This book aims to introduce a new framework of analysis for competition law and policy, but also the broader field of regulation of the food economy, drawing on the concept of global value chains. These global value chains are structures of organisation of economic activity, which are characterised by their systemic, coordination-driven nature. They rely on various systems of transnational governance and different sorts of linkages, some traditional such as contract law, others novel and relying on corporate law, property law or some more informal mechanisms, relying on information technology. For instance, GVCs are becoming a primary conduit for the transfer of intellectual property (‘IP’) globally, with the creators of intellectual products relying less on traditional IP regimes to enable them to limit access to their material, and more on a combination of contractual rights and technological protections.
In some commodity markets, including the international gas market, a system of the ‘four-legged chair’ has developed by natural evolution, which includes a) long-term contracts, b) the relatively short-term futures market, c) the spot market, d) the developed commodity exchange, which really represents the interests of key producers and buyers of goods from different countries. However, in the international food markets there is neither a normally developed system of long-term contracts, nor a fair international commodity exchange of elements. So, these markets resemble a chair with two legs, that is, an extremely shaky, unstable structure. The prices of delivery contracts of the Chicago Exchange for wheat objectively reflect the balance of supply and demand within the United States domestic market. But it is unacceptable that they are often used as a price guide in the Eastern Hemisphere, which requires the creation of a separate international commodity grain exchange. The development of instruments for exchange trading in goods at the level of the Eurasian Economic Commission and the Federal Antimonopoly Service of Russia should be welcomed. The international commodity exchange should unite, first of all, the countries of the EAEU, BRICS, Argentina, and the pool of some importing countries so as to become the basis for creating a new international grain organization. It is also necessary to work with countries in Asia and Africa to build a market for long-term ten-year food supply contracts, using wheat as a pilot project. These states should be provided all possible assistance in the creation of reserve food warehouses for the physical storage of food on their territory. Ensuring real food security for the countries of Asia and Africa will become a reliable safeguard against shattering the political situation in these states.
In Russia, during the pandemic, there has been a rapid increase in the opening of brokerage accounts by individuals, about 15 million citizens have already opened them. In the developed economies jurisdiction, as in Russia, the right to acquisition of certain high-risk financial products is conditioned by the status of a qualified investor. A feature of the new Russian regulatory approach is the opportunity to obtain partial access to complex risky assets by passing an exam without obtaining the status of a qualified investor. In this case, the examiner is a financial organization the future counterparty under a civil contract. The article analyzes the ideology of such testing using the doctrinal developments of behavioral regulation. Debatable questions are raised about the advisability of ‘qualifying’ the individuals when they purchase goods and services both within the financial markets and outside them. Also we discuss the limits of adoption by non-judicial bodies, in particular regulators, the decisions of recognition contracts as void or vice versa of mandatory conclusion of contracts. It is substantiated that testing is ideologically aimed at protecting not only retail investors, but also brokers in the stock market. At the same time, there is a need to eliminate the conflict of interest that now exists in the Russian testing system by transferring the right to test potential retail investors to organizations such as universities and after the potential investor has completed mandatory training. It is also proposed to introduce guarantee mechanisms in the Russian stock market in case of bankruptcy of brokers. Particular attention is paid to protecting the interests of elderly people. There is also a need to harmonize the criteria for allowing retail investors to acquire risky assets within the Eurasian Economic Union.
The first dispute brought by the EU under its bilateral trade agreements, Ukraine – Export Restrictions on Wood, was in many respects a typical World Trade Organization (WTO) case. A panel of three arbitrators, including two prominent and highly experienced WTO adjudicators, was to rule on consistency of the respondent’s export bans with Articles XI and XX of the General Agreement on Tariffs and Trade, incorporated by reference into the EUUkraine Association Agreement. The latter, moreover, explicitly requires that arbitrators rely on the WTO jurisprudence – which they, technically, did. Yet, the arbitration panel appears to have shown more deference to the respondent than any WTO panel ever has (or would). By contrasting the reasoning of the arbitration panel with that of WTO panels deciding similar issues, the article questions whether WTO law may take a more deferential path outside the WTO.
