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DOI: https://doi.org/10.34069/AI/2022.53.05.18
How to Cite:
Ryndiuk, V., Gaydulin, O., Kuzmenko, O., Chorna, V., & Sharkova, I. (2022). Legal institute of lobbying: the problem of legislative
regulation in Ukraine. Amazonia Investiga, 11(53), 186-193. https://doi.org/10.34069/AI/2022.53.05.18
Legal institute of lobbying: the problem of legislative regulation in
Ukraine
Правовий інститут лобіювання: проблема законодавчого врегулювання в Україні
Received: March 15, 2022 Accepted: May 24, 2022
Written by:
Vira Ryndiuk77
https://orcid.org/0000-0001-7803-7039
Olexander Gaydulin78
https://orcid.org/0000-0002-1269-7007
Oksana Kuzmenko79
https://orcid.org/0000-0002-0830-766X
Viktoriіa Chorna80
https://orcid.org/0000-0002-6072-0283
Irina Sharkova81
https://orcid.org/0000-0002-2010-3811
Abstract
The article examines the problem of legislative
regulation of the socio-political institution of
lobbying in Ukraine on the basis of borrowing
similar experience from developed democracies
using the dialectical method. It is noted that
lobbying should be considered as one of the
democratic institutions of influence of the public
and business structures on decision-making by
public authorities (representation of interests),
namely as a professional mediation activity
between society and government. Legislative
regulation of the institution of lobbying in
Ukraine may not restrict other rights of citizens
regarding their influence on the authorities,
which are guaranteed by the Constitution of
Ukraine and defined by national legislation (for
example, the right to appeal to the authorities, the
right to participate in the management of public
affairs through advisory bodies, parliamentary
hearings, public discussions, etc.). It is concluded
that the most pressing aspects of the problem of
legal institutionalization of lobbying in Ukraine,
which need to be addressed, are the following:
development of theoretical-methodological
77
Doctor of Law, Associate Professor, Professor at the Department of Theory and History of Law, Kyiv National Economic University
named after Vadym Hetman, Kyiv, Ukraine.
78
Doctor of Law, Associate Professor, Leading Research, Academician F.H. Burchak Scientific Research Institute of Private Law and
Entrepreneurship of National Academy of Law Sciences of Ukraine, Kyiv, Ukraine.
79
Doctor of Law, Professor, Head at the Department of Administrative and Financial Law, Kyiv National Economic University named
after Vadym Hetman, Kyiv, Ukraine.
80
Doctor of Law, Associate Professor, Professor at the Department of Administrative and Financial Law, Kyiv National Economic
University named after Vadym Hetman, Kyiv, Ukraine.
81
PhD in Law, Associate Professor, Associate Professor at the Department of Theory and History of Law, Law School of the Kyiv
National Economic University named after Vadym Hetman, Kyiv, Ukraine.
Ryndiuk, V., Gaydulin, O., Kuzmenko, O., Chorna, V., Sharkova, I. / Volume 11 - Issue 53: 186-193 / May, 2022
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foundations of lobbying in national political-
legal realities, taking into account similar foreign
experience; a comprehensive approach to the
legislative regulation of lobbying activities at all
levels of public authority, and on the basis of
clear harmonization of lobbying rules with
legislation in related areas; legislative definition
of the concept and all components of lobbying
activities, the legal status of lobbyists; particular
attention should be paid to the development of
ethical rules for the lobbying profession, which
should be based on the principles of legality,
transparency, openness and integrity.
Keywords: democracy, integrity, lobbying,
rule-making activity, citizens' rights, public
authority.
