Litigation

Last verified on Wednesday 19th May 2021

Litigation: Russia

Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

Aitkulov & Partners

Overview

1. Describe the general organisation of the court system for civil litigation.

Russia

The judicial system of the Russian Federation includes federal courts and courts of constituent entities of the Russian Federation. The federal courts are the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, the courts of general jurisdiction and the arbitrazh (state commercial) courts. Courts of the constituent entities of the Russian Federation are the constitutional courts of the respective constituent entities of the Russian Federation and justices of the peace.

Generally, Russian arbitrazh courts resolve disputes arising out of business relations and other economic activities. Russian courts of general jurisdiction resolve other categories of disputes. Justices of the peace deal primarily with small-scale civil disputes unrelated to business relations and other economic activities.

The judiciary is autonomous and acts independently of the legislative and executive branches.

Judges of the Constitutional Court of the Russian Federation and of the Supreme Court of the Russian Federation are appointed by the Federation Council of the Federal Assembly of the Russian Federation (the upper house of parliament) upon nomination by the President of the Russian Federation. Judges of the federal courts are appointed by the President of the Russian Federation. Judges of the constitutional courts of constituent entities of the Russian Federation and justices of the peace are appointed in accordance with federal legislation and the legislation of the respective constituent entities.

As a matter of law, there is no doctrine of judicial precedent in Russia, but in practice the positions of the higher courts often influence the decisions of the lower courts. Additionally, the Supreme Court of the Russian Federation and its Plenum issue clarifications on the issues arising in court practice for the purposes of uniform application of Russian laws. Directions of the Presidium and Plenum of the Supreme Court of the Russian Federation defining or changing the practice of application of a rule of law can serve as grounds for review of a judgment based on new or newly discovered circumstances. Directions of the courts of cassation appeal and supervisory appeal regarding interpretation of laws must be followed by the lower courts when hearing cases anew.

There are no jury trials in civil cases in the Russian Federation. Where a case is particularly complex or requires specialist knowledge in economics, finance or business administration, a Russian arbitrazh court of first instance can be composed of a judge and two arbitrazh court assessors if one of the parties files a motion to this effect. When hearing a case, arbitrazh court assessors have the same rights and duties as a judge.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

2. Give an overview of basic procedural principles that govern civil litigation in your jurisdiction.

Russia

In addition to the principles following from international law, civil litigation in Russia is governed by the following procedural principles, which are explicitly set out in, or are indirectly referred to by, the Russian procedural codes:

  • administration of justice by the courts only;
  • legality;
  • independence of the judiciary;
  • openness and transparency of proceedings;
  • use of the official state language in proceedings;
  • equality of all parties to proceedings;
  • adversarial nature of proceedings;
  • access to justice; and
  • discretion in exercising procedural rights.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

3. Describe the general organisation of the legal profession.

Russia

To appear in civil proceedings (save for proceedings in the district courts of general jurisdiction and before justices of the peace), counsel are obliged to have completed either a taught degree or a research degree in law (ie, there is no need to qualify as an advocate). There are additional requirements applicable to counsel who wish to appear in proceedings other than civil proceedings. For example, counsel must qualify as an advocate to argue cases in criminal proceedings, and counsel must qualify as an advocate or have a research degree in law (Candidate of Sciences or higher) to argue cases before the Constitutional Court of the Russian Federation. Generally, foreign nationals practice law on an equal footing with Russian nationals.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

4. Give a brief overview of the political and social background as it relates to civil litigation.

Russia

Russia can be described as a relatively litigious jurisdiction. The civil courts have quite a heavy caseload because filing fees are low and civil litigation is relatively cheap and quick.

The Government of the Russian Federation is working towards improving the Russian court system through judicial reforms. One recent reform introduced the requirement that counsel must have a degree in law – an apparent attempt to make civil litigation more professional.

There are no "professional” plaintiffs in Russia. However, Russian courts do occasionally come across the phenomenon of consumer activism.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

Jurisdiction

5. What are the sources of law and rules governing international jurisdiction in civil matters?

Russia

As for international sources of law governing international jurisdiction in civil matters, the Russian Federation is a party to various treaties. Where a treaty to which the Russian Federation is a party establishes rules for legal proceedings that differ from the rules prescribed by the legislation of the Russian Federation, the rules of the international treaty shall apply. However, recent amendments to the Russian procedural codes have established that the rules of international treaties to which the Russian Federation is a party do not apply if those rules contradict the Constitution of the Russian Federation (ie, the Constitution of the Russian Federation is above any international treaty).

