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development of Russian legislation
importance of court practice review in Russian arbitration (commercial) court proceedings
A. A. Solovyev Judge, Chairman of the Judicial Board of the Arbitration Court for Moscow Region, Doctor in Law.
Summary: The article concerns the matters of court practice review in terms
of participation in arbitration (commercial) court proceedings. The author gives general description of the system of the arbitration courts administering business and economic justice in the Russian Federation, covered the key areas and worked out the practical recommendations concerning the focal points of arranging the appropriate work in respect of review of law enforcement practice of such courts.
Docuterms: court practice, law enforcement, court proceedings, the High Arbitration
Court, arbitration courts.
Studying and summarizing of court practice are aimed at assurance of uniformity in law enforcement and are undoubtedly significant for activity of any judicial body, including the arbitration courts of the Russian Federation, due to the fact that, pursuant to the provisions of the Federal Constitutional Law of 28 April 1995 No.
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1-FKZ “On the arbitration courts of the Russian Federation”, the arbitration courts pertain to the federal courts and belong within the Russian judiciary system.
The arbitration courts administer justice by resolving arbitration disputes and reviewing other legal matters within their competence. The principal objective of the arbitration courts in the Russian Federation in course of resolving disputes subject to their jurisdiction are the following: (i) to protect the rights and lawful interests, infringed or contested, of the enterprises, institutions, entities and individuals in the area of business and other economic activities, and (ii) to contribute to strengthening of legality and preventing wrongdoings in the area of business and other economic activities.
The system of state arbitration courts is composed by: 1) the High Arbitration Court of the Russian Federation (HAC RF); 2) federal district arbitration courts (arbitration courts of cassation); 3) arbitration courts of appeal; 4) first instance arbitration courts in republics, territories, regions, federal cities, autonomous region and autonomous districts (arbitration courts of constituent entities of the Russian Federation); 5) specialized arbitration courts.
In literature on law judicial enforcement practice is understood to be, in particular, a range of judge opinions imposed by various courts in respect of the similar cases and acknowledged as valid and reasonable by the court of higher judicial instance. Moreover, the court practice can be deemed “established” as soon as the legal positions reflected in the judgments issued by the courts of lower judicial instance to settle certain legal disputes are approved by the courts of higher judicial instance1.
Chairman of the HAC RF A. A. Ivanov fairly mentioned that “each judge should perceive as an imperative the prescription to settle disputes in accordance with the established court practice - in the manner as the cases of such kind are generally resolved. He should elaborate this prescription by himself and it will require from him a certain approach to dispute settlement which may be in fact contrary to some personal or scientific principles of this judge or even to his understanding of justice.”2
Therefore, it is obvious that in course of preparation of sitting the judges as well as the representatives of the parties should thoroughly and carefully review law
1 K. A. Kovalenko Ponyatije “slozhivshajasja pravoprimenitelnaya praktika” v federalnom konstitutsionnom sudoproizvodstve [The idea of “established law enforcement practice” within the framework of federal constitutional proceedings] // Zhurnal Konstitutsionnogo Pravosudija [Constitutional Justice Magazine]. 2012. No. 1.
2 A. A. Ivanov Jedinoj praktika stanovitsja v rezultate jezhednevnoj kropotlivoj raboty kazhdogo sudji [Practice becomes uniform due to daily hard work of every judge] // Vestnik Federalnogo Arbitrazhnogo Suda Moskovskogo Okruga [Bulletin of the Federal Arbitration Court for Moscow District]. 2010. No. 3. P. 9.
enforcement practice of the arbitration courts regarding the similar legal situation. In this context, it is necessary to dwell briefly on the main directions of such work:
1. REviEw oF LAw ENFoRCEMENT CouRT pRACTiCE of the HAC RF.
It appears that review of law enforcement court practice of the HAC RF should become the main focus point for the topic concerned. It is due to the fact that the HAC RF is the supreme judicial body to settle business and economic disputes as well as other cases resolved by the arbitration courts, carry on judicial supervision of their activities in the procedural forms settled by federal law and provide explanation as to the matter of court practice.
