Number 110B – The Law’s Endless Complexity & Subtlety – The Russian State’s Ownership Of The Stolichnaya Family Of Trademarks

An Interlude Continued–Unitary State Enterprises Under The Russian Civil Code

For historical as well as political reasons, the Russian government does not directly participate in private sector business activities. Rather, analogous to the practice of governments in other civil law jurisdictions, separate and inferior legal entities are used for such purposes. Generically, in Russia, these legal entities are referred to as “unitary state enterprises” (where different levels of government e.g., federal or municipal may act). The formulation herein  is the federal treasury enterprise. See generally Wm. Butler, Russian Law §§ 11.112-11.120 (3rd ed., 2009).

There are two types of unitary state enterprises viz., those having the right of economic management and those with the more limited right of operative management. The latter are generally characterized as treasury enterprises. Specifically, articles 113-115 of the Civil Code address the “what” of unitary enterprises with articles 294-300 enunciating the “how.”

Regarding the management of the Stolichnaya family of trademarks, the Russian Government originally established the Federal Treasury Enterprise (FTE) through Decree No. 494 (July 2002) “On Trademarks of Alcohol & Spirit Products” (see 425 F.Supp. 2nd 458 [2006]) and the FTE continues as the named plaintiff now appealing to the Second Circuit for the third time.

The Government decrees creating and empowering the right of operative administration in this Federal Treasury Enterprise are grounded in article 115 of the Civil Code, which together with article 297 prohibit it and other unitary enterprises  from disposing of any of the property entrusted to them without receiving prior State approval.

Under Russian law a notable and subtle distinction exists regarding what is property. This distinction caused confusion in the legal analysis that Judge Scheindlin engaged in. In fact, it lead to her making a legal error in declaring what Russian law was and is regarding the Stolichnaya family of trademarks entrusted by the Russian Government to the FTE.

Act 4–The Slippery Slope Of Judge Scheindlin’s Reasoning About The FTE’s Putative Failure To Fulfill The Requisites Of The Lanham Act

Back on 25 August 2014, Judge Scheindlin considered and, in substantial part, decided the defendants’ joint motion seeking to dismiss plaintiffs’ trademark claims on the grounds that the quantum of the evidence proffered in the fourth amended complaint did met neither the obligatory standing nor representation requisites of the Lanham Act.

The crux of the plaintiffs’ proof was in their Exhibit A–an “Assignment of U.S. Trademarks” (dated 03 February 2014) from the Federal Agency on State Property Management, a federal state executive body acting under a Decree of the Russian Government, No. 69 (dated 01 February 2014) with that assignment being signed by a deputy minister of the Russian Ministry for Economic Development who, inter alia, served at the Head of the Russian Federal Agency on State Property Management.

Judge Scheindlin curtly set forth (at p. 18 of her August 2014 slip opinion) the legal authorities enunciating the criteria for her judgment call:

“Courts in the Second Circuit have long held that “a party is not an assign for standing purposes under the Lanham Act unless that party owns the mark at issue.” [FTE IV, 726 F.3d at 75] Moreover, the Second Circuit has “accepted that a transfer of an ownership interest in a mark is a predicate to standing for any putative assign.” [FTE IV, 726 F.3d at 76 citing DEP Corp. v. Interstate Cigar Co., 622 F.2d 621 (2d Cir. 1980)]”

Thus the crucial verbiage in English was established as involving two nouns–“ownership” that is transferred in a writing plus an–“assign” which are what the Federal Treasury Enterprise was obliged to prove itself to be.

Applying those case law authorities plus logical reasoning in her August ruling, Judge Scheindlin, in November, firstly rejected defendants’ argument that the limitations of FTE’s decree-based charter could not be superseded and expanded by the February 2014 degree-based Assignment. Secondly, she determined (at p. 28 of that August 2014 slip opinion) that until expert testimony was marshalled on how to read the relevant Russian legislation, the

“FTE has alleged facts that plausibly show that the Russian Federation has assigned the Marks to FTE, giving FTE standing to sue under Section 32(1).”

At page 20 of her 24 November slip opinion, Judge Scheindlin succinctly stated her matured view of the crux of this case:

“To determine [at this point in time] whether FTE has standing, I must decide one overarching question: does FTE have a sufficient ownership interest in the trademarks at issue pursuant to the Assignment and Decree 69 to qualify as an “assign” under the Lanham Act? As will become quickly apparent, the task of answering this question is extremely difficult because it requires a U.S. court, which lacks any familiarity with Russian law, to address issues of first impression under Russian law. After hearing two days of expert testimony and several hours of thorough and thoughtful summations, I have decided that the answers to these novel issues resolve the Lanham Act standing question in favor of defendants, although this is undoubtedly a close call. (Italic emphasis in Judge Scheindlin’s opinion and order.)”

Act 5–The “Nitty-Gritty”–Decree No. 69 & the 2014 assignment to the FTE

Decree No. 69 (dated 01 February 2014) of the Russian Government directed the Federal Agency on State Property Management in the Ministry of Economic Development to execute a bilingual Assignment (dated 03 February, exhibit A to the plaintiffs’ fourth amended complaint that was filed on 04 February 2014).

In formulaic paragraphs of classic legal boilerplate, that 2014 Assignment

“sells, conveys, transfers, assigns, and sets over”

a five-page catalog of legal rights–“to title and interest;” “to sue and collect damages;” “to record” these trademark rights. Ultimately, that 2014 Assignment even declares that:

“[The] Assignor expressly relinquishes any and all right, title, and interest in and to the assigned property in the U.S.”

The plaintiffs placed much hope that the verbiage in this 2014 Decree and 2014 Assignment would resolve prior confusion and remove any doubt about whether a sufficient delegation of legal authority–under Russian law–had been made to the Federal Treasury Enterprise in order to satisfy the Lanham Act’s registration and representation requisites.

However, a yet further factual and legal development intervened in the form of legislative amendments making changes as well as additions to Part Four of the Russian Civil Code. These were enacted in Russian Federal Law of 12 March 2014, No 35-ФЗ, which for the most part took effect on 01 October 2014 (see generally,

One of these specific changes enunciates a notable delineation in the Russian civil law of property rights viz., as regards rights in tangible “things” (land and chattel) and intellectual property rights. This is Civil Code article 1227 that addresses the relationship between an intellectual property right and the right to ownership of that right. There was added, a new part viz., (3) providing that:

“The provisions of Section II of this Code shall not apply to intellectual property rights, if not otherwise established by the provisions of this Section [VII}.”

The significance of this change is corroborated and contrasts with the previous conception articulated in Civil Code article 128 stating:

“The following are objects of civil law rights: things, including money, commercial paper and securities; other property, including property rights; work and services; protected results of intellectual activity and means of individualization equated to them (intellectual property); non-material values.”

Pursuant to this catalogue, Russian legal property rights were previously conceptualized as being holistic plus in rem.

Thereafter in Part Four and articles 1229-1231 there is elaborated a characterization of IPR as an “exclusive right,” albeit it implies at least the semantic possibility of a distinction being drawn between the legal rights attendant for a “holder” (обладатель) as opposed to those for an “owner” (владелец).

Act 6–Russian experts sparring in an American federal district court

In the autumn of 2014, upon the parties’ mutual urging, Judge Scheindlin heard two-days of expert testimony from contending Russian legal advocates about what the Russia law was upon this point. Each tendered opposing analyses with reasoning. The one thing that was undisputed was that articles 113 plus 296 and 297 of the Civil Code do enunciate limits to the property ownership rights of a unitary state enterprise such as the named plaintiff, Federal Treasury Enterprise. Judge Scheindlin relied upon the explanations proffered by the two disagreeing experts. This state of affairs lead directly to her remarking (slip opinion at p. 29) that:

“I am somewhat uncomfortable telling a foreign government that a validly enacted decree cannot achieve the result that was clearly intended by its passage. I am also uncomfortable interpreting various sections [sic “articles”] of the laws of a foreign country–which I can only review in imperfect translation–when those sections [sic “articles”] have not yet been addressed and defined by the courts of that country.”

Much ado was made in this Federal Treasury Enterprise (FTE V), Sojuzplodoimport litigation over a Russian закон/statute that prima facie altered the overarching framework of the Russian Civil Code. That addition creates a distinction between the characteristics of ownership vis-à-vis intellectual property rights (viz., as are described in Part Four of the Civil Code, i.e., Section VII) and other property rights (viz., as are described and defined in Part Two, i.e., Section II, i.e., articles 209-306).

Specifically and in full, an addition has been made in Part Four to article 1227 i.e., a sub-part “(3)” is added (which for emphasis is in italics infra):

“(1) Intellectual rights do not depend upon the right of ownership and other rights in things to the physical carrier (or thing) in which the respective result of intellectual activity (or means of individualization) is expressed.

“(2) The transfer of the right of ownership to a thing does not entail the transfer or granting of the intellectual rights to the result of intellectual activity or to the means of individualization expressed in this thing, with the exception of the case provided by the second subparagraph of Paragraph 1 of Article 1291 of the present Code.

“(3) The provisions of Section II of the present Code shall not be applied to intellectual property rights unless otherwise established by the articles of the present Section [VII].”

In the end, Judge Scheindlin was most persuaded by the testimony of Moscow advocate Vladimir Gladyshev ( On behalf of the defendants, he had argued the premises that:

  • this legislative addition effected no changes in the status of unitary state enterprises–like the FTE–which is elaborated in article 113;
  • the characterization made by article 1226 that “[i]ntellectual rights . . ., include an exclusive right that is a property right, …;”
  • article 1226 needing to be read together with article 1228 which defines “objects in civil law rights” to include “other property, including property rights.”

His explanation had the seeming virtue (cf., Ockham’s Razor) of greater simplicity than the explanation made by Moscow advocate Alexander Muranov ( & Judge Scheindlin consequently concluded that:

“Mr Gladyshev closes the gap between “property,” as defined by article 113, and “property right,” in the intellectual property context of Article 1226, by relying on Article 1228, . . . Accordingly, trademark rights must be “property” that can only be held by a unitary enterprise in operative management.”

