of Civil Procedure. his paper “Blockchain and notary: First evaluation” focused on one of the most discussed, widely implemented and fast-growing technologies today. Professor Yarkov spoke on the technology of blockchain, explained its features and commented on the prospect of using it in complex transactions. From his study of this topic, he has come to the conclusion that blockchain technology ensures the transparency and indestructability of information. at the same time, while it is practical as regards simple contracts, its possibilities are limited by its subjects, the presence of various encumbrances and the rights of third parties. moreover, blockchain technology ensures the technological transparency of the transaction, but there is no verification of the legal reliability of the transaction in this system, and no legitimization by legal order. on top of that, there is no inspection of subject capacity, and of who is currently involved in the

DAMIR VALEEV, ELENA BAZILEVSKIKH 177

transaction. Thus, the era of the notary service will continue still, for blockchain cannot fully replace it. Be that as it may, Professor Yarkov noted that we should clearly pay attention to modern technologies and make proper use of their potential.

aleksander Bonner is one of the giants of civil procedural science in russia and Professor in the Department of Civil and administrative Proceedings at Kutafin moscow state law university. Professor Bonner gave a talk titled “Judicial reform in russia: one step Forward, Two steps Back,” in which he addressed the issues of administration of justice by referring to the experiences of foreign countries and the robot-judge project. he suggested that at least in the near future a robot will not be able to cope with the role of an arbitrator – only a human being will be able to administer justice fully, taking into account all factors. he further mentioned that despite the application of electronic technology, documents filed through the my arbitrator system are still being printed out and that the traditional paper document file is still formed. Thus, we cannot talk about a complete informatization of civil procedure in russia now. Professor Bonner compared this with the situation in great Britain, where some courts, having a fully-featured electronic case file with access available for judges and the participants in litigation, may not have a paper file at all. he noted that russia is only starting to use information technologies in its court system now but expressed his hope that the use of these technologies will increase over time. he also criticized current reforms of the judicial system, which, in his opinion, have not been completed yet, and pointed out that the russian judicial system has an uncertain position today in terms of its future development prospects. Professor Bonner delivered a critical assessment on the creation of justice-of-the peace courts and the problems that arose after the liquidation of the supreme arbitration Court of the russian Federation.

Judge alexey Kirillov of the arbitration Court of the republic of Tatarstan spoke on the procedural foundations of electronic justice and the strategy for the development of the information society of the russian Federation for 2017–2030. he also introduced the basics of legislative regulation of justice and provided statistical data on the use of electronic justice in the republic of Tatarstan.

ruslan Khusnulin, a fellow worker in iT, iron neo Development Director and partner in the aBBYY Company, made a noteworthy contribution with his presentation titled “introduction of the Continuous scan system in the Work of the Courts.” he highlighted the fact that there exists today the possibility of creating a program that can optimize the work of the courts via the scanning of a large number of documents, so as to create documents in an established model (as a result of scanning the homogeneous documents using “nodal points”), containing and synthesizing all necessary information. mr. Khusnulin also noted that the use of such a system can help form an electronic case file as well as a summons for participants in court proceedings.

Presentations continued with lidia Terekhova, Professor and head of the Depart-ment of Civil Procedure at omsk state university, who shared her paper “information


Technologies in the Practice of arbitration Courts.” her remarks touched upon various aspects of the use of the my arbitrator system, its merits, faults and certain abusive practices that arise in the process of its application, as well as the ways to optimize the work of information systems of law enforcement.

2. Foreign Experiences

Together with leading representatives from the russian legal community, foreign scholars and lawyers took part in the symposium.

Jaroslaw Turlukowski, Professor of law and administration at Warsaw university, Poland, presented his paper “issues of Judicial Practice of registration of legal entities via the internet: a Tribute to european Fashion or a real need?” and described the experience of e-filing in Poland.

vincent Teahan, partner in the law firm of Teahan & Constantino in new York City and graduate of Yale law school delivered his paper “new York state Courts electronic Filing.” as a practicing lawyer in the area of decedent’s estate law (succession law), he discussed the experience of electronic filing (e-filing) in the system of state courts of new York, with particular relevance given to the probate (succession) courts. mr. Teahan expressed his views on the slow introduction of electronic technologies in legal proceedings. The experience in new York shows that there is still an incomplete transition to the filing examination of court documents solely in electronic form, at least in the field of succession law. in a number of cases, the judge is required to familiarize him-/herself with the physical original of certain documents, even if copies were filed electronically. mr. Teahan noted that the state of new York has invested a great deal of money in attempting to integrate information technologies into the work of its courts, but that the lack of a truly unified court system makes progress in this area quite slow.

Wing Winky so, visiting lecturer, and Ph.D. candidate at oxford university, took the floor next. his talk on “recent Developments in the use of Technology in english and hong Kong Civil and Commercial Courts” covered issues in respect of recent changes to the law. he noted the high level of development of information technologies in the two countries, which have led to improved standards of efficiency for the information systems in the operations of the courts.

Pablo Bravo-hurtado, ll.m., Ph.D. and lecturer at maastricht university, the netherlands, then presented his paper “montesquieu’s utopia? on the automatization of Civil Justice.” During his study of this topic, he had wondered, “Could we replace judges with robots in the process of the administration of justice – that is to say, could we use artificial intelligence for this purpose?” in his prepared remarks, Dr. Bravo-hurtado sought to expose the mistaken ideas behind a skeptical view on this question by presenting his ideas on the possibility of rejecting human capacities such as empathy in the administration of justice process, for the judge is clearly to

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be guided by the law; yet, also, he or she takes into account the sufferings of the person, which indeed has a certain value in making decisions, something which a robot cannot do. Thus, the speaker discussed how society might not be willing to entrust the legal fate of a person to machines.


Damir Valeev (Kazan, Russia) – Professor, Department of environmental law, labor law and Civil Procedure, law Faculty, Kazan (volga region) Federal university (18 Kremlyovskaya st., Kazan, 420008, russia; e-mail: [email protected]).

Elena Bazilevskikh (Kazan, Russia) – Ph.D. Candidate, law Faculty, Kazan (volga region) Federal university (18 Kremlyovskaya st., Kazan, 420008, russia; e-mail: [email protected]).

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Volume V (2018) Issue 4

Volume V (2018) Issue 4 - BRICS Law Journal

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Transcript of Volume V (2018) Issue 4 - BRICS Law Journal