Sun explained to the State Courts how to issue writ of execution on arbitration decisions
In practice, there are many examples when state courts intervene in the sphere of competence of arbitration courts (arbitrations), overestimating the circumstances of the case and disagreeing with the conclusions of arbitrators. However, the Supreme SU of the Russian Federation (Sun) in a recent decision recalled that the State Courts are limited in their powers when considering the issue of execution of the arbitration decision, and their conclusions about violations need a specific and detailed justification. Lawyers note that the Armed Forces are trying to prevent excessive and arbitrary intervention of state courts in the arbitration sphere, and this position is applicable to both Russian and foreign arbitrations.
The Armed Forces published a ruling in the case on the issuance of a writ of execution for the execution of a decision of the arbitration court. It was a dispute between PJSC FSK-STRESSIT and LLC Sieshstroy, whose agreement contained an arbitration reservation. That is, the companies agreed to transfer their disputes under the contract to the arbitration court under the Russian Union of Industrialists and Entrepreneurs (now the Arbitration Center at the RSPP), the decisions of which are final and mandatory for the parties.
In connection with the violation of the deadlines for the work of Rosseti, they sent a claim to Siestroy, demanding the payment of a penalty in the amount of about 181 thousand rubles. The calculation of the penalty under the terms of the transaction was 0.1% of the contract price for each day of delay in fulfillment of the obligation. The contractor replied that the delay in the process of work is associated with objective obstacles, and the penalty is disproportionate and must be reduced. As a result, the dispute moved to the Arbitration Court, which satisfied the lawsuit of the Rossetei and recovered from Siestroy a little over 171 thousand rubles. The penalty, noting that the calculation of the plaintiff was not challenged, and the defendant did not prove the injustice of the terms of the contract.
Since the defendant voluntarily did not fulfill this decision, the plaintiff applied to the State Court for the enforcement sheet for the enforcement of the arbitration decision, but received the refusal of the Arbitration Court of the Tomsk Region.
The appeal in the district cassation was not successful: the refusal was in force. According to the State Courts, the penalty collected by the arbitration court is unfair, disproportionate and aimed at enriching the plaintiff, which contradicts the public order of the Russian Federation.
The plaintiff filed a complaint in the Armed Forces. The case was referred to the economy of the college, which canceled the decisions of lower instances.
State Consums, please explain
In his definition, the Armed Forces emphasized that the State Court limits the right to revise the arbitration decision. So, considering the issue of issuing a writ of execution to such a decision, the State Court is not entitled to overestimate the circumstances established by the arbitration court, or to revise the decision of the arbitration court on the merits, ”the collegium said.
In addition, the State Courts did not explain their conclusion about the excessiveness of the penalty. Armed Forces recalled that the penalty is designed to stimulate the fulfillment of obligations and reduce the likelihood of violation of the rights of the creditor. The disputed contract was concluded based on the results of the purchase, that is, the defendant knew in advance about the terms of the contract and agreed to participate in the tender. In addition, the penalty of 0.1% established in the contract for each day of delay “is standard (typical) for such legal relations,” the VS determination says. The defendant’s arguments about the disproportion of the penalty were evaluated by the arbitration court, which established a balance between the measure of responsibility and the damage caused by the violation was considered by the board.
Moreover, the Armed Forces indicated that lower courts did not explain that it was the Russian public order that was violating, thereby, in the absence of evidence, “they actually allowed a review on the merits of the decision of the arbitration court by including unmotivated conclusions in the contested judicial acts.”
However, the State Court should clearly substantiate conclusions about the contradiction of the arbitration decision to the public order of the Russian Federation, indicating the specific circumstances that violate it, the highest authority clarified. Otherwise, the applicant’s right “to a fair judicial procedure” is violated, since he does not find out why he was refused the issuance of a writ of execution, the economy college explained. As a result, the Armed Forces issued a writ of execution for the arbitration decision.
The prerogative of arbitrators
Issues related to the limits of the intervention of state judicial institutions and the possibility of revising the decisions of arbitration courts are periodically becoming the subject of consideration of the aircraft, says PEN & Paper lawyer Denis Dragunov. The partner of KA Yukov and Partners Svetlana Tarnopolskaya notes that the decision of the Armed Forces « fixes and clarifies the previously expressed positions, which does not detract from its meaning. »
116 million rubles
Debts awarded by arbitration decisions were transferred to the execution of arbitration courts in the first half of 2024.
The lawyer AB “S&K Vertical” Ivan Babin draws attention to the fact that SPE orientes lower courts to verify the correctness of the application of fundamental norms of law, and not to reassess the circumstances of the case, since the evaluation of evidence and the establishment of facts is the prerogative of arbitrators. This is important, “since it reduces the possibility of the State Court to cancel the arbitration solution due to the usual disagreement with its content,” emphasizes Mr. Babin. Mr. Dragunov notes that « despite the trends of recent years associated with the introduction of counter -sanction legislation in the procedural sphere, the Armed Forces are consistent in the autonomy of non -state judicial institutions. »
At the same time, the lawyer of KA “Monastyrsky, Zyuba, Stepanov and partners” Alexander Zotov identifies the dilemma that arises from the State Courts: “On the one hand, they cannot review the arbitration decision in essence, that is, arguing with the circumstances of the case with arbitrators. On the other hand, they are obliged to check the arbitration decision for compliance with the public order of the Russian Federation, that is, make sure that the penalty penalty is not excessive for Russian circulation. ”
At the same time, Svetlana Tarnopolskaya notes that the Armed Forces did not limit the freedom of discretion of the judges in assessing what size of the penalty is unacceptable. There are different opinions on this score. According to Ivan Babin, if the arbitration court analyzed the proportionality of the penalty, then the State Court has no reason to review its decision. However, Mr. Zotov is sure that when arbitrators recovered an excessively high penalty under the contract (for example, 0.5% per day), the State Court would definitely refuse to fulfill such a decision with reference to violation of the principle of proportionality and contradiction to public order. Meanwhile, Mrs. Tarnopolskaya resembles, the burden of proving a violation of public order with an arbitration decision lies on the side that disputes this decision, and not on the State Court.
The position expressed by the Armed Forces is applicable to both decisions of Russian arbitration courts and foreign arbitration. In both cases, Russian state courts check the compliance of the decision to the public order of the Russian Federation, “therefore, unprincipled, where it is adopted – in Russia or abroad,” explains Alexander Zotov. At the same time, Svetlana Tarnopolskaya warns against excessive optimism, pointing to the preservation of the breadth of the judicial discretion and the current political situation, which can affect the execution of decisions of foreign commercial arbitration in Russia.