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Post Number 108 – 16 January 2014 – Getting Past Adams’ Legal Skepticism & Into Zorkin’s Thinking On Ownership Concepts & More

This is but a smattering of the thinking of the chairman of Russia’s Constitutional Court in his 2013 tome Law In The Context Of Global Change, specifically the consideration he gives to the changing property concepts since the USSR’s demise. In a nearly 500-page volume, section 4 of Valery Zorkin’s second chapter (“Law, Economics, & Social Justice: Global Tendencies & The Russian Experience”) is but eleven pages (“The Transformation Of Property Ownership Relationships Since 1990,” pp. 122-32), a rather small portion of his overarching and diverse range of legal discourse. But it is one directly germane to Vladik Nersesiants’ Civilism Manifesto and one that explicitly builds upon it.

Frankly, I am amazed at the quantity plus density of ideas, reasoning, and concrete proposals that Chairman Zorkin crams into these pages. So often those in high political sinecures and those with considerable power to wield, are coy and artfully deploy the aptly termed “weasel” words such that their statements are befitting the brilliant and terrifying “fog” metaphor that Charles Dickens employs in the opening of his Bleak House (Bradbury & Evans, London, 1853):

“Fog everywhere. Fog up the river, where it flows among green aits and meadows; fog down the river, where it rolls deified among the tiers of shipping and the waterside pollutions of a great (and dirty) city. Fog on the Essex marshes, fog on the Kentish heights. Fog creeping into the cabooses of collier-brigs; fog lying out on the yards and hovering in the rigging of great ships; fog drooping on the gunwales of barges and small boats. Fog in the eyes and throats of ancient Greenwich pensioners, wheezing by the firesides of their wards; fog in the stem and bowl of the afternoon pipe of the wrathful skipper, down in his close cabin; fog cruelly pinching the toes and fingers of his shivering little ‘prentice boy on deck. Chance people on the bridges peeping over the parapets into a nether sky of fog, with fog all round them, as if they were up in a balloon and hanging in the misty clouds.

“Gas looming through the fog in divers places in the streets, much as the sun may, from the spongey fields, be seen to loom by husbandman and ploughboy. Most of the shops lighted two hours before their time—as the gas seems to know, for it has a haggard and unwilling look.

“The raw afternoon is rawest, and the dense fog is densest, and the muddy streets are muddiest near that leaden-headed old obstruction, appropriate ornament for the threshold of a leaden-headed old corporation, Temple Bar. And hard by Temple Bar, in Lincoln’s Inn Hall, at the very heart of the fog, sits the Lord High Chancellor in his High Court of Chancery.

“Never can there come fog too thick, never can there come mud and mire too deep, to assort with the groping and floundering condition which this High Court of Chancery, most pestilent of hoary sinners, holds this day in the sight of heaven and earth.”

In contrast, this eminent, 21st century Russian judge is concrete as well as succinct. In summary, his discussion points include –

(a) the 2005 report of the Russian Audit Chamber (then chaired by former Prime Minister Sergey Stepashin) scrutinizing the privatizations of State property made between 1993-2003 and, which inter alia, reported that:

“At the start of privatization, the goal was proclaimed of making as many citizens of our country as possible—the ones whose labor created our national wealth—into owners. If this task had been consistently realized, in Russia today we would have a contemporary type private economy.

“It is well known that a contemporary market economy is maintained on two foundations: they are gigantic corporations under the management of hired managers with tens and hundreds of thousands of owner-stockholders, as well as an enormous number of small and medium-sized enterprises, which, incidentally, create more than 80 percent of the new jobs and promote innovations.

“But instead of that, in the mid-1990s gigantic holding companies were created, above all in the raw material sectors, and ownership passed to a handful of people. And small business was cast to the winds of fate and in practice put at the mercy of the criminal world. That is how we obtained the fourth ‘obstacle.’

“Because of the mega-concentration of ownership, in our country to this day, the stock market is not developed; the banking system is weak; the gap in income among various groups of the population is rising; and society does not accept the distribution of private property that has become established. Not to mention the temptations of converting economic power into political influence and the opposite tendencies.

“It is clear that without cleaning up these Augean stables, we will not build a competitive market economy and we will not overcome the artificiality of Russia’s inadequate presence on the economic map of the world.”

(b) an explicit statement that he would go even further than Nersesiants’ notion that every Russian citizen has a right to an equal share of the State’s property interests;

(с) Zorkin grounds his extrapolation on several things including a longstanding Russian-German dialogue about безусловного дохода and the State’s duty to provide a basic level income and social services to its citizens irrespective of their individual labor output (n.b., Karl Marx wrote his magus opus–Das Kapital, after all, in German not in English) and article 1 of the 1948 U.N. Universal Declaration on Human Rights (“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood);

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Number 110A – The Law’s Endless Complexity & Subtlety – The Russian State’s Ownership Of The Stolichnaya Family Of Trademarks


In December 2014 into Gorodissky & Partners’ legal practice in Moscow of international intellectual property rights, there arrived a matter that was literally a page (well, actually several hundreds of pages), albeit virtually resurrected, out of the mahogany file cabinet for legal-sized folders plus the much-inked “Day-Timer®” calendar in my former San Francisco private legal practice–22 years earlier on Union Square.

That was back when, for example, case files and folders, correspondence and pleadings were  predominantly what we now summarily dismiss as “hard copy;” effective “service” and formal “filing” involved arduous physical exertion–the act of running and the experience of sweat–instead of the present-day, one-finger-powered triumphant striking of the “Enter” key on a QWERTY keyboard.

The crux of the legal controversy in 1992 as well as in 2014 was (and continues to be) the Russian State as the rightful but much-wronged trademark creator and holder of the Stolichnaya family of trademarks. On the 24th of November 2014, it had despite decades of vigorous, not to mention incredibility expensive legal combat, failed–yet again–at vindication in the American federal courts. This latest bout was been a summary judgment order rendered on the procedural ground of standing in favor of the trademark usurping defendants–Spirits International, B.V., et alia–from U.S. District Court Judge Shira Scheindlin in Manhattan.

Unraveling this veritable briar patch of evolving events, changing litigants, amended legislation, conflicts of laws, nested court cases–at first brought to mind Jean-Baptiste Alphonse Karr’s notable articulation of great confusion plus disappointment: “Plus ça change, plus c’est la même chose.”

However, as the tangled confabulation of events and facts, pleadings and court decisions were dug-out and pieced together, out of their dissonance; it began to begin to become clear that while the Russian State’s legal claims had been repeatedly stymied, what was going-on was neither intellectual nor political stagnation.

Rather there was, in fact, tectonic legal change occurring. This involved and continues to involve a rethinking of fundamental legal concept: what is property; are all property rights the same; what does it means to “own” incorporeal versus corporeal property; how should an American judge, if ever, “read” the civil law of Russia–such that Karr’s words as a characterization of the situation were clearly no longer on point.

Thus what has come to back into mind as well as occupying more than a hundred megabytes on the computer hard drives in our Moscow practice of international intellectual property rights is the ensuing saga, which is in fact multinational in its scope.

Just on 25 March 2015, the Rotterdam District Court (case number C/10/442671/HAZA14-97, a Netherlands appellate court) handed a rare victory to Russia and that case was covered in the Moscow business newspaper “РБК” see ( whose report included these graphics:




But that is getting unduly ahead of a story that is most aptly understood through its chronological development.

Background – A Sovereign’s Demise As The Prelude To A Pepsi-Cola Brouhaha

The end of 1991 had unexpectedly brought for all of us the end of the Soviet Union. With a stroke of his pen, Mikhail Sergyevich Gorbachev on 25 December 1991, both resigned as general secretary of the Communist Party of the Soviet Union as well as acknowledged an end to the national sovereignty of the U.S.S.R.

Thus, Gorbachev confirmed the secession of all but one of the U.S.S.R.’s sovereign republics, whose declarations of autonomy had been made under article 72 of the 1977 Soviet Constitution ( Their fateful exiting steps were taken in the Belavezha Accords plus the Alma-Ata Protocols (12 Dec 1991, & 21 Dec 1991,, respectively).

Cumulatively these legal instruments and political acts extinguished the legal capacity and identity of the political experiment known as the U.S.S.R., albeit that a great many yet labor to preserve as well as pragmatically adapt vestiges of its salutary societal and cultural values plus traditions.

In its legal persona, the U.S.S.R. was a signatory national party to a great many public treaties as well as private contracts. Thus, it ratified the Convention establishing the World Intellectual Property Organization (WIPO) in 1968, acceded to the Vienna Convention on the Law of Treaties in 1986, and acceded to the UN Convention on Contracts for the Sale of Goods (CISG) in 1990.

In the sphere of private law, there was, for example, a commercially lucrative (to the “tune” of hundreds of millions of dollars) business deal whereby, in 1973, Pepsi-Cola got distribution rights in the Soviet marketplace for its famed soft drink. However, instead of receiving and exporting its profits in cash, they were taken in-kind, owing to the Russian ruble neither being a permissible export nor convertible into foreign currency. Under this barter arrangement, PepsiCo was afforded a highly remunerative monopoly to export Russia vodkas to America including the much famed “Stolichnaya” family of labels and trademarks.

The winter of 1991 thus was an extraordinary contrast from how lawyers now experience their professional lives. Our 21st century whirlwind–7/24/365–is centered upon instantaneous, digitized communication via the Internet, smartphones, and all of that. Using hand-sized hardware, software, and other A2K (access to knowledge) innovations in an equally transformed infrastructure, the news, including international legal developments and the complete verbiage and texts of legal documents connected with business deals arrive literally into our hands, as with our finger-tips we make searches for case law filed merely hours ago see e.g., (

Act 1–Wanna-Be Moskovskaya Vodka Distributors & Financial Matters, Inc.

Notwithstanding, before very many days in the winter of 1991 had passed, the fact of the demise of the U.S.S.R. prompted numerous enterprising business people to seize upon the mélange of commercial contract ambiguities, marketplace opportunities, and legal lacuna in order to seek to replace (or at least compete with) PepsiCo in the highly lucrative U.S. alcoholic spirits beverage market.

