This week, the Cabinet of Ministers of Ukraine decided to hire international advisors and law firms to protect the interests of the Ukrainian state in international courts.
There are two conceptual approaches globally towards protection of the state interests in international court proceedings. Using the first approach the state establishes and finances its own state official agency which deals with the mentioned matters on behalf of the state. Under the second approach the state engages international law firms to act in respect of each particular case.
Of course, making choice between these two options, or their simultaneous use, depends on many factors.
As a rule, the first approach is used by “wealthy” states which have a rich and permanent practice of participation in international court proceedings and, thus, have good reasons to keep permanently operating team of advisers. For example, within its structure US Department of State has Office for International Claims and Investment Disputes which successfully represents the USA in international court proceedings throughout many years.
More “poor” states also sometimes take advantage of this approach. The brightest example is Argentina where representation in international arbitration cases has been mainly performed (for more than 15 years) by special department of the state treasury (Procurador del Tesoro de la Nacion). Several other Latin American countries, like Ecuador or Venezuela, up to a certain point follow the Argentinean example, which is not, however, so particularly successful as American one.
Positive implications of such approach are evident. The state saves huge amounts of money by not having to engage foreign advisers whose rates in such cases may easily exceed one thousand dollars per hour. The state in this case organizes a permanent team of legal experts who specialize in international law and have huge practical experience. Such team may not only be engaged into participation in court disputes, but also into legal support of current international cases where state official authorities are involved. As soon as the mentioned advisers have the status of state officials they may organize long-standing cooperation within the state apparatus to effectively address any international legal complaint.
Unfortunately, in reality realization of such a scenario faces serious obstacles. Firstly, in order to convince lawyers having an internationally recognized experience and potential to become state servants, the Government must bring the level of the official remuneration of such servants if not to the international, but to the highest Ukrainian standards.
The second serious obstacle is to assume personal responsibility for the results of work showed by such team. If certain state official (acting as a customer) engages assistance of legal advisers the responsibility the performance will rest on such advisers (or law firm they represent), but if the state engages its own specialists, each their mistake (which may inevitable be made) will harm the reputation of their head official or the person who initiated a certain program.
Taking the mentioned and similar opinions into consideration the Government usually opts to follow more conservative approach and hire foreign advisers to work on a certain litigation project.