Dmitry Medvedev and Judge Faizullo Abdulloyev of the Eurasian Economic Community Court from the Republic of Tajikistan
The St. Petersburg International Legal Forum was instituted by the Ministry of Justice in 2011 and is held with the support of the President of the Russian Federation. This is a major venue for dialogue between politicians, lawyers, economists and scholars representing all the main economic and legal systems.
The forum aims to promote the modernisation of law in conditions of global change, including efforts to modernise Russian law, with due account for the best foreign law-making and law-enforcement experience, and to bring Russian legislation into conformity with global standards, as regards the protection of the rights and interests of all parties to legal relations, including entrepreneurs, foreign investors and copyright holders.
In 2014, the forum’s Award for Contribution to the Development of Legal Integration in the Eurasian Space was instituted. The prize is awarded for major contributions to the development of law and for the promotion of values seen as important by the world’s legal community.
This year’s prize went to:
· Judge Faizullo Abdulloyev of the Eurasian Economic Community Court from the Republic of Tajikistan;
· Anatoly Kapustin, President of the Russian Association of International Law, Chairman of the Commission on International Law of the Association of Lawyers of Russia and First Deputy Director of the Institute of Legislation of the Russian Federation;
· Tair Mansurov, Secretary General of the Eurasian Economic Community.
Speech by Dmitry Medvedev at the awards ceremony:
We have gathered for an important occasion: We will present our Award for Contribution to the Development of Legal Integration in the Eurasian Space for the first time. It was the organising committee of the 4th St. Petersburg International Legal Forum that suggested awarding this prize. Of course, this is a positive assessment of the work of our colleagues and their professional reputation.
The very name of the prize – the Award for Contribution to the Development of Legal Integration in the Eurasian Space – points to the emergence of an essentially new direction in the development of post-Soviet jurisprudence. And I hope that it also symbolises our effective cooperation.
Dmitry Medvedev: "This award is a sign of gratitude on the part of the legal community to those people who have made a substantial contribution to integration processes. I am talking about this year’s landmark event in the history of our integration, namely, the signing of the Treaty on the Establishment of the Eurasian Economic Union."
This award is a sign of gratitude on the part of the legal community to those people who have made a substantial contribution to integration processes. I am talking about this year’s landmark event in the history of our integration, namely, the signing of the Treaty on the Establishment of the Eurasian Economic Union.
Certainly, the lawyers and other colleagues worked on this. As a result, I daresay, it became possible to draft this fundamental document, which determines the long-term development of our integration.
Therefore, here is another reason for greeting our award winners. I would like to cordially congratulate them, and I suggest presenting the prizes to the first three recipients – Faizullo Abdulloyev, Anatoly Kapustin and Tair Mansurov.
Colleagues, please (Presents awards).
So, I hope that this will become a pleasant addition to the numerous other positive assessments given to our colleagues working in this area.
Plenary session of the 4th St Petersburg International Legal Forum, The Concept of Rule of Law in Legal Systems: Key Takeaways and Future Prospects
Alexander Konovalov: Ladies and gentlemen, please allow me to welcome you to this final session of the 4th St Petersburg International Legal Forum, on behalf of the forum’s Organising Committee. The forum’s procedure has changed this year, and the plenary session, which was previously held at the beginning, this year will conclude the two-day forum. It can be safely said that this change has not affected the quality of discussions that were held over the past two days.
The 4th St Petersburg International Legal Forum has set several new records, including for the number of participants, the number of foreign participants, foreign official delegations, and the number of foreign representatives of corporate law firms. And lastly, the forum offered over 50 discussion platforms, which the participants used to discuss the smallest practical issues of law enforcement.
It is very important for us that these records were broken not for the sake of the records themselves, but as a result of the absolutely functional prerequisites for achieving the main goal of these annual forums: top quality professional discussions on all issues on the forum’s agenda, both specific, practical issues and the fundamental subject of the forum, The Principle of the Primacy of Law.
Alexander Konovalov: "The 4th St Petersburg International Legal Forum has set several new records, including for the number of participants, the number of foreign participants, foreign official delegations, and the number of foreign representatives of corporate law firms."
This year’s forum is surrounded by several important anniversaries, important at least for Russian lawyers. Last December marked the 20th anniversary of the new Russian Constitution. This year will see the 150th anniversary of the famous Court Statutes of Emperor Alexander II, while next year – the 800th anniversary of the Magna Carta, which bears significance not only for the British justice system but also for lawyers across the world.
Each of these documents, in its own way, in its own age and context, and with its own understanding of contemporary approaches, was an attempt to impose the supremacy of law. Looking back from the experience acquired, from a modern perspective, we should attempt to address a number of momentous issues on the supremacy of law, some of those issues bearing global significance.
Nowadays the idea of rule of law has acquired a nearly sacred character, rightfully so, I suspect. Yet by ensuring rule of law, each lawyer and each organiser of the justice system should consider questions of a broad nature. For example, what do we protect with the law? Is this is a justified interest or an interest which is not legitimate, or which runs contrary to the interests of other individuals and organisations? What do we understand as law, the primacy of which we are ensuring? Is this really a high standard of regulating legal relations, or do we perhaps occasionally risk substituting notions and adopting double standards? And finally, how adequate are the mechanisms of legal norms affecting legal relations? An attempt to answer these questions in a qualified and honest manner for ourselves and each other has brought us to an understanding of the concept of rule of law, application of the law, and has set up good conditions for further dialogue on this issue, for which the St Petersburg Forum is cordially ready to offer its venues now and in the future.
I thank you all for your participation in the discussions and I wish you successful completion of your work at the forum. Thank you!
Nikolai Kropachev (moderator): Ladies and gentlemen, will the participants of the 4th St Petersburg International Legal Forum, please, proceed to the stage:
Julio Cesar Alak, Argentinian Minister of Justice and Human Rights;
Christophe Bernasconi, Secretary General of the Hague Conference on Private International Law;
Michel Grimaldi, Professor of Law, Université Panthéon-Assas;
Rajendra Mal Lodha, Chief Justice of the Supreme Court of India;
Peter Maurer, President of the International Committee of the Red Cross;
The moderator of the plenary session is Nikolai Kropachev, Doctor of Law, rector of St Petersburg State University, member of the Presidium of the Russian Lawyers’ Association;
Prime Minister of the Russian Federation Dmitry Medvedev.
Dmitry Medvedev: Good afternoon, colleagues, ladies and gentlemen. Welcome everyone to St Petersburg, including those who have been here before and those who are visiting for the first time. This is the fourth time that the forum is being held in this city. About 2,000 of our colleagues – professional lawyers – are attending. This shows that the forum has become a generally accepted platform for meetings, interaction and discussion of various issues.
I have talked with my colleagues, and they all say that everything seems to be fine, except for the weather. But this is St Petersburg weather. They are telling me that it was better yesterday and the day before yesterday, but I didn’t notice. This is what our city is like – beautiful in any weather, rain or shine. This is the season of White Nights. I hope that you’ve managed to see some interesting sights in St Petersburg, Russia’s second capital city.
The format of this event is good for exchanging opinions and discussing various issues. It brings us together on some fundamental issues, confirms our commitment to the primacy of law and shows once again that law is the most civilised, clear and humane method of problem and conflict resolution. Lawyers can find many issues of contention, which is logical, because our profession was created for this purpose.
Many different issues have been on the agenda of this forum. I will outline some of them, which I believe are very important – although I could be wrong, of course.
How will international law develop in the 21st century, with the role of supranational institutions growing with each passing year? What can be the result of borrowing the principles of other nations’ legal institutions? I know that you have discussed these issues before, but they have not lost their relevance. Where is the boundary for state sovereignty and national law? Proceeding from this, we come to a very important issue – at least, it is important for the majority of large economies: The limits for the use of the host country’s national tax system at transnational companies. Have we developed the necessary details of non-jurisdictional forms of business protection?