As for domestic sources, international jurisdiction in civil matters is governed primarily by the Russian procedural codes.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

6. What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?

Russia

If one of the litigants is a foreign party, the litigants may agree to submit their disputes to the Russian or foreign courts. Irrespective of whether one of the litigants is a foreign party or not, the litigants may also agree to submit their disputes to a specific Russian court of first instance, be it an arbitrazh court or a court of general jurisdiction. However, the parties cannot agree to submit their disputes to the Russian arbitrazh courts if the disputes fall within the competence of the Russian courts of general jurisdiction (and vice versa).

If one of the litigants is a foreign party and the litigants have not concluded a choice of court agreement or such agreement is for some reason invalid (eg, because it provides that disputes that fall under the exclusive jurisdiction of the Russian courts are to be submitted to a foreign court), inoperative, incapable of being performed or does not exclude the competence of the Russian courts under the law applicable to it, the following criteria for determining international jurisdiction of Russian courts apply.

Russian arbitrazh courts are generally competent to resolve disputes that have a close connection to the territory of the Russian Federation. They are also competent to resolve disputes specifically listed in the Arbitrazh Procedure Code of the Russian Federation (eg, where the respondent resides in or is located in the Russian Federation or the respondent's property is located in the Russian Federation). Similar criteria apply for determining international jurisdiction of Russian courts of general jurisdiction.

Disputes involving a sanctioned party are within the exclusive jurisdiction of Russian arbitrazh courts if the respective choice of court agreement referring a dispute to a court outside the Russian Federation is incapable of being performed due to applicable sanctions hindering access to justice for the sanctioned party.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

7. Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?

Russia

Yes, Russia does occasionally attract disputes that have a nexus with other jurisdictions. However, the claimants in such disputes are usually Russian entities. These are often corporate or commercial disputes between a Russian entity and its foreign counterparty. To the extent that a dispute of this type is subject to a choice of court agreement, it may be advisable to seek dismissal of the case without prejudice before making the first submission on the merits.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

8. How will a court treat a request to hear a dispute that is already pending before another forum?

Russia

If the dispute already pending before another forum is between the same parties regarding the same subject matter and is based on the same grounds:

  • Russian arbitrazh courts will dismiss the request to hear the dispute without prejudice, provided that it is not a dispute which is subject to the exclusive jurisdiction of the Russian courts in accordance with the Arbitrazh Procedure Code of the Russian Federation. 
  • Russian courts of general jurisdiction will either return the request to hear the dispute or dismiss the request without prejudice, provided that the judgment of the other forum will be enforceable in the Russian Federation.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

9. How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?

Russia

The court must dismiss the claim without prejudice if any of the parties, not later than the day of its first submission on the merits of the dispute, objects to the claim being heard in court proceedings by reference to the arbitration agreement, unless the arbitration agreement is manifestly invalid, inoperative or incapable of being performed.

A dispute involving a sanctioned party is subject to the exclusive jurisdiction of the Russian arbitrazh courts if the respective arbitration agreement, which refers the dispute to international arbitration outside the Russian Federation, is incapable of being performed due to the applicable sanctions hindering access to justice for the sanctioned party.

The following types of cases involving foreign persons also fall within the exclusive jurisdiction of Russian arbitrazh courts:

  • disputes concerning property owned by the Russian Federation, including disputes related to privatisation of state property and compulsory alienation of property for state needs;
  • disputes where the subject matter is immovable property located in the Russian Federation or rights to such property;
  • disputes involving registration or issuance of patents, registration/issuance of certificates for trademarks, industrial designs or utility models, or registration of other rights to results of intellectual endeavours that require registration or the issuance of a patent or certificate in the Russian Federation;
  • disputes over the invalidation of entries in state registers;
  • disputes related to the establishment, liquidation or registration in the Russian Federation of legal entities and individual entrepreneurs, or challenges to decisions of the bodies of such legal entities;
  • cases arising out of administrative and other public legal relations.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

10. May courts in your country review arbitral awards on jurisdiction?

Russia

Yes, the courts in Russia may review arbitral awards sustaining jurisdiction. However, the Russian courts cannot review arbitral awards denying jurisdiction.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

11. Are anti-suit injunctions available?

Russia

Yes, but to a very limited extent. A party to a dispute involving a sanctioned party or a dispute arising out of sanctions can apply to a Russian court for an anti-suit injunction ordering the opposing party to discontinue or refrain from initiating foreign arbitral proceedings, provided that the Russian court has exclusive jurisdiction to resolve the dispute for reasons including that the arbitration agreement is incapable of being performed by the party that is applying for the injunction.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

12. Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?

