The Judgment Day
The column of the editor-in-chief of the “Bank Survey” magazine
24.06.2013. Yana Shishkina
President Vladimir Putin declared at the economic forum in Saint Petersburg on June 21 of 2013 that he will submit to the State Duma a draft law on the merger of the Supreme Court and the Higher Court of Arbitration and on the necessity to amend the Constitution respectively. Such innovative declaration doubtlessly aspires to the status of a historical landmark.
Let us say that the St. Pete’s forum was rich in remarkable declarations, some of them shocking, some surprising, and some – overtly funny. The news of the merger of the courts was certainly remarkable. The Head of the State said: “The issue is a serious one, everything must be carefully considered and weighed. I request the Presidential Administration, the representatives of the judges’ community and the Parliament to join their efforts in this work. I ask that you prepare the issue for consideration during the autumn session”. He added: “The draft law itself will be submitted to the Parliament within days”. According to the President, the merger of the courts will ensure unified approaches to the settlement of disputes involving citizens as well as public and local authorities. Here is when the panic started, since nobody was simply prepared for such declaration. Commentaries flew in from everywhere the forums exploded: “Indeed, what does Russia need the courts for? The only thing we need is a completely dependent inquisition”; “May I ask my lords the leaders of our State to unify all our Codices: the Land Code, the City Construction Code, the Penal Code, the Administrative Offences Code, the Civil Code etc. The work is currently impossible!” I will not scare you too much. Anton Ivanov, the Chairman of the HCA of Russia, apparently noticed the panic and attempted to calm the public down by saying that the merger will only involve the Supreme Court and the Higher Court of Arbitration. A.Ivanov stressed: “I only want to warn all our judges that, in any case, the merger of the judicial systems is out of the question”. Only the two higher courts will be merged.
Who acquires and who is being acquired in this M&A? And the honorable judge had the answer to that: “It is a merger and not an annexation of one court by the other”. In other words, it is a merger on equal terms.
Vladimir Pligin, Head of the Duma Committee on constitutional legislation and construction of State explained during a briefing how the Duma will adopt the law. First of all, the deputies will have to amend some Articles of the Constitution, the law “On the Supreme Court” in the part on the SC competency, and the procedural codes. He says that the reform will make the courts of arbitration more accessible to the citizens: “Citizens often cannot reach a court of arbitration, and the justice of peace is everywhere”. But what does accessibility have to do with anything?..
Who acquires and who is being acquired in this M&A?
Tamara Morschakova, a retired Judge of the Constitutional Court, also criticized the idea of the merger: “Concentration of the highest authority of the judicial system within a single body enables arbitrariness, prevents the positive tendencies of the court practice development, when they come from the lower instances, from making their way”.
We draw no lessons from anything, even from the fact that items that have a large number of functions have a lower quality, and should one component malfunction, the entire mechanism breaks down.
I fully agree with Artem Kukin, Partner of the Law Firm "YUST", who thinks that it is clear even now that no “merger” will possibly happen, the least reason for that being that the system of the common law courts is much more massive than the system of the courts of arbitration, so that the only thing that may occur is the absorption of the courts of arbitration by the common law court system.
Many things have already been said about the advantages and disadvantages of the common law and arbitration courts, and the system of the courts of arbitration is obviously more prepared, both methodologically and technically, for dispute resolution in the current situation – if you like it, it is more “progressive”. Sergey Pepelyaev, managing partner of Pepelyaev Group, shares this point of view and believes that the President’s initiative goes against the marked tendency to specialize (for example, the creation of intellectual rights court) and will cause the business climate to deteriorate.
I also cannot omit the other point of view expressed by partner Alexander Zakharov, of Paragon Advice Group. He insists that the concept is a logical development of the entire judicial system of Russia. He presses: “The separate system of the state arbitration is a vestige of the Soviet system of socialist justice, when there was no private property. When arbitration is mentioned anywhere in the world, what is meant is exactly the extrajudicial arbitration proceedings. The absorption of the Higher Court of Arbitration by the Supreme Court is able to completely eliminate uncoordinated and inconsistent issues of judicial law application, to ensure uniform practice, to eliminate redundancies, to reduce the expenses of maintaining the apparatus of the higher judicial authority. Certainly, the specialization of certain compositions of concrete courts on consideration of concrete types of disputes is a guarantee of the improvement of the level of judicial service for the people and business”.
Alexander Zakharov states: “The biggest fear of the “practicing” arbitration lawyers is the loss of contacts and of the existing practice of consideration of disputes in this system, which certainly may cause the redistribution of that part of the legal market not to their benefit”. The use by the united court of the procedural and methodological base erected on the positive groundwork of the courts of arbitration should perhaps be considered one of the main task of the reform, should the State Duma decide on it positively.
See here the source of publication.