Well, I am not sure I know the answer to this question.
But I can try to break it down into a number of derivative questions and observations to shape the landscape for that answer.
What I can only offer in the next few minutes is a part of the Balkan perspective on these issues. I will try to articulate the discreet concerns of some of my Balkan colleagues- that means I will try to translate to you the whisper of the fish from my pond so that you understand us better. Whether a drop of that pond reflects the whole ocean is up to you to decide. And I do hope for a degree of a cultural handshake.
I gladly accept and enjoy the new horizons that high-tech has brought into our business. But the crucial defining question here is Who is in the center of our professional universe: is it still the simple man on the street or is it the big corporations and the financial markets – just because the big money is there? We cannot avoid that crucial starting dilemma- it is as important as having a compass of values. I am not saying our universe has only a center but we should remember who is on the top. In my view it is not the richest client. And our priority should not be to look professionally sexy to that rich client- at any price and by all means.
My next assertion is that the social function of our profession has significantly changed in the last 20 years.
We are living in a deluge, in a flood of law provisions, in a so called lex-slide (not a mudslide but a lex-slide) which has overwhelmed the simple man on the street and that simple man has given up hope to understand the law. He is looking for guidance at us. From his perspective we have become the initial voice of law. He does not read the Official Paper. We are his oxygen mask through which he breathes his rights and obligations. For the ordinary citizen we have become a crucial part of his judgment capacity for good and bad, like the Apple tree in the Garden of Eden. We are the traffic lights for his social movements. This is a major change in the social function of our profession.
Long gone in the history books are the values of a single universal law-like the great European codes of the 19th century. Since we are in Vienna may I recall that in 1896 a famous Austrian lawyer Dr. August Pleschner transformed the Austrian Civil Code of 1811 into poetic verses so that it became understandable to the common people. Today this legal poem sounds like a fairy tale. Can you put in verses for example the recent General Data Protection Regulation? That would be a big fun, wouldn’t it?
Yet much has not changed in the last 20 years. The confidence between client and lawyer remains a confidence between human beings. Professional trust is still addressed to humans only. If we forget that simple truth, our guess game on legal high tech will look like the king’s new clothes.
Another observation of mine is that The high-tech role in our profession has its limits and its shadow.
Yes, high-tech is a premise for the adequate office environment. Yes, high-tech does facilitate access to information, to communication, to research and reference, even analysis and decision making, but it also carries its shadow of additional cost. I can hardly see why the high-tech component of our work should be translated into cheaper fees.
The magic of our profession is still that seed of creativity, that mental blitz of association and that unexpected counter-point in the court room. To put it short: There is no Spiritus Sanctus in our high-tech equipment. A cognitive Watson computer is not a substitute for fair judgement and common sense. Our service is no parallel to the high-tech industry machines which make the product cheaper.
Yet we should not be uneasy to discuss openly our fees.
Our fees should be fair, transparent and justified leaving no frustration residue in the client. Services and fees are not a part of a poker game in a casino. Here is the fine difference b/n making money and taking money. The client should not be reminded of that famous Shakespeare quote from Henry VI where the rebels call: First Let us kill all the lawyers!
To sum it up: There is no simple and single answer to the issues of my topic. May be the truth is among the following factors:
To start with the obvious: Our profession remains a delicate balance between a competitive trade and a social mission. We should not devalue our efforts by charging absurd and dumping fees. But we are also conscious of our vocation and responsibility to help the ordinary man survive the legal avalanche. Hence we should probably consider stepping up our free of charge service to society like popular newsletters, media interventions, early warnings or simply free advice.
But we should also send alarm signals to governments that due to their sheer overdose, the legal provisions are turning from medicine into poison. And high-tech is not the antidote. First the contamination should stop.
And we are confronted with some challenges where high-tech is not the answer: We should not be afraid to concede that there is no solution for all. No place for everybody in the high-tech sky. We cannot be all sky-walkers. Some of us will not survive the competition and will drop out of the market. We should be spiritually prepared for a dignified retreat. A precious human skill is the management of one’s own sunset. I mean that art of soft landing due to fuel exhaustion. But that is not easy to achieve in a professional life which is often marked by a noisy loneliness.
Of course we cannot be prepared for everything that will come. We should save at least 10% of our spiritual capacity and resilience as a reserve to meet the unpredictable future. Especially now when it seems that the winners of the cold war are losing the cold peace.
Do you know what the greatest mistake was which some Balkan lawyers made in the 1990s (myself included)? That mistake was that we rushed to look western. We forgot the first Columbus rule that He who goes too far to the west will certainly turn up in the east. So we made the full circle and found ourselves back into our eastern shoes. Let us be what we are and what God has made us to be. There is merit in staying a bit behind and learning from the mistakes of the front runners. But not too far behind
We remember well that great generation of western lawyers of the 1990s who fascinated us and baptized us in the IBA standards. For example I can recall the legal team of a major multinational corporation who went for a team building on an expedition to the North Pole! Yes, to the North Pole. Now their successors do their team building on the Caribbean Islands. Higher tech does not always mean harder characters.
The International Bar Association is a network of mutual understanding and of champions of freedom. We should not take these benefits for granted but we should constantly strive for them. Together.
Yet I do not perceive the International Bar Association as a brass band marching on a victory parade. From time to time we should speak about failure, defeat and disappointment and how we handle them in professional and human terms, not in high-tech terms.
Of course there are things beyond our control which we cannot impact. But to that end I would recall the most famous refrain of that famous Johann Strauss operetta The Bat = Die Fledermaus which sings:
Happy is the one who forgets
what he cannot change.
Gluecklich ist wer vergisst
was doch nicht zu aendern ist.
