On preliminary rulings on the interpretation of law

Anton Ivanov, the Chairman of the Supreme Commercial (Arbitrazh) Court and the proponent of uniformity in courts’ decisions, has announced plans to bring in the system of preliminary rulings on the interpretation of Russian legislation.

If what he suggests becomes law, litigants will be able to clarify the position of the Supreme Court without the need to go through all levels of the judiciary – from the court of the first instance, to the appellate court and, then, the court of cassation. Instead, they will be allowed to ask directly the supreme judges.

A court, or litigants themselves, will be able to send requests to the Supreme Court if they find that there is an ambiguity in the law to be applied in the case. The Supreme Court will have to decide whether it already has determined its position on the matter. If not, it will hand over a ruling on the interpretation of the law in question.

Anton Maltsev

Baker & McKenzie
+ 7 495 787 2700

I can see two problems inherent in the system of judicial (pre-judgment) queries as described by the Chairman of the Supreme Commercial (Arbitrazh) Court (“SAC”), Аnton Ivanov, in his latest statements – the right of a court to address a query to SAC and seek its interpretation of some law norm or another.

Firstly, the time required by the courts to try a case will in all probability increase. Lower courts will try to play it safe by sending law norm interpretation queries to a court higher up the line, even in those cases where there is no special need to do so. The possibility for getting a SAC clarification applicable to a particular case before passing a judicial act will at all times mean for the judge concerned an additional guarantee of the solid standing of his/her future judicial act in the course of appellate, cassation and supervisory proceedings.

Even a negative answer from SAC in reply to a query may contain, if indirectly, a legal position, such as references to existing court practice on the issue raised. Therefore, sending out judicial queries could become a routine and frequent practice of trial court judges, especially in view of the fact that the judge’s doing so does not entail any adverse consequences for this particular judge. It is unlikely that judges will miss such an opportunity.

Secondly, SAC will actually start forming court practice from scratch rather than generalize the lower courts’ practice. This is not an issue that has a simple answer. The facts and evidence in each particular case are different, and the interpretation of law norms by a court that is trying a case rests on the specifics of the dispute. The court of last resort should normally add up and generalize conclusions prevailing in the courts down the line with respect to a particular issue. This appears to be proper practice.

But if SAC expresses its viewpoint to the trial court before the case is decided (and I am sure that the trial court would afterwards decide the case in line with such a viewpoint), then SAC to some extent is doing the job of a trial court. Since such an interpretation by SAC will, on the whole, be given without a study of all the facts and specific characteristics of the case (which are required to be studied by the trial court), such an interpretation can direct the court toward incorrect conclusions that are not justified by the actual circumstances and, consequently, toward incorrect resolution of the case.

Theoretically, we could compare this proposed authority of SAC with the authority of the Constitutional Court of the Russian Federation to review the constitutionality of law without studying facts and evidence. However, unlike SAC, the Constitutional Court is not a court with supervisory authority over trial courts, and it is not empowered to reverse trial courts’ judgments passed in connection with specific disputes. I do not believe such a comparison would be correct to justify the introduction of this new authority of SAC.