Challenging and Enforcing Arbitration Awards

Last verified on Tuesday 29th March 2022

Challenging and Enforcing Arbitration Awards: Russia


Hogan Lovells

Applicable requirements as to the form of arbitral awards

1. Must an award take any particular form?

Russia

Under article 31 of the Russian Law On International Commercial Arbitration (ICA Law) the arbitral award shall be made in writing and signed by a sole arbitrator or by either all members of an arbitral tribunal or its majority subject to an indication of the reason for the absence of signature(s). The award shall state the reasons upon which the award is based, the conclusion on the grant or dismissal of a claim, the amounts of arbitral fees and costs and their allocation between the parties. The award shall contain the date on which the award was made and indicate the place of arbitration. Copies of the award shall be produced and served to each party.

A copy of an arbitral award shall be duly certified: by a notary public in case of  ad hoc arbitration or by the permanent arbitral institution that administered the case) (article 35(2), ICA Law; article 237(4)(1), Russian Commercial Procedure Code; article 419(4)(1)), Russian Civil Procedure Code). Certification is obligatory if a party applies for the enforcement or setting aside of an award on the territory of Russia.

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Applicable procedural law for recourse against an award (other than applications for setting aside)

2. Are there provisions governing modification, clarification or correction of an award? Are there provisions governing retractation or revision of an award? Under what circumstances may an award be retracted or revised (for fraud or other reasons)? What are the time limits?

Russia

Under article 33 of ICA Law, within 30 days after the receipt of the award (or other term agreed by the parties), a party, with notice to the other parties, may request the arbitral tribunal:

  • to correct in the award any error in computation, any clerical or any error of a similar nature;
  • subject to the parties’ agreement, to give an interpretation of a specific point or part of the award.

If the arbitral tribunal considers that the request for correction or interpretation is justified, the arbitral tribunal shall make such correction or give interpretation within 30 days of receipt of the request. Such interpretation by the arbitral tribunal shall form the part of the award.

The arbitral tribunal may within 30 days of the date on which the award was made make corrections of any error in computation, any clerical or any error of a similar nature on its own initiative.

Unless the parties agreed otherwise, within 30 days after the receipt of the award a party, with notice to the other parties, may request the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but not decided by the arbitral tribunal. If the arbitral tribunal considers that the request for an additional award to be justified, it shall render an additional award within 60 days of receipt of the request.

Russian law does not provide for the revision of arbitral awards on the merits either by permanent arbitration institutions or by state courts.

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3. May an award be appealed to or set aside by the courts? What are the differences between appeals and applications to set aside awards?

Russia

The arbitral award cannot be appealed before the Russian courts. Russian law provides for the setting aside of an arbitral award in a limited number of circumstances (article 233, Russian Commercial Procedure Code; article 421, Russian Civil Procedure Code.

 

An arbitration agreement may provide that the arbitral award is final for its parties and that they cannot seek to set the arbitral award aside, if the case is administered by the permanent arbitral institution (article 34 (1), ICA Law). The agreement on the finality of the arbitral award applies only to the parties to the arbitration. Other persons, whose rights and obligations are affected by the arbitral award, retain their right to seek setting the arbitral award aside (paragraph 43 (3), Resolution of the Plenum of the Russian Supreme Court No. 53 of 10 December 2019).

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Applicable procedural law for setting aside of arbitral awards

4. Is there a time limit for applying for the setting aside of an arbitral award?

Russia

A request to set aside an arbitral award must be filed no later than three months after the date of receipt of the award by the applying party, unless set out otherwise by an international treaty or a Russian law (article 230(4), Russian Commercial Procedure Code; article 418(2), Russian Civil Procedure Code).

A person who is not a party to the arbitration whose rights and obligations are affected by the arbitral award, as well as the state prosecutor in certain cases established by the Russian Commercial Procedure Code, may file a request to set the arbitral award aside within three months of the date when they learned or should have learned about the respective arbitral award (article 230 (5), Russian Commercial Procedure Code).

This term might be extended where it has been missed for a good cause. The Russian Supreme Court maintained this rule on the missed term in its Ruling of 6 March 2019 No. 5307-ES18-22835 in case No. A56-26527/2017 taking into consideration that the person, who was not a party to the arbitration and missed the statutory term to file a request to set aside the arbitral award, took an active approach in defending his rights affected by the contested arbitral award outside of the arbitration proceedings.

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5. What kind of arbitral decision can be set aside in your jurisdiction? Can courts set aside partial or interim awards?

Russia

Under Russian law and practice Russian courts usually set aside final awards on the merits of the dispute but not partial or interim awards. An interim award on the jurisdiction of an arbitral tribunal may, however, be set aside per party’s request filed within one month of receipt of the interim award (article 235, Russian Commercial Procedure Code; article 422.1, Russian Civil Procedure Code). At the same time parties to a dispute administered by the arbitral institution are entitled to exclude that option by their explicit agreement (article 16(3), ICA Law).

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6. Which court has jurisdiction over an application for the setting aside of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

Russia

The Russian state court having jurisdiction over the place where the arbitral award was rendered (eg, the state commercial court of Moscow for Moscow) is entitled to consider a request for setting aside of such arbitral award (article 230(4), Russian Commercial Procedure Code; article 418(2), Russian Civil Procedure Code).

