Vice-President of the Law Society of South Africa, Nkosana Francois Mvundlela attended the 9th BRICS Legal Forum, which was held in
Moscow, Russia.
By Nkosana Francois Mvundlela
The 9th BRICS Legal Forum was held in Moscow, Russia from 19 to 20 September 2024. Vice-President of the Law Society of South Africa, Nkosana Francois Mvundlela attended the conference and compiled the following report.
The conference started with a plenary session in which all nine countries made their opening remarks. The host country welcomed all the members and attendees present.
I represented South Africa on behalf of the Law Society of South Africa and several South African advocates on behalf of the Arbitration Foundation of Southern Africa (AFSA) were in attendance. The advocates who participated in various sessions partook with a level of dignity, acknowledgement and respect.
The BRICS Legal Forum meets separately from the BRICS Heads of States meetings, raising concerns about the extent to which the Heads of Delegates engage with the contents of the declarations, how individual countries benefit from the resolutions, and how these promote the legal systems.
Furthermore, one does not get the sense that there is engagement with the Department of International Relations and Cooperation on the outcomes of the Forum. Such interaction is necessary, and it will ensure that there is synergy between the work of the Forum and the outcomes of discussions between the Heads of States in BRICS.
On my observation, I noticed that all countries seemed to be ad idem about the fact that for the past ten years, meetings have been held and no country seemed to have reported to the Forum about how its government was interfacing with the declarations for implementation. My question is, what do we seek to achieve with the signed declarations?
After the plenary session, the Heads of Delegates went into a meeting to further negotiate the proposed amendments of the 2023 Sandton Declaration. In the meeting, the Chinese delegation specifically objected to the new proposal by the Russian delegation of including clauses in the declaration protecting intellectual property (IPs).
The Chinese delegation objected to specific clauses for two reasons, one was that they did not have a mandate to approve them from their government as they did not discuss same with their authorities and secondly, they regarded those clauses as obstructive in that they sought not to promote interstate sharing of knowledge and technical skills. The Chinese delegation’s view was that if BRICS is to succeed, then the countries in BRICS must be willing to share information technology and skills without the protection of IPs. The Heads of Delegations held several meetings to try for a push to have the declaration signed without success.
As a result, the Russian delegation only obtained a mandate in the last meeting to agree to withdraw their new proposals and allowed that the declaration to be signed in its original form.
All member states agreed to sign the declaration in its original form on condition that the new members reserved the right to contribute to its contents should they review and find the need to do so. The Chinese delegation led the signing of the declaration together with the Russian delegation.
The countries constituting the BRICS Plus Legal Forum convened at the ceremonial place for the signing of the declaration. Each country was represented by its Head of Delegates. Visit www.derebus.org.za to view the signed declaration.
The agenda of the Forum was designed along what the host country regarded as the most intriguing issues in its development. One key development in Russia is the fact that they are reviewing their legal education curriculum and trajectory. They called into every session the professors from each of their main universities to share their project plan for the review of their curriculum. They have given those institutions two years to produce the new curriculum to produce a lawyer for the Russian legal landscape. They are doing away with the old archaic legal principles, which they regard as having no relevance to their new order.
The rules regulating international arbitration, will remain an instrument for ADR, as and when a dispute among the international countries falling within the foundation of the BRICS Plus countries takes place. The rules of arbitration on an international scale are necessary as they will include determining jurisdictional requirements for dispute resolution. However, the contrary view, particularly within the South African context, it may be shooting ourselves in the foot as the small business community, which may find themselves doing business with an international company, may have to still rely on the courts as they may not be able to afford arbitration. Therefore, those who hold the view that for the rule of law to propel the economy we must use state institutions like courts, may find themselves excluded from participating in the economy if the dispute resolution mechanisms afforded by BRICS Plus rules require arbitration as the sole mechanism, then those companies will lose the opportunity to participate in such economic space. We must never overemphasise arbitration and mediation as the most profound and proficient methods of problem solving.
In a country regulated by the rule of law, with separation of powers and constitutional supremacy, we must be deliberate in forcing judges who are paid to do their work and ensuring our courts have the capacity to preside over matters involving international transactions and contracts. We should strike a balance between the use of ADR and the courts to have an inclusive legal economy. There must be a purpose for the decision and if one decides to go against the use of courts and propagate for the use of arbitration for its efficacy and efficiencies without taking into account its expensive process, then we may lose the opportunity to develop our jurisprudence and exclude the small businesses from the economy as the international companies may insist on arbitration.
Therefore, BRICS countries must strive for the upholding of the rule of law and promotion of democracy in each country.
Some countries may send more than six delegates to the Forum, in order to maximise participation in every session. It helps them to manage the narrative of the Forum so that the protection of their economy is guaranteed. Sending one delegate raises the question of whether a country can effectively influence the trajectory of the thinking in these international bodies for the benefit of its members.
The next BRICS Legal Forum will be hosted by Brazil in 2025. I would recommend that a meeting be held with the Department of International Relations and Department of Justice and Constitutional Development to evaluate the signed declaration and align the progressive discussions of the Heads of States with the Forum’s resolutions.
Click here to view the Moscow Declaration of the 9th BRICS Legal Forum.
Nkosana Francois Mvundlela is a Director at Mvundlela & Associates in Thohoyandou. Mr Mvundlela is also the Vice-President of the Law Society of South Africa.
This article was first published in De Rebus in 2024 (December) DR 11.
