EURussiaCentreEU-Russia Centre

26 апреля 2010: Встреча Центра ЕС-Россия и Правового Центра ЕС-Россия с экспертами Министерства юстиции

On April 26th EU-Russia Centre Director, Fraser Cameron and Advisory Board member, Professor Bill Bowring were joined by barrister, Rupert D’Cruz and ex UK Ambassador to Russia, Sir Andrew Wood, to brief Ministry of Justice officials on the rule of law in Russia and the prospects for reform.

The Head of the Ministry’s International Directorate, Catriona Laing, welcomed speakers underlining the interest that the UK had in the effective rule of law in Russia given that we were living in an increasingly interdependent world.

Sir Andrew Wood gave an insight into the structure of power in Russia today, which had benefited from reforms brought in by ex President Putin such as budgetary discipline and legal reform affecting commerce. There had also been less beneficial moves such as the ‘vertical of power’ – the concentration of power in the hands of a few people around Putin. This did not change when Medvedev took over as President. These people saw themselves as having authority beyond the law and were not committed to a more liberal, democratic Russia. Russia was also vulnerable as a petrostate, increasingly dependent upon natural resources following the global economic crisis. The lack of investment in infrastructure and innovation meant that the country was as President Medvedev had pointed out in perilous stasis. The 2011 Duma and 2012 Presidential elections did not seem likely to produce significant changes in the governing structures.

Dr Fraser Cameron gave an overview of the current structures supporting the relationship between the EU and Russia such as the PCA and summits. He was encouraged by President Medvedev’s modernisation agenda and commitment to the rule of law, as well as the recent ratification of Protocol 14 concerning the Council of Europe. Even if there were doubts about Russia’s commitment to pursuing the modernisation agenda he considered the EU had no alternative but to support those pressing for reform. It was important that the EU presented a united front as Russia was always ready to play ‘divide and rule.’ It was increasingly obvious to MFAs in Europe that they were more likely to secure their national interests vis-à-vis Russia if they worked through the EU, rather than as individual member states.

Russia had been losing out on foreign investment to countries like China because of what President Medvedev called ‘legal nihilism.’ The top leadership seemed to realise that changes were necessary but bringing about such changes would not be easy given the interests involved in maintaining the status quo.

Rupert D’Cruz gave an insight into the redress that UK companies have when dealing with the Russian courts and the difficulties that they often face because of the limited level of experience among many judges in relation to complex commercial disputes. There were two main questions that needed to be resolved early on in any dispute – where the dispute should be determined and whether it should be resolved by mediation/arbitration or through the courts. In order to avoid the potential pitfalls of the Russian system, he emphasised the importance of including a clause within contracts as to where disputes would be settled, pointing out that many Russian companies chose to use English courts. In fact over 50% of cases that came before the English commercial courts did not involve English companies and two-thirds of cases included at least one foreign party.

Litigation in Russia was document based, with little opportunity for cross examination and oral hearings. Cases often lasted less than a day and disclosure rules meant that companies were only obliged to present documents that were useful to their case. Failure to comply with court orders was common in Russia and there was little scope for interim relief in the form of asset freezing, etc.

Traditionally, corruption had been a problem in the Russian legal system; Transparency International had estimated that £300 billion was paid in bribes in 2009. However, Mr D’Cruz pointed to recent improvements in the legal framework particularly as regards transparency and consistency, including the publication of arbitrazh court decisions. Corporate raiding had become more widespread in recent years, with 75% of Russian SMEs reporting attempted takeovers. According to some experts, Russia could be the biggest economy in Europe by 2050; but unless it could improve the rule of law, it would fail to maximise its future foreign investments and limit its potential for economic growth.

Professor Bill Bowring pointed out that Britain and Russia have much in common, with a shared history of empire dating back to the 16th century, when Ivan IV (the Terrible) sought to marry Elizabeth I. Law as an academic discipline began in Russia with Semyon Desnitsky, who studied in Glasgow for a Doctorate in Civil Law in the 1760s under Adam Smith. In 1996 Russia became a member of the Council of Europe – an irony, since the Council was created as the ideological counterpart of NATO in the Cold War – and has largely kept the 29 promises that it made on joining. The serious judicial reform projects begun in the late ‘90s – a restoration of the great judicial reforms of Tsar Aleksandr II of 1864, including jury trial – stalled abruptly with the arrest of Khodorkovsky and the attack on YUKOS in late 2003. The European Convention on Human Rights has been part of Russian law since 1998, and the Russian judge at Strasbourg, Anatoliy Kovler, is one of the best judges there, usually voting against Russia. Today 25% of complaints to the European Court of Human Rights are from Russians, and a high proportion of successful judgments against Russia concern non-execution of domestic judicial decisions or excessive length of proceedings. But in many cases the Court condemns gross violations of human rights in Chechnya, inhuman and degrading treatment of prisoners in Russia’s penitentiary system, and torture and other abuses by the police.

Professor Bill Bowring is chair of the EU-Russia Legal Forum, which will be hosting a number of events over the coming months.