Introduction
In Ukraine, the issue of legislative regulation of
lobbying in the activities of public authorities has
been actively discussed for over 20 years, in
particular, referring to the similar experience of
other countries. During this time, a number of
draft laws were registered in the Parliament of
Ukraine, the subject of which is the legal institute
of lobbying: "On lobbying in Ukraine" (1999),
"On the legal status of groups united by common
interests (lobby groups) in the Verkhovna Rada
of Ukraine" (1999), "On the activities of
lobbyists in the Verkhovna Rada of Ukraine"
(2005), "On the regulation of lobbying in
Ukraine" (2010), "On lobbying" (2016), "On
public advocacy" (2017), "On ensuring
transparency and legality of communication with
subjects of power" (2017), "On state registration
of lobbying entities and lobbying activities in
Ukraine" (2020 and revised - 2021), "On
lobbying" (2020) (Stavniichuk, 2020). However,
none of the proposed draft laws has been
adopted.
At the same time, lobbying, as a mechanism for
representing the interests of various groups
before the government, is an integral part of the
political life of any democratic state, a specific
model of communication between society and
government. The objective necessity of lobbying
is explained by the fact that the state itself can not
sufficiently take into account the interests of
different social strata, groups that make up
society (Godny, 2019). The absence of civilized
legislative regulation of lobbying leads to the
functioning of this phenomenon in Ukraine as an
informal institute (Yarovoi, 2017). Ukrainian
society has formed a negative attitude towards
such a social phenomenon as lobbying, the latter
is associated with the illegal influence of
business, oligarchs on public authorities and their
officials in favor of making a specific decision,
corresponds to various manifestations of
corruption and bribery. All this determines the
relevance of the chosen research topic.
The purpose of this article is to analyze attempts
to regulate lobbying activities in Ukraine and
identify a number of key issues that need to be
addressed in the process of adopting a special law
on lobbying in Ukraine.
Theoretical Framework or Literature Review
The objective need to lobby, as one of the
democratic institutions of society's influence on
the government, has led to interest in various
aspects of this issue from both political scientists
and legal scientists from various foreign
countries. For example, Weil (2017) provides a
comprehensive overview of different kinds of
lobbying strategies and techniques. Hall &
Deardorff (2006) model lobbying not as
exchange (vote buying) or persuasion
(informative signaling) but as a form of
legislative subsidy—a matching grant of policy
information, political intelligence, and legislative
labor to the enterprises of strategically selected
legislators. Nicoll (2007) suggests a theoretical
and empirical framework and attempts to explain
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variations in interest group behavior at the policy
level.
Intensive political development of Ukrainian
society and its further democratization has led to
a number of theoretical-legal studies of the
phenomenon of lobbying and domestic scientists.
This study analyzed the work of Ukrainian legal
scholars who have dealt with this problem.
Thus, in his dissertation research Godny (2019)
substantiates the understanding of lobbying as a
political and cultural phenomenon of society, the
specificity of which is determined by the existing
features of the relevant state traditions,
constitutional system, differences in economic
systems, historical features, cultural traditions of
society and suggests the use of the concept of
"civilized lobbying". The issues of development
and formation of lobbying in Ukraine, in
particular in the context of the use of foreign
experience, its legislative regulation have been
studied by a number of domestic scientists,
whose works were analyzed in this article.
Also, the information and analytical base of the
study consists of draft laws on lobbying, which
were developed and submitted to the Parliament
of Ukraine, explanatory notes of the subjects of
the right of legislative initiative to them and
conclusions of the Main Scientific and Expert
Department of the Verkhovna Rada of Ukraine
on these draft laws, other official documents.
Methodology
The basis of the study is the dialectical method,
which provides for the need for a comprehensive
study of such a social political-legal phenomenon
as lobbying, the specific content of which is
determined by the influence of historical, social,
economic, cultural components of a society,
state. Based on this, lobbying can be positive, be
one of the democratic legal institutions of
interaction between civil society and
government, and negative, be synonymous with
corruption.
The formal-logical method, based on the laws of
formal logic, was used to clarify the concept of
lobbying as one of the activities, the content of
which is the influence of stakeholders in civil
society, business on the decision-making process
of public authorities. The concept of lobbying
should be defined through a more general generic
concept of influence (pressure, representation of
interests) with the definition of significant
(essential) specific species characteristics of this
activity.
