“The CIS Economic Court is the only institutional judicial body in the post-Soviet area. Its experience can be used in the development of the EurAsEC Court” – that is the opinion expressed by Liudmila Kamenkova, a CIS Economic Court judge and the secretary of the CIS Economic Court Plenum. What is the Economic Court, how it works, and how its decisions influence the relations between the CIS member states – these were the issues discussed by Liudmila Kamenkova and Law Group “Argument” senior partner Denis Aleinikov at the Letter of the Law program.

The CIS is an interstate formation created as a result of the breakup of the USSR and this historical fact should be considered from the positive point of view. In my opinion it would be wrong to reject this formation as the processes which take place within the CIS space create solid basis for sovereign development of its member states. And the example of Belarus, a country with its own political system, Constitution and legislation, shows that the Commonwealth of Independent States is the favorable ground which shouldn’t be rejected.

I think that the CIS is alive and it will develop further on and contribute to well-being of our peoples. By uniting a number of states from the former Soviet Union, the Commonwealth create favorable conditions for creation and development of new interstate formations such as EurAsEC and the Customs Union.  

The CIS bodies are located in Minsk. Do you think, this fact contribute to authority of our country and the city as regards its relations with foreign investors? Do they regard Minsk as a starting point for expansion over the entire CIS?

In my opinion, many European countries regard Minsk as a ground for development of cooperation with the CIS states. Minsk is not only a beautiful city admired by all foreign guests; it is, as the Republic itself, also located in the centre of Europe, and I think, it represents the very place which unites both the CIS space and Europe. The CIS Economic Court and CIS Executive Committee functioning in our city, no doubt, maintains justified authority of our country before foreign partners.   

What is the purpose of the CIS Economic Court? What is this Court’s competence?

The CIS Economic Court is a CIS body and it was set up for the purpose of uniform application of the agreements between the CIS member states. The tasks assigned to the CIS Economic Court prove to be justified.

The competence of the CIS Economic Court is defined in such international agreement as the Agreement  on the CIS Economic Court Status  dated July, 6, 1992 thereof Provision on the CIS Economic Court is the integral part.

Judicial activity of the Economic Court is going in three directions, the main of which is solution of interstate economic disputes which arise during execution of economic obligations stipulated by agreements, decisions of  the Heads of States Council, the Heads of Governments Council of the CIS. The Economic Court also deals with interstate economic disputes regarding correspondence of normative and other governmental acts on economic issues of  states participants to the CIS agreements and other acts.

The CIS member states have the right to approach the EC with the view of finding out whether this or that member state violated the obligations adopted within the frame of an interstate agreement, decisions taken by the Heads of States Council or the Heads of Governments Council.

The EC is an international judicial body within the CIS space which is authorized to resolve these disputes and subsequently determine whether or not the state against which there are claims from another state really violated its obligations within the frame of the interstate agreement thereof  it is a party to.

There exists a rule of 1969 endorsed by Vienna Convention regarding rights of international agreements in accordance with which international agreements should be strictly observed and each country participant to these agreements is to ensure fulfillment of its obligations. Any country participant to an international agreement shouldn’t refer to its domestic law to justify violation of obligations of the given agreement.  On the contrary, national legislation shouldn’t prevent fulfillment of obligations assumed by a state within an international agreement.

The CIS Economic Court can be approached on other disputes related to fulfillment of agreements and other CIS acts based on them. This can be agreed by the CIS member states in international agreements concluded by them within the CIS framework. There are a number of agreements concluded  on multilateral or bilateral basis between the CIS member states in which the EC is authorized to settle disputes related to implementation of these agreements, differences of the states in interpretation of this or that provision  of agreements.

The second direction of the EC activity is interpretation of application of various provisions of agreements, other acts of the CIS and its institutions as well as acts of legislation of the former USSR during their mutually  agreed application.

A new direction is settlement of interstate economic disputes and interpretation of provisions of international agreements currently in force within EurAsEC and decisions of EurAsEC bodies. Such responsibility  is assigned to the EC in accordance with the Agreement between the Commonwealth of Independent States and    EurAsEC  on performance by the CIS Economic Court of functions of EurAsEC Court  dated March, 3, 2004. 

What kinds of decisions does the CIS Economic Court take?

