The Plenum of the Russian Supreme Court has adopted a resolution explaining issues of interaction between state and arbitral jurisprudence

Pepeliaev Group advises that on 10 December 2019 the Russian Supreme Court adopted its Plenum’s Resolution No. 53 “On Russian courts performing assistance and control functions with respect to arbitral proceedings and international commercial arbitration”

The Resolution explains issues relating to interaction of private and state jurisprudence, a task of which is assisting the development of alternative measures for settling disputes (clause 1).

Having summarised the case law accumulated over several decades, the Plenum of the Russian Supreme Court formulated legal positions regarding:

• sources of legal regulation,
• the jurisdiction of courts with regard to arbitration proceedings,
• the arbitrability of different categories of disputes,
• certain aspects of the validity and enforceability of an arbitration agreement,
• limits of assistance of state courts to arbitral tribunals, and
• challenging and the enforcement of arbitral awards.

International agreements in the area of arbitration proceedings

The Russian Supreme Court has determined which international agreements regulate issues of arbitration proceedings (in particular, the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) and the European Convention on International Commercial Arbitration dated 21 April 1961 (clause 5)) and which do not (clause 6).

Arbitrability of disputes

The Russian Supreme Court has summarised the list of categories of disputes which cannot submitted to an arbitration tribunal (clause 17). In addition to disputes expressly specified by procedural codes (article 22 of the Russian Civil Procedure Code and article 33 of the Russian Commercial Procedure Code), the following disputes also cannot be submitted to arbitration tribunals: concerning agreements entered into between forex dealers and individuals who are not individual entrepreneurs; concerning contracts for consumer credit[1]; and arising out of legal relationships relating to tax, customs and the state budget.

Validity and enforceability of an arbitration agreement

The jurisdiction of the arbitration tribunal for settling a dispute follows from an arbitration agreement which should be: 1) valid, 2) enforceable and 3) in full force (clause 26).

At the same time, if there are any doubts as to whether the arbitration agreement is valid and enforceable, the court must assess not only the text of the agreement, but also other evidence allowing the actual will of the parties to be established (including the preceding negotiations and correspondence, and the subsequent conduct of the parties) (clause 30).

Provisional remedies

When provisional remedies are granted the general provisions of procedural codes are in force taking into account the specifics of arbitration proceedings: in addition the court should check whether the arbitration agreement is valid and enforceable, and the arbitrability of the dispute (clause 36).

The Russian Supreme Court enshrined the previous case law that a writ of execution can be issued only for enforcement of a judgement of a state court for provisional remedies; writs of execution for the enforcement of judgements of arbitration tribunals for provisional measures are not issued.

Public policy

The Russian Supreme Court provides a definition of the term ‘public policy’, though it is not new. Previously it was formulated in the Overviews of practice approved by the Presidiums of the Russian Supreme Commercial Court and the Russian Supreme Court.

A reference to public policy is possible only if both of the following conditions are met simultaneously:

1) the arbitration award violates “fundamental principles of the construction of the economic, political, and legal system of the Russian Federation”;

2) the possibility of negative consequences in the form of damage being caused to national sovereignty or security, of affecting the interests of large social groups or of violating the constitutional rights and liberties of individuals or legal entities.

The Russian Supreme Court also provides examples of situations which are not considered to be a violation of public policy - when the arbitration tribunal applies provisions of a foreign law which have no analogues in Russian law; when the defendant does not participate in arbitration proceedings and others (clause 51).

Help from your adviser

Pepeliaev Group's lawyers are ready to advise you on internal arbitration proceedings and international commercial arbitrations, as well as to provide you with comprehensive legal assistance with respect to litigation support in state courts and in arbitration tribunals.