Activity approach, which assumes that the
methodology of the study is based on the
category of human activity as a subject of
political-legal relationships, used in determining
all the necessary elements of the structure of
lobbying activities, namely its subject, object,
result, methods and purpose.
Results and Discussion
The history of the origin of the term "lobby"
(lobbying) is associated with lobbies, hotel
corridors, the corridors of the parliaments of
Great Britain and the United States, which
became a meeting place for various stakeholders
and government officials who listened to
requests and promised, often not selflessly, but
for money, to fulfill them (Kartashov, Horodok
& Herasymchuk, 2016). In the allegorical sense
of political terminology, this word is interpreted
as "corridors of power" (Marenichenko, Sychova
& Garkavyi, 2018). Vocabulary definition of the
word "lobbying" (or "lobby") is a group of people
who exert influence, exert pressure when
considering issues in public bodies in the
interests of certain groups, individuals in favor of
one or another decision (Busel, 2005). So,
lobbying is usually seen as a set of ways of
targeted influence of individual citizens and their
associations, business structures to public
authorities in the process of their rule-making
activities; a special mechanism of dialogue
between the public, representatives of different
social interest groups and public authorities.
First of all, it is necessary to say about the often
quite broad understanding of the concept of
"lobbying" and it is identified with the concept of
public or social "influence", "pressure",
"representation of interests" in domestic legal
science. In particular, the title of one of the draft
laws "On lobbying" in the process of its
consideration was changed to the following: "On
the influence of the public on the adoption of
normative legal acts" (Nesterovych, 2010a). In
this connection, attention should be drawn to the
position of the Parliamentary Assembly of the
Council of Europe, expressed in the report
"Lobbying in a democratic society" of 5 June
2009. According to its, the regulation of lobbying
should be based on the principle of clear
delineation of lobbying as a professional paid
activity and the activities of civil society
organizations (Bazilevych, Nesterovych &
Fedorenko, 2015).
The influence of civil society (interested groups
and individuals) on the rule-making activities of
public authorities can be exercised through a
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number of democratic legal institutions.
Nesterovych (2014) writes that there are two
models of public influence in the law-making
process: 1) Anglo-Saxon (traditional, classical)
model (USA, Canada, Great Britain, Australia,
etc.) - public influence on the adoption of
normative-legal acts is based on the
implementation of the constitutional right of
citizens to petition the authorities and has a
clearly defined legal form; 2) continental
(European) model (Germany, France, Austria,
the Netherlands, etc.) - the influence of the public
on the adoption of normative-legal acts is carried
out through specially created advisory bodies to
public authorities.
Lubinets (2020) points to the main difference
between the American (Anglo-Saxon, classical)
and continental (European) models by regulating
lobbying in the law-making process. The
American model assumes the existence of
legislation on lobbying, which establishes the
procedure for registration and reporting of
lobbyists. The continental model does not impose
strict requirements on lobbyists, but the legal
framework of these states imposes legal
restrictions mostly on officials in relations with
members of the public. This model provides for
the establishment of special advisory institutes,
in which representatives of different interest
groups have the opportunity to influence policy
decisions.
Accordingly, approaches to the legislative
regulation of lobbying in different countries are
different. Some countries have chosen the
American model by adopting a separate special
legislative act in this area (USA, Canada,
Australia, Great Britain, Austria, Ireland, France,
Lithuania, Poland, etc.), and other continental -
has no special legislative acts on lobbying,
provisions governing certain aspects of lobbying
are included in various legislative acts (Germany,
Netherlands, Italy, Spain, Finland, Czech
Republic, Croatia, Romania, Latvia, etc.). At the
same time, for example, the legislation on
lobbying in Hungary, adopted in 2006, was
repealed in 2011 due to its ineffectiveness
(Lubinets, 2020). The Law on Lobbying was
adopted in the Republic of Lithuania in 2000, but
in the first year of its operation only 6 people
registered as lobbyists (European Information
and Research Center, 2016). Thus, for various
subjective and objective reasons, attempts at
legislative regulation the institution of lobbying
in different countries are not always effective.
