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Abstract
The authors investigate the question of the differential chances of success of state bodies and entrepreneurs in Russian arbitrazh courts (taking into account whether they appear as plaintiffs or respondents). Using regression analysis they establish that—other things being equal—the court usually comes down on the side of the entrepreneur in civil proceedings and on the side of the state in administrative proceedings. In both instances there is a bias in favor of the plaintiff. However, the more complicated the case the smaller the bias in favor of the plaintiff. The study relies on data obtained by means of a simple random sample of cases heard by arbitrazh courts of primary jurisdiction in 2007–2011.
Notes
English translation © 2016 Taylor & Francis Group, LLC, from the Russian text, “Gosudarstvo i biznes v arbitrazhnom protsesse,” Voprosy ekonomiki, 2014, no. 6, pp. 40–62. Translated and published with the author's permission. [Notes have been renumbered in this edition.—Ed.] Aryna Dzmitryieva is a research associate at the Institute for the Rule of Law, European University in St. Petersburg. E-mail: [email protected]. Kirill Titaev is a leading research associate at the Institute for the Rule of Law, European University in St. Petersburg. Iryna Chetverikova is a junior research associate at the Institute for the Rule of Law, European University in St. Petersburg. Translated by Stephen D. Shenfield.
1. The translation of the term “bias” as uklon does not perhaps reflect the full meaning of the English concept, but functionally it is quite close and it coincides with the tradition established in Russia for the translation of this word (Volkov Citation2012).
2. Some elements of such an assessment, without the use of regression analysis, were proposed in Titaev Citation2011a.
3. Federal Constitutional Law No. 4-FKZ of July 4, 2003, “On the Introduction of Amendments and Additions to the Federal Constitutional Law ‘On Arbitrazh Courts in the Russian Federation.’”
4. In Russian legal usage the term “plaintiff” (istets) designates one of the parties only in cases that flow from civil legal relations. In cases that flow from administrative legal relations, this party is called the “petitioner” (zaiavitel’). Here and henceforth, we use the term “plaintiff” not in the strict legal sense but in a generic sense—to designate the party who initiates proceedings.
5. For example, a study of decisions on appeals lodged with the Supreme Court of Canada showed that the federal government or Crown, if it is the plaintiff in a case, wins about 15–20 percent more often than it loses (McCormick Citation1993). Analysis of decisions of the Supreme Court of the United States does not confirm that the state has the advantage (Ulmer Citation1985).
6. There is an extensive debate about the degree to which judges are independent. In theory the judge should be the arbiter between adversarial parties, but it is very widely thought that the judge is closer to state representatives than to private persons.
7. The term “mobilization of the legal system” or “mobilization of law” was introduced by Donald Black (Citation1973) and is used to show that law and law enforcement mechanisms do not work automatically. It is always necessary for someone to employ additional efforts to make the system work (to file a claim, write an appeal, etc.).
8. For example, the cases in the European Court for Human Rights, “Kovaleva and Others versus Russia” and “Link Oil St. Petersburg versus Russia.”
9. “Tablitsa osnovnykh pokazatelei raboty arbitrazhnykh sudov Rossiiskoi Federatsii v 2010–2012 gg., pervom polugodii 2012–2013 gg.” Supreme Arbitrazh Court (http://arbitr.ru/_upimg/E71E1F5763D26D47E142A3F677BED00C_3.pdf).
10. Here we assume that all decisions adopted were numbered and that there are no gaps in this numeration.
11. Some categories of arbitrazh cases are subject to formal restrictions that prevent them from being placed in open access. In addition, there are sometimes technical mishaps, errors, problems with the functioning of information systems, and so on.
12. For a more detailed discussion, see Ewick and Silbey (Citation1998). Although this is not a quantitative study, it is the best and most detailed demonstration of the significance of individual strategies on the basis of concrete empirical data.
13. For a survey of classical studies and basic approaches, see Thomson and Zingraff (Citation1981).
14. For an examination of a specific situation, see Volkov, Paneiakh, and Titaev (Citation2010).
15. “Novosti mezhdunarodno-pravovogo sotrudnichestva.” Supreme Arbitrazh Court (www.arbitr.ru/int_law_coop/cooperation/60010.html); Makarov Citation2003.
16. Can such cases be attributed to “red tape?” Certainly not. At this stage of the analysis cases that are deliberately dragged out by the parties and cases that objectively require lengthy preparation fall into the same category. Further analysis will reveal the differences between these two groups of cases.
17. Russian law provides for a special “procedural time” that is used to measure the passage of time toward procedural time limits. The judge and the parties can use many mechanisms to halt the passage of procedural time. A period of two procedural months can therefore extend over half a year of calendar time. Thus it by no means follows that in the instances described judges are violating procedural time limits.
18. A test for multicollinearity of the variables “time taken for the case to be settled” and “size of claim” showed that these variables are independent of one another and that it is therefore justified to include them both in the model.
19. For a more detailed discussion of the problem of hearings in courts of secondary and tertiary jurisdiction, see Titaev (Citation2012).