Annotations to the Judgments and Advisory Opinions

Adopted by the CIS Economic Court in 2007

Judgment No. 01-1/2-06 dated February 21, 2007 on construing of application of Articles 5 and 7 of the Agreement on Procedure of Settlement of Disputes to carrying out business activity related to Economic Activity dated March 20, 1992; Articles 5, 17, 51, 54 of the Convention on Legal Assistance and Legal Relations in Civil, Family, and Criminal Cases, dated January 22, 1993 and Articles 5, 17, 54, 57of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases dated October 7, 2002 clarifies regulations of which international treaties specified are subject to application in the member states of these treaties in the matters of the procedure of relations between the competent authorities when rendering legal assistance in civil cases, of the language of documents, as well as the recognition and enforcement of the legally effective court decisions passed in business (economic) disputes.

The CIS Economic Court regards the subject and order of the treaty-making as the factors which determine the correlation of the interpreted international treaties. The regulations of the Agreement dated March 20, 1992 are the special ones in respect of the regulations of the Conventions dated January 22, 1993 and October 7, 2002 in the matters of procedure of appeal for legal assistance, recognition and enforcement of foreign court decisions in economic disputes, as well as of the language of the appeal; these regulations are subject to application between the member states of the Agreement irrespective of their participation in the mentioned Conventions.

Since the Agreement dated March 20, 1992 had left unsettled some questions, the Court recommended to the member states to amend and supplement it with regard to the procedure of forwarding requests on rendering legal assistance and motions on enforcement of rulings, as well as of submission of certified translation of requests, motions, and other documents.

Advisory opinion No. 01-1/6-06 dated March 22, 2007 on request of the CIS Executive Committee for construing of Part one Article 8 in the CIS Statute dated January 22, 1993 clarifies terms and procedure of acquisition of the Commonwealth associated membership by the CIS member states

The advisory opinion of the CIS Economic Court based on generalization of the practice of international intergovernmental organization describes the institution of states’ membership in international organizations including: full membership, associated membership, partial membership; the legal status of the associated member of an international organization is disclosed. The Court explained objectives and legal foundations for granting the associated membership to a state by international organizations; defined scope of rights and responsibilities pertaining to the associated member, as well as kinds of sanctions applicable in case of violation of substantive norms and procedural rules of an international organization on the part of the associated; determined fundamental elements of the Agreement on Associated Membership of a State in an International Organization.

The Court realized comparative analysis of the concepts founding member, participating state, member state, associated member state as applied to the Commonwealth in accordance with fundamental constituent instruments: the Treaty on CIS Formation dated December 8, 1991; Protocol to the same dated December 21, 1991 and the CIS Statute dated January 22, 1993. The Court studied terms and procedure of acquisition of the CIS associated membership by the states.

The Court gave consideration to the legal status of the founding states of the Commonwealth which are not signatories to the CIS Statute. Taking into account participation of the states in the Commonwealth activity, positions of CIS member states and participating states, the Court stated that according to international custom established within CIS, the CIS founding states, which are not signatories to the Statute, are de facto full CIS members. The same regulations of the CIS Statute are applied to these states as to the states which accepted the CIS Statute as obligatory in in accordance with established procedure.

Judgment No. 01-1/4-06 dated April 5, 2007 on request of the State Property and Privatization Committee of the Ministry of Finance of the Republic of Kazakhstan acting on behalf of the Government of the Republic of Kazakhstan on construing of Part one Article 4 of the Agreement on Mutual Recognition of Rights and Regulation of Proprietary Relations, dated October 9, 1992.

The difference of positions of Kazakhstan and Russian parties regarding application of the Agreement dated October 9, 1992 was the ground for the request of the State Property and Privatization Committee of the Ministry of Finance of the Republic of Kazakhstan.

The Court stated that in accordance with Part one Article of the Agreement dated October 9, 1992 every member state assumed obligation to recognize the property right of other member state, its natural and legal persons to the social sphere objects listed in Article 4 and situated in the territory of this state provided these objects were constructed out of the funds of the republican budget of other state, its natural and legal persons.

The Judgment of the CIS Economic Court explains the procedure and terms of recognition of the property right of the party to the Agreement to the social sphere objects listed in Part one Article 4 of the Agreement, which are situated in the territory of other country, and also whether the party to the Agreement is entitled to unilaterally (without approval of the competent body of another party authorized to dispose of the state property) determine the list of documents confirming the fact of financing of the construction of the said objects out of the funds of the republican budget of other state, its natural and legal persons.

