BRICS Legal Forum welcomes the inclusion of new states as proposed by the BRICS Summit 2023

March 1st, 2024
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‘The Legal Forum is committed to fostering the Rule of Law in BRICS countries, while supporting the development and growth of our collective societies, which are built on the foundation of fairness, equality, and an inclusive worldview. Our vision and purpose are to enhance collaboration with the legal institutions in BRICS countries with a long-term view on developing the Global South.’ These words were captured as the opening statement in the eighth BRICS declaration, that was drafted in Johannesburg in South Africa (SA).

The Law Society of South Africa (LSSA) hosted the eighth BRICS Legal Forum in Kempton Park, in December 2023. The conference was attended by delegates from SA, Russia, India, China, and Brazil. The theme of the conference was ‘Building local capacity to support the agenda of the Global South’. ‘This support by the legal profession is more than capacity; it is the legal profession’s role in promoting and enhancing the rule of law through equitable and inclusive social, economic, political, and cultural development,’ said the President of the LSSA, Eunice Masipa, during her welcome and opening address. She added that the theme of the summit’s values underpin democracy, and everyone in society is accountable to civil, political, and institutional entities, including businesses.

Ms Masipa added that the eighth Legal Forum conference was held at a time when BRICS accepted other countries to form BRICS Plus (BRICS+). Ms Masipa said that for SA, this means that the development of the Global South is to have a more equitable and representative role in the world’s economic and political structures, including the United Nations (UN) and other international agencies. Ms Masipa pointed out that SA, therefore, represents the African continent to ensure the developing world has a meaningful voice on many issues, from profit shifting, stripping of mineral wealth, destabilising countries on the continent, climate justice and more. Climate change and the disastrous effects thereof on the poor and developing world are addressed in climate justice.

Ms Masipa said that the BRICS Legal Forum encompasses cooperating member states’ cultural, economic, social, political, and legal diversity. She added that this fundamental purpose is sustained by unity, diversity, and the constant development of adjusted cooperation. She pointed out that the purpose is to drive the collaboration forward for the benefit of our common societies in the Global South, with the key outcome being non-negotiable; that is, the economic and other benefits must positively impact and develop communities and societies.

President of the LSSA, Eunice Masipa, during her welcome and opening address at the eight BRICS Legal Forum held in South Africa.

Ms Masipa said that having different legal systems, traditions and practices, the BRICS countries still need generalised rules and regulations to sustain joint projects. ‘The advent of BRICS+ calls on the BRICS Legal Forum to fast-track development and agreements. BRICS+ requires increased urgency for a systematised and coherent legal framework for effective coordination in different areas of cooperation. Law underpinned this to guarantee stability and efficient and sustainable development of BRICS. The Global South must ensure that the countries, institutions, businesses, or [state-owned enterprises] SOE improve and professionalise our governance systems to be the beacon of the new Global South agenda, where we are all our brothers’ keepers,’ Ms Masipa added.

Ms Masipa pointed out that the BRICS Dispute Resolution centres have been established in most countries including SA. ‘We are committed to uniting legal practitioners to nominate a centre in South Africa to ensure the work of BRICS is not hindered,’ she said. She pointed out that an inevitable part of creating a fundamental basis for BRICS cooperation is a harmonised legal education system. With such a system, the differences between the BRICS countries can be effectively and successfully managed.

Ms Masipa added that in SA, we are disappointed that BRICS-related legal research and education has lagged behind other BRICS member countries, and engagement with universities must be urgently undertaken as these institutions of excellence drive this forward.

Chairman of the Association of Lawyers of Russia, Sergey Stepashin, in his speech said: ‘We are witnessing the historic BRICS expansion and changing global geopolitical situation. Thus, the alliance has entered the new phase of its development. We certainly stand for the formation of the multipolar order, based on the principles of justice, diversity, mutual respect and balance of interests, as well as the international law in line with the cornerstone principles of the UN Charter, including the respect for each other’s sovereignty and the right of each nation to its own model of development. After all, our countries are basically multinational and multiconfessional.’