There are also such popular issues – and not only in the legal profession – as the role and impact of the World Trade Organisation on the global economy and, indeed, on legal practice, as well as the new standards of copyright protection, the creation of which we are witnessing due to the development of internet technology. I could focus on these and several other issues in more detail later. But now I’d like to say that our debates must not obscure the main issue on this forum’s agenda. What is it?
It has become a tradition in recent years to offer the simplest solutions to conflicts, at least at the initial stage. And the simplest solutions do not imply the application of law, but the open use of military power and sometimes soft power, including all manner of sanctions. I believe that this places special responsibility on the legal community. We must not simply keep using legal methods of conflict resolution, but strengthen them and place them at the basis of politics and, possibly, public morality. Therefore, we are facing a challenging and a very important task: to protect the law. Judging by the arduous debates you have held at roundtable and panel discussions during the last few days here, all participants in this forum are aware of this mission. Speaking on behalf of the host country, I’d like to thank you once again for taking part in these debates.
The subject of the plenary session today is The Concept of Rule of Law in Legal Systems: Key Takeaways and Future Prospects. This sounds like the curtain is falling on an era. Allow me to explain my position. I believe that there is no alternative to the rule of law, which has become the underlying principle for all modern states, because this legal principle is the essence of human experience. However, the role and significance of law is not a permanent element in the life of states. In the past few years we saw the transformation of the role of law in society, the economy and international relations. We see that the structure of law is being eroded, that the border between substantive law and procedural law, and even public and private law, is becoming vaguer, although this border appeared to be inviolable since its delineation in Ulpian’s time.
Dmitry Medvedev: "A review of the basic principles would be inadmissible for a very simple reason: We have no replacement for them."
The influence of public law on private law is growing. But the general principles and norms of international law have so far remained inviolable. A review of the basic principles would be inadmissible for a very simple reason: We have no replacement for them. Humankind has not developed anything better. Without these principles, the structure of modern international law, and even the structure of modern international relations, would collapse.
The instances of departure from these peremptory norms in some countries are usually evidence of their violation, but not their invalidation. On the contrary, these negative instances should encourage other countries to search for additional methods for ensuring compliance with these norms. In this context, there is no alternative to law as an instrument of international dialogue, where nothing is above the law.
Of course, some rules of international law have been laid to rest, because their preservation came into conflict with the interests of the international community and the development level of mankind. For example, states have abandoned the right to war, which had been in effect for centuries. Following World War II, we developed the main international legal document of the modern age: the UN Charter, which upholds the rule of law as the essential foundation of international relations.
I’d like to point to one more trend that has grown recently: Different states and groups of states sometimes have different, and even opposing, understandings and interpretations of the same principle of international law. This could be possible in theory, but in practice this means that states develop their own understanding of international law and subsequently act in accordance with this different understanding, for a variety of reasons. Or they go to another extreme, and spread their national jurisdiction to other countries and use it to punish the citizens of other countries. By doing this, they actually undermine the doctrine of national sovereignty and the principles of international law. This is why it is very important to improve international legal norms and to ensure a standard interpretation of them.
These days, no national legal system can exist in isolation. No country has ever created effective and competitive legislation from scratch. However, an assessment of the practice of borrowing the principles of other countries’ legal institutions clearly shows that such borrowings are not always effective. They are only effective if the new [borrowed] mechanism can harmonise with the principles of the national legal system, with the legal awareness of jurists (primarily judges, but also all those who have a direct impact on the legal practice), as well as with the legal awareness of the public.
Dmitry Medvedev: "I’d like to point to one more trend that has grown recently: Different states and groups of states sometimes have different, and even opposing, understandings and interpretations of the same principle of international law. This could be possible in theory, but in practice this means that states develop their own understanding of international law and subsequently act in accordance with this different understanding, for a variety of reasons."
Lawyers are generally rather conservative people by virtue of the nature of their profession, and they are usually wary of major legislative innovations and changes in the form of government. On the other hand, changes open up new professional opportunities. This is happening in our country, though I am not saying the change is always for the better.
We have witnessed over the last few months the emergence of new trends in the legal profession. Experience with international public and private law has never been in greater demand in Russia, due in part to the sanctions imposed on us in spite of common sense and in violation of international norms, with regard to some Russian companies and individuals.
Although the motivation is bad, it still prods lawyers to sharpen their skills in this field. Incidentally, I can’t remember ever signing so many government directives to hire law firms to defend Russia’s interests as I have lately, and I have signed piles and piles of documents in my life – legal acts and bills and Government resolutions. I can’t say whether it’s good or bad, but lawyers definitely have received a lot of new contracts.
There are good motivations as well. There are long-term opportunities for legal practice due to the new legal regimes established in the so-called accelerated development territories in Russia’s Far East, Siberia and other regions. The legal profession is developing and we have to try to influence this process in one way or another.
Private law is undergoing modernisation in Russia. Major changes have been made to the legal framework concerning pledges, certain types of deals and corporate law; a new state procurement system is up and running and the Civil Code is nearing completion. Through spirited, sometimes heated debate, we tried to balance very different legal constructs that come from different sources (some of these constructs are alien to our legal system), and to integrate them into the Russian reality. We have very different concepts, from evasion of the law to corporate agreement. Many legal institutions involved in civil legislation have been generated by the courts.
The planned merger of Russia’s top courts is gaining momentum, although such institutions should be merged very carefully and gradually, so as not to shatter the existing system.
We continue developing the fields of law related to the regulation of international contacts, as well as air, sea, trade and transport law. Globalisation creates a need for uniform regulation of various types of relations, which was not the case in the past. I am referring to electronic trading, digital payments and other issues.
Dmitry Medvedev: "There are long-term opportunities for legal practice due to the new legal regimes established in the so-called accelerated development territories in Russia’s Far East, Siberia and other regions. The legal profession is developing and we have to try to influence this process in one way or another."
The harmonisation of law is underway as part of integration projects such as the Customs Union and the Common Economic Space.
One should not forget that, in the modern world, legal experience should not necessarily be borrowed from countries that actively, if not aggressively, export their legal models. There are also new emerging supranational legal systems. We have seen this very clearly in the course of our cooperation with our Customs Union and now Eurasian Economic Union partners, the Shanghai Cooperation Organisation, the BRICS nations, and many other international organisations that are important for modern development.
Colleagues, high-quality legal regulation of foreign investment is essential to a country’s long-term economic policy. In the past few decades, all countries have had to work out very careful tax strategies to take into account the large transnational investors entering their markets. This has elevated the task of increasing the national taxable base to a new level. It isn’t easy to extend national tax sovereignty to transnational companies’ sources of revenue located in other tax jurisdictions. There are no objective criteria to prove that another country’s fiscal territory has been invaded. Our most recent efforts with tax law were aimed at more effective use of legal mechanisms to maintain the country’s sovereignty in the tax sphere. I should note that all countries are doing this.
This is a difficult problem, which is why I bring it up. Strictly speaking, it all began in the 1960s. The United States was the first economy to begin doing this, as it is the largest, but it really picked up after the 2008 financial crisis hit the world. Now we are doing it as well. The day before yesterday I discussed with business leaders a bill to amend the Tax Code proposed by the Finance Ministry. The proposed legislation introduces some new concepts which were absent from the previous version, such as the actual recipient of income, or beneficiary owner; controlled foreign company (abbreviated as CFC); and controlling entity. The new bill also defines a tax resident; introduces the obligation to pay tax on the profits of controlled companies, which will now include foreign companies controlled by Russian residents, located in jurisdictions with preferential tax regimes. Let me repeat, this isn’t easy.