However, PepsiCo was far from asleep at the proverbial switch and it responded very quickly by filing multiple proactive federal court lawsuits under the American Lanham Act of 1946, as amended, in several federal district courts.

One of these controversies and its specific outcome is Financial Matters, Inc. versus PepsiCo, Inc., 806 Fed. Supp. 480 (SDNY, 1992). Sensibly the contending parties therein centered their legal claims in the trademark requisites, prohibitions, and nuances of U.S. trademark law rather than venturing into the tempting miasmas presented by the factual and legal complexities of multi-national commercial contracting and the subtle turbulence of interacting foreign laws, differing legal systems, plus the inherent “softness” of international law.

The particular West Coast “wanna-be” entrepreneurs who were my clients in 1992 were savvy enough to recognize their being “out-gunned” by the financial resources marshalled and litigation savvy displayed by PepsiCo’s legal army. In short, this fascinating matter was not ab active case files for more than a few months before those clients made a prudent and negative judgment call, “folded” their proverbial “tents,” and withdrew from the fray.

Act 2–Fast Forward & Things Getting Complicated

However, this fray over this highly lucrative USPTO trademark registration, made by the U.S.S.R. in 1969, neither fizzled-out nor ended.

Rather, it has continued and occupied several generations of law firm litigation teams plus agents of the Russian Federation right up to the present moment. Since 2000, Russia’s interests have been advocated and putatively represented by a unitary state enterprise–the Federal Treasury Enterprise (see Russian Civil Code, Part One, articles 113-115 & 294-300;

In official published judicial reporter series from America (viz., Federal Supplement, Federal Reporter, and U.S. Supreme Court Reports), Russia (in causes before the general jurisdiction as well as arbitrazh [commercial] courts), and even international courts (viz., the European Court of Human Rights case of OAO Plodovaya Kompaniya versus Russia, Application No. 1641/02, initial judgment 07 June, final judgment 12 November 2007)–there have been many combinations, permutations, plus iterated adjudications of a transforming factual nexus.

Act 3–With FTE V On Center Stage

On 24 November 2014, U.S. District Court Judge Shira Scheindlin issued a final judgment and order in Federal Treasury Enterprise, Sojuzplodoimport versus Spirits International BV, 14-cv-0712 (SAS). Her factual and legal trademark nexus was previously tackled by two of here Southern District of New York federal district court precursors–Richard Owen (still on active, senior district judge status) and George Daniels.

In 2011, in an unreported decision, Owen had decided adversely to the Federal Treasury Enterprise following a reversal and remand from the 2nd Circuit (623 F.3d 61 [2010]) of a multi-claim trademark complaint filed in 2004 that had been tried before Daniels and decided adversely by him in 2006 (425 Fed. Supp. 458) on the grounds that the defendants’ “incontestability rights” under the Lanham Act had matured.

However, Owen’s negative holding with regard to the sufficiency of the Federal Treasury Enterprise’s legal authority, while affirmed by the 2nd Circuit (726 F.3d 62 [2013]) did not leave the Russian plaintiffs without tactical options to continue to seek redress i.e., by preparing a fresh assignment to the Federal Treasury Enterprise et alia of the legal capacity to control as well as legal authority to transfer full rights over these precious trademark rights from the Russian Federal Agency on State Property Management in the Ministry for Economic Development (

Based upon all of the foregoing–a fourth amended complaint was filed in February 2014 and it was assigned Scheindlin, becoming the fourth Southern District of New York judge to grapple with this factual and legal briarpatch.

It is surprising that despite there being so many changes in and transitions of the litigants and their counsel over the years; notwithstanding several initiatives taken to bolster the legal prerogatives of the plaintiffs asserting the interests of the Russian Federation; with at least five successive rounds of legal pleading (i.e., Federal Treasury Enterprise has had four “bites at the proverbial apple” and Financial Matters, Inc., one)–these repeated assaults have all been uniformly rebuffed, with PepsiCo and its successors staving off the plaintiffs’ claims of their wrongful mimicry of and infringement upon of Russia’s U.S. trademark registration.

Scheindlin entered her final opinion and order in FTE V adverse to the plaintiffs on procedural–lack of standing–grounds. An appeal–the third round–to the U.S. Court of Appeals for the 2nd Circuit is now underway.

Interlude–The Lanham Act & Stating A Cause Of Action Under It

The American Lanham Act of 1946, as amended, presents a more rigorous set of prerequisites for effecting registration than do the trademark legal regimes of many other countries around the world see G.B. Dinwoodie & M.D. Janis, Trademark Law & Theory–A Handbook Of Contemporary Research (E. Elgar, 2008). It makes

“actionable the deceptive and misleading use of marks”


“protect[s] persons engaged in such commerce against unfair competition. . . .” 15 U.S. Code §1127.

To these prophylactic ends, the Lanham Act provides a legal cause of action for the infringement of registered trademarks, viz., 15 U.S. Code §1114, which is the focal point in the Federal Treasury Enterprise litigation matrix.

More specifically, §32(1) of the Lanham Act (which is codified as 15 U.S. Code §1114[1]), protects registered USPTO trademarks and creates a cause of action that may be asserted against anyone who

“use[s] in commerce any … imitation of a registered mark … likely to cause confusion, or to cause mistake, or to deceive.” Ibid.

There has been no dispute that the Russian Federation owns the legal title to the Stolichnaya family of trademarks registered with the USPTO, while the same has been highly controverted regarding the Federal Treasury Enterprise. It is a civil law unitary state enterprise (see Russian Civil Code, Part One, articles 113-115 & 294-300; that for years has doggedly sought to represent the Russia. Unfortunately, its “standing” has been vetted and found by Judge Scheindlin, among others, to have presented insufficient evidence of its legal authority to “represent” the Russian Federation, much less to invoke on Russia’s behalf and enforce the Lanham Act’s protections.

In a series of opinions and orders, Judge Scheindlin and her colleagues in the American federal judiciary have explained that they have not found the Federal Treasury Enterprise to fulfill the Lanham Act’s delineation of who may act on a trademark title owner’s behalf. The verbiage of the statute speaks of only “registrant[s]” of the trademarks in issue, wherein that term extends to a registrant’s

“legal representatives, predecessors, successors, and assigns of such applicant or registrant.” 15 U.S. Code §1127.

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Post Number 109 – 09 April 2014 – Legal Norms – Now & Then, Here & There

For eighteen years now, viz., ever since my 1995 arrival to live and work in Voronezh (and later in other places in the former Soviet Union), I have been intrigued and perplexed by the vitally important and fundamental civil law concept of the legal norm (“Rechtsnorm.”) Notably Hans Kelsen focused upon and wrote about it in the first (1922) and second (1960) editions of his Pure Theory of Law, with the latter being famously translated by the Paulsons–Bonnie and Stanley – and published by Oxford as Introduction To The Problems Of Legal Theory (1992).

Kelsen’s basic norm or “Grundnorm” is “presupposed,” analogous to geometry’s initial assumptions of axioms and postulates, for each order of positive law. It is simply “the historically first constitution [that] is to be obeyed.” That constitution may arise by either custom as well as by revolution and from such orders then flow lower, more specific sets of norms.

Kelsen elaborates:

norm qua specific meaning is something other than the mental act of intending or imagining the norm. Intending or imagining the norm must be kept clearly separate from the norm somehow intended or imagined. To speak of the “creation” of a norm always has reference to those material events that carry, as it were, the norm qua meaning. The Pure Theory of Law does not look to mental processes or physical events of any kind in seeking to cognize norms, in seeking to comprehend something legally. To comprehend something legally can only be to comprehend it as law. The thesis that only legal norms can be the subject of legal cognition is a tautology, for the law–the sole object of legal cognition–is norm, and norm is a category that has no application in the realm of nature. To characterize acts occurring in nature as legal is simply to claim the validity of norms whose content corresponds in a certain way to that of actual events. When a judge establishes as a given a concrete material fact (say, a delict), his cognition is directed first of all simply to something existing in nature. His cognition becomes legal at the point at which he brings together the materials fact he has established and the statute he is to apply; that is to say, his cognition becomes legal when he interprets the material fact as “theft” or “fraud.” Introduction To The Problems Of Legal Theory, p. 11.

Initially my pursuit of this inquiry was in connection with my work as an expatriate common law lawyer and then as a comparative legal consultant. Later an opportunity arose for me to consider this puzzling notion further as an LL.M. candidate at the Academic Law Institute, Institute of State & Law, Russian Academy of Sciences. There I was most fortunate to have had both Boris Nikolayevich Topornin and Vladik Sumbatovich Nersesiants to help me to get my common law brain around that foreign concept. Although I now hold a diploma that qualifies me as a Russian jurist as well as a common law advocate, legal norms are still ideas that fit only awkwardly into the methods of legal analysis and logic that I practice.

Kelsen revisited this subject at least twice more after his emigration to America, while lecturing at both Harvard and U.C. Berkeley. When at the former, he wrote:

As a theory, [the] sole purpose [of the Pure Theory of Law] is to know its subject. It answers the question of what the law is, not what it ought to be. The latter question is one of politics, while the pure theory of law is science.

It is called “pure” because it seeks to preclude from the cognition of positive law all elements foreign thereto. The limits of this subject and its cognition must be clearly fixed in two directions: the specific science of law, the discipline usually called jurisprudence, must be distinguished from the philosophy of justice, on the one hand, and from sociology, or cognition of social reality, on the other.

* * * * *

Legal norms may be general or individual in character. They may regulate beforehand, in an abstract way, an undetermined number of cases, as does the norm that if anyone steals he is to be punished by a court; or they may relate to a single case, as does a judicial decision which decrees that A is to suffer imprisonment for six months because he stole a horse from B. Jurisprudence sees the law as a system of general and individual norms. Facts are considered in this jurisprudence only to the extent that they form the content of legal norms. For example: jurisprudence takes cognizance of the procedure by which legal norms are created, for this procedure is prescribed by the norms of the constitution; of the delict, because it is defined by a norm as a condition of the sanction; of the sanction, which is ordered by a legal norm as a consequence of a delict. Only norms, provisions as to how individuals should behave, are objects of jurisprudence, never the actual behavior of individuals. “The Pure Theory of Law & Analytical Jurisprudence,” 55 Harvard Law Review 44, 50 (1941).

