Case Law Update

01.12.2014

Источник: Russian Arbitration Association

Background & court’s opinion: The claimant challenged a domestic arbitral award dated 21.12.2005. The claimant indicated the following arguments: 1) the arbitration agreement was not concluded; 2) the claimant was not notified of the arbitration; 3) He got both the information about the arbitration and the arbitral award only in 2008.

The court dismissed the appeal on the ruling dated 10.06.2009. The further courts` tiers upheld the ruling. The court grounded its ruling by missing the period of limitation because the claimant got the information on 16.08.2008 but the appeal was filed in the court on 02.12.2008 (in accordance with the Commercial Procedural code of Russia the period of limitation is 3 months).

Then the claimant challenged the ruling due to newly discovered facts: 1) the forgery of the arbitration agreement; 2) the forgery of the notification on the arbitration. The claimant filed the motion to organize expertise both of the agreement and of the notification.

The court set aside the motion because the judge thought the expertise would lead to a delay in the trial proceedings. As the result the court dismissed the application for reviewing the previous decision (the ruling dated 15.11.2010). The court of cassation upheld the decision.

The Supreme Court`s decision: The High Court cancelled the ruling dated 15.11.2010 and the resolution of the court of cassation.

The Supreme Court inter alia cited both the European Convention on Human Rights (Article 6) and Suda v. the Czech Republic provides the fundamental right to a fair trial could be infringed if a party to arbitration had not negotiated an arbitration clause.

In this case, since the court dismissed the motion to organize expertise without reasoned opinion and there are assumptions of the forgery of some of the evidence, the Supreme Court found the fundamental right to a fair trial had been infringed. The case (the issue of review the ruling dated 10.06.2009 due to the newly discovered facts) submitted for re-examination to the court of first instance (the decision of the Supreme Court of Russia dated 23 September 2014. Case А32-25505/2008)

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