JURISDICTION

Last Updated: January 02, 2006

Article 4 of the  Agreement on the Status of the Economic Court of the CIS (1992 Moscow Agreement) provides that it comes into force at the moment of its signature, except for those states that require ratification, in which case it comes into force at the moment of the deposition of the ratification instrument.

Ratification instruments have been deposited as following:

On April 22, 1994 , the government of Uzbekistan filed notification that the Agreement shall be considered in force at the moment of signature. Access to the court is open to the signatories of the 1992 Moscow Agreement.

It appears that the original intention of the drafters of the court’s founding documents was to limit its jurisdiction to disputes of an economic character.

First of all, there were two institutions discussed at the meeting of the Heads of States in Minsk in January 1993: already created Economic Court and proposed Interstate Court for resolution of ethnic and inter-republic conflicts (see 26 Vand. J. Transnat'l L. 732 (1993-1994).

Second, Section IV of the CIS Charter ‘Prevention of Conflicts and Settlement of Disputes’ remarkably resembles the text of Chapter VI of the UN Charter ‘Pacific Settlement of Disputes’. Despite this fact, any reference to the judicial institution, court or tribunal is omitted in the former documents as opposed to the latter documents. The closest reference here is to ‘international organizations’ in Article 16 which deals strictly with conflicts leading to the violation of human rights as well as a reference to ‘procedures and methods’ in Article 18 dealing with inter-state conflicts. Instead, Section IV of the CIS Charter appears to designate the Council of the Heads of States as a major dispute settlement body, and omits the role of the court in solving disputes of a legal nature (as opposed to UN Charter Article 36.3.).

Third, Article 5 of the 1992 Tashkent Agreement provides the “Commercial Court of the Commonwealth shall be created for the purpose of the settlement of interstate economic disputes, which are not justiciable by the highest domestics courts of arbitration and commercial courts. Highest commercial courts and courts of arbitration of the member-states of the Commonwealth of Independent States shall file their propositions regarding members of the court and a draft of the Regulation of the court at the next (or ordinary) meeting of the Council of the Heads of States of the CIS.” (note: unofficial translation of the provision.). In the post-Soviet states ‘courts of arbitration’ represent a separate branch of the judiciary (e.g. Federal Tax Court in Canada) that deals solely with commercial disputes. Hence, they have very limited, if any, similarity to the institutions created on the basis of UNCITRAL, ICC or other arbitration rules. Therefore the focus is also a very limited jurisdiction for solution of inter-state disputes of economic or, perhaps, a commercial nature.

Fourth, Article 3 of the 1992 Regulation (which is an annex to the 1992 Moscow Agreement) provides that “the Economic Court has jurisdiction to settle inter-state economic disputes: - arising from the performance of the economic obligations under the agreements, decisions of the Council of Heads of States, Council of Heads of Governments of the Commonwealth (hereinafter – acts of the Commonwealth) and other institutions of the Commonwealth; - in respect of the conformity of the normative and other acts of the member-states of the Commonwealth, passed in respect of the economic issues, agreements and other acts of the Commonwealth.” (note: unofficial translation of the provision; emphasis added). Nevertheless, this Regulation appears to widen somewhat the jurisdiction of the court, first, the same article goes on to state that “Economic Court also has a jurisdiction to consider other issues related to the enforcement of the agreements and passed on their basis acts of the Commonwealth, if the court is granted such jurisdiction by other agreements of the member-states of the Commonwealth.” (note: unofficial translation of the provision; emphasis added.). Article 7 of the Regulation dealing with judges of the court, focuses primarily on their qualification in solving economic disputes, which is considerably different from the provisions of Article 2 of the Statute of the ICJ.

Fifth, Article 32 of the Charter of the CIS provides that “The Economic Court shall function with the aim to ensure the observation of economic obligations within the framework of the Commonwealth.” (see 34 ILM 191 1995; emphasis added).

The term ‘economic obligations’ was given a rather wide interpretation by the court. In the advisory opinion (see C-1/1-97 § 4; 31 NYU Int’l & Po. 893 (1998-1999) 902) the court held that “…on the basis of the generally accepted legal terminology, economic obligations are obligations which have for their object performance of the agreements between the member states, and which are in addition directly connected to the transfer of property, namely, transfer of goods, payment of money, performance of work, provision of services etc. In other words, the object of these legal relations is actions connected to the tangible benefits with monetary value.” Hence, it appears that it is not only economic relationships that fall under the court’s jurisdiction, but also any other relationship that gives rise to a ‘tangible benefit’.

