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Some features of the cassation appeal in arbitration courts

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Consideration of disputes in arbitration courts often continues after the issuance of the final judicial act by the court of first instance.


As stated in paragraph 1 of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 30, 2020 N 13 “On the application of the Arbitration Procedure Code of the Russian Federation when considering cases in the arbitration court of the cassation instance” (hereinafter referred to as Resolution No. 13), the proceedings in the arbitration court of the cassation instance are aimed at eliminating mistakes made by the arbitration courts of the first and appellate instances and expressed in violation or incorrect application of the norms of substantive or procedural law, including due to the inconsistency of the conclusions of the courts of the first and appellate instances on the application of the rule of law to the actual circumstances.


Decisions of the arbitration court of the first instance that have not entered into legal force may be appealed to the court of appeal by the persons participating in the case, as well as by other persons (Part 1 of Article 257 of the Arbitration Procedure Code of the Russian Federation).


Some decisions of the arbitration court of the first instance cannot be appealed in the appellate procedure, but can be appealed in the cassation procedure - such decisions come into force from the day they are made.


For example, decisions of a specialized arbitration court - the Intellectual Property Rights Court, adopted by it when considering cases as a court of first instance, come into force from the date of their adoption, are not subject to appeal, but can be appealed in cassation to the presidium of the Intellectual Property Rights Court (Part 2 of Article 273 of the Arbitration Procedure Code of the Russian Federation).


As specified in Part 1 of Article 273 of the Arbitration Procedure Code of the Russian Federation, effective court orders issued by the arbitration court of the first instance, the decision of the arbitration court of the first instance, if such a decision was the subject of consideration in the arbitration court of the appellate instance or if the arbitration court of the appellate instance refused to restore the missed the term for filing an appeal, and the decision of the arbitration court of the appellate instance may be appealed in the order of cassation proceedings in whole or in part, provided that otherwise is not provided by the said Code, by the persons participating in the case, as well as by other persons in the cases provided for by the said Code.


Thus, for a cassation appeal against a judicial act, it is necessary, as a general rule, for the case to pass the stage of appeal, if such a stage of the arbitration process is provided for the named category of cases.


As a general rule, the period for a cassation appeal is two calendar months from the date of entry into force of the contested judicial act (Part 1 of Article 276 of the Arbitration Procedure Code of the Russian Federation).


The arbitration court of the cassation instance considers the case by the collegiate composition of the court within a period not exceeding two months from the date of receipt of the documents by the court. The specified period may be extended on the basis of a reasoned application of the judge by the chairman of the court for a period of up to six months due to the particular complexity of the case, a significant number of participants in the arbitration process (Article 285 of the Arbitration Procedure Code of the Russian Federation).


As a general rule, the arbitration court of the cassation instance verifies the legality of the decisions, rulings adopted by the arbitration court of the first and appellate instances, establishing the correctness of the application of the norms of substantive law and the norms of procedural law when considering the case and adopting the appealed judicial act and based on the arguments contained in the cassation appeal and objections to the complaint (Part 1 of Article 286 of the Arbitration Procedure Code of the Russian Federation).


At the same time, a feature of the consideration of a cassation appeal is the lack of authority for the arbitration court of the cassation instance to re-evaluate evidence (new and (or) additional evidence related to the establishment of circumstances in the case is not accepted by the court of cassation (paragraph 2 of clause 30 of Resolution No. 13)).


According to Part 2 of Article 286 of the Arbitration Procedure Code of the Russian Federation, regardless of the arguments contained in the cassation complaint, the arbitration court of the cassation instance checks whether the arbitration court of the first and appellate instances violated the procedural law norms, which, in accordance with Part 4 of Article 288 of the said Code, are grounds for canceling the decision Arbitration Court of First Instance, decision of the Arbitration Court of Appeal.


Part 3 of Article 286 of the Arbitration Procedure Code of the Russian Federation provides that, when considering a case, the arbitration court of the cassation instance checks whether the conclusions of the arbitration court of the first and appellate instances on the application of the rule of law correspond to the circumstances established by them in the case and the evidence available in the case.


Article 287 of the Arbitration Procedure Code of the Russian Federation defines the powers of the court of cassation.