The country of "classical lobbying" is the United
States, where the legislative regulation of this
activity has deep roots, and did not arise as a
result of a one-time political decision. In 1946,
the world's first special law regulating lobbying
was passed, aimed at separating lobbying from
corruption. Yarovoi (2019) points to the positive
experience of the United States in the field of
special regulation of lobbying activities, and
notes that the problem of corruption related to the
influence of various groups in society on
decision-making by officials, until it is fully
resolved, even in the United States.
Both models of representing the interests of
citizens (their groups) before the government are
to some extent implemented in the legislation of
Ukraine. Thus, the first model of public influence
on the rule-making of public authorities is based
on the implementation of the constitutional right
to appeal to public authorities, local self-
government bodies and officials of these bodies,
who are obliged to consider the appeal and give
a reasoned response within the time limit
established by law in Article 40 (Constitution of
Ukraine, 1996). According to the Law of Ukraine
No. 393/96-VR (1996), citizens can address
public authorities with proposals (comments)
which provide advice, recommendations on the
activities of these bodies and their officials, as
well as to express opinions on the regulation of
social relationships and living conditions of
citizens, improving the legal framework of state
and public life, socio-cultural and other spheres
of state and society. An electronic petition is a
special form of collective appeal of citizens to the
President of Ukraine, the Verkhovna Rada of
Ukraine, the Cabinet of Ministers of Ukraine, and
the local self-government body.
The second model of public influence on the
rule-making of public authorities is based on the
realization of the constitutional right of citizens
to participate in the management of state affairs
in Article 38 (Constitution of Ukraine, 1996). For
example, at the level of the Parliament of
Ukraine, the influence of the professional
scientific community on legislative activity is
realized through the creation of the Scientific
Advisory Board under the Chairman of the
Verkhovna Rada of Ukraine - consultative-
advisory body that operates to attract highly
qualified specialists in the field of law to work on
draft laws and provides its scientific support
(Order No. 502, 2021). At the level of executive
power, this model is implemented through the
legal institution of public councils. Thus, the
Resolution of the Cabinet of Ministers
(Resolution No. 996, 2010) provides for the
establishment of public councils at ministries,
other central executive bodies and local state
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administrations as temporary consultative-
advisory bodies that promote public participation
in the formation and implementation of state and
regional policy. The main tasks of the public
council, in particular, are promoting the
consideration of public opinion by the executive
body, involvement of representatives of
interested parties in decision-making.
Accordingly, lobbying can be considered only as
one of the public political-legal institutions of
public influence (stakeholders and individuals)
on the rule-making activities of public authorities
and their officials, carried out by special entities
(lobbyists) on a professional basis. The formation
of the legal institution of lobbying in Ukraine can
take place only taking into account the existing
in Ukraine legal democratic institutions of public
influence on government, without limiting the
latter, and in parallel with them. Thus, speaking
about the legal regulation of lobbying in Ukraine,
lobbying should be seen as a professional activity
of lobbyists (intermediaries between
stakeholders and public authorities), which
consists in defending the interests of certain
groups and exercising legitimate targeted
influence on public authorities and their officials
in favor of making of one or another decision.
Legislative consolidation of the legal institution
of lobbying should not replace or limit other
existing and existing legal institutions of public
influence on the decisions of public authorities,
and should provide for the formation of a
professional group of mediators between society
and government (lobbyists), who must have a
certain amount of rights and responsibilities to
carry out their mediation activities.
