Dispute resolution

General approach

The justice system represented by state courts and alternative dispute resolution mechanisms (arbitration and mediation) can be used to resolve disputes in Russia. Traditionally, most disputes are resolved by state courts. However, in recent years, alternative ways of resolving disputes have also gained popularity. In this chapter, we will mainly comment on the state courts in the aspects relevant to foreign investors and briefly touch upon alternative dispute resolution mechanisms.

The state court system

Most disputes are resolved by courts of general jurisdiction or by commercial courts.

Courts of general jurisdiction (magistrates and federal courts of general jurisdiction) consider disputes involving individuals and arising out of civil-law relations, family and housing disputes, inheritance matters and labour disputes, consumer protection disputes, administrative cases involving individuals and criminal cases.

Commercial courts have jurisdiction over commercial disputes generally involving legal entities and individual entrepreneurs. Commercial courts also consider business-related administrative cases, disputes between legal entities and state authorities, and bankruptcy cases. The system of commercial courts also includes the Intellectual Property Court (Please see the IP Court section).

The highest judicial body whose powers include supervision over lower courts (both commercial courts and courts of general jurisdiction) is the Supreme Court of the Russian Federation.

The state court system also includes the Constitutional Court of the Russian Federation and the constitutional courts of the constituent entities of the Russian Federation that rule on the conformity of legal acts to the Constitution, disputes over competence between state authorities, and complaints about violation of constitutional rights and freedoms.

There are also independent specialised martial courts empowered to hear cases involving military personnel and persons undergoing military training.

General legal framework

The dispute resolution procedure is governed by the following main pieces of legislation:

• the Constitution of the Russian Federation, which establishes fundamental rights, procedural safeguards and principles of justice;
• the Federal Constitutional Laws “On the Judicial System” 2 Federal Constitutional Law No. 1-FKZ dated 31 December 1996. and “On Commercial Courts” 3 Federal Constitutional Law No. 1-FKZ dated 28 April 1995. , which regulate the judiciary system’s structure and the basic principles under which courts and judges operate;
• codes establishing all procedural aspects and procedures for handling cases in respect of each type of proceedings: the Commercial Procedure Code, the Civil Procedure Code, the Code of Administrative Judicial Procedure and the Criminal Procedure Code; and
• for arbitration, Federal Law No. 382-FZ “On Arbitration (Arbitral Tribunals) in the Russian Federation” dated 29 December 2015.

Also, some procedural issues are regulated by Resolutions of the Plenum of the Russian Supreme Court summarising judicial practices and giving the official interpretation of the law.

Resolutions of the Presidium of the Supreme Court (i.e. decisions of the Supreme Court in specific cases issued as a result of supervisory review) are recognised as a source of law, whereas other judicial acts do not expressly constitute binding precedents. That said, based on the principles of mandatory nature of judicial acts and the uniformity of judicial practices, parties to a dispute often use such judicial acts to substantiate their position in their specific case. The courts issuing judicial acts also take them into account.

Trends

Electronic justice

Over a decade ago (since 2010), an open database in Russia (the “Commercial Court Files” - kad.arbitr.ru) was established. It has continued to evolve and now publishes all judicial acts of commercial courts, both interim rulings and final decisions and resolutions. The search criteria for retrieving court cases can be trial participants, reference details of the case, judges, etc.

In addition, documents can also be filed with Russian courts (both commercial courts and courts of general jurisdiction) electronically. This option is available for almost all procedural documents.

In connection with the quarantine measures taken in 2020 due to the COVID-19 pandemic, other electronic services have been actively developed:

• Online hearings can now be held in some courts. Until 2020, one could remotely participate in hearings only through another court (i.e. a party to a case could be present in the courtroom of a regional court having a video connection with the court considering the case). Online hearings now allow to connect to a hearing from anywhere without the need for another judicial authority to act as an intermediary. To this end, one should file the relevant petition, obtain access to his/her user account allowing to identify the user and connect directly to the hearing. The system is actively being developed, but it is still too early to say that online hearings are now widespread.
• A system under which it is possible to get acquainted with case documents online is also being developed. In practice, this is now only possible in respect of documents originally submitted to the court in electronic form. But, in future, the courts plan to convert all documents filed by the parties in electronic form.

ADR mechanisms

In recent years, to relieve the judicial system, one of the directions for the development of dispute resolution has been to improve ADR procedures, including mediation 4 Please see the ADR section below. . 

Legal proceedings before state courts

Commercial litigation

Jurisdiction over disputes

As a general rule, a statement of claim is filed with a commercial court at the defendant’s location. In some cases, the law establishes other rules of jurisdiction (e.g. a claim against a defendant located or residing in a foreign state can be brought before the commercial court at the location of the defendant’s assets in Russia). In this respect, the Commercial Procedure Code sets forth circumstances where Russian courts have jurisdiction over disputes involving foreign persons. In particular, the Russian Commercial Procedure Code was amended in 2020 to confer exclusive jurisdiction on Russian commercial courts over disputes involving sanctioned Russian individuals and legal entities. 

The parties to an agreement have the right to enter into a special prorogation agreement providing for rules of jurisdiction over disputes between them that differ from statutory rules. However, such an agreement cannot cover disputes falling within the exclusive jurisdiction of Russian courts (e.g. disputes concerning real estate located in Russia, bankruptcy cases, disputes arising from the registration or liquidation of Russian legal entities).

Also, if, due to any sanctions, a Russian company or individual cannot participate in foreign legal or arbitration proceedings, the prorogation agreement can be recognised as unenforceable since it prevents access to justice. The dispute must in any case be considered by a Russian commercial court.

Court instances

The Commercial Procedure Code provides for five instances for considering commercial disputes:

In practice, it takes up to two to three years in total until a judicial act is issued, and in some cases even longer (if one of the reviewing instances remands the case for a new trial).

Civil proceedings in courts of general jurisdiction

Jurisdiction over disputes

As a rule, a statement of claim is filed with the court of general jurisdiction at the defendant’s location (unless otherwise provided for by law; for example, a consumer protection dispute is considered at the claimant's location) or with a magistrate (in the case of property-related disputes where a small amount is claimed).

Court instances

The Russian Civil Procedure Code provides for five instances for considering civil disputes, and their powers and the limits within which they consider cases are practically the same as those of the corresponding instances of commercial courts:

• courts first instance (as a rule, magistrates for small claims, district and city courts of the constituent entities of the Russian Federation); 
• courts of appellate instance (district courts for magistrates’ decisions, appellate boards of courts of the constituent entities of the Russian Federation and appellate courts of general jurisdiction);
• courts of cassation instance (cassation courts of general jurisdiction);
• court of second cassation (i.e. the Judicial Board for Civil Cases of the Supreme Court of the Russian Federation); and
• court of supervisory instance (i.e. the Supreme Court of the Russian Federation).

The specifics of the consideration of disputes

Pre-trial dispute resolution procedure

For most monetary claims (e.g. recovery of penalties and debts, unjust enrichment, losses), a mandatory pre-trial dispute resolution procedure (i.e. by sending a letter of claim to the defendant) must be followed before filing a claim with a court. A court claim may be filed after the expiry of a 30-day period from the date when the letter of claim was sent, subject to defendant’s refusal to satisfy it. 

The parties can contractually define another pre-trial dispute resolution procedure.

Certain types of claims may be filed without first observing this pre-trial procedure, including bankruptcy claims, corporate dispute claims, class actions.

Representation in court

When going to Russian courts, individuals and legal entities can choose to represent themselves or be represented by a third party. A party to a dispute can be represented by a person so authorised by law (e.g. the general director of a legal entity can represent it without a special power of attorney) or under a power of attorney. 

Since the end of 2019, only persons with higher legal education or a postgraduate degree in law, or lawyers admitted to a Russian Bar (attorneys-at-law – “advokaty”) may be representatives of a party before a court. An exception has been made for representation in the district courts and before magistrates.

Interim measures

To protect the interests of claimants from possible unfair actions of defendants aimed at withdrawing assets during the consideration of the dispute by a court, it is possible to seek the imposition of interim measures. These can be:

• preliminary measures – before the commencement of proceedings; or
• standard measures – at any stage of the case before the final judicial act is issued.

Interim measures include, as a rule, seizure of monetary funds and property, prohibition to dispose of the subject-matter of a dispute, suspensions.