According to the legal position of the Constitutional Court of the Russian Federation given, including in the ruling dated February 17, 2015 M 274-O, Articles 286-288 of the Code, being in system connection with other provisions of this Code that regulate proceedings in the court of cassation, provide the court of cassation when checking judicial acts, the right to assess only the correctness of the application of substantive and procedural law by lower courts and does not allow him to directly examine the evidence and establish the actual circumstances of the case. Otherwise, it would allow the court of cassation to replace the courts of first and second instances, which independently examine and evaluate evidence, establish the factual circumstances of the case on the basis of the principles of competition, equality of the parties and the immediacy of the trial, which is unacceptable.


Similar conclusions are contained in the ruling of the Supreme Court of the Russian Federation dated January 23, 2018 No. 305-ES17-14513.


In view of the foregoing, the arguments of the persons participating in the case regarding the factual circumstances that such persons have not previously referred to, which are not supported by the evidence available in the case and the courts of the first and appellate instances, have not been established, are not taken into account and cannot be taken as the basis for the decision court of cassation (paragraph 4 of paragraph 30 of resolution No.13).


As documents confirming the arguments and objections to the complaint, in particular, materials of judicial practice in cases with similar factual circumstances, substantiating, in the opinion of the applicant, the correctness of the application by the courts of first instance, appellate instances of the norms of substantive or procedural law (paragraph 7 of clause 30 of Decree No. 13).



In addition, when considering a case in a court of cassation, the rules established for the court of first instance regarding the right of the parties to speak in debate and with remarks (Article 164 of the Arbitration Procedure Code of the Russian Federation) do not apply, since these rights are related to the consideration of the case on the merits, while the cassation consideration is aimed at verifying the legality of judicial acts of the courts of the first and appellate instances.


In practice, the court hears the position of the applicant of the cassation complaint, then gives the floor to the opponent for his speech, after which, if there are no questions, he retires to the deliberation room.


This circumstance must be taken into account when planning your speech - all your arguments must be stated immediately, not hoping for the opportunity to do this already at the stage of debate and remarks, since such a stage, as mentioned above, is not provided for by the procedural legislation.



One of the features of the cassation appeal is a two-stage cassation stage - the first cassation (solid) and the second cassation (selective).


As indicated in Part 1 of Article 291.1 of the Arbitration Procedure Code of the Russian Federation, judicial acts may be fully or partially appealed to the Judicial Collegium of the Supreme Court of the Russian Federation in the manner of cassation proceedings by persons participating in the case, as well as by other persons in the cases provided for by the said Code, if in contested judicial acts contain significant violations of the norms of substantive law and (or) norms of procedural law that affected the outcome of the trial and led to the violation of their rights and legitimate interests in the field of entrepreneurial and other economic activities.


Given the above, the judicial act of the court of cassation, adopted in the first (solid) cassation, can be appealed in the second (selective) cassation.


The above rule is also general - in some cases, the consideration of the case within the framework of the first cassation is final and not subject to appeal.


For example, decisions of arbitration courts of districts that have not canceled court orders, canceled or amended judicial acts adopted in summary proceedings, are not subject to appeal to the Judicial Collegium of the Supreme Court of the Russian Federation (part 3 of article 291.1 of the Arbitration Procedure Code of the Russian Federation).


A cassation appeal or presentation filed in accordance with the rules established by Article 291.1 of the Arbitration Procedure Code of the Russian Federation is examined by a judge of the Supreme Court of the Russian Federation, after which a ruling is issued to refuse to transfer the cassation appeal or presentation for consideration in a judicial session of the Judicial Collegium of the Supreme Court of the Russian Federation; or on the transfer of a cassation complaint, presentation together with the case for consideration in a judicial session of the Judicial Collegium of the Supreme Court of the Russian Federation (Article 291.6 of the Arbitration Procedure Code of the Russian Federation).


This is the reason for the selective nature of the cassation proceedings within the framework of the second cassation - the complaint is not necessarily submitted for consideration by the Judicial Collegium of the Supreme Court of the Russian Federation (while the first (solid cassation) is obliged to consider the cassation complaint if, when filing it, the requirements of the procedural legislation for its content and attached documents).


Thus, the consideration of cases in the arbitration courts of the cassation instance has many features that significantly distinguish it from the process of consideration in the courts of the first and appellate instances. This article discusses only a few of them.


Often there are cases when the parties manage to take advantage of these features, which contributes to the achievement of a positive result in the court of cassation. But much more common are cases when people who do not know and do not take into account such features achieve negative results for themselves and their clients.

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