ILFP-2013: on trials and parties to them

21.05.2013

There is no doubt that the III International Law Forum of Saint Petersburg was one of the most important legal events of the last week. At the Forum, the best representatives of the legal profession from all over the world discussed the issues of public law, corporate practice, standards of the legal profession, advocacy and notarial activity, Russian and international legal procedure, charity, legislative regulation of innovations, telecommunications, intellectual property, energy sector, sports law.

When precedent law will appear in Russia and what the need for it is

Traditionally, the Association of Corporate Lawyers holds, just before the International Law Forum of Saint Petersburg, a conference on Russian justice: tendencies of development and factors of influence (see for more details: the years of 2011, 2012). In 2013, the experts focused their attention on the forming of principles of legislation and economic analysis when exercising justice.

Roman Bevzenko, Head of Private Law Department of the HCA of Russia, pointed out certain concepts, which have manifested in the development of judicial practice during the last three or four years. Those include the “concept of a single immovable property object” in the property law. Protection of bona fide purchasers, including bona fide purchasers of pledged property, becomes especially important within the framework of that concept. R.Bevzenko elaborated: the HCA in 2011 ruled that the significant part of the construction, where the pledge follows the item, stipulates that the pledge should be publicly known, while the Supreme Court of Russia is convinced that a pledge privilege exists, and there may be purchasers, who are not aware of the pledge. In his speech, Roman Bevzenko commented on the tendency to protect the bona fide pledgee as well as the bona fide purchaser. He stated: “We used to protect proprietors from the banks, and now we protect banks from the proprietors”. He gave examples, when people purchase flats with mortgage and afterwards attempt to prove that the mortgage title is void. According to the expert, the HCA of Russia cut short another practice of “shaking off” the pledge by introducing the “concept of a changing object”. For example, if a land plot was split into 10 lesser ones, the pledge “spreads” to all newly formed objects, because a pledge is a title to the object’s value.

Judges of the Constitutional Court of Russia Gadis Gadzhiev and Vladimir Yaroslavtsev spoke on the possibility of economic analysis of justice and realization of the principles established by the Fundamental Law of the Russian Federation. According to G.Gadzhiev, liberty of entrepreneurship should be ample but not boundless, since interests of a wide group of persons are involved. The Judge says: “Who else but the court should fix those borders and correct the entrepreneur, should he abuse the liberty?” In his turn, Vladimir Yaroslavtsev confessed to having started a table of juridical and non-juridical reasons used in judgments and stressed the complexity of connecting various disciplines: “Not every judgment that is juridically correct is also economically viable”.

Alexander Bolomatov, Associated Partner of the Law Firm "YUST", speaking on behalf of business advocates, criticized the leading role of the HCA of Russia in the interpretation of legal norms. In his opinion, there are currently no understandable rules and transparent procedure of application of a “powerful institution” as Article 311 of the APCRF. We remind that the provision classifies changes in the practice of application of a legal norm, initiated by the HCA of Russia, as new circumstances that permit to review the case on its merits.

Moreover, the precedent institution is only in the making as lacks many advantages of the law-making procedure – for example, the possibility to discuss provisions, also in different regions. The advocate joked: “Probably only the judge may truly rejoice at the precedent revolution. There is currently little joy in it for everyone else”.

He pointed out that the use of precedents greatly affects the certainty of legal relations, which tomorrow may be interpreted in a different manner, having been changed post factum. A.Bolomatov remarked: “When such approach transforms into real-life actions, it becomes really scary”.

Tatiana Machkova, Head of Judicial Practice of Sberbank of Russia, agreed with her colleague and gave figures: the practice of the years 2009 – 2010, which changed the approach to opening credit accounts, caused 20000 lawsuits, and those resulted in losses of 3,3 billion roubles.

She said that the attempts of the supreme judicial instance at forming a uniform practice should only be welcome, since “any rule is better than no rule at all” and suggested creating “a horizon of certainty of approximately a year and a half” to allow business to adapt to the new legal position of the courts.

Why foreign experts support the idea of the advocate’s monopoly in Russian courts

The Forum agenda included the theme of reform of the legal profession. Vladimir Pligin, Head of the State Duma Committee on Constitutional Legislation, identified the problem of the quality of the Russian law education. In his opinion, humanism, lawfulness, independence and responsible decision taking should be imparted to young specialists. He remarked: “Implementation of such requirements is impossible without the participation of our foreign colleagues, especially in the conditions of globalization”.