A court grants the claimant’s application for interim measures if failing to take interim measures would complicate or make it impossible to enforce the judicial act, or cause significant damage to the claimant. The claimant must prove that these circumstances exist. 

In certain cases, for interim measures to be granted, the claimant is required to give a cross-undertaking by lodging a security deposit with the court or providing the court with a bank guarantee.

Notice of commercial court proceedings to Russia-based defendants

Due to the active use of the open database for commercial cases Commercial Court Files, the Commercial Procedure Code requires the court to notify that a claim has been accepted only once, when issuing its initial ruling on the case. Subsequently, it is sufficient for the court to publish information and updates on the case, and the dates of ensuing hearings, in the database. 

Legal entities with an office in Russia bear the risk of not receiving correspondence at their official registered address. 

Evidence

Each party must provide evidence supporting the circumstances underlying its claims or objections. If a party is unable to obtain evidence itself, it can apply to the court for assistance by filing a motion for discovery.

In Russia, legal disputes are largely based on documents. All evidence must be provided in writing. In particular, courts rarely grant applications to summon a witness, but accept various minutes of witness examination (e.g. the minutes of a witness interview by an attorney-at-law) as due evidence in the case.

Copies of documents are usually provided as evidence. However, the court can request that original evidence be provided. If evidence is in electronic form (e.g. email correspondence, information contained on a website), the court can accept such evidence in the simple form of a printout or request that the relevant information be certified by a notary (if the other party objects to the validity of the printouts).

Courts will not consider documents in a foreign language unless a duly certified translation of these documents is provided.

Documents obtained in a foreign state must be legalised in Russia via a consulate legalisation procedure or apostilled in accordance with the 1961 Hague Convention (unless otherwise provided for by an international treaty to which Russia is a party).

Certain disputes require expert examination (e.g. construction expert examination, work quality expert examination, goods quality expert examination, evaluation). When this is the case, an out-of-court expert examination report can be submitted as evidence and considered by the court as expert opinion. In addition, the court can appoint a forensic examination: the parties first propose their experts and issues to be examined. The court then considers the proposals and approves the expert and the scope of examination. 

Legal costs

When filing a claim with a state court, the claimant must pay a state duty. The amount of the state duty depends on the amount claimed. In any event, this amount is not large (as compared to arbitration or foreign jurisdictions) and does not exceed RUB 200,000 (EUR 2,222 5 At the notional exchange rate of RUB 90 = EUR 1, as used for convenience throughout this guide. ).

Once the final court decision is issued, the winning party can demand the recovery of legal costs including the state duty, translation and legalisation costs, notary fees, travelling expenses, and expert examination and representation fees.

The court determines the amount of recoverable expenses. As a rule, reasonable expenses that can be evidenced are recovered almost in full (except for legal fees). They can however be reduced if they are deemed irrelevant, optional, etc. In practice, courts tend to significantly reduce the amount of representation fees claimed. RUB 1m to 2m (EUR 11,111 - 22,222) would be considered as a large amount of legal fees recovered through the courts for a major years-long dispute.

Enforcement of judicial acts

Once a judicial act becomes final, it is subject to enforcement. If a debtor refuses to voluntarily comply with the judicial act, the creditor can apply to the court for a writ of execution and, if the creditor knows where the debtor’s accounts are held, submit it to the debtor’s bank or to the Court Bailiff Service.

Bailiffs request information and documents as required, take asset tracing measures and can impose travel restrictions on debtors. Bailiffs can also seize and sell assets (usually, by way of public auction). 

The duration and result of enforcement measures depend on whether the debtor has any assets.

Recognition and enforcement of foreign court decisions and arbitral awards

To enforce a foreign court decision on an economic dispute or an arbitral award in Russia, a party to the dispute must comply with a statutory recognition procedure before the competent Russian commercial court.

As a rule, foreign court decisions and arbitral awards are enforced provided there is a relevant international treaty or, in certain cases, when the principles of international comity or reciprocity are applied. There are, however, few jurisdictions with which this is the case in relation to Russia. By way of example, it has signed treaties with Poland, Greece, Italy and Latvia, and these have been fully ratified.

ADR mechanisms

Mediation

Parties to a dispute can resort to judicial (court) or non-judicial (out-of-court) mediation.