Parties to the arbitration may agree that a request to set aside the arbitral award is to be brought to a district court of general jurisdiction, or to a commercial court of a constituent entity of Russia, on whose administrative territory one of the parties has their domicile or residence (articles 38 (8.1), 230 (4); Russian Commercial Procedure Code; article 418 (2), Russian Civil Procedure Code).

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7. What documentation is required when applying for the setting aside of an arbitral award?

Russia

The request for setting aside of an arbitral award must contain the following (article 231, Russian Commercial Procedure Code; article 419, Russian Civil Procedure Code):

  • a written application signed by the party or its representative;
  • a copy of the arbitral award signed by the arbitrators and served to a party in accordance with the Russian law;
  • an original arbitration agreement or its duly certified copy;
  • any documents supporting the party’s request to set aside an arbitral award;
  • a document confirming payment of the state fee in the manner and amount set out by Russian law;
  • evidence of service, or another document confirming that a copy of a request to set aside an arbitral award has been sent to the other party; and
  • power of attorney, or any other document confirming the powers of the person who has signed the application (the original or a duly certified copy).

It is usually sufficient to provide the court with one copy of each of the documents. The documents may be filed with the court in digital form.

A person who is not a party to the arbitration, whose rights and obligations are affected by the arbitral award may attach to the request for setting aside of an arbitral award any documents confirming that the contested arbitral award had been rendered (article 231 (5), Russian Commercial Procedure Code).

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8. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with the application for the setting aside of an arbitral award? If yes, in what form must the translation be?

Russia

Russian law requires court proceedings to be conducted in Russian (article 1, Russian Law On State Language of Russia; article 12, Russian Commercial Procedure Code; article 9, Russian Civil Procedure Code of the Russian Federation). Any documentation in a language other than Russian presented to the Russian court requires translation into Russian and certification by a notary public. In practice, the notary public sometimes certifies the signature of the translator rather than the accuracy of translation.

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9. What are the other practical requirements relating to the setting aside of an arbitral award? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

Russia

A request for setting aside an arbitral award requires payment of the state court fee of 3,000 roubles. Other likely costs include legal fees and fees for translation and certification by a notary public. The request and all the supporting documents must be in Russian. Any documentation available in a language other than Russian requires translation into Russian and certification by a notary public. There is no limitation as to the length of the submissions and of the documentation filed by the parties.

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10. What are the different steps of the proceedings?

Russia

A request for setting aside an arbitral award shall be considered by a sole judge within one month of receipt of such request by the court. In practice, the one-month term is not always kept by the court. The steps of the proceedings include case preparation, preliminary hearings and hearings on the merits.

At the stage of case preparation, a judge may, at the request of the parties, require to provide the arbitration case file. In practice, the arbitration case file is regularly requested by the judge notwithstanding any request of the parties.

The parties are recommended to attend the preliminary hearings and hearings on the merits since otherwise the case may be heard by the judge in their absence. The proceedings include review of evidence presented by parties by the judge, parties’ statements based on such evidence and exchange of parties’ responses to such statements.

If the request for setting aside of the arbitral award was filed on the grounds that:

  • the party was not duly notified on the arbitration or on appointment of the arbitrator;
  • the party could not provide their explanations during the arbitration;
  • the arbitral award was rendered beyond the scope of the arbitration clause;
  • the arbitral award does not otherwise fall within the ambit of the arbitration clause; or
  • the composition of the arbitral tribunal or the arbitration procedure was inconsistent with the arbitration clause or Russian law, the court is entitled to suspend the proceedings on setting aside of the arbitral award at the request of a party to a dispute for a period not exceeding three months so that the arbitral tribunal resumes the arbitration proceedings and removes the grounds for setting aside the arbitral award (article 232 (5), Russian Commercial Procedure Code).

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11. May an arbitral award be recognised or enforced pending the setting- aside proceedings in your jurisdiction? Do setting aside proceedings have suspensive effect? If not, which court has jurisdiction over an application to stay the enforcement of the award pending the setting aside proceedings, and what are the different steps of the proceedings?

Russia

An arbitral award may be recognised or enforced only after resolution of a request for setting aside an arbitral award. The Russian court may also suspend the proceedings on recognition and enforcement pending the setting-aside proceedings if they find it to be justified. In practice, Russian courts suspend arbitral award recognition or enforcement proceedings until the setting-aside request is resolved, to avoid contradictory court rulings.

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12. What are the grounds on which an arbitral award may be set aside?

Russia

Per application of the party against which the arbitral award was rendered, an arbitral award may be set aside based due to:

  • incapacity of one of the parties to the arbitral agreement; and
  • invalidity of an arbitration agreement under the law chosen by the parties or, in the absence of such a choice of law, under the Russian law.

There is a newly forming trend of Russian courts to move towards validity presumption of arbitration clauses. The apparent evidence of the trend is, for instance, the decision of the State Commercial Court of Moscow city in case No. А40-150562/2020 of 5 February 2021, according to which a potentially unclear reference to an arbitration centre might be easily rectified in favour of the enforceability of the arbitration agreement.

