It is beyond doubt that merging the Russian Supreme Court and the Russian Supreme Commercial (‘Arbitration’) Court will affect the way all cases are considered, antimonopoly cases among them. This change can be attributed less to different approaches of the lawyers, i.e. the judges of one of the highest judicial institutions of the country, than to other factors which are responsible for the huge impact that the Russian Supreme Commercial (‘Arbitration’) Court has had over an extended period on how economic relations are regulated in Russia.
For instance, the Court has taken into account the existing economic rules when deciding how to interpret legal regulations; it has largely applied international practices in spheres where the legislation has not kept up with the way things actually are; it has bound together the interests of a large number of parties affected by the decisions it has adopted (taking account of the public and private interests of various social groups, including business people); and, probably, the most important factor – it has created a hierarchy, a sequence for legal positions to be put into practice.
Whether the work of the Supreme Commercial (‘Arbitration’) Court is evaluated positively or negatively, it is important that the system has become not only predictable but effective. In numerous cases, the legal position of the Russian Supreme Commercial (‘Arbitration’) Court has bridged judicial gaps which the legislature was not able to handle. In addition, the highest court constantly adjusted the existing regulations to the changing economic environment.
It is obvious that some time will pass before the new Russian Supreme Court starts functioning efficiently.
Needless to say, antimonopoly disputes will be among those affected. The greatest challenge will be to preserve the uniform practice which the Supreme Commercial (‘Arbitration’) Court has endorsed. Otherwise, similar disputes will result in different judicial decisions, which will result in business entities taking decisions against a backdrop of increasingly ambiguous economic and legal conditions. Such consequences cannot be avoided but it remains unclear how long this uncertainty will last.
The procedure for considering cases is also likely to change. A judicial body that has for decades resolved “disputes between individuals” (may the judges of the Supreme Court forgive me for making their powers sound so inconsequential) will not be able to adopt immediately a business perspective for considering legal disputes. The Russian Supreme Court has always assessed the consequences of its decisions for the specific individual who is the litigating party. For this reason the new court is likely to focus more on individuals’ interests when interpreting many legal regulations. Thus, in antimonopoly cases, the judges will not see before them an entrepreneur litigating with a state body but an entrepreneur whose actions affect the interests of a large social group.
If this happens, the new Russian Supreme Court will take into account the interests of much larger social groups when taking decisions as compared to individual judicial acts of the former Russian Supreme Court and the Russian Supreme Commercial (‘Arbitration’) Court.
We do not have long to wait until we see how the Russian judicial system will develop. But change will come.
The article was first published in IFLR Magazine.