The 1992 Moscow Agreement and Regulations do not explicitly make a choice between voluntary and compulsory jurisdiction. Article 3 (§ 3) of the Regulations provides that the  “Economic Court considers disputes pursuant to notice made by the representatives of the interested states, institutes of the Commonwealth.” The use of the plural in ‘interested states’ and lack of an explicit statement establishing compulsory jurisdiction creates a shadow of a doubt in respect of the intention of the drafters and signatories on the question. In a sense, in the 1992 Regulation states agreed to create an Economic Court as an institution for settlement of disputes related to issues of an economic nature, yet they did not undertake to submit their disputes to its settlement (or at the very least no such jurisdictional clause has been explicitly provided for). Nevertheless, Article 3 (§ 1) was interpreted by the court (see C-1/1-97, § 3) to provide for compulsory jurisdiction. In addition, the same decision interpreted Article 3 (§ 2) to mean that the court has jurisdiction to hear cases arising from the treaties made between the CIS member states with clauses providing for such settlement (see C-1/1-97, § 7). Interpreting the above quoted part of the Article 3 (§ 3) the court focused on the word ‘notice’ and interpreted it to mean something other than the agreement, i.e. unilateral application. One of the treaties that does provide the clause is a Treaty on Creation of an Economic Union. Article 31 of that treaty was interpreted by the court (see C-1/19-96) not only to require the parties to refer their disputes to the Economic Court but also to require parties to do so before they could refer the dispute to any other international court. It has to be pointed out that although Article 31 only provides an obligation “to resolve … disputes in respect to interpretation and implementation of the present Treaty” (see 34 ILM 1309 1995; emphasis added). On the other hand, it still provides for considerable limitation – excluding, for example, such commonly used means of dispute settlement as arbitration or mediation.

As a general rule, only states can be parties before the court (see Article 3 (§1) of the 1992 Regulation). Nevertheless, since economic disputes more often than not intimately involve commercial entities, conflicts between these commercial entities that arise from the relationships that can be considered ‘inter-governmental’ are also justiciable (see C-1/15-96; 31 NYU Int’l & Po. 893 (1998-1999) 901-902). In this case though, private parties have to be represented by their governments.

Advisory jurisdiction of the court is regulated by Article 5 of the 1992 Regulation. It does not appear to limit its jurisdiction in this sphere to issues of an economic nature. It provides: “The Economic Court shall also give advisory opinions in respect of: - application of the articles of the agreements, other acts of the Commonwealth or its institutions; - statutes of the former Union SSR for the period during which it will be agreed that they will be in force, including questions of their admissibility as not contradicting agreements and passed on their basis acts of the Commonwealth.” (note: unofficial translation). At the same time though, the Charter of the Commonwealth of Independent States, although otherwise very similar to the 1992 Regulation mentioned above, provides a limitation to the advisory jurisdiction, stating  that “The Economic Court shall also have the right to interpret the provisions of agreements and of other acts of the Commonwealth on economic issues.” (see 34 ILM 1292 1995; emphasis added). The Court’s jurisdiction to interpret international norms and instruments can be exercised during decision making in the contentious cases as well as on independent “requests from highest levels of government of the member-states, institutes of the CIS, highest commercial courts and courts of arbitration and other highest bodies, that deal with economic disputes on a domestic level.” (1992 Regulation Art. 5 § 2; note: unofficial translation of the provision). This latter list of institutions that have a right to request advisory opinions has been in practice extended to include NGOs (see C-1/2-96; 31 NYU Int’l & Po. 893 (1998-1999) 904).

The jurisdiction of the court has been considerably widened as a result of the Agreement between the Commonwealth of Independent States and Eurasian Economic Community in respect of performance by the Economic Court of the Commonwealth of Independent States of the functions of the Court of the Eurasian Economic Community in Minsk (Belarus) on March 3rd 2004. In July of the same year the ‘Agreement on cooperation between Economic Court of the CIS and International Expert-Scientific Centre of the Council of the Justice Ministers of the Integration Committee of the EuroAsian Economic Community’ was signed in order to assist the court in obtaining professionals with specialized knowledge and in decision making in cases arising from the relationships in the community.