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Актуальные проблемы международного права

citizens. However, over time, after the strengthening of the Soviet authorities, Belgium began to apply the laws of the Soviet Union. In 1935, the Minister of Foreign Affairs of Belgium filed an official application to the court so that the judges would not take into account the non-recognition of the Soviet government and apply the laws of the USSR in accordance with conflict of laws norms. It should be noted that the Belgian courts proceeded from the criterion of effectiveness. In the case of the Soviet Union, the government became stronger in the international arena over time, and the courts could rely on the effectiveness of the application of Soviet laws. United Kingdom, Switzerland, United States of America, Japan etc. have the same position.

Thereby, according to case law examples, most of the countries adhere to efficiency position. The position of the International Court of Justice of the United Nations, indicated above should be taken into account.

To sum it up, I highlight the main points:

1.legal determination of the status of unrecognized States is impossible with the help of instruments of international treaty law and customary international law (judicial decisions are not enough);

2.international law do not prohibit the existence of such entities;

3.the judicial practice of a number of countries and the doctrine of private international law allow the possibility of applying the law of unrecognized States.

As far as I am able to judge, the most appropriate way is to adopt universal imperative document (based on UN) which will establish a framework for the status of the State. Moreover, the rules of statehood must be developed.

Семцива С. И.,

студент Финансовый университет при Правительстве Российской Федерации (ФУ)

Москва

Semtsiva S. I., student

Financial University under the Government of the Russian Federation (FU) Moscow

To the question of digital (artificial) immortality

For centuries, people have been trying to find a way to live forever. With the penetration of artificial intelligence (AI) into almost all spheres of society, an opinion has arisen that with the help of the latest developments in the field of AI, humanity will be able to achieve immortality (Ivanchenko, 2021)1.

1 M. A. Ivanchenko Philosophical Comprehension of the Phenomenon of Immortality in Paradigms of Transhumanism, Posthumanism and Essentiocognitivism // Galactica Media: Journal of Media Studies. 2021. № 1.

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The technical standard GOST R 43.0.8-20171 defines AI as a simulated (artificially reproducible) intellectual activity of human thinking. Considering the issue of selfdetermination and consciousness, V. L. Levi noted that «an automaton that has realized its automaticity ceases to be just an automaton» (Levi, 1977, p. 17)2. Mind clones are self-aware digital beings capable of thinking, reasoning and remembering. So, Bina48 «remembers» everything that is in the memory of Bina Aspen, and realizes that she is a real person (Rothblatt on AI)3. Does this mean that she is not an automaton, not a robot with artificial intelligence? It seems to the author of this article that there is not, because no system can feel, and not just reproduce the embedded program.

There are special platforms dedicated to creating digital immortals, for example, Eter94, Lifenaut5 and Eterni.me6. Each of them has its own specifics, but they are united by one goal: to recreate a person in digital reality. It is assumed that the virtual version of the individual will interact with the world in the same way as the original (Savin-Baden, 2019)7. To do this, a mindfile and an avatar will be created. According to the official portal Eter9, more than 100,000 people queued up to create a «digital Self». You can create a mindfile on the official Lifenaut website by uploading information to a digital archive. The user can also create an avatar, a conscious analogue of a person, which will be uploaded into a biological or nanotechnological body to provide a life experience comparable to the original (human experience)8.

It is believed that the «digital immortal» will act reasonably, but the positioning of the creators of such AI platforms as «copies of your virtual self» raises doubts about its legal personality. The term «artificial intelligence» is currently used as an object of

1 GOST R 43.0.8-2017. National Standard of the Russian Federation. Information support of equipment and operator activities. Artificially intellectualized interaction of a person and information. General provisions (approved and put into effect by Rosstandart Order No 757-st dated 27.07.2017) // Moscow: Standartinform. 2018.

2Levi V. L. The Art of being yourself. (Second edition, revised and supplemented). M., Knowledge. 1977. 208 p.

3Martine Rothblatt on AI, mind clones and the future of the self // Campaign. URL: https://www. campaignlive.co.uk/article/martine-rothblatt-ai-mind-clones-future-self/1338436.

4URL: https://www.eter9.com/.

5URL: https://www.lifenaut.com/.

