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Borisova, Tania & Simons, William

The others and law: Is the legal field immune from particularities in a globalizing world?

The Cold War was played out on diverse fronts; however, they generally did not include law. And after the end of the Soviet era, there seemed to be little about which to argue—certainly, in the field of civil private law. Freedom of contract and her allies were the undisputed champions; by default, since there were no viable alternatives that could be carried over from the old system into the new non-Soviet one.
Nothing about which to argue—with one major exception: "trust" (траст). The Western “victors” had little doubts: this mechanism should be added to post-Soviet law. But Russian domestic legal thinkers were of a different mind: adamant that it should remain on the outside; and it has remained in the cold but for a brief flirtation period in the early 1990s, pushed more by money and free marketers than by the Russian legal community.
How much was this Russian resistance a result of attitudes from the old Cold War slipping through into the new times? Or has the failure of trust to take root in Russia been the result of institutional inertia; of national pride and the specifics (spetsifika) of Russian law mixed with an image of high-handed western consultants and the reality of an infant Russian property law: of the coincidence that there were domestic alternatives to trust while there were none in other areas where Western constructs were set up on the new Russian legal landscape (such the “corporate veil piercing” doctrine)?
In considering this question, the authors tentatively conclude that the trust battle was affected by remnants of Cold War propaganda; this “old thinking” can be observed on both sides of the ideological fence; however, the authors remain aware of the difficulty in meaningfully measuring the extent of Cold War influence on the trust matter.

 

Friday 30 Oct 16.15-18.15 Session 6
Panel: Law II/ Round table: Remnants of Cold War Policy Making over the Past Two Decades: Has There Been Peace Dividend?