Finally, while at Berkeley, with the advantage of retrospection, he elaborated that:

The Pure Theory defines the law as an aggregate or system of norms, as a normative order. Now, what is a norm? A norm is a specific meaning, the meaning that something ought to be, or ought to be done, although actually it may not be done. There are different kinds of norms, norms of thinking, that is, logical norms, and norms of acting, that is, moral and legal norms.

According to a legal norm, men ought to behave under certain conditions in a certain way. That a man ought to behave in a certain way means that this behavior is prescribed or permitted or authorized. In this sense, a legal norm is a prescription or permission or authorization. Such a norm may be the meaning of an act of will of one individual intentionally directed at the behavior of another individual. Using a figure of speech, we say: the norm is created or posited by an act of will; then it is a positive norm. The law as a system of norms created by acts of human will is positive law. The Pure Theory of Law is a theory of positive law. “On the Basic Norm,” 47 California Law Review 107 (1959).

Yet further cosmopolitan learning became incumbent upon me during my seven-year stint as the Chief Legal Officer of the International Science & Technology Center where 39 nations came together around the funding of projects and activities to foster public and private sector innovation and commercialization made by a diverse but deeply talented workforce of scientists whose foci had previously been a broad gamut of weaponry.

More recently, the addition of yet facet of a cosmopolitan legal perspective has been occasioned by my being commissioned as the trial observer for the International Bar Association. On their behalf, I spent two years sitting in courtroom 7 of the Khamovnicheskiy federal courthouse which stands high upon the embankment above the Moscow River and overlooking the Kievskaya Vauxhall. There was acted-out the second criminal trial of Messrs Khodorkovsky and Lebedev which was a legal microcosm befitting the amazingly intricate creations that Fabrege once upon a time made for the court of the Russian czar. Not only were the individuals evocative of Honoré Daumier but the constructed legal entities and the layered transactions were as convoluted and ofuscatory as are the geologic records of a basin, range, craton, plain, cacophonic terrain such as is found in contemporary US Geological Survey map of Wyoming. Cf., John McPhee, Annals of the Former World (Farrar, Straus, & Giroux, 1982) & (

All of these ideas began to begin to coalesce and crystallize into intelligibility for me with a recent decision by the Russian High Arbitrazh Court that annulled(Ruling No. VAS-10853/13, dated 26 February but released on 06 March 6, is available, in Russian, at also see []) a significant intellectual property right regulation promulgated in order 626 of the Russian Federal Customs Service dated 25 March 2011.

In its ruling No. VAS-10853/13, that High Arbitrazh Court annulled a disputed IP regulation in a case filed by local businesses engaged in imports. The plaintiffs sought to annul §§ 3, 12, 14, & 17 of the Russian Federal Customs Service’s order no. 626, dated 25 March 2011. Those provisions set forth rules for customs authorities concerning the protection of intellectual property rights, including their interaction with IPR holders and their seizure of counterfeit products.

More specifically, the plaintiffs claimed that the criteria for determining counterfeit products set forth in order no. 626 were at odds with §1515 of the Russian Civil Code and other Russian laws, as well as provisions of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). These local import businesses also argued that order no. 626 had not been properly published.

The Federal Customs Service sought dismissal of the case, on the theory that order no. 626 was not a regulation and as such, it did not required neither registration with the Russian Justice Ministry nor official publication. In its decision, the High Arbitrazh Court held that order no. 626 was indeed a regulation that required registration and official publication. It ordered that the Federal Customs Service annul order no. 626 as well as pay the plaintiffs’ their attorney’s fees.

The semantic legerdemain ventured by the Russian Customs Service concerning order no. 626–its legal effectiveness yet its freedom from either Justice Ministry registration or publication in the Rossisskaya Gazeta presented “full square” and “on all fours” Kelsen’s concept of a legal norm, albeit in a factual context where this organ of State power flat-out broke the law and abused every conceivable school of legal logic and reasoning.

On the one hand these may seem an obvious and even elementary realization of Kelsen’s concept yet on the other hand, it is not one that seemingly does not need periodic recapitulation in the domain of the common law.

Thus in 1953–with patently parallel facts–in Hotch versus the United States (208 F.2d 244, 280) the 9th Circuit, U.S. Court of Appeals voided a criminal conviction for engaging in prohibited gill fishing on certain days and between certain hours when it was pointed out that this prohibitory regulation had never been published. And yet again 24 years later, it was invoked to invalidate an unpublished constraint upon the ability of the financially destitute to obtain emergency food stamps, Aiken versus Butz (442 Fed.Supp. 628, E.D. Calif.), and feed themselves and their families.

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Post Number 107 – 12 January 2014 – A Gauging Of The Depth Of Zorkin’s Thinking On A New Russian Social Contract

In The Civilism Manifesto, Vladik Sumbatovich was preoccupied with the content of Russia’s post-communist, post-socialist “social contract.”

Valery Dmitrievich likewise repeatedly speaks of both общественного договора and общественного согласия (viz., “social contracts” and “society’s consent”) in his Law In The Context Of Global Change as well as in his 26 November 2013 address to an annual international conference of Moscow’s law faculties that in this jubilee year was dedicated to Russian constitutionalism (РГ Федеральный выпуск N6236 от 19 ноября 2013 года).

The “how” of achieving both, in Zorkin’s view, is complicated not only by obvious and significant process concerns but further owing to his longstanding recognition that the macro-scaled, philosophically-idealized movement toward a nominally global multiculturalism is compromised, if not nullified, by the particular social and cultural identities and values of Russia’s heterogeneous populations.

As he has painstakingly elaborated from the bench as well as in his public discourse, such as at the 60th jubilee of the 1950 European Convention on Human Rights held at the Constitutional Court in St. Petersburg, the Platonic portrayal of justice as an abstract, universal idea is, in fact, disconnected from reality. That is, the principles of justice have always been and continue to be rooted in particular social contexts. Furthermore, these facts and values are inextricably impacted by the ever changing conditions of human experience see, Gagik Harutyunyan’s New Millennium Constitutionalism–Paradigms Of Reality & Challenges (2013, []) e.g., at p. 345, Zorkin’s discussion of “Lautsi v. Italy” and “Kononov v. Latvia;” at p. 347, his reading of “Young, James and Webster v. the United Kingdom;” at p. 347, his problems with “Tyren v. the United Kingdom” and “Markin v. Russia.”

Lest this disparagement of Platonism seem glib, one need only to look in academia at Oxford professor David Miller who explains that

“To understand global justice correctly, we have to grasp how the world order as a context for justice is both similar to and different from the domestic context, the differences being sufficiently great that familiar principles of social justice – equality of opportunity, for example – cannot simply be ‘stretched’ and applied at a global level. We also have to explore the possibility that they might pull us in different directions – that sometimes political choices have to be made between promoting social justice at home and furthering global justice abroad. It is too neat and too comfortable to think that one fits inside the other like a Russian doll.” Justice For Earthlings, chapter 7 at p. 166 (Cambridge, 2013).

His summary of this fundamental disconnection has three claims (pp. 180-182):

“The first is that . . . , we must begin by taking a close look at the human relationships to which our conception will be applied. The world, now and for the foreseeable future, is made up of independent, though interacting, political communities, within each of which there are different shared understandings of the central values of human life and of what, therefore, the goals of the state should be. Even though most nation-states are multicultural internally, there is no real equivalent to this political diversity inside them. So we cannot form our conception of global justice simply by drawing from ideas of social justice that have evolved within nation-states. We cannot assume that principles that make sense in these domestic contexts will continue to apply once we move to the international arena. Our theory of global justice must stand independently of existing theories of social justice.

“The second claim concerns the agency that we hold primarily responsible for carrying out the task of promoting distributive justice [, . . .  the state]. Of course the state mainly furthers social justice indirectly, through legislation, public policy and fostering norms that citizens are encouraged to follow – so social justice relies on widespread cooperation on the part of the public who have, for example, to pay their taxes and claim their benefits honestly; to follow appropriate, non-discriminatory rules when making decisions about who to employ, who to buy from and sell to and so forth.

“Nevertheless part of the state’s job is to say authoritatively what each person must do in the name of social justice and often to follow up with sanctions if a person fails to comply. There is no equivalent to this in the case of global justice, no single agent who can be held responsible for protecting human rights or for ensuring that the international trading system is fair. * * *. This is the background to what I have called the justice gap: no state can be obliged, as a matter of justice, to take up the slack that others have left. This makes the achievement of global justice precarious in a way that the achievement of social justice is not.

“The third claim is about the real possibility of conflict between pursuing global justice and pursuing social justice, a possibility that seems often to be denied by progressives who see the former as simply a logical extension of the latter. I have noted that there may not only be resource conflicts but also identity conflicts: there may be a trade-off between seeing ourselves as citizens of nation-states bound by historical and cultural ties to other citizens, and seeing ourselves as cosmopolitans whose ties to any particular place are only sentimental but not ethical or political. Although the institutions and practices of social justice are now well entrenched in most liberal democracies, it is also true that public attitudes in these societies have shifted somewhat over the past quarter-century or so, broadly towards liberal individualism and away from liberal egalitarianism.

* * * *

“Since coordination between independent political communities cannot be guaranteed, the justice gap will still exist: there will be cases where people in poor countries have claims of justice that no rich community feels obliged to meet. But if we can enlarge our understanding of citizenship so that it comes to include the discharge of responsibilities of global justice, it will at least have been narrowed significantly.”

I see plain parallels between Zorkin’s elaboration of Nersesiants’ concern with Russia’s “social contract” to involve the consent of society at large as a necessarily related element. And the ECtHR cases that Zorkin cites can readily be seen to involve values within individual nation-states that are part of a domestic vision of social justice that are not part of the cosmopolitan conception of global justice. Further, Zorkin echos Miller’s second claim that there is no international agent “to say authoritatively what each person must do in the name of [global] justice and often to follow-up with sanctions if a person fails to comply.”