The CIS Economic Court takes decisions based on results of consideration of a dispute. As the EC carries out interpretation of application of provisions of agreements, other acts of the CIS and its institutions then, accordingly, decisions are taken on interpretation or consultative conclusions. In a consultative conclusion the EC carries out interpretation of application of this or that provision of an agreement for the purpose of its uniform application by the member states in the CIS space.      

Can the EC take a decision that some particular CIS member in its national legislation got beyond the  framework of a bilateral or multilateral international agreement it had signed within the CIS, and order this state to return to this framework?

The CIS Economic Court is not authorized to take decisions regarding national legislation of the CIS participants to an agreement within the CIS framework.  Based on its competence, the EC on the results of consideration of a case can only recommend the state which violated its obligations within the framework of an international agreement to take measures for elimination of these violations. A state is to observe the provisions of an international agreement and the EC can state this in its decision.    

Suppose, national legislation has not ensured fulfillment of these provisions, what can the EC do in this case?

As a result of consideration of cases, indeed, it happened sometimes that certain countries, participants to some agreement, referring to their national legislation did not observe in full their obligations within the framework of this agreement. There were situations when, for example, a citizen of a certain state came to another state for permanent residency. In a new place, this citizen experienced some problems as regards his rights guaranteed by the interstate agreement signed by both countries.  In such cases these issues were dealt with at the request of the bodies authorized to approach the CIS Economic Court. In the decisions of the EC there were recommendations on how to eliminate the violations.

The CIS Economic Court consider requests from the interested states in the person of their plenipotentiary bodies, institutions of the Commonwealth. The EC has no right to consider cases of concrete citizens. The purpose of the CIS Economic Court is to settle disputes between the interested states and to ensure uniform application of agreements within the CIS space.

Suppose, a request is being considered related to all countries. What force will the decision of the CIS Economic Court have? Are these decisions obligatory for these states?

The issue of legal force of the CIS Economic Court is being discussed till now. We can answer this question by referring to Item 4 of the Provision on the CIS Economic Court. It says that the EC takes the decision based on the results of consideration of a dispute; in this decision the Court establishes the fact of a violation of agreements or other acts of the CIS or its institutions (or absence of such violation) by a country participant to these agreements.

The Court also determines measures to be taken by the corresponding state for elimination of this violation and its consequences. The state with respect to which the decision was taken is to ensure its fulfillment.

It is not pointed out directly in this regulation that decisions by the EC are obligatory. Neither it is stated that they are recommended. Nevertheless, if the fact of violation is established and the state with respect to which the decision was taken is to ensure fulfillment of the decision, can this be the basis for allegation that above decisions of the CIS Economic Court are recommended? Of course, not.

Decisions of the CIS Economic Court are recommended only with respect to the measures determined by the Court  which should be taken for elimination of violations and their consequences.   

Were there any cases when the decision taken by the Court was not carried out by the state?

To answer this question I will give you a concrete example. Once a dispute between Russia and Kazakhstan was being considered and the board of  the CIS Economic Court took a certain decision. The dispute was about the right of ownership of “Usen” health centre property. The centre is located in Russia. Kazakhstan approached the EC on this issue as it believes there are all reasons to recognize Kazakh right of ownership of this object.  The Court took a decision in which proposed to both countries to settle the issue of right of ownership by concluding of a bilateral interstate agreement. There was a claim to the decision of the EC board and presently it is being considered by the CIS Economic Court Plenum.

In accordance with the constituent documents, Plenum is the highest corporate body which includes not only judges of the EC but also chairmen of economic (arbitral) courts of the states - participants  to the ‘Agreement  on the CIS Economic Court Status’ or other highest state bodies which resolve in the given states economic disputes.      

Our listeners ask: ‘How can a lawyer with 10 years’ experience be employed by the CIS Economic Court in this very capacity?’

In order to work in the CIS Economic Court one must have higher legal education.  Requests should be sent to the following address: Minsk, Kirova Str., 19, that is to the location  of the CIS Economic Court. I think relative documents will be required for employment as well as interview with the candidate.   

Can a Belarusian citizen become a judge?

In order to become a CIS Economic Court judge a citizen of Belarus should meet the requirements of the ‘Agreement  on the CIS Economic Court Status’  dated July, 6, 1992.