DANKE!
ranslation from Bulgarian.
from www.braykov.com, published in the Bulgarian “Capital Press on 08.12.2014
(NB: Pls note that in Bulgarian language the English words for justice/fairness have just one equivalent for both: “справедливост“.
1. “When a man means to give his attention to law (jus)q he ought first to know whence the term jus is derived. Now jus is so called from justitia; in fact, according to the nice definition of Celsus, jus is the art of what is good and fair. 1. Of this art we may deservedly be called the priests; we cherish justice and profess the knowledge of what is good and fair, we separate what is fair from what is unfair, we discriminate between what is allowed and what is forbidden, we desire to make men good, not only by putting them in fear of penalties, but also by appealing to them through rewards, proceeding, if I am not mistaken, on a real and not on a pretended philosophy”.
With these few lines by Ulpian start Justinian’s Digest of 533 AD – the collection of the whole ancient Roman law. For the jurisprudence they are what for the Bible is its first verse: “In the beginning God created the heavens and the earth”. These lines tell us that the divine spark of law is justice- that feeling for harmony with the balance in Universe.
And this is what Moses prescribes to Israeli judges /Deuteronomy 1:16-17/:
16. And I charged your judges at that time:
Hear the disputes between your brothers and judge fairly,
Whether the case is between brother Israelites
Or between one of them and an alien.
17. Do not show partiality in judging;
Hear both small and great alike.
Do not be afraid of any man,
For judgment belongs to God.
Prophet Isaiah adds /10:1/:
Woe to those who make unjust laws
And to those who issue oppressive decrees.
The same in other words comes from Christ in the New Testament /John 5:30/:
I judge only as I hear and my judgment is just,
For I seek not to please myself but him who sent me.
2. I recall with a bitter irony those communist party atheists who claimed Christ was unjust and even cruel to the poor referring to his words:
For everyone who has will be given more…and
Whoever does not have, even what he has will be taken from him.
/Mathew 25:29, Mark 4:25, Luke 8:18/
They did not want to understand this verse by the other one:
The man with two tunics should share with him who has none,
And the one who has food should do the same. /Luke 3:11/.
These miserables could not see the shining evangelical truth that in their favorite “exposing” quote Christ speaks not of money but of Faith: He who has Faith in his heart will be given more Faith and he who does not have- will lose even the small Faith he has. That is why our Orthodox cross starts from the forehead (the logos, the mind) but ends up and stays with the heart. That is why St. Paul in his Message to the Romans /12:3/ expressly speaks of: “…the measure of Faith God has given you”.
3. Conscience is the other face of justice. Conscience is that merciless inner voice which recognizes the evil in its subordinate soul- as an acting Last Judgment. “…Your eyes will be opened and you will be like God knowing good and evil”, speaks the serpent to Eva. Conscience is the living God in each of us. The fact that conscience is the same in all men and women proves that God is one. Without conscience there is no justice because conscience is the compass of justice. Only through my conscience I can judge whether a man is just and fair. Justice brings peace to conscience. That is why the biblical greeting “Peace be with you!” is a message of truth, justice and faith and not simply of non-violence. Without these three goods the absence of violence does not mean peace.
There is no peace in a country of a seven million population where about one million various court cases are pending. No matter that the weapons are silent. There is no way for one million bitter private wars, concerning at least two million people, to result into a common public peace- especially if these private wars do not end up fairly. That country does not need an international war. In such a judicial butchery the soul starts casting verbal bullets. Mathew the Evangelist has said it uniquely /24:12/: “Because of the increase of wickedness, the love of most will grow cold”.
St. Augustine asks: “What is a kingdom without justice if not a big gang of robbers? Aren’t robbery gangs small kingdoms”? In Bulgaria prof. Jivko Stalev said it even clearer: “A state of law without justice is a kind of organized crime”.
Justice/fairness is the light in the temple of law, it is the God of that temple. Each successful justice is a burning candle. The contrary means darkness. In Bulgarian language the word “priest” comes from “candle” and “saint”- from “light”. If there is no justice in the law how would you require it from the judge? When a judge applies an unjust law he turns himself into an ordinary paid executioner no matter whether he punishes the innocent or sets free the guilty or simply serves the monopolies. The judicial toga which is used as a cover of evil shall burn the soul of its tailor and of the one who wears it on.
The basic concept of law is freedom, the possibility to choose something according to your own will. A divine revelation is the self-governing freedom which in fact is the state of law.
4. Where is justice in the temple of Bulgarian law?
4.1. In the Bulgarian Constitution the word “justice” appears only in its preamble:
“…as we declare our loyalty to the universal human values: freedom, peace, humanism, equality, justice and tolerance.”
But the preamble is not a proper part of the Constitution’s legal text, the preamble actually precedes its title and refers to inspiration and reasons but the preamble itself is neither a principle nor a binding rule.
The second reference to justice is in art. 24 s. 2 where one of the basic objectives of the Bulgarian foreign policy is “the contribution to establishing a just international order”. This is simply a desired objective with no legal nature and only on the international field where almost nothing depends on us. Nobody prescribes a contribution for a just internal order.
In all the remaining text of the Constitution – principles, specific rules- there is absolutely no mention of justice as a priority value. For example, there is no commitment to just laws.
4.2. In the Civil Procedure Code, the basic law of popular civil justice, there is no mention of the word justice/fairness or any of its derivatives.
4.3. In the Administrative Procedure Code:
Art.6 s.1 declares that the administrative bodies should exercise their powers in a just way.
and art. 9 s. 4 adds that the administrative body and the court should provide a procedural assistance to the parties for the lawful and just resolution of the problem that is the subject of the procedure incl. by a settlement.
