Lawyers do not know what to do from the WTORatification procedures under the introduction of Russia into the World Trade Organization should come to the end till July, 23rd, 2012. Legal firms working in Russia already do the first attempts to stake out the market of new possibilities.
the day before
If earlier lawyers built hypotheses on a theme “ What will be, when Russia will join the WTO? “ now conversation became subject: the theme " is discussed; How to arrive? “. As an example the conference which has passed on March, 28th, 2012 " serves; the WTO: possibilities and risks for the Russian business “ organised by lawyer bureau “ Egorov, Puginsky, Afanasev and partners “. Action represented the WTO to the Russian business community: lawyers and the invited visitors from the government and business associations told that expects the Russian business after joining to the WTO. The general opinion of experts: The WTO - the effective tool in competitive struggle for manufacturers and sellers. As the proof it is served by frequency from which the USA and the EU countries use mechanisms of the WTO for protection of the national manufacturer, and also for support of its international expansion.
it is a little about itself
But before to reflect on clients, the lawyer, of course, will take care of itself. Legal firms study for a long time consequences for the business as a result of joining of our country to the WTO. They want to know, how it will be reflected in a competition in legal branch.
here the legal community was divided into positivists and negativistov. Positivists who the obvious majority, consider that it is necessary to hold in a stock some ideas about development of practice of conducting disputes in the WTO. More careful wait for the first reports on successes of competitors.
Alexander Muranov, the operating partner of Bar “ Muranov, Chernjakov and partners “ concerns more likely sceptics. Since 2007 it criticises approaches to a question on the WTO of representatives of Ministries of economic development and trade responsible for negotiations.
according to Muranova, joining to the WTO can negatively affect on young Russian jurbiznese and its clients. The matter is that in due time trunk-call group of domestic officials actually “ has handed over “ the Russian market of legal services. As a result it remains completely opened for foreign legal business after joining of Russia to the WTO. Alexander Muranov considers that in the future it will lead to gradual increase in foreign presence both at domestic economy as a whole, and in jurbiznese in particular. The new foreign companies, and after them, for clients will come, in Russia there will be new foreign legal advisers.
however, a problem not only in short-sighted officials, but also in lawyers. The legal market is enough “ wild “ and on it there is no consolidated opinion on development directions.
that is characteristic, many Russian companies still with 1990 - h try to hold years the saved up capitals in offshore jurisdictions, and for legal maintenance of work in an offshore foreign lawyers with knowledge of the Anglo-Saxon right are required. The situation when possession of actives in Russia is carried out through an offshore in the most different jurisdictions, only warms up demand for services of foreign lawyers more strongly. However there are fears that return process when the foreign capital operates the actives in the Russian territory and, hence, operates under the Russian laws, will not lead to increase in a share of domestic legal business: foreigners will prefer to work with the Russian offices of the international legal firms, which brands it well-known on work in other countries.
Than all it will turn back for the Russian legal firms, to tell with confidence while can nobody. There is a risk to be left in the basket of competitive struggle. It is necessary to consider that foreign firms have bolshy experience, financial possibilities and, the main thing, the reputation confirmed in the years. And the oldest Russian legal firm of all hardly more than 20 years.
in this connection as consider negativisty, the state could help national legal firms, limit access of foreigners as it have made at joining to the WTO China, India, Brazil and some other states. In these countries commercial presence of foreign legal firms in the national market is rather rigidly limited. Foreigners advise there only concerning the international public or foreign right, but have no possibility to advise by the national right and to employ for this purpose local lawyers. Owing to what foreigners are compelled to employ local legal firms.
despite scepticism, Alexander Muranov is assured: at any deal, whether it be unknown growth of competitiveness of the Russian companies and their active approach to the global markets or mass bankruptcy and absorption by global players, legal business from joining of Russia to the WTO only will win. As anyway it will cause growth of demand for services of professional lawyers, including Russian.
minuses expect partners of legal firms, but lawyers not employed by them. At activization of foreign expansion on the Russian market of legal services demand for personnel positions of lawyers and the senior lawyers, ready to work on international firm will raise. There are no bases to doubt that the competition of employers will lead to increase in salaries and bonuses.
Something to do while early
it is clear, time in the WTO consists more than 95 % of all countries, joining of Russia to it “ to club “ - a matter of time. “ but, despite constant negotiations, we have appeared are not prepared “ - the partner of lawyer bureau " confirms; Egorov, Puginsky, Afanasev and partners “ Ivan Smirnov. It is obvious that without knowledge of rules and WTO regulations our country cannot effectively use this organisation in interests of domestic business.
the WTO first of all should be considered as the civilised mechanism of the permission of trading disputes between the states. At the same time the state does not define till now the authorised body which will assort references of the Russian business concerning protection of interests and use of mechanisms of the WTO for the permission of arising disputes. While such body is not created, too early to speak about any field for activity of legal advisers. Though already many companies or are seriously disturbed by joining to the WTO, or expect to use participation in the WTO in competitive struggle for the foreign markets.
now one of the primary goals is informing of business about connected with joining to the WTO risks and possibilities. It can and should be engaged both legal firms, and profile higher economic and legal educational institutions. Here the example of China which before joining to the WTO in 2001 has prepared more than 5 thousand profile lawyers is indicative. Within the limits of preparation for joining for the WTO the multistage academic program of training of experts in the WTO has been created. It was the question of the state interests and regulation. China has joined the WTO quite prepared, with numerous staff of experts and officials. “ In Russia experts in the WTO can be counted literally on fingers “ - Ivan Smirnov assures.