Why am I mentioning this? Because this is part of an even larger effort. We are all aware how national companies use this kind of corporate “veil” to position themselves as “foreign investors” to try and gain some advantage in their case against the state. This trend is only the outside façade of the underlying offshorization of Russian business. I must admit that this is not always a bad thing; however, it obviously deprives Russia of a substantial amount of tax revenue. To counter this process, all modern governments adopt policies to bring businesses back to national jurisdictions. But this needs to be done wisely. Even the strongest and most powerful states cannot achieve their financial transparency goals and effectively bring their businesses back by unilateral measures alone, without open and mutually beneficial cooperation and constructive dialogue between countries and between regulators and businesses. These efforts can actually lead to the opposite result and harm the national financial system, increase the outflow of companies from the national economy, and even to people changing citizenship and companies changing flags. Therefore, this problem requires balanced action.
We are building effective mechanisms to protect investors, including so-called non-jurisdiction formats – direct negotiations, mediation and commercial dispute resolution. Over the past two decades, Russian lawmakers have tried to integrate all the basic legal mechanisms into our system, but this work is not complete.
International commercial arbitration has proved effective at resolving investment disputes. I am referring to such institutions as the Arbitration Institute of the Stockholm Chamber of Commerce (SCC), the International Court of Arbitration at the International Chamber of Commerce, and the International Commercial Arbitration Court at the Russian Chamber of Commerce and Industry. These institutions also consider investment disputes. Even the European Court of Human Rights recently started taking such cases. There are quite a lot of these disputes, so courts will be gaining experience. I expect many disputes to arise between Russian and Ukrainian companies in the near future. This will create new issues for discussion, but in any case, I must say that commercial disputes are a sound alternative to lawlessness, use of force and avoidance of the law, so it is better to meet in court than to settle differences elsewhere. It is for the sake of protecting investors’ rights that we need to ensure maximum transparency of jurisdiction-related procedures.
Dmitry Medvedev: "Over the past two decades, Russian lawmakers have tried to integrate all the basic legal mechanisms into our system, but this work is not complete. International commercial arbitration has proved effective at resolving investment disputes. I am referring to such institutions as the Arbitration Institute of the Stockholm Chamber of Commerce (SCC), the International Court of Arbitration at the International Chamber of Commerce, and the International Commercial Arbitration Court at the Russian Chamber of Commerce and Industry."
One of the ways to achieve transparency is stricter compliance with the World Trade Organisation’s rules and requirements. The WTO is already creating new trends in industrial policy and trade. Russia has been a WTO member for nearly two years now, but we spent decades knocking on its door. Experience shows that many of the Russian government’s industrial policies raise concerns among our trade partners. We have similar concerns about our European colleagues. I think we should sit down together to work out more transparent and more balanced rules which would take into account our mutual concerns, while any economic disagreements should be resolved within the framework of WTO procedures.
Russia consistently meets obligations it assumed when joining the World Trade Organisation, which include lowering import duties and quotas, removing administrative barriers, reforming the legislative framework and streamlining public administration. At the current stage, our aim is to harmonise WTO rules with those of our integration structures within the Eurasian space, including technical regulations, since differences in this respect may result in technical barriers, which the WTO accession agreement was supposed to remove. We are aware of that, and are working on eliminating such contradictions, especially since conflicting acts and decisions do not always boil down to technical regulations. International legal disputes are even more dangerous. This is a controversial issue, but since we are having an open discussion here today with law experts from around the world, I will address this issue here today. I’m talking about the infamous sanctions.
I would like to remind you that unilateral, politically motivated sanctions are illegitimate in terms of international law. International law does not provide any ground for imposing sanctions. Such measures are inconsistent with the public order, primarily because they violate the mechanism for taking enforcement measures enshrined in the United Nations Charter. By the way, this has been Russia’s position in every case where the UN was bypassed and unilateral sanctions were imposed on a country, be it Iraq, Syria or any other country.
Dmitry Medvedev: "First, it is necessary to protect intellectual property rights in a way that doesn’t stifle creativity in the future. This is already evident. Borrowing technology is a vital part of modern society. So it is necessary to formulate applicable laws more carefully. Otherwise business will continue protecting innovations through confidentiality agreements that often deprive society of access to new technology."
This also goes for sanctions against Russia. We believe them to be groundless in terms of international law. So how do such actions relate to WTO membership? What I wanted to say is that when the interests of a WTO member state are unlawfully infringed, such state can protect itself by using WTO mechanisms, including through the dispute settlement process. There are certain challenges in this respect, since Russia is a member of the Customs Union and the Eurasian Economic Union. Certain decisions have been delegated to the supranational level, so a decision by a supranational body is needed in this respect. Consequently, a victory in such a jurisdictional body of the World Trade Organisation does not necessarily mean a final resolution. For this reason, we must find a mechanism for protecting our interests on our own, without violating any of the obligations we have assumed. The question has another side to it. For example, when the United States imposed sanctions on Russia, which negatively affected our foreign trade, we decided to challenge these sanctions through WTO mechanisms. That said, we do understand that it won’t be easy, since the US wields significant ideological and actual influence in this organisation, and is second to none in terms of bringing trade disputes. However, I believe that if a mechanism exists, it should be used. All WTO members must use it. With respect to this specific situation, certain restrictions resulted in losses, so we are entitled to seek protection. Russia submitted to the WTO a communiqué claiming that the United States of America failed to fulfil its trade obligations. I believe this was the customary, civilised course of action. This is how we should sort things out, all the more so since such sanctions are actually inconsistent with WTO rules, especially when it comes to most-favoured-nation treatment. In fact, service providers from another country are being discriminated against, which violates Article II of the General Agreement on Trade in Services and WTO commitments with respect to specific financial services. This is what the restrictions on some Russian banks are all about. It remains to be seen whose arguments regarding the legality of the sanctions against Russian companies will prevail at the WTO. But this will be an opportunity for us to see whether this dispute resolution mechanism is impartial and unbiased.
There are other reasons to bring such matters to court. I’m speaking about this here to emphasise that I consider this a civilised way to settle disputes between states. Only this can produce results and, most important, it should rely on the authority of the final decision-maker.
Ladies and gentlemen, there are many areas of law where new opportunities and solutions appear every year. I’d like to say a few words about intellectual property laws. Recently, advocating the full liberalisation of regulations in this area has become very popular, but I think that a balanced approach is more justified in this respect. Otherwise many high-tech industries requiring expensive equipment and well-paid experts will simply become uncompetitive and stop moving forward. Intellectual property laws should be upgraded in several ways.
First, it is necessary to protect intellectual property rights in a way that doesn’t stifle creativity in the future. This is already evident. Borrowing technology is a vital part of modern society. So it is necessary to formulate applicable laws more carefully. Otherwise business will continue protecting innovations through confidentiality agreements that often deprive society of access to new technology.
Dmitry Medvedev: "Third, it is essential to improve international patent regulation. In the past, patents were designed to act as a barrier to competitors, whereas now they are a means of protection and a means of disseminating knowledge. However, differences in domestic laws on intellectual property prevent us from developing joint projects and doing business in general. It is time to establish universal legal models. It is also time for domestic patent offices to start working closely with their foreign counterparts. We must transition to uniform databases of what qualifies as patentable in order to speed up the review of applications."
Second, it is essential to take tough measures against counterfeit products, which have turned into an international threat, all the more so since imperfect laws (laws are never perfect), including our own, keep foreign investors away. We do realise this and are improving our laws, but this is an international challenge. I’ve repeatedly discussed this with my colleagues, heads of state and government. We must work on new conventions on intellectual property. However, I don’t see any special desire to do this at the moment.
Third, it is essential to improve international patent regulation. In the past, patents were designed to act as a barrier to competitors, whereas now they are a means of protection and a means of disseminating knowledge. However, differences in domestic laws on intellectual property prevent us from developing joint projects and doing business in general. It is time to establish universal legal models. It is also time for domestic patent offices to start working closely with their foreign counterparts. We must transition to uniform databases of what qualifies as patentable in order to speed up the review of applications. We also need a standard format for patent applications and the ability to exchange information by email.
