The Process of Codification in Russia:
Lessons Learned from the Uniform
Commercial Code
Peter B. Maggs”
On the basis of his participation in the drafting of
uniform legislation in the United States and the codifi-
cation of civil law in Russia and its neighbouring states,
the author draws conclusions about the virtues and
dangers of the process of drafting uniform legislation.
The greatest virtue of creating uniform legislation is
that the process can unite legal talent from the various
states or subjects of a federal system. The resulting
code can thus bring not only the benefits of uniformity,
but also of quality. On the basis of quality, a codifica-
tion can spread beyond the borders of the originating
state, as was the case with the nineteenth-century Eng-
lish Sale of Goods Act, Article 9 of the Uniform Com-
mercial Code, and the Civil Code of the Russian Fed-
eration.
However, there are dangers in borrowing codifi-
cations. A common law jurisdiction can borrow a codi-
fication from another common law jurisdiction because
they share basic legal assumptions and can make crea-
tive use of case law in the codifying jurisdiction. Russia
was wise to reject the idea of borrowing from common
law jurisdictions and to draw heavily on its own history
and the civil law tradition in creating a civil code. Now
it faces the difficult task of effective implementation of
a market-oriented code in an economy suffering from
seventy years of centralized mismanagement.
Ayant particip6 i l’61abomtion d’une 16gislation
uniforme aux ttats-Unis et a la codification du droit ci-
vil en Russie et chez ses voisins, l’auteur formule dans
le present article ses conclusions quant aux avantages et
dangers du processus d’61aboration d’une 16gislation
uniforme. Le plus grand avantage d’une 16gislation uni-
forme est que son processus de creation permet de r6-
unir les meilleurs 16gistes des divers Etats ou sujets
d’un syst~me frdral. Le code qui en rsulte apporte
ainsi les avantages d’uniformit6 mais aussi de qualit6.
Par sa qualit6, une codification peut s’6tendre au-delh
des fronti~res de l’ttat dont elle est issue, comme il a
6t6 le cas avec le Sale of Goods Act anglais du 19′ si6-
cle, l’article 9 du Uniform Commercial Code et le Code
civil de la Fidration russe.
Cependant, il existe des dangers dans l’emprunt
des codifications 6trang~res. Une juridiction de com-
mon law peut emprunter une codification d’une autre
juridiction de common law puisqu’elle en partage les
principes juridiques fondamentaux et peut faire un
usage cr~atif des arrts jurisprudentiels dans la codifi-
cation de ses lois. La Russie a eu raison, dans la crda-
tion de son Code civil, de ne pas s’inspirer des juridic-
tions de common law mais plut6t de faire appel ii sa
propre histoire et auxjuridictions de droit civil. Elle fait
maintenant face A la difficile thche de mettre en oeuvre
un code conqu pour une 6conomie de march6 dans un
pays dont l’6conomie souffre de soixante-dix anndes de
gestion centralisde mal dirigde.
” Peer and Sarah Pedersen Professor of Law, University of Illinois at Urbana-Champaign. A.B.
(Harv., 1957), J.D. (Harv., 1961).
McGill Law Journal 1999
Revue de droit de McGill 1999
To be cited as: (1999) 44 McGill L.J. 281
Mode de rff&ence: (1999) 44 R.D. McGill 281
282
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 44
Introduction
I. Model Legislation or Federal Legislation?
II. Borrowing and the Drafting Process
Ill. The Code and Prior Legislation
IV. Status of the Codes
V. The Code and Local Laws
VI. Protecting the Code from Other Law
VII. The Code and the Constitution
VIII. The Code and International Law and Treaties
IX. Who Interprets the Code?
X. The Other Codes-The Transplant Transplanted
Conclusion
References
1999]
RB. MAGGS – THE PROCESS OF CODIFICATION
Introduction
The detailed provisions of the United States’ Uniform Commercial Code
(“U.C.C.”) cannot be exported to countries of other legal traditions. However, the
American experience may be instructive in outlining what problems to avoid and what
guidelines should be adopted for any country attempting to codify its commercial
legislation. In particular, the U.C.C. may inform the current Russian experience with
its Civil Code. Such a comparison is appropriate given that both the United States and
Russia are federations whose respective neighbours share similar legal traditions-
Canada on the one hand, and the newly independent states that emerged from the Rus-
sian/Soviet empire on the other.
There are a number of very different reasons for the promotion of uniform com-
mercial legislation. One popular justification is the general convenience of having a
single set of rules for transactions taking place in various jurisdictions. Codification
also provides an opportunity for modernization of the law. In the United States, recent
U.C.C. drafting projects have been devoted largely to accommodating the computeri-
zation of business transactions. In Russia, codification included the obvious task of
accommodating the country’s transition to a market economy. Experience with the
uniform law drafting process both in the United States and in Russia, however, shows
the overriding importance of an entirely different reason for the promotion of uniform
commercial legislation.’ Law reform, including legal drafting, is an immensely com-
plicated and expensive task, particularly when attempted at the local level.’ When the
Soviet Union fell, the number of persons qualified to draft market economy-oriented
civil legislation was very limited because the Soviet legal system had been largely
based on criminal and administrative law. The civil law which did exist served mainly
to assist the operation of the state planning system. Because the small group of ex-
perts in civil law was concentrated in Moscow and a few other large cites in Russia,
very few of the eighty-nine constituent subjects of the Russian Federation-and very
few of the former Soviet republics-had the legal expertise required to draft a com-
plex code governing business relationships. The United States has always had many
more legal professionals than Russia, and a much higher percentage of American
lawyers have had substantial experience in commercial matters. Nevertheless, the vast
majority of American states lack a sufficient number of legal experts who are able and
willing to draft codifications that have the magnitude of the U.C.C. Thus, purely
‘ The author has had the opportunity to participate in the drafting process in the United States as a
member of the American Law Institute, Members Consultative Groups on Uniform Commercial
Code Articles 2 (Sales), 2A (Leases), and 2B (Licenses); on Restatement (Third) of the Law of Unfair
Competition (1995); and as co-reporter for the Uniform Simplification of Land Transfers Act (1976).
In addition, he has had the opportunity to observe the drafting process in Russia and its neighbours as
a participant in various programs financed by the United States Agency for International Develop-
ment.
2 See R.A. Posner, “The Cost of Rights: Implications for Central and Eastern Europe-and for the
United States” (1996) 32 Tulsa L.L 1.
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practical considerations in both countries have dictated that legislative drafting be
done on a nation-wide basis rather than at the local level.
I. Model Legislation or Federal Legislation?
Once a decision was made to draft commercial legislation on a nation-wide basis,
a decision had to be reached on how uniform legislation was to be enacted. In the
United States, this decision was made in the late nineteenth century, at a time when
prevailing constitutional doctrines limited federal power to enact commercial legisla-
tion. The influential members of the legal profession at the time concluded that the
best approach would be to draft uniform legislation for enactment by each individual
state. The 1993 Constitution of the Russian Federation gave the federal government
exclusive jurisdiction to enact legislation on civil law. It is likely that at the time this
provision was drafted, the drafters realized that it would be impossible to push a mar-
ket-oriented code through many of the legislatures of the eighty-nine subjects of the
Russian Federation, and hoped that the 1993 elections would produce a majority of
“reformers” in the State Duma. In addition, the drafters hoped that the Civil Code of
the Russian Federation’-and the similar Model Civil Code drafted under the aus-
pices of the Interparliamentary Assembly of the Commonwealth of Independent
States-would serve as a model for the codes of other newly independent states.
II. Borrowing and the Drafting Process
Both the American and the Russian experience suggest that the key to efficient
drafting is borrowing. In the United States, this practice started early, most notably
with the borrowing of the English Sale of Goods Act’ by Professor Samuel Williston’
in the drafting of the Uniform Sales Act for the National Council of Commissioners
on Uniform State Laws.7 The Western European tradition came to the U.C.C. through
its principal drafter, Professor Karl Llewelyn, who had strong ties to Germany.! The
result has been an extensive discussion and debate on the nature of the debt owed by
the U.C.C. to the European civil law tradition. Similarly, the Drafting Commission
Part I was enacted in 1994: Sobranie zakonodatelstva R.E (1994) No. 32, item 3301; and Part 2
was enacted in 1995: Sobranie zakonodatelsiva R.E (1996) No. 5, item 410 [hereinafter C.C.R.F.].
For the English-language translation, see RB. Maggs & A.N. Zhiltsov, eds., The Civil Code of the
Russian Federation, trans. RB. Maggs & A.N. Zhiltsov (Armonk, N.Y: M.E. Sharpe, 1997).
‘ On the long and honourable history of borrowing, see A. Watson, Legal Transplants: An Approach
to Comparative Law, 2d ed. (Athens: University of Georgia Press, 1993).
1893 (U.K.), 56 & 57 Vict., c. 71.
S. Williston, “The Law of Sales in the Proposed Uniform Commercial Code” (1950) 63 Harv. L.
Rev. 561.
7 3B Uniform Laws Annotated (West 1992) 479.
SW. Twining, Karl Llewellyn and the Realist Movement (London: Weidenfeld & Nicolson, 1973).
9 See e.g. R Winship, “As the World Turns: Revisiting Rudolf Schlesinger’s Study of the Uniform
Commercial Code In the Light of Comparative Law” (1996) 29 Loy. L.A. L. Rev. 1143; W.D. Hawk-
1999]
RB. MAGGS – THE PROCESS OF CODIFICATION
285
that prepared a civil law codification in late nineteenth-century Russia relied heavily
on foreign sources.” The same was true in the preparation of the 1922 Civil Code of
the Russian Soviet Federated Socialist Republic, portions of which reproduce, for in-
stance, articles of German and Swiss codes almost verbatim.”
The borrowing of statutory language presents particular problems when that lan-
guage is the subject of judicial and scholarly interpretation in the home country. Be-
cause American courts were well aware of the English precedents in contract and
sales law, the Uniform Sales Act brought along with it much of the English case law
which was embodied in and had been used to interpret the Sale of Goods Act.” The
case law was in English and both the case reports and the leading English treatises
summarizing the law were readily available in the United States. The common law
provinces of Canada have been able to draw on the Uniform Commercial Code.’3 Due
to the shared legal tradition, common language, and availability of materials, they can
interpret U.C.C. Article 9 in its full context:
The PPSA [Personal Property Security Act] has its genesis in the Uniform
Commercial Code … of the United States and is modelled on it. It is fitting and
instructive to see what the American formulators, academic writers and juris-
prudence have to say on the subject.’
However, foreign law transplanted into the Russian system has generally come
without accompanying case law. There are three reasons for this: first, Russian legal
thought is less receptive to case law than the legal thought of the Netherlands and
Germany, the principal sources from which Russia borrowed, and certainly much less
receptive to case law than the legal thought of the United States. Second, the case law
related to foreign statutory sources is available only in foreign languages in Russia,
but only a handful of Russian lawyers know Dutch, few can read German, and even
fewer are comfortable with Anglo-American legal terminology. Third, almost no Rus-
sian lawyers or judges have access to usable collections of foreign legal materials.