In his speech, President of the Bar Association of India, Prashant Kumar, said that even though the BRICS countries are different, together they have the same tapestry that represent a variety of legal systems of the entire world. These coming from the common law system, civil law jurisdictions, and both laws are hybrid. He added that when the new BRICS+ countries join there will be a wider variety, as true representatives of the legal global scenario in terms of legal systems, and legal traditions and values. He pointed out that the journey of the BRICS Legal Forum started in 2012 when the Bar associations were invited to draft a few ideas on how to service the world. He said that it has been a pleasure to work on taking the forum forward and to come to a common understanding.

Mr Kumar said that not once in the forum have there been frictions and each year, there is a single common ground. A ground all members can agree to, and that is the hope not only for BRICS countries, but for the entire world to break boundaries of artificial differences in terms of systems of governance, in terms of legal systems that should be followed and one common stand which unites BRICS and in the core of the legal endeavour, which is equality, equal opportunity under the rule of law, and that comes from the performance of the BRICS countries.

The Chief Justice of South Africa, Raymond Zondo, joined the summit via an online link. He said that the rule of law was one of the common law constitutional principles that courts in SA use to regulate the exercise of public power. He added that the Constitutional Court in Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) held that under the common law, the rule of law had a substantive, as well as a procedural content that gave rise to fundamental rights. However, prior to 1994, fundamental rights were eroded and excluded by legislation. The rule of law is another principle of great importance as it acts as a constraint upon the exercise of all power. The scope of the rule of law is broad, Chief Justice Zondo added.

Chief Justice Zondo pointed out that, additionally, the rule of law embraces some internal qualities of all public law that it should be certain that it is ascertainable in advance so as to be predictable and not retrospective in its operation, and that it be applied equally without unjustifiable differentiation. He said that courts will use their power of judicial review to declare unconstitutionally or unlawful anything done by any official or government where its conduct is in breach of the rule of law in SA. ‘Our courts do not hesitate where ministers have acted in breach of the rule of law, to declare such conduct unconstitutional,’ he said. ‘One of the components of the rule of law, is certainty in the law,’ Chief Justice Zondo added.

Chief Justice Zondo added that another incident of the rule of law is that there must be independent courts and tribunals, which resolve disputes. He added that this is very important to business people all over the world because they need to know that if they have disputes either with the government or government agencies or with other business people in the country in which they do business or invest, they will have recourse to courts that are independent and impartial. He said that this speaks to the independence of the judiciary. He spoke about the theme of the 2023 Judges’ Conference that was taking place at Sun City, parallel to the BRICS Summit. The theme of the judge’s conference was ‘Towards a single, effective and fully independent judiciary’.

Chief Justice Zondo noted that the theme emphasises the importance of an effective and fully independent judiciary, which every business person or investor wants to find in any country in which he or she does business or invests. He pointed out that s 165(1) of the Constitution of South Africa provides that the judicial authority of the Republic is vested in the courts. He added that the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour, or prejudice.

Chief Justice Zondo said that in SA, there is no doubt that the judiciary has personal independence. He added that personal independence is the independence that enables a judge or judicial officer to make his or her decision on the matter without any pressure or in undue influence from anybody. He said that nevertheless, in SA, the judiciary continues to exercise personal independence in making the decisions that they make.

Chief Justice Zondo said: ‘With regard to institutional independence, we do not have full institutional independence and continue to fight as the judiciary for full independence for the institutions of the judiciary of the courts. There is an indication that the President is now ready to give this matter priority after the executive had not returned to the judiciary on proposals made by the judiciary about 12 years ago for a court administration model that the judiciary believes is consistent with the requirements of our Constitution. Every investor, every business person, wishes that in whatever country they invest or do business, the judiciary is effective and independent.’

Chief Justice Zondo pointed out that the last thing that any investor or business person would want to experience in any country where they do business is what happened to the Southern African Development Community (SADC) Tribunal some years ago.

The SADC established a tribunal whose mandate included adjudicating complaints about violations of human rights by government against their own citizens but then various treaties were enacted to ensure that the Tribunal became dysfunctional.

