Legal Rationale for Arguments and Contesting Reply: Analysing Resolution of the Plenum of the Supreme Court of the Russian Federation No. 13 of June 30, 2020

To foster a uniform application of the Arbitration Procedural Code of the Russian Federation in arbitration courts of cassation instance, formed in accordance with the Federal Constitutional Law of  April 28, 1995 No. 1-FKZ On Arbitration Courts in the Russian Federation, and the Court for Intellectual Property Rights (hereinafter the IPR Court), the Plenum of the Supreme Court issued a Resolution On the Application of the Arbitration Procedural Code of the Russian Federation in Reviewing Cases in Arbitration Courts of Cassation Instance, dated  June 30, 2020 No. 13.

For lawyers specializing in intellectual property law, this Resolution is important because some decisions are not subject to the appeal procedure.

In accordance with paragraph 1 of Article 268 of the Arbitration Procedural Code of the Russian Federation: “when considering a case by way of appeal proceedings the arbitral tribunal reconsiders the case on the evidence available in the case andthe additional evidence submitted”. Pursuant to paragraph 2 of the above Article of the Arbitration Procedural Code of the Russian Federation: “additional evidence shall be accepted by the arbitration court of appeal if a person involved in the case justified the impossibility of submitting it to the court of first instance for reasons beyond its control, including in cases where the court of first instance had rejected a pretrial discovery claim, and the court finds these reasons to be valid.”

Thus, the possibility of appeal is of great importance for the parties to a judicial dispute, as it allows in some cases to re-examine the case.

In accordance with paragraph 2 of Article 273 of the Arbitration Procedural Code of the Russian Federation, legally effective decisions of the IPR Court, which were adopted by it as a court of first instance, may be appealed in cassation proceedings in whole or in part by persons participating in the case, as well as by other persons in cases stipulated by the Arbitration Procedural Code of the Russian Federation.

The IPR Court is simultaneously a cassation instance for all arbitration courts in cases of protection of intellectual rights, as well as a cassation instance in cases heard by it as a court of first instance.

In accordance with paragraph 1 of Article 286 of the Arbitration Procedural Code of the Russian Federation: “arbitration court of cassation reviews the legality of judicial decisions and resolutions adopted by the arbitration court of first and Board of Appeals, establishing the correctness of the application of substantive and procedural law norms when considering the case and adopting the appealed judicial act and on the basis of the arguments contained in the appeal and objections to the complaint, unless otherwise provided for hereof”.

Thus, under current Russian law, the court of cassation does not consider new evidence.

Paragraph 29 of the Resolution of the Plenum of the Supreme Court in question states: “When deciding on accepting additions, written explanations to a cassation appeal or a defense to it, the courts have to assume that the parties are entitled to give legal rationale for arguments and objections at all stages of the proceedings, if they are based on the evidence available in the case file and if such additions, explanations to a complaint contain neither new claims, nor new evidence, which, due to the Arbitration Procedural Code of the Russian Federation provisions, cannot be considered and examined.

At the same time, when receiving additions and written explanations to the cassation appeal the court shall verify the compliance of the person who sent them with paragraphs 3 and 4 of part 4 of Article 277 of the Arbitration Procedural Code of the Russian Federation. If these requirements are not complied with, the appeal court will not have to accept the submitted documents.”

Paragraph 30 of the Resolution of the Plenum of the Supreme Court under consideration additionally discloses: “New and (or) additional evidence relevant to the establishment of circumstances in the case shall not be accepted by the court of cassation instance.

If a person involved in a case has submitted additional evidence to the cassation instance court which was not submitted by it to the court of first or appellate instance, including an attachment to a contesting reply to the appeal, such evidence shall not be attached by the cassation instance court to the case materials and if necessary, shall be returned, of which the order shall be rendered. The appeals court shall be entitled to render such an order together with the order that the cassation appeal has been admitted to proceeding.

The arguments of the persons involved in the case regarding fact patterns, which were not previously referred to by such persons, which are not supported by available evidence in the case and were not established by the courts of the first and appellate instances, are not taken into account and cannot be the basis for the ruling of the court of cassation instance.

This position is already being implemented in court practice, including Decision of the IPR Court of July 27, 2020 No. C01-558/2020 in case No. A12-40395/2019; Decision of the Presidium of the IPR Court of November 13, 2020 No. C01-1139/2020 in case No. СИП-214/2020; Decision of the Presidium of the IPR Court of November 16, 2020 N C01-1246/2020 in case No. СИП-152/2020; Decision of the IPR Court of July 20, 2020 No. C01-1177/2019 in case No. A52-5093/2018, Decision of the IPR  Court of July 29, 2020 N C01-994/2017 in case No. A56-73772/2016.

If a person involved in a case has submitted to the court of cassation instance evidence not accepted by the court of first or appellate instance in support of the argument that the court violated or misapplied the rules of procedural law, which led to the adoption of a wrong decision, ruling (expressed, for example, in refusal of the court to grant a request for the admission of such evidence or for a pretrial discovery), then if the court of cassation instance comes to the conclusion that there are Arbitration Procedural Code of the Russian Federation, the said evidence may not constitute grounds for it to take a judicial act on the merits of the dispute. In this case, the case shall be forwarded for a new examination to the court of appropriate instance.

The Supreme Court of the Russian Federation has drawn the attention of the courts of cassation instance to the fact that the cassation instance must take into account the arguments of applicants on the unreasonable refusal to accept evidence by courts of lower instances and on the justification of the appealed judicial act on inadmissible evidence.

This position is also reflected in the judgment of the Arbitration Court of the Far Eastern District dated August 7, 2020 No. F03-1636/2020 in case No. A51-17085/2019.

Thus, subject to the conditions stipulated in the paragraph above, it is allowed to attach new evidence in cassation instance.

Summarizing the above, in general, the provisions of the considered Resolution of the Plenum of the Supreme Court do not contain fundamental innovations or significant changes to the existing proceedings in courts of cassation instance.