A poignant example of the problems of transplanting legal institutions without
their accompanying case law can be seen in the pledge (zalog) provisions of the
land, “The Uniform Commercial Code and the Civil Codes” (1995) 56 La. L. Rev. 231; R.M. Bux-
baum, “Is the Uniform Commercial Code a Code?” in U. Drobnig & M. Rehbinder, eds., Rechtsreal-
ismus, Multikulturelle Gesellschaft und Handelsrecht (Berlin: Duncer & Humbolt, 1994) 197; B. Ko-
zolchyk, “The Commercialization of Civil Law and the Civilization of Commercial Law” (1979) 40
La. L. Rev. 3; H. Kripke, “The Principles Underlying the Drafting of the Uniform Commercial Code”
(1962) U. 11. L. Forum 321; and R.B. Schlesinger, “The Uniform Commercial Code in the Light of
Comparative Law” (1959) 1 Inter-Am. L. Rev. 11.
‘0 Redaktsionnaia komissiia po sostavleniiu grazhdanskogo ulozheniia, Svod Zamiechanii (1884).
“See G. Ajani, “By Chance and Prestige: Legal Transplants in Russia and Eastern Europe” (1995)
43 Am. J. Comp. L. 93.
See Williston, supra note 6.
See B. Geva, “Uniformity in Commercial Law: Is the UCC Exportable?” (1996) 29 Loy. L.A. L.
Rev. 1035 at 1035, n. 4.
” Royal Bank of Canada v. Agricultural Credit Corp. of Saskatcheivan (1994), 120 Sask. R. 205,
115 D.L.R. (4th) 569 (C.A.).
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[Vol. 44
C.C.R.F These provisions draw upon the model of German statutory law. But in
Germany, banks and their lawyers use methods to protect creditors’ interests in mov-
able property which rely on judicial practice rather than statute.'”
One reason that the U.C.C. is particularly unsuitable for foreign adoption is be-
cause it assumes the existence of large bodies of law outside the Code that contradict
and override the statute’s language. U.C.C. 1-103 provides for applicable supple-
mentary general principles of law:
Unless displaced by the particular provisions of this Act, the principles of law
and equity, including the law merchant and the law relative to capacity to con-
tract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion,
mistake, bankruptcy, or other validating or invalidating cause shall supplement
its provisions.
Such a provision would not be problematic for a Canadian province adopting its own
version of Article 9 since the common law provinces of Canada have inherited the
same general principles of law from England as from the United States. However, the
reliance on general common-law principles obviously would create difficulties for the
Russian adoption of Article 9.
These difficulties make one wonder why anyone would even think of transplant-
ing the U.C.C. to Russia. One Russian author notes that at one time, Soviet propa-
ganda considered the U.C.C. to be an American capitalist imperialist plot.” To some
extent the Soviet propagandists were right in their apparently ridiculous charge that
the United States government would try to replace Soviet law with the U.C.C. The
United States government actually spent a huge sum of money translating the U.C.C.
into Ukrainian in a project that envisioned the verbatim adoption of its language in
Ukraine.”
III. The Code and Prior Legislation
The relation of the U.C.C. to prior legislation was a much smoother process in the
United States than the equivalent relation in Russia. While the U.C.C. replaced nu-
merous prior uniform laws-such as the Uniform Sales Act and the Negotiable In-
struments Law’—-it merely fine-tuned the free market policies already in effect in the
” See J. Hausmann, “The Value of Public-Notice Filing Under Uniform Commercial Code Article
9: A Comparison with the German Legal System of Securities in Personal Property” (1996) 25 Ga. J.
Int’l & Comp. L. 427.
6 A.S. Komarov, “The Uniform Commercial Code: A Russian Point of View” (1996) 29 Loy. L.A.
L. Rev. 1085.
‘” “New Project Will Expand Your Practice Overseas” BCD News and Comment (16 May 1995),
online: LEXIS (News Library, ARCNWS); and personal interviews by the author with the sponsors
of the translation project.
,” 3B Uniform Laws Annotated (West 1992) 506. The Law was approved by the Commissioners in
1896. It is no longer in force anywhere.
1999]
RB. MAGGS – THE PROCESS OF CODIFICATION
United States.’9 Furthermore, the fact that the U.C.C. preserved much of the common
law-for instance, by maintaining contract law as a background to sales law-helped
to minimize transition problems. The C.C.R.F had the revolutionary purpose of pro-
viding a comprehensive replacement for the laws of the Soviet command economy
and the hastily drafted legislation of the post-Soviet years. The C.C.R.F alone, how-
ever, lacked both the breadth of coverage and the detail necessary to replace all prior
legislation. For this reason, the transition provisions enacted with each part of the
C.C.R.F. provided for the survival of various parts of the former legislation. Such pro-
visions were the result of a combination of logic and politics. Logically, certain provi-
sions of the 1964 Civil Code of the Russian Soviet Federated Socialist Republic,’ the
1991 Fundamentals of Civil Legislation of the U.S.S.R. and Union Republics,’ and
various other legislative acts were repealed because the C.C.R.F. covered the same is-
sues in more detail and better reflected the market-oriented policies of the mid-1990s.
Some businesses and organizations chartered under repealed laws were required to
reorganize in the new corporate forms of the C.C.R.F. However, politics prevailed in
postponing the need to reorganize most businesses until specific additional statutes
were enacted. This concession was sought and obtained by those who had seized
control of privatized state industries and had cleverly drafted corporate charters to
protect their control against dissident shareholders and hostile takeovers.
By far the most important political feature of the transition legislation was the
postponement of the effect of the C.C.R.F.’s chapter on private land ownership until
the passing of the Land Code of the Russian Federation.” The draft of Part 1 of the
C.C.R.F. included a chapter providing for full private ownership of land. Since the
Communist Party and its agrarian allies opposed private land ownership, President
Yeltsin had to accept a compromise under which Parliament adopted Part 1 of the
C.C.R.F, but suspended the chapter on land ownership until the adoption of a Land
Code. The issue of private land ownership-particularly involving agricultural land-
has remained deadlocked between the President and the State Duma ever since 1994.
At one point, Duma purportedly passed a Communist-sponsored version of the Land
Code over Yeltsin’s veto, but Yeltsin claimed that Duma had allowed absentee voting
in violation of its own rules. As this article is being written, no resolution of the
deadlock has been found. Land law is highly controversial, even in the United States.
Efforts by the National Council of Commissioners on Uniform State Laws to create a
“Uniform Land Transactions Act” were largely unsuccessful.
‘” However, one commentator, perhaps presciently, warned that the U.C.C. drafting process might
be captured by banking interests: EK. Beutel, ‘The Negotiable Instruments Act Should Not Be
Amended” (1932) 80 U. Pa. L. Rev. 368.
20 Vedomosti S”ezda Narodnykh Deputatov R.E i Verkzovnogo Soveta R.E (1964) No. 24, item 406
[hereinafter 1964 Civil Code].
2 Vedomosti S”ezda Narodnykh Deputatov S.S.S.R. i Verkhovnogo Soveta S.S.S.R. (1991) No. 26,
item 733 [hereinafter Fundamentals].
2 Vedomosti S”ezda Narodnykh Deputatov R.S.ES.R. i Verkhovnogo Soveta R.S.FS.R. (1991) No.
22, item 768.
288
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The long process of drafting the U.C.C. meant that both the bench and bar could
be familiarized with it over a period of decades. In contrast, the revolutionary speed
of change in Russia meant that there was no real time to teach or study the principles
of the C.C.R.F. before its enactment. The radical nature of the changes require that
lawyers and judges undergo extensive training. The Commercial Court system, with
financial support from the foreign aid community, has attempted to provide all of its
judges with literature and educational sessions on the new C.C.R.F Nevertheless,
some courts have lapsed into Soviet-era ways. The Deputy Chair of the High Com-
mercial Court has commented that not all judges have accepted the major changes
made by the C.C.R.E For instance, he notes that despite the fact that article 174
C.C.R.E clearly breaks with the Soviet principle of the restricted capacity of legal
persons, a number of lower courts are using creative contract interpretation to resur-
rect the ultra vires doctrine abolished by the C.C.R.FY One might compare some
much-criticized early decisions under the U.C.C. that seemed to resurrect pre-U.C.C.
law. 24
IV. Status of the Codes
Russian lawyers who like the new C.C.R.R call it the “Economic Constitution” or
the “Constitution of the Economy.”‘ This beatification of the C.C.R.F
is a political
statement which serves a number of different goals. Essentially, these lawyers are
trying to make a legal transplant on two levels. On one level, they have included many
provisions in the new C.C.R.F
that can be traced directly to Western European and
even American law. On another, higher level, they are trying to transplant into Russia
the exalted symbolic and formal role that civil codes enjoy in Western Europe and-
to a somewhat lesser extent-that the U.C.C. enjoys in the United States. In Soviet
times, the real power system was very much at odds with the formal structure of na-
tional legislation. As Russia has moved in the direction of the rule of law, the formal
hierarchy of sources of law, including the C.C.R.F, has taken on much greater im-
portance. The result is a changed situation for ex-Sovietologists. Previously, they tried
to penetrate Communist secrecy to find out how the law really worked. Now, with
most of the secrecy gone and the rule of law emerging, they are paying increased at-
tention to normal legal structure.
The C.C.R.E caps a century of efforts to modernize Russian civil legislation. In
the early years of the twentieth century, a Russian government commission published
a civil law codification in draft form, along with extensive commentary. War and
revolution prevented this draft from becoming law, but the drafters of the Civil Code
of the new economic period drew on it-along with foreign sources-in a hasty effort
,3 V. Vitrianskii, “Novyi grazhdanskii kodeks i sud” (1997) Khoziaistvo i pravo 6.
24 See e.g. Roto-Lith, Ltd. v. ER Bartlett & Co., Inc., 297 E2d 497, 1 U.C.C. Rep. Serv. 73 (1st Cir.
1962).
, A. Makovsky, “Est’ Kodeks?! (o priniatii Gosudarstvennoi Dumoi vtoroi chasti Grazhdanskogo
kodeksa Rossiiskoi Federatsii)” (1996) Ekonomika zhizn’ 1 at 39.
1999]
RB. MAGGS – THE PROCESS OF CODIFICATION
to provide a legislative basis for the emerging free market. The Civil Code was copied
either closely or verbatim in the other Soviet republics. In 1936, perhaps to signify re-
newed emphasis on law as a force for organizing society, the Stalin Constitution in-
cluded a provision for replacing the republic codes with a U.S.S.R. Civil Code. Rus-
sian experts in civil legislation continued to work on the drafts for a decade. Eventu-
ally, the Constitution was amended to provide for the passage of “fundamental princi-
ples” of civil legislation at both the national and republic levels. The result was the
emergence of new republic codes in the 1960s. Then, during the dying days of Soviet
power in the summer of 1991, the Soviet Union formally adopted the Fundamentals,6
scheduled to take effect in 1992. However, the legislation did not proceed as planned,
but the Russian Republic passed legislation putting these Fundamentals into effect
temporarily, pending passage of a Russian Civil Code.
