How to Instruct a Russian Law Expert Witness: Checklist for Solicitors, Counsel and Arbitration Teams

Foreign law firms usually contact a Russian law expert when the dispute has already become urgent. A pleading deadline is approaching. Expert evidence directions have been given. A tribunal has ordered reports on foreign law. A US litigation team needs a declaration on Russian law. A London, Dublin or Geneva disputes team has discovered that an issue of corporate authority, limitation, sanctions-affected performance or Russian court procedure cannot be answered by translation alone.

The instruction process does not need to be complicated. But it should be disciplined.
A good Russian law expert instruction gives the expert enough information to understand the legal issue, check conflicts, define the scope, provide a realistic timetable and prepare an independent analysis that can be used by solicitors, counsel, arbitration teams or in-house legal departments.

This article explains how to instruct an independent Russian law expert witness in a practical, lawyer-facing way.

It is written for UK solicitors, Irish solicitors, US litigators, European arbitration counsel, disputes partners and in-house teams. It does not provide advice on English, Irish, EU or US procedural law. Those issues should be handled by the lawyers conducting the proceedings. The focus here is the Russian law expert’s role and what foreign law firms should prepare before instruction.

A Russian law expert may be needed where a foreign proceeding, arbitration or cross-border dispute depends on Russian law, Russian legal status, Russian court practice or Russian regulatory consequences.

Typical issues include:

• contract interpretation or validity under Russian law;
• authority of a Russian company, director, representative or signatory;
• Russian limitation periods;
• Russian corporate approvals, powers of attorney or charter restrictions;
• sanctions-affected performance and Russian countermeasures;
• Russian arbitrazh court proceedings;
• service, jurisdiction or parallel proceedings in Russia;
• recognition and enforcement risk in Russia;
• Russian insolvency, bankruptcy or asset recovery issues;
• Russian law questions in international arbitration.

In English civil proceedings, expert evidence is governed by CPR Part 35. CPR 35.3 states that the expert’s duty is to help the court on matters within the expert’s expertise, and that this duty overrides any obligation to the party instructing or paying the expert. CPR 35.4 also deals with the requirement for the court’s permission to use expert evidence.

For that reason, a Russian law expert should not be treated as a member of the advocacy team. The expert’s value comes from independent, case-specific explanation of Russian law.

The first step is not a long conference call or a full document review. It is usually a conflict check.

Foreign law firms should send the names of all relevant parties before sharing sensitive documents. This may include:

• claimant and defendant entities;
• parent companies and subsidiaries;
• beneficial owners or key individuals;
• insurers, reinsurers or funders;
• banks, state bodies or counterparties;
• arbitral institutions or related proceedings;
• law firms already involved, where relevant.

For Russia-related matters, the conflict list may need to be wider than usual. A Russian company may have changed its name, merged, transferred assets, or be part of a broader corporate group. Individuals may appear in different transliterations. Sanctions-sensitive matters may involve entities that are not formal parties but are commercially or legally important.

A short conflict check email should include the forum, the type of dispute, the parties and the deadline. Detailed privileged material can usually wait until the expert confirms availability and clears conflicts.

The most effective instructions are built around clear, neutral questions.

A weak instruction asks: “Please confirm that our client had authority to terminate the agreement.”

A better instruction asks: “Under Russian law, assuming the facts set out in paragraph X, did the general director of the Russian company have authority to sign and terminate the agreement? What documents and corporate approvals would be relevant to that analysis?”

The second version is more useful because it separates the expert’s task from the legal team’s advocacy. It also identifies the assumptions and points the expert to the Russian law issue.

Questions for a Russian law expert should usually be:

• specific;
• neutral;
• tied to pleaded issues or tribunal questions;
• based on identified factual assumptions;
• separated by topic;
• limited to Russian law;
• capable of being answered with reasons.

Avoid asking the expert to decide the case. A Russian law expert can explain Russian law, Russian legal consequences and Russian court practice. The expert should not become an advocate, should not assess witness credibility, and should not make submissions on matters outside Russian law.

This is particularly important in England and Wales. Practice Direction 35 states that expert evidence should be the independent product of the expert, uninfluenced by the pressures of litigation. It also states that experts should provide objective, unbiased opinions and should not assume the role of an advocate.

Not every instruction requires a full expert witness report. The correct format depends on the forum, the procedural stage and the purpose of the Russian law analysis.

Litigation Memo
A litigation memo is usually an internal document for solicitors, counsel or in-house lawyers. It may be used to assess pleadings, strategy, risk, settlement or whether full expert evidence is needed.

It is often faster and more flexible than a formal report. It may not be suitable for filing with a court or tribunal unless adapted.

Expert Opinion
An expert opinion is a structured Russian law analysis. It may be used for client advice, settlement discussions, pre-action analysis, arbitration strategy, enforcement planning or support for foreign counsel.

It can be detailed without necessarily being formatted as a court-ready expert report.

Expert Witness Report
An expert witness report is prepared for use in proceedings. In English litigation, it should be consistent with the relevant procedural requirements and expert duties. The report will usually identify instructions, materials reviewed, assumptions, Russian legal sources, reasoning, conclusions and any qualifications.

For English proceedings, solicitors and counsel should decide the procedural form and ensure compliance with applicable directions and CPR requirements.