Russia

As a general rule, foreign states are immune from the jurisdiction of the Russian courts. International organisations are immune from the jurisdiction of the Russian courts in accordance with international treaties to which the Russian Federation is a party.

Foreign state immunity can be limited based on the principle of reciprocity. Moreover, a foreign state cannot assert immunity in respect of:

  • disputes associated with participation by the foreign state in civil law transactions and/or with the pursuance of business activity or other kinds of economic activity in Russia or in the territory of another state, if the consequences of such activity are connected with the territory of Russia;
  • employment disputes in relation to work, all or part of which has been or ought to be done in Russia;
  • disputes associated with participation by a foreign state in legal entities or other entities that do not have the status of a legal entity, if such entities have participants other than states and/or interstate organisations and/or intergovernmental organisations;
  • disputes involving rights to movable and immovable property and its management;
  • disputes involving compensation for damage, if the damage has been caused by an action (or omission) or other circumstance, all or some of which has taken place in Russia, and the wrongdoer was in Russia at the time of such action (omission);
  • disputes involving intellectual property;
  • disputes involving operation of a vessel, where such operation is for purposes other than non-commercial activity or the cargo is not owned by a foreign state and is not exclusively used or intended for use in the exercise of sovereign authority.

If a foreign state has entered into an arbitration agreement that refers disputes related to the performance of obligations to arbitration, it is deemed to have waived its immunity from the jurisdiction of the Russian courts in respect of disputes "concerning the arbitration agreement”.

In PJSC Tatneft v. Ukraine, the Arbitrazh Court of the Moscow District found that Ukraine could not assert immunity from jurisdiction in Russian court proceedings on recognition and enforcement of an investment treaty award rendered by a tribunal seated in Paris (Decree of the Arbitrazh Court of the Moscow District of 29 August 2017 in case No. A40-67511/2017). The Arbitrazh Court of the Moscow District found that Ukraine had waived its immunity from jurisdiction (i) by consenting to investor-state arbitration under article 9(2) of the Russia-Ukraine BIT; (ii) by participating in the arbitral proceedings brought by PJSC Tatneft; (iii) by undertaking to comply with any arbitral award rendered in investor-state proceedings in conformity with its legislation pursuant to article 9(3) of the Russia-Ukraine BIT; (iv) by consenting to the arbitration of investor-state disputes under the UNCITRAL Rules 1976 and, pursuant to article 32(2) thereof, undertaking to comply with the award without delay; (v) because the New York Convention, specifically articles III and V thereof, does not envisage jurisdictional immunity as a ground on which recognition and enforcement can be denied.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

Procedure

13. How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?

Russia

Once a claim or application is filed with a court, the court considers whether the claim or application satisfies the requirements set out in law and, if it does, initiates a case. Although Russian court proceedings are adversarial and the parties enjoy discretion in exercising procedural rights, the court may also play an active role in the proceedings. For example, if the case involves issues of foreign law and the court needs to determine the content of foreign law, the court may independently apply for assistance to state bodies or experts. If the court decides that the claimant is pursuing the wrong remedy to defend its rights (ie, the claimant is relying on inapplicable rules of law or is not relying on the applicable rules of law) the court itself determines the applicable rules of law.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

14. What are the requirements for filing a claim? What is the pleading standard?

Russia

The claimant must include the following in the statement of claim:

  • information about the parties to the dispute, the court, and a list of the documents attached to the claim (which must include certain mandatory documents as specified in the Russian procedural codes, such as a power of attorney);
  • information about compliance with pre-action procedures (if applicable), and information about measures that have been taken to reconciliate (if applicable);
  • relief sought;
  • factual circumstances supported by evidence;
  • amount of the claim together with the appropriate calculations (if applicable);
  • interim measures sought by the claimant (if applicable); and
  • other information (if necessary).

 

The Russian procedural codes do not establish any standards applicable to the length of pleadings. However, it is presumed that a statement of claim must be detailed and must be filed together with all necessary exhibits.  

