Russian Law: Can Decrees Be Overturned?

In Russia, a presidential decree is a legal act or executive order that has the status of a by-law. Presidential decrees cannot alter existing laws of higher precedence, such as the Constitution of Russia, Federal Constitutional Laws, and Federal Laws. They also cannot amend the Constitution or any parts of it without a special legal act on constitutional amendment. In the event of a conflict between a decree and a law of higher precedence, the higher law prevails, and the decree may be overturned. This hierarchy of laws is important in understanding the power dynamics between the President and the legislative bodies in Russia, which is considered a super-presidential system by some academics.

Presidential decrees cannot alter existing laws of higher precedence

In Russia, a presidential decree, or executive order, is a legal act or proclamation with the status of a by-law made by the President. These decrees are considered normative legal acts and are placed in the hierarchy of legal acts alongside decrees of the Government of the Russian Federation and instructions from other officials.

While the President of Russia is the head of state, the country operates as a multi-party system with executive power exercised by the government, led by the Prime Minister. Legislative power rests with the two houses of the Federal Assembly of the Russian Federation. The President and the government issue legally binding by-laws, but these cannot alter the Constitution or Federal Laws.

It is important to note that until the 2020 Russian constitutional referendum, international agreements were considered laws of higher precedence. However, following the referendum, these agreements now stand in lower precedence than Presidential Decrees or any other Russian state law or obligation.

In summary, Presidential decrees in Russia cannot alter existing laws of higher precedence, which include the Constitution, Federal Laws, and laws of Russian regions. The President's decrees hold significant weight but are still subject to the framework established by the country's legal hierarchy.

Russia's retaliatory measures may breach protections for foreign investors

In Russia, the President has the power to issue normative and non-normative decrees, as long as they do not contravene the constitution and federal laws. The Constitution of Russia is the primary and fundamental statement of laws in the country.

International arbitration under investment treaties may be the only effective remedy for many foreign investors with investments in Russia to recover the losses caused by Russia's retaliatory measures. Arbitral awards may be enforced against certain types of Russian government assets overseas, and firms may also be able to work with their home governments to explore opportunities to enforce awards. As Russia's retaliatory measures continue to intensify, investors should actively analyze available protections and consider acting to preserve their rights under Russia's BITs.

Russia's measures may constitute uncompensated expropriations

In its BITs, Russia has committed to treating investors from the relevant countries in a fair and equitable manner. This includes not discriminating against such investors on the basis of nationality, not expropriating their investments except under certain conditions, and upon payment of adequate compensation. Russia has also guaranteed the right of investors to freely transfer payments related to their investments out of Russia.

Russia's retaliatory measures as threatened in President Putin's decree may constitute breaches of core protections accorded to foreign investors under Russia's BITs. For example, Russia's seizure and/or transfer of the assets of foreign firms to regime-friendly owners may constitute an expropriation in breach of Russia's treaty obligations. All of Russia's retaliatory measures affecting companies or their investments in Russia based on their shareholders' "unfriendly" nationality would appear to be in breach of Russia's obligation of non-discrimination, as well as its obligation to refrain from arbitrary, unfair, and inequitable treatment.

International arbitration under investment treaties may be the only effective remedy for many foreign investors with investments in Russia to recover the losses caused by Russia's retaliatory measures. Arbitral awards may be enforced against certain types of Russian government assets overseas, and firms may also be able to work with their home governments to explore opportunities to enforce awards.

Overview of Russian Law

It is important to note that Russian law is structured as follows:

• The Constitution of the Russian Federation is the primary and fundamental statement of laws in the country.
• Statutes, like the Russian Civil Code and the Russian Criminal Code, are the predominant legal source of Russian laws.
• The President of Russia has the power to issue normative and non-normative decrees, provided they do not contravene the constitution and federal laws.
• The legislative power is vested in the two houses of the Federal Assembly of the Russian Federation.

The President has the power to issue normative and non-normative decrees

In Russia, the President has the power to issue normative and non-normative decrees, as long as they do not contravene the constitution and federal laws. These decrees are considered legal acts with the status of by-laws. Presidential decrees cannot alter existing laws of higher precedence, such as the Constitution of Russia, Federal Constitutional Laws, and Federal Laws. The Constitution of Russia, adopted in 1993, establishes a semi-presidential system that grants the President strong executive power and increased independence. It outlines the fundamentals of the government, including the rule of law, ideological neutrality, political pluralism, competitive elections, and a separation of powers. The President of Russia is the head of state and leads a multi-party system, with the Prime Minister exercising executive power. Legislative power rests with the two houses of the Federal Assembly of the Russian Federation.

While the President has the authority to issue decrees, these decrees can be overturned or superseded by higher laws. The Constitution of Russia, as the supreme law of the land, takes precedence over presidential decrees. Additionally, federal constitutional laws and federal laws are also above presidential decrees in the hierarchy of legal acts. This means that if a presidential decree conflicts with any of these higher laws, it can be overturned or rendered invalid.

The Russian Constitution, with its amendments, plays a crucial role in shaping the country's legal landscape. The 2008 amendment, for example, extended the term of office for the President from four to six years. Furthermore, the 2020 Russian constitutional referendum resulted in a change to the hierarchy of laws, placing international agreements below presidential decrees and other Russian state laws or obligations. This alteration demonstrates the dynamic nature of legal priorities in Russia and underscores the potential for future shifts in the legal framework.

It is worth noting that Russia's retaliatory measures, as threatened in President Putin's decrees, have raised concerns about potential breaches of core protections accorded to foreign investors under Russia's BITs (bilateral investment treaties). These measures, which target foreign-owned property in Russia, have prompted discussions about the role of international arbitration as a potential remedy for affected foreign investors.

In summary, while the President of Russia has the power to issue normative and non-normative decrees, these decrees are subject to the constraints imposed by the Constitution and federal laws. The decrees exist within a hierarchical legal framework and can be overturned or superseded by higher laws, such as the Constitution, Federal Constitutional Laws, and Federal Laws.

The Constitution of Russia is the primary and fundamental statement of laws

The Constitution of Russia, or the Constitution of the Russian Federation, is the country's fundamental legal statement. It was adopted by national referendum on 12 December 1993, with 54.5% of the vote, and came into force on 25 December 1993, the day of its official publication. The Constitution sets out the fundamentals of government and establishes a semi-presidential system, with a strong executive power and increased independence for the president. It also proclaims the rule of law, ideological neutrality, political pluralism, competitive elections, and a separation of powers, guaranteeing fundamental human rights to the Russian people.

The Russian Constitution is considered the supreme law of the land, taking precedence over federal and local laws. It outlines the strong presidency of the country, with the president being the head of state and commander-in-chief of the armed forces. The president also has the power to issue normative and non-normative decrees, provided they do not contravene the constitution and federal laws. These decrees have the status of by-laws and cannot alter existing laws of higher precedence, such as the Constitution, Federal Constitutional Laws, and Federal Laws.

The Constitution provides for a bicameral legislative branch, the Federal Assembly of Russia, consisting of the State Duma (lower house) and the Federation Council (upper house). While the State Duma is primarily responsible for passing federal laws, both chambers have different powers and responsibilities. The legislative process involves bills being considered and voted on by both houses, with the potential for vetoes and overrides by the President and the chambers.

Amendments to the Constitution are possible and have been made, including significant changes in 2008 and 2020. However, updating the fundamental provisions of the Constitution requires the adoption of a new Constitution by the Russian Constitutional Assembly or by popular vote.

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