Thus the political correctness of (a) what are human rights and (b) who decides about the “how, what, and where” of their exercise is not the straight-forward logic or morality that are in current vogue.

Stephan Hopgood in an op-ed in the Washington Post may righteously deplore “The End Of Human Rights” (03 January 2014) but only with a leap of reasoning over the numerous schools of philosophy that have disagreed with Platonic idealism for two thousand years plus a grossly myopic exercise of a monotheistic logic (which itself, is a “hot-bed” of many flat-out contradictory schemes for thinking).

More must be said about Zorkin’s and Nersesiants’ conceptions of property ownership but this post can be aptly concluded with a nod to John Quincy Adams i.e., the son of the second U.S. president (who became the 6th U.S. president but only after serving as the first U.S. ambassador to Russia) viz., his diary entry of 26 May 1817:

“I spoke to Wirt [William Wirt, soon to be named Attorney General by President Monroe] about the acquittal at Baltimore of the pirate Daniels. The case went off upon a legal quibble.

“Wirt says it is because the judges are too weak but very good old men who suffer themselves to be bullied and browbeaten by Pinkney. []

“I told him that I thought it was law logic–an artificial system of reasoning exclusively used in courts of justice, but good for nothing anywhere else.. . . The source of all this pettifogging is, that out of judicial courts the end of human reasoning is truth or justice, but in them it is law.”

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Post Number 106–07 January 2014–The Temerity Of A Smattering Of Significance As Well As Of Legal Moment

The folk philosopher and musical bard Bob Dylan, in 1965, aptly admonished us in his “Subterranean Homesick Blues”–

“Johnny’s in the basement mixing up the medicine; I’m on the pavement thinking about the government; The man in the trench coat, badge out, laid off; Says he’s got a bad cough, wants to get it paid off; Look out kid, it’s something you did; God knows when, but you’re doing it again . . .

“Look out kid, don’t matter what you did; Walk on your tiptoes, don’t tie no bows; Better stay away from those that carry around a fire hose; Keep a clean nose, watch the plain clothes”

leading to the punch line–

“You don’t need a weather man to know which way the wind blows!”

Dylan’s catchy melody, bright alliteration, and lyrical onomatopoeia were what initially most appealed to my teenage and unsophisticated sensibilities–as well as those of many other fans–with an adult as well as serious deconstruction of his words plus the meanings behind his images only being undertaken a number of years later.

While studying French and Russian in high school plus in my collegiate coursework in Anglo-Saxon, Middle English, and mathematics, I only preliminarily began to appreciate the disparate tools for communicating and reasoning that they represented.

So it was later still, in the course of my legal education, when I finally began to fully appreciate the depth of the written word and the challenge of intelligibility as scientifically established by among others–Charles Osgood (The Measurement of Meaning [University of Illinois, 1957), Joseph Greenberg (Universals Of Language, 2nd edition [MIT, 1966]), James White (When Words Lose Their Meaning [Chicago, 1985]), and George Steiner (After Babel, 3rd edition [Oxford, 1998]) and Noam Chomsky (Language & Mind, 3rd edition [Cambridge, 2006]).

By way of an empirical example, I should call your attention to the speech of Abraham Lincoln in Baltimore, Maryland on the 18th of April 1864 ( wherein he said of “liberty”–

The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatable [sic] things, called by the same name—liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatable [sic] names—liberty and tyranny.

Of course, it is necessary firstly, that a text be read before the merited tasks of secondly, reading it closely and then thirdly, searching between the lines–are possible. When the text is in a foreign language, as is Valery Zorkin’s Право В Условиях Глобальных Перемен, consideration needs being taken of how Russian works, especially differently from the English language.

Almost a year after its presentation in his public speeches, Zorkin’s words have unfortunately received almost no reaction–at least from what may be gleaned from published commentary in the Russian as well as English media. That raises the troubling possibility of it being little read.

In the same vein, if one does not pay attention either to the wind or the direction that it is blowing, then a weatherman (in the present context, your blogger) is needed.

Zorkin’s Law In The Context Of Global Change (Норма/Norma, 2013) plus his English language contribution to Harutyunyan’s New Millenium Constitutionalism–Paradigms Of Reality & Challenges (2013, NJHAR, Yerevan [ &]), entitled “The Interaction Of National & Supra-National Justice,” (pp. 341-366), are to be missed at our collective as well as individual peril!

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Post Number 105–30 December 2013–“The time has come,” the walrus said, “to talk of many things: Of shoes and ships–and sealing wax–of cabbages and kings” and “civilism.”

Civilism as postulated by Professor Vladik Nersesiants, late of the Institute of State & Law–RAS, is a part of a genuinely novel, important, and valuable set of legal ideas.

As 2013 concludes, most of the subjects in conspicuous legal contention are venerable ones whose definitions are deeply established and well-grounded, even if their present day application is in ferment and heated disputation–the division of powers between branches of government, the right to privacy, freedom of speech, the personhood of legal entities as well as the unborn, and many others.  

Despite Academician Nersesiants’ passing in 2005, his notion of civilism is still being actively discussed in, e.g., Constitutional Court Chairman Valery Zorkin’s densely written and politically pointed (viz., his concluding chapter queries: “Russia and the West–dialogue or confrontation?”)–Право В Условиях Глобальных Перемен/ Law In The Context Of Global Change (Норма/Norma, 2013). In the concluding portion of his chapter 2 (“Law, Economics, & Social Justice”), he undertakes a thorough discussion of Nersesiants’ ideas and reasoning.

Civilism is a theme and premise readily inferable in the highly intricate tango of multi-party representations and expectations alluded to, but not yet fully disclosed, in President Putin’s recent pardon of Khodorkovsky (e.g.,I [MBK] wrote in my papers what I had repeatedly said publicly: I am not going to engage in politics and do not intend to fight for the return of assets [Yukos ]” combined with the Russian Supreme Court’s currently pending reconsideration of the more than 500 billion rubles in sanctions that were part of the 2005 penalties imposed in MBK’s first conviction and sentence).

Nersesiants first pondered and wrote about civilism during the years of perestroika and then with more substantial elaboration during the two-terms of President Yeltsin and during the first term of President Putin.

His ideas address the highly pragmatic problem that was among the corollaries of Russia’s assumption of the legal and financial obligations of the former Soviet Union i.e., having accepted those liabilities what was the character and nature of the valuable assets that came along with them plus what was to be done with them and how?

Quite simply, many were sold (see e.g., Kremlin Capitalism–Privatizing The Russian Economy by J. Blasi, M. Kroumova, & D. Kruse [Cornell, 1997] & The Selling Of The Soviet Empire by A. Kokh [Liberty, 1998]), as early in President Yeltsin’s first term in office a great many industrial assets (including e.g., the oil fields, wells, and refineries that were acquired by Mikhail Khodorkovsky becoming the core of his international business empire–Yukos) that were held and operated in the name of the Russian state became the subject of privatization. The proceeds from which were received by the state and spent.

The view of the late Academician Nersesiants was that the state was only the people’s representative and was never an independent property owner. Under his third way (i.e., as neither capitalism nor socialism), a new “social contract” was needed for a devolved, post USSR, Russia where formal state property had a social (общественны) character. As he wrote in 2000,

“To successfully overcome socialism and pass on to the post-socialist system a ‘social contract’ is necessary, based on the principle of the equal right of each to a participatory share identical for all citizens in all ownership being de-socialized” (The Civilism Manifesto, at p. 23 [translated by Wm. E. Butler, Vinogradoff Institute-University College London, 2000]; Национальная Идея России Во Всемирно-Историческом Прогрессе Равенства Свободы И Справедливости, Норма, 2000).

Nersesiants’ rationale in implementation is that:

“Recognizing each citizen to be the real owner gives rise in society and the country to powerful and insuperable centripetal forces and will become the foundation of a stable legal order. The just revolution of the problem of ownership at the level of each individual materially weakens the vitality of all other conflicts in society.

“The introduction of civil ownership would signify the true resolution of the problem of alienation from ownership and the real and universal humanization of the relations of ownership in the interests of each. Such ownership would transform the community of ‘all together’ into a civil society of economically and legally free and independent individuals and create the necessary conditions for confirmation of a civilitarian rule-of-law State.

“The right to civil ownership is not simply the abstract legal capacity of an individual to have (or not to have) ownership of the means of production, but the subjective right to real ownership already acquired, existing, and inalienable. Thus, civilitarian law is a new, post-bourgeois, and post-socialist law-formation. It retains the principle of any (including bourgeois) law, that is, the the principle of formal equality, and together with this substantively augments and enriches it with a qualitatively new moment–the real subjective right of each to a minimum of ownership identical for all.” Ibidem, p. 21.

Yet even as he described an idealized “civil society” in 2000, Nersesiants was a pragmatist as in his Manifesto’s final chapter he reasoned that,

“a point of no return in the Russian situation can only be the social contract . . ., an essential condition of which is the creation of the civil ownership fund. And this point of no return must be traversed now, before the reforms are changed by counter-reforms and new cataclysms.

“Russian owners and authorities must clearly and definitely express their will for a real agreement, name their price for the social contract, discuss all the conditions of this contract with society, and find an agreed solution. Now is the moment of truth: the reality of the contract depends upon the justness and reality of the social price. One should recall that the social price of a contract (civil ownership fund to be created) is not philanthropy of owners to the benefit of non-owners, but a return of a determined part of the socialist inheritance to those to whom it lawfully belongs. The price of the contract is, together with this, the payment for social legitimization and universal amnesty of all forms of ownership and the open, legal existence and functioning thereof within and without Russia. The creation of a civil ownership fund will become the foundation for the affirmation of a stable civil peace in society and a fundamental guarantee of the economic autonomy of the individual and the real effectuation of the rights and freedoms of each citizen of the Russian Federation under the conditions of a post-socialist system.” Opere Citato, pp. 42-43.