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

15. What are the requirements for answering claims? What is the pleading standard?

Russia

The respondent must include the following in the statement of defence:

  • information about the parties to the dispute and the list of documents attached (among these must be certain indispensable documents listed in the Russian procedural codes, such as a power of attorney);
  • information about measures that have been taken to reconciliate (if any) and opinion as to whether reconciliation is possible;
  • counterarguments to each of the arguments set out in the statement of claim;
  • other information (if necessary).

The Russian procedural codes do not specify any standards applicable to the length of pleadings. However, it is presumed that a statement of defence must be detailed and must be filed together with all necessary exhibits. 

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

16. What are the rules regarding further briefs and submissions?

Russia

The claimant may change the subject matter or grounds of the claim, increase or decrease the amount of the claim up until the end of the proceedings in the court of first instance. The parties may also supplement or elaborate on their arguments by submitting written explanations on the merits of the dispute.

The Russian procedural codes do not address the issue of whether amicus briefs may also be submitted. However, information about non-procedural submissions filed by third parties in cases before a court must be made public and brought to the attention of the parties to the proceedings by posting such information online on the official website of the arbitrazh court and does not constitute grounds for taking procedural actions or procedural decisions in cases.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

17. To what degree are civil proceedings made public?

Russia

The general rule is that court proceedings are public, so generally any person can attend a court hearing and listen to oral pleadings. Civil court filings are generally not publicly available (although they are not explicitly classed as confidential). Judicial acts, on the other hand, are publicly available and should be published online. Therefore, provisions of written filings that are cited or otherwise referred to in a judicial act will become publicly available. The names of the parties are stated in judicial acts of Russian arbitrazh courts, whereas in judicial acts of the Russian courts of general jurisdiction the parties' names are usually not indicated.

A party to court proceedings may request the court to consider the case behind closed doors (in camera). If the court grants such a request, spectators are not allowed to be present at the hearings and judicial acts related to the case should not be published online. Generally, Russian courts tend to be reluctant to grant such requests.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

Pretrial settlement and ADR

18. Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?

Russia

No, Russian courts usually do not render (interim) assessments about factual or legal issues in dispute. However, at the early stages of proceedings the courts inform the parties that they have the right to apply to the court, an intermediary (including mediators) or a judicial conciliator for assistance in settling the dispute. The court may also take other measures to facilitate settlement. There are no mandatory settlement conferences between the parties at the outset of or during litigation. However, for many categories of disputes it is mandatory to send a pre-action letter before filing the statement of claim. Such pre-action letters can lead to early settlement.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

19. Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?

Russia

Referral to mediation or another form of ADR is not mandatory before or during litigation, but it is an option. Where there is a binding mediation clause applicable to a given dispute, referral to mediation may be mandatory.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

Interim relief

20. What are the forms of emergency or interim relief?

Russia

The forms of interim relief granted by Russian courts include, among other things, the following:

  • seizure of money, property and other assets;
  • prohibiting the respondent and third parties from taking certain actions related to the subject matter of the dispute;
  • ordering certain actions be taken to prevent deterioration or impairment of the property, or both, in dispute;
  • transfer of the property in dispute into storage;
  • suspension of a disputed writ of execution that has resulted in a recovery process not requiring the owner's instruction; and
  • suspension of the sale of property where a claim seeking that the property be released from seizure has been filed.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

21. What must a petitioner show to obtain interim relief?

Russia

Russian courts grant interim relief when failure to do so could hinder or render impossible execution of the judgment, and also to prevent significant damage to the petitioner.

To obtain interim relief in an arbitrazh court, the petitioner must demonstrate the following:

  • the interim relief relates to the subject matter of the claim;
  • the interim relief is proportionate and will ensure that the purposes for which it is sought are achieved;
  • the interim relief is reasonable and justified;
  • the balance of interests of the interested parties is not impaired; and
  • the interim relief does not violate the public interest or the interests of third parties;

 

Establishing the likelihood of success on the merits (prima facie) is also usually required.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

Decisions

22. What types of decisions (other than interim relief) may a court render in civil matters?

Russia

A court of first instance may render judgments and rulings and issue writs.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

23. At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?

Russia

A court may render a judgment after the evidence has been examined and rebuttal arguments have been made. Motions to dismiss and summary judgments are available.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

24. Under which circumstances will a default judgment be rendered?

Russia

Russian courts of general jurisdiction may render default judgments if the respondent, having been duly notified of the hearing, fails to attend the hearing without providing an admissible excuse and without requesting that the case be considered in its absence.

Russian arbitrazh courts may render default judgments if the claimant or respondent, having been duly notified of the hearing on the merits, fails to attend.

If the claimant, respondent or third parties duly notified of a preliminary hearing fail to attend without objecting to the case being considered in their absence, a Russian arbitrazh court may conclude the preliminary hearing and commence the hearing on the merits, unless the case is required to be heard by a panel of judges.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

25. How long does it typically take a court of first instance to render a decision?

Russia

A court of first instance typically renders a judgment within six to eight months from the filing date of the claim. However, it can take much longer if the case is complex or the respondent is a foreign entity that must be duly notified of the Russian court proceedings.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

Parties

26. How can third parties become involved in proceedings?

Russia

In Russia there are two kinds of third parties: third parties with and without separate claims in respect of the subject matter of the dispute.

Third parties with separate claims have their own substantive interest in the subject matter of the dispute and intervene in the proceedings by filing their own independent claims before the court of first instance renders judgment.

Third parties without separate claims join the case at their own initiative, at the request of the persons participating in the case or at the initiative of the court, if the outcome of the dispute may affect their rights or obligations vis-à-vis one of the parties.

Prosecutors can also apply to the courts. For example, prosecutors have the right to file claims in Russian arbitrazh court:

  • for invalidation of transactions and application of the consequences of invalidity of void transactions made by public entities (such as public authorities of the Russian Federation or legal entities in which the Russian Federation holds a stake);
  • for recovery of state and municipal property from unlawful possession.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

Fact-Finding and Evidence

27. Describe the rules of fact-finding in your jurisdiction.

Russia

In Russian courts, facts can be proved by written and physical evidence, explanations of persons participating in the case, expert reports, specialist consultations, witness testimony, and audio and video recordings. In Russian arbitrazh courts, other evidence can also be submitted. In Russian courts of general jurisdiction, it is disputed whether other evidence can be submitted.

Facts that do not need to be proved by the parties include facts established earlier in another judgment (subject to certain prerequisites), facts deemed common knowledge and facts admitted by the opposing side. In Russian arbitrazh courts, circumstances invoked by one party are deemed admitted by the other party unless the latter expressly challenges them or its disagreement with such circumstances follows from other evidence filed in support of its position on the merits.

The court assesses every piece of evidence for relevance, admissibility and credibility, and the totality of the evidence for sufficiency and coherence.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

28. Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?

Russia

Russian courts usually rely on the parties to request the taking of evidence and to present it. However, they may also be active in the taking of evidence and ascertaining the circumstances in a case. For instance, Russian courts may suggest that the parties file additional evidence on issues relevant for resolving the dispute. Russian courts may (and sometimes must) occasionally instruct experts and specialists, call witnesses, and seek assistance in order to determine the content of foreign law at their own initiative.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

29. Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?

Russia

Generally, an opponent is not obliged to produce evidence that is harmful to it in the proceedings unless the court specifically instructs it to produce such specific evidence upon the motion of one of the persons participating in the case. If state authorities, local authorities, or other bodies or officials fail to provide evidence in cases arising out of administrative or other public legal relations, the arbitrazh courts at their own initiative demand evidence from the relevant authorities or bodies.

The persons participating in the case must disclose only the evidence that they refer to in support of their claims or defence. If the court orders the disclosure of certain specific documents and they are not disclosed absent any admissible excuse, the general consequence can be either a court fine or, in Russian arbitrazh courts, also an adverse costs order. The court might also draw adverse inferences from such failure to disclose.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

30. Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?

Russia

The key characteristics of witness evidence in Russia are as follows:

  • a witness must testify on the factual circumstances relevant to the case;
  • a witness must testify on issues that he or she knows personally. A witness's testimony has no evidentiary value if the witness cannot specify the source of his or her knowledge;
  • it is a crime for a witness to give testimony that is knowingly false or to refuse to give testimony (unless the witness would have to testify against himself or herself or his or her spouse or next of kin);
  • a witness is to testify orally or, in Russian arbitrazh courts at the suggestion of the court, in writing; and
  • certain persons cannot be called to testify. For example, arbitrators cannot be called to testify about circumstances that became known to them in the course of arbitration.

The legislation does not explicitly prohibit witness preparation, but exerting pressure on a witness is unacceptable.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

31. Who appoints expert witnesses? What is the role of experts?

Russia

Generally, the role of experts is to clarify issues that require specific knowledge.

In Russian arbitrazh courts, experts are appointed by the court either at the request of a person participating in the case or with the consent of the persons participating in the case. In certain specific circumstances experts can be appointed by the court at its own initiative. In Russian courts of general jurisdiction, experts are appointed by the court.

The persons participating in a case may also exhibit expert reports to their pleadings.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

32. Can parties to proceedings (or a partys directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a partys failure to testify or act as a witness?

Russia

No, parties to proceedings cannot act as witnesses. However, they can give explanations to the court on various issues of fact.

Russian law does not explicitly prohibit a party’s directors and officers being summoned as witnesses.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

33. How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?

Russia

Where an issue of foreign law arises in the proceedings, the court determines the content of foreign law. The parties usually assist the court in determining the content of foreign law by submitting expert reports, either voluntarily or upon being ordered to do so by the court. This does not release the court from the obligation to itself determine the content of foreign law. Other means of determining the content of foreign law include the court's applying to competent state bodies of the Russian Federation or experts. If the court fails to determine the content of foreign law within a reasonable time, Russian law applies.

Foreign-language documentation may be introduced into the proceedings if it is accompanied by a duly certified translation into Russian.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

34. What standard of proof applies in civil litigation? Are there different standards for different issues?

Russia

Generally, the court assesses the evidence based on its belief. Certain categories of cases have their own standards of proof. For instance, a lower standard of proof applies to applications for interim measures.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

Appeals

35. What are the possibilities to appeal a judicial decision? How many levels of appeal are there?

Russia

Judgments of the courts of first instance can be appealed. Generally, there are four levels of appeal: the appeal, the cassation appeal, the second cassation appeal and the supervisory appeal. It is also possible to apply for review of a judgment based on new or newly discovered circumstances.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

36. What aspects of a lower court's decisions will an appeals court review and by what standards?

Russia

The court of appeal will review whether:

  • circumstances of relevance to the case have been fully established and proved;
  • the conclusions made in the judgment correspond to the circumstances of the case;
  • there have been any violations or misapplication of the rules of substantive law;
  • there have been any violations or misapplication of the rules of procedural law that have resulted in or could result in a faulty judgment; and
  • there have been any defined procedural violations serving as grounds for annulment, irrespective of whether they have resulted in or could result in a faulty judgment.

The courts of cassation appeal will review whether:

  • the rules of substantive and procedural law have been correctly applied by the courts of lower instances;
  • the conclusions of the courts of lower instances regarding application of the rules of law correspond to the circumstances of the case that they have established and to the evidence in the case; and
  • there have been any defined procedural violations serving as grounds for annulment, irrespective of whether they have resulted in or could result in a faulty judgment.

The court of supervisory appeal will review whether the appealed judicial act violates:

  • the individual rights and freedoms guaranteed by the Constitution of the Russian Federation and generally accepted principles and rules of international law and treaties to which the Russian Federation is a party;
  • the rights and freedoms of the public at large or other public interests; and
  • the uniformity of interpretation and application of the rules of law by the courts.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

37. How long does it usually take to obtain an appellate decision?

Russia

It usually takes three to four months to obtain an appellate decision.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

Special proceedings

38. Are class actions available?

Russia

Yes, class actions are available. As a result of recent amendments, article 225.11 of the Arbitrazh Procedure Code, which sets out the categories of disputes that can be heard under the rules on class actions, has been repealed – the legislators' intention probably being to pave the way for wider use of class action in practice.

To file a class action, all of the following conditions must be met:

  • the respondent is the same for all members of the group;
  • the subject matter of the dispute is common or uniform rights and legitimate interests of the members of the group;
  • the rights of the members of the group and the respondent's obligations derive from a similar factual background;
  • the same remedy is sought by all members of the group.

For an action to be considered a class action, it must include at least five members in Russian arbitrazh court proceedings or at least 20 members in Russian courts of general jurisdiction.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

39. Are derivative actions available?

Russia

Yes, derivative claims are available. Participants of a corporation and members of its board of directors (or supervisory board) may bring certain claims acting on behalf of the corporation. For instance, they may bring claims for invalidation of transactions made by the corporation or for compensation of damages caused by the chief executive officer to the corporation, provided that certain prerequisites are met.

Similarly, in the context of bankruptcy, the trustee in bankruptcy or the creditors in bankruptcy may bring claims for invalidation of transactions, acting on behalf of the bankrupt debtor (and indirectly in the interests of the bankruptcy estate and the other creditors), provided that certain prerequisites are met.  

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

40. Are fast-track proceedings available?

Russia

Fast-track proceedings (other than summary judgment) are available in Russia. These are proceedings initiated upon applications for writs. Russian courts may issue writs in simple disputes where the claimant is seeking a relatively small amount of money or, in the case of Russian courts of general jurisdiction, also movable property of relatively low value. Russian courts of general jurisdiction are required by law to issue writs within five days, and Russian arbitrazh courts – within ten days. Writs are issued ex parte and without conducting a hearing. A writ that has been issued can be presented for execution.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

41. Is it possible to conduct proceedings in a foreign language?

Russia

No, it is not possible for the courts to conduct proceedings in a foreign language.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

Role of Domestic Courts In Arbitration Matters

42. In which conditions does your domestic arbitration law apply? Does it apply equally to purely domestic and international arbitrations, and to commercial and investor-state arbitrations?

Russia

There are several laws on arbitration in Russia:

  • Law of the Russian Federation No. 5338-1 On International Commercial Arbitration, dated 7 July 1993, which applies to international commercial and investor-state arbitrations seated in Russia;
  • Federal Law No. 382-FZ On Arbitration in the Russian Federation, dated 29 December 2015, which applies to commercial arbitrations seated in Russia;
  • Federal Law No. 102-FZ On Arbitral Tribunals in the Russian Federation, dated 24 July 2002, which is now largely inoperative but is yet to be repealed. As of 1 September 2016, the rules set out in this statute do not apply, except with respect to arbitral proceedings that commenced but were not completed before the effective date of Federal Law No. 382-FZ On Arbitration in the Russian Federation, dated 29 December 2015.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

43. Give an overview of instances in which state courts come into play in domestic and international arbitration proceedings.

Russia

State courts come into play in domestic and international arbitral proceedings in the following instances:

  • recognition and enforcement of arbitral awards;
  • annulment of arbitral awards;
  • interim applications related to arbitration; and
  • parallel proceedings.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

44. Describe the rules governing recognition and enforcement of arbitral awards in your jurisdiction. To what extent do domestic courts review arbitral awards on the substance?

Russia

Foreign arbitral awards are subject to recognition and enforcement, while domestic arbitral awards require the issuance of a writ of execution, but they are similar.

However, where an award is foreign and its nature is such that it requires only recognition and not enforcement, the award is recognised in Russia without any further proceedings (ie, automatically, provided that the debtor does not file objections to this within the prescribed time limit).

As a general rule, a creditor may enforce an award by filing an application with the competent court at the debtor's place of residence or location or, if its place of residence or location is unknown, at the place where the debtor's assets are located.

Among the documents the creditor must enclose with its application are an original or duly certified copy of the award and an original or duly certified copy of the arbitration agreement, together with their duly certified translations into Russian (if necessary).

By law, the court is required to consider the enforcement application within one month of the date of its receipt, in accordance with the procedural rules governing the consideration of claims by courts of first instance, albeit with certain particularities (eg, there will be a hearing, but the court cannot review the award on the merits).

After considering the enforcement application, the court issues a ruling recognising and enforcing the arbitral award or denying its recognition and enforcement. The ruling enters into force immediately and can be further appealed.

It is common practice among Russian courts to cite public policy as grounds for dismissing an application for recognition and enforcement of arbitral awards. As a matter of law, courts cannot review arbitral awards on substance. In practice, however, they often do so, relying on a broad interpretation of public policy grounds for dismissing applications for recognition and enforcement.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

Effects of judgment and enforcement

45. What legal effects does a judgment have?

Russia

As a matter of Russian law, the personal effect of judgments of Russian courts is ambivalent. On the one hand, there is a principle of the binding nature of judgments: judgments that have entered into legal force are binding on any and all state and municipal bodies, associations, officials, individuals and legal entities and must be complied with throughout the entire territory of the Russian Federation. On the other hand, if a court renders a judgment on the rights and obligations of persons who have not been joined to the proceedings, this constitutes grounds for the judgment to be annulled, irrespective of whether it has resulted or could result in a faulty judgment.

One of the effects of a judgment that has entered into legal force is that it prevents a court from rendering a new judgment in the dispute between the same parties, regarding the same subject matter and based on the same grounds. In addition, facts established previously in a judgment that has entered into legal force do not need to be proved and cannot be disputed in subsequent proceedings between the same parties.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

46. What are the procedures and options for enforcing a domestic judgment?

Russia

Generally, a judgment is subject to execution once it enters into legal force (usually after an appeal). In some cases, a judgment becomes subject to execution immediately after it is rendered, provided that certain prerequisites are met. To commence execution proceedings a judgment creditor needs to apply for and obtain a writ of execution from a court of first instance on the basis of the judgment in its favour. A judgment creditor does not need to obtain a writ of execution where a decision issued by a court in its favour is in the form of a writ.

A judgment creditor may then submit the writ of execution for execution proceedings, which are conducted by bailiffs. A judgment debtor has five days from the date of notification of execution proceedings to comply with a writ of execution voluntarily. If it does not do so, the bailiffs proceed with execution proceedings. Generally, bailiffs must execute a writ of execution within two months.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

47. Under what circumstances will a foreign judgment be enforced in your jurisdiction?

Russia

Foreign judgments are enforced in Russia based on either a treaty providing for mutual recognition and enforcement of judgments or the principle of reciprocity.

The courts will dismiss an application for recognition and enforcement of a foreign judgment if:

  • the decision in question has not taken legal effect under the law of the state in the territory of which it was made;
  • the party against whom the decision was made was not duly notified of the time and place of the proceedings, or there are other reasons for which that party was unable to present their case;
  • the dispute is within the exclusive jurisdiction of the Russian courts by operation of an international treaty to which Russia is a party or federal law;
  • there exists a Russian court judgment that has entered into force and that was rendered in a dispute between the same parties in respect of the same subject matter and on the same grounds;
  • a dispute between the same parties involving the same subject matter and the same grounds is being heard by a Russian court, the proceedings in which were initiated before the initiation of proceedings in the foreign court, or the fact that a Russian court was first to accept a claim for proceedings in a dispute between the same parties involving the same subject matter and the same grounds;
  • the limitation period applicable to enforcement of the foreign judgment has expired and has not been reinstated by a court; and
  • enforcement of the foreign judgment is contrary to Russian public policy.

Where the nature of a foreign judgment is such that it requires only recognition and not enforcement, the foreign judgment is recognised in Russia without any further proceedings (ie, automatically, provided that the debtor does not file objections to this within the prescribed time limit).

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

Costs and Funding

48. Will the successful partys costs be borne by the opponent?

Russia

Yes, the successful party’s costs will be borne by the opponent. If the claim is satisfied only in part, the successful party’s costs will be borne by the opponent proportionately to the extent that the claim is satisfied. Costs of legal representation are recoverable only to the extent they are reasonable. Reasonable costs of legal representation are considered to be fees for analogous services in similar circumstances. When assessing their reasonableness, the court may take into account the variety of relief sought, the amount of the claim, the complexity of the case, the extent of the services provided by the legal representative, the amount of time required for the legal representative to produce the procedural documents, the duration of the proceedings, etc.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

49. May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?

Russia

Yes, certain categories of people may apply for legal aid and be represented in court for free. In certain cases, a party may also defer payment of the filing fee or pay it in instalments. There are also non-profit organisations and law firms that do pro bono work.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

50. Are contingency fee arrangements permissible? Are they commonly used?

Russia

Contingency fee arrangements under which the amount of fees depend on the outcome of the case are permissible between lawyers qualified as advocates and their clients in civil and arbitrazh court proceedings. The extent to which such contingency fee arrangements are permissible in other circumstances is less clear.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

51. Is third-party funding allowed in your jurisdiction?

Russia

There are no rules or restrictions on third-party funders. Generally, the concept of third-party funding is alien to Russian law and there is no regulation in this regard. To date, only a few cases have been funded by third parties in Russia.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

52. Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?

Russia

No, there are no fee scales lawyers must follow.

Answer contributed by Timur Aitkulov, Dmitry Malukevich, Alexey Vyalkov, Bogdan Lavrichenko and Evgeny Solomatin

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