Ladies and gentlemen, the law has been a key institution of socio-economic development throughout human history. A stable society requires an efficient economy, which in turn requires efficient laws. So law is essential for the normal functioning of any society. Its value lies in its ability to support the stable development of social forces. Tragic events occur wherever law and stability are absent. Just look at the Middle East, or Ukraine for that matter.
Dmitry Medvedev: "Lawyers cannot passively observe the global changes and dramatic challenges of our time. They shouldn’t yield to growing political pressure, or use the law as a smokescreen for self-interested and sometimes unseemly objectives. This is the common mission of our profession, as I’ve already said. Today it is very important to pursue dialogue and promote an atmosphere of trust. It is essential to create new approaches and regulatory principles that will make the law flexible and adaptable on the one hand, and stable and predictable on the other."
The serious challenges facing these states can only be resolved on the basis of law, with due account of international law, and, of course, through interethnic dialogue.
Lawyers cannot passively observe the global changes and dramatic challenges of our time. They shouldn’t yield to growing political pressure, or use the law as a smokescreen for self-interested and sometimes unseemly objectives. This is the common mission of our profession, as I’ve already said. Today it is very important to pursue dialogue and promote an atmosphere of trust. It is essential to create new approaches and regulatory principles that will make the law flexible and adaptable on the one hand, and stable and predictable on the other. This is why we’ve invited all of you to attend the St Petersburg forum, and we’re so grateful that you accepted our invitation.
As Jean-Jacques Rousseau once wrote: “Force does not constitute right…obedience is due only to legitimate powers.” This is an excellent insight. Almost everyone in Russia knows this famous film quote: “What constitutes power?” The most common answer is “truth.” In Russian the words “truth” and “law” have the same root, so for us power is the law. Thank you.
Nikolai Kropachev: Mr Medvedev, ladies and gentlemen, colleagues, before we continue discussing the main topic, taking into account the points made by the Prime Minister, let me say a few words.
The speakers present today include representatives of various legal professions, including heads of international legal organisations and the Supreme Court, a minister of justice, and a representative of one of the world’s best law schools. So, I am sure there will be interesting reports and discussions.
I have a small request for speakers. If you want to comment on any of the reports, please let me know. And now let’s move on to the reports.
Colleagues, this year’s forum has been attended for the first time by a speaker from South America. Argentina is one of the leading countries in Latin America in terms of social and economic development. The country is also one of the original signatories of the Mercosur agreement on establishing the common market of South America. I am pleased to give the floor to Minister of Justice and Human Rights of the Argentine Republic Julio Cesar Alak, who is well-known throughout the world for protecting citizens from unreasonable repression (he began this work as a journalist, and his contribution has been outstanding), and as an uncompromising fighter of crime, including the global scourge of terrorism.
The floor is yours, Mr Minister.
Julio Cesar Alak (Argentinian Minister of Justice and Human Rights, via interpreter): I’d like to thank Minister of Justice Alexander Konovalov for inviting me to take part in this important fourth international forum. It is a historic event for the development of law in the world. Thank you for organising it and for your attention to all of us. I’d also like to convey greetings from Argentinian President Cristina Fernandez de Kirchner to Prime Minister Dmitry Medvedev and her gratitude to President Vladimir Putin for close cooperation between our countries. It is a great honour for me to visit Russia, a country that has made an enormous contribution to all arts, science and culture as a whole. First of all, I’d like to say on behalf of our delegation that we are pleased to visit the fourth forum that is taking place in the wonderful, monumental and heroic St Petersburg. Its palaces, churches, prospects, rivers and channels have witnessed major historical events over the past three centuries.
Esteemed ministers, court chairpersons, lawyers, ladies and gentlemen, thank you for our participation. This is a great honour for us. Politics and law are two autonomous areas. This idea leads to the assertion that politics should rely on law, but law should be outside the realm of politics. However, real life and historical experience demonstrate that this is not the case. Since the formation of a modern state three centuries ago, politics and law have been mutually dependent and inseparable from each other.
The current concept of a law-based state proceeds from the need to alleviate social conflicts and struggle for power and to create the minimum conditions for rationality and planning. Law determines the conditions for political activities and for this reason a policy based on the will of a nation is carrying out fundamental legal tasks. At any rate, general rules by which our society lives boil down to law. Law not only gives a legal seal to power but also accompanies man from creation to cremation. Law organises, systematises and imbues with sense certain relations between people. Law also determines the biological structures of society, such as family and the legal status of children. It supports some unions and bans others and is the leitmotif of all aspects of social life. Therefore, legal knowledge is strategically important.
Potentialities of politics rely on the base created by law. In turn, law should be flexible enough to adapt itself to the changes caused by political life. No changes are durable if they do not fit into a law-based state and are not supported by political will. In this context, we should realise that wars and human losses in the past century were caused by the policy that deviated from legality and led to tragedies in our lives and in the life of our civilisation.
International organisations and legal agencies formed after World War II shaped the development of human rights at the global level and created a new international legal order in a bipolar world. Now that we are in the 21st century we understand that it is impossible to maintain the peace and prosperity of our societies in conditions where the world is ruled by only one superpower. Conflicts and responses to them show that we must develop under conditions with many poles of power represented not only by countries but also by international and regional organisations, coalitions and transnational corporations of global significance. The domination of the neo-liberal paradigm in the world for many decades has led to the situation where the state began to lose its sovereignty, politics began to yield to private interests that were alien to national interests most of the time and was used to perpetuate this state of affairs. These politically self-destructive dynamics were developing under conditions of globalisation with its quick turnover of goods, people, and information. It doesn’t matter where you are – today we are all just spectators watching developments in different parts of our planet.
The demise of one international system and the emergence of a new one are accompanied by uncertainties but they also create new opportunities that we cannot afford to miss. The same is true of international relations. Entirely new phenomena emerge in politics and the economy and we must cooperate in drafting a legal base for them. Politics should again play its transforming role of a leader to grant fundamental rights to all social strata. We must show responsibility in cooperating with each other to meet the emerging requirements of the state and law and in pursuing our legal activities.
We must use to the utmost the available legal mechanisms and create new ones to expand knowledge about norms, rights and duties, and this must be done in close cooperation with our society.
Over 34,000 normative and legal acts have been drafted in my country since the adoption of the national Constitution more than a century ago. Having conducted a detailed study in universities, legal experts established than only 3,400 of them are valid, including 1,100 international norms of private and general law. Apart from Argentina this applies to other Mercosur countries – Paraguay, Venezuela, Uruguay, and Brazil. In other words, only 10% of existing norms are working. This legal inflation is causing uncertainty and restricting knowledge on laws in society. Hegel said that democratic laws are meaningless if they are divorced from social life. This is why we must avoid a situation where only 10% of norms are at work.
In the case of Argentina we must develop domestic legislation to make all norms work. We should have fewer norms, but all of them should work. We must grant people access to laws. If they have no access to courts and justice, norms are useless. Such a new mechanism as the Internet helps us to streamline this process.
One Argentinian politician said that in our society we should strive to make justice and the freedom of justice the cause and consequence of all adopted decisions, and thus should open free information channels, the channels of legal knowledge. Our experts should convey their knowledge to the public. They should deal directly with their professional issues and this is why they cannot work in isolation from social policy. We must set ourselves specific political tasks because without them we won’t be able to resolve our legal problems.
The change of eras that we are witnessing gives rise to new legal norms and the re-codification of old fundamental norms that have become obsolete and lost relevance, which are contradictory and hardly understandable to society.