But there is not even a hint that the court is obliged to decide the disputes in a just way.
4.4. In the Criminal Procedure Code only one of the cassation grounds (art. 352 s.1 p. 3) provides for a repeal of the sentence and/or the decision “when the imposed punishment is evidently unjust”. But if injustice is not evident there shall be no repeal.
Yet not only the punishment can be unjust but the whole specific criminal procedure or its respective parts.
Justice is not among the declared principles of the Bulgarian criminal procedure.
4.5. In the Tax Procedure Code there is no mention anywhere and in any aspect of the word “justice” or of its derivatives.
4.6. In the Criminal Code there is no mention anywhere and in any aspect of the word “justice” or of its derivatives.
4.7. In the Labor Code art. 1 s.3 declares as its objective “…just and fair…conditions for labor” and art.128a s.2 requires “a just reference and recommendation” for the employee. In all other specific and substantial rules of the code there is no mention of the word “justice’.
4.8. In the Elections Code art. 189 s. 3 recommends to the media a fair reporting of the pre-election events of the candidates. And nothing else is to be fair!
4.9. In the Family Code there is no mention anywhere and in any aspect of the word “justice” or of its derivatives.
4.10. In the Law for Normative Acts there is no mention anywhere and in any aspect of the word “justice” or of its derivatives. There is no requirement for the normative acts to be just/fair.
4.11. In the Law on Obligations and Contracts only art. 52 provides that “A compensation for non-material damages shall be determined by the court by the standards of fairness”. There is no mention of this word in any other provision.
4.12. In the Trade Act the word justice is mentioned marginally only in four peripheral provisions (out of nearly 800) but not in the fundamental principle texts. Only two of them are real legal rules but with very specific hypotheses:
– art. 37 provides for a fair/just remuneration of the trade agent but only if its usual size cannot be established.
– art. 261b requires a fair/just price for the acquired shares after a company transformation.
– art. 607 declares the fair/just satisfaction of the creditors as the objective of the bankruptcy procedure.
– art. 631 simply duplicates art. 52 of the Law on Obligations and Contracts (above 4.11).
5. The obvious absence of “justice” in these 12 basic Bulgarian laws cannot be an accidental coincidence. Someone’s mysterious hand has systematically and consistently “purged” Bulgarian law of this divine spark with which Ulpian starts the Digest. The most likely problem of that purging hand is precisely the link of justice with conscience as its source. It is because every ordinary man through his conscience can assess whether a law or a judicial act are just and to build up hard evaluation criteria. This is extremely unpleasant and absolutely unacceptable to those who want to rule by incomprehensible laws and mystic justice whose “supreme reason” is declared to be by nature inaccessible to the common mortals. Or in simple words, the effort is law and court deeds to be taken out from the critical radar of values of the ordinary man so that they are not looked into through the only universal and humanly comprehensible window- the fairness. The absence of an express reference to justice in the implemented law shortens the legal rein and increases the cover on the judge’s mind switching off his conscience as a possible corrective of the unjust law provision. This is in spite his oath commitment to judge fairly-under art.155 of the Judiciary law. Can a judge adjudicate in line with his oath but against the law?
As a contrast comparison I would refer to provision 1.1. (1) of the UK Civil Procedure Rules (1998):
The overriding objective.
1.1. (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with the cases justly.
1.2. The court must seek to give effect to the overriding objective when it
(a) exercises any power given to it by the Rules; or
(b) Interprets any rule.
And one more reference- the European Convention on Human Rights, ratified by Bulgaria in 1992:
ARTICLE 6 (1)
Right to a fair trial
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
(This text has been duplicated by a concise sentence in art.7 s.1 of the Bg Judiciary law).
Only these two quotes are enough to prove that justice is an absolute priority among the values of law which requires its express presence in the principle provisions of the basic laws. Justice is not implied- in order to exist justice must be stated expressly, clearly and loudly- like the truth itself.
The question of justice in law is a question of its ideal and of its objective because “The objective is the creator of law”- according to Jhering. In his last months prof. Jivko Stalev claimed: “Our law is sick because it has no objective”. The ideal for justice is the deity in the temple of court for without justice that temple remains without a God and our law- a godless law. The interests of the treasury cannot be that supreme ideal but only a primitive idol. With such an idol we shall stay eternal nomads to civilization.
The implementation of justice is an expression of love for the neighbor. One cannot be fair to another man is he hates him. Recently I had the pleasure of getting to know an American judge who used to be a pastor but decided to become a judge in order to implement justice himself and not only preach it. Is there a Bulgarian judge who has become a priest?
6. What is the result of the disregard to justice/fairness by the Bulgarian law and courts?
First of all this disregard alienated the Bulgarian citizen from them. They are not his law and his court. He hides from them, avoids them, does not rely on them and his security is the one of the game still unspotted by the hunter. His everyday life suggests the simple truth that only the strong and the rich can be right. He is a stranger to his state but the state is also strange to him and he has absolutely no intention to die for it.
As a result the drive for power is not only the well known passion but it is the real survival instinct, the only exit. The problem of the Bulgarian herd is not the evangelical dream of a good shepherd but the fact that almost each of its sheep dreams of becoming a wolf. Because of the corruption from above it cannot realize that observing just laws is the noblest participation in power. This sheep does not even notice that the hope for power unites all but power itself disunites all. And no one warned it that the sale of a soul has no buy-back.
Today’s Bulgarian law has three unwritten but iron-cast principles:
– NOT to restrict power,
– to maintain the INsecurity of the ordinary man,
– to paralyze private ownership and its inherent personal freedom.
A spontaneous build-up of a lawless society is underway but those without rights can easily escape therefrom-which is the only brake to the totalitarian lust.
