Between a “Heavenly” Life and an “Earthly” Life: Jurisprudence of the Court of the EAEU from 2012–2019

Abstract

In 2012, a new jurisdictional body – the Court of the Eurasian Economic Community – began to operate in post-Soviet space. During the almost seven years of activity, from September 2012 to May 2019, the Court primarily dealt with appeals of economic entities who challenged acts of the Eurasian Economic Commission, as well as requests from Member States and the Commission for interpretations of international treaties. On one hand, the decisions of the Court meet basic international standards and contain certain answers to the questions submitted to the Court. On the other hand, they do not draw detailed arguments and clear conclusions and sometimes reflect the Court’s predisposition towards the Commission and Member States. As a result, they successfully perform the task of resolving specific disputes, but do not perform (at least effectively) the general task of strengthening the rule of law of the EAEU. The Court did not formulate major concepts that complement and enrich the law of the EAEU. The author substantiates this conclusion and analyzes the Court use of sources of law and evidence; its participation in judicial dialogue; its technique of argumentation; linguistic features of its decisions; procedural and substantive problems faced by the Court, and options for their solution; the practice of presenting separate opinions; legal concepts formulated by the Court, and its overall influence on the development of EAEU law. The ineffective resolution of problems faced by the Court are attributable to subjective and objective reasons – shortcomings of applicable acts, the Court’s isolation from Russian doctrine, the Court’s focus on an internal model of legal proceedings, mistrust on the part of Member States, failure of the Court organizational structure to conform to international standards, and the vertical nature of the EAEU. If these factors are not overcome, and the Court does not change its conduct, it risks becoming a decorative body engaged in explaining provisions that are clear (and will repeat the sad fate of the CIS Economic Court). This prospect is discouraging.