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Post Number 104–14 December 2013–A Bounty Of Reading For The Long Russian Winter’s Night

Last Thursday, the 12th, marked the 20th jubilee of the Russian federal Constitution and also heard the Russian President’s delivery of his annual state-of-the-nation address. Consequently that grand Kremlin hall rang with celebratory words as well as reflection upon the past twenty years under the 1993 Constitution, along with a detailed consideration of Putin’s insights plus perspective upon a broad range of foreign as well as domestic themes.

For the 15th anniversary of that foundational document, a 6-volume set–«Из Истории Создания Конституции Российской Федерации» (An History of the Adoption of the Russian Federation’s Constitution)of decrees, documents, draft articles, materials, print media accounts, official as well as ad hoc reports, resolutions, meeting transcripts–germane to it were scrupulously assembled and published by Wolters-Kluwer.

A major driving force behind the collection, preservation, transcription, and verification of those records was the Russian Foundation for Constitutional Reform ( and its director Oleg Rumyantsev. Previously, he was secretary to President Yeltsin’s Constitutional Commission and since then has worked with other alumnae of the corps of advisers, parliamentarians, and scholars who supported this famous project and who continue to labor to protect and to advance its ideals. Nota bene that complete sets of this legally definitive resource are still available for purchase from that Foundation.

On the occasion of this 20th jubilee, that Foundation ( has prepared an expert report (“White Paper”) «Потенциал Развития Конституции: Пути Конституционной Модернизации Российской Федерации» (The Russian Constitution’s Potential For Development–A Path For Its Modernization) and Rumyantsev authored a historical monograph–«Конституция Девяносто Третьего История Явления» (The Constitution Of 93: An Historical Account)–under the imprint of Библиотечка Российская Газета i.e., the Library of Rossiskaya Gazeta (viz., the Russian State’s official publication of record).

As if these tomes were not enough to strain our eyesight in these days of cruelly-rationed sunlight and to preoccupy our harried minds, earlier this autumn, Professor Sergey Shakhray, one of the principal drafters who took the ideas of the Constitutional Commission and put them into words, sentences, articles, and chapters–released a 919-page magus opus–«О Конституции: Основной Закон Как Инструмент Правовых И Социально-Политически Преобразований» (On The Constitution: Our Fundamental Law As An Instrument For Legality & Social-Political Transformation)–under the Russian Academy of Sciences’ imprint, Наука.

Also a short while ago, the longest serving judge in modern Russian history, the chairman of the Russian Constitutional Court that existed before the adoption of the 1993 federal Constitution as well as of the present Russian Constitutional Court, Valery Zorkin, edited the third edition of his esteemed «Комментарий К КонституцииРоссийской Федерации» (A Commentary Upon The Russian Federation’s Constitution)–under the imprint оf Норма.

There have been other publications on the seminal text that is the focal point of this jubilee but the foregoing standout as remarkable. Most recently and succinctly–because it is a newspaper interview–but significant because of who is interviewed and what he has to say about his role in the frenzy of creative and intellectual activity that produced the Russian federal Constitution twenty years ago–of Andrey Goltsblat.

In the Moscow Times (“Fate Intertwines Goltsblat & Russia’s Rule of Law,” 13 December 2013,, we learn that former paratrooper Goltsblat was writing his doctorate at the Institute of State & Law under the tutelage of his professor Valery Zorkin when the Constitutional Commission invited Zorkin to become a member. Since the subject of Goltsblat’s dissertation was the rule-of-law in Russia between 1905 and 1917, he was soon invited to join the staff of that Commission.

His entire interview merits a careful reading but two points particularly deserve repetition. First he explains that:

“The [Russian federal] Constitution is a contract between the state and society. Although we can recall examples of famous cases when private property has been taken away and other constitutional rules have been broken, overall, it appears that the Constitution has been a success.

“Now the task is to make this contract function as intended and the main role in this regard belongs to the justice system.

“Here I see one of the main issues as being full observance of the social contract that is called the Constitution. Russia’s legal system does not yet fully provide for the implementation of the social contract between that state and society. The courts sometimes take the side of the state or corrupt officials.

“In order to achieve the full effect of the Constitution we need a powerful and independent court system made up of professionals capable of making decisions in accordance with the Constitution and the laws of the land. If we achieve that then we will live in a constitutional state with a functioning rule-of-law.”

A second essential point that Goltsblat astutely observes in the context of eliminating corruption is that:

“It can be countered with the help of legal reform, independent courts, and through a change in the mindset of many people, from bureaucrats to businessmen.

“But again the message has to come from within the ruling elite. As soon as they make such a decision among themselves, then the real fight against corruption will commence.

“Yet for this to happen, there needs to be an internal change of philosophy, a growth of legal consciousness, education, and so on.”

Thus the duty and capability for obedience of the law lies with everyone of us. The blame for the flaws in the rule-of-law in Russia lies with the people–one and all–you and me.

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Post Number 103 – 29 November 2013 – Despite All The Criticism & Cynicism, An Instance Of «Softlaw» That Is Effective

No, I am not talking about some new legal research computer software in writing about “softlaw,” although that is a part of our 21st century new-vocabulary-speak.

In the latter regard, here in Russia, a couple of the major legal research database services do deliver their products, in among other formats, on physical CD-ROMs with subscribers, on a monthly basis, receiving both proprietary search software to execute a client’s interrogatory as well as up-dated, compressed data files that are the objects of those searches (e.g., Consultant and Garant). In the Europe and North America, other legal research database services (e.g., Hein On-Line, Lexis-Nexis, and Westlaw) offer such staggeringly large libraries of information such that their fee-for-service access is made via the Internet to both search software and propriety data hoards.

But “softlaw” has additional denotations and it is the context of international law that is the main topic of this post. Of course there are those who skeptically and genuinely question whether any part of so-called international law is “hardlaw” see J. Goldsmith & E. Posner, The Limits Of International Law (Oxford, 2006); E. Posner, The Limits Of Global Legalism (Chicago, 2009).

However, international law is so ubiquitous today that a more pragmatic course is to use those “hard” and “soft” qualifiers to more finely delineate between signed, sealed, ratified treaties that are regarded as being “in force,” as opposed to materials receiving less formal acknowledgement while having been agreed upon by the parties with the objective of their having genuine effect.

One week ago, albeit after almost two months of contentious filings, hearings, and press releases, the international judicial body empowered to adjudicate a large portion of the disputes addressed under the 1982 Convention on the Law of the Sea issued (by a vote of 19-2), with immediate effect, an order granting to the Kingdom of the Netherlands substantial provisional measures see ( The application of the Netherlands for such relief was granted against the Russian Federation even without the Russia acknowledging either the Kingdom’s complaint or Russia’s accepting that judicial forum’s jurisdiction in this cause.

That is the International Tribunal on the Law of the Sea in Hamburg, Germany ( includes among its signatories both the Netherlands and Russia. The former, as it happens is the flag of convenience under which the Murmansk-impounded “Arctic Sunrise”–which was used by Greenpeace in mid-September to protest Russia’s oil drilling in the Arctic Ocean–is formally registered.

In 1997, Russia had sought to make a reservation delimiting its responsibilities under the Convention on the Law of the Sea. However, in terms of the laws of punctuation as well as of international law, Russia went too far.

Articles 297 and 298 of that Convention address the matter of how signatories may limit the jurisdiction of the International Tribunal. Specifically, 298(1)(b) provide permits a reservation to exclude jurisdiction in situations involving “disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3.”

Paragraphs 2 and 3 under article 297 address the activities of marine science research (¶2) and fisheries (¶3)–nothing more, nothing less. Russia attempted in 1997 to broaden the reservation allowed by article 298 by (i) excerpting the permitted exclusion only in part (viz., “disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction”) plus (ii) inserting a semi-colon when in fact the clause did not end but rather it continued with a significantly narrowing proviso (viz., “excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3”) after which (and only after which) there is a syntactic stop in the form of a semi-colon.

Thus by a vote of 19 to 2, the reservation allowed by the Convention was held not to have been effectively exercised by Russia, the broader exception asserted by Russia was flatly rejected by the International Tribunal, under the Tribunal’s order the matter is referred to an arbitral panel, and provisional measures were ordered including the release of the 30 detained individuals plus the vessel itself (upon the payment of an aggregate bond of 3.6 million Euros).

Meanwhile in bail proceedings in the Russian trial courts, within less than a week, all 30 have been granted bail and this has occurred with financial bond amounts significantly less than those set by the International Tribunal see ( Of course, it must be acknowledged that none of them have as yet been given permission to leave Russia as the International Tribunal explicitly ordered.

In sum, the pessimism of those who view and characterize all international law as a mere charade was not fulfilled in this case study. And on a practical level, institutional inertia on the Russian side has been de facto overcome as some positive steps consistent with the order of the International Tribunal have begun to be taken.

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Post Number 102–26 November 2013–Hope Springs Eternal Even On The Very Brink Of Winter

Today saw the first snowfall in Moscow, albeit with its melting as soon as the snowflakes touched the still unfrozen earth. With a constitutional jubilee soon to be upon us, news accounts and the chatter in legal circles has been fittingly bleak in the classic wintry sense with the prospect of what are widely perceived to be prospective negative changes to the 1993 Russian federal Constitution, numerous of whose better legal provisions have yet to be fully implemented and realized.

Among these feared changes are ones (which are contained in Bill No. 352924-6 that has already successfully passed the requisite three readings in the State Duma and gone forward to the Federation Council) that will meld together the present arbitrazh commercial courts (with a High Arbitrazh Court at its apex) with the courts of general jurisdiction (with the Russian Supreme Court at its apex) see William E. Butler, Russian Law (3rd edition, Oxford, 2009) §§6.12-6.83; William Burnham, Peter B. Maggs, et alia, Law & Legal System Of The Russian Federation (5th edition, Juris, 2012) pp. 53-89.

This week plus the next–in the run-up to the 20th jubilee fete on the 12th of December–are legal convention and symposium heavy e.g., a 14th annual conference of law school faculties; the 2nd national legal congress under the auspices of the Russian Agency For Legal & Judicial Information (RAPSI).

