BRICS Legal Forum: An opportunity for legal cooperation through unity and diversity

November 1st, 2018
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BRICS Legal Forum heads of delegations. From left: Past President of the Federal Council of the Brazilian Bar Association and President of the National Commission of Foreign Affairs of the Brazilian Bar Association’s Federal Council, Marcus Vinicius Furtado Coêlho; Chief of Staff and Member of the Board of the Association of Lawyers of Russia, Stanislav Alexandrov; President-Elect of the Bar Association of India, Prashant Kumar; Solicitor General of India and Vice President of the Bar Association of India, Pinky Anand; Vice-President of China Law Society, Zhang Mingqi; and Co-chairperson of the LSSA Ettienne Barnard.

By Mapula Sedutla

The Law Society of South Africa (LSSA) hosted the fifth BRICS Legal Forum conference, which was held in August in Cape Town. The conference was a melting pot of ideas from the five BRICS member countries, namely Brazil, Russia, India, China and South Africa (SA). The four themes discussed at the conference were –

  • arbitration;
  • contracts and company law;
  • financial and tax law; and
  • lessons to set-up an effective arbitration center: the do’s and don’ts.

Co-chairperson of the Law Society of South Africa, Mvuzo Notyesi welcomed delegates to the fifth BRICS Legal Forum conference.

Co-chairperson of the LSSA, Mvuzo Notyesi welcomed delegates to the conference. Mr Notyesi noted that the BRICS member states legal fraternity should have legal cooperation through both unity and diversity. He added that although the member states had different legal systems, this was not a barrier to collaboration.

Message from the heads of delegations

Past President of the Federal Council of the Brazilian Bar Association and President of the National Commission of Foreign Affairs of the Brazilian Bar Association’s Federal Council, Marcus Vinicius Furtado Coêlho, said that the next BRICS Legal Forum conference will be held in Brazil. Mr Coêlho added that the lessons learnt from the South African conference will be taken forward to Brazil. He noted that the BRICS countries have a healthy friendship because of the mutual respect the countries have for each other’s sovereignty.

Chief of Staff and Member of the Board of the Association of Lawyers of Russia, Stanislav Alexandrov, noted that the BRICS Legal Forum was a great place to build contacts. Mr Alexandrov said that last year in Moscow, the forum established a joint programme for young lawyers. Adding that the aim for the young lawyers programme is to create opportunities for young lawyers and create a mechanism for them to have constant contact with each other.

President-Elect of the Bar Association of India, Prashant Kumar, thanked the LSSA for the effort it made to organise the forum. Mr Kumar noted that it was once said that BRICS would not work because the member states were a group of countries with nothing in common. He added that the notion has been proven wrong over the past few years.

Vice-President of China Law Society, Zhang Mingqi, said in recent years, the BRICS countries have continued to develop in a positive direction. Mr Mingqi noted that in 2014, the legal circles of the BRICS countries gathered in Brasília to unite the consensus on the rule of law and jointly initiated the establishment of the BRICS Legal Forum.

Mr Mingqi added: ‘After four years, it has successfully held four forums in Brasília, Shanghai, New Delhi and Moscow. It has conducted in-depth discussions on legal issues that the BRICS countries are facing and are concerned about. The forum has adopted the Brasilia, Shanghai, New Delhi and Moscow Declarations. The forum also established the Forum Steering Committee, the BRICS Legal Talents Training Base, the BRICS National Law Institute, the BRICS Law School Alliance, the BRICS Dispute Resolution Shanghai Centre, the Gold Coordination, and the New Delhi Centre for International Dispute Resolution in Emerging Economies. This has laid a solid foundation for the BRICS countries to further deepen the rule of law cooperation.’

Legal framework to underpin the BRICS economic initiative

Delivering the opening address, Chief Justice Mogoeng Mogoeng said that the invitation he received to speak at the conference stated that the conference was about working out the legal framework that will assist in developing the economies of the BRICS member countries for the social and economic benefit of their people.

Delivering the opening address, Chief Justice Mogoeng Mogoeng said that the invitation he received to speak at the conference stated that the conference was about working out the legal framework that will assist in developing the economies of the BRICS member countries for the social and economic benefit of their people.

