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Kutafin Law Review

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Vol 9, No 2 (2022)
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EDITORIAL

 
193-194 235

DIGITALIZATION IN LAW

195-226 557
Abstract

The problem of legal regulation of cross-border private law relations in the field of intellectual property implemented through blockchain technologies requires thorough scrutiny on behalf of both legal theorists and practitioners. The use of blockchain technologies is relevant for both copyright and industrial property issues. A practical method to establish a technological basis for the protection of intellectual property rights that is used for their storing and for other purposes provides for implementation of so-called blockchain ledgers. At the same time, the main function of blockchain ledgers is to protect the rights of copyright holders and to provide them with an opportunity to use results of their intellectual activity simultaneously in several jurisdictions. In this respect, the use of distributed ledger technologies should be regulated by a system of rules established by the participants of legal relations within the framework of implementation of certain cross-border private law relations. This article considers, inter alia, lex registrum as a system of rules regulating relations under consideration.

227-250 1403
Abstract

Digital transformation of the economy has redefined approaches  to  the  issues  of  legal  capacity,   corporate   governance  and management of business processes. Traditional management mechanisms are no longer competitive unless used in conjunction with dynamically developing digital technologies. This article reviews the lifecycle of a “digital corporation” from the moment of its establishment (i.e., from the moment it acquires legal capacity), the processes related to its governance and management (intra-corporate and intra-productive relations), as well as the documentation of the outcome of its business and production activities. We discuss the “digital footprint” left by corporations in public registers, a unified space of trust implemented as  a digital interactive environment, “digital afterlife,” and the adjustment of the legal capacity of corporations in view of the automation of their business processes. Furthermore, we provide several examples of digital management tools that are replacing traditional forms of management that rely solely on human cognition. We introduce three types of digital management: remote management (exercised by humans); smart management (based on algorithms designed by human engineers); and artificial intelligence (AI) management (that does not require human involvement). The article discusses the distinctive characteristics of each of these types of management and their potential joint application. Legal risks associated with the use of digital technologies for the assessment and documentation of production and economic activities (e-accounting, cloud data, open-access information, public registers) are identified. The study relies on empirical economic, legal and technological data pertaining to the legal status of  a  modern  mixed-capital  business  corporation.  We present an overview of currently available IT solutions for digital corporation (e-corporation) management and modification of traditional management tools, and provide an assessment of the prospects for the future development of these technologies. We emphasize the role of law in the digitalization of the economy and offer approaches to legislative work aimed at the legal regulation of modern corporate management.

251-276 491
Abstract

The article examines the processes of digitalization of law, their causes, sources, driving forces, real and foreseeable consequences from a social constructivist perspective. Local experiences in the design and implementation of digitalization of criminal proceedings are described in detail, and expert assessments of the early successes and difficulties of digitalization in the sphere of rulemaking, law enforcement and law implementation in general are given. A counterpoint to the analysis of the processes of change in the legal reality, which takes place under the impact of its digitalization, is the hypothesis expressed in the literature about possible transformation of law into another social regulator or the birth of some hybrid form, which would include only certain elements of legal regulation. The article comments on the debate about the significance of digitalization for the essence of law as a social regulator. It considers the arguments of those who believe that the changes will lead to a radical transformation and the arguments of those who see these changes as merely technical details of law enforcement, not affecting its essence. Separate consideration is given to practical cases such    as the project aimed at digitalization of criminal proceedings in the UK  as well as experiments in digital, virtual and augmented reality in the   US (digital environment “META,” “virtual reality,” “reality+,” etc.). The philosophical and legal theoretical concepts of digitalization of law in the context of projects of total virtualization of reality and digitalization of social practices are critically analyzed.

277-308 483
Abstract

The paper analyzes the concept of mediatization of the legal sphere in the context of emergence of the global information and communication system. The paper proceeds as follows. First, the authors examine conceptualization of the term mediatization in domestic science. Second, the concept of mediatization is examined in the context of law as a social institution. Third, the authors provide the readers with the case study substantiating the conclusion that traditional doctrinal approaches and traditional methodology of linguistic forensic examination cannot  be applied in modern conditions. The paper examines the impact of the changes that have accrued in the media and legal sphere: new formats of information production and distribution, robotization of journalism and legal journalism, changes in approaches to the web content examination and judicial text production and distribution.