The most convenient method of achieving this objective is to refer to the official site of the HAC RF (http://arbitr.ru) where all the required files are available and to the server “Arbitration Cases Catalogue” (http://kad.arbitr.ru). Review of law enforcement court practice of the HAC RF can be carried out in the following principal directions:
1.1. Review of the Decisions of the Plenum and Information Letters of the Presidium of the HAC RF.
The HAC RF provides explanations in respect of various matters arising in court practice in order to assure its uniformity. Such explanations are issued in the form of Decisions of the Plenum binding upon the entire system of arbitration courts. It is necessary to point out that references to the Decisions of the Plenum of the HAC RF can be contained in the declaration of reasons of a arbitration court ruling.
In addition to review by means of judicial supervision of legality of the final and binding judicial decisions of arbitration courts, the Presidium of the HAC RF is also engaged in exploring special matters of the court practice, working out recommendations for arbitration courts in the form of Information Letters.
1.2. Review of legal situations considered by the Presidium of the HAC RF in course of performing its functions of the court of supervision.
It is necessary to note that law enforcement practice is considered to be established exactly from the date when the Decision of the Presidium is placed to the full extent on the site of the HAC RF. So, it is crucial to detect when the texts of judicial acts of the HAC RF are published on the correspondent site in order to work out a correct legal position.
It is especially urgent in light of the provisions of Clause 5 Part 3 Section 311 of the Arbitration Procedural Code of the Russian Federation. Pursuant to these provisions, if there is a designation or amendment of law enforcement in the Decision of the Plenum or Presidium of the HAC RF, or if there is a reference
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in the corresponding act of HAC RF to the possibility of review of the final and binding judicial acts, such fact shall be deemed a new matter as a ground for review by the arbitration court of the final and binding judicial act issued by this court. The most efficient method to detect updates is to subscribe on the site of the HAC RF.
1.3. Review of judgments of the HAC RF imposed when considering first instance cases in respect of contestation regulatory and non-regulatory legal acts in the business or economic area of interest for the corresponding party. In particular, it can be referred to the documents of the Government of the RF, the Ministry of Finance, the Ministry for Economic Development, the Ministry for Culture, the Ministry for Public Health and Social Development, the Ministry of Education and Science, the Federal Anti-Monopoly Service, the Federal Tax Service, the Federal Customs Service.
1.4. Review of legal position stated in the rulings of judicial panel of the HAC RF to dismiss the case referral to the Presidium of the HAC RF. In this case, as Chairman of the HAC RF A. A. Ivanov correctly mentioned, “one should not jump to conclusions on the basis of unfavorable rulings. This practice cannot be equaled with the practice of judgments of the Presidium of the HAC RF. It is necessary to understand that a refusal is nothing but an opinion of three certain judges, while some other judges in their place could have taken an opposite decision. Court rulings are, if you can put it like this, more impaired area of practice”3.
2. REviEw of judicial acts and survey of court practice of other arbitration courts.
Besides the law enforcement court practice of the HAC RF, it appears reasonable to review the judicial acts of the first instance arbitration courts, arbitration courts of appeal and cassation where the similar cases were examined. In this case, it is highly advisable to focus on the law enforcement practice being established in that specific arbitration court district4 where the dispute is to be settled.
All the judicial acts of the arbitration courts are available on the server of the HAC RF “Arbitration Cases Catalogue” (http://kad.arbitr.ru). Moreover, it is reasonable to use legal reference systems, the most popular ones in Russia being KonsultantPlus, Garant and Kodeks.
It is also necessary to pay attention to the subject surveys of the court practice
3 A. A. Ivanov. Nelzja byt “svjateje papy rimskogo” [One cannot be “more Catholic than the Pope”] // Nalogovyje Spory [Tax Disputes]. 2o09. No. 1.
4 There are 10 such districts in Russia: Volgo-Vjatskiy, Vostochno-Sibirskij, Dalnevostochnyj, Zapadno-Sibirskij, Moskovskij, Povolzhskij, Severo-Zapadnyj, Severo-Kavkazskij, Uralskij, Tsentralnyj.
performed by the first instance arbitration courts, arbitration courts of appeal and cassation. The mentioned surveys are available in the section “Summaries of arbitration courts of the RF” on the site of the HAC RF (http://arbitr.ru/as/pract/ac_ prac) and on the respective sites of the corresponding courts.
In conclusion, I would like to emphasize that in order to obtain positive result in terms of participating in the arbitration court proceedings it is necessary to possess not only of the detailed knowledge of the provisions of law, but also of certain analysis skills.
