By Claire Kotze

The Law Society of South Africa (LSSA) hosted the fifth BRICS Legal Forum in Cape Town in August. Leaders and members of the LSSA, the Brazilian Bar Association, the Association of Lawyers of Russia, the Bar Association of India, the China Law Society, the General Council of the Bar and legal academics and practitioners from each member state attended. The countries (Brazil, Russia, India, China and South Africa (SA)), who represent over 40% of the world’s population and over 20% of global Gross Domestic Product (GDP), met to promote practical legal cooperation and the advancement of the rule of law within BRICS.

The conference focused on –

• arbitration;
• contract and company law;
• finance and taxation; and
• BRICS Dispute Resolution Centres.

The leaders of each law society signed the Cape Town Declaration and have committed to –

• promoting the rule of law with integrity and dignity within their member states;
• create a regulatory and legal framework that supports fair and sustainable trade practice; and
• develop fair, efficient and effective dispute resolution centres and procedures to resolve any disputes between member states.

President elect of the Bar Association of India, Prashant Kumar, stated: ‘I take BRICS as one of the most fertile places for ideas and experiments in the world. We are very different, but we can either perceive the differences in our systems and laws and the way we conduct our institutions as a handicap or we can be creative and turn them into strengths.’

Chief Justice Mogoeng Mogoeng, as honorary guest and keynote speaker, addressed the need to promote international discourse around trade justice and improve decision-making powers of developing countries in the geopolitical sphere by establishing a fair and equal international order.

Chief Justice Mogoeng encouraged reflection on the moral and ethical compasses of legal practitioners in the 21st century, appealing for collaboration to counterbalance the injustice in global trade and negotiate and create systems, which are not exploitative and do not oppress other nations.

Finance Minister, Tito Mboweni, highlighted the achievements of the New Development Bank and encouraged it to continue changing how investment operates, making finance projects beneficial to both parties and ensuring that the receiving nation truly benefits, without the burden of a liability it will never escape.

Mr Mboweni acknowledged the immense economic challenges faced by SA and Brazil, central to this being poor economic performance, state capture and corruption. Despite the challenges faced by the extremely diverse ‘club’, Mr Mboweni is optimistic and encouraged the disruption of ‘the western power structures’ by challenging bodies that monopolise geopolitical decision-making.

BRICS dispute resolution centres

Dispute resolution discussions focused on issues, such as –

• the costs, process and rules of arbitration;
• skills development and selection of arbitrators; and
• the enforceability of arbitral awards.

Emphasis was placed on the democratisation of arbitration within the BRICS nations. Academics and practitioners from member states shared knowledge, experience and ideas on the practical and legal challenges of alternative dispute resolution. Specific needs, requirements and capacity goals have to be considered in harmonising arbitration principles and procedures of the BRICS nations.

Financial and tax law

Tax laws and tax regulation procedures are becoming more complex, as is doing business. Advancements in technology, financial technology and business structures means that tax laws are not always able to keep up the pace.

Financial and tax law discussions centred on the Mutual Agreement Procedure (MAP) between BRICS nations. The MAP is a procedure that allows and sets out the process for Competent Authorities (tax revenue authorities) or designated representatives of the Competent Authorities from the governments of the contracting states to interact to resolve international tax disputes.

Imposing timelines on resolving tax disputes was discussed, as well as harmonising the tax authorities’ approaches to tax regulation and MAP. Creating a separate MAP department within tax authorities, and improving communication, transparency and sharing of information through a central internet-based mechanism, were also discussed.

The 2019 Legal Forum in Brazil will consist of working group meetings and forum discussions on the implementations made. The Legal Forum aims to be recognised by and included in the official BRICS 2019 Summit, with the leaders of each of the five countries in attendance.

• For the full signed Cape Town Declaration, visit www.bricslegalforum2018.org
• For a full report on the BRICS Legal Forum Conference, see p 7.

Claire Kotze is a candidate attorney at Norton Rose Fulbright in Cape Town.

This article was first published in De Rebus in 2018 (Nov) DR 6.