The words of law is the blood which circulates among the organs of the state body and ensures their functioning. You do not need to destroy an institution- you should only send it contaminated blood in the form of a bad law. No judicial reform can neutralize such a legislative infection. There is no perfect engine which can work with improper fuel or an organism which can survive a constant poison. The endless speech of a judicial reform diverts the attention from the real source of infection- the political power itself which pretends having nothing to do with the legal degenerate it created. There might be already metastases in the judicial system too but the actual tumor is not there.
Mad wild bores entered the field of Bulgarian law and turn up by the root what has been planted long ago. In recent years we witness unseen legal lechery which does not spare millennium old European legal shrines. By a retrospective relevance are brutally invalidated rights which have been properly acquired within classical legal institutes under validly acting laws. This sight can only be compared with the Titanic life boats where the stronger kick out the weak and the helpless so that the latter sink and drown. The producers of this show may have not heard that the Law is like a biblical Testament/Promise – a solemn and sacred oath by the state to its citizens.
Laughing through tears are the shameful court fees in Bulgaria. The poorest EU country has the most expensive and least accessible courts and below the average quality. There is nowhere in Europe court fees of 4% over the claimed sum without a maximum cap on that fee! The court has been turned into an ordinary fiscal cashier.
One of the oldest states in Europe with incalculable millennia old cultural treasures has been for 20 years on the European pillar of shame for bad laws and bad justice. Why? Is there a curse or an evil magic on us? Do you notice that some foreigners already treat us like a pregnant maid to whom nobody has promised anything? And that they speak of our territory as if it is not ours? Yet our national anthem starts with the word “Proud…”.
For most Bulgarian rulers in the last two decade are valid St. Paul’s words (Romans 1:22):
“Although they claimed to be wise, they became fools.”
But not all of them are pathological thieves and professional traitors.
7. The caring children of Mother Bulgaria must first stop her group rape by the gang of wolves. The state starts and ends with justice. Let us return God to the Temple and let justice be the Northern star of Bulgarian law to light our way out of the marsh. The first step is to desire it. Look at how Cicero (On Duties VII:24) has said it more than 2000 years ago:
“There are two kinds of injustice- the one on the part of those who inflict wrong, the other on the part of those who, when they can, do not shield from wrong those upon whom it is being inflicted…For he who does not prevent or oppose wrong, if he can, is just as guilty of wrong as if he deserted his parents or his friends or his country.”
There is no justice without religion because religion is an adapted philosophy while philosophy is the religion of wisdom. And because justice passes through conscience- the divine temple in each of us (that feeling of harmony with the balance in Universe). Hence it is not strange if he who seeks justice looks up in the sky. “A great effort is the path to heaven – it is like going home”, says Lucius Seneca, Nero’s philosopher.
This writing is an attempt to achieve spiritual peace- for each of us and for all of us together. Yet nothing can be compared with the revelation of the German philosopher Immanuel Kant (1724-1804)- with his eyes also in the above:
“Two things fill up my soul with a reviving
and ever growing admiration and reverence:
the starry sky above me and the moral law within me.”
Christmas 2014 Valentin Braykov
The commentary “A Temple without God” turns the last page of Braykov’s Column.
A man can feel when his thought is exhausted and at the threshold of repeating.
I thank all who threw a glance at my writings.
I am already 62 and it is time to turn my attention to some adjourned pleasures.
God Bless You!
Christmas 2014 Valentin Braykov
The limit of madness is only the physically impossible. In the psychic aspect madness has no limit. Another privilege of madness is that the mad man does not feel pain- on the contrary, he enjoys health. That is why his treatment is always enforced upon him.
On 22.08.2014 the Bulgarian National Bank (BNB) stated exactly that: “To this moment the Corporate and Commercial Bank (CCB) and its affiliate Commercial Bank Victoria (CBV) continue to experience a huge deficit of liquid assets which is about BGN 6.3 billion for CCB and BGN 284 mln for TBV”. (BGN 2=Euro 1)
This money is not available today just like it was not available three months ago. Therefore the issue is not for momentary missing money at the cash desk of a surprised bank but for its irreversible disappearance. This BGN 6.6 bln is simply missing and nobody can hide this since two things cannot be hidden in this world- the presence of beauty and the absence of money. The verbal baby rattle that the bank has sufficient value assets crashes into the simple question: and why does not the bank pledge these value assets to another bank to generate cash and pay out to the over 100 000 depositors?
No bank could survive a mass withdrawal of deposits. OK, but in my contract for bank deposit there is no provision that if I am the 101st to withdraw money they will not give it to me.
Our annual gross domestic product (GDP) amounts to BGN 80 bln.
BGN 6.6 bln missing CCB money amounts to 8% of Bulgaria’s GDP.
I do claim that such a single-shot bank robbery equal to 8% of a country’s GDP is unprecedented in Europe. It stops the breath like a huge explosion. In any state it would probably prompt Martial Law.
Another baby rattle which they jingle in front of our face is the off-shore hunt for a banker in connection with BGN 200 mln. But why don’t they chase the other BGN 6.4 bln from the missing money? And this BGN 6.4 bln is here, in the full parties’ bellies which gather financial fat for the political winter out of power. By the rattle “one guilty banker” they hijack our attention exactly from this BGN 6.4 bln.
Many media statements on CCB provoke an elementary hygienic question: How do their authors wash their mouth after speaking them? How do they cleanse themselves after the media gargle? For with such unwashed mouth and lips one should not kiss children. Look at another frequent perversity- they are getting used to discuss the bank’s money as if it is their own money and not my own. How much they would lose if they pay me back my own dearly earned money?!? But let them lose what they should- and go to Hell.
