Recovery of damages incurred as a result of the government exercising power was discussed at the breakout session “Non-contractual Liability of the State” at the VII International Legal Forum in St Petersburg.
The session was chaired by Mikhail Galperin, Deputy Minister of Justice of the Russian Federation.
Among other participants of the discussion were Maria Yerokhova, Head of Civil and Arbitration Proceedings Department at the Moscow School of Social and Economic Sciences, Coffey Kendall, Chair of the Florida Federal Judicial Nominating Commission, Ken Oliphant, Professor of Tort Law and LLM Programme Director at the University of Bristol, Vera Rusinova, Associate Professor at the Department of International Public and Private Law of the Faculty of Law at Higher School of Economics, Elena Povetkina, Deputy Chief of Staff of Committee on Natural Resources, Property Rights and Land Relations of the State Duma of the Russian Federation, and Alexander Yagelnitzkiy, Associate Professor at Civil Law Department of the Lomonosov Moscow State University.
As Mikhail Galperin noted in his introductory speech, non-contractual liability of the state is rarely given enough attention, meaning that the panel can contribute greatly to solving this issue. "On the one hand, the limits of the state's liability are well-defined, but on the other hand, the legal, judicial and legislative practice suggests that the state is responsible for everything what's happening within its territory. I'm not only talking about foreign policy related to the protection of human rights, there are purely internal affairs affected as well", Galperin said.
Ken Oliphant, Professor of Tort Law and LLM Programme Director at the University of Bristol, spoke on the international experience in tort liability and presented excerpts from a large-scale study with opinions from European, North American, Israeli and South African experts. "The first conclusion we arrived to was that there are lots of formal structures incorporating the liability of the state into the tort law, lots of different approaches. It's crucial, however, that independent structures and political orientation concepts of different law systems hardly depend on the legal framework where those principles are applied". Ken Oliphant introduced the audience to four different law systems, illustrating various models of public, private and mixed law.
Alexander Yagelnitzkiy, Associate Professor at Civil Law Department of the Lomonosov Moscow State University, continued the topic which the British expert proposed. He mainly focused on limitations of the European law and their application in Russia. "As for limitations in Russia, I would like to point out several issues. The first is what I call a "patchwork emergency regulation". As soon as something happens (like a sports event), a special law is adopted, stipulating a simplified condemnation procedure–so simple that the quantitative liability immediately diminishes. Our second national problem is a very narrow definition of what's illegal. The third problem are historically low compensations for property and non-material damage", the expert said.
Maria Yerokhova, Head of Civil and Arbitration Proceedings Department at the Moscow School of Social and Economic Sciences, told the audience about how the damages were recovered from the government in the past. She noted that state liability is a relatively new concept, as it emerged in the 20th century as part of the nationalization trend. "No matter how much the scholars emphasize the principles of equality, state and private liability, the judge will always be extra cautious about damage recovery from the state. This is true for every nation and every law. The state always enjoys a very careful treatment. For this reason, to be as efficient as possible and to have the case decided against the government, the lawyer should scale back the claimed damage, in my opinion", Maria Yerokhova concluded.
In the last talk of the panel, Vera Rusinova, Associate Professor at the Department of International Public and Private Law of the Faculty of Law at Higher School of Economics, gave an overview of how the international instruments of human rights protection can be used by corporate lawyers.