Evgeny Semenyako, President of the Federal Chamber of Advocates, stated that dualism in rendering legal services is our most serious problem: not only advocates may render such services, but also lawyers, who lack the respective qualification. He remarked: “In such conditions, it is difficult to maintain the professional standard in our community”. E.Semenyako believes that implementation of uniform requirements to specialists on the basis of advocacy may solve the problem. He concluded: “Legal practice must be done on the basis of the advocate’s status”.

Paul-Albert Iweins, representative of the National Council of Advocates of France, following the results of the reform that was done in his country, pointed out the importance of integration of all representatives of the profession. He is convinced: “The stronger the Bar Association, the stronger the jural state; the stronger the Bar, the better for the economic development”. According to him, “monopoly of law should be guaranteed to the advocacy, <…> so that it would be impossible to criticize the advocate’s profession”.

Frank Engelmann summarized the experience of East Germany and remarked that “free advocacy is not afraid of new colleagues”. According to the specialist, there are several reasons for the advocates’ monopoly to court representation. F.Engelmann explained: “The first reason is jural state and the common good. Any free democratic country wishes that the relations between citizens, ventures, relations with the State were constructed on the basis of supremacy of law. Second – legal assistance. Jural state is jural only of it provides access to legal assistance for everyone, even those who cannot afford it. Third – curtailing the breaches of professional norms”.

In its turn, says Mikhail Galperin, Director of Department of Economic Development, integration of lawyers “is only means to an end, which is improvement of quality of legal assistance”. Therefore, the planned reform will not cause redistribution of the market or artificial elimination of its participants. He specified that a work group with wide participation of legal market representatives will be created by the end of June. When the changes are ready, the reform will be discussed in Russia among the participants of that market and experts.

What is really expected from the graduates of law faculties

The issue of quality of modern-day lawyer education also came up during the thematic round table. Russian and foreign experts discussed the global modernization of teaching methods. Michael Swainston, Barrister at Brick Court Chambers of Britain, who moderated the discussion, drew the colleagues’ attention to the fact that, for example, distance learning cannot substitute traditional learning in all situations. He stated: “Technology is important, but it is also important that commitment to technological advances should remain within certain limits. Technology is a good instrument, and it is essential, when pursuing new technologies, to not miss or lose something really important. <…> A certain mix of the traditional approach to learning and modern technologies should be made”.

The experts agree that several factors currently affect the development of legal education in Russia and in the world. According to them, the employers wait for top-rate educated lawyers, since they are not prepared to invest in their education. They expect graduates to be able to complete practical tasks right after graduation. Meanwhile, the educational periods are getting shorter: the market expects lawyers at their top economic activity, and not aged. Distance learning and technological advances facilitate the access to information and education, but does not always help students to form their own position or opinion.

Timothy Endicott, Dean of the Faculty of Law of Oxford University, concluded: “When we educate students, we do not tell them of what law consists but rather help them to elaborate their own opinion. The Faculty of Law should stimulate independent thinking of a person. This is a matter of professionalism for lawyers”.

Why employees still prefer male lawyers

The round table “Women in jurisprudence: course for changes”. Elena Borisenko, Deputy Minister of Justice, told about the achievements of Russian women in the sphere of law and in public service.

She informed: “We are ahead of our European and American colleagues in the matter of women participation in law. 85% of notaries are women, 60% of advocates are women, and approximately 60% of judges are women”. According to her, women in Russia take key positions in public bodies and in large private companies more and more often.

The Deputy Minister of Justice elaborated: “When a new legal system was under construction in our country 20 years ago, women were not afraid of the new. Quite often they spoke foreign languages better, they were more flexible and the first to appear among the lawyers in foreign law firms. They were the first to obtain experience, they rose quicker, and nowadays many women are among the heads of foreign law firms’ Russian repoffices”. However, employers still tend to prefer men over women. According to E.Borisenko, this is due to the die-hard idea that women are family-oriented and men are career-oriented. She is convinced that this is a serious obstacle for female lawyers.

Lucy Scott-Moncrieff, President of the Law Society of England and Wales, agreed with her. The expert believes that both genders need to combine personal life and career. Therefore, employers should strive to create comfortable conditions for their employees by offering flexible schedules. Lucy Scott-Moncrieff expresses her conviction: “There are companies that set their partners on flexible schedules for a week or even a year. This does not mean the person is not being useful. Legal profession is doing certain tasks. And quite often a lawyer may do his task anywhere: at the office, at home or at the beach”.

Summing up the discussion, Elena Borisenko remarked that no distinctions should be drawn by gender between the lawyers. She said that a professional only has one distinction – the talent.

The Forum materials and session recordings are available at the organizers’ website.

Publications on the Forum

Plenary session: