In order to apply the provisions of the arbitration procedural legislation by the courts uniformly, Resolution No. 46 of the Plenum of the Supreme Court of the Russian Federation dated December 23, 2021 clarifies the rules according to which arbitration disputes are considered in the court of first instance.

The clarifications, which reveal previously controversial issues or give a new interpretation of the provisions of the arbitration procedural legislation are of the main interest.

Review of certain provisions of the Resolution of the Plenum of the Supreme Court of the Russian Federation

1. Recognition of the actions of one of the parties to the process as unfair at the initiative of the arbitration court.

The behavior of one of the parties may be recognized as an abuse of the right not only if there is a reasonable statement from the other party, but also at the initiative of the court, if there is an obvious deviation of the actions of the persons involved in the case from good faith behavior. In these cases, the court, when considering the case, shall establish the fact of abuse of the right and resolve the issue of applying the consequences of unfair procedural behavior provided for by law (for example, the court may attribute all court costs in the case to a person abusing the procedural rights, refuse such a person to satisfy an application or petition).

2. The obligation of the arbitration court to accept the statement of claim returned by the court of general jurisdiction in connection with the lack of jurisdiction of the case by the courts of general jurisdiction.

In the event that a court of general jurisdiction returned a statement of claim (administrative statement of claim) due to the lack of jurisdiction of the courts of general jurisdiction, the arbitration court, in case of application by a person with an indication of the judicial act of a court of general jurisdiction and an annex to this act, shall accept and consider such a claim on the merits after entry into force of the relevant act of the court of general jurisdiction.

3. Filing a claim in court at the place of contract fulfillment.

Filing a claim in court at the place of contract fulfillment shall be possible only if this place is directly named in the contract (for example, the seller’s warehouse) indicating the address and (or) the constituent entity of the Russian Federation in which the contract is fulfilled.

For the purposes of determining jurisdiction, the claimant may not be guided by:

  • the place of actual fulfillment of the obligation;
  • the indication in the contract of the place of obligations fulfillment;
  • the rules of Article 316 of the Civil Code of the Russian Federation on the place of obligation fulfillment.

If the contract does not directly indicate the place of its fulfillment or there is no address for fulfillment, the jurisdiction of the case shall be determined according to general rules.

4. Autonomy of the agreement on the change of jurisdiction.

The agreement of the parties on the change of jurisdiction, which is part of the contract, shall not depend on other terms of the contract, that is, it is autonomous. In this regard, the recognition of a civil law contract as invalid (not concluded) shall not in itself entail the invalidity of such an agreement.

At the same time, in certain cases, the grounds for the invalidity of the master contract and the agreement on jurisdiction may be identical (for example, when establishing a defect of will when concluding a contract, the text of which includes an agreement on the jurisdiction of the dispute, revealing the fact of falsification of the contract and the agreement on jurisdiction included in its text).

Jurisdiction of claims for rights to real estate.

Cases in which the satisfaction of the stated claim and its enforcement will entail the need for state registration of rights to real estate or making an entry in the Unified State Register of Real Estate in respect of transactions subject to state registration, shall be considered at the location of the real estate.

The rules of exclusive jurisdiction (Part 1, Article 38 of the Commercial Procedural Code of the Russian Federation) shall not apply to cases:

  • on the transfer of real estate in connection with the creation, reorganization, liquidation of a legal entity;
  • contesting related-party transactions and major real estate transactions;
  • on challenging acts, decisions and actions (inaction) of state bodies in the course of state registration of rights to real estate.

6. The inability to find out the identity of the defendant being a citizen may not be an obstacle to filing a claim.

The statement of claim may not be left without action and subsequently returned on the sole basis that at least one of the identifiers of the defendant being a citizen is missing in the statement of claim (Individual Insurance Account Number (SNILS), Taxpayer Identification Number (INN), series and number of an identity document, Primary State Registration Number (OGRN) of an individual entrepreneur, series and the number of the driver’s license, series and number of the vehicle registration certificate), the date and place of birth, provided that the claimant does not have this information and that it is impossible to obtain it in the manner prescribed by law. If the claimant does not know the date and place of birth of the defendant, none of its identifiers and this is indicated in the statement of claim, the court shall make a request to the competent authorities (for example, the authorities of the Pension Fund of the Russian Federation, tax authorities, internal affairs authorities) to provide the relevant information.

7. Grounds for leaving the statement of claim without action.

It is not allowed to leave the statement of claim without action (return of the statement of claim) on the grounds related to the incompleteness of stating by the claimant of the circumstances on which it bases the claims made, or insufficient evidence confirming these circumstances.

At the same time, the court shall have the right to leave the statement of claim without action if the statement of claim does not allow determining the nature of the disputed legal relations, the circumstances of their occurrence, does not contain the claimant’s claim against the defendant with reference to laws and other regulatory legal acts.

8. Counting of the period for leaving the application without action.

Within the meaning of Article 128 of the Commercial Procedural Code of the Russian Federation, the circumstances that served as the basis for leaving the application without action shall be considered eliminated from the day the necessary documents or information are received by the arbitration court.

In this regard, when deciding on the length of the period for leaving a statement of claim without action, the courts shall take into account the time required to eliminate the mentioned circumstances, as well as the time for sending and delivering mail based on the territorial remoteness of the persons involved in the case.

