Russian Constitutional Court on Russia’s WTO Commitments with Regard to Trade in Legal Services

On 9 July 2012 the Constitutional Court heard a petition of deputies of the State Duma (the lower chamber of the Federal Parliament) to assess the constitutionality of the Protocol of Accession to the WTO. The petition was filed by about 130 deputies which number constitutes more than 25% of the Russian State Duma. The petition was scrutinized and the case was heard within an unprecedentedly short period of time: the petition was filed on 20 June 2012, so it took less than three weeks to make a decision on it. Usually the court takes 6 – 12 months to consider a case. This time the pending ratification speeded up the hearing.

On 9 July 2012 the Constitutional Court heard a petition of deputies of the State Duma (the lower chamber of the Federal Parliament) to assess the constitutionality of the Protocol of Accession to the WTO. The petition was filed by about 130 deputies which number constitutes more than 25% of the Russian State Duma. The petition was scrutinized and the case was heard within an unprecedentedly short period of time: the petition was filed on 20 June 2012, so it took less than three weeks to make a decision on it. Usually the court takes 6 – 12 months to consider a case. This time the pending ratification speeded up the hearing.

Besides, for the first time the Constitutional Court considered the constitutionality of a treaty which as of the hearing date had not entered into force.

As result, the Constitutional Court ruled that the Protocol does not contradict the Russian Constitution.

One of the issues considered by the Constitutional Court was the constitutionality of Russia’s commitments with regard to legal services. In particular, the Constitutional Court had to decide whether the treaty complies with the Russian Constitution because:

  1. Russia’s commitments are phrased in such a way that foreign attorneys may represent parties in the proceedings in the Constitutional Court;
  2. Russia’s commitments are phrased in such a way that foreign citizens may obtain the status of a Russian patent attorney.

Below we briefly summarize the subject matter of the complaints and the conclusions and rationale of the Constitutional Court.

Russia commits to admit foreign advocates to represent parties in the Constitutional Court

Under current Russian constitutional legislation (a special Federal Constitutional Law) only a Russian advocate or a person with Russian diploma or Ph. D. in law (“the candidate of legal science”) may represent a party in proceedings in the Constitutional Court.

Footnote 6 in the section of specific Russian commitments with regard to legal services provides that

“An advocate is a natural person who obtained the status of advocate in accordance with the Russian legislation. Only advocates are allowed to:

  • carry out representation in criminal courts and Russian commercial courts;
  • act as representatives of organizations, governmental bodies, local government bodies in civil and administrative court proceedings and court proceedings related to administrative offence cases”.

There is no mentioning as to the representation by advocates in proceedings in the Russian Constitutional Court. Consequently, it can be interpreted so that Russia is committed to allow foreign advocates to represent parties in the Constitutional Court.

The applicants argued that such commitment violates the right to qualified legal assistance specified in the Article 48 of the Russian Constitution: the Constitutional Court is competent to decide on the matter of Russian law, whereas foreign advocates are qualified in law other than Russian.

However, the Constitutional Court disregarded this issue and came to highly questionable conclusion that, if literally read, the Protocol does not extend to the proceedings in the Constitutional Court. It seems to be misunderstanding of the issue by the Court and that, among other things, is evidence that this is a complicated matter.

Russia commits to allow non-Russian citizens to obtain status of a Russian patent attorney

Under Russian legislation (the Civil Code and the Special Federal Law), only a Russian citizen may obtain the status of a patent attorney. Russian commitments with regard to legal services provide that they extend to “legal services, except for notary services…”. As it is known, under the UN CPC the services of patent attorneys are considered legal services.

The exception for notary services is explained by the fact that under current Russian legislation only a Russian citizen may obtain the status of a notary public.

However, unlike notary services, there is no mentioning about the patent attorneys in the schedule of Russian commitments.

As the Russian negotiators from the Ministry of Economic Development confirmed, they simply forgot about the existence of such categories of legal services providers as patent attorneys and thus they did not mention them in the reservations to the commitments.

Consequently, Russia did not reserve the right to limit access to the status of a patent attorney to foreign citizens. The applicants argued, basically, that such commitments endanger Russian state security, as patent attorneys ex officio have access to secret information and valuable industrial and other intellectual property-related data.

However, the Constitutional Court rejected this argument. Furthermore, the Constitutional Court ruled that: “by not providing limits to the access to the market of these services [of patent attorneys] and limits to national treatment to foreign persons, the state expands the opportunity for the potential users to select their providers with special expertise which… forms prerequisites to facilitate the access of citizens of the Russian Federation to legal advice on the purchase, sale and protection of the rights of intellectual property, and disposition of them under law of foreign states and private international law, including on the basis of agreements which are an integral part of the Marrakesh Agreement, i.e. gives them additional guarantees of exercise of the right to qualified legal assistance specified in Article 48 of the Constitution of Russian Federation”. Thus, allowing foreigners to obtain the status of a patent attorney in Russia was considered to be in contrast with the applicants’ claims even beneficial for Russian persons.

As a result, access to provision of services of patent attorneys in Russia shall be open to non-Russian citizens/residents.

Muranov, Chernyakov & Partners

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