After Litvinenko: special measures for Russia
11 June 2007
The UK's request to Russia to extradite Andrei Lugovoi, who is implicated in the poisoning of former Russian agent Alexander Litvinenko, was flatly refused by Moscow. Article 63 of the Russian Constitution, cited by Russian officials, prohibits extraditions in political cases.
However, nothing allows Russia to refuse to comply with an extradition request when the accusation involves murder. The constitution also gives precedence to international conventions over domestic law and, in 1999, Russia ratified the 1957 European Convention on Extradition. Yet, under its current leadership, Russia will never fulfil obligations to extradite Lugovoi.
This case underlines the extent to which Russia refuses to be bound even by laws of the greatest national primacy, not to mention its international obligations. So, how can Western lawyers operate in such an environment?The ongoing Yukos affair provides countless examples of the state's disregard for law. The recent harassment of Wiggin Osborne Fullerlove senior partner Tim Osborne is a prominent reminder that foreign lawyers operating in emerging markets face obstacles unfamiliar to those used to practising in the West.
Representation of clients in jurisdictions where the ground rules are unreliable requires a very different set of professional tools. Osborne was accused of embezzlement, misappropriation of assets and money laundering, but received no official communication about the allegations. The Law Society has called for the accusations to be dropped on grounds that they breach Osborne's rights. However, speaking as a lawyer who was deported from Russia for the defence of my client Mikhail Khodorkovsky, the former owner of Yukos, the prospect of remedial action for Osborne seems unlikely.
Several other lawyers have been threatened with disbarment, simply for having successfully defended their clients in Russian courts or at the European Court of Human Rights. Others, such as Yukos legal executive Svetlana Bakhmina, have been jailed.
So how can a lawyer prepare for such a clear lack of fair play? Experience in politically volatile markets dictates that a holistic approach must be taken towards market entry. Several key steps can prepare the way into the market. This will ensure that one does not rely only on lawyering skills, or even assume that a legal system will provide results based upon open, fair and transparent processes. A holistic approach takes into account the risks of corruption and the volatile nature of politics. In a case involving a shareholder dispute a first protective measure must be to engage the right local corporate counsel. Such counsel must be able to demonstrate that they are not in the pocket of corrupt state officials or business entities.
The next step would be to seek the office of a local criminal lawyer rather than following the usual instinct of finding the country office of a large US or European firm. The information one can glean from a local criminal lawyer is invaluable in assessing the legal and political situation.
On top of this one should build alliances with embassies and non-governmental organisations. This has always proven to be a vital exercise in ensuring the necessary strategic alliances are in place should you need recourse to them.
Finally, it is critical to understand that, due to repressive legal and political structures, contests (before the courts, through lobbying or other means) may involve aims far different from any US or European litigation. They can encompass sophisticated political messaging, pre-emptive action against regulatory attack, or attempts to destroy a cartel or conspiracy that would never be tolerated in a more transparent market.
In all of this it is imperative that one's reputation remains unimpeachable - and that means never selling out on fundamental ethical standards.