In particular, the Concept of the Draft Law of
Ukraine "On Public Influence on the Adoption of
Legal Acts" defines lobbying as a legitimate
influence of duly registered and accredited
persons (lobbyists and lobbying associations) on
public authorities, their officials in the interests
of customers, during the adoption (participation
in the adoption) of their normative-legal acts
(Order No. 448-р, 2009). The draft law No. 3059
"On State Registration of Lobbying and
Lobbying in Ukraine" of 11 February 2020
defines lobbying as the activity of a natural or
legal person, who from the moment of state
registration and for monetary remuneration, in
accordance with the terms of the agreement on
lobbying, aimed at fulfilling the terms of such
agreement, as well as preparation, planning,
coordination, research, other ancillary work,
which at the time of their implementation are
aimed at fulfilling the terms of the contract for
the provision of lobbying services. Thus,
lobbying is a "mediating" public political and
legal phenomenon, one of the mechanisms of
communication between society and business
with the government (Marenichenko, Sychova &
Garkavyi, 2018).
The subjects of lobbying are lobbyists (legal
entities and individuals) who are engaged in
mediation activities between society and
government, provide organized representation of
the interests of various stakeholders, and are
registered in accordance with the legislation on
lobbying. For example, in the United States there
are lobbyists, lobbying firms, law firms,
companies specializing in government relations,
public affairs. In Germany, lobbying is
exclusively for legal entities with the status of
associations, unions and organizations. In
France, these are individuals and legal entities,
which are mainly formed by professional, age
and other characteristics. In the United Kingdom,
there are lobbyists who are united in lobbying
firms, and most lobbyists are members of the
Association of Professional Political Consultants
(European Information and Research Center,
2016). Accordingly, the objects of lobbying
activities are public authorities and their officers.
The result of lobbying is the adoption (non-
adoption) of a decision (normative-legal act) by
these bodies or their officials in the interests of
relevant groups or individuals. The purpose of
lobbying is to organize and exert pressure
(legitimate influence) on the process of decision-
making by the authorities of certain decisions
(normative-legal acts) to secure the interests of
interested groups or individuals (Nesterovych,
2010b). These interests may be different, but
even in countries with rich democratic traditions,
lobbying pursues predominantly socio-economic
interests (Odintcova, 2008).
The goal of lobbying can be achieved in different
methods. Their choice depends on the political-
legal situation in a particular country, potential
opportunities of subjects and features of objects
of lobbying activity (Kravchenko &
Kucheriavyi, 2019). In the experience of
different countries of legal regulation of
lobbying, the main organizational and legal
forms of interaction of lobbyists with public
authorities in the process of adopting normative-
legal acts are: sending petitions to the authorities;
organization and holding of public hearings;
participation of lobbyists in the work of
parliamentary committees, consultative and
advisory institutions established under public
authorities; initiating the adoption of necessary
normative-legal acts (European Information and
Research Center, 2016). For example, in the
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European Union, the mechanism for cooperation
between civil society and the legislature is the
official "European Commission Transparency
Register", where any European organization can
submit its data in order to receive notification of
the opening of a particular issue of future EU
legislation or, by filling in the relevant
documents, thus communicate its position to the
EU structures (Krut, 2020). In the Ukrainian
reality, in the absence of legal regulation of
lobbying activities and its shadowy nature, illegal
methods of dialogue are usually used: providing
illegal benefits, undeclared funding of politicians
and civil servants, shadow ties, backstage
conspiracies (Main Scientific and Expert
Department of the Verkhovna Rada of Ukraine,
2020).
Professional lobbyists have a certain legal status,
which determines the scope of their rights and
responsibilities, and therefore have real legal
mechanisms in order to provide public
authorities with information on certain topical
(socially significant) issues that need to be
addressed, and to exert legitimate pressure on a
decision. Accordingly, organizational and legal
forms of participation of lobbyists in the
activities of public authorities, methods of
control of lobbying activities and legal
responsibility of lobbyists also require a clear
legislative definition. Rosenko (2010) writes that
lobbying is sometimes compared to advocacy.
