Courts, FAS and Rospatent in quarantine: how to submit without missing deadlines
Courts, FAS and Rospatent in quarantine: how to submit without missing deadlines
We all know that business is not coming to a halt under the quarantine: lawsuits, applications and objections still need to be submitted. Post and electronic platforms are not always a universal solution as the original must sometimes be furnished or several boxes of documents submitted at once. Numerous questions arise as to how hearings at courts, the FAS of Russia or other authorities are conducted in the current climate. Here we would like to share the latest news and hands-on experience in this sphere.
1. Justice on pause
All court hearings were suspended on 19 March 2020, with the exception of ones relating to urgent cases (Resolution No. 808 of the Russian Supreme Court Praesidium and the Judicial Council Praesidium dated 18 March 2020).
urgent cases, including those relating to defence of individuals’ rights; certain administrative offence cases (infringements on individuals’ rights, offences punishable by administrative arrest, administrative removal or suspension of operations); applications for interim relief; court-ordered and summary proceedings cases;
cases in which all parties have requested examination in their absence, unless their attendance at the hearings is compulsory.
Even so, the new RSC Resolution also allows courts to decide to examine any other cases depending on the circumstances, the opinions of the litigating parties and conditions imposed by the high alert regime in effect within the relevant constituent entity of the Russian Federation.
We expect that most commercial disputes will not be heard during this period. Yet the new RSC Resolution (like the previous one) provides no details on the list of permitted hearings and is recommendatory in nature. So, in practice and as before, certain adjustments to the list of cases that may be heard may be made by Court Presidents or Judges handling particular cases.
For instance, the First Cassation Court of General Jurisdiction has continued holding court sessions even since the restricted operations regime was introduced. Meanwhile, on 4 April (i.e., before the new RSC Resolution was passed), the Intellectual Property Court announced that it was closing down until 30 April 2020 so will resume work on 6 May.
We recommend carefully studying information about court operations on the given court’s website and, as necessary, telephoning to find out whether a particular hearing is to be held.
2. Courts going online?
Under the effective laws, courts may hold hearings by video conference, yet a party must appear in person at a court that will arrange for a video conference with another court. Attendance by video connection from home is not allowed.
Yet it is possible that participation in hearings from home by video conferencing services might soon be permitted, for instance on urgent cases. In particular, the new RSC Resolution specifies that if courts are technically capable, they should initiate case hearings by video conferencing (though nothing is said about the technical means that could be used).
For instance, on 30 March 2020, a Judge of the Sverdlovsk Region general jurisdiction court examined by WhatsApp an administrative case (No. 5-40/2020) over suspension of work by a café that had failed to close down pursuant to the anti-coronavirus regulations. The resolution issued by the Judge mentioned that the Judge examined the case “by video call using the WhatsApp messenger”. There have been several other examples of similar cases.
On 2 April, the media reported that members of the Federation Council had developed a draft law on holding court hearings by video conference from home. The draft law was submitted to the Supreme Court and the Government for review (https://www.kommersant.ru/doc/4310843). We will monitor any developments in connection with the draft law and keep you posted.
3. Submitting documents to court: what is happening about deadlines?
Compliance with deadlines amid the pandemic is a matter of concern for all lawyers. What if the deadline for filing, say, an appeal is 30 April 2020 when court registries are closed and accept no documents? Or if it is impossible to sign a document (i.e., physically go to the office) or obtain a power of attorney authorising to sign?
The general rule is that, if the last day of a procedural period falls on a non-working day, it is deemed moved to the next business day (part 4, Art. 114 of the Russian Commercial Procedure Code and part 2, Art. 108 of the Russian Civil Procedure Code). Since all quarantine days up to and including 30 April 2020 are deemed to be non-working (see Presidential Decree No. 239 dated 2 April 2020), the last day of all procedural periods within this time span (from 28 March 2020 through 30 April 2020) will be the next business day, i.e., 6 May 2020.
The same reasoning should apply to limitation periods (Article 193 of the Russian Civil Code). Consequently, if the last day of the limitation period falls on any non-working day from 28 March 2020 through 30 April 2020, the period will expire on 6 May 2020.
Even so, there is no certainty that courts will approach the matter consistently until an official position is published by the Russian Supreme Court. Please note that, in accordance with the draft of the Russian Supreme Court clarifications on the above questions, quarantine days are considered as working days.
To do this, one could use:
the special information systems My Arbitrator (Moi Arbitr) and SAS Justice (GAS Pravosudiye), or
the Russian Post.
Use of information systems
Some courts had stopped accepting documents via electronic systems (portals). For example, it was impossible to file documents with the Moscow State Commercial Court via the My Arbitrator system between 27 March and 6 April 2020, inclusive. Since the ‘coronavirus vacation’ has been extended, we do not expect this practice to continue. In particular, the technical possibility of filing documents with the Moscow State Commercial Court via My Arbitrator portal was restored on 7 April.