The CCB feast was joined by certifiable amateurs who immediately started jumping the big ring dance. They proclaimed for guilty the supervision department of the national bank- as if one can stop a lion with an awl. But some idiots did not realize the following simple provision from the Law on Obligations and Contracts, art.49:”He who has assigned to another person some work shall be liable for the damages caused by the assignee when he performed the assigned work”. I.e. if the BNB supervision turns to be the CCB sinner then any CCB victim could sue the BNB for its losses. Simply they would tear apart the national bank through its supervision department. It seems someone has just cautioned them and since a few days two Pharisees changed the song: BNB supervision is good, no problem there, such nice guys aren’t they? Listening to this one gets the feeling that a crocodile and an alligator have opened a vegetarian restaurant.
They cannot cover these huge bank losses from the national budget because they are already sucking from budget for the pensions and for the health care- whose independence has long vanished in the same Bulgarian financial Bermuda triangle. Now they shall finance this robbery by foreign debt- our children to pay.
The miserable Bulgarian people are being subjected to unprecedented corruption terror! No institution which has been designed to serve ruling thieves will help them. If after the banking disaster of 1996 a justice whip was waved, the hyenas of today would not have dared to hunt the CCB. What is left to do- a national anticorruption rebellion against the raging gang?
After the Enron scandal of 2001 the American Securities and Exchange Commission told the markets expressly that the public information for the financial institutions should be so clear, simple and understandable that it should allow even unprofessional investors-pensioners to make a responsible decision. With us it happened exactly the opposite: a multiyear whirlpool of fraud and mislead for the best bank (the CCB), the most influential man of the year (its owner) and much more. Only three months ago they shouted there was no problem at all with that bank. By this teargas they downed not only small investors but also professionals and big companies. Why should the victims pay for the robbery- “for not choosing the right bank”, “for a blind man does not play poker” and similar cynicism? How could these victims make an informed decision if they were overwhelmed by fraud and deliberate mislead? When I enter the Bulgarian banking system I do not enter a casino! By paying the due taxes I am entitled to rely on justice, tax administration, police, national security agency, audit office and national bank. What have they done and will they pay for their inaction?
It seems we are confronted with a holocaust on elementary statehood.
September 2014 Valentin Braykov
The panic of the government because of the banking quake turned out to be much bigger than the fear of the depositors for their savings. You saw what a small quake made the cabin creak? This is a sinister revelation to the common citizens about their horrible strength and about the exposed Achilles’ heel of those in power.
The next revolution may be without classic violence but just through bank withdrawals and non-payment of taxes. Against such shots the banking politicians and the politicizing bankers have no armor. Their basic fear reveals this vulnerability.
In 2010 Eric Cantona, the famous French soccer player and forward of Manchester United, appealed to the Europeans to withdraw their money from the banks- in order to crush the system. Others joined him with the slogan: “Stop the Banking Al Qaeda!”. I have not heard Cantona being arrested by masked policemen- as it happened to some like-minded in Bulgaria. To order: “For the banks – good or nothing!” is the same as to pronounce them dead.
Here in 2014 is still valid the criminal prescription of the 1996 banking catastrophe:
“Nationalization of the losses, privatization of the profits”.
But the difference is that the sheep do not believe the false shepherd any more.
“The good shepherd lays down his life for his sheep.
The hired man, since he is not the shepherd
and the sheep do not belong to him,
abandons the sheep as soon as he sees a wolf coming, and runs away
and then the wolf attacks and scatters the sheep;”
John 10:11-12
The collapse of the Corporate and Commercial Bank is mostly due to high level political crime. The attempt to disguise it as a common robbery is an act of post-factum complicity.
Today the Bulgarian people look like Samson from the Bible- cheated, chained and blinded by the charms of the Democratic Delilah who is now feasting with his enemies. At the height of this “royal dinner” another price dagger was stabbed into our energy back. But the Bulgarian Samson has the strength to bring down this whole prison onto them and onto himself in order to stop the brutal orgy.
There are also reasonable and sensible people in the Bulgarian elite and not only pathological thieves and professional traitors. I hope that these soloists of reason will hear the Samson fury before it crushes down everything on all of us.
July 2014 Valentin Braykov
On 01.07.2014 enter into force the sanctions of the Law for Economic and Financial Relationships with Companies, Registered in Jurisdictions with Preferential Tax Regimes, their Related Persons and Real Owners (Bg State Gazette Nr 1/03.01.2014), named in short The Offshore Companies Law. This is one of those products of the Bulgarian Parliament which cause living lawyers to envy the dead ones.
In general and concise the structure of the law is the following:
a/ 28 business branches of the Bulgarian economy become banned for acces by companies registered in territories from a long black list.
b/ the law requires a full disclosure of the identity of the physical owners of the offshore companies. And not only the direct but also the indirect ones- with no definition what indirect means.
c/ in case of non-disclosure of the physical owners the accomplished investments of those companies in the country shall be confiscated because of their retrospective invalidity- because the mutual restitution after invalidity under yart.34 of the Law on Obligations and Contracts in this case does not apply to the state. I.e. it does not give back what it was given- only the miserable investor does.
d/ through the identification of the physical owners some evidential fictions for related persons and assumed income are introduced which do not claim any link to reality. Their logic is reminiscent of a middle age torture museum.
e/ the companies and their “enemy” owners shall be executed under the law not for any actions or inactions of theirs but for tax and registration systems in the banned territories for which the companies and their owners have absolutely no responsibility. I.e. the massacre on companies and owners is not for liabilities for specific wrong doings but for objective legal realities in third countries beyond their control.
f/ if a court or an arbitration awards a sum in favor of an offshore company against a Bulgarian defender for a contract default- that awarded compensation shall be taxed as a Bulgarian income of the offshore company?!?
g/ the list of banned territories is tragic-comic: it includes half of the former British empire, the Dutch Aruba and the Antilles and the US belongings Guam and Virgin Islands as well as purely European territories on the continent which are under the sovereignty of EU member states: Andorra, Gibraltar, Liechtenstein, Monaco, San Marino. But this is not the end of the nice story- the law shall automatically apply to any jurisdictions on the globe whose income or corporate tax is 60% less the Bulgarian rate- whichever they are, you should know.
