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Appeal “Novels” in Arbitration Proceedings

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In the summer of 2020, the Supreme Court of the Russian Federation (the “SC”) is actively working to clarify the rules governing the appeal procedure in arbitration proceedings. The innovations affected both appeal and cassation. This article looks at the most important and significant provisions of the Resolution of the Plenum of the SC regarding appeal issues in arbitration proceedings1.

1. On a “judicial precedent” in arbitration proceedings
The Supreme Court of the Russian Federation has virtually changed its attitude towards judicial precedents: earlier, resorting to judicial practice was only a recommendation for judges, which they followed at their own discretion, but now it has become their responsibility. The SC explained that when the court of appeal verifies the legitimacy of the application of substantive and procedural law regulations, the court establishes whether the conclusions of the inferior court comply with the practice of the Plenum of the SC, resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation, resolutions of the Presidium of the SC and the Presidium of the Supreme Arbitration Court of the Russian Federation, as well as relevant judicial practice reviews of superior courts. From this perspective, inferior courts no longer have the right to ignore the official opinion of superior ones, otherwise the decisions made may be canceled.

2. “The principle of procedural economy”, or the New organisational and functional principle of arbitration proceedings
From now on, when filing an appeal after the initiation of appeal proceedings on the complaint of another person, the court does not return the complaint to the second and subsequent applicant but decides whether to accept it for proceedings. The principle of procedural economy has echoed in the following case: now the failure to attach a copy of the contested act does not prevent the consideration of the complaint if it was originally placed in the Card Index of Arbitration Cases or is stored in the case materials.

3. “No extension but restoration of the term”
It should be noted that every explanation of the SC highlights the relevance of the issue of restoring the deadline for filing a complaint. As the SC emphasises, the untimely sending of a copy of the decision by the primary court does not constitute a ground for extending the appeal period. However, in the event that the applicant missed the deadline for appeal, the untimely sending of a copy of the court decision will be a reason for restoring the deadline if the applicant has their petition. In addition, the Resolution of the SC provides guarantees of protection of the rights of the applicants in the restoration of the time limit for appeal who missed it as a result of the primary court misidentifying the term for appeal.

4. Unmotivated acceptance or rejection of evidence? Appeal is possible!
The Supreme Court has changed the rule regarding the acceptance of additional evidence on appeal. Now, the unmotivated acceptance of new evidence by the court of appeal, as well as unjustified refusal to accept such evidence, may become grounds for canceling the judicial act of the court of appeal, but only if this has led or could have led to the adoption of an illegal and (or) unreasonable judicial act. It is worth noting that earlier, the unmotivated acceptance or non-acceptance of additional evidence by the court of appeal could not serve as a ground for canceling the appeal ruling or decision.

5. Jurisdiction exclusion in arbitration proceedings
The SC has indicated that the court of appeal may transfer the case, according to the jurisdiction, to the court of general jurisdiction, if it is recognised that the case was not previously subject to consideration in the arbitration court. This innovation appeared as a result of the “procedural reform” carried out in 2019, which abolished the institution of jurisdiction in civil and arbitration proceedings.

The Resolution of the Plenum of the SC provides answers to many questions that most often arise during the preparation and filing of a complaint with the court of appeal. Our article only reflects certain aspects of the innovations that, as we believe, are the most important. We assume that these clarifications of the Supreme Court will not only be aimed at unifying the practice related to controversial and complex issues, but will also have a positive impact on the protection of the rights and interests of applicants.

Article prepared by F+P trainee Olga Fedulkina

 


1 Resolution of the Plenum of the Supreme Court “On the Application of the Code of Arbitration Proceedings of the Russian Federation upon Consideration of Cases in the Arbitration Court of Appeal” No. 12 dated 30 June 2020.

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