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On the efficiency of the judicial mechanism for protection of the economic rights of the fec elements: was it the right decision to abolish the supreme commercial court of the russian federation?
 
Код статьиS231243500025244-6-1
DOI10.18254/S231243500025218-7
Тип публикации Статья
Статус публикации Опубликовано
Авторы
Клеандров Михаил Иванович 
Должность: Chief Research Scientist of the Institute of State and Law of the Russian Academy of Sciences; Chief Research Scientist of the V.A. Musin Research Center for the Development of Energy Law and Modern Legal Science Autonomous Non-Commercial Organization
Аффилиация:
Institute of State and Law of the Russian Academy of Sciences
V.A. Musin Research Center for the Development of Energy Law and Modern Legal Science Autonomous Non-Commercial Organization
Адрес: Российская Федерация, Москва
Название журналаПравовой энергетический форум
ВыпускВыпуск № 1
Страницы17-23
Аннотация

The article notes the essential significance of the fuel and energy complex (hereinafter referred to as the “FEC”) for the Russian economy; which means: the worse, the weaker this or that industry of the FEC is, the greater the shortfall in the country’s income. This often happens in case of violation of the entrepreneurial rights of such an industry of the FEC. The organizational and judicial mechanism, the arbitration judicial system, providing judicial protection of business rights and legitimate interests of FEC elements, in 2014, after the Supreme Commercial Court of the Russian Federation (hereinafter referred to as the “SCC”) has been abolished, according to the author, lost its former efficiency. The consequence of this, according to the author, was the transformation of the SCC of the Russian Federation from an independent judicial system into an autonomous one, and consequently, the loss of its powers of the supreme (supervisory) arbitral judicial instance. In turn, this means that in the supervisory instance, now in the Presidium of the Supreme Court of the Russian Federation, there is an insignificant proportion of commercial law professionals. For FEC companies, this means that, since 2014, the arbitration and judicial policy on disputes with their participation has been determined by criminal, civil, administrative, etc. law professionals, not by arbitrators. The author considers it expedient to revive the SCC of the Russian Federation, in view of the fact that in some foreign countries, for example in the Federal Republic of Germany, there are several completely independent specialized judicial systems, apart from the system of courts of general jurisdiction. The author believes that it would be correct to create in our country four new completely independent specialized judicial systems: for civil cases, for consideration of commercial disputes, for administrative cases and for criminal cases; the system of courts of general jurisdiction must also be preserved, which will include the system of military courts as an autonomous system. Besides, separate federal specialized mono-courts should be created, such as: Patent, Digital Technology, etc. Of course, the Constitutional Court of the Russian Federation will remain.