ARTIFICIAL INTELLIGENCE

309-328 729
Abstract

Artificial intelligence (AI) use in the state governance structures is obviously on the rise. Cognitive technologies have potential to transform the government sector — by reducing expenses, mundane chores, coping with resource limitations, making more accurate projections, and implementing AI into an array of organizational processes and systems. Methods. General research methods: analysis, synthesis, logical method were employed to study certain concepts and legal categories and their interrelations (artificial intelligence, artificial intelligence technologies, governance system, machine-readable law, digital state, automated decision-making, etc.) and develop insights into public relations amid proactive use of artificial intelligence systems and technologies in the governance system. Comparative legal research method was used to discern dynamics and further trends in legal relations, as well as to compare approaches of foreign countries to regulating AI systems and technologies. Prognostic method was applied to project the future   of the Russian legislation as concerns building effective legal framework to regulate AI systems and technologies in the governance system. Technical legal (dogmatic) method helped develop legal foundation for the use of technologies and AI systems in the governance sphere. The analysis showed promising theoretical and practical avenues of modern law development  in  the  aspect  of  artificial  intelligence:  the  concept  of artificial intelligence within the conceptual legal framework was described; legal regulation of administrative processes and its specifics were defined; ethics and principles of artificial intelligence application   in governance were stressed, which involves restrictions of AI use in automated decision-making; stipulating the status of informed consent  in the legislation in case an automated decision is made; the procedure which allows prohibiting the use of automated decision was established, as well as the procedure of AI risk assessment in the governance system, ensuring proper data protection and independent security monitoring.

329-342 942
Abstract

The article considers the development of predictive policing in Russia through the creation of software, based on the use of artificial intelligence (AI) to identify  serial  killers.  Forensic  modelling in crime investigation, in particular modern digital twin technology is analyzed. The system of the digital twin is trained on the basis of a set    of mathematical models of various level of complexity and specified by results of full-scale experiments. Existing approaches to solving the serial killer portrait problem are investigated. Digital twins in conjunction with machine learning can predict  the  behavior  of  the  object  under  study in the future, based on statistical data and accelerate the work of the investigator in the investigation of serial crimes.

343-354 375
Abstract

“Artificial intelligence” technologies (AI technologies) are becoming popular objects of civil rights.  Current  legislation  does not regulate relations on the creation of these results of intellectual activity and the turnover of exclusive rights to them. The current state    of doctrine and law enforcement practice demonstrates the unresolved problems associated with the legal qualification of AI technologies, the definition of their legal regime, the use of various contractual structures for the creation of these innovative intangible objects and the turnover   of exclusive rights to them. The purpose  of  the  study  is  to  consider  the key civil scientific and  practical  problems  of  AI  technologies  in  the mechanism of contractual regulation  at  the  stage  of  establishing  of legislation regulating digital relations. Methods: comparative legal method, rising from the abstract to the concrete, modeling, induction, deduction. Results and novelty: having realized the research objectives through the general scientific and private scientific methods described above, the authors considered AI technologies as independent results of intellectual activity and objects of civil rights. The factors influencing the construction of a system of contracts ensuring the turnover of exclusive rights to AI technologies are identified, in particular, the need to include conditions on confidentiality of information, on the procedure for applying a smart contract, methods of identification and authentication of the parties to contracts. A system of contracts has been developed to ensure the turnover of exclusive rights to AI technologies.

ELIMINATION OF RACIAL DISCRIMINATION

355-391 543
Abstract

Recent  years  have  demonstrated  an  increase  in  cases that  were  brought  before  the  ICJ  by  way  of  jurisdictional  clauses  of treaties, and never before has the Court experienced such a considerable influx  of  human  rights-related  claims.  In  particular,  cases  concerning racial discrimination, which first appeared in the Court’s docket in 2008, take  up  today  a  substantial  part  of  its  agenda:  three  out  of  fourteen cases currently pending before the ICJ concern issues of application of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), while the fourth one was resolved just in 2021. The  article  describes  the  problems  the  Court  encountered  in  striking the  proper  balance  between  various  legal  and  political  considerations when  interpreting  the  jurisdictional  clause  of  Article  22  of  CERD  and questions whether the ICJ has succeeded in doing so.



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ISSN 2713-0525 (Print)
ISSN 2713-0533 (Online)