Who will protect Ukraine in courts?
This week, the Cabinet of Ministers of Ukraine decided to hire international advisors and law firms to protect the interests of the Ukrainian state in international courts.
There are two conceptual approaches globally to the protection of state interests in international litigation. The first way is for the state to fund the creation of its own permanent government agency that would deal with such cases on behalf of the state. The second path is to allocate the funds for attracting international law firms for each specific case.
Of course, the choice between these two approaches, or a combination thereof, depends on many factors at the same time.
The first approach is usually applied by "wealthy" countries with have been practicing extensively and systematically in international litigation, so therefore, it makes sense to maintain permanently a team of advisers. For example, in the structure of the U.S. Department of State there is an Office for International Claims and Investment Disputes, which for many years has represented the U.S. in international proceedings, and usually quite successfully.
"Poorer" states also stick to this approach sometimes . The most vivid example is Argentina, where the Treasury Prosecutors department has dealt with a lion’s share of international cases over the past 15 years.
"Poorer" state also stick to this approach sometimes . The most vivid example is Argentina, where the Treasury Prosecutors Office (Procurador del Tesoro de la Nacion) has dealt with a lion’s share of international cases over the past 15 years. The experience of Argentina, although not as successful as that of the U.S., is replicated to some extent by other Latin American countries, for example, Ecuador or Venezuela.
The positive effects of this approach are obvious. The state saves significant resources it would otherwise have to spend on attracting foreign advisors. Their fees can easily exceed $1,000 per hour. A permanent team of expert level lawyers in international law is set up as part of the state apparatus. The team members must have great practical experience, in order to be involved not only in litigation, but also in support current international activity of other public authorities. Since all advisers are civil servants, they can establish long-term cooperation in the framework of the state apparatus, to secure rapid response to any international lawsuit.
Unfortunately, in practice, implementation of such plan faces significant obstacles. First of all, in order to attract to public service the lawyers with knowledge and potential relevant to international standards, their work must be paid in the official way, according to the international, or at least the highest Ukrainian, standards.
The second major obstacle is the need to take responsibility for the results of this team
The second major obstacle is the need to take responsibility for the results of this team. In case foreign advisers are hired by the official, the law firms are responsible before the customer (the official) for the quality of their legal performance. But if the government hires own specialists, and they make mistakes (there certainly will be mistakes), responsibility will directly affect the reputation of their chief and the initiator of the program.
Based on these, and other, considerations, the government tends to take a more conservative stance and hire foreign advisers for each international trial project. Given that Ukraine is planning lodging a series of lawsuits with the international courts due to the annexation of Crimea, the timely efforts of the Cabinet are anything but redundant.
Dmytro Shemelin is a lawyer at Ilyashev & Partners law firm.