The signing of the Declaration at the eighth BRICS Legal Forum. From left to right: President of the Law Society of South Africa, Eunice Masipa; Chairperson of the Association of Lawyers of Russia, Sergey Stepashin; President of the Bar Association of India, Prashant Kumar; Vice President and Secretary-General of China Law Society, Zhang Mingqi; Representative of the Federal Council of the Brazilian Bar Association, Bruno Barata; and Lecturer at the Institute of BRICS Legal Studies of the East China University of Political Science and Law, Dr Xiuyan Fei signing on behalf of President of the East China University of Political Science and Law, Ye Qing.

 

The BRICS Declaration

At the closing of the forum, Ms Masipa read to delegates the declaration that BRICS members worked on. Together in the presence of delegates BRICS members signed the declaration, which states as follows:

We the members of the legal fraternity at this eighth BRICS Legal Forum held at Johannesburg, South Africa on the 8 and 9 December 2023 hereby make the following declarations:

‘We declare that:

  1. We, the constituents of the BRICS Legal Forum, are committed to enhance collaboration with the legal institutions in BRICS countries with a long-term view on developing the Global South through strengthening the framework to mutually benefit BRICS countries.
  2. We affirm our support to the BRICS countries and endorse the BRICS declarations, in particular the realisation of the Johannesburg II Declaration on 23 August 2023 themed “BRICS and Africa: Partnership for Mutually Accelerated Growth, Sustainable Development and Inclusive Multilateralism”.
  3. We welcome the inclusion of new states as proposed by the BRICS Summit 2023 and look forward to expanding the BRICS Legal Forum to include the BRICS+ legal professionals.
  4. We are committed to collaborate and support the BRICS Business Council to enhance intra-BRICS trade and investment in key economic sectors through the development of such policies and regulations to enhance market access for BRICS businesses in the respective BRICS countries.
  5. We are committed to support initiatives by the BRICS countries to enable the BRICS businesses to work with Africa to unlock the full potential of the Africa Continental Free Trade Area.
  6. We acknowledge the BRICS countries’ support for inclusive multilateralism and make it the foundational philosophy and the endeavours of the BRICS Legal Forum.
  7. We support and call on the international communities to cultivate a corruption-free business environment that encourages tax compliance and combats money laundering, terrorist financing, proliferation of weapons of mass destruction and drug and human trafficking while maintaining the ease of doing business.
  8. We encourage the development of cooperation of BRICS countries legal communities in the field of legal education, links between the corresponding universities, law schools and all forms and formats of scientific and educational exchange within the BRICS process.
  9. We will take steps to involve respective institutions of the newly admitted BRICS countries in the educational exchange and all forms of educational cooperation.
  10. We acknowledge that technology can be used for the education of our societies and enhancing our education programmes so that the developing world is a market for skilled labour and we are committed to embrace technology, including in the field of the legal education.
  11. We note that the right to accessible and affordable technology for developing nations is critical for a fair and just world. We support the use of technology to promote access to justice, whilst taking into consideration the barriers resulting from the digital divide prevalent in many BRICS member countries.
  12. BRICS Legal Forum is committed to collaborate internationally with the appropriate international institutions such as the UN, to facilitate the development of the legal frameworks for the universal, ethical, and appropriate use of technology, to deal collectively with the scourge of cybercrime and to jointly develop AI governance framework based on broad consensus..
  13. We emphasize that the historical cumulative emissions of developed countries, which determines current global warming and will continue to affect the rise of global temperature, is the root cause of climate change. Developing countries are struggling from the negative effects of climate change, as well as the pressure of development and reduction of emissions. We call on all parties to adhere to the goals, principles and framework of the United Nations Framework Convention and its Paris Agreement, especially the principle of common but differentiated responsibilities, to achieve the long-term climate goals of the Paris Agreement.
  14. We will help develop appropriate legal frameworks that ensure that the technologies required to sustain a Green economy is shared with the developing world to enhance global capacity and equity in environmental protection.