Quoting one of the books he was reading, Chief Justice Mogoeng said: ‘Our world needs people of integrity and strong character. The nation needs them in our business and economic set up. We need them to run our judiciary, we need them to be in charge of our politics and governments and every facet of our lives. You can be one of such people and make a real difference.’

Chief Justice Mogoeng noted that on the assumption that the BRICS Legal Forum is set up to work out a regulatory framework that will facilitate economic development, the BRICS member states need to acknowledge that laws or regulatory frameworks do not just exist, they exist with an objective in mind. He added: ‘Therefore, regulatory frameworks have to be crafted in such a way as to facilitate the attainment of the objectives sought to be achieved. In my view, fundamental to the existence of the law, is to ensure that amongst other things, peace, stability, freedom, justice and equity, as well as shared prosperity are achieved. That is critical because economic development around the world is not without a history. We, therefore, have to look around us and say around the globe, has there been meaningful economic activity. If the answer is yes as it should, the question should then be: Have we been able through the existing regulatory framework, even as it applies to taxation and applies to the conditionalities for doing business or securing loans for doing business, able to achieve what we set out to achieve? But if we did not, what is it that we must do differently as we craft this legal framework to make sure that we avoid all those things that made it difficult if not impossible for us to get to that point.’

Chief Justice Mogoeng said to be able to speak about the economies of the world he has been advised to read Neo-Colonialism: The Last Stage of Imperialism (Panaf 1974) by Kwame Nkrumah and The New Confessions of an Economic Hit Man (Berrett-Koehler 2016) by John Perkins. He added: ‘Reading these books has helped me to appreciate what dynamics are there that any well-meaning lawyer and economist would have to contend with, so that we do not go back and recycle the errors of the past. So that the necessary critical paradigm shift that must happen for a legal framework to come into being, whose purpose is to ensure that the economies of the member countries of BRICS are developed for the social and economic development of their people does come into place. What we all need to do is to revise or refresh our memories on the challenges seen as far back as 1960 by Kwame Nkrumah. How was business being conducted and why is it that for so many years in Africa, in the developing world we still have no change, on the contrary the situation has become worse.’

On the second day of the conference, a panel discussion was held to discuss the recognition of the BRICS Legal Forum by BRICS governments. Legal Practice Council elected member Krish Govender was one of the speakers in the panel.

Chief Justice Mogoeng asked: ‘What regulatory framework was in place that enabled what Nelson Mandela would call, I am putting the converse of it, trade injustice? What was the role of lawyers in facilitating that? In circumstances where developing countries like African countries and the Latin American countries need revenue. How was the regulatory framework crafted to ensure that through taxation we get the revenue we need from those who are using the resources in the different countries to make a fortune?’

Chief Justice Mogoeng noted that Nelson Mandela indicated that trade justice is needed, otherwise poverty will never go away and there will not be any meaningful development of the economies of the developing economies of the world. ‘You need to reflect deeply on how the existing debts of the poor countries of the world are so that they do not get trapped in debt to a point where they would never emerge out of it. You need to reflect on what it will take to ensure that whatever aid you give to any country is of the highest quality. And this of course assumes that we are all men and women of integrity because it is all very well to craft the best legal framework, the best Constitution, the best quality policies but if you lack integrity, if you are dishonest, if you are always looking for how to take advantage of others, whatever you say is nothing but talk.’

Chief Justice Mogoeng added: ‘BRICS came into being because there was a sense that there was some trade injustice around the world. To counter balance this, measure had to be found that when we say that there will be development in South Africa as a result of the collaboration with BRICS member states, development does happen. I hope that ten or 20 years down the line we will have no reason to say: What did we put ourselves into? I hope that 60 years down the line, there will be a difference. It will show that there is a new way of doing business with credible lawyers in place who will never mislead society. There will be no inflation of projections in relation to economic growth. There will be a conscious decision to look after our environment and make sure we do not damage it for the sake of profit. Let none of us be in a position where his or her soul is up for sale, willing to do whatever some people or some entities wants them to do regardless of the harm. Let that regulatory framework not be favorable to some members of BRICS, but let it be favorable to all of us.’

BRICS to raise levels of development

Minister of Justice and Correctional Services, Michael Masutha, said the BRICS member states economic, cultural, social and other relations require lawyers to develop procedures and laws which will regulate and strengthen the countries and its peoples.