In the West there are firms which specialise on support of disputes in the WTO, for example Sidley Austin and Mayer Brown. They have for years a turned out practice of conducting and support “ trading wars “ professional commands and authority. The Russian legal firms are in the way beginning. In our market hardly probable there will be a pair of legal firms where the direction connected with the WTO, is presented in this or that kind. Here it is necessary to notice that overall performance of lawyers in many respects depends on their close interaction with analysts, branch experts and the economists deeply understanding rules of the WTO. Obviously, as it is necessary to prepare such experts.
As to directly legal business in Russia now hardly someone will dare to create separate practice on the WTO or to type in staff of additional employees to develop this direction.
on an advancing, probably, those companies which already have legal practice on the WTO in other countries could work. By and large it is necessary for them to generate only the offer under the Russian client. But also here there will be problems from - for weak knowledge of business. Besides the volume of a gain is necessary for development of independent practice not less than $2 - 3 million a year for the foreign legal company. For the Russian market such figures are hardly achievable in the nearest year - two. Clients who understand possibilities, risks and mechanisms of the WTO are necessary and, the most important thing, six-place fees for initiation and conducting trading dispute between the states within the limits of the WTO are ready to pay.
“ “ FBK - the right “ To form separate practice on the WTO yet does not plan, - the director for development of the company Michael Uspensky confirms. - But, of course, we conduct a spadework in a WTO question. For example, within the limits of corporate practice we have begun research as joining to the WTO will affect branches of business of ours topovyh clients. Lawyers from practice of a resolution of disputes create a case by experience of consideration of disputes in WTO bodies. Active enough work goes in our tax practice where joining to the WTO has affected on lgotirovanie the VAT and taxation by the customs duties of operations of foreign trade activities. However all is in an analysis stage. While our analysts will not present a picture of changes and their influence on business of our clients, about consultation to speak early “.
Ivan Smirnov considers that demand from large could become the market driver is export the focused Russian business or state companies. Important role could play and separate branches of economy which receive from the grant state, tax privileges and preferences, that is possess those protective tools which are a favourite theme in trading disputes of the WTO.
Domestic experts is necessary agree in opinion that the developed Russian practice when to obtain the permit to conducting legal consultations probably without corresponding profile formation, contradicts experience of foreign countries. The state is obliged to regulate the legal market, experts confirm, suggesting to enter qualifying requirements both for Russian, and for foreign citizens. Only in case of passage of qualifying selection it is possible to give the chance for the applicant to advise concerning the Russian right. It, by the way, completely corresponds to WTO rules, and Russia still can enter such regulators.
We already all are able
And still in our country there are experts with experience of conducting trading consultations and disputes within the limits of the WTO. The Russian office of legal company Salans has hastened to remind of the successes in a field of trading disputes in EU and other jurisdictions. That for today the legal firm can offer clients on the WTO, the operating partner of the Bruxelles office and head of practice Salans in the field of international trade has told, the WTO and the customs right Edward Borovikov: “ For any practice corresponding experts are necessary. Preparation of lawyers on disputes in the WTO essentially differs from traditional preparation of lawyers for arbitration or civil processes “.
Russian-speaking command Salans concerning the WTO has developed more ten years ago and basically was based on experience of the former employees of the trade missions. For service of our clients who are engaged in export, in the middle of 1990 - h it was simple not to find other suitable candidates. In 2001 members of present trading command Salans have started to advise Russia at negotiations on joining to the WTO and to save a private experience on support of trading disputes in this organisation.
procedures of a resolution of disputes in the WTO technically also are legally difficult, pass by special rules and can be rather long and expensive. Arbitrators and the appeal body of the WTO is not judicial instances in traditional understanding. Procedure of a resolution of disputes in the WTO - multistage process which can end at any stage of trial at achievement by the parties of dispute of the mutually acceptable decision that is a main objective of all process. Important role in trial play not only demonstrative, that is the actual base has put, but also the analysis of various treatments, interpretations, pravoprimenitelnaja practice, history of creation and a writing of those or other agreements of the WTO. For years of work of the WTO standard terminology and some unwritten rules of a resolution of disputes have been developed.
now in specialising on disputes in the WTO legal firms already there was a thought over and verified algorithm for dispute conducting. Thus to lawyers it is necessary to be constant in the centre of events, to generalise and analyze the experience and experience of colleagues.
legal firms usually accompany all dispute from the beginning and up to the end: prepare the argument and the basic materials of business, participate in hearings and provide actual realisation of the accepted decisions.
the role of trading lawyers in a resolution of disputes in the WTO is very important. Legal firms are always involved or the countries - participants of dispute, or the companies standing up for by dispute, and is frequent both those and others simultaneously. The same lawyers promote the companies and state structures in questions of conformity to WTO requirements. In this sense such lawyers provide acceptance important trading - political decisions.