Clarifications of the Russian Supreme Court with respect to provisional remedies

Pepeliaev Group advises that the Plenum of the Russian Supreme Court has adopted Resolution No. 15 dated 1 June 2023[1] dedicated to provisional remedies (the "Resolution"). At the same time, resolution No. 55 of the Plenum of the Supreme Commercial Court dated 12 October 2006 “On how commercial courts apply provisional remedies” has been repealed.

The resolution contains clarifications on how to apply interim measures, provisional remedies and preliminary relief (“Provisional Remedies”) in commercial, civil and administrative proceedings.

Below are the most important differences in terms of how provisional remedies are applied in different types of proceedings, as well as details that are worthy of particular attention[2].

1. Whether courts take account of the opinion of the person in whose interests provisional remedies are sought

In commercial and civil proceedings, when the court considers whether to grant Provisional Remedies, it must have regard to the opinion of the person to protect whose rights and legal interests the lawsuit (statement of claim) has been lodged.

In administrative proceedings the court may grant preliminary relief irrespective of whether the relevant motion is supported by the administrative claimant (articles 39 and 40 of the Russian Code of Administrative Court Proceedings (the “Administrative Procedure Code”). Moreover, the court may grant provisional remedies at its own initiative (see, for instance, articles 265.3(4) and 306 of the Administrative Procedure Code).

2. Powers of the representative

In commercial and administrative court proceedings the power to file with the court a motion for provisional remedies or preliminary relief must be stipulated in the power of attorney of another document confirming the representative's powers (see article 62(2) of the Russian Commercial Procedure Code (the “Commercial Procedure Code”), and articles 54(5) and 56(2)(2) of the Administrative Procedure Code).

In commercial proceedings a special power to initiate the granting of Provisional Remedies set out in the representative’s power of attorney presupposes the right to file motions for provisional remedies to be lifted or replaced and a motion for preliminary provisional remedies to be granted (see article 62(2) of the Commercial Procedure Code)

In administrative proceedings a representative will be able to file motions for preliminary relief to be lifted or replaced even in the absence of the right set out in the power of attorney to file motions to have such preliminary relief granted.

In civil proceedings it is not required to specify in a power of attorney any special right to file motions for interim measures to be lifted or replaced or for preliminary provisional remedies to be granted (see article 54 of the Russian Civil Procedure Code (the “Civil Procedure Code”)).

3. Provisional remedies may be granted:

• when case proceedings are suspended and without such proceedings being resumed, except in corporate disputes;

• in disputes of a proprietary and non-proprietary nature;

• when a case is examined under simplified proceedings, but are not permitted in summary proceedings.

4. Suspension and return of a motion for provisional remedies

Unlike the Commercial Procedure Code and Administrative Procedure Code, legislation on civil proceedings does not provide for situations when no action is taken on a motion for provisional remedies or when such a motion is returned or dismissed.

In commercial and administrative proceedings it is allowed to take no action on a motion even if the motion is contained in a statement of claim or administrative statement of claim. The court informs the claimant to this effect no later than the following business day.

In commercial proceedings the court may assess a motion for provisional remedies filed without a statement of claim or in a situation when a statement of claim is returned or no action is taken with respect to it, while treating it as an application for preliminary provisional remedies.

5. Timeframes for examining a motion for provisional remedies

A motion for provisional remedies is examined:

• in commercial and administrative proceedings no later than the following business day after the date when it is filed (an exception is, for instance, article 225.6 of the Commercial Procedure Code);

• in civil proceedings, under the general rule, on the date when it is filed.

6. The court’s power to select provisional remedies

In administrative proceedings the court may grant provisional remedies that are not stated in the motion, but are, in the court’s opinion, more effective as compared with the measures being sought.

In civil and commercial proceedings the court may choose provisional remedies only out of those specified in the motion.

7. Attachment of property

Attachment may be imposed on the property of third parties (for instance, in accordance with article 61.16(5) of the Bankruptcy Law in disputes over secondary liability).

When there are joint and several debtors, attachment may be placed within the limits of the entire amount of the stated claim with respect to each of the debtors.

When the debts of a testator are recovered from heirs, attachment may be imposed only within the value of the property that has passed to each such heir.

The fact that property is under pledge does not prevent attachment from being imposed on it or a ban being imposed on any registration actions.

8. With respect to lawsuits involving a defendant being banned from certain actions 

in beach of the claimant’s rights, it cannot be ruled out that a provisional remedy will be granted in the form of a ban on such actions.