None of the post-Stalin codifications were suitable for a market economy, so the
post-Soviet regime made the passage of the C.C.R.R a high priority. The legislation is
divided into three parts. Part 1 was enacted in 1994, Part 2 in 1995, but Part 3 still had
not been enacted as of July 1999. The division into parts was purely a matter of prac-
tical expediency. The need for legislative reform was great, so the President’s office
made the decision to push for the enactment of Part 1 of the C.C.R.F. in the fall of
1994, and to move ahead again and enact Part 2 in the fall of 1995. Part 3 of the
C.C.R.F appeared to have a relatively low priority, perhaps because only minor
changes were made to existing law. ‘ There has been no rush to complete and submit it
to Parliament. Hence, the 1964 Civil Code and the 1991 Fundamentals continue in
force for the few areas not covered by Parts 1 and 2 of the new C.C.R.F With the pas-
sage of Part 3, Russia will have-in creating a comprehensive Civil Code-finally
achieved the dream of civil law reformers of the late imperial period.
In the United States, the drafters of the U.C.C. faced a long and difficult political
process in attempting to get the U.C.C. adopted by the individual states. However, this
process ensured respect for the U.C.C. because it encouraged universal acceptance of
the legislation.” In Russia, because of the enduring public memory of the mock legis-
lative process of the Soviet period, the task of earning respect for the C.C.R.E will be
much harder.
16 Supra note 21.
2’ The draft Part 3 of the C.C.R.E deals with intellectual property, inheritance, and private interna-
tional law. The intellectual property provisions summarize the existing rules of the copyright, patent,
and trademark statutes. The inheritance provisions continue the existing rule of freedom to dispose of
property by will-subject to certain rights for family members and dependents. The private interna-
tional law provisions incorporate constitutional norms on the force of international treaties, and con-
tinue the approach of prior legislation in setting up rather formalistic rules for dealing with conflict of
laws.
‘ Even Louisiana, the one civil law state, eventually adopted most of the U.C.C. See J. Zekoll, “The
Louisiana Private-Law System: The Best of Both Worlds” (1995) 10 Tul. Eur. & Civ. L. Forum 1.
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
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V. The Code and Local Laws
The changes that have taken place in federal-state relationships during the century
since the uniform-law movement started in the United States may be less than those
that have occurred in Russia since drafting of the C.C.R.F. began in the early 1990s.
At one time, the Russian President’s office saw the C.C.R.F as a way to overcome lo-
cal resistance to market economy legislation. More recently, however, the President’s
office has seen local legislation as a way to overcome Duma’s refusal to allow private
land ownership. Article 71 of the 1993 Constitution of the Russian Federation placed
civil legislation in the exclusive jurisdiction of the Federation.” Presumably the
meaning of “civil legislation” in the Constitution is the broad meaning generally in
use in 1993-which included statutes, executive edicts, and governmental resolutions.
In the United States, the U.C.C. has no force other than the prestige of its drafters to
ensure uniformity. The result has been the rise of numerous local variations. On paper,
the Russian constitutional scheme would appear to guarantee uniformity in private
law. The 1993 Constitution makes no differentiation among the various “subjects” of
the Russian Federation. However, in fact, there are both formal and informal differ-
ences in the powers of the subjects. Some of the subjects have won concessions from
the Federation by negotiation (e.g. Tatarstan) or force (e.g. Chechnya). It remains to
be seen if these concessions will threaten the superiority and unity of Russian private
law.
VI. Protecting the Code from Other Law
One of the greatest problems of Soviet law was the existence of multiple legisla-
tive authorities. The Supreme Soviet, its Presidium, the Council of Ministers, minis-
tries, and state committees all adopted legislation. The coordinating role of the Com-
munist Party reduced problems of conflict of authority, but this role has, of course,
disappeared. During the process of adopting the C.C.R.F. there was a struggle be-
tween Duma and the President over the future role of executive branch legislation.
The result was a Duma victory leading to the inclusion under article 3(2) C.C.R.F. of
a highly restrictive definition of “civil legislation”: “Civil legislation consists of the
present Code and other Federal statutes adopted in accordance with it … regulating the
relations indicated in Paragraphs 1 and 2 of Article 2 of the present Code” Previously
in Russian legal usage, the term “civil legislation” had included statutes, edicts by the
highest executive authority, and resolutions adopted by the government. Parliament
adopted the narrower meaning of the term “civil legislation” in order to limit the
power of the President and Cabinet. A number of provisions of the C.C.R.F. provide
only very general rules and indicate that the remaining rules on the particular subject
shall be those established by civil legislation. Because of the narrow definition of
“civil legislation”, only Parliament can establish supplementary rules in these areas.
“‘ Amendments to the previous Constitution had given more powers to the subjects of the Russian
Federation in matters related to civil law.
1999]
RB. MAGGS – THE PROCESS OF CODIFICATION
In practice, during the Soviet period, ministerial and state committee orders
tended to be enforced despite their lower rank within the theoretical hierarchy of legal
sources which gave statutes greater authority. This was because ministries were real
centres of power backing up their regulations. In an early decision, the U.S.S.R.