6URL: https://www.facebook.com/EternimeApp/.

7M. Savin-Baden, D. Burden Digital Immortality and Virtual Humans // Postdigital Science and Education. April 2019 // URL: https://www.researchgate.net/publication/327918614_Digital_ Immortality_and_Virtual_Humans.

8Use of Digital Mindfiles to Preserve Life Pending Revival Via Mindware, Cyber-Consciousness & Mindloading. Terasem Movement Foundation. Philosophical Writings on Mind Uploading/ Downloading // URL: https://terasemmovementfoundation.com/philop_files/cybernetic_biostasis_ e1909/img0.html.

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law. Thus, the International Classification of Goods and Services for the Registration of Marks (ICTU)1 contains the following type of product: «Humanoid robots with artificial intelligence» (Class 09, base No 090778). Also, in the National Federal Program «Digital Economy of the Russian Federation»2, artificial intelligence is classified as the main end-to-end digital technologies that fall within the framework of this Program. In our opinion, this focuses on the essence of AI as an object of law used for specific purposes, that is, it is inappropriate to talk about the legal personality of AI as a «copy» or, more precisely, a «projection» of a person.

According to A. A. Bolonkin, «the soul is only a complex of knowledge, life experience and those programs that are embedded in a person. By rewriting all this on another medium, we will thereby relocate the human soul. And then he will become immortal» (Bolonkin, 2003)3. The subject of a number of scientific papers is personality, the «displacement» of the mind, as well as theories based on calculations and proving life after death, which will radically change with the help of AI (Steinhart, 2014)4. Speaking about transferring the memories of a particular person into a special simulation (electronic projection), it is worth noting that we are talking about a «strong AI»5, the manifestations of which are rather isolated. According to the experts of Sberbank Robotics Laboratory, the possibilities of using such technologies until 2023 remain only at the research stage6.

If we assume that the «digital immortal» is an extension of a person, is it possible to talk about a person and his consciousness after death? Will the «digital immortal» have legal capacity, and therefore have rights and responsibilities in the same way as the original? Thus, in accordance with Part 2 of Article 17 of the Civil Code of the Russian Federation7, the legal capacity of an individual arises at the time of his birth and ends with death. It is worth noting that the legislator in the Decree of the Government of the Russian Federation

1International Classification of Goods and Services for Registration of Marks (ICTU-11) (Adopted in Nice on 15.06.1957) (with amendments and add. from 2021) // Official website of the Federal Service for Intellectual Property (Rospatent) URL: https://rospatent.gov.ru/.

2Passport of the national project «Digital Economy of the Russian Federation» (approved by the Presidium of the Presidential Council for Strategic Development and National Projects, Protocol No 7 dated 04.06.2019) // The text has not been officially published.

3Bolonkin A. A. There is one step left to immortality. Arguments and facts. 2003. July 29 // URL: https://archive.aif.ru/archive/1629556.

4Steinhart E. C. (2014). Your digital afterlives. Hampshire: Palgrave MacMillan.

5Raikov A. N. Weak VS strong artificial intelligence // Informatization and communication. 2020. No 1. P. 81–88.

6Sberbank. Analytical review of the global robotics market 2019 // URL: https://adindex.ru/files2/ access/2019_07/273895_sberbank_robotics_review_2019_17.07.2019_m.pdf.

7The Civil Code of the Russian Federation (Part one) of 30.11.1994 No 51-FZ (ed. of 28.06.2021, with amendments. dated 08.07.2021) // SZ RF. 1994. No 32. St. 3301.

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dated September 20, 2012 No 9501 specifies the moment of death as «the moment of brain death or biological death (irreversible death of a person).» Can we say that by transferring memories and other information to the «memory file», it will no longer be possible to recognize the fact of a person’s death in accordance with the norms of law?

Creator Eterni.me Marius Ursace made live communication with the «digital immortals» the main goal of his project. He also considered the possibility for characters created on the SecondLife2 platform for entertainment purposes to continue active online activities even after their creator stops using them. If, when talking about creating your own «virtual self», you can talk about a «digital projection of personality», then what will a digital character be like who has been «prescribed» an excellent behavior model? In this case, AI will no longer be a reflection of a specific individual — the original, therefore it is impossible to talk about preserving the rights and obligations that a person had before death.