In international law, there is no directly prescribed duty of states to create the institution of financial ombudsman. However, in practice this institution is in real terms very popular for effectiveness in various forms. This paper analyzes the models of financial ombudsman in some of the leading European jurisdictions as well as the Russian model and its distinction from all these models. The successful introduction of compulsory financial ombudsmen according to a new Russian law is impossible without deep integration of this institution with the general civil procedure legislation. The Russian financial ombudsman is authorized by law to partially create for himself the rules for resolving disputes, which in essence gives him the right to create rules of civil procedural law. Since pre-trial settlement of certain categories of civil disputes in the financial markets through the financial ombudsman system is mandatory, providing him with unlimited discretion to determine the amount of the fee for considering a case, this can create a conflict of interest in his or her activities. The new Russian law is criticized for numerous inconsistencies with civil procedure legislation, without the elimination of which the practical work of the financial ombudsmen will be ineffective. I offer some legal approaches for the development of this institution. The competence of the further alternative dispute resolution (ADR) Russian institutions depends on the success or failure of the financial ombudsman.
Simple and elegant as a theoretical concept, an appropriate level of sanitary or phytosanitary protection (ALOP) has proven complicated to implement in World Trade Organization (WTO) dispute settlement. While the Appellate Body has insisted that ALOP must be defined with sufficient precision to apply the relevant provisions of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), ‘high or conservative’ remains as precise a formulation of ALOP as one can get. Despite the Appellate Body’s clear guidance that SPS measures are not to be confused with ALOP, panels – including the Appellate Body – have routinely mistaken one for the other. The most to suffer has been Article 5.5 of the SPS Agreement, which prohibits ‘arbitrary distinctions’ in ALOPs applied ‘in different situations.’ By substituting differences in SPS measures for differences in ALOPs and finding two different situations, i.e., two ALOPs, where there is only one, the jurisprudence has eviscerated this provision of its meaning and converted it into a peculiar version of the least-trade-restrictive-measure requirement. This article takes stock of the panel and Appellate Body jurisprudence on ALOP and offers some thoughts, de interpretatione ferenda, on the direction future jurisprudence should take.
These days, the world and every country in it are faced with the task of ensuring food security for people. It’s of current interest also for the BRICS countries. The ability to access genetic information and materials for seed production depends on intellectual property regimes. A lack of access to them is a main barrier for contribution in the development of plant varieties. This situation leads to dependence on obtaining hybrid varieties from foreign companies, which poses a threat to food security. It seems that to ensure freedom of research priorities there is a need to provide an opportunity to commercialize new breeding achievements resulting from such discoveries. Correct policymaking also includes the issue of regulating the situation when a patent and a certi cate of ownership of the new plant variety are issued to di erent persons or companies. Capturing in legislation the breeders’ exception is necessary for the use of the patented invention in the frame of creating, discovering and developing a new plant variety. The biodiversity of seeds is a high stakes matter especially for the developing countries, where there are many challenges for smallholder farmers. The guarantee of the farmers’ right to use the saved seeds on their own farms and to exchange such seeds between themselves may be one of the aspects of food security as it is a base of the traditional agriculture economy in some countries, where smallholder farmers play a signi cant agricultural role. Also the position and scope of farmers’ rights and privileges, based on legislation and, especially, on judicial cases, shows a side of independence on international corporations in the agricultural sector.
Currently, there is a need for reform of global monetary circulation and credit, which in a sense has stalled. The key is to restore the connection between monetary circulation and real production. In the first part of this study, I provide a brief analysis of the catastrophic consequences that the current design of reserve currencies has led to for the world economy. At the same time, the transition from the dollar to other reserve currencies operating on the same principles, the ethos of which is now being actively promoted in the West, will not improve the situation. In the second part, I demonstrate the efforts being made to de-dollarize settlements by both the BRICS, the EU, and the EAEU countries. The third part shows the successful historical experience of the transferable ruble as an international currency that functioned in 1960-1980 on non-discriminatory principles within the Council for Mutual Economic Assistance (CMEA). In the fourth part, the international currencies already functioning in the world are described, as well as some existing proposals for the introduction of new international currencies. I argue that reliable physical access to reserves in basic food and medicines in controlled warehouses is becoming a matter of great importance. The transition is necessary from the ideology of reserve currencies to the ideology of reserves of critical goods. Such an incentive of a new BRICS currency on the demand side will be food and healthcare security. On the supply side, for all states that have established a currency, there should be a clear vision of how they can develop their exports using this currency. In order to secure currency, such goods must be pledged to international BRICS warehouses that correspond to the main export directions of the project countries and/or are critical for their import. These are basic foods such as grains, then medicines, fuel and energy resources, and metals.