Another important legal goal is to do everything possible to make courts of justice work and meet the needs of society. It is not enough just to develop a norm. It is necessary to make law serve society. Law should become an instrument for the implementation of a strategy that will let us look confidently into the future.
And, finally, I would like to appeal to all of the legal experts working in this field. We are responsible for implementing and using the existing resource in our professional life. This is probably the main goal, the main political challenge in the field of law. This is the aim of our work. If we manage to realise the social changes underway now, so as to make them serve freedom, political and social life, we will be able to accomplish our mission relying on politics. Thank you.
Nikolai Kropachev: Thank you, Mr. Alak. Despite the significant efforts being made by the international community to put in place effective mechanisms of inter-state relations, various – and very acute – international conflicts do take place. Today, we have an opportunity to learn the recipe for resolving these problems as seen by the President of the International Red Cross. That organisation was created back in 1863 and since then it has not only been rendering humanitarian assistance to people all over the world, but has been doing a good job of disseminating the knowledge of the laws and the principles of international humanitarian law.
Mr Peter Maurer will tell us today how he sees the supremacy of law in resolving inter-state conflicts.
I am a poor dancer and a worse singer, so in this beautiful theatre I’ll have to just talk. So, thank you for the opportunity offered me today.
Colleagues, for centuries, international law has regulated the relations between sovereign states in order to maintain international order without unnecessarily interfering in each others’ affairs. The rule of law was a procedural issue left to the discretion of the countries that had to faithfully abide by international treaties.
International law was based on the obligation of every state to abide by international agreements and their own laws. International humanitarian law was created 150 years ago, exactly 150 years ago, at the time when the First Geneva Convention was adopted. It was aimed at respecting the principles of humanitarian relations. However, today the concept of the rule of law has occupied a new niche in international relations. This occurred at the time of the adoption of the UN Charter, the Declaration of Human Rights and the establishment of a balance between a stable world order, on the one hand, and respect for the value and norms of law, on the other hand. Initially, rule of law was based on state sovereignty. Later institutions and the very structure of the international community began to change.
The rule of law has two functions that are sometimes in conflict with each other. On the one hand, the rule of law has a regulatory function in fulfilling international norms and rules in the context of the existing internal legal system. On the other hand, it has a more ambitious transformative role, and that is to contribute to change in the law structures to meet the innermost aspirations of nations and people. The International Committee of the Red Cross is at the very focus of this tension between the implementation and transformation of international law. On the other hand, the International Committee of the Red Cross proceeds from the classical definition of law based on the sovereignty of states, which is reflected in our agreements, and in the commitment of states to honour their obligations. The ICRC very often takes a positive position in terms of the compliance of states with their obligations under law and their commitments. But it has to be said that on top of that the ICRC continues to develop international humanitarian law to protect the victims of conflicts. We are working with states to improve the framework of international state law. We are trying to transform the operational environment and constantly remind the international community that the needs of the victims of armed conflicts should lie at the focus of its attention.
The first treaty on the protection of the wounded on the battlefield was proposed in 1862. As a result, for the first time, a multilateral treaty on the protection of the wounded and the sick on the battlefield was adopted in 1864. A major international humanitarian movement emerged in the world, the movement of the Red Cross and the Red Crescent. Similarly, we can say that, since 1948, upon the initiative of the ICRC, we began helping civilians in military conflicts. The latest initiative led to a minor revolution in the international system when unorganised armed groups became the subjects under international law and assumed obligations under international humanitarian law. This feature of the ICRC remains one of the strengths of international humanitarian law and we are complementing international human rights there that are only binding on individual states.
We urge all states to implement international humanitarian law. In our work we rely on the classical and positive approach. We are guided by common laws and international agreements. As a result of our efforts during armed conflicts, we have come to strongly believe that efforts to aid the victims of armed conflicts and relieve their suffering require compliance with national laws and international regulations. We must also boost our capacity to help countries comply with the norms of international humanitarian law.
At the request of national authorities, the ICRC is contributing to its target areas; for example, we are carrying out a prison reform, working with judicial authorities and providing aid to war victims. We always treat local traditions with respect as this is a key to our success. To ensure compliance with the rules of international humanitarian law, the ICRC is engaged in activities that we call protective. We report cases of cruel, inhuman treatment of detainees, as well as other cases.
As for the ICRC’s second function, I would like to say that we must promote the rule of international law. What we mean is that the objective of international humanitarian law is to protect victims of modern armed conflicts. Our interpretation of international humanitarian law is both strict and dynamic. We often hear that international humanitarian law is a very old code of laws, which can no longer govern relations in the new types of hostilities, such as large-scale covert operations or cyber-conflicts. Nevertheless, some very important principles are codified in international humanitarian law, such as proportionality and the ban on the types of weapons that wantonly increase the suffering of victims in these armed conflicts. Protocols and agreements should not be applied only to the armed conflicts of the past. They can and should be applied to the type of warfare that was inconceivable at a time when these international treaties were signed. It is imperative to adapt the laws to today’s reality. Therefore, the ICRC supports various areas of legislation that are not covered by international humanitarian law, namely, some criminal law provisions which establish responsibility for causing damage or increasing the suffering of the victims of armed conflicts.
At the 31st International Conference of the International Red Cross and Red Crescent Movement we agreed to continue our studies jointly with various countries, so we are able to set out different options for action and recommendations for making sure international humanitarian law functions effectively in two areas, namely, in protecting people who were imprisoned in a situation other than an armed conflict and also in enhancing the mechanisms for compliance with various regulations and laws. We believe that this will allow us to improve international humanitarian law. However, success cannot be achieved without building trust between countries and the political will to protect the victims of armed conflicts.
In conclusion, we would like to say that even if sometimes conflicts or tensions do occur, the two aspects of international humanitarian law tend to complement and reinforce each other – hence, the dual role of international humanitarian law.
We can identify cases pointing to deficiency of law or vague interpretation of various points of law in order to further improve the tools for protecting the victims of armed conflicts. In addition, we must also work to develop legislation, making it pragmatic and realistic. We are trying to introduce it into the international community but in a way that will be acceptable to our societies and countries. This work requires all the poise of an equilibrist.
Our job is to defend. We must improve the protection of victims of military conflicts, but we also have one more goal: to use dialogue with countries to fine tune our instruments and to keep the balance on the tightrope.
This is how we understand the supremacy of law in our sphere - to implement the provisions of law and also accept transformation when necessary. As Fyodor (Friedrich) Martens would say, humanitarian laws and human conscience.
Nikolai Kropachev: Thank you for this tribute to Fyodor Martens, who was a professor at St Petersburg University.
For the past few decades, the world has been watching, sometimes anxiously, the rapid rise of the BRICS countries. We know very well that economic problems are blamed on laws and the lawyers who write them. But what if the economy is developing?
I am giving the floor to Mr Rajendra Mal Lodha, Chief Justice of the Supreme Court of India. Proceed, please.
Rajendra Mal Lodha (Chief Justice of the Supreme Court of India, via interpreter): Mr Prime Minister, Mr Minister of Justice, ladies and gentlemen. It is symbolic for many reasons that we have met in St Petersburg to discuss and consider the future of the supremacy of law.
The city that lived through three revolutions in the early 20th century and a cruel blockade that lasted 872 days during World War II, St Petersburg is a city of change and unmatched endurance. Likewise, the supremacy of law as a political and legal concept has seen major changes in its essence and has faced considerable challenges during its existence. Nevertheless, the world’s countries and legal systems continue to view the supremacy of law as the guiding principle. Wherever it is very difficult to ensure the application of this principle, the supremacy of law is seen as the lofty goal.
For the next few minutes, I’d like to speak about common lessons and challenges that are connected with the concept of the supremacy of law in the global world or in the areas that will be influenced by the supremacy of law in the future, as well as about the obstacles that could hinder the implementation of this principle.