  15. We will endeavour to help develop appropriate legal frameworks to support the sustainable development of the Global South.
  16. We recognise that fair and equitable distribution of the economic benefits is fundamental for our communities, especially for rural development and food security.
  17. We envision BRICS Legal Forum that is inclusive in its content and form and makes it a priority to ensure that women play a meaningful role in all BRICS activities.
  18. We support the development of appropriate institutional arrangements and protocols that will enable collaboration between the BRICS countries following the example of the AFRICAN CONTINENTAL FREE TRADE AREA [AfCFTA] and call upon BRICS governments to facilitate the free movement of persons, capital, goods and services that will deepen economic integration, promote agricultural development, food security, and economic transformation.
  19. We echo the commitment to promote employment for sustainable development, including the commitment to transformative employment that is representative of South Africa’s demographics, paying particular attention to gender.
  20. We have decided to prioritise the setting up of network of Dispute Resolution institutions under the BRICS framework as envisioned in the previous BRICS Legal Forum declarations and the concept note which was adopted as a blue print by resolving to create a Board of Governors and common rules of the BRICS Disputes Resolution Network. In order to help achieve this, as a first step we decided to adopt with suitable modifications and adaptations the benchmarked rules for conducting arbitrations of the Arbitration Foundation of Southern Africa which are already serving as the basis for resolving Africa-China commercial disputes.
  21. We propose to establish a specialised wing of BRICS Dispute Resolution Network or a separate institution dedicated to resolution of investment disputes arising within the BRICS, which ultimately would evolve into an institution of choice for the countries of the Global South, being sensitive and cognisant of their developmental and welfarist needs, requirements and aspirations while providing a conducive environment to attract foreign investments.
  22. We resolve to take urgent steps to establish cooperation with the New Development Bank and become one of its partners to create synergies helpful to develop BRICS Disputes Resolution Network and at the same time assist the NDB to implement its objectives of sustainable development by helping create/validate suitable legal-policy frameworks, solutions and instruments and by helping train local legal and professional communities.
  23. In order to implement the foregoing initiatives, we resolve to create a ‘working group’ or a ‘Task Force’ for each of the areas with set timelines and milestones to be achieved, with a resolve to have the BRICS Dispute Resolution Network along with the finalised rules ready for adoption and ratification at the next BRICS Legal Forum to be held in Russia.
  24. We also resolve to promote the BRICS Legal Forum and the BRICS Dispute Resolution Network and to create awareness about it at various international and regional forums as representatives of BRICS Legal Forum or while representing any of our member organisations.
  25. In order to integrate the new members of BRICS in the BRICS Legal Forum initiatives, we accept the proposal of Russia, the host of the next BRICS Legal Forum, to invite legal and arbitration bodies in BRICS+ countries to an event in Dubai preferably in March/April 2024, as Dubai is geographically convenient and the UAE being a BRICS member.
  26. We also unanimously accept and endorse the proposal of Association of Lawyers of Russia to host the IX BRICS Legal Forum in 2024 in Moscow, Russia, during the time which will be additionally advised, given Russian chairmanship in BRICS in 2024.
  27. We thank the Law Society of South Africa for hosting the VIII BRICS Legal Forum in Johannesburg.’

Signed at Johannesburg on this 9th day of December 2023.

Bruno Barata, Federal Council of the Brazilian Bar Association.

Prashant Kumar, Bar Association of India.

Ye Qing, President of the East China University of Political Science and Law through Fei Xiuyan.

Sergey Stepashin, Association of Lawyers of Russia.

Zhang Mingqi, China Law Society.

Eunice Masipa, Law Society of South Africa.

 

Additional information

To view the photo gallery and the presentations of the eighth BRICS Legal Forum, visit the De Rebus website at www.derebus.org.za.

 

Click here to see the gallery of photos from the eighth BRICS Legal Forum.

 

Click on the links below to view the presentations of speakers at the eighth BRICS Legal Forum:

 

Day 1: Tax

 

Day 1: BRICS Business Council

 

Day 1: Dispute resolution

 

Day 2: Investment Policy

 

Day 2 : Intellectual Property

 

Day 2: Formalisation of the Multilateral Systems for the BRICS New Economic Order

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2024 (March) DR 5.

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