Is it possible to transfer human memories, emotions, etc. into a special program? As G. D. Bollmer notes, «the «life» created from the data left by a person on the network becomes beyond his control» (Bollmer, 2013)3. Creating a digital projection of a person requires careful consideration of informed consent, including discussion of the future image and presentation of data, as well as agreements for the dissemination of data, including after death. It is proposed to pay special attention to verifying the reliability of the collected data and agreeing on their interpretations (Burden, 2020)4.

Summing up, I would like to note the need for further development of legislation in this area, the creation of a legal definition of AI, which allows taking into account AI technologies created in the future and the risk analysis of its implementation. The Regulation of the European Parliament and the Council5, among other things, focuses on the fact that AI, depending on the circumstances concerning its specific application and use, can create risks and harm public and personal interests and rights (Article 4). Until AI acts consciously and a single legislative mechanism is created to regulate this issue, the creation of «digital projections» of a person seems impractical.

1Decree of the Government of the Russian Federation No 950 dated 09/20/2012 «On approval of the Rules for determining the moment of death of a person, including the criteria and procedure for determining the death of a person, the Rules for stopping resuscitation measures and the form of the protocol for determining the death of a person» // SZ RF. 09/24/2012. No 39. St. 5289.

2URL: https://secondlife.com/.

3Bollmer G. D. Millions Now Living Will Never Die: Cultural Anxieties About the Afterlife of Information // The Information Society. 2013. № 3 (29). С. 142–151.

4Burden D. S., Savin-Baden, M. (2020). Virtual Humans: Today and Tomorrow. Великобритания: Taylor & Francis Group.

5Proposal For A Regulation Of The European Parliament And Оf The Council Laying Down Harmonized Rules On Artificial Intelligence (Artificial Intelligence Act) And Amending Certain Union Legislative Acts {SEC(2021) 167 final} — {SWD(2021) 84 final} — {SWD(2021) 85 final} Brussels, 21.04.2021 COM(2021) 206 final 2021/0106(COD) // URL: https://eur-lex.europa.eu/legal-content/EN/TX T/?qid=1623335154975&uri=CELEX%3A52021PC0206.

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Стратан Д. Д.,

студент Университет имени О.Е. Кутафина (МГЮА)

Москва

Stratan D. D., student

Kutafin Moscow State Law University (MSAL) Moscow

Legal effects of restrictions on international contracts and their conformity with private international law

Imposed sanctions because of the situation in Ukraine have different side effects for international contracts. It is considered to be the topic under discussion that is at the center of attention of foreign counterparts due to the strict liability established by United Nations and European Union legislation. The main restrictions deal with the freezing of assets. However, it is not only for governmental property, but also for private capital.

Prohibition of export or import to or from the country of one of the contracting parties, making it impossible to perform the contract, is a ground for exemption from liability for nonperformance of obligations under the contract. It is likely to be the force majeure in line for the position of the Chamber of Commerce and Industry of the Russia Federation and the International Commercial Arbitration Court. The United Nations Convention on Contracts for the International Sale of Goods, signed in 1980, allows a party to a contract breaching it to be relieved from responsibility. It is possible in case of the non-performance occurred due to circumstances beyond its control, as well as through the fault of a third party, if the nonperformance of such a third party occurred1. This means that if the Vienna Convention applies to the relationship, the seller is not liable to the buyer for non-fulfillment of its obligations to deliver the goods. It has legal force if it is caused by the seller’s inability to import the goods or receive the goods from a third party due to force majeure circumstances. So, in relevant situations the imposition of sanctions may be regarded as circumstances of force majeure.

Despite the procedure established by the Regulation for confirming force majeure circumstances, it is advisable for the interested party to immediately notify its counterparties of the occurrence of such circumstances, without waiting for the Certificate. As a rule, the contractual terms of force majeure assume the obligation to notify the counterparty within the period beginning to flow from the moment of occurrence of the relevant circumstances, and not from the moment of receipt of the Certificate. Therefore, while waiting for the Certificate to be produced, the interested party risks missing the deadline and losing the right to refer to the circumstances of force majeure as the basis for exemption from liability.

