JUSTICE UPDATED

ECONOMIC COURT OF THE COMMONWEALTH OF INDEPENDENT STATES

PROCEDURE

Proceedings before the Economic Court are instituted by application filed by the authorized representative of an interested state or an institution of the CIS. Other states, non-signatories to the agreement, can also institute proceedings before the court, if such a procedure of dispute resolution is provided for by the corresponding international treaty.

The 1997 Rules (Article 29) specify 10 various sources of law, while the 1992 Regulation (Article 3 § 4) provides that the court cannot dismiss a case on the basis of uncertainty regarding the law that should govern the settlement of the dispute. Despite the fact that none of the members of the CIS are governed by a system of common law, the 1997 Rules indicate that past decisions of the court can be relied upon in later cases, albeit it does not provide that the decisions are binding.

As a rule cases are decided by the chambers of the court. Members of a chamber that has been created to hear a particular case do not change until the end of the proceedings on the case. If the number of judges at the chamber becomes less than three (which means that based on the 1997 Rules it can no longer pass a decision on the case), application is made to the President to appoint a substitute judge. It must be noted that in the chambers consisting of five judges, inability of one of the judges to participate in proceedings will not have the same effect, because in case of a tie the decision would be passed on the basis of the position held by the Head of the chamber.

In addition to the regular submission of documents during written pleadings, the 1997 Rules provide considerable rights to the chamber related to fact finding and obtaining independent expert advice. The Rules also allow third parties to interfere if they believe that their interests will be affected by the decision in the case. Third parties can interfere in the proceedings at any moment up until the decision of the court is made. Third parties can interfere either on the side of one of the parties to the case, or independently. Although overall the work of the court is public, the discussion of the judges in respect of the case stay absolutely confidential. The court has an option between making the losing party bear the costs of the proceedings at the court (which does not appear to include legal fees of the parties) or proportionally to the amounts that have been obtained by the parties (in comparison to the amounts requested in the application).

Upon filing of the application the President of the court has 10 days to submit all the documents for consideration to the chamber of the court, which, in its turn, has 30 days to make a decision on the admissibility of the application. Article 58(2) provides that “The basis of finding the application inadmissible is lack of justiciability of the case.” However, this article does not provide whether this is the only reason for a finding of inadmissibility or is given here simply as an example; neither does it provide further guidance on which cases would be justiciable. The latter though to a certain degree can be inferred from the 1992 Regulations and 1997 Rules themselves. The application is returned (as possible to be found inadmissible) in cases of procedural errors (e.g. not signed by the authorized person) or upon request by the party. If the application is found to be admissible, the chamber has 10 days from the moment of such decision to provide the respondent with copies of the application and all other documents submitted hereby. The decision on admissibility is subject to appeal to the Plenum of the court. The decision of the chamber on admissibility can also contain the equivalent of the interim measures of protection and demand to provide particular documents. The respondent has a right to submit a counter-claim. The oral phase of the proceedings is public, unless the chamber decides otherwise. It starts with the announcement made by the judge-reporter previously appointed by the Head of the chamber. It follows with the consideration of evidence and testimonies of expert-witnesses. This part of the proceedings is followed by oral pleadings starting with the applicant. The last word is given to the respondent. The oral phase of the proceedings ends with the announcement of the written report prepared by the Council-General of the Economic Court, who is appointed by the Head of the chamber together with the judge-reporter.

The court issues ‘decisions’ on the substantive matters, and in the form of a ‘determination’ for all other matters. Dissenting judges can provide the Head of the chamber with their opinion in writing. Decisions consist of 4 parts: Preamble, Description, Reasons, Resolution. The chamber can decide to make public only the Resolution of the decision, yet it has to provide parties with the complete decision within 30 days from the moment of the public delivery of the resolution. The chamber can deliver an additional decision upon the request of one of the parties if the original decision has not provided determination in respect of one of the issues at stake. In accordance with Article 96 of the 1997 Rules and Article 10 of the 1992 Regulation, decisions of the chamber are subject to the appeal to the Plenum of the court. Initiation of the appeal proceedings has an effect of an automatic stay of the enforcement proceedings. Article 151 of the 1997 Rules provides that appeal proceedings must be initiated within 3 months. The chamber may issue an interpretation of the decision upon request of one of the parties or on its own initiative. The chamber can also revise the decision on the basis of newly discovered facts upon the request of one of the parties, filed within 3 months from the moment such facts became known, and cannot be requested after a 3 year period has expired from the moment of the decision.

Advisory proceedings are heard by the full court, and can be initiated (at least de jure) only by a representative of a member-state’s government or highest commercial court or court of arbitration or by an institution of the CIS. The question of admissibility is also decided by the full court. The order of phases here is analogous to that in the contentious proceedings, except that at the advisory proceedings experts are heard after, and not before, the representative of the applicant. In contrast to the provisions regulating dissenting opinions in the contentious cases, Article 140 of the 1997 Rules explicitly provides that dissenting opinions in the advisory cases become part of the case (as opposed to simply being provided to the Head of the chamber (Article 86 of the 1997 Rules)). Decisions of the full court in advisory proceedings are final, and cannot be appealed to the Plenum of the court. Plenum of the court issues a ‘determination’ in response to the appeal (and not a ‘decision’). The Plenum of the court has several options when deciding an appeal: 1) leave the original decision as it is and refuse the appeal; 2) overturn the decision of the chamber in full or in part and order a new hearing; 3) overturn the decision of the chamber in full or in part and stay proceedings; 4) amend the decision of the chamber; 5) overturn the decision of the chamber and deliver a new decision on the case. If the Plenum chooses to overturn the decision and return it for a new hearing, it cannot decide on the validity of the evidence, laws that should be applied and the decision to be reached during the rehearing. The Decision/Determination of the Plenum is final and is not subject to appeal.