The pro-arbitration approach is also reflected in the Paragraphs 20-23 of Resolution of the Plenum of the Russian Supreme Court No. 53 of 10 December 2019. Particularly, according to the provisions of the Plenum,

  • validity of an arbitration clause is considered as independent from that of the contract, to which the arbitration clause relates;
  • the arbitration agreement applies, as a general rule, to any contracts and agreements aimed at execution, modification or termination of the contract specified in the arbitration agreement, as well as to any disputes related to conclusion, coming into force, amendment, termination, and validity of such contract and all claims arising from non-contractual harm or unjust enrichment related to the contract;
  • a party to the arbitration agreement, who challenges its validity and enforceability, is obliged to prove that there is no way to interpret the arbitration agreement so that it can be considered as valid and enforceable;
  • an arbitral award is made in respect of disputes falling outside of an arbitration agreement. It needs to be noted that Russian law permits the setting aside of only parts of an arbitral award containing conclusions on claims not covered by an arbitration agreement and to keep in effect parts of an arbitral award containing conclusions on claims covered by an arbitration agreement if those parts may be separated from those set aside;
  • an arbitral tribunal or an arbitration procedure was not in accordance with the parties’ agreement or mandatory rules of the applicable lex arbitri; and
  • the party against which an arbitral award was rendered was not properly notified about the appointment of an arbitral tribunal or an arbitrator, or about the time and place of hearings, or by other justified reasons was unable to present its position before an arbitral tribunal.

At the discretion of a Russian court , an arbitral award may be set aside if:

  • the subject matter of the dispute could not be resolved by arbitration under Russian law (non-arbitrability);

In practice, the non-arbitrable disputes are those arising from administrative and other public legal relations (article 225.1 (2)(2)(1), Russian Commercial Procedure Code; articles 1 (4), 22 (1)(8), 22.1 (1), Russian Civil Procedure Code; disputes arising from relations regulated by the Federal Law No. 44-FZ On Contracts For Public Procurement Of Goods, Works and Services (paragraph 17 (5), Resolution of the Plenum of the Russian Supreme Court No. 53 of 10 December 2019; disputes on fact-finding cases considered in a special proceeding (Chapter 27, Russian Commercial Procedure Code; articles 22 (2)(1), 262, Russian Civil Procedure); disputes with participation of sanctioned persons or entities (article 248.1, Russian Commercial Procedure Code).

Despite these limitations, there is a gradually developing pro-arbitration trend reflected in practice of the Russian Supreme Court. So, the Judicial Collegium for Economic Disputes of the Russian Supreme Court indicated in the Ruling No. 305-ES17-7240 of 11 July 2018 that the mere connection between the dispute and social needs is not enough to conclude that the dispute is not arbitrable .

The only recent reservation from the overall pro-arbitration picture was made by the Russian Supreme Court in Ruling No. 309-ЭС21-6955 (1-3) of 9 December 2021, according to which imposition of sanctions against a Russian person by itself indicates that full judicial protection is impossible for such person in a foreign state. Such approach stretches the scope of article 248.1 of the Russian Commercial Procedure Code.

  • an arbitral award is contrary to Russian public policy. Simultaneously, any part of an award not contrary to Russian public policy will be kept in effect if it may be separated from the remainder of the arbitral award.

To set aside an arbitral award or to prevent enforcement of an arbitral award on the ground of violation of public policy, the court must establish that, first, the arbitral award is contrary to the fundamental principles of the economic, political or legal system of Russia and that, second, violation of the above principles may damage sovereignty or security of Russia, affect interests of large social groups or constitutional rights and freedoms of individuals or legal entities.

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13. What is the effect of the decision on the setting-aside application in your jurisdiction? What challenges are available?

Russia

The court ruling on setting aside of an arbitral award takes effect on the day when such ruling is rendered and is immediately enforceable.

The court ruling on setting aside of an arbitral award may be appealed before a competent cassation court within one month of the date on which the court ruling was rendered. Subsequently, the cassation court ruling may be challenged before the Russian Supreme Court subject to a preliminary review of admissibility of such challenge due to the principle of selective cassation revision by the Russian Supreme Court.

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14. Will courts take into consideration decisions rendered in relation to the same arbitral award in other jurisdictions or give effect to them (eg, in recognition or enforcement proceedings)?

Russia

Russian courts generally prefer to preserve their adjudicative sovereignty and usually do not take into account foreign judgments before such foreign judgments are recognised by the Russian court system. At the same time, the parties may provide the texts of foreign judgments duly translated into Russian and certified by a notary public to a Russian court as written evidence and the judge may review and potentially take into account approaches applied in the proceedings outside of Russia if this does not contradict to Russian law and practice.

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Hogan Lovells

Applicable procedural law for recognition and enforcement of arbitral awards

15. What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?

Russia

The applicable procedural law for recognition and enforcement of an arbitral award in Russia varies depending on if the arbitral award is rendered under domestic or foreign (international) arbitration.

The applicable procedural law for domestic arbitral awards (ie, arbitral awards rendered on the territory of Russia) includes articles 236 to 240 of the Russian Commercial Procedure Code, articles 423 to 427 of the Russian Civil Procedure Code as well as the Russian Law On Arbitration in Russia. The applicable procedural law for foreign arbitral awards (ie, arbitral awards rendered outside of the territory of Russia) includes articles 241 to 246 of the Russian Commercial Procedure Code, articles 416 and 417 of the Russian Civil Procedure Code as well as the ICA Law. The Russian Commercial Procedure Code also mentions in article 245.1 arbitral awards, which do not require recognition and enforcement (eg, fact-finding rulings).

Russia is a party to the 1958 Convention On the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) and the 1961 European Convention On International Commercial Arbitration. Russia is a party to the 1972 Moscow Convention On the Settlement By Arbitration of Civil Disputes Arising from Relations of Economic, Scientific and Technical Cooperation. Russia is also a signatory to the Convention On the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) of 16 June 1992, though this convention is not ratified yet.

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16. Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under article I(3) of the Convention?

Russia

Russia is a party to the 1958 New York Convention. The 1958 New York Convention took effect for USSR on 24 August 1960, and Russia as a predecessor made a reservation for application of reciprocity to non-parties to the 1958 New York Convention.

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Recognition proceedings

17. Is there a time limit for applying for the recognition and enforcement of an arbitral award?

Russia

An application for the recognition and enforcement of an arbitral award can be made within three years of the date on which an arbitral award took effect (article 246(2), Russian Commercial Procedure Code; article 409(3), Russian Civil Procedure Code. The three-year term can be restored if it has been missed for a good cause.

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18. Which court has jurisdiction over an application for recognition and enforcement of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

Russia

The court at the location of a debtor or, if the location of a debtor is unknown, at the location of a debtor’s property, has jurisdiction over an application for the recognition and enforcement of an arbitral award (articles 236 and 242, Russian Commercial Procedure Code; articles 410 and 423, Russian). In domestic arbitration, the court of the region in which the arbitral award was rendered, or the court of the domicile of the winning party may be agreed by the parties as having jurisdiction over an application for the recognition and enforcement of a domestic arbitral award.

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19. What are the requirements for the court to have jurisdiction over an application for recognition and enforcement and for the application to be admissible? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?

Russia

The parties must comply with territorial jurisdiction of the court.

Application for recognition and enforcement of a foreign arbitral award is to be brought to the higher general jurisdiction court of a constituent entity of Russia or to a commercial court of a constituent entity of Russia, on whose administrative territory the debtor has its domicile, or, if the place of the debtor's domicile is unknown, to the higher general jurisdiction court of a constituent entity of Russia or a commercial court of a constituent entity of Russia at the location of the debtor’s property (articles 38 (9), 242 (1), Russian Commercial Procedure Code; articles 1 (4), 26 (1)(9), 410, Russian Civil Procedure Code.

If an application for recognition and enforcement of an arbitral award is filed with the court at the location of a debtor’s property, an applicant shall identify the debtor’s property that may be subject to enforcement. Russian law does not require an applicant to list any debtor’s assets in the territory of the court’s jurisdiction, though the absence of such identification may hinder the proceedings because it will be more difficult for the court to recognise its jurisdiction over the application.

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20. Are the recognition proceedings in your jurisdiction adversarial or ex parte? What are the different steps of the proceedings?

Russia

The recognition proceedings are adversarial in Russia. The parties are recommended to attend the proceedings since otherwise the case may be heard by the judge in their absence.

An application for recognition and enforcement of an arbitral award shall be considered by a sole judge within one month of receipt of an application by the court. In practice, the one-month term is not always kept by the court. The proceedings include review of evidence presented by parties by the judge, parties’ statements based on such evidence and exchange o parties’ responses to such statements.

Answer contributed by
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21. What documentation is required to obtain recognition?

Russia

The application for recognition and enforcement of an arbitral award must contain the following (articles 237, 242, Russian Commercial Procedure Code; article 424, Russian Civil Procedure Code):

  • a written application signed by the party or its representative;
  • the certified original of the arbitral award or its duly certified copy;
  • the original of the arbitral agreement or its duly certified copy;
  • a document confirming payment of the state fee in the manner and amount set out by Russian law;
  • power of attorney, or any other document confirming the powers of the person who has signed the application (the original or a duly certified copy); and
  • duly certified translations of the award, arbitral agreement and any other documents in a foreign language.

It is usually sufficient to provide the court with one copy of each of the documents. The documents may be filed with the court in digital form.

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Hogan Lovells

22. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition? If yes, in what form must the translation be?

Russia

Russian law requires court proceedings to be conducted in Russian (article 1, Russian Law On State Language of Russia; article 12, Russian Commercial Procedure Code; article 9, Russian Civil Procedure Code of the Russian Federation). Any documentation in a language other than Russian presented to the Russian court requires translation into Russian and certification by a notary public. In practice, the notary public sometimes certifies the signature of the translator rather than the accuracy of translation.

Answer contributed by
Hogan Lovells

23. What are the other practical requirements relating to recognition and enforcement? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

Russia

An application for recognition and enforcement of an arbitral award shall be filed by the winning party. The application requires payment of the state court fee of 3,000 roubles. Other likely costs include legal fees and fees for translation and certification by a notary public. The request and all the supporting documents must be in Russian. Any documentation available in a language other than Russian requires translation into Russian and certification by a notary public. There is no limitation as to the length of the submissions and of the documentation filed by the parties.

Answer contributed by
Hogan Lovells

24. Do courts recognise and enforce partial or interim awards?

Russia

Under Russian law and practice Russian courts usually recognise and enforce final awards on the merits of the dispute but not partial or interim awards including interim awards on procedural matters or awards on preliminary measures.

Answer contributed by
Hogan Lovells

25. What are the grounds on which an arbitral award may be refused recognition? Are the grounds applied by the courts different from those provided under article V of the New York Convention?

Russia

The grounds on which an arbitral award may be refused in recognition or enforcement coincide with those set out in article V of the 1958 New York Convention.

The applicable grounds on which a domestic arbitral award (ie, an arbitral award rendered on the territory of Russia) may be refused in recognition or enforcement are set out in article 239 of the Russian Commercial Procedure Code, article 426 of the Russian Civil Procedure Code as well as article 42 of the Russian Law On Arbitration in Russia. The applicable grounds on which a foreign arbitral award (ie, an arbitral award rendered outside of the territory of Russia) may be refused in recognition or enforcement are set out in articles 244(3) of the Russian Commercial Procedure Code, articles 412 (1)(5), 416 (1), 417(1)(3) of the Russian Civil Procedure Code as well as article 36 of the ICA Law.

Russian courts may refuse in enforcement and recognition of an arbitral award ex officio based on such grounds as non-arbitrability of the dispute and contradiction of the arbitral award to public policy.

Answer contributed by
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26. What is the effect of a decision recognising an arbitral award in your jurisdiction?

Russia

The court ruling on recognition and enforcement of an arbitral award takes effect on the day when such ruling is rendered and is immediately enforceable.

The court ruling on recognition and enforcement of an arbitral award may be appealed before a competent cassation court within one month of the date on which the court ruling was rendered. Subsequently, the cassation court ruling may be challenged before the Russian Supreme Court subject to a preliminary review of the admissibility of such challenge due to the principle of selective cassation revision by the Russian Supreme Court. The challenge of a court ruling on recognition and enforcement of an arbitral award does not suspend enforcement. However, a party may file a motion on suspension of enforcement of an arbitral award together with its appeal, based on which the respective court may grant suspension of enforcement of arbitral award.

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27. What challenges are available against a decision refusing recognition in your jurisdiction?

Russia

The court ruling on recognition and enforcement of an arbitral award may be appealed before a competent cassation court within one month of the date on which the court ruling was rendered. Subsequently, the cassation court ruling may be challenged before the Russian Supreme Court subject to a preliminary review of admissibility of such challenge due to the principle of selective cassation revision by the Russian Supreme Court.

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28. What are the effects of annulment proceedings at the seat of the arbitration on recognition or enforcement proceedings in your jurisdiction?

Russia

Russian courts may suspend recognition or enforcement of an arbitral award at the request of one of the parties if an application to set aside or suspend the enforcement of a foreign arbitral award is pending before a foreign court (article VI, 1958 New York Convention; article 243(5), Russian Commercial Procedure Code; article 417(2), Russian Civil Procedure Code). The requesting party shall prove existence of pending proceedings at the seat of the arbitration that may affect the legal effect or finality of the enforced arbitral award. There is not yet an established practice of application of the above Russian law provisions by Russian courts as those have been added as a part of Russian arbitration reform in 2016.

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29. If the courts adjourn the recognition or enforcement proceedings pending annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security?

Russia

In the case of a suspension of recognition and enforcement of an arbitral award, the Russian court may require the party seeking suspension to provide security at the request of the enforcing party (article VI, 1958 New York Convention; article 243(6) of Russian Commercial Procedure Code). The court may grant the security if the requesting party proves that a failure to grant the security may hinder the enforcement or make it impossible or the requesting party suffers significant damage in the absence of the security. The practice of application of these provisions by Russian courts is extremely limited to date.

There is one example from the Commercial Court of the Ural District where in response to the respondent’s request on suspension of recognition and enforcement of the arbitral award, the claimant sought from the defendant security in the amount equivalent to the amount of arbitral award (ie, US$16,691,176.95) but the court dismissed the motion on security (Ruling of the Commercial Court of the Ural District No. F09-8673/18 in case No. A76-26938/2018 of 10 December 2018) This court ruling was upheld by a court of appeal.

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30. Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an arbitral award is set aside after the decision recognising the award has been issued, what challenges are available?

Russia

Annulment of a foreign arbitral award excludes enforcement of such award on the territory of Russia (article V (1)(e), 1958 New York Convention; article 36(1)(6), the ICA Law).