Analysis of the legislation of the former USSR in the field of capital construction allowed the CIS Economic Court to define the list of documents and standard forms which may confirm the source of the object financing. The Court specified the scope of legal entities which may be recognized entitled to the proprietary right to the social sphere objects pursuant to Article 4 of the Agreement dated October 9, 1992; the Court determined the use of which funding sources constitutes ground for accrual by legal persons of the property right to the social sphere objects. The Court arrived at a conclusion that legal persons in terms of Article 4 of the Agreement dated October 9, 1992 are the legal persons subject to the jurisdiction of the corresponding member state of the Agreement, including state enterprises which participated in the construction of the objects and for this purpose used funds from the reserves assigned for social and cultural events and housing construction, formed pursuant to the Regulation No. 729 On Improvement of Planning and Enhancement of Economical Stimulation of the Industrial Production adopted by the Central Committee of the Communist Party of the Soviet Union and the Council of Ministers of the USSR on October 4, 1965 . Financing construction of the social sphere objects out of centralized funds, including funds of the state enterprises (a part of amortized deduction assigned for full reconstruction of the capital assets, profit of enterprises, mobilization of internal reserves, long-term credits and other sources), do not involve recognition of their proprietary right as the property allocated these legal entities was in the public domain. In this case the owner of the object is the participating state of the Agreement, the jurisdiction of which is applied to the corresponding legal person.

The CIS Economic Court defined that in every particular case the member states shall adjust the procedure of recognition of the right of property for the social sphere objects provided for by Part one Article 4 of the Agreement dated October 9, 1924, the list of the documents considered at that, including the documents confirming the sources of construction financing.

Judgment No. 01-1/5-06 dated April 13, 2007 on construing Part one Article 2 of the Agreement on procedure of pensions provision to the military men and their family members, and the state insurance benefits to military men of the participating states of Commonwealth of Independent States, dated May 15, 1992 answers the question whether participating members of the Agreement dated May 15, 1992 should include labour experience, which is not connected to the service in the armed forces, into long service when granting a pension to the persons discharged from the military service at their new domicile in case of their removal to permanent residence in other state, if according to the legislation of the state, where they passed the service, this labor activity is included into the record of service in the armed forces.

The CIS Economic Court ascertained that in compliance with Article 1 of the Agreement dated May 15, 1992 a pension is granted to a serviceman at discharge from the military service by the state where a the serviceman has permanent residence under the legislation of this state. At the same time, taking into consideration the general principle provided for in paragraph 2 Article 6 of the Agreement dated March 13, 1992, the periods of service in another state, as well as those not related to the military service, are included into long service, by the state which grants pensions to servicemen, on preferential terms as well, if it is provided for by its legislation. Having analyzed legislation of the participating states of the Agreement dated May 15, 1992, the Court arrived at a conclusion that long service should include not only military service (including military service on preferential terms), but also other labour activity of the serviceman not related directly to the military service, e.g. service in the Internal Affairs authorities, units of the Ministry for Emergency Situations, bodies of the penal enforcement system in positions of the officers, the senior officers and the rank. According to the Court, the Agreement dated February 14, 1992; the Agreement dated March 13, 1992 and the Agreement dated May 15, 1992 do not contain regulations providing for the possibility of revision of the long service, including in case of removal of a serviceman discharged from the military service to permanent residence in other participating state of the Agreement dated May 15, 1992. Hence the long service, which was calculated at granting of the pension (including that on preferential terms) at the place of service in one of the participating states of the Agreement of May 15, 1992 to the serviceman discharged from military service and removed to another participating state for permanent residence, is not subject to re-calculation at the new domicile.

Judgment No. 01-1/1-07 dated September 20, 2007 on construing Part one Article 1 of the Agreement on procedure of provision of pensions to, and the State social insurance of, the employees of the bodies of internal affairs of the participating states of the Commonwealth of Independent States, dated December 24, 1993 clarifies whether citizens discharged from the bodies of internal affairs of the participating states of the Agreement dated December 24, 1993 and arrived to another participating state of the Agreement for permanent residence are entitled to primary granting of a pension for long service in compliance with the legislation of the state of their new domicile, if according to the legislation of the state, which is the place of service, they have not accrued a right to a pension for long service

The request was based on the application of a citizen of the Russian Federation, a former employee of the bodies of internal affairs of the Republic of Kazakhstan, who was refused the primary granting of a pension for long service by the authorized bodies of the Russian Federation after removal to the Russian Federation for permanent residence from the Republic of Kazakhstan.