Rule 44.1 Declaration
In US federal litigation, Russian law issues may be addressed through expert declarations or affidavits under the framework of Federal Rule of Civil Procedure 44.1. Rule 44.1 provides that a party intending to raise foreign law must give notice, and that the court may consider relevant material or sources, including testimony, when determining foreign law. The court’s determination is treated as a ruling on a question of law.

A Rule 44.1 declaration should be drafted with US counsel’s procedural strategy in mind. The Russian law expert can provide the Russian law analysis; US counsel should determine how it is used in the litigation.

Affidavit
An affidavit may be required in some proceedings or jurisdictions. The format, oath, exhibit structure and procedural requirements should be handled by the instructing lawyers. The Russian law expert’s task is to ensure that the substance of the Russian law analysis is accurate, reasoned and independent.

Arbitration Report
An arbitration report is usually tailored to the tribunal’s procedural order. It may be a first report, reply report, joint expert statement or hearing support document. It should answer the questions the tribunal needs resolved and avoid unnecessary academic commentary.
In arbitration, the expert’s independence remains essential even though the procedural rules may differ from court litigation.

Scope should be agreed in writing. This is not just an administrative point; it protects the quality and independence of the work.

The scope should answer five questions.
First, what Russian law issues must be addressed?
Second, what factual assumptions should the expert use?
Third, what documents will the expert review?
Fourth, what output is required: memo, opinion, expert report, declaration, affidavit or arbitration report?
Fifth, what is the deadline?

Without a clear scope, the expert may spend time on background issues that do not assist the case. Conversely, if the scope is too narrow, the report may miss an important Russian law point that the opposing party or tribunal later raises.

A good scope is neither vague nor over-controlled. Solicitors and counsel can define the questions, but they should not attempt to dictate the expert’s conclusions. The expert must remain free to give an independent opinion, including an opinion that may not fully support the instructing party’s case.

Foreign law firms often underestimate how long it takes to produce a useful Russian law analysis. The issue may involve statutes, court practice, regulatory materials, corporate documents, translations, factual assumptions and procedural history.

A realistic timetable should include time for:

• conflict check;
• engagement terms;
• document review;
• clarification questions;
• Russian legal research;
• preparation of draft analysis;
• review for factual accuracy by the instructing lawyers;
• finalisation;
• translation or exhibit checks, if needed;
• counsel conference or expert meeting preparation.

For court-ready reports, the expert may need time to revise the report after receiving counsel’s comments on factual assumptions or procedural form. However, comments should not compromise independence. It is proper to correct misunderstandings, missing documents or inaccurate assumptions. It is not proper to pressure the expert into advocacy.

Urgent instructions are sometimes possible, but urgency should be explained honestly. A focused question and a small document set can often be handled faster than a broad instruction covering multiple areas of Russian law.

A useful fee proposal requires a defined scope. The expert will normally need to know:

• the forum;
• the type of output;
• the number and complexity of questions;
• the volume of documents;
• whether Russian-language materials must be reviewed;
• whether court practice research is required;
• whether sanctions-sensitive or regulatory issues are involved;
• whether a reply report, expert meeting or hearing support may be needed;
• the deadline.

For early-stage matters, it may be efficient to request a short preliminary review before commissioning a full report. This can help the legal team decide whether Russian law is genuinely material, what the strongest questions are, and whether expert evidence is required.

The independence of the Russian law expert is not a formality. It is central to the usefulness of the evidence.

The expert should not write like an advocate, ignore contrary materials, overstate certainty, or present Russian law as simpler than it is. If there is a range of reasonable views, the expert should explain it. If an issue falls outside the expert’s expertise, the expert should say so. If the answer depends on disputed facts, the expert should identify the assumptions used.

For instructing lawyers, this can be commercially valuable. A balanced expert opinion helps the legal team understand risk. It can also make the expert’s report more credible to the court, tribunal or opposing party.

The best expert evidence is clear, reasoned, independent and usable. It does not try to win the case by rhetoric. It helps the decision-maker understand Russian law.

Before sending the first substantive instruction, prepare the following:

1. Parties and related entities for conflict check.
2. Forum: court, tribunal, arbitration institution or pre-action context.
3. Procedural deadline and required format.
4. Pleadings, memorials or short case summary.
5. Contract, amendments and key transaction documents.
6. Corporate documents, powers of attorney and approvals, if authority is in issue.
7. Russian court documents or procedural history, if relevant.
8. Proposed Russian law questions.
9. Factual assumptions and disputed facts.
10. Required output: memo, opinion, expert report, Rule 44.1 declaration, affidavit or arbitration report.
11. Expected need for reply evidence, expert meeting, deposition or hearing support.
12. Any sanctions sensitivity or confidentiality restrictions.

A strong first email can be short:

“We act for [client] in [forum/proceeding]. The matter involves Russian law issues concerning [topic]. The current deadline for expert evidence is [date]. We would like to check conflicts and availability for [type of report/opinion/declaration]. The relevant parties are [names]. If conflicts are clear, we can send pleadings, the contract, procedural order and proposed questions.”

This gives the Russian law expert enough information to respond efficiently without requiring the law firm to disclose unnecessary confidential material before conflict clearance.

I assist foreign law firms, counsel, arbitration teams and in-house legal departments with independent Russian law analysis for litigation, arbitration and cross-border disputes.

For an initial conflict and scope review, please send the parties’ names, forum, deadline, required format and a brief description of the Russian law issue.