Russian law there is no procedure to challenge a court ruling on recognition or enforcement after an arbitral award is annulled. Article 311(3) of Russian Commercial Procedure provides for a so-called 'revision under new circumstances' procedure that can be used before the court that rendered a ruling on recognition or enforcement of an arbitral award that was subsequently annulled. However, since the list of new circumstances is closed and does not contain an annulment of an arbitral award as a ground for revision, it is questionable whether article 311(3)(1) of the Russian Commercial Procedure Code can be used for the annulment of an arbitral award. The respective Russian court practice is scarce: in one case, the first instance court enforced an arbitral award that had been annulled at the seat of the arbitration (Case No. A27-781/2011) but the superior courts reversed this decision.

It is important, however, that since Russia is among the countries, which literally implemented article V (1)(e) of 1958 New York Convention, a set aside award may be recognised and enforced in exceptional cases if there are grounds for non-recognition of the judicial act setting it aside. (Decision of the Amsterdam Court of Appeal Rendered on 28 April 2009 in Case No. 200.005.269/01). Moreover, since article V (1)(e) of 1958 New York Convention does not imply a mandatory prohibition to refuse recognition of arbitral awards set aside at the seat of arbitration, the Russian court where a request for recognition or enforcement of a set-aside award is filed, might enforce the arbitral award based on article V (1)(e).

As to domestic arbitral awards, once the Russian court annuls a domestic arbitral award in full or in part, such award may not be enforced in full or in the respective part. From the practical perspective, given the level of scrutiny at the domestic arbitral awards enforcement stage, the Russian court would unlikely annul a domestic arbitral award for which enforcement was already granted.

Answer contributed by
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Service

31. What is the procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction? If the extrajudicial and judicial documents are drafted in a language other than the official language of your jurisdiction, is it necessary to serve these documents with a translation?

Russia

The procedure for service of judicial documents is set out by articles 121 to 124 of the Russian Commercial Procedure Code and articles 113 to 120 of the Russian Civil Procedure Code.

Parties may indicate to the court the address at which they are ready to receive judicial documents. By default, judicial documents are served at the address of registration of the legal entity. If that place is unknown, documents are sent to the last known place of residence. The due service to a legal entity is also recognised when the documentation is served to the representative authorised to receive the documentation.

Due service to individuals presumes that documents shall be handed out personally to such individuals or to an adult living with that person.

Parties bear all risks of non-receipt of judicial documents when the documents have been sent to the proper address.

Russian law does not specifically regulate the service of extrajudicial documents.

Notification of time and place of hearing in arbitration proceedings is considered as due only if it is sent in such a way that each of the parties has a reasonable time to prepare for the hearing and to arrive at the place where the hearing is held.

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32. What is the procedure for service of extrajudicial and judicial documents to a defendant outside your jurisdiction? Is it necessary to serve these documents with a translation in the language of this jurisdiction? Is your jurisdiction a party to the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention)? Is your jurisdiction a party to other treaties on the same subject matter?

Russia

Russian courts regularly serve judicial documents by a rogatory letter via the Russian Ministry of Justice and the Russian Ministry of Foreign Affairs if no other route is set out by an international treaty.

Under the Ruling of the Plenary Session of the Russian Supreme Court No. 23 of 27 June 2017 provides for the following types of service of judicial documents:

  • direct service to the party;
  • direct service to the competent court of the relevant state;
  • direct service to the central authority of the relevant state;
  • service via the Russian Ministry of Justice and the Russian Ministry of Foreign Affairs to the competent body of the relevant state; and
  • service via the central, territorial and other bodies of justice to the competent court or body of the relevant state.

All the documents shall be served with a translation in the official language of the relevant state.

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Identification of assets

33. Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction? Are there any databases or publicly available registers providing information on award debtors’ interests in other companies?

Russia

Under Russian law debtor’s assets tracing falls within the powers of the bailiffs in charge of arbitral award enforcement proceedings. The enforcing party may assist bailiffs in this.

The following Russian registers may be helpful for identification of debtor’s assets on the territory of Russia:

  • Uniform State Register of Real Estate (eg, real estate; rights on immovable property (leases, mortgages));
  • Registers of the Federal Institute for Industrial Property (eg, trademarks, patents and licences);
  • Uniform State Register of Legal Entities (eg, group companies, subsidiaries); and
  • Notary register of notifications on pledges of movable property.

There is no publicly available register providing information on award debtors’ interests in other companies.

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34. Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?

Russia

Russian law does not provide for a procedure for disclosure of information about an award debtor’s assets.

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Enforcement proceedings

35. What kinds of assets can be attached within your jurisdiction?

Russia

With some exceptions, assets can be attached as a part of enforcement proceedings in Russia. As to individuals, article 446 of the Russian Civil Procedure Code sets out the property that is immune from attachment, including:

  • the only dwelling fit for the permanent residence of an individual and his or her dependants and the land plot where the only dwelling is located, except when such objects are mortgaged;
  • the objects of customary household, furniture and utensils;
  • the items for personal use (clothes, footwear) except for jewellery and luxury items;
  • the items necessary for professional activity of debtor with exception of items of value higher than 10,000 roubles;
  • livestock and related household buildings not used for entrepreneurial activity;
  • seeds for next planting season;
  • foodstuffs;
  • money to a total sum of not less than the fixed living wage of the insolvent individual and his or her dependants;
  • fuel for household purposes;
  • vehicle and other items required in connection with debtor’s disability; and
  • debtor’s trophies, prizes and state awards.