I have a few basic questions to this masterpiece of Bulgarian legislation which entertain my soul:
1. What legal relevance to a company has the disclosure of its physical owner?
Isn’t he not liable for the obligations of the company and vice versa? Or the purpose is to have a true target for intimidation?
2. How can be disclosed the identity of an owner of shares to the bearer? They are such because their ownership is manifested through their possession and not through the name of the possessor at the moment- like money banknotes.
3. How can you impose obligations to a shareholder in a foreign company when under private international law the governing law is the law of the country where the company has been registered?
4. More than half of the “doomed” jurisdictions are under the sovereignty protection of countries with which Bulgaria has treaties for mutual protection of investments. For example with the USA since 1993, with the UK since 1995 and with the Netherlands since 1999. The doomed jurisdictions are part of their territory covered by the respective investment treaties. Who gives us the right to introduce discrimination measures against companies and persons from these protected territories in violation of the investment treaties? Under art.5 s.4 of the Bulgarian constitution in case of conflict between a local law and an international treaty the latter shall prevail. That means this law shall not apply to them.
5. Each company or citizen from such a state against which the cruel measures of the law are applied can easily turn to an international investment arbitration court as a private investor against the Bulgarian state. I do not recommend the sight of such a conflict to people with weak nerves.
6. Why have the sponsors of the law missed in the black list of territories Turkish Cyprus, Turkey and Russia but have included so many European territories? May be my brain is not mature for this “divine” providence.
7. Current Bulgarian taxes are the lowest in EU. What if other member states decide to outlaw Bulgarian companies since they come from a territory with 60% lower taxes?
8. Have foreign embassies objected to this law? Yes or No?
I would like to ask all Bulgarian great lawyers:
Why are you watching benumbed this “happening” before the Altar of Law?
Back in 1935 the US Court of Appeals (Judge Learned Hand /1872-1961/) in the case of Helvering v/s Gregory ruled:
“ANYONE MAY ARRANGE HIS AFFAIRS SO THAT HIS TAXES SHALL BE AS LOW AS POSSIBLE; HE IS NOT BOUND TO CHOOSE THAT PATTERN WHICH BEST PAYS THE TREASURY. THERE IS NOT EVEN A PATRIOTIC DUTY TO INCREASE ONE’S TAXES”.
But for this wisdom there is no place on the billposter of Comedie Balkanaise.
June 2014 Valentin Braykov
When at the end of 860 AD the Byzantine emperor Michael III sent Constantine-Cyril the Philosopher and his brother Methodius on a diplomatic mission to the Hazarians hardly anyone expected what a millennium mark this journey would leave. In those times the Hazarian land was where today the Russian Sochi is on the Black sea and for Byzantine of the 9th century AD its influence on that territory was a strategic priority. That is why as head of mission was appointed the star of Byzantine diplomacy, the European philosopher and the favorite theologian of Patriarch Photius- Constantine-Cyril.
In order to reach the Hazarians Constantine-Cyril and his brother had to pass through the Byzantine province of Herson which is today’s peninsula of Crimea. And exactly there in the Crimea on 30.01.861 AD with the help of the local bishop Constantine-Cyril found in the sea the relics of St. Clement. He moved them to the nearby church of St. Dimiter and later that year he took most of them to Constantinople where they stayed till 867. A smaller part of St. Clement’s relics remained in Herson – Crimea from where the Russian King Vladimir the Great (the Russian equivalent of the Bulgarian Boris I) brought them to Kiev after the Russian conversion to Christianity in 988.
Clemens Romanus I is the fourth bishop of Rome (92-99 AD) who was exiled by emperor Trajan to Crimea for his Christian faith. He there met his martyrdom death- drowned while chained to a dropped anchor in the Black sea waters of Crimea. According to the Christian legend once a year the sea moved apart and showed Clement’s relics. That is how Constantine-Cyril discovered them. The numerous pantheon of martyrs for the Christian religion is due not only to the Roman cruelty but also to the Christian belief in resurrection which made them prefer death to the possible survival. Clemens (Clement) in Latin means merciful and gentle. The religious fame of the name Clemens is linked to this Roman bishop- a Crimean martyr and especially to his relics recovered in the Crimea in 861. They were perceived as a heavenly omen for the trustworthiness of his life story and added to the nimbus of the name itself. The sense of miracle was reinforced by the fact that divine providence gave these relics exactly to a man like Constantine-Cyril.
The relics of St. Clement remained in Constantinople between 861-867. The first version of the Slavonic alphabet was already created by Constantine-Cyril and his brother Methodius around 855. In 864 the Bulgarian King Boris I was baptized as Christian and given the monk name of Michael- like his godfather Emperor Michael III. In the summer of 866 Boris I sent a delegation to Rome with 115 questions addressed to Pope Nikolai I related to the adoption of Christianity. The envoys of Boris I were handed over the “Responsa Nicolai I Papae ad consulta Bulgarorum” on 13.11.866. In the next 867 the same pope sent an invitation to Cyril and Methodius to visit Rome but was unable to meet them- he died on 13.11.867, exactly one year after his responses to the Bulgarian questions. So they were welcomed excitedly by the next Pope Adrian II because the brothers brought to Rome the relics of St. Clement which were recovered in the Crimea in 861. At the end of 867 the pope inaugurated in the Santa Maria Maggiore cathedral the old Bulgarian church books and thus he approved the church service in Slavonic language.