The constitutions of many countries seal the formal elements of the supremacy of law, such as the delimitation of powers, the primacy of law and the constitution, equality before the law, the independence of judicial bodies, judicial control, the legal limitation of the powers of the state, the protection of human rights, and so on. But all of these are a desired goal rather than the measures towards the implementation of this principle.
A sharp contrast between the spirit of the constitution and reality undermines the effectiveness of the supremacy of law. If a force could only be applied to one goal, it should be the successful implementation of the principle of the supremacy of law.
Legal scholars, such as Lon Fuller and John Finnis, said that the supremacy of law cannot be considered a formal concept but should ensure certain “natural rights” and the basic values of “natural law.” This I can accept.
Moreover, we should speak about promoting the supremacy of law on the national and international level as a vital prerequisite for sustainable and inclusive economic growth.
The concept of judicial control and oversight has likely gained broader global recognition in the context of ideas that are connected with the supremacy of law.
Nearly 160 of the world’s 192 constitutional systems ensure judicial control, to a higher or lower degree. Of course, there is great diversity within these systems of judicial control. On the one hand, there is the Supreme Court of the United Kingdom, which can only rule on the incompatibility of laws with the UK legislation on human rights, but it cannot invalidate these laws. On the other hand, there is the Supreme Court of India, which not only can invalidate laws adopted by the parliament and state legislatures, but can also use the basic structure doctrine, as it’s called, to invalidate [parliamentary] amendments to the constitution.
It is hardly an issue for a dispute over which of these systems is more desirable and optimal. It is an issue that calls for additional discussion. But the development trajectory of constitutional survey within legal systems should be prompted by the systems that are based on the principle of the supremacy of law.
The basic structure doctrine of the Supreme Court of India is, possibly, inapplicable in European democracies, but it has been reflected in the activities of the Supreme Court of Bangladesh. The Supreme Court of Pakistan has taken approximately the same stand. At the same time, we see that certain supreme courts, such as those in Sri Lanka and Malaysia, have abolished this principle. We could debate ad infinitum whether or not the Supreme Court of India has the legal right to amend the Constitution. However, a more important point is how this doctrine helped to sustain the rule of law.
We also see that there arises in Southeast Asia what we observed after the establishment of the European Court of Human Rights, which was due to induce the 47 СOE states to abide by the safeguards contained in the European Convention on Human Rights. Harmonising these protective mechanisms was not without problems, but the effort shows that certain homogenised global versions of the rule of law have been emerging. We should not refuse to study these lessons. We should learn from them, while minding the constitutional context.
One of the main issues confronting all legal systems the world over is related to governmental commitments to protect people’s socio-economic rights. The International Commission of Jurists recognised the rule of law by its 1959 Delhi Declaration as a dynamic concept that should be used not only for the protection of civil and political rights, but also in order to create social, economic, educational and cultural conditions conducive to the accomplishment of reasonable wishes and dignities of individuals. I admit that recognising and securing social and economic rights is an unusual concept for many juridical systems. I think that courts and governments should constantly work on this. The judiciary practice of the Supreme Court of India and the South African Constitutional Court blazed the trail in this regard. The right to education, to healthcare, to food, to shelter and to employment is something we increasingly face on the global markets. But we are also confronted by many vulnerability factors in this respect. I would like to stress once again that the courts in India and South Africa analysed these issues and professed different points of view. While the Supreme Court of India put the right to life within the purview of Article 21 of India’s Constitution and interpreted the socio-economic rights, South Africa fell back on a constitutional provision in order to recognise the right to shelter, to education, to healthcare, food, water and social protection.
The free market depends on certain institutions and rules, such as freedom of contract and contract execution. From a purely economic point of view, the existence and quality of institutions is closely linked with development via property law, incentives and trade relations. Economists associate the rule of law with economic advantages, including economic growth. Importantly, it is for this reason that international dialogue is focusing on states’ development for the purpose of achieving certain parallel goals, including better access to the judiciary system.
The economic and technological factors have changed this world beyond recognition, but, like all changes, these ones cannot be characterised as positive or negative. Global integration has generated major challenges for national states the world over, and the legal systems have to respond to these challenges.
Rather than erode safeguards within the rule-of-law framework, our response should strengthen these safeguards. If we fail to do this, we will face a very serious risk of undermining the legitimacy of the rule of law.
Corruption and threats to democracy exist even in established democracies. Implementing the rule of law implies that its further transformation and promotion will be effective not only now but also long thereafter. Sustaining the rule-of-law institutions is not the business of the current system or concrete individuals alone. We must make sure that these will withstand the challenges. We need to create institutions that will not just exist but will ensure the efficacy of the rule of law.
Perpetrated by extremists, internal and external violence has become a big problem for India in the last two decades. Many countries are familiar with these threats as well, but how states respond to these events gives rise to concern. After 11 September (2001), we have witnessed the tightening of antiterrorist regulations, which implies that more powers are given to the executive authorities. But we often see that the effort to achieve and strengthen national security leads to less transparency and accountability on their part. Of course, lives and freedoms must be protected within our borders, but we shouldn’t do this by undermining the constitutional safeguards.
India is the world’s largest democracy. It held parliamentary elections not so long ago. Out of its population of 1,280,000,000 people, 880 million had the right to vote under the constitution, and 660 million actually came to the polls. These elections were recognised as successful and were followed by a smooth handover of power from the outgoing authorities to the new government.
India’s judiciary system is very strong; there is clear legislation, and there are Supreme Court judges and institutions like the Election Commission of India, which is absolutely independent and impervious to extremist influences. But you will be surprised to know that, regrettably, the Indian courts are handling 30 million cases, while the number of judges is about 1,890. We have developed an alternative mechanism. Of course, arbitration and negotiations are generally accepted methods used by many countries, but we have also used a new dispute settlement method. I mean people’s courts, as they are called. Certain cases can be sent for hearings, and rulings are approved rather quickly. The relevant provisions were adopted on 23 November 2013, with 70 million cases closed within one day. All sides were satisfied with the peaceful settlement. This is what efficacy of the rule of law is all about.
But it is difficult to measure the advantage or efficacy of the rule of law in theory, as is to develop a standard rule-of-law indicator. We should use the most different criteria suggested in various projects, including a wide range of criteria designed to help states implement the rule of law.
I would like to thank you for the opportunity to address this distinguished audience. Thank you.
Nikolai Kropachev: Thank you, Mr Lodha. Among the speakers at this plenary session we have a representative of one of the most prestigious law schools in the world. Michel Grimaldi is a professor of law at Paris II Pantheon-Assas University, where he specialises in private law. His books are read around the world and serve as a reference for many of you. Mr Grimaldi, I know that your books are popular among the faculty of our university as well, which is no coincidence since you are a proponent of legal positivism, just like many researchers at St Petersburg University.
It is with great pleasure that we will hear such a high-profile expert. Mr Grimaldi, what legal approaches and legal systems are best suited, in your opinion, for addressing issues that society, your country and the whole world are currently facing? The floor is yours.
Michel Grimaldi (Professor of Law at Paris II Pantheon-Assas University, via interpreter): Mr Prime Minister, Mr Minister of Justice, I would like to start by thanking you for providing me this honourable opportunity to address this forum, which was so magnificently prepared by Russia’s Ministry of Justice. I was asked to elaborate in my remarks on the benefits of civil law in terms of the rule of law. When raising the issue of the rule of law, we have to think about what this law should be like, since in a democratic society, the law must be accepted by all citizens, unlike in dictatorships, where laws are no more than a threat of punishment. The rule of law is about efficient and people-friendly governance, not the threat of force.
