Case examination rules for commercial appeal and cassation courts: new Russian Supreme Court clarifications
Legal Update No 778
Bryan Cave Leighton Paisner (Russia) LLP (formerly Goltsblat BLP in Russia), advises that, on 30 June 2020, the Russian Supreme Court Plenum passed new Resolutions No. 12 “On Application of the Russian Commercial Procedure Code by Commercial Courts of Appeal” and No. 13 “On Application of the Russian Commercial Procedure Code by Commercial Courts of Cassation”.
These Resolutions replace and supersede similarly named Supreme Commercial Court Plenum Resolutions No. 36 dated 28 May 20091 (SCC Resolution No. 36) and No. 13 dated 24 September 19992.
In its new Resolutions, the Supreme Court mostly standardises many already established legal positions and rules, some stemming from SCC Resolution No. 36.
At the same time, the Supreme Court also offers the new explanations summarised in this overview based on our understanding.
I. RUSSIAN COMMERCIAL PROCEDURE CODE APPLICATION BY COMMERCIAL COURTS OF APPEAL
1. Appealable judicial acts
The Supreme Court specifically points out that appeals against special court rulings are possible within ten days of their issue because such judicial acts affect the rights and legitimate interests of the persons involved.
2. Procedure and timing for filing an appeal and its acceptance by courts
Unlike the clarifications offered in SCC Resolution No. 36, the Supreme Court specifically confirms the established judicial practice whereby the fact that a commercial (‘arbitrazh’) court of the first or appeal instance misses an RCPC3 deadline for sending a copy of the judicial act by post or delays in publishing it online does not extend the cassation appeal period but, if the appellant files a relevant petition, does constitute grounds for reinstating the elapsed procedural period for filing an appeal. In the latter case, however, the appeal court will have to take into account that, if the procedural deadline is missed by more than the court’s posting delay, it will have to be established whether the appellant had sufficient time to prepare and file the appeal within the period set by the procedure law.
The Supreme Court also states once more that reasons for reinstating the period for filing an appeal might include circumstances beyond the appellant’s control that prevented it from preparing and filing a reasoned appeal on time (such as a high alert or emergency regime introduced throughout or on parts of the Russian Federation).
The Supreme Court’s explanations that an appeal period may be reinstated if missed because it was incorrectly determined by the first instance court are also of interest and might prove helpful. For instance, in practice, first instance courts often mislead case parties by naming an incorrect period for appeals in the operative part of their decisions. This constitutes grounds for restoring the period for filing an appeal.
3. Case consideration by a court of appeal
Supplementing the clarifications given in SCC Resolution No. 36, the Supreme Court notes the cassation court’s right to cancel an appeal court resolution not only for failure to accept additional evidence when there are grounds for doing so but also for accepting it without good reason if this results or could result in an incorrect judicial act. A similar position was previously reflected implicitly in the Supreme Court’s practice on particular cases (see, for instance, Russian Supreme Court Ruling No. 305-ЭС17-14236(7, 8) dated 20 December 2018 on case No. А40-86553/2016).
The Supreme Court specifies that a petition by a party to have additional evidence adduced by the court of appeal should be filed and considered before the appeal is examined on the merits. Consequently, we believe it practicable to file and submit additional evidence to the court concurrently with the appeal itself.
Please note that the Supreme Court has eliminated the reservation in SCC Resolution No. 36 that an appeal court must pass a supplementary resolution within two months of its (initial) resolution taking legal effect. In other words, courts of appeal now have unlimited time to pass a supplementary decision, if required.
II. RUSSIAN COMMERCIAL PROCEDURE CODE APPLICATION BY COMMERCIAL COURTS OF CASSATION
1. The right to file a cassation appeal
The Supreme Court reiterates the clarifications contained in its Plenum’s Resolution on case consideration by appeal courts: a cassation appeal may be filed by a party that did not participate in the case examination but whose rights and obligations are discussed in the judicial act. To file a cassation appeal, the party will have to prove that the contested judicial act affects their rights and obligations, otherwise the cassation appeal will be rejected (returned to the appellant).
2. Judicial acts appealable in cassation
The Supreme Court provides a detailed list of judicial acts subject to cassation appeal. In certain cases, a cassation appeal is not possible, such as when an appeal is rejected or appeal proceedings are terminated following retraction of the appeal.
3. The period for filing a cassation appeal
Concerning calculation of the period during which a cassation appeal may be filed, the Supreme Court reiterates its position set out in the Supreme Court Plenum resolution on case consideration by commercial courts of appeal: delayed production of a judicial act constitutes grounds for restoring the elapsed procedural period rather than extending the period for filing a cassation appeal.
4. Case consideration by a commercial court of cassation
From our point of view, no crucial practical issues are settled in this section of the Resolution.
4.1. Suspending execution of a judicial act
The Supreme Court provides explanations concerning the cassation court’s special right to suspend execution of judicial acts passed by lower courts. Under the new clarifications, a relevant petition may be filed directly with the cassation court even before it actually receives the cassation appeal. The suspension petition will need to be accompanied by a copy of the cassation appeal with the first instance court’s appeal acceptance stamp.
The new mechanism suggested by the Supreme Court will, therefore, save time and help in avoiding red tape when a petition is submitted for suspending execution of a judicial act via the first instance court. Previously, this protracted process nullified the benefits of having execution of judicial acts suspended.
4.2. Ensuring that judicial practice is consistent
The Russian Supreme Court is maintaining its course of ensuring consistency of judicial practice by reconfirming that a cassation court, when verifying correct application of substantive and procedural rules of law, establishes whether conclusions drawn by courts match the law application practices offered in clarifications by supreme courts.
One of the new rules validated by the Supreme Court Plenum Resolution is that the parties are entitled to support their arguments and objections by referring to previous cases involving similar factual circumstances.
4.3. Adducing cassation appeal supplements
The Supreme Court lays down that, in addition to a response to the cassation appeal (for which a particular deadline may be set by the cassation court), supplements may also be filed with the cassation court containing a “purely legal” justification for the arguments. The supplements must rely on evidence available in the case records and be sent to the litigating parties in advance.
1 “On Application of the Russian Commercial Procedure Code by Commercial Courts of Appeal”
2 “On Application of the Russian Commercial Procedure Code by Commercial Courts of Cassation”
3 Russian Commercial Procedure Code
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