Yet many courts will only start processing (i.e., accepting, registering and passing rulings) documents submitted via the information system during the quarantine when they resume work in May (e.g., this information has been posted on the Intellectual Property Court website). Even so, we still recommend submitting documents via the electronic systems and portals on non-working days to minimise the risk of missing deadlines, since a document will be deemed submitted to the court on the date it is logged on the information system rather than when it is registered by the court (clause 4 of the Procedure for Filing Documents Electronically with the Russian State Commercial Courts; clause 4 of the Procedure for Filing Documents Electronically with Federal Courts of General Jurisdiction).
When documents are submitted via the electronic systems My Arbitrator and SAS Justice, it should be remembered that submission of certain documents (applications for interim relief, statements of claim requesting interim relief, etc.) is only possible using an (advanced) qualified digital signature.
Submitting by Russian Post
Russian Post worked under special arrangements on 30 March through 1 April. Most post offices were closed to visitors. On 2 April, though, post offices resumed normal work and no information about any new restrictions has been offered.
We will continue monitoring the situation.
4. Travel by advocates and notaries
The Ministry of Justice has requested the constituent entities of the Russian Federation to ensure that advocates and notaries are still able to travel after special travel arrangements are introduced, subject to their furnishing ID and complying with the rules set by Chambers of Advocates and Notarial Chambers of the relevant constituent entities of the Russian Federation. Consequently, advocates and notaries are likely to be able to travel freely in order to discharge their professional duties.
Many of our lawyers are qualified advocates and are ready to provide you with any legal assistance you might require.
5. Cooperation with Rospatent
Rospatent is still functioning, though offices accepting hard copy materials are temporarily closed. Applications and all types of mail may be sent to email@example.com until hard copy applications are accepted again.
An application submitted by e-mail is considered equivalent to a hard copy (not an electronic application) so reduced government fees do not apply. All correspondence regarding applications filed by e-mail is also conducted by e-mail. The application and all types of mail submitted by e-mail must be in the form of scanned copies in PDF format and contain the applicant’s signature.
An application is deemed to have been filed electronically (and be subject to the relevant reduction in government fee) if the following electronic portals are used:
www.rupto.ru — the official website of the Federal Intellectual Property Service (Rospatent);
www.fips.ru — the official website of the Federal Institute for Industrial Property.
Hard copy documents may also be sent by Russian Post.
6. Cooperation with the the FAS of Russia
FAS staff are working remotely owing to the pandemic, though certain officers still come to their workplaces. Access to the buildings of the FAS of Russia and its local offices is currently restricted.
Special operating arrangements of the antitrust authority during the pandemic:
Sessions and working meetings
The procedure for hearings on antitrust and administrative offence cases has been modified. A notice posted on the FAS website reads that cases are, if possible, to be considered remotely using video conferencing or to be postponed. This approach will be in effect at least until 30 April 2020.
Complaints against public procurements, purchases by state companies or industry tenders and applications for inclusion of bidders on the register of bad faith suppliers are to be considered remotely. All sessions of the antitrust authority’s commissions to consider such case categories must be held by video conference after 6 April 2020. Here is a link to the relevant guidelines: https://fas.gov.ru/spheres/5.
Working meetings with representatives of the FAS of Russia may also be held by video conference, though this will be at the discretion of the particular officer involved.
Communications by telephone
It is currently difficult to contact FAS officers by telephone, in particular in connection with cases and applications concerning economic concentration transactions.
The FAS of Russia has temporarily suspended ordering new and completing pending inspections, other than off-schedule ones for compliance on matters pertaining to protecting the safety of human life and health, public purchases and defence procurement contracts.
Documents may be submitted to the FAS central office by post or using the physical postbox on the FAS building. The FAS secretariat is temporarily closed. The optimum method for submitting documents to local offices is also by post or courier.
At the same time, no formal regulations have been passed on adjusting how procedural terms are calculated under Federal Law No. 135-FZ “On Protection of Competition”.
7. World Intellectual Property Organization (WIPO)
WIPO is continuing to work normally under the Patent Cooperation Treaty (РСТ), Madrid System for the International Registration of Marks, Hague System for the International Registration of Industrial Designs, Lisbon System for the International Registration of Appellations of Origin and Geographical Indications and administration of other intellectual property assets. The WIPO Arbitration and Mediation Centre (AMC) is considering disputes as usual.
PCT applications and those under the Madrid and Hague Systems filed with Rospatent as the Receiving Office, as well as all kinds of follow-on mail or documents regarding international applications may be sent to the Federal Institute for Industrial Property using the e-mails:
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