Committee on Constitutional Supervision made an important statement in favour of
the theoretical hierarchy of civil legislation, which placed the Civil Code at the top. It
applied provisions of the 1964 Civil Code relating to the sale of goods in order to in-
validate Ministry regulations that deprived consumers of their rights under the Code.
This decision to some extent characterized the Civil Code as a quasi-Constitution
following the end of the Soviet period.
Exclusion of outside law has been an issue for the U.C.C. as well. The general
principles embodied in U.C.C. 1-103 created problems for the banking industry
lobbyists who controlled the drafting of U.C.C. Article 4A (Funds Transfers).”‘ These
lobbyists were unable to obtain language in the text of Article 4A that would exclude
the operation of U.C.C. 1-103. They did, however, manage to ensure the inclusion
of the following language in the Official Comment to U.C.C. 4A-102:
Funds transfers involve competing interests-those of the banks that provide
fund transfer services and the commercial and financial organizations that use
the services, as well as the public interest. These competing interests were rep-
resented in the drafting process and they were thoroughly considered. The rules
that emerged represent a careful and delicate balancing of those interests and
are intended to be the exclusive means of determining the rights, duties and li-
abilities of the affected parties in any situation covered by particular provisions
of the Article. Consequently, resort to principles of law or equity outside of Ar-
ticle 4A is not appropriate to create rights, duties and liabilities inconsistent
with those stated in this Article.
Undoubtedly, the drafters of the C.C.R.F., like the drafters of Article 4A, would
have liked to immunize the C.C.R.F. against other legislation. The Constitution pro-
vides for two categories of laws: ordinary laws (requiring a simple majority for en-
actment, amendment, or repeal) and constitutional laws (requiring a two-thirds ma-
jority of the Duma and a three-fourths majority of the Federation Council for enact-
ment, amendment, or repeal). A constitutional law cannot be repealed or amended by
an ordinary law. The Constitution lists certain laws that must be passed as constitu-
tional laws. The C.C.R.F. is not among them-perhaps because the drafters of the
C.C.R.F. doubted their ability to obtain the number of votes required to pass a law al-
See generally A. Schwartz & R.E. Scott, “The Political Economy of Private Legislatures” (1995)
143 U. Pa. L. Rev. 595; K. Patchel, “Interest Group Politics, Federalism, and the Uniform Laws Proc-
ess: Some Lessons from the Uniform Commercial Code” (1993) 78 Minn. L. Rev. 83; E.L. Rubin,
“Thinking Like a Lawyer, Acting Like a Lobbyist: Some Notes on the Process of Revising UCC Arti-
cles 3 and 4” (1993) 26 Loy. L.A. L. Rev. 743; W.D. Warren, “UCC Drafting: Method and Message”
(1993) 26 Loy. L.A. L. Rev. 811; and E. Rubin, “Efficiency, Equity and the Proposed Revision of Ar-
ticles 3 and 4” (1991) 42 Ala. L. Rev. 551. But see D.J. Rapson, “Who Is Looking out for the Public
Interest? Thoughts about the UCC Revision Process in the Light (And Shadows) of Professor Rubin’s
Observations” (1994) 28 Loy. L.A. L. Rev. 249.
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol.44
lowing the C.C.R.F. to be included-given the predictably large size of the Commu-
nist bloc in the Duma. The Constitution is not clear as to whether or not the Duma, on
its own initiative, can pass constitutional laws on matters other than those for which
the Constitution requires such laws.” In any event, though, no attempt was made to
pass the C.C.R.F. as a constitutional law. The result is that while rhetoric deems the
C.C.R.F. an “economic constitution”, it is in formal terms merely a second class law.
Since the C.C.R.F. was headed for passage as an ordinary law rather than as a federal
constitutional law, the drafters attempted to exalt the status of the C.C.R.F. by includ-
ing the following language in article 3(2) C.C.R.E: “Norms of civil law, contained in
other statutes must [(dolzhny)] conform to the present Code” There are a number of
problems with this language. The Russian word dolzhny is ambiguous, and can mean
either “should” or “must”. It is likely that such ambiguity is deliberate because else-
where in the same article the language is clear and direct:
In case of contradiction between an edict of the President of the Russian
Federation or a decree of the Government of the Russian Federation and the
present Code or other statute, the present Code or respective statute shall be
applied. 2
Despite the language of article 3(2) C.C.R.F., under the rule lex posterior derogat legi
priori, later ordinary statutes will prevail over the C.C.R.F. whether or not they for-
meally amend it.” Hence, the drafters can only hope that the Russian Parliament will
preserve the integrity of the C.C.R.F. by always amending its text when passing leg-
islation which contradicts existing code provisions.
VII.The Code and the Constitution
Legislative codes, being mere laws, are subject to judicial review-both in the
Russian Federation and in the United States-for the purpose of determining their
“‘ L.A. Okun’kov et al., eds., Kommentarii k Konstitutsii Rossiiskoi Federatsii (Moscow: B.E.K.,
1994). Compare the comments to art. 76 (by A.V. Mitskevich) and to art. 108 (by A.I. Abramova &
T.N. Rakhmanina). The commentary to art. 76 is silent on the issue of the possibility of Duma-
initiated constitutional laws. The commentary to art. 108 indicates that the Constitution gives a an
“exhaustive list”. It is not debatable that the Constitution provides an “exhaustive list” of topics on
which constitutional laws must be enacted. It is not clear if the comment is just stating this truism or if
it is implying that laws not required by the Constitution to be enacted as constitutional laws may not
be so enacted. The issue is an important one even if the State Duma has not yet attempted to enact a
constitutional law on a topic where there is no requirement of a constitutional law. This is because the
Constitution lists only the titles of laws that must be constitutional laws. If such laws cannot contain
any matters that go beyond the scope indicated by their titles, then there is a fertile ground for consti-
tutional litigation.