There is a great example of protecting the national corporation. «Uraltransmash» has purchased tramcars from the Polish company RTS PESA Bydgoszcz. Under the

1 United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG).

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terms of the contract, the settlement of disputes between the parties was provided for in the Arbitration Institute of the Stockholm Chamber of Commerce. Subsequently, the seller, referring to the non-payment of the goods, initiated arbitration proceedings in the Stockholm Arbitration, demanding to recover from the counterparty over 55 million euros of debt under the contract, interest and penalties. Taking part in the proceedings in international arbitration, «Uraltransmash» simultaneously appealed to the Arbitration Court of the Sverdlovsk region. In substantiation of the requirements, «Uraltransmash» referred to the provisions of Articles 248.1 and 248.2 of the Administrative and Legal Codе. He pointed out that it was involved in arbitration proceedings in a foreign jurisdiction, and the application of restrictive measures to it by the United States and a number of European states, which amounted to a ban on its trading activities and participation in a number of foreign economic transactions. To his mind, it was sufficient to satisfy his application and impose a ban on continuing the arbitration proceedings in Stockholm. Although the Supreme Court consider that the use of restrictive measures have already created obstacles for the Russian side in access to justice, the lawsuit was rejected. That is why expressed will in procedural form is sufficient to transfer the dispute to the jurisdiction of the Russian arbitration court1. So, expressed will in procedural form is sufficient to transfer the dispute to the jurisdiction of the Russian arbitration court

It is necessary to mention destructive effects of sanctions on private international law. European sanctions, which provide for the blocking of citizens’ assets, may conflict with the norms of the Charter of the European Union on Human Rights. According to Article 17 of the Charter, every person has the right to own property that he acquired legally and no one can be deprived of his property, except for reasons of public benefit and on legal grounds2. Similar provisions are contained in the European Convention on Human Rights. In accordance with Article 1, every natural or legal person has the right to respect for property and no one can be deprived of their property except in the interests of society and under the conditions stipulated by law3. The EU bases its sanctions on Articles 21 and 29 of the Treaty on the European Union. Article 21 of the treaty contains common values that should be protected by EU members. These include the preservation of peace, support for democracy and international security. Sanctions are usually applied to persons who, in the opinion of the EU, undermine or threaten the values of international law. At the same time, the EU Council recognizes that sanctions may also apply to persons associated with those responsible for illegal actions of States.

In conclusion, legal effects of restrictions on international contracts is harmful for international and national economy. That is why Russian businessmen try to protect their rights applying to a court. Moreover, restrictions against Russia is incompatible with the rules of international private law.

1Сode of administrative judicial procedure of the Russian Federation, 2015.

2Сharter of fundamental rights of the European Union, 2000.

3Convention for the Protection of Human Rights and Fundamental Freedoms, 1950.

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Шекина С. В.,

студент Московский государственный институт международных отношений (МГИМО) Москва

Shekina S. V., student

Moscow State Institute of International Relations (MGIMO) Moscow

The determination of the applicable law in respect of cultural property-related disputes within

the context of modern private international law

As one Carthaginian warlord once said, «Aut viam inveniam aut faciam», which means «I will find the way, or I will make one» and is to date a good relevant expression given that the world around us keeps changing. The present article discusses the problematic and controversial issues and statutory instruments containing regulation of the latter relating to Private International Law, as well as provides a vision for the future of the conflict of laws, in the light of the theme designated by us herein — cultural property-related disputes involving a cross-border element. It should be also noted that the international court practice is analysed by the reference to a series of legal cases.

Illegal trade has always constituted the most widespread type of crimes, with art objects being titbits for thieves, tomb-raiders, forgers and inexperienced or unconscionable art-dealers. Regarding the disputes, arising from such a stream of commerce, Private International Law is notable for the following inherent difficulty: case decisions are defined in accordance with the way in which different countries «choose to allocate burdens, rights and responsibilities between two relative innocents: original owners and subsequent purchasers»1. This principle does not have international legal confirmation and is set forth primarily in domestic legislations, which is its crucial problem and the core aspect of the present article. In the countries of the continental legal tradition, which favour the protection of commercial transactions, good-faith purchasers have more privileged position than original owners, even in cases where the ownership title is obtained from a thief. This finds its reflection in application of lex rei sitae (lex situs) rule, under which the dispute is settled subject to law of the state, where the cultural heritage object is located at the time of the last transaction. It hardly needs saying that criminals tend to hide their transactions and shift the artefacts to favorable jurisdictions, protecting subsequent purchasers’ rights and interests. By contrast, common law jurisdictions adhere to the principle «nemo dat quod non habet», which stands for «no one can transfer title on stolen property». The amount of cases, meanwhile, relating to illegal trafficking of pieces of art within the both legal

1 Derek Fincham. How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property // Columbia journal of the law & and the arts. 1/29/2009. P. 141.