The CIS Economic Court has noted that the Agreement dated December 24, 1993 is a special international agreement regulating the procedure of provision of pensions to any scope of employees of the bodies of internal affairs and their families, is of a framework nature and assures the determining role of the national legislation at implementation of provision of pensions of the foregoing category of citizens taking into account the territorial principle. Furthermore, the Agreement dated December 24, 1993 is based on the principles fixed in the Agreement on protection of rights for the citizens of the participating states of the Commonwealth of Independent States in the field of provision of pensions, dated March 13, 1992.

Having analyzed the specified international agreements and the legislation of participating states of the Agreement dated December 24, 1993 in the field of relations connected to granting pensions for long service to the employees of the bodies of internal affairs, the Court has defined that the pension legislation in the majority of the participating states of the Agreement contains provisions which determine terms, standards and procedure of provision of pensions for the citizens, who reside in their territory and served not only in the bodies of internal affairs of this state, but in those of any other state. At that an essential element is availability of the appropriate treaties (agreements) on social maintenance concluded between the states. Whereas the Agreement dated December 24, 1993 constitutes such a special international agreement, the CIS Economic Court considers that pensions for the employees of the bodies of internal affairs, who have removed from the state of the place of service to another participating state of the Agreement for permanent residence, shall be provided in accordance with the procedure established by the legislation of the state, in the territory of which they started to reside (unless other is not provided for by a bilateral agreement concluded in this matter by the states concerned).

The CIS Economic Court arrived at a conclusion that former employees of the bodies of internal affairs of the participating states of the Agreement dated December 24, 1993 may realize their right to a pension for long service at any time and in any participating state on the terms, in accordance with the standards and the procedure established by the legislation of the state, in the territory of which these employees have permanent residence, regardless of the fact whether they have accrued this right under the legislation of the place of service or not. At the same time, calculation of long service for granting a pension to the employees of the bodies of internal affairs is made according to the legislation of the state where they have served as provided for by Part one Article 2 of the Agreement.

Advisory Opinion No. 01-1/3-07 dated November 9, 2007 on construing provisions of the Recommendations on Procedure of Development of International Legal Documents Drafts of the Commonwealth of Independent States approved by the Decision of the Council of CIS Foreign Affairs dated September 18, 2003 in part relating to international agreements, contains answers to the following questions:

whether state bodies (government, ministries, agencies) are entitled to conclude international agreements (whether they have contractual capacity) and what body is the party to the international agreements concluded by them;

whether the term amendments mean alteration of particular articles of an international treaty or this term also covers the general revision of the treaty as a whole;

what is the procedure of introduction of amendments into multilateral treaties, including those aimed at alteration of the text of the treaty between all the participants of thereof, and what is the legal status of the protocol on introduction of amendments and supplements to the treaty.

The Court believes that the state bodies in the person of their officials merely represent the state with the purpose of adoption of the text of the agreement or with the purpose of expressing consent of the state to the binding character of the treaty for it, at conclusion of international treaties they act on behalf of the state, do not possess international contractual capacity and can not be a party to international treaties.

Comparative and system analysis of international conventional rules and practice of the states allowed the Court to arrive at a conclusion that an amendment to an international agreement includes both alteration of particular provision of the international agreement and the agreement as a whole (revision) between the participating states which expressed consent to this alteration. The Court has also noted that in spite of the fact that alterations into an international agreement may be introduced in different forms, the terms alteration, amendment, revision are generally applied in the treaty practice for the introduced alterations.

In the advisory opinion the CIS Economic Court defined procedure and forms of introduction of amendments into an international treaty. The Court has emphasized that introduction of amendments into international treaties according to general practice cannot be effected by means of decision-making by the bodies of an international organization, as these decisions have advisory character by virtue of legal nature of international organizations.

Being guided by the made conclusions, the Economic Court recommended to the experts of the participating states and bodies of the Commonwealth to use the terms and wordings accepted in the international law when developing international treaties drafts within CIS framework.