‘,Art. 3(5) C.C.R..
‘ See e.g. Ministerstvo iustitsii Rossiiskoi Federatsii, Instruktivnoe pis’mo ot 03.07.95 N 06-112v-
95, regarding the C.C.R.R displacing provisions of the Code of Civil Procedure of the Russian Fed-
eration, Vedomosti S”ezda Narodnykh Deputatov R.E i Verkhovnogo Soveta R.E (1964) No. 24, item
407, as am. by Sobranie zakonodatelstva R.E (1995) No. 49, item 4696.
1999]
RB. MAGGS – THE PROCESS OF CODIFICATION
293
constitutionality. Because the U.C.C. is state legislation, it must meet the requirements
of both the state and federal
constitutions. In December 1997, the Russian Consti-
tutional Court declared a provision of the C.C.R.F to be unconstitutional,” Article 855
C.C.R.E provides for an order of payment of debts. For example, various creditors of
an enterprise may obtain court or administrative orders requiring payment of the
company’s debts out of its bank account. When new funds appear following the ex-
haustion of the account’s balance, the bank is supposed to make the accumulated
court and administrative orders in the priority specified by article 855 rather than on a
first-come, first-served basis. The Russian Parliament had amended the original ver-
sion of article 855 to subordinate tax claims to claims for unpaid wages. Nevertheless,
in this particular case the tax authorities sent a letter to banks telling the banks to pay
them first. The issue went to the Civil Bench of the Supreme Court, which ruled that
the C.C.R.F. provision invalidated the tax law. The tax authorities appealed to the full
bench of the Supreme Court, which suspended the Civil Bench decision. The full
Bench sent a certified constitutional question to the Constitutional Court over issues
related to the order of payment under the C.C.R.F. because of the conflict of the con-
stitutional provisions entitling citizens to wages and requiring them to pay taxes. The
Constitutional Court, in a somewhat muddled opinion, found for the tax authorities
and invalidated the amended C.C.R.F. provision.
This particular case involved a political and economic issue of great importance.
Russia still has many money-losing state enterprises that cannot afford to pay both
their workers and taxes. The problems of unpaid back wages and taxes are the central
difficulties of Russian economic reform. The court’s decision in favour of fiscal re-
sponsibility may have been wise from the point of view of economic reform. The fact
that the Supreme Court referred this issue to the Constitutional Court helped to
stimulate worries that Russia would suffer from conflicts among its various court
systems in deciding constitutional questions.” However, the Constitutional Court’s
z’ Svendsen v. Smith’s Moving and Trucking Company, 429 N.E. 2d 411, 444 N.Y.S.2d 904 (C.A.
1981).
3″ Drafters of the U.C.C. have carefully tried to avoid federal constitutional problems, but commen-
tators have nevertheless suggested possible constitutional infirmities. See M.L. Moses, “The Uniform
Commercial Code Meets the Seventh Amendment: The Demise of Jury Trials under Article 5?”
(1997) 72 Ind. L.J. 681; and D.S. Karjala, “Federal Preemption of Shrinkwrap and On-line Licenses”
(1997) 22 U. Dayton L. Rev. 511.
36 Decision on the Verification of the Constitutionality of art. 855(2) C.C.R.F and art. 15(6) of the
Federal law On the Fundamental Principles of the Tax System of the Russian Federation in Connec-
tion With an Inquiry from the Presidium of the Supreme Court of the Russian Federation, 23 Decem-
ber 1997, No. 21-P (available in KODEKS, database 90). For information on the KODEKS Russian
law databank, see online: Advanced Legislation Database of Russia On-line
(date accessed: 23 May 1999).
” See P. Krug, “Departure from the Centralized Model: The Russian Supreme Court and Constitu-
tional Control of Legislation” (1997) 37 Va. J. Int’l L. 725; and EB. Maggs, ‘The Russian Courts and
the Russian Constitution” (1997) 8 Ind. Int’l & Comp. L. Rev. 99.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 44
confusing and unconvincing reasoning raises some uncertainty about the fate of other
CC.R.F. provisions in future proceedings.
VIII. The Code and International Law and Treaties
Treaties, such as the United Nations Convention on Contracts for the Interna-
tional Sale of Goods,”5 prevail over code language in both the United States and Rus-
sia. The Convention is self-executing in the United States” as well as in Russia. This
is reflected in the text of the Constitution and under article 7 C.C.R.F., which ad-
dresses the Code’s relationship to norms of international law:
Generally recognized principles and rules of international law and the interna-
tional agreements of the Russian Federation are, in accordance with the Con-
stitution of the Russian Federation, a constituent part of the legal system of the
Russian Federation.
International treaties of the Russian Federation shall be applied to the relations
indicated in Paragraphs I and 2 of Article 2 of the present Code directly, except
in cases when, from the international agreement, it follows that the issuance of
a domestic state act is required for its application.
If an international treaty of the Russian Federation has established rules other
than those that are provided by civil legislation, the rules of the international
treaty shall be applied.’
While the C.C.R.F. may be characterized as a “Constitution for the economy” inter-
national agreements of which Russia is a party remain a more authoritative source of
law than the C.C.R.E and the Constitution of the Russian Federation. Many law-
yers-myself included-think that a primary feature of commercial law in the
twenty-first century will be unification on an international level. Inevitably, this unifi-
cation will diminish the importance of national codes, and at the same time cause such
codes to be brought in conformity with international rules.