Sending by a person of documents by mail shortly before the expiration of the period established by the court, so that if the postal organizations comply with the delivery standards and the deadlines for sending mail, this will lead to the receipt of such correspondence after this period, may not be regarded as timely execution of the court’s requirements to eliminate the relevant circumstances, because in relation to Part 7, Article 114 of the Commercial Procedural Code of the Russian Federation, these requirements are considered fulfilled on the day the documents are received by the court.

9. The authority of the representative to sign the statement of claim shall be confirmed by a copy of the diploma.

The statement of claim shall be accompanied by copies of documents on higher legal education or an academic degree in the legal specialty of the representative who signed the statement of claim, or documents certifying his/her status as a lawyer, patent attorney, arbitration manager, sole management body of the organization.

At the same time, a copy of the document on education or academic degree may not be certified, because if there is doubt about the authenticity of the copy, the court shall invite the person to present the original of the specified document for viewing.

Documents on education or academic degree attached to an application submitted to the arbitration court in electronic form shall be submitted in the form of electronic images of documents certified by a simple electronic signature or an enhanced qualified electronic signature of the person submitting the documents, or in the form of electronic documents.

If the above documents are not attached to the statement of claim, the court shall leave the statement of claim without action and propose to eliminate the shortcomings.

10. The performance by a representative of technical actions shall not require the presentation of a diploma.

For a person to perform actions of a technical nature that are not related to the provision of qualified legal assistance in a case (for example, transferring applications and petitions to the court, making extracts from the case materials, making copies therefrom, obtaining copies of judicial acts, a writ of execution), submission of documents confirming the presence of a higher legal education or an academic degree in a legal specialty is not required. In these cases, in order to perform actions on behalf of a person involved in the case, a power of attorney to represent the interests of this person shall be sufficient in the arbitration court.

11. Oral confirmation of the powers of a representative shall apply only to a specific hearing.

If the powers of the representative are expressed in the statement of the represented, made at the hearing in the manner prescribed by Part 4, Article 61 of the Commercial Procedural Code of the Russian Federation, then such powers of the representative shall be valid only at the court hearing when the said statement is made.

The representative, whose authorization took place at the court hearing, shall submit to the court a document on higher legal education or on an academic degree, unless otherwise provided by law.

12. Changing the legal qualification shall not be a change in the subject or grounds of the claim.

A change in the legal qualification of a claim (for example, from the recovery of damages to the recovery of unjust enrichment) or the legal substantiation of the claim (for example, recovery under the rules on delivery to recovery under the rules on obligations due to infliction of harm) shall not be a change in the subject matter or grounds of the claim, except in cases when the claimant, when changing the legal qualification, also changes the claim (subject of the claim) and refers to other factual circumstances (cause of action).

13. Right of the arbitration court to accept additionally submitted claims for proceedings.

If there are grounds for combining claims and subject to the general rules for filing a claim, the arbitration court shall have the right to accept additional claims (for example, for the collection of a penalty, interest under Article 395 of the Civil Code of the Russian Federation, for the collection of interest for the use of funds under Article 317.1, Article 809 of the Civil Code of the Russian Federation in addition to the previously stated claim for the recovery of the principal; on the application of the consequences of the transaction invalidity, if the claim to recognize this transaction as invalid was previously declared; on the collection of debt for new payment periods under agreements providing for time-based payments, in particular lease agreements and loan), despite the fact that the claimant did not file a separate statement of claim. Acceptance of such claims shall not violate the rights and legitimate interests of the persons involved in the case.

14. When filing a counterclaim, it is not required to comply with the mandatory pre-trial procedure for settling the dispute.

A counterclaim may be accepted by the court in compliance with the general rules for filing a claim at the place of consideration of the initial claim and without observing the mandatory pre-trial procedure for settling the dispute.

This legal position is not new and has already been reflected in Resolution No. 18 of the Plenum of the Supreme Court of the Russian Federation dated June 22, 2021. It is motivated by the fact that a counterclaim is filed after the initiation of proceedings in the case and compliance with the pre-trial procedure for resolving the dispute in this case will not contribute to the achievement of the goals of pre-trial settlement.

15. Return of a counterclaim in case of abuse of procedural law.

The arbitration court, having established that the counterclaim was not timely filed by the person involved in the case due to abuse of procedural law and its filing is clearly aimed at protracting the proceedings, shall have the right to issue a ruling on the return of the counterclaim and explain to the defendant the right to file an independent claim. The return of the counterclaim on this basis is not allowed if the defendant was not previously able to file such a statement for objective or other noteworthy reasons that were reported to the court.

16. Demanding evidence from a person involved in the case.

The arbitration court shall have the right, at the request of a person involved in the case, to demand evidence, including from another person involved in the case. In the event of failure to fulfill the obligation to submit the evidence required by the court for reasons recognized by the arbitration court as unjustified, or failure to notify the court of the impossibility of submitting evidence at all or within the established time period, the arbitration court shall have the right to charge such person all the legal costs of the case, and also to substantiate its conclusions with explanations from the other party.

17. Repeated filing of a petition.

The court shall have the right not to consider a petition filed repeatedly by the same person and on the same grounds. Repeated unmotivated statement of the same petition during the consideration of the case may be grounds for removal from the courtroom or the imposition of a court fine.

Konsu support

Our experts have extensive experience in handling cases in arbitration courts. Contact us to get qualified legal support in arbitration proceedings.