9. Cancellation of provisional remedies

In commercial and administrative proceedings a motion for provisional remedies to be cancelled or replaced is examined by the court that has jurisdiction over the case, irrespective of the court that granted such remedies and the type of proceedings in which they were granted (see article 97(1) of the Commercial Procedure Code, and articles 89 and 91 of the Administrative Procedure Code).

Once the receivership proceedings are opened, the provisional remedies granted earlier in the case proceedings, including by the court of general jurisdiction, may be cancelled only by the court that has granted the relevant provisional remedies.

If a complaint or a submission is filed in response to the court’s ruling to cancel provisional remedies, then the court, without holding a hearing, issues a ruling to suspend the enforcement of the ruling to cancel provisional remedies (see article 145(3) of the Civil Procedure Code, article 97 of the Commercial Procedure Code, and article 90 of the Administrative Procedure Code).

10. The nuances of preliminary interim measures in civil proceedings

Unlike commercial proceedings, in civil proceedings preliminary provisional remedies may be granted only by the Moscow City Court and only with respect to lawsuits under statements of claim where protection is sought of consumer rights and/or adjacent rights, save for the rights to photographic works and works received in ways similar to photography in information and telecommunications networks, including in the Internet (see article 144.1 of the Civil Procedure Code)[3].

Under the rules of article 144.1 of the Civil Procedure Code no preliminary provisional remedies may be granted to protect exclusive rights to trademarks.

11. Counter-security

In commercial proceedings the applicant’s failure to provide counter-security even when applying for preliminary provisional remedies is not, in itself, a ground for refusing to grant such remedies. The opposite is also true: the provision of a counter-security does not automatically lead to provisional remedies being granted if there are no grounds for such remedies to be granted.

A commercial court may demand further to a defendant’s motion that a cross-security must be provided after provisional remedies have been granted. If no such security is provided, the court may cancel the provisional remedies, but only further to the defendant’s motion.

When assessing such a counter-security as suretyship, the court checks whether the suretyship specifies the following: (1) which obligation it secures, (2) whether the amount of the obligation and scope of the surety’s liability are defined, and (3) whether the suretyship is joint and several. The court checks the validity periods of the suretyship and a bank (independent) guarantee.

In civil proceedings a judge or the court, allowing for the claim to be secured, may demand, further to the defendant's motion that the claimant should provide a security to cover the losses that the defendant may incur, including in the period when the granted remedies are in effect. This issue may be examined during a court hearing.

The commercial court, to whose deposit account the money has been transferred as security, wires it to the deposit account of the first-level commercial court that has accepted for proceedings the statement of claim whereby recovery is sought of the losses caused by the provisional remedies.

What to think about and what to do

Provisional remedies are one of the most effective procedural institutions that guarantee the protection of wronged persons’ interests. As a rule, courts (especially commercial courts) are extremely reluctant to apply such measures. It is, therefore, necessary to provide the most extensive justification to the effect that there are conditions for such provisional remedies to be granted, including a detailed analysis of the opponent’s financial standing, of the economic and other consequences of a failure to apply such measures, and of the characteristics of the defendant’s actions in business relationships in general as well as in the situation in question specifically.

We recommend taking account of the differences in how provisional remedies are granted in various types of proceedings and to use the cited resolution as a roadmap when drafting the corresponding motions to the court.

Help from your adviser

The lawyers of Pepeliaev Group have extensive expertise in procedural legislation, which helps them win in court disputes of all categories.

Along with justifying the client's position in a dispute thoroughly and extensively from both the substantive and legal perspectives, we develop a general strategy for the proceedings and tactics for how to act in every court hearing. Predicting the actions of the court and opponents, we put together the necessary procedural motions in advance and steer the dispute so that it evolves in the right direction.

[1] Resolution N. 15 of the Plenum of the Russian Supreme Court dated 1 June 2023 “On certain issues of courts adopting interim measures, provisional remedies and preliminary relief”.

[2] If there is no difference between commercial, civil and administrative proceedings in terms of the approaches to applying Provisional Remedies, then the relevant provisions of the Resolution are cited without mentioning how they are applied in any of the above types of proceedings.

[3] Pursuant to article 26(3) of the Civil Procedure Code, the Moscow City Court acting as the first level court examines civil cases that are connected with the protection of copyright and/or related rights, save for the rights to photographic works and works received in the ways similar to photography in the information and telecommunications networks, including in the Internet, and in which preliminary provisional remedies have been granted under article 144.1 of this Code.