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On Sept. 22, a Russian court denied the appeal of my client, Yukos Chief Executive officer Mikhail Khodorkovsky, and sentenced him to eight years in prison on trumped-up charges of tax evasion and fraud. At 12:30 the following morning, six large plain-clothed representatives of Russia’s FSB security force paid a visit to me at my hotel, canceled my visa and gave me 24 hours to leave the country. The experience was unpleasant, but not surprising. Political interference in the Khodorkovsky case has been well documented by international observers and noted by media around the world. But largely overlooked are the actions against a secondary target-the Khodorkovsky defense team-which range from imprisonment to office raids to the recent attempt to disbar eight of my Russian colleagues. Many would agree that it was only a matter of time before the government acted against Khodorkovsky’s non-Russian attorneys. Lobbying on the outside Some international litigators are shocked by my experience. They shouldn’t be. In many emerging markets, governmental interference in the court system deprives lawyers of the most basic procedural guarantees. To achieve results in such environments, a lawyer has four options: resort to bribery (unethical and inadvisable); opt for arbitration (an effective method if an arbitration agreement is available); attempt to find jurisdiction in a rule of law court outside the country, such as in the United States; or, in the absence of options two and three, obtain support from transnational organizations through lobbying. Lobbying has been an essential tool employed in the Khodorkovsky case. Although our appeal was denied, we had some success in achieving “pre-emptive human rights”-establishing an international verdict on the legitimacy of the case before the court’s decision was heard. This was accomplished through the Council of Europe, which was willing to appoint a rapporteur to investigate the situation concerning Yukos executives, including Khodorkovsky. The investigation’s subsequent conclusions led to the council’s resolution that the prosecutions of these executives involved efforts to “weaken an outspoken political opponent, intimidate other wealthy individuals and regain control of strategic economic assets.” Thus, through the parliamentary mechanism, we pre-empted the Kremlin’s attempt to tarnish Khodorkovsky’s reputation in its efforts to deprive him of his financial security and personal freedom. Lobbying also proved to be a critical tool in the case of the former Russian Navy Captain Aleksandr Nikitin. After he contributed to a Norwegian environmental group’s report on nuclear waste disposal (based on published sources), authorities charged Nikitin with treason, jailed him for 10 months and put him through several trials. Thanks to the activist efforts of his lawyer, Yuri Schmidt, the validity of the prosecution’s case was called into question by international advocacy organizations, the U.S. government, the European Union and the Council of Europe. The resulting condemnation and outrage helped obtain a rare acquittal. (Incidentally, Schmidt is one of the eight Khodorkovsky lawyers threatened with disbarment.) Russia is not the only country with blurred boundaries between legal and political realms; nor is it the only country in which client service and activism of necessity go hand in hand. Belarus, Iran, Venezuela and Guatemala are other examples, to name a few. And things will only get more complicated. Some governments are following Russia’s example by using President Bush’s war on terror as justification to centralize their power and interfere in their countries’ legal systems, which tend to be very vulnerable and underdeveloped in emerging economies. Combine this trend of executive authoritarianism with increasing levels of international business activity, and the result is a very challenging legal environment for foreign-owned businesses and for the lawyers who represent them. The challenges are surmountable, however. The concept of global corporate citizenship has become increasingly popular among socially conscious multinational businesses, which strive for transparency in their foreign transactions. Too often, human rights groups and nongovernmental organizations are perceived as enemies of the multinational enterprise, when, in actuality, the goals of socially responsible actors in each sector are closely linked. The Khodorkovsky case and the expropriation of Yukos exemplify this connection. It is our job to encourage stronger ties between those promoting transparency in business and those promoting human rights before judicial and administrative tribunals. International law provides a network of protection through bilateral investment treaties and the duty of fair treatment that have their corollary in the duties of the state to provide a fair and independent tribunal to its citizens. International litigators can only take advantage of this network by developing a comprehensive understanding of both the business world and the norms of international law. The demarcation between advocacy, lobbying, and litigation needs to be rethought in markets where, as in Russia, the rule of law is under siege, and business lawyers have a contribution to make. Robert Amsterdam ([email protected]) is a partner and co-founder of Toronto-based Amsterdam & Peroff. He has extensive experience in litigation and arbitration of corporate disputes in emerging markets. With an active trade and subsidy practice on behalf of governments and international corporations, he and his firm have also pioneered work in the area of corporate human rights.

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