Mr Prime Minister, you’ve quoted Rousseau, who said that laws should be respected. So let’s talk about continental law, which is also often referred to as Romano-Germanic law or civil law. It presents a legal culture which originated within Roman law and was brought to life through codification in the late 18th century. Here, in St Petersburg, such efforts were also deployed under Empress Catherine II. The 1804 Napoleonic Code gave a jump start to a process which resulted in the adoption of civil-law codes across Europe, Latin America and certain Asian countries. Civil law is currently the most widespread legal system around the world, with two-thirds of the global population following it. Thirteen out of the 20 largest economies and seven out of 10 high-income countries have civil law. In this respect, the whole world could thus be divided into countries of civil or continental law and the countries with common law, which are mostly represented by English-speaking nations.
What are the advantages of civil law in terms of ensuring the rule of law? Civil law researchers point to two core principles, arguing that civil law presents an accessible and well-balanced legal framework. These are widely discussed principles. Civil law presents an accessible system by its origin, since the laws were codified to form various codes, such as the trade code, civil code and civil procedure code. On the contrary, common law is based on case law, which gives precedential authority to court decisions that make up case boxes or legal sets, such as the Restatements of the Law in the United States. Due to the fact that the sources of law are different in these two cases, civil law is about general, impersonal rules, while common law is a set of court decisions in specific cases. Take discrimination against women, for example. In France, a country with civil law, such issues are governed by the key provisions of family, labour and electoral law, while in the United States, Supreme Court rulings are used to this effect.
From the perspective of civil law lawyers, law codification enhances the material and intellectual accessibility of law. Being codified, legal norms can be easily communicated to the population, and thus there is no need to extract them from court decisions. This is what the principle of material accessibility is all about. By intellectual accessibility, I mean that legal norms are clearly defined using abstract phrases, not complex court rulings. For civil law practitioners, this makes the law predictable, thereby ensuring legal certainty. It is for this reason that emerging economies are now seeking to adopt as many laws and codes, above all investment codes, as possible. Never before have our countries seen so many codes as in the age of globalisation.
The balance between various values that the law is expected to translate is another aspect. While legal systems of common law focus on protecting economic freedoms, civil law seeks to strike a balance between economic efficiency and social justice. Social and moral factors are of no lesser importance in terms of civil law than economic factors. For this reason, civil law jurisdictions introduce regulating mechanisms that determine the initial conditions, while common law jurisdictions are tailored to ensure economic and market freedoms and thus respond a posteriori in the form of court decisions when an issue needs to be addressed.
We saw the economic and social ramifications and the human tragedy of a posteriori regulations during the mortgage crisis. It is for this reason, when it comes to contractual law, civil law… This is a kind of a covenant that serves the interests of all parties, while common law focuses on the economic aspect of the transaction, which entails various challenges that civil law does not know. For this reason, providing legal services does not boil down to a business service in civil law. For this very same reason, almost all Roman law countries have notaries who act as counsellors vested with public authority to carry out certain legal procedures.
Before continuing with my reasoning, I would like to nuance what I have said so far in order to better explain what I mean. In fact, I left certain details out of this review of civil law. Make no mistake, I do not mean that civil law countries achieved miraculous results. Of course not. To put it simply, when we are talking about our origins, the accessibility and predictability of law, civil law was in many ways decodified and destabilised by multiple legislative reforms, as the distinguished Minister of Justice from Argentina said. Such reforms often lack global vision and are influenced by certain factors. The development of human rights was greatly influenced by civil law, since declaring human rights does not constitute a legal norm. All it does is guarantee certain rights without any reference as to what it means and how it should be dealt with. When such rights are proclaimed in concrete cases, for instance in inheritance law or other similar issues, it is the judge that decides on human rights. Some see this feature as a common law bias, and we are seeing such practices in decisions of certain courts.
When we are talking about balancing economic, moral and social values, the pursuit of profit can be relegated to the background, while civil and trade order take centre stage. Of course, the pursuit of profit sometimes goes too far and fails to provide certain guarantees to our citizens. With this in mind, I think that there are people who can argue that common law has advantages of its own. In this respect, common law countries have borrowed some elements from civil law. I would like to make it clear that I do not mean that one legal system is better than the other. This is not what I mean. What I do think is that the legal system of any country must be consistent with its legal culture. I think that Americans are fond of their legal system, and it does have certain advantages, while civil law has its own strong points.
And, fortunately, we can borrow things from one system or another. For example, the United Kingdom has taken various elements from Civil Law (Continental Law), and vice versa.
Of course, there are national traditions, and this is important. There are also attempts to impose some issues, including those by the World Bank which links loan approvals to the implementation of certain reforms that were conceived elsewhere. Or, contrary to some views, everyone advocates uniformity, but “one size doesn’t fit all,” please excuse my English. Globalisation and economic development should not standardise culture. Naturally, human rights are universal, but a French citizen who has purchased a land plot should receive guarantees that he or she will retain this land plot. At the same time, Americans would be content with an insurance policy serving as a guarantee. For their part, the citizens of Switzerland would receive advice from notaries when marrying While Americans might only sign a marriage agreement in the presence of their personal lawyers. Chinese or Japanese citizens would be surprised by certain European legal standards because they’re raised under the Confucian tradition based on the premise that children must obey their parents. Ladies and gentlemen, you understand what I wanted to say in my speech. I simply wanted to say that Civil Law has advantages being guaranteed by the superiority of our law. I suppose that our countries will live within this legal culture, and I believe that our St Petersburg forum serves as a wonderful confirmation of this. Thank you very much.
Nikolai Kropachyov: Thank you, Professor Grimaldi. This is our fourth forum, and representatives of the Hague Conference on Private International Law are regular participants. This is one of the oldest and most important specialised international organisations in international private law aiming to create effective universal mechanisms for a legal system of regulation and cooperation between residents of various countries and to chart common approaches towards the resolution of contentious issues and conflicts arising through the conflict between national legislation and jurisdiction.
I now give the floor to Mr Christophe Bernasconi, the Secretary General of the Hague Conference on Private International Law. Please.
Christophe Bernasconi (Secretary General of the Hague Conference on Private International Law, via interpreter): Thank you very much, Mr Chairman. Mr Prime Minister, Mr Minister of Justice, Your Excellency, ladies and gentlemen. First of all, I would like to thank all organisers for inviting a representative of the Hague Conference on Private International Law to join the speakers’ list and to say a few words about the primacy of law, of course, from the point of view of international and private law.
If you allow me, I would like to start with the obvious things. On one hand, the obvious things are at the very root of this wonderful and very important international legal forum that has brought us all together in the magnificent city of St Petersburg. We live in an age of globalisation when ties between people and communities of all countries are becoming more pronounced. We witness an amazing process when distances are shortened, and we also witness growing international investment and trade, market expansion, greater individual mobility and instant information exchanges through the media and the internet.
One more aspect of this process, which is often underestimated, implies that globalisation takes place in the context of legal diversity. International relations, international transaction relations that promote globalisation take place in a context in which every country, and sometimes every national administrative entity, has its own set of rules for regulating issues of civil and commercial law.
As a result, amazingly, globalisation allows different legal systems to dramatically affect transactions and relations which are no more as tightly restricted by geographic and political implications as they used to be. While people and commerce interact more frequently across national borders, the legal issues that inevitably emerge in the process need to be dealt with. As this activity is governed by laws, rules and regulations of different legal systems, a growing need to establish a certain legal supremacy can be seen, in this case the supremacy of international private law.
It must be said that international civil law is not in the least concerned with harmonising the world's legal systems or creating a unified system of law. It can be subdivided into four areas: jurisdiction; applied law; recognition and enforcement of court decisions; and international cooperation. These are pivotal for civil and commercial relations. Far from trying to unify different legal systems, international private law is unique in striving to preserve and respect the multiplicity of legal systems and underlying cultures. At the same time, it aims to create links among different legal systems, allowing them to co-exist, so that any individual, whether a practicing lawyer or a judge, a legal adviser or an member of the public, can have a clear understanding of the correct course of action and of the applicable law. Thus, international private law is a key component of global management. A government may, for example, support the recognition of foreign courts' decisions but it can’t be sure that the deliberations and other acts of its own courts will be equally respected abroad.
