Intellectual Capital Persuades Court that Presence in Law Firm Rankings Should Not be Prerequisite for Tender Participation

Intellectual Capital Persuades Court that Presence in Law Firm Rankings Should Not be Prerequisite for Tender Participation

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Russia's Intellectual Capital law firm has persuaded the Moscow Arbitrazh Court that a requirement that participants in a Rosatom tender for legal counsel be ranked in Legal500 and Chambers & Partners was illegal and violated Russian competition law.

According to International Capital, "in the summer of 2020, the Russian state atomic energy holding, Rosatom, announced a tender for a contract to help the corporation obtain international patents on the territory of foreign states. One of the mandatory requirements for procurement participants was the presence in the international ratings Legal 500 and Chambers and Partners (section Intellectual Property)." According to the firm, "only one foreign law firm, Gowling WLG, met this criterion. Two other candidates – DLA Piper and Intellectual Capital – were [as a result] not allowed to participate in the competition."

Intellectual Capital objected to the Moscow department of Russia's Federal Antimonopoly Service, alleging that Rosatom was holding a non-competitive tender, in violation of Russia's procurement law. In its complaint, the firm pointed out that "a law firm does not need to have experience in projects of 'obtaining international patents' in order to get into the international ratings of Legal 500 and Chambers and Partners. That is, [presence in those ratings] does not in any way confirm qualifications." According to the firm, "the controversial condition may be part of the evaluation during the tender itself, but it should not prevent participation in it."

The FAS agreed with Intellectual Capital's complaint and ordered the applications of law firms reconsidered, without their presence (or absence from) the rankings being taken into account. Rosatom went to court to overturn that decision and order.

The Moscow Arbitrazh Court dismissed Rosatom's claim and ruled that the requirement that applicants be included in the rankings "in itself cannot guarantee the quality of services and sets an unreasonable barrier" for participation in the tender. Rosatom appealed – but also, in January 2021, signed a contract with Intellectual Capital“

"We have confirmed with all the necessary documents a high level of qualifications for working with such projects,” said Irina Pokatovich, head of the Antimonopoly Law practice at Intellectual Capital.