In attending the first of the foregoing at Moscow State University in a spanking-new law faculty, multi-storied complex, I eagerly awaited the keynote from one of my favorite Russian jurists, the chairman of the 19-judges comprising the Russian Constitutional Court, Valeriy Dmitrievich Zorkin. His touted theme was problems in the development of constitutional law in Russia.

Within moments of his taking the podium, I was feeling quite frustrated owing to a combination of a mediocre sound-system plus Valeriy Dmitrievich’s habit of turning away from the microphone in order to be courteous and to speak toward his good colleagues seated on the stage beside him–so much so that I could hardly follow his words, much less his thoughts.

Feeling flummoxed, I turned to the conference program and its list of the speakers, noting that the name of the next speaker was familiar to me although I could not remember the context. Certainly his titles were most imposing–adviser to the President of the Russian Federation–but that did not trigger a metaphorical “light bulb” of recognition of Veniamin Fedorovich Yakovlev, which “lit-up” only after the end of the day, after I had gotten home, and ruminated further.

More truthfully, that was after I did an Internet search–does that make me and my nominally prodigious learning just another example of Daniel Kahneman’s bane: SYSTEM ONE–lazy (see, Thinking Fast & Slow, Farrar, Straus, & Giroux, 2011)?

Yakovlov preceded Ivanov as the chair of the High Arbitrazh Court (1992-2005). Ergo, his reassuring ideas and words were not merely an artful demonstration of cunning rhetoric–he was speaking about “his” own personal and markedly superior court system that therefore is hopefully not just being swept-up for disposal in the proverbial “dustbin” of good, even great, ideas being squandered. 

Early this evening, RAPSI released a list of five-myths about the pending Russian judicial reform that is both timely and the more complicated explanation of what is (hopefully) really going on see, (

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Post Number 101–22 November 2013–Haste Makes–As Often As Not–For The Imperfect

Being in a hurry often seems to be the epitome of this technological (query are we empowered and driven or, owing to our tunnel-vision, handicapped?) century.

Putin’s signed original, seventeen-page proposed legislative text is dated 07 October although talk about this revolutionary judicial realignment began back in the early summer. Still his verbiage did not become available on the public portion of the State Duma’s Internet-accessible database until early November.

A successful first reading was on the 12th followed in short order with a second reading on the 20th of November that remarkably accepted no amendments to the bill. Thus the original presidential text remains unaltered as the constitutional consolidation of these two judicial systems advances.

For many here in Russia there is dismay as a transparent and heavily modernized arbitrazh court system is being melded into the decidedly-antiquated structure of the courts of general jurisdiction that trundles along under the aegis of the behemoth (somehow it functions with over 100 members) Russian Supreme Court. These criticisms come from many sectors but most recently from an ad hoc coalition of advocates and jurists that composed and publicized a thoughtful four-page critique of and protest about this so-called constitutional reform.

Tragically, the merits of the arguments in opposition to these structural changes to modern Russia’s judicial branch are not only being rejected, there is a veritable rush to judgment as both the third reading and vote upon bill № 352924-6 was had today, the 22nd of November. Thus, it has now formally passed the Duma and is on its way to the Federation Council!


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Post Number 100–16 November 2013–Enormous Changes At The Last Minute Would Be An Overstatement But The Experience Of The Life Of The Civil Law In Russia Is Full Of The Unexpected

Post Number 99 commented upon a flurry of news reports in the run-up to the 20th jubilee of the Russian federal Constitution this coming December 12th. Demonstrative of conscious governmental efforts at greater transparency and clarity are reflected at the Presidential web site ( where the interested reader will find a transcript of a colloquy had on 07 December at Putin’s residence at Novo-Ogaryovo (see as well as an English language summary plus an additional legislative proposal regarding the wider use of the national flag and anthem.

As has been noted in those news accounts, on the one hand, significant legal dissonance plus discord is in evidence in the jurisprudence of the European Court of Human Rights with that of the Constitutional Courts in Armenia, France, Germany, and Russia as well as the Supreme Court of the United Kingdom see The New Millennium Constitutionalism–Paradigms Of Reality & Challenges (G.G. Harutyunyan, editor; NJHAR, 2013;

On the other hand, the ECtHR has taken some pains to listen to and to address the concerns of the larger European judicial community as well as manifested some greater deference to the EU legal doctrine, under article 5 of the EU’s Lisbon Treaty ( ), of subsidiarity see (

Still proposals such as were being expressed at Novo-Ogaryovo including revision of article 15(1)(4) of chapter one of the Russian federal Constitution (nota bene that gives international treaties supremacy over it as well as all other domestic legislation) is an example of yet other (if more dire) approaches towards addressing such genuinely felt needs plus political concerns about the integrity of one’s national sovereignty (see “Dialogue between judges, the ECtHR, Council of Europe, 2012” at

Then on the 14th of November in St. Petersburg at the Constitutional Court an international convocation was held including the participation of numerous Russian legal leaders and significant thinkers who had not been in attendance at Novo-Ogaryovo e.g., the intrepid Constitutional Court chairman Valeriy Zorkin, Professor Sergei Shakhrai, and Oleg Rumyantsev of the Fund for Constitutional Reform (

On the one hand, the transcript from the 7th at Novo-Ogaryovo is more detailed – running, as it does, for many pages. In contrast, the account dated the 15th, from the Constitutional Court colloquium, is a far more succinct news article from Kommersant that is notably replete with repeated plus measured admonitions from a range of speakers urging very tempered and carefully deliberated consideration before any Constitutional changes should be presented see (

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Post Number 99–14 November 2013–Constitutional Amendments À La Russe–The Merger Of The Arbitrazh Plus Courts Of General Jurisdiction & Going Yet Further

The 1993 Russian federal Constitution naturally provides for its amendment and some changes have already been made even during the first twenty years of its operation see generally Jane Henderson, The Constitution of the Russian Federation (Hart 2011). For example, several revisions have been made to article 65 that lists the legal subjects constituting Russia’s federal governmental structure as several of them have been formally merged. Further in 2008 changes were also made to tenure in the offices of the Russian president and State Duma members.

A significant distinction is drawn in the constitutional processes of article 135 for the revision of and additions to 6 of the Constitution’s 9 chapters (viz., chapters 3-8) as contrasted with those for making changes in 3, which are deemed more foundational (viz., chapters 1,2, and 9).

The former six chapters are fully within the authority to alter held by the Federal Assembly i.e., the two chambers of the Russian parliament–the State Duma and the Federation Council. The later three chapters require a combination of actions by the parliament plus a Constitutional Assembly (and potentially even a popular referendum). Up to the present, no such constitutional body and no such changes have been elaborated.

President Yeltsin in May 1993 decreed the convening of a body with the same name–Конституционы Собрания–that was the vehicle for drafting the text that then underwent a popular referendum and received voter approval that December. Its members were invited whereas the selection of those to be empowered in a Constitutional Assembly under article 135 remains to receive legal elaboration.

All of this was a part of the historical record apropos to the present jubilee year i.e., until President Putin broadened markedly the ambit of the constitutional reforms that he would like to see made to the 1993 text. The theoretically possible is now being given a concrete exercise.

In Post Number 95, the proposal to merge the arbitrazh courts with those of the courts of general jurisdiction was introduced. Because the Office of the President had not yet finalized the text of that legislation, it was explained that it would be introduced in the Duma plus receive its first reading in early November. Having be formally submitted it has been assign the bill № 352924-6 as well as the short-hand title – О Верховном Суде Российской Федерации и прокуратуре Российской Федерации.

Analogous to public access Internet portals such as (, the Russian language text is readily available on-line at ($FILE/352924-6.PDF?OpenElement) plus an up-to-date summary of its progress and status is to be found at (

This bill received its first reading on the evening of 12 November and secured 351 favorable votes from 450 member Duma, thus allowing it to advance forward to a second reading which is expected before the end of November  ( And see (

Now, on the one hand, this bill would only make revisions to chapter 7 of the Constitution and therefore be within the remit of the Federal Assembly to complete. However, on the 7th of November 2013, President Putin announced his decision to go yet further in the realm of constitutional reform.

During a meeting with heads of departments of constitutional and other legal disciplines, he has suggested permanently consolidating the precedence of national legislation over the international treaties that Russian concludes. In other words, his opinion is that in the future, treaties contravening the Russian Federation’s Constitution should no longer be ratified.

This would mean changing article 15(1)(4) (see prior Post Number 14) which being part of Chapter 1 requires a decidedly more complex process for reform, because of, inter alia, the lacuna in legislation as to what, how, when, and where a second Constitutional Assembly might be invoked, organized, structured, as well as convened? (See

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Post Number 98 – 28 October 2013 – A Conspicuous Lacuna In The Ethical Responsibilities Of Russian Jurists

Thanks to the American NSA proving for the umpteenth time the adamantine wisdom and bitter truth of Lord Acton’s dire admonishment in correspondence with Bishop Creighton in 1887–”Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.”–we all now live our telephonic and electronic lives in de facto glass houses.

Moreover, as a Russian jurist (as well as an American lawyer with a Martindale-Hubbell “A-V” rating), I live in a metaphorical glass house owing to a conspicuous lacuna in the rules regulating the ethical responsibilities of jurists. I do so because, in Russia, there are no rules for jurists. Well, yes, of course, there is, at least one viz., you must be credentialed with a diploma from the law faculty of an accredited university. 

The Russian legal profession divides itself principally into advocates and jurists (nota bene that there is a significant third element in Russia, the notaries who serve functions of authentication plus verification that have all but disappeared in jurisdictions such as America and in the UK), somewhat analogous to the historic structure of the legal profession in the UK that is comprised of barristers and solicitors. Further similarities lie in the fact that law is a subject of undergraduate study in the UK just as in Russia and the traditional, bright-line division of labor–between court practice and transactional assistance–is rapidly disappearing.