The judge from Belarus is appointed by the decree of the President of Belarus. There is a certain procedure of selection of candidates, regulated in the relative normative legal documents of Belarusian legislation.   

How many judges are there in the CIS Economic Court now? What countries are they from?

Five states are represented in the CIS Economic Court: Tajikistan, Kazakhstan, Belarus, Russia, Kyrgyzstan. These judges  are appointed according to the national system.  

Can commercial entities from the CIS member states approach the CIS Economic Court?

So far consideration of disputes between commercial entitities is outside the competence of the CIS Economic Court. The EC deals with interstate disputes: a state approaches this Court through plenipotentionary bodies of the CIS and its institutions. For this reason businesses are able to defend their interests through the plenipotentionary bodies.

Presently, we have prepared amendments to the constituent documents of the CIS Economic Court in accordance with which  it is suggested to broaden subject and object competence оf the Court, to add to it disputes on violation of rights of natural and legal persons and other business entities in connection with non-fulfillment of international obligations.  Status of the international court requires obligatoriness of execution of such decisions.

On the initiative of the EC, the International Centre on Settlement of Disputes at the CIS Economic Court was set up as an alternative to economy proceedings. It is authorized to settle private disputes between commercial entities of the CIS member states.

This International Centre can be useful not only within the CIS space but also for European states.

How will the decisions on settlement of disputes taken by this International Centre be executed practically?

As yet, there are no precedents to refer to concrete examples from the given Centre activities.

Presently, agreement basis of the Customs Union of Belarus, Russia and Kazakhstan is being formed within the CIS framework. Various interstate agreements are being prepared for signing. In fact, the idea of common economic space will be implemented. But previously various agreements were also signed in the CIS on creation of free trade zone. How are these agreements being  carried out? Has the CIS Economic Court considered any disputes arising from the Agreement on Creation of Free Trade Zone of 1994?

A number of decisions of the CIS Economic Court deal with the issues of interpretation of application of agreements regulating cooperation of the CIS states in economics. Two times the Court took decisions on the cases related to fulfillment of the Agreement on Creation of Free Trade Zone dated April, 15,1994. The subject of interpretation was the Provisions on determination of country manufacturer of goods approved by the Head of States Council dated November, 30, 2000 which are an integral part of the Agreement on Creation of Free Trade Zone of 1994 dated April, 15,1994.

For example, in the Consultative conclusion of the CIS Economic Court  on interpretation of initial version  of Item 1, Article 3 of the Agreement on Creation of Free Trade Zone of 1994, the Court determined which customs duties, taxes and tariff-like dues applied by the participants to the Agreement pertain to customs duties which have equivalent effect. For the purpose of uniform application of the Agreement on Creation of Free Trade Zone and its effective functioning, the Court recommended to define more precisely Item 3 of the given Agreement. These definitions are necessary for uniform interpretation of the given Agreement by participating states. 

This wrong understanding of the Agreement, how did it reveal itself? Did the member  states erect some tariff or non-tariff barriers not stipulated by the Agreement?

While analyzing practice of application of the Agreement the EC had to pay rather much attention to specifying  more accurately the definition of quantitative limitation and other administrative measures with regard to export limitation of certain goods, types of transport, as a measure of governmental regulation of foreign trade. Issues related to application of the Provisions on determination of country manufacturer of goods still remain urgent for the CIS member states and businesses from these countries.   

Even one Agreement on Free Trade of 1994 between the CIS states resulted in 7 decisions taken by the CIS Economic Court . Do you think  that creation of common economic space on the basis of the Customs Union will increase amount of work for  the CIS Economic Court?

Presently, the EC temporarily performs the functions of the EurAsEC Court. I think that workload of the EC will increase as the competence of  the EurAsEC Court  is broadening and this will enhance importance of the Court in cases of legal evaluation of processes which take place within the CIS and EurAsEC.

Many people assess the effectiveness of a court depending on number of cases it considered. It would be good if the workload we are talking about, really were like we expect. Personally I am optimistic about that. The CIS Economic Court carries out much work within the framework of the given Court reformation in order to provide legal basis for support of processes  which take place within the CIS and EurAsEC and ensure economic justice.

I think the CIS Economic Court is the very judicial body which possesses high potential and broad experience in implementing of economic justice.