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systems has been growing year after year, calling for the answer to this challenge of time. Many scholars see it in the resort to lex originis, which is being more and more considered the way to impede the flow of illicit cultural values. Thus, «not only are the rules of Private International Law different from State to State, but they are also not tailored to lawsuits dealing with the delicate question of combatting illicit trade of cultural property.»1

Let us remember the theft of an art object that represents for plenty of people an embodiment of culture — Leonardo da Vinci’s Mona Lisa in 1911. The subsequent successful acquisition of this masterpiece in 1913 was based on two factors: firstly, «this case was easy to resolve, as the work was so valuable and famous that it was unmerchantable»2. Further, the reviewed background illustrates the practice that intrastate transactions, involving cultural objects, are primarily governed by the laws of only one jurisdiction, conferring the parties equal opportunities. This misappropriation of Gioconda being complexified by multiple jurisdictions, having different rules of law and hence providing different treatment of similar, one would think, cases, the outcome of the lawsuit would have been unpredictable. That is exactly what took place in respect of the legal proceedings, examined hereinafter.

The application of lex situs rule and its «side-effects» in cultural property-related cases are prominently presented in, for instance, the Winkworth case, where the dispute had arisen from ownership of netsuke — tiny carved sculptures, which are specific for Japanese culture. Under the gist of the case, the collection, originally belonging to an English collector William Winkworth, was stolen from him and later smuggled to Italy. The miniatures’ fate was later such that they were acquired by his counterpart, an Italian collector Paolo D’Annone. In 1977 the new owner decided to present the netsuke at Christie’s auction, where the carved fishes, tigers and laughing Budais were accidently spotted by Winkworth. The miniatures’ legal fate turned out to be more interesting: the English court seised of the matter did not accept Winkworth’s position, suing at law, and, by virtue of the English conflict of laws rules and lex rei sitae, chose Italian law as applicable one. Eventually, the court held that Winkworth’s title had been extinguished on the grounds that D’Annone was subsequent, but, what turned out to be crucial, good-faith purchaser under Italian jurisdiction.

By contrast, fundamentally different approach is demonstrated by common law courts and their priority given to lex originis. On this occasion, the Goldberg case, referred to as the benchmark, shall be focused on. The subject matter of the case was larceny and illicit removal of the unique Greek mosaics, depicting the Holy Apostles. These objects became in relation to these events known as «the Stolen Angels». The mosaics were taken from a Cypriot church and found a new owner, in the nature of things the bona fide one, in the person of an American art-dealer Peg Goldberg. The proceeding resulted in the restitution of the mosaics under Indiana state law, which was found governing by the court of law —

1A. Chechi When Private International Law Meets Cultural Heritage Law — Problems and Prospects. P. 269–293 ; Yearbook of Private International Law, Volume 19 (2017/2018), Verlag Dr. Otto Schmidt & Swiss Institute of Comparative Law.

2Derek Fincham. How Adopting the Lex Originis Rule Can Impede the Flow of Illicit Cultural Property // Columbia journal of the law & and the arts. 1/29/2009. P. 112.

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without, curiously, even applying the law of the State that had the most evident cultural and historical connection to the mosaics and hence a truly legitimate claim — Cyprus.

We also find incredibly interesting another case, which more recently appeared on the horizon of the International Private law: the Budda Mummy case, the opposing parties wherein are the Chinese village committee and the Dutch art-collector. Thus, the merits of the case created an uncommon legal collision because the latter have illicitly transported not only a valuable cultural object, but a golden statue, containing human remains. The point is that for the locals the disputed statue was more than a few pounds of gold. They have been deprived of their relic. Neither the parties to the dispute, nor the international community have got the ruling of the court of law, but it hardly needs emphasizing that everything depends on the legal nature of the mummy, contained in the statue. Anyway, no person, including a good-faith purchaser, can own somebody else’s corpse both in civil law and common law systems.