The primary objective of international private law is the creation of a procedure that would eliminate such legal obstacles and solve the legal problems that frequently arise in international relations. Thus, the final goal is to form a system allowing private and corporate international entities to interact in a predictable legal environment regardless of national borders and notwithstanding the diversity of legal systems.
In other words, whether dealing with a government, a company or an individual, international private law should create a situation where a person can be aware of the rules and of the legal system governing the situation and the transaction at hand. As a result, all those involved would have the advantage of legal consistency and transparency.
If multilateral tools are used as an alternative to trading within narrow national boundaries, international private law could promote the economic growth and prosperity of certain nations, especially those countries whose progress towards a developed economy is hampered by the lack of a legal and commercial infrastructure.
It must be pointed out that the absence of the legal infrastructure required for effective participation in a globalised economy and for entering into bilateral agreements is the exact cause of various countries' inability to develop international trade and benefit from foreign investment. A universally adopted system of regulation and procedures would facilitate these countries' access to the global economy.
All of this was an undeniable fact for a small group of experts, which included experts from the Russian Empire, who met in the Netherlands in the late 19th century, or more precisely, in 1893. They met to create a basic set of tools that would promote the development of legal cooperation.
In 1893, Nicholas II sent Russian lawyer Fyodor Martens to a meeting that was held within the framework of the first Hague Conference. The goal was to discuss a number of treaties and to remove obstacles that prevented international cooperation.
The Russian tsar and Martens actively contributed to and wholeheartedly supported the idea of the Hague project. Consequently, it can be said that the Hague Conference is rooted in St Petersburg, because it was here that Martens taught at the university. You know, I recently got lucky: I met with a dean of St Petersburg University where I learned that they were considering expelling Martens for his contribution to international efforts, that he nearly lost his job. I think we’re lucky they didn’t expel him.
The Hague Conference was created as a result of those discussions and meetings. Since then it has adopted an impressive number of conventions that have harmonised private international law on the global level. Some of these treaties have been adopted by 60, 90 and even more than 100 countries. The Hague conventions are therefore contributing to the international system and are aimed at supporting cross-border trade, capital, people and ideas.
The international system promotes an effective dispute settlement process and the welfare of children and families. Simply put, it helps create simpler and easy to understand rules that regulate the recognition of foreign documents and the provision of evidence in civil litigation, which contributes to an effective, transparent and predictable system of governance. This results in respect for the law, which reduces risk, ensures stability and promotes economic development.
I should add that private international law predetermines future legal mechanisms and principles. As you know, private international law is often misunderstood as a dusty set of rules and principles based on the European jurisprudence system of the 19th century. Actually, it is a dynamic and rapidly developing area to which experienced jurists, who work in the broadest national and international context of different branches of law, contribute. With time, over decades and even recently, the Hague Conference has turned into in a truly international organisation that unites 144 member countries that have signed at least one of the 38 Hague conventions. As many as 75 countries and the European Union as a united body are full members of that organisation, and the number keeps growing, which points to the increasing importance of the mandate and activity of the Hague Conference within the context of globalisation.
We look forward to receiving the full support of all conference members including Russia of course. We are counting on each member to help fulfil the Hague Conference mission which consists of developing international private law and its rule of law component so that we can protect children who fall victim to international crime when adopted or kidnapped, and so that we can help businesses ensure legal certainty and stability when dealing with international civil and administrative procedure.
The mission of the Hague Conference is more important now than ever. Never before has the world been so closely interconnected; never before have relations, private and commercial, played such an important role. Never before has the rule of law, relative to international private law, been so greatly needed.
The St Petersburg forum shows that Russia is still at the heart of international legal development. It offers a unique opportunity to a wide circle of international jurists to come and discuss many types of legal issues. This gives us an opportunity to work together for a better future given how numerous and diverse the topics on our agenda are. I must say that we have been very pleased to take an active part in this forum just as we did in the previous forums, and we thank the organisers for that.
Globalisation continues. It will penetrate new areas, new activities, new relations and new ways of doing business. Harmonising procedures, processes and rules within the diverse legal context and in the interests of every country is absolutely necessary for day to day work on the international level.
The purpose of the Hague Conference is to make these tools accessible and available to the entire world. But to achieve this, we need to continue to work with individual countries, to try to improve existing conventions and to find new solutions. This depends on the continued support of the current and the new conference members and on new ratifications of the Hague convention. As a result, we will receive a better developed system of international cooperation. If we come close to achieving this, it will benefit both individuals and businesses that are still struggling to adapt to globalization. Bridges between legal systems, nations and the common person can be built if we put road signs in place telling us which way to go.
This can be achieved through international private law which, within this context, can ensure the rule of law.
Nikolai Kropachyov: Thank you, Mr Bernasconi. I’d like to point out that Professor Martens skipped his own lectures, which probably changed the attitude toward students in Russia. The professor was not expelled for skipping his lectures, and so it became wrong to expel students for truancy too, which turned a new page in the history of university students in Russia.
We are ending this discussion, but I know that Professor Maurer has received a question. Mr Maurer, you can answer it, if you wish.
Peter Maurer(via interpreter): Thank you. Yes, I’ve received a question and here it is: “[Can you share your] opinion about the thousands of refugees from Ukraine who are coming to Russia? What are you going to do? What practical steps and measures should be taken to help these people?”
Regarding the situation in Ukraine, which does not differ much from what the International Committee of the Red Cross has seen in other comparable countries in which there is conflict, we always try to approach the conflict area as closely as possible, so as to prevent the displacement of people before it is too late.
Under our mandate, we have considerably increased our presence in Ukraine in the past few months in order to take part in onsite activity in eastern Ukraine, to ensure compliance with international humanitarian law and build up our humanitarian aid in eastern Ukraine so that people would not have to take flight in the situation in which they find themselves. This is the foundation of our authority. Our mandate does not have to do so much with the refugees who cross the border, but we respond to the governments’ request to meet the needs of the refugees. This is how we act in the Middle East, and this is what we do for the refugees who are crossing from Ukraine into Russia. Regarding the Middle East, we have not only started a large programme in Syria, we have also responded to the request of the governments of Lebanon, Jordan and Iraq to help them resolve the humanitarian problems of refugees in these countries. We did this in close cooperation with the UN High Commissioner for Refugees. In short, I can tell you that the Red Cross always contributes to protecting people and preventing migration. We also respond to the high contracting parties of the Geneva Convention. When we receive a request, we respond to humanitarian problems. Thank you.
Nikolai Kropachyov: I’d like to once again express gratitude to all participants in this plenary session. Mr Medvedev, would you like to say anything in conclusion?
Dmitry Medvedev: I believe that the main thing for these meetings is to end on time, or else everything that has been said here will have an opposite effect.
For my part, I’d like to express my gratitude to all our colleagues on this stage, in particular, Mr Alak, Mr Bernasconi, Mr Grimaldi, Mr Lodha and Mr Kropachyov, thank you for hosting this discussion so prudently. Its conclusion is proof of what Mr Maurer has said here…
Of course, all lawyers who are present in this hall – even those whose job is to provide a theoretical interpretation of legal issues, but even more so if they are concerned with the practical application of the law – all of these lawyers are involved in political life in one way or another, and the supremacy of law is probably the value that unites a huge number of legal people around the world. We all speak the same legal language, and it does not matter if we come from the Romano-Germanic or the Anglo-American legal family: we have a very similar set of values. This offers hope – at least it does to me – that many of the world’s conflicts and problems can be resolved through our joint efforts.
Thank you very much for attending this forum.