IX. Who Interprets the Code?
The method of enactment of the U.C.C. in the United States has produced serious
problems for the goal of uniform interpretation. The existence of a Permanent Edito-
rial Board with the power to recommend changes to overcome “bad” court decisions
S11 April 1980, 1489 U.N.T.S. 3.
‘See R.E. Speidel, “The Revision of UCC Article 2, Sales in Light of the United Nations Conven-
tion on Contracts for the International Sale of Goods” (1995) 16 Nw. J. Int’l L. & Bus. 165; and P
Winship, “Domesticating International Commercial Law: Revising U.C.C. Article 2 in Light of the
United Nations Sales Convention” (1991) 37 Loy. L. Rev. 43.
40 This article presents a difficult problem of translation and interpretation. Does the Russian word
dogovor, here translated as “agreement”, include executive agreements that have not been ratified by
Parliament? If not, are they included indirectly because generally recognized principles of interna-
tional law require that states obey executive agreements?
1999]
RB. MAGGS – THE PROCESS OF CODIFICATION
295
provides at least partial relief. Likewise, the existence of a permanent civil law draft-
ing group in the Russian President’s office offers a method for correcting problems of
interpretation of the C.C.R.F. The United States has managed to survive under a sys-
tem where each state’s court system and the various Federal Courts of Appeal inter-
pret the U.C.C. In Russia, the Supreme Court and the High Commercial Court are
courts of last resort that operate closely in the interpretation of the C.C.R.F. For in-
stance, on July 1, 1996 the Plenum of the Supreme Court and the Plenum of the High
Commercial Court jointly adopted an important resolution on the application of Part 1
of the C.C.R.F.” The Constitutional Court has interpreted the 1964 Civil Code in de-
ciding the constitutionality of particular provisions. 2 In deciding the case discussed
above, it necessarily had to interpret the Civil Code.
X. The Other Codes-The Transplant Transplanted
With the exception of Louisiana, the U.C.C. is virtually untransplantable to a non-
common law jurisdiction. Russian private law, in contrast, is proving quite transplant-
able to the private law systems of its neighbours that share a common legal back-
ground. During the Soviet period, Russian private law specialists dominated the proc-
ess of codification not only in Russia, but also in the other republics. Both the first and
second generation of republic codes copied the Russian codes closely. The Funda-
mentals were drafted by a group generally represented by the Russian Federation and
the other republics. In 1994, many of the survivors of this group along with some
younger legal scholars began work on a Model Civil Code of the Commonwealth of
Independent States. Part 1 of the Model Code closely followed the already-drafted
C.C.R.F. Parts 2 and 3 of the Model Code were drafted in parallel with the C.C.R.F. so
that the ideas of leading lawyers from Kazakstan, Ukraine, and other newly independ-
ent states found their way into the C.C.R.E. It now seems likely that most of the for-
mer Soviet republics (Georgia is an exception) will adopt some variation on the
Model Code or the C.C.R.F. The reason is simple: the C.C.R.F. and the Model Code,
while oriented toward a free market, use familiar terminology, concepts, and institu-
tions. They will be much easier to digest for a bench and bar trained in the Soviet era.
This is a wise choice and it reflects the decision of the American states in the early
” Postanovlenie “0 netokotorykh voprosakh sviazannykh s primeneniem chasti pervoi Grazhdan-
skogo kodeksa Rossiiskoi Federatsii” Rossiiskaia gazeta (vedomstvennoe priolozhenie) (10 August
1996) 12.
1? Konstitutsionnyi Sud Rossiiskoi Federatsii, Opredelenie ot 27 sentiabria 1995 goda, “Ob otkaze v
priniatii k rassmotreniiu zhaloby grazhdanina Kozyreva Andreiia Vladimirovicha” Rossiiskaia gazeta
(22 November 1995) 3 (role of courts with respect to art. 7 of the 1964 Civil Code, now art. 152
C.C.R.F.); and Konstitutsionnyi sud Rossiiskoi Federatsii, Postanovlenie ot 16 ianvaria 1996 goda N
I-P, “Po delu o proverke konstitutsionnosti chastei pervoi i vtoroi stat’i 560 Grazhdanskogo kodeksa
R.S.FS.R. v svizi s zhaloboi grazhdanina A.B. Naumova” Rossiiskaia gazeta (25 January 1996) 6.
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 44
nineteenth century not to abandon the English common law in favour of the Napo-
leonic Code.3
Conclusion
Whatever the political arguments, there is one technical reality. While in the ma-
jority of former Soviet republics codes are still drafted in the Russian language, they
are now created using American word processing programs and all drafters have ac-
cess to electronic mail. The result is an acceleration of the process of mutual influence
as legislation moves from republic to republic much more quickly. Likewise, in the
United States, drafts of the U.C.C. are posted on the Intemet” and debated in Internet
discussions groups and in private electronic mail correspondence. These improved
communications can serve to speed up and democratize the process of modernization
and unification of commercial legislation.
” As an administrator of United States foreign aid contracts, I tried to support the Model Code
drafting effort, but met continued resistance from those in the United States government who thought
that the Model Code was part of a conspiracy to re-establish the U.S.S.R. I argued quite the contrary,
that the speedy adoption of an easily absorbable legal basis for a market economy would be the best
means of avoiding a lapse back into Communist central power.
” See online: Uniform Law Commissioners Drafts
(last modified: 20 May 1999).
1999]
RB. MAGGS – THE PROCESS OF CODIFICATION
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