The main difference between the two types of mediation is that:

• non-judicial commercial mediation is possible outside of court settlement proceedings and before the trial hearings start;
•  judicial mediation or reconciliation allows to resolve any dispute in an alternative manner with the participation of a professional representative of the judicial system and can be held within the framework of an already initiated judicial process.

Court mediation procedure

The court mediation procedure is set forth in the Commercial Procedure Code and the Regulation on Judicial Reconciliation approved by Resolution No. 41 of the Supreme Court Plenum of the Russian Federation dated 31 October 2019.

Judicial reconciliation may be initiated by the parties or proposed by the court at any stage of the proceedings.

This type of mediation involves mediators who are retired judges. The Plenum of the Supreme Court approves a list of judicial mediators. 

The candidacy of a judicial mediator is determined by mutual consent of the parties to a dispute from the list of judicial conciliators and is subject to approval by the court. If the parties cannot agree on which of the court mediators should take part in their negotiations, the court will appoint the mediator. 

A judicial mediator’s services are free for the parties, and there is no fee to be paid.

The parties’ negotiations can result in:

• an amicable settlement;
• the claimant’s withdrawal of its claim in full or in part;
• an agreement on the circumstances of the case; or
• the defendant’s acknowledgement of the claims in full or in part.

Judicial reconciliation can be used not only in civil proceedings, but also in the framework of disputes arising from administrative or other public legal relations.

A significant difference between judicial and non-judicial mediation is that the court mediation procedure cannot be applied in civil procedures where the results of the dispute settlement may affect the interests of third parties not participating in the mediation procedure or public interest. For example, bankruptcy disputes can only be referred to judicial mediation.

Thus, judicial mediation represents an alternative judicial settlement applicable for certain categories of disputes for which non-judicial mediation is not possible.

Non-judicial mediation procedure

Non-judicial fee-based mediation (also known as commercial mediation) is also available and actively developing nowadays.

Commercial mediation is provided for by Federal Law No. 193 “On Alternative Dispute Settlement Procedure with the Participation of a Mediator (Mediation Procedure)” dated 27 July 2010.

Commercial mediation is now available not only in civil (commercial) disputes, but also in administrative proceedings (provided it does not involve the interests of third parties). Collective labour disputes are an exception and can be submitted to non-judicial mediation.

Non-judicial mediation always involves the mandatory participation of a neutral third person who is not a representative of the judicial system.

Commercial mediation procedure can be arranged without preliminary court actions or after starting court proceedings (before the final court’s ruling). Out-of-court mediation is based on confidentiality.

The result of the mediation is the decision to terminate the settlement procedure. It is accepted regardless of the outcome, which can be any of the below:

• The dispute is settled by concluding a mediation agreement. 
• The parties did not reach an agreement and decided to terminate the mediation.
• The mediator, after consulting with the parties, decided to terminate the procedure, considering its continuation impractical or pointless.
• One or all the parties refused to continue the process in writing.
• The procedure expired.

Unlike disputes resolved in the state courts, the mediation agreement concluded as a result of commercial mediation is not binding on the parties but should be taken into account in further relations between them. However, notarising such an agreement will give it force of a legally binding document.

The difference between non-judicial mediation and judicial reconciliation procedures is that the judicial conciliator, as a rule, acts more actively during the reconciliation procedure than a mediator in commercial mediation. The role of the latter is aimed mostly at organising and holding meetings of the parties to a dispute, creating favourable conditions for the parties to reach a mutually acceptable solution or agreement without the right for the commercial mediator to make any binding decision.

Russian arbitral tribunals

The legislator has recently modernised the system of arbitral tribunals by regulating their work more clearly. The main arbitral tribunal in Russia is the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation.

The abolition of “puppet” arbitral tribunals at large organisations and the amendment of procedural legislation have led to the active development of the concept of arbitration as a means to resolve disputes in Russia.

Arbitration is attractive to the parties due to the confidentiality of proceedings and arbitrators’ high qualification. Arbitration is often faster than litigation in court and can be cheaper and more flexible for businesses.

It is not mandatory for one of the parties to a dispute to be a Russian legal entity to apply to a Russian arbitral tribunal. This option is also available when a dispute involves only foreign persons.

However, Russia is still not considered as a popular arbitral venue for arbitration proceedings because the arbitration rules and regulations are not very elaborate and practice is contradictory.