Some kinds of assets (eg, secret inventions, funds of professional associations, etc) are exempted from attachment fully or may be attached under certain conditions only (eg, pre-emption rights).

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36. Are interim measures against assets available in your jurisdiction?

Russia

Interim measures against assets are available in Russia (article 139, Russian Civil Procedure Code; article 90, Russian Commercial Procedure Code).

Interim measures are available at any stage of the proceedings by request of the creditor who proves that a failure to grant such interim measures may hinder the enforcement or make it impossible or the creditor suffers significant damage in the absence of the interim measures.

There is a non-exhaustive lists of interim measures (article 140, Russian Civil Procedure Code; article 91, Russian Commercial Procedure Code), which include the following:

  • imposition of an arrest on cash or other property owned by a respondent and held by the respondent or other persons;
  • prohibition of a respondent and other persons from performing certain actions concerning the subject of the dispute;
  • the imposition on a respondent of the obligation to perform certain actions so as to prevent damage to, or deterioration of the condition of the disputed property;
  • transfer of the property for storage to a claimant or another person;
  • suspension of the enforcement under the executive or other document disputed by the claimant, the enforcement of which is carried out in an indisputable (without acceptance) procedure; and
  • suspension of the sale of property in the event that a claim for the release of property from arrest has been filed.

The creditor may seek several interim measures, or measures not included in the above list provided that such interim measures are is proportionate to the amount of debt. Per request of the claimant or the respondent, one interim measure may be substituted by another.

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37. What is the procedure to apply interim measures against assets in your jurisdiction?

Russia

The claimant shall file a motion for interim measures to the competent Russian court. The motion shall contain:

  • the name of the court with which the motion is filed;
  • the names of the claimant and the respondent, their location or place of residence;
  • the subject of the dispute;
  • the amount of the property claims;
  • justification of the reason for filing a motion for interim measures;
  • the interim measure requested by the claimant; and
  • the list of attached documents.

The Russian court considers the motion for interim measures within one day of the date on which the motion was submitted to the court ex parte. In practice, the one-day term is not always kept by the court. The court issues a ruling on grant or refusal in interim measures that is subject to immediate enforcement though may be appealed. In practice, interim measures are rarely granted by Russian courts.

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38. What is the procedure for interim measures against immovable property within your jurisdiction?

Russia

Interim measures against immovable property in Russia are available under general procedure as described above.

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39. What is the procedure for interim measures against movable property within your jurisdiction?

Russia

Interim measures against movable property in Russia are available under general procedure as described above.

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Hogan Lovells

40. What is the procedure for interim measures against intangible property within your jurisdiction?

Russia

Interim measures against intangible property in Russia are available under general procedure as described above. In practice, such interim measures result in restrictions for assignment of registered intangible property addressed to the Russian Patent and Trademark Office or for domain name assignments addressed to the relevant domain name registrar.

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Hogan Lovells

41. What is the procedure to attach assets in your jurisdiction?

Russia

The procedure to attach assets is set out by the Russian Law On Enforcement Proceedings No. 229-FZ of 2 October 2007 and respective provisions of Russian Civil Procedure Code and the Russian Commercial Procedure Code.

Once the court ruling takes effect, the claimant shall file the motion on issuance of the writ of execution, except in circumstances when the court ruling may be enforced without such a writ.

Based on the results of respondent’s assets tracing, the claimant may file the writ as follows:

  • with the Russian federal bailiffs’ service, which is the state authority in charge of attachments of assets of any kind in accordance with the procedure set out by the Russian Law On Enforcement Proceedings;
  • with the bank(s) where the respondent has an account – the bank is obliged to transfer money from the respondent’s account within five days of the date of the claimant’s request. The claimant may file an enquiry with the Russian Federal Tax Service to obtain information about the respondent’s accounts;
  • with the issuer of securities or professional participants of the securities market accounting rights on securities (if the respondent owns relevant securities).

 

Since it is impossible to file a writ of execution with several bodies simultaneously, the claimant shall select the most efficient way to attach assets: for example, filing of the writ of execution with the bank or with the professional participant of the securities market usually represents a more direct way to the funds.

The Russian federal bailiffs’ service allows all assets of a respondent to be secured and attached, which is more useful when the opponent owns various types of assets. The bailiffs are entitled to file requests with foreign authorities for attachment of a respondent’s assets located in a foreign state provided that Russia has a relevant treaty signed with such state. It needs to be noted that the workload of the Russian federal bailiffs’ service is very high, which may affect the speed of attachment proceedings.

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42. What is the procedure for enforcement measures against immovable property within your jurisdiction?

Russia

Attachment against immovable property in Russia is available under general procedure as described above.

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Hogan Lovells

43. What is the procedure for enforcement measures against movable property within your jurisdiction?

Russia

Attachment against movable property in Russia is available under general procedure as described above.

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Hogan Lovells

44. What is the procedure for enforcement measures against intangible property within your jurisdiction?

Russia

Attachment against intangible property in Russia is available under general procedure as described above. Attachment of registered intangible assets such as patents or trademarks requires relevant recordal in the state registers.