Traditionally, it is believed that simplicity, objectivity, transparency, legal certainty and ease of application have elevated the lex rei sitae rule to its dominant position. The question arises, since when does the ease of use overlap the fact that the title of the true owner is systematically ignored and extinguished? The opponents’ of the reexamination of the established approach arguments, satisfied with lex situs, also sound unconvincing — «Indeed, in an ideal world, there should be no argument that the country of origin has the closest connection and the most legitimate claim to apply its own law in determining the ownership of objects comprising its cultural heritage… However, the fact that only twentythree countries ratified or acceded to the UNIDROIT Convention serves as a reminder that we live in a world that is less than ideal.»1

Nevertheless, we sincerely believe that international efforts of facilitating the return of stolen or illicitly exported cultural objects to their country of origin are not doomed to be fruitless. After all — unique cultural heritage, contrary to any other disputed property, often represents not only private, but also public interest — relics are ripped out of archeological sites, stolen from museums, palaces and even churches. The objective to promote the preservation, protection and the return of illegally trafficked cultural treasures is shared in a range of international conventions and national legislations: Directive 2014/60/EU on the return of cultural property; Article 36 of the EU Treaty, defining the notion of «national treasures»; The UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, etc. Regrettably, unbridled reign of lex rei sitae erases the efforts, laid down in these disparate legal instruments, to dust, whereas the international community lacks in the unified effective source of regulation. That is the reason why a number of scholars have argued that civilian jurisdictions should amend their choice of law rules to accommodate the common law view. Resort to lex originis will not only ensure the security of art and antiquities transactions, but «will also bring much-needed transparency into the cultural property trade, and will

1 Symeon C. Symeonides. A Choice-of-Law Rule for Conflflicts Involving Stolen Cultural Property // Vanderbilt Journal of Transnational Law 2005. Vol. 38, art. 10.

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decrease the theft and illegal excavation of art and antiquities.»1 Moreover, by virtue of the specific nature and special value of the cultural objects, the legislator shall be vocal about adoption of a unified international legal instrument, which would have dealt with the issues, including the transfer of ownership of cultural objects, development of their the updated classification, as well as the the determination of the applicable law in respect of cultural property-related disputes.

Ширяева Д. И.,

студент Российская академия внешней торговли (РФТА)

Москва

Shiryaeva D. I., student

Russian Foreign Trade Academy (RFTA) Moscow

Special purpose acquisition companies (SPACs): potential risks and prospects for cross-border regulation

Introduction

The abbreviation «SPAC» stands for the term «special purpose acquisition company» or a «blank company». The main idea of the SPAC is to allow a perspective young company or start-up go public bypassing complicated time-consuming IPO process. One of the main U.S. financial authorities — the Securities and Exchange Commission (SEC) defines a blank check company as a special type of shell company that has no specific objectives or business plan, but the main purpose of which is to find a so-called «target company» for the subsequent merger or acquisition. As the Commission states, the SPAC «is created specifically to pool funds in order to finance a merger or acquisition opportunity within a set timeframe»2.

The idea of SPACs emerged in the early 90s, however, there was no sufficient legal framework at that time to legitimate govern the stock exchange listing process for blank companies. In 1993 the U. S. Securities Act of 1933 was significantly amended. The new edition included, inter alia, Rule 419 governing public offerings by blank check companies, which attracted much attention to SPACs. The dotcom crisis that broke out in 2003 discouraged potential investors from using this new mechanism. However, in the 2010s the idea received a second life, and there has been a real boom on the U.S. market: starting

1Patricia Youngblood Reyhan. A Chaotic Palette: Conflict of Laws in Litigation between Original Owners and Good-Faith Purchasers of Stolen Art // 50 DUKE L.J. 955, 962 (2001).

2Staff Statement on Accounting and Reporting Considerations for Warrants Issued by Special Purpose Acquisition Companies («SPACs») // URL: https://www.sec.gov/news/public-statement/ accounting-reporting-warrants-issued-spacs.

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