Only a advocate protects the already violated
right of the client, and the lobbyist seeks to
ensure his right by adopting appropriate
normative-legal acts.
When trying of legislative regulation the
institution of lobbying in Ukraine, special
attention should be paid to the ethical side of the
issue, which determines the positive or negative
nature of lobbying in general. In particular, it is a
question of creation of an image of the highly
professional, honest and incorruptible lobbyist,
formation of image of independent, successful
and respectable profession. For example, in the
United States, these functions are assigned to the
American League of Lobbyists, a non-
governmental organization established in 1979
(Main Scientific and Expert Department of the
Verkhovna Rada of Ukraine, 2020). Ethical rules
of conduct for lobbyists should be based on the
principles of legality, transparency, openness and
integrity as the basic principles of the lobbying
profession. Legality provides for lobbying
exclusively in the legal field. Transparency and
openness are associated with the availability to
the public of complete, objective and reliable
information about lobbying. Integrity
characterizes the lobbyist's personality, is key to
his reputation as a professional, should become
the standard of the profession, find expression in
corporate moral and ethical standards that
lobbyists must follow when lobbying, and is
ensured by the existence of lobbying ethics. In
particular, the draft Law on Lobbying
(Law No. 5144, 2016) proposed the following
interpretation of integrity as a principle of
lobbying. Integrity is the activity of lobbyists
aimed at conscientious protection of the interests
of clients of lobbying services, prohibition of
lobbyists to simultaneously represent the
interests of two or more competing customers of
lobbying services, if this may lead to a conflict of
interest as defined in the relevant lobbying
agreements.
It should also be noted that the legislative
regulation of lobbying in Ukraine should be
comprehensive and systematic, in particular,
taking into account that lobbying takes place in
the rule-making process at all levels of public
authority from parliament to local governments.
The norms of the special law on lobbying should
be harmonized with the legislation regulating the
functioning of other legal institutions of
influence of certain groups of society and citizens
on the government, as well as with the legislation
determining the legal status of public authorities,
anti-corruption legislation and other legislation
in related areas.
Conclusions
In the current political-legal realities of Ukraine,
lobbying is an integral part of the life of the state
and society, but operates outside the legal field,
has a mostly shadowy, corrupt nature. The
experience and effectiveness of legislative
regulation of lobbying in different countries are
different: both the existence of special laws on
lobbying, and the inclusion of rules on certain
aspects of lobbying in other laws. Technical
copying of foreign models of legal regulation of
lobbying without taking into account the
historical, cultural and state traditions of
Ukrainian society, domestic political-legal
reality is unpromising. The formation of the legal
institution of lobbying in Ukraine cannot restrict
other rights of citizens regarding their influence
on the authorities, which are guaranteed by the
Constitution of Ukraine and defined by national
legislation. Lobbying should be considered as
one of the democratic institutions of influence of
the public and business structures on decision-
making by public authorities (representation of
interests), namely as a professional mediation
activity between society and government.
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Lobbying needs to be clearly distinguished from
other activities related to the influence of civil
society on decision-making by public authorities.
The main issues that need to be resolved in the
process of adopting a special law on lobbying in
Ukraine are the following: 1) development of
theoretical-methodological foundations of
lobbying in national political-legal realities,
taking into account similar foreign experience;
2) a comprehensive approach to the legislative
regulation of lobbying activities at all levels of
public authority; 3) clear coordination of
lobbying norms with legislation in related areas;
4) legislative definition of subjects, objects,
purpose, result, methods of lobbying activity,
legal status of lobbyists, their rights, duties and
legal responsibility, the order of their state
registration; 5) development of corporate moral-
ethical standards, which should guide
professional lobbyists, based on the principles of
legality, transparency, openness and integrity as
the basic principles of the lobbying profession.
Only in this case, lobbying can become one of the
effective, efficient and legitimate democratic
political and legal institutions of public influence
on the content of decisions of public authorities.
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