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Hogan Lovells

45. Are there specific rules applicable to the attachment of assets held by banks? Is it possible to attach in your jurisdiction sums deposited in bank accounts opened in a branch or subsidiary of a foreign bank located in your jurisdiction or abroad? Is it possible to attach in your jurisdiction the bank accounts opened in a branch or subsidiary of a domestic bank located abroad?

Russia

Attachments against sums deposited in bank accounts or other assets held by banks in Russia is available when the relevant bank has a branch or subsidiary located in Russia. As to the foreign banks not having branches or subsidiaries in Russia, Russian courts regularly refuse to attach assets that are located abroad including sums deposited in bank accounts abroad.

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Recognition and enforcement against foreign states

46. Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?

Russia

The recognition and enforcement of arbitral awards against foreign states is regulated by the Russian Law No. 297-FZ of 3 November 2015 On Jurisdictional Immunities of Foreign States and the Property of Foreign States in Russia (the Law On Immunities) largely based on the 2004 UN Convention On the Jurisdictional Immunities Of States and Their Property. To date, Russia has not ratified the 2004 UN Convention On the Jurisdictional Immunities Of States and Their Property.

The procedure of recognition and enforcement of arbitral awards against foreign states is regulated by Chapter 33.1 of the Russian Commercial Procedure Code and Chapter 45.1 of the Russian Civil Procedure Code. The procedure of attachment of foreign states’ assets is regulated by Chapter 12.1 of the Russian Law On Enforcement Proceedings.

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Hogan Lovells

47. What is the procedure for service of extrajudicial and judicial documents to a foreign state? Is it necessary to serve extrajudicial and judicial documents with a translation in the language of the foreign state?

Russia

The procedure for service of judicial documents is set out by article 256.6 of the Russian Commercial Procedure Code and article 417.6 of the Russian Civil Procedure Code.

Service of judicial documents shall be executed in accordance with the relevant international treaty to which Russia is a party. In absence of such treaty, service of judicial documents shall be carried out by the Russian Ministry of Justice, which must use diplomatic channels with the assistance of the Russian Ministry of Foreign Affairs.

Any notification of scheduling of a preliminary hearing or a main hearing must be served no later than six months before the date of the hearing.

A Procedural Order of the Ministry of Justice of the Russian Federation requires that documentation is served with a translation in the language of the relevant state.

All the documents shall be served with a translation in the official language of the relevant state.

Russian law does not specifically regulate service of extrajudicial documents.

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Hogan Lovells

48. May a foreign state invoke sovereign immunity (immunity from jurisdiction) to object to the recognition or enforcement of arbitral awards?

Russia

Under article 14 of the Law On Immunities, provided that a foreign sovereign state expressly agreed to the application of interim measures or otherwise indicated the property subject to application of interim measures and further possible attachment, the relevant arbitral award creditors may apply for interim measures against assets owned by such foreign sovereign state.

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49. May award creditors apply interim measures against assets owned by a sovereign state?

Russia

Under article 16 of the Law On Immunities, certain types of assets of a foreign sovereign state are immune from enforcement. Under article 15 of the Law On Immunities, immunity from enforcement may be lifted under the following circumstances:

  • a foreign sovereign state directly agreed to attachment of assets by way of conclusion of an international treaty, other written agreement or a statement during proceedings in a Russian court;
  • a foreign sovereign state reserved or otherwise indicated the property subject to attachment during enforcement; and
  • assets are not connected with the exercise of sovereign powers of a foreign state.

The foreign state’s immunity from enforcement may be limited on the basis of reciprocity principle.

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Hogan Lovells

50. Are assets belonging to a foreign state immune from enforcement in your jurisdiction? Are there exceptions to immunity?

Russia

Article 6(2) of the Law On Immunities expressly reserves waiver of immunity from the jurisdiction of Russian courts and specifically provides that this does not include a waiver from interim awards or enforcement.

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Hogan Lovells

51. Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? What are the requirements of waiver?

Russia

The waiver of immunity from the jurisdiction of Russian courts is reserved in article 6(2) of the Law On Immunities. The provision specifies that this does not include a waiver from interim awards or enforcement. Russian law does not provide for requirements to such waiver.

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Hogan Lovells

52. Is it possible for a creditor of an award rendered against a foreign state to attach the assets held by an alter ego of the foreign state within your jurisdiction?

Russia

Russian law and court practice do not provide precise guidance on if it is possible for a creditor of an arbitral award rendered against a foreign state to attach the assets held by an alter ego of the foreign state in Russia. Nevertheless, some legal scholars support the position that alter ego doctrine may be applied in Russia.

With a certain degree of conditionality, the alter ego doctrine may be considered as being applied for the protection of assets owned by Russia. The Commercial Court of the Moscow District in its Ruling No. F05-366/2019 in case No. A40-117326/2018 of 29 August 2019 annulled court ruling on recognition and enforcement of an arbitral award, having found that the foreclosed property belonged to a person, whose ultimate beneficiary was Russia, and that enforcement of the arbitral award would therefore harm the budget of Russia.

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Hogan Lovells

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