Contemporary estimates suggest that today the Russian legal profession is verging on becoming a million strong with only around 70,000 being advocates. Notwithstanding there are two regards in which Russian advocates are notable and arguably superior. First, they are regulated by Russian federal legislation (see Federal Law of 31 May 2002, No. 63-ФЗ “On the Advocatura”) and second, as a profession they have developed, adopted, and self-enforce a substantial code of ethics (see &

In Soviet times, both advocates and jurists were regulated under omnibus legislation that addressed the licensing of a spectrum of professions. When it was legislatively rescinded during the Yeltsin years, a course was adopted of enacting piecemeal separate statutes addressing distinct professions. Thus there was a several-year hiatus when neither legal role was regulated until the law on advocates was adopted.

Also during the first presidential administration of Vladimir Putin a procedural code for the Arbitrazh Court was enacted that restricted courtroom representation of commercial and governmental parties to advocates. Firstly, this encountered resistance, as legal changes often do, owing to a longstanding Soviet-era practice, especially by governmental organs, of courtroom representation being handled by non-lawyers (e.g., economists). Secondly, the Russian Constitutional Court took up a petition and ruled that it was invidious to so limit appearances in arbitrazh court proceedings.

Today, Russian jurists predominate in the provision of contemporary transactional advice plus in the general jurisdiction court system in civil matters as well as in the arbitrazh court system. The domain where advocates still retain a monopoly is in criminal jury trials.

Whereas advocates have historically organized into collectives, jurists have not. Perhaps this is one reason why advocates have advanced their professionalism by adopting a code of ethics. Federal legislation to regulate jurists or even perhaps merge the two categories of legal professionals has long been an object of serious discussion. The Ministry of Justice has prepared a controversial proposal entitled “Юстиция” that may be found at (; especially attachment 8 which is entitled “Сведния об основных мерах правового регулирования в сфере реализации государственноии программы РФ–Юстиция”) and that is summarized at ( Both are from April 2013.

As has occurred in the realm of the common law, real life and the courts eventually are confronted by concrete problems that require sensible, if incremental, solutions. The law of negligence is a classic example and, as it happens, this is what has just occupied the attention and deliberations of the Presidium of the High Arbitrazh Court (ВАС-4593/2013, 24 September 2013).

In character and form, it is just a minute order, not even a поставдение or determinative guidance as is the typical promulgation of this the highest level of judicial authority in this critically important organ of Russian State power.

The facts are relatively simple–a law firm was engaged to advise a client about the purchase of real property and in particular the price to be paid in order to legally consummate the purchase. Payment for the legal work was divided into two tranches. The client paid onlv the first tranche because the law firm neglected to observe and properly inform the client that during the course of the transaction the applicable law setting the purchase price was changed and it rose tenfold. The law firm sued to collect the balance of its fees and at the initial stages of the Arbitrazh Court proceedings prevailed. The Presidium tersely disagreed and canceled those decisions.

A three-judge panel of the High Arbitrazh Court had considered the case in June (BAC/4593-13, 24 June 2013) and offered some further analysis and reasoning. This included a consideration of articles 309, 713, and 783 of the Civil Code that set forth duties that could be the statutory basis for a level of quality and standard of care obligatory to Russian lawyers. However, that appellate panel deemed the enunciation of such a standard of care to more properly lie with the Presidium to formulate and transferred the case to it.

Remarkably because Russia and its governmental institutions are the object of such pervasive critique owing to their nominal non-transparency, the Presidium of the Russian High Arbitrazh Court videotapes its proceedings and the subject 31-minute long video are officially published and readily available on along with 1,524 others (note: the main URL being That video shows chairman Ivanov seated together with the several other members of the Presidium and listening to the presentations of their fellow judges responsible for this particular case as well as the oral arguments by the parties.

Such exemplary institutional behavior and candid public visibility are the principal kind of antidotes that we all must support as remedies for abuses such as Internet surveillance gone overboard and power corrupting the best of the good intentioned governments.

De facto, a standard of care has been sustained by the Presidium of the High Arbitrazh Court obliging Russian legal practitioners to stay current with the latest developments in the finest nuances of law and rule making by administrative as well as legislative bodies. Further we are therefore obliged to diligently keep our clients fully informed of all such last minute developments.

(Grateful acknowledgements are in order to the Russian journal “Legal Insight,” the St. Petersburg law firm of Kachkin & Partners, plus the Moscow and St. Petersburg international advocacy group Glinka, Gerasimov, & Partners for their intellectual contributions to this post.)




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Post 97 – 20 October 2013 – Freedom As A Sometimes Negative Force In Human Communication

Poignant frustrations over clarity exist within every language, for example the impediments that arise as meanings change, much less evolve (Using the example of what is “silly,” see; another being the muddles that occur with words that sound similar but, in fact, mean significantly different things.

When going across languages the potential for misunderstandings only grows. In the case of pervasive languages such as English and its interface with other languages, the hurdles to understanding sometimes derive from words that are neither authentically nor properly English–but that have acquired popularity among non-native English speakers. This state of affairs is encouraged because English as a language spurns of idea of any source for prescriptive meanings in favor of the democratic, if chaotic, rule of usage.

This problem has been usefully highlighted by a governmental body that is acting to prescribe the meaning of 100 English words. Ironically, the actor assuming the role of word policing is an EU governmental institution whose multi-lingual foundations prominently includes French, one of the most prescription-grounded of languages (Russian being another).

Specifically, in May 2013, under the auspices of the European Parliament, (, the Translation Directorate of the Secretariat General ( of the European Court of Auditors ( published a revised and updated Brief List Of English Words Misused In European Publications ( ).

The authors explain:

“The problem with these [English] words is that when people use them with the wrong meaning or in the wrong context, they are usually unaware that they are doing so. When we write ‘the penalties “foreseen” in the Regulation’, for example, it just sounds right, so most authors will not think twice about putting it down on paper.”

But, the Court of Auditors accurately explains (page 31) that the proper denotation is future tense predictive whereas the bureaucratic, non-native English-speaking usage is past and present tense matter of fact. (One cannot help but wonder at this entire list as a bleak harbinger of English becoming the EU’s lingua franca–Quel dommage!)

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Post Number 96 – 19 October 2013 – With Untoward Silence Plus Full Steam Ahead Covertness Russia & America Join In A De Facto Electronic Surveillance Conspiracy

Standing conspicuously on the sidelines, absent from the playing field of transparency, spurning even the appearance of rule-of-law diligence, virtually mum–much less engaged in rational public discourse, but fully preoccupied in the comprehensive and covert surveillance of their citizens–the governments of the United States and the Russian Federation (see are facing “check” on the international legal game board of privacy and electronic data protection from, the new kid on the block, the European Union.

At present and continuing over the coming weeks, the European Parliament is deliberating a new European Union Data Protection Regulation (, &

The European Commission has published a draft to replace the previous Data Protection Directive 95/46/EC, which is part of the EU privacy and human rights law. Its proposal is for the adoption of a regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

The aim is to harmonize the current data protection laws in place across the EU member states and the fact that it is a “regulation” instead of a “directive” means that it will be directly applicable to all EU member states without a need for national implementing legislation. Its prospective provisions would require American companies like Google and Yahoo to seek clearance from European officials before complying with United States warrants seeking private data.

Such regulation of the “free movement of data” directly impacts the circumstances as well as rights of Russians and Americans as we are all part of a seamless Internet web that neither delineates nor discriminates based upon the imaginary lines drawn by nation states.

And now Europe has begun to affirmatively act, legislatively see (

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Post Number 95–17 October 2013–Competition Between & Revisiting The Debate Over The Consolidation Of The Russian Judiciary

The protest of “unfair competition” from foreign fora of the High Arbitrazh Court chairman is being preempted by President Putin’s fundamental change making constitutional reform legislation to restructure and consolidate the tripartite Russian judiciary. While the explicit content as well as the inferences of Ivanov’s indictment are still being analyzed and discussed in those foreign fora, legislation to consolidate Russia’s general jurisdiction and commercial arbitrazh courts into one is being introduced in the State Duma.

Although neither a Duma bill number nor the text is yet publicly available, official websites and publications (e.g., & assert that beginning in November that text will be introduced, that it nominally will incorporate not only the President’s overarching proposal but also have detailed provisions for implementation based upon consultations had between Vyacheslav Mikhailovich Lebedev and Anton Aleksandrovich Ivanov–the two presiding chairmen, and that the process of its legislative deliberation–a first reading–will be had.

Separate commercial divisions of the UK courts (Queen’s Bench) can be traced back to the 19th century and in the 21st century similar schemes have been initiated in Ireland plus a number of African nations (e.g., Ghana, Kenya, South Africa, & Uganda). In between, in the last decade of the 20th century, an entirely separate commercial court was established in the Russian Federation pursuant to its 1993 federal Constitution.

Professor Alexei Trochev has studied diligently and thoroughly the Russian tripartite court experiment in his Judging Russia–Its Constitutional Court In Russian Politics–1990-2006 (Cambridge, 2008; cf., p. 269) as well as numerous journal articles. He synthesizes that “[t]here is nothing unexpected and paradoxical about old (ordinary) courts fighting to protect their turf from the jurisdiction of assertive new (constitutional) courts. High courts collide because they want to use their constitutionally derived powers to uphold constitutional supremacy. To enforce constitutional norms, and to interpret statutes in light of new constitutional principles. This, in turn, provides fertile ground for an inherent tension between supreme courts and constitutional courts. In practice,  constitutional courts, as new political institutions, have had to carve out their own place in the political system and have no choice but to compete with other domestic courts for a primary role in building a rule of law system. Post-communist constitutional review bodies routinely intrude in what used to be the traditional domain of the regular judiciary.”

This has been true in modern Russia, although in the immediate context it is the High Russian Arbitrazh Court has especially presented competition not only in the sphere of subject matter jurisdiction but as a body implementing procedural practices in the domains of transparency and rational good governance that put the opaqueness and unjust habits of the Russian Supreme Court and its inferior court of general jurisdiction to shame.

Trochev most usefully calls to our attention to the experience of Kyrgyzstan where contradictory rulings of the Kyrgyz Supreme and Supreme Commercial Courts were repeatedly being accepted by Kyrgyz Constitutional Court and overturned. (Ibid., p. 270) leading in 2003 to the adoption of amendments to the Kyrgyz Constitution consolidating the commercial with the general jurisdiction courts.


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