This paper evaluates current food commodity trading from the Shariah point of view, which is particularly relevant for the MENA region. It focuses on futures contracts as the main instrument for grain trading and analyzes the traders’ activities. Through a qualitative and multifaceted approach, the paper accumulates and evaluates the suggestions for 15 Shariah-based alternatives to futures by contemporary researchers. Sukuk, commodity funds and takaful programs are among potential structures that could be developed and broadly implemented. The research compares the current criticism of futures markets with the opinions of Islamic scholars and researchers, as well as Shariah standards. The paper also evaluates several recent suggestions by researchers to raise the efficiency of the international commodity trading market for the sake of food security. The results show that there is space for cooperation taking into account Islamic financial principles and conventional commodity exchange regulations, in combining existing best practices of the latter and the rulings of the former in engineering a sounder system of grain trading for the benefit of market players and the end consumers. This would require a joint effort and support from exchanges, standard-setting bodies, and regulators. Among the areas of cooperation are the approach towards corners (ihtikar), squeezes, speculation (gharar, maysir, and najash), and defining the border between reasonable and excess speculation; financial architecture using new technologies in developing a commodity trading contract conforming to the Shariah regulations and the exchange requirements. There is a need to develop the ideas for global food contracts and grain reserve systems, and to test the contracts based on existing exchanges.
The article provides an overview of the Islamic finance market in Russia. It accumulated data on 30+ Islamic finance institutions and products launched between 2010 and 2019, including discontinued ones. The range includes banks, non-banking microfinance institutions, mutual investment funds, housing cooperatives, investment companies and others. The article provides the author’s assessment of the market size and its dynamics between 2011 and 2019. It analyzes the range of Islamic finance products rendered by the market players, including the industry break down of certain Islamic finance companies. The article summarizes the results of the survey, conducted among the owners and managers of the Islamic finance institutions. It shows the range of opinions regarding the lack of market special regulation and elicits factors influencing the market and impeding its development. The main legal and tax hurdles for the Islamic finance market, in Russia, are analyzed. The results show that the market is still not mature and lacks internal competition. The geographical reach of Islamic financial services is limited. Despite the lack of Islamic banking law, the market size is comparable to that of Kazakhstan. The lack of market regulation is a negative side that holds back the potential newcomers and clients, and, on the contrary, the relative market freedom allows the existing companies to experiment and make use of the emerging niche segment. There is an acute necessity of a tax-friendly regime for murabaha financing and mudaraba-based investment accounts, and a level playing field concerning the mechanisms of state subsidies. Among potential solutions that could contribute to the market development is the creation of a self-regulatory organization that could establish internal standards, develop liquidity management tools and create a proper mediation of arbitrage system, as well as organize takaful funds. Based on the analysis, the author makes a forecast for further market development.
The author explores the three myths on which, much like the myth of three whales, the current regime of intellectual property protection in post-Soviet Russia is based, which primarily serves the interests of transnational monopolies to the detriment of Russian economic and human development, especially in the sphere of startup entrepreneurship and innovation. These are the myths of legal monopoly, of great stimulus and of the benevolent foreign investor. The author shows on the basis of numerous economic research and empirical data that the widely accepted in Russian jurisprudence concept of legal monopoly is just a rhetorical method used to deviate from a meaningful discussion about the detriments brought to the Russian economy by the abnormally hefty exemptions for IP rights in Russian competition law; intellectual property protection is not a panacea for incentivising innovation and creativity, and being fully exempted from the competition law it stifles rather than stimulates innovation; and a overly strict regime for intellectual property protection doesn’t make Russia or any other developing country more attractive for direct foreign investors but on the contrary allows global corporations to extract more resources from the Russian consumers without any efforts to bring more production or R&D to the country.