Ключевые словаfuel and energy complex elements, entrepreneurial right protection mechanism, absence of an independent supervisory instance in the modern arbitration judicial system
Получено13.12.2022
Дата публикации31.03.2023
Кол-во символов20971
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1 The importance of the economic activity of the FEC diverse structures and elements in the national economic complex of Russia is exceptionally great, as, by the way, it has been especially great recently, in foreign policy and foreign economic relations. Just recently, V. Kryukov, Director of the Institute of Economics and Industrial Engineering of the Siberian Branch of the RAS, noted: “The FEC generates 35% of GDP, 60% of the state budget, 40 to 50% of investments, 60% of export and 20 to 25% of public employment”. [1]
2 At least, this means that if the FEC elements work better, all together and each separately, these indicators are higher; if they work worse, the indicators are lower. At the same time, the above “better” or “worse”, even slightly in relative terms means literally gigantic indicators in the absolute terms. Besides, it is obvious that whether the FEC elements work better or worse, to a large extent depends on how the arbitration and judicial authorities protect their rights in case of their violation or challenge, whether it is more effective, more just...
3 Not to mention the importance of the energy security of our country, especially in the modern conditions, and its scientific and legal regulation. [2]
4 And, of course, any justice, including economic justice, including in relation to the FEC elements, will be more effective and just when it is executed by professional judges in this particular kind of justice. This was the case from 1922 until 2014, when commercial disputes were resolved by public arbitration commissions (until 1931), state arbitration authorities that made up the union-republican three-tier system (until 1992) and commercial courts that also made up an independent judicial system headed by the SCC of the Russian Federation (until 2014). Simultaneously, arbitration tribunals were functioning, resolving commercial disputes, which have now sharply decreased in quantity, but this is a separate issue, and departmental arbitration tribunals (before the collapse of the USSR). And there, commercial disputes were resolved by (mostly) high-level professionals specializing in specific (narrow) categories of cases. The same was in the FEC sphere. For example, V. Zlobnin worked as a departmental arbitrator of the Tyumengazprom association for many years, and after 1995, when the author of these words headed the Commercial Court of the Tyumen Region, began working as a judge of this court (now, unfortunately, he deceased).
5 And the arbitration judicial system more or less effectively coped with the shortcomings of business laws, including its energy sector. For example, as V.V. Laptev, Academician of the RAS, noted in 2011: “In April 2011, there were interruptions in the supply of gasoline in many regions of our country. This “gasoline crisis” has arisen in a country that occupies a leading place in the world in the production of oil and petroleum products. The reason for it, along with price collusion, is the desire of the owners of oil-production enterprises to export oil abroad, where it can be sold at higher prices. To combat this artificial scarcity, the export duties on oil and petroleum products were significantly increased. But the question arises: wouldn’t it be better to provide for systematic regulation of oil exports, priority provision of petroleum products for the domestic needs of the country in the laws? Moreover, such a system was successfully used several years ago, when balance targets were set for oil producers to meet domestic needs and, in accordance with them, resource certificates were issued, without which oil export was not allowed”. [3]
6 And then, in 2014, the situation radically changed for the worse, besides, the number of cases considered by all first-instance courts is constantly growing. On November 29, 2022, at the 10th All-Russian Congress of Judges, it was noted that in 2021 more than 30 million cases were considered.
7 The constitutional basis for the abolishment of the Supreme Commercial Court of the Russian Federation was the exclusion of Article 127 of the Constitution of the Russian Federation from the Constitution of the Russian Federation in 2014. [4] Simultaneously, the same law partially transformed Clause O of Article 71 of the Constitution of the Russian Federation. Article 71 of the Constitution of the Russian Federation defines what is under federal jurisdiction, and clause O, among other things, before this transformation, defined criminal procedure, civil procedure and arbitration procedure laws. And the above-mentioned constitutional transformation proclaimed the general formula, the “procedure law”.
8 Part 2 of Article 118 of the Constitution of the Russian Federation originally proclaimed that “judicial power is exercised through constitutional, civil, administrative and criminal proceedings,” that is, arbitration proceedings were not initially mentioned in this list as an independent type of legal proceedings.

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1. Nezavisimaya Gazeta. November 14, 2022
2. Romanova V.V. Chapter 1. Legal Regulation of Energy Security in the Context of Economic Sanctions // In the monograph: Relevant Tasks of Energy Law // Edited by Romanova V.V., LL.D., Professor. – Moscow : Integration: Education and Science Limited Liability Company, 2022, p. 10–29.
3. Laptev V.V. On Some Issues of Entrepreneurial (Commercial) Law // Modern Issues of Entrepreneurial (Commercial) Law. – Moscow : Institute of State and Law of the RAS, 2011. P. 9.
4. Article 127 was deleted in accordance with Law of the Russian Federation on the Amendment to the Constitution of the Russian Federation No. 2- ФКЗ dated February 5, 2014, on the Supreme Court of the Russian Federation and the Prosecutor’s Office of the Russian Federation, which entered into force from the date of its official publication on February 6, 2014 (Official Internet Portal of Legal Information (www.pravo.gov.ru), February 6, 2014, No. 0001201402060001).
5. During the period 1992 to 2002, 12 such joint resolutions were adopted, including on issues related to the jurisdiction of cases. See Yakovlev V.F., Semigin G.Yu. Economic (Commercial) Justice in Russia, In 4 Vol. / Scientific Advisor V.N. Kudryavtsev, Academician, Vol. 4: Arbitration Justice in the Russian Federation / Editor-in-chief: Polonsky B.Ya. – Moscow : Mysl, 2006. P. 37 (With reference to the special appendix to the Bulletin of the Supreme Commercial Court of the Russian Federation. 2002, No. 5, p. 12).
6. Code of Justice and Orders of the Workers’ and Peasants’ Government, No. 4, Art. 50
7. Judicial Systems of Europe and Eurasia: Scientific and Encyclopedic Edition: in 3 Vol. Vol. 1. Western and Northern Europe / Edited by Kurbanova R.A., Gurbanova R.A. Moscow : Prospekt, 2019, p. 63-76.

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