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.

The idea of giving judges the right to query the Supreme Commercial Court for clarification and interpretation of law has been under discussion for at least four years but now its supporters seem to have outstripped its opponents in number.

The advantages of such institution (if it achieves the goals for which it is being introduced) are the uniformity of court practice and the stability of legal relations (an ‘immutable’ decision which is unlikely to be abolished even by the Supreme Court can be taken by the court of the first instance on the basis of the Supreme Court’s recommendations).

There are though, those who think that the new article 135.1 of the Code of Procedure in Commercial Courts will be used to protract litigations. Indeed the proposed grounds for the query (conflict of laws, adoption of a new legal act or an ambiguity of legislation) can be used by an experienced lawyer to demand a ‘call to a friend’, a question to the Supreme Court. Moreover, a well-reasoned request, even when the judge is biased, will hardly be seen as an abuse of the right to ask for clarification. On the other hand, if the Supreme Court will follow the announced time frame for resolution of the queries (slightly over four months), the delay in the proceedings would not be too critical for most disputes.

However, in our view, special attention should be given to the property interests of the parties (such as granting security in favour of the party which was against the query, if applicable to the situation, and etc). If such measures are taken the query should not raise any difficulties for the parties.

On the other hand, there is a considerable risk that the lower courts will lose the last remnants of independence. It does not matter whether the ruling of the Supreme Court will be mandatory or merely recommendatory; judges of lower courts will be indisposed to resolve the case in contradiction with the Supreme Court’s opinion.

Judges of the appellate and cassation courts would hardly argue with that opinion as well.

Therefore, the Supreme Court will actually be able to resolve disputes and set the ‘only correct’ interpretation of law before these disputes reach the higher courts. Yet, it is in the conflicting views of the courts of the first, appellate and cassation instances where problems often become noticed in all their complexities, so that the Supreme Court could find the most reasonable and balanced solution.

Wide application of judicial queries will finally shift the centre of determining the judicial position to the Presidium of the Supreme Commercial Court. At the same time, until recently certain autonomy and resourcefulness used to be the very characteristics that distinguished judges from bureaucrats who act within the strict framework of an instruction. The autonomy and independence of courts at all levels (not only in assessing the facts and evidence but in the interpretation of law) are the foundation of the system without which it loses a significant part of its original meaning.

Perhaps that is why French law gives only recommendatory powers to the interpretations of law given by the Court of Cassation on the request of lower courts. This, coupled with the significant (in the opinion of an outside observer) independence of judges, allows France to keep the true balance of interests between uniformity of the case law and preservation of autonomy of the courts and clear division of powers between courts of different levels.

Thus, we believe that the judicial queries can only be viable as recommendations from the Supreme Court and, this is important, the institution should allow real possibility for a judge to disagree with the ruling of the Presidium of the Supreme Court.

Another important aspect is the number of requests the Supreme Court can realistically handle. Today, the cases for review are selected by the court itself. Due to the large workload the court’s decisions quite often become public with considerable delay.

If the judicial queries are put into practice, the selection of cases will be done to some extend, by the lower courts as well. This should increase the workload of the judges and clerks of the Supreme Court quite significantly. Dealing with this by simply refusing to give clarifications to problematic cases is hardly an option. The question, therefore, is whether the Supreme Commercial Court will be able to cope with this new task.

Muranov, Chernyakov & Partners