In their journey to Rome Cyril and Methodius were joined by some of their disciples incl. their favorite one Clement, named after the saint whose relics they brought to Rome. Pope Adrian II personally ordained the Bulgarian Clement as priest in 868 in Rome and for us he remained in history as Clement Ohridsky (after his later diocese in Ohrid). The relics of St. Clement were put to rest at the place of his ancient Roman house where today is the basilica in his name- San Clemente. Two years later in that basilica was buried Constantine-Cyril who died in Rome in 869- not far from the relics of the saint whose fame and memory he revived. That is how the Bulgarian national university in the center of Sofia through its patron Clement Ohridski is linked to the name of the ancient Crimea saint Clement. This name is equally dear to Orthodox Slavs and to Roman Catholics since it carries a message of peace. In the distant 9th century Cyril discovered the grave of St. Clement whereas today we discover the grave of Cyril through the basilica of St. Clement.
We do not know the Slavonic pre-church name of Clement Ohridsky before the Roman mission of Cyril and Methodius. Yet it is the only known to me precedent in the Christian pantheon when a certain person was inaugurated as a priest by the name of a saint- St. Clement Romanus (of Crimea). And later this newly inaugurated priest Clement- he himself became a saint, St. Clement Ohridsky, in the Orthodox Bulgarian pantheon. Therefore St. Clement Romanus and St. Clement Ohridsky are different historical personalities though with the same church name and factually linked.
20 years ago on 14.11.1994 I had the honor and privilege to meet Pope John-Paul II in Rome who proclaimed in 1980 Cyril and Methodius as Patrons of Europe. The day after the audience I visited the San Clemente cathedral- 15 min. walk on the left of the Coliseum. In the basement of the basilica we stood in reverence before Cyril’s grave. The fundament of the building goes deep into antiquity and is linked to catacombs from where one can hear the underground river- an extension of the Tiber. The priest of San Clemente asked us to listen quietly and to guess what the noise of that distant echo was. We quickly answered that was the underground river. But he politely disagreed:
“No, this is the whisper of eternity!”
April 2014
Easter Valentin Braykov
If the law of contract is the capital of civil law, the central square of that capital is called “Contract of Sale”.
The first Bulgarian sale contract definition comes from the first Bg Law on Obligations and Contracts of 1892 (LOC 1892) which was adopted 14 years after the Bg Liberation from the Turks in 1878. That LOC 1892 was almost a direct translation of the Italian Codice Civile of 1865 which in turn was an extension of the French Code Civil of 1804. The reason why Bulgaria did not accept directly Code Civil or the Austrian ABGB of 1811 was because of the jealousy of the Great Powers at the time to keep Bulgaria equally apart from legal proximity with any of them. And the German BGB did not exist yet. The Italian Codice was the acceptable compromise also because that same year 1892-1893 the Bulgarian king married an Italian princess.
After the Second World War and the communist take over the LOC 1892 was replaced by the LOC 1950 which preserved the framework concept of the French contractual system but was flooded with lots of anti-market and anti-contractual freedom provisions. That LOC 1950 is still acting today having been cleared of its worst communist features.
So far as the Contract of sale in LOC 1892 is concerned it was a copy of the Code Civil concept for a consensual contract which was preserved in the LOC 1950. The sale was considered perfect by the simple consent of the parties and the title of ownership is considered transferred from seller to buyer by the same simple consent for concluding the contract. I.e. the consent in the Bulgarian contract of sale has two functions: for conclusion of the contract and for the transfer of title simultaneously. Therefore the Bulgarian sale does not need a hand over of the sold object (like in Austria) or a second consensus (like in Germany) in order to transfer the property.
Payment of the price is also not a condition for transfer of the title- like the hand over isn’t. Only the consent for the due price suffices.
Price payment and hand over should be simultaneous with a number of exceptions. (but not the title transfer).
There is one exception for preservation of title on movable objects till full price is paid- art.205 LOC-1950 but that is only when the price is paid in installments i.e. title is preserved till payment of last installment. But that exception has to be expressly provided for in the Bg contract of sale and only for the case of installments payments for movable objects.
Another important feature of the Bulgarian sale is that its consensual nature for simultaneous conclusion and transfer of title is an imperative monopoly with no alternative option- Bulgarian law does not have the flexibility e.g. of the UK sale where the exact mode of transfer of property can be chosen by the parties among the available systems.
There is one special qualification to the transfer of property by consensus. That is the principle for specifically individualized movable objects like a given chair, a given machine etc. BUT if the object of sale is a generic good like sugar, oil, milk etc., the transfer of property passes when the parties specify/appropriate the specific bulk of the generic good to the contract or by the hand over of the bulk from seller to buyer. However this hand over is not a waiver of the consensual nature of the ownership transfer. On the contrary, the hand over is a physical form of the same consensus where the parties manifest their consent by specifying through the hand over which is exactly the sold quota quantity of the bulk appropriated to the specific contract. And then the title passes on the basis of this manifestation of consent though it does not mean that in this instance the Bg sale switches to the Austrian sale for title transfer by hand over of possession.
It can be recalled that the consensual transfer of ownership together with the consent for the contract’s conclusion comes as a concept from the Dutch father of Natural law- Hugo Grotius-who made that suggestion in his major work “About the Law of War and Peace” written in 1625 in Paris. The French took it from him and and then through Code Civil spread it in Europe.