Minister of Justice and Correctional Services, Michael Masutha, said as SA celebrates the centenary of the life of the founding father of its democracy, Nelson Mandela, the country is mindful of its past. Mr Masutha added that in the past, the majority of the people in the country were excluded from mainstream social and economic life of the country. He said: ‘This has relegated them to centuries of socio-economic deprivation, including the right to access to land, decent employment and other forms of economic activity. South Africa will only realise its potential if the value of its most valued resource, its people, is realised. This can only be realised in part through ensuring that we become a skilled nation that is able to translate this natural resource into real wealth and high-end skills including the many specialised skills that are brought by this profession that can help unleash and unlock this potential.’

Mr Masutha said the BRICS member states economic, cultural, social and other relations require lawyers to develop procedures and laws, which will regulate and strengthen the countries and its peoples. ‘This will ensure that we take full advantage of our combined force as a collective as the members of BRICS to ensure that we raise the levels of development within our respective countries. The themes that you will be discussing during this conference should provide us with a solid legal base to strengthen already existing statues of BRICS countries. In doing so, all of us are of course guided by the strong connection to the rule of law and the protection of socio-economic rights of all our peoples in an increasingly globalising and interdepended world which is yet to deliver social justice to all within and between its nations.’

BRICS – a political architecture

Minister of Finance, Tito Mboweni, said the BRICS club of nations is a political architecture and all other things have to fit in this political architecture. Mr Mboweni added: ‘The legal work that you are discussing is also meant to be in support of this political architecture. The BRICS arrangement has been to a large extent a response to what may be perceived as the difficulties of the global government system. Starting with the domination of the world by the G7 countries [Canada, France, Germany, Italy, Japan, the United Kingdom, and the United States], with all the arrogance that they can muster. The domination of the G7 in the IMF [International Monetary Fund] and the World Bank system, for example, they have decided amongst themselves that only an American can be a president of the World Bank and only a European can be the managing director of the IMF. The G7 also dominate the UN [United Nation] system. You may not agree with me, but they also dominate the thinking in the International Criminal Court.’

Minister of Finance, Tito Mboweni, said the BRICS club of nations is a political architecture and all other things have to fit in this political architecture.

Mr Mboweni said somewhere from 1999 to 2000 a group of Goldman Sachs economists studied the trends in the global economy. ‘Of course, they were doing this partly for self interest in that they wanted to provide guidance as to where the market growth in the world was coming from so that the firm could be able to pursue business. They went through the study under the guidance of Jim O’Neill who was the chief global economist at the time. As they studied the economies of the world, they came to the following basic conclusions: That between 2000 and 2005 the economies of Brazil, Russia, India and China contributed 28% of global growth, 55% in purchasing power parity, more than 30% of global demand. And intra-BRICS trade was nearly 8% of their total trade. BRICS held more than 30% of global reserves with China being the dominant one. They had massive current account surpluses and were showing higher rates of economic growth. This led the Goldman Sachs economists to conclude, therefore, that we must come to terms with the fact that the economic power in the world had shifted away from the G7 more into the BRICS countries and what they later referred to as the next 11, which were Bangladesh, Egypt, Indonesia, Iran, Korea, Mexico, Nigeria, Pakistan, Philippines, Turkey and Vietnam,’ Mr Mboweni said.

Mr Mboweni noted that it was important for political policy makers to begin to think through the implications of this dramatic shift in economic power in the world. He added: ‘Somewhere in 2003 and 2004 the ministers of finance and governors of central banks of Brazil, Russia, India, China and South Africa began to hold regular meetings during the gatherings and the meetings of the IMF and the World Bank. The primary purpose of those meetings was to forge a common position in the deliberations that would take place in those meetings. I was the Reserve Bank’s governor then, we recognised then that we yielded together enormous influence and power, which we should use in those gatherings. Whether it was about voice and representation, whether it was about irritating the G7, whatever the case might have been together we were much stronger. Then we made a political mistake, we began to issue statements after our meetings that caught the attention of the heads of states and governments and they became jealous and they began talking amongst themselves, that resulted in the formation of a more formal structure, which we now know as BRICS.’

Mapula Sedutla NDip Journ (DUT) BTech (Journ) (TUT) is the editor of De Rebus.

This article was first published in De Rebus in 2018 (Nov) DR 7.

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