The currently acting LOC-1950 has not changed the basic nature of the Bulgarian contract of sale as it was defined in 1892. Unlike the Italian Codice Civile of 1865 which was replaced by the improved Codice Civile of 1942, the acting Bulgarian LOC-1950 stays with the sale standards of Codice Civile 1865.
The above explains why sometimes foreign sellers applying Bg law are surprised to learn that title has passed to the buyer before payment of price and that the buyer has in turn resold the object to a third party before paying them the price. This does not mean that the seller is helpless in such an instance- he can terminate the sale contract because of default for non payment of price by his buyer and then turn to the second buyer to repossess the object but that is a too big and uncertain complication.
It is curious to realize why the Code Civil systems have readily adopted this consensual concept of sale’s conclusion and transport of title. The reason is simple and obvious: if the title transfer is automatic and is carried by the consent it means that the parties will not need to perform themselves the title transfer by an additional deed since it happens automatic. Better said: by virtue of the consent it is considered to have happened. If the title transfer is not a matter of performance it means it cannot be subject to mispreformance. So title transfer is performed regardless of the will/discretion of the parties i.e. its accomplishment is guaranteed by the law. This the the beauty of the consensual model of title transfer- it cannot fail. Whereas if you must hand over in order to pass title, that hand over may or may not happen.
Another Bg peculiarity is that the sale of another’s object by a non owner is valid and not null and void. This is a deviation from the rule “Nemo dat quod non habet”. Under the current interpretation of the law in case of sale of a non-own object the seller’s promise is to acquire the title of the object within reasonable time and then automatically pass it on to the buyer.
Unlike UK law Bulgarian law of sale recognizes the bona fides/good faith as a general standard of diligent delivery. However in Bulgaria the phrase used is “good conscience” rather than “good faith” and this verbal shade comes from the Orthodox bible. Yet the function is the same like bona fides in all the rest of continental Europe.
The Bulgarian model of sale is not adapted to all options of consumer sale. The consensual concept is simply inadequate in a big moll to claim that a chocolate is yours from the moment of taking it from the shelf or the gasoline just tanked in your car is your own from the moment of tanking but before paying it. Tuning Bulgarian law to consumer sales is a challenge of the near future.
Bulgaria is a full party to the UN Convention for the International Sale of Goods-1980. Yet one should keep in mind that this Convention can be contractually derogated by the parties and that the Convention does not regulate the contract’s validity and the transfer of ownership title.
Bulgaria accepts and applies INCOTERMS-2010.
Bulgaria is anxiously looking forward to the forthcoming EU Regulation for the Common European Law of Sale in its draft version of 11.10.2011. Yet it should be remembered that this Regulation will be a second optional national regime of sale and not a piece of private international law although it shall apply to crossborder sales of movable objects. But the Regulation shall not regulate contarct’s invalidation, representation and transfer of title- they will stay within the primary national solutions.
The main improvement that the current Bulgarian system of sale needs is to break away from the consensual monopoly for transfer of title by virtue of the contract’s conclusion only. It should follow some European examples where the sale contract allows the parties the liberty to choose the method of title transportation which could be the French, the Austrian, the German or the UK one. This will make the Bulgarian contract of sale a flexible module for decking with other systems of sale to the benefit of business. Currently that multiple interface is achieved by choice of foreign substantive law to govern the sale contract.
20.01.2014 Valentin Braykov
For more information on this subject you can see Valentin Braykov, The Contract of Sale – a Companion of Civilization, published by SIBI, 2014, Sofia regretfully available only in Bulgarian as: Валентин Брайков, Договорът за продажба-спътник на цивилизацията, издателство СИБИ, 2014г., София
On 08.11.2013 in its issue 45/2013 the Austrian magazine FORMAT on p.65 published a short note “The Expensive Justice as a Local Disadvantage”. The author points that Vienna is losing the competition with Berlin as a preferred forum for court settlement of disputes since the Austrian court fees are 1,2% on the claim amount. This is considerably higher than the German court fees and one of the highest in Europe because they have no top limit.
I laughed through tears at these Austrian complaints and checked the court fees in some of the big EU states. The conclusion is:
Austria…………………1.2% on the claim amount with no top limit.
Germany………………..claims over E 500 000………………3/1000.
Italy………………………claims over E 520 000…………….…E 1466.
France……………………a fixed court fee for any claims……..E 185.
Great Britain…………claims over 300 000 pounds……..1686 pounds
IN BULGARIA THE SAME COURT FEES ARE 4% (FOUR PER CENT) ON THE CLAIMED AMOUNT WITH NO TOP LIMIT!
I.e. for a similar claim amount of E 500 000.- the court fees will be E 20 000. For a claim amount of E 1 000 000- the court fees will be E 40 000.- and the sky is the limit. This is the case since 1950 till today.
The poorest country in the EU, Bulgaria, has the most expensive and inaccessible justice whose quality is beyond the average.
If you try to impose the Bulgarian court fees in the above EU states the street will light with protest fire.
Bulgaria buys the most expensive natural gas in Europe and it is four times the price the US consumer pays.
Bulgaria was made “happy” with the biggest number of Syrian refugees- over 10 000. In Austria they are 500 and in Germany- 5000.
In his famous treatise De Officiis Mark Tullius Cicero (I-23) states the following:
There are two kinds of injustice- the one, on the part of those who inflict wrong, the other on the part of those who, when they can, do not shield from wrong those upon whom it is being inflicted…For he who does not prevent or oppose wrong, if he can, is just as guilty of wrong as if he deserted his parents or his friends or his country.
November 2013 Valentin Braykov