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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
Russian Federation.
(Note: The Russian Federation continues, as from 24 Dec. 1991, the former Union of Soviet Socialist Republics (USSR)’s membership of the United Nations and maintains, as from that date, full responsibility for all the rights and obligations of the USSR under the Charter of the United Nations and the multilateral treaties deposited with the Secretary General.)
2. Date of entry into force of the New York Convention
22 Nov. 1960.
(Source: Decree of Presidium of the Supreme Soviet of the USSR of 10 Aug. 1960, published 15 Aug. 1960; Instrument of Ratification of the New York Convention deposited by the USSR on 24 Aug. 1960: 374 United Nations Treaty Series 386.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?
The following reservation was made when the Convention was ratified (374 United Nations Treaty Series 386): ‘The Union of Soviet Socialist Republics will apply the provisions of this Convention in respect to arbitral awards made in the territories of non-contracting States only to the extent to which they grant reciprocal treatment’.
(b) commercial relationships?
No reservation for commercial relationships has been made.
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
No. However, awards rendered in Russia are enforced pursuant to the provisions of the Federal Law of the Russian Federation ‘On international commercial arbitration’, Arts. 35 and 36 of which match the corresponding rules of the New York Convention.
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
(Note: The Russian arbitrajnii prozessual’nii kodeks has been variously translated into English as Arbitration Procedural Code and Code on Arbitrazh Procedure or Arbitrazh Procedural Code. It should be recalled that the term arbitrazh in this context has nothing to do with arbitration, but is a historical term emanating from the gos arbitrazh which handled disputes between State enterprises under socialism.)
C. Limitation periods (time limits)
6.
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
Yes.
(Source: Arbitrazh Procedural Code, Art. 246.)
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
The relevant limitation period applicable to the commencement of legal proceeding for recognition and enforcement of foreign awards is three years from the date on which the award entered into legal force. Even if this period has expired, it may be restored by the arbitrazh court at the request of the applicant if there is a valid reason for non-compliance with the limitation period.
(Source: Arbitrazh Procedural Code, Art. 246, Para. 2).
Civil Procedural Code does not contain any provision to similar effect.
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
In Russia civil disputes are handled by two types of courts: the arbitrazh courts (arbitrazhnyi sud), and the courts of general jurisdiction. This duality extends to applications for recognition and enforcement of foreign awards.
Two key criteria determine the choice between the courts of general jurisdiction and the arbitrazh courts:
(Source: Constitution of the Russian Federation, Arts. 126, 127, Arbitrazh Procedural Code, Art. 32; Civil Procedural Code, Art. 22 (para. 1.6).)
The wording of relevant statutes suggests that in relation to the recognition and enforcement of foreign awards the subject-matter criterion (above) prevails. This means that an application for the recognition and enforcement of a foreign award, rendered in a commercial dispute, is to be heard in an arbitrazh court, even if an individual is involved, i.e. applications on recognition of arbitral awards in cases concerning insolvency of individuals are subject to the jurisdiction of arbitrazh courts.
(Source: Arbitrazh Procedural Code, Art. 27 (para. 6).)
Pursuant to Art. 38, Para. 9 of the Arbitrazh Procedural Code, Art. 26 Para. 1.9 of the Civil Procedural Code, as of 1 Sept. 2016 cases on recognition and enforcement are examined at first instance by the arbitrazh courts or the courts of general jurisdiction of the subjects of the Russian Federation (e.g. the Moscow City Arbitrazh Court or the Moscow City Court in Moscow).
An application for recognition and enforcement of a foreign arbitral award is examined by a single judge. In arbitrazh procedure, the courts are required to consider the application for the recognition and enforcement of a foreign award within one month from the date of its receipt. In civil procedure, there is no specific term within which the court of general jurisdiction must consider such an application and, consequently, a general two-months term applies.
(Source: Arbitrazh Procedural Code, Art. 243 (para. 1); Civil Procedural Code, Art. 7 (para. 1), Art. 154.)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
An application for recognition and enforcement of a foreign arbitral award is filed by the award creditor with the court of the subject of the Russian Federation where the debtor resides or has its place of stay or, if unknown, where its property is located.
(Source: Arbitrazh Procedural Code, Art. 242, (para. 1); Federal Law ‘On international commercial arbitration’, Art. 35 (para. 1).)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The first decision granting recognition and enforcement is obtained through inter partes proceedings.
The court notifies the persons involved in the case of the time and place of the court’s session. Their failure to appear after such notification will not prevent the case from being examined.
(Source: Arbitrazh Procedural Code, Art. 243 (para. 2); Civil Procedural Code, Art. 411 (para. 3).)
At the court session, the existence or absence of grounds for recognition and enforcement of the award shall be established through an examination of the evidence submitted to the court and the substantiation of the parties’ claims and objections.
(Source: Arbitrazh Procedural Code, Art. 243 (para. 3); Civil Procedural Code, Art. 411 (para. 4).)
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
(b) How many levels of appeal or recourse are available against this decision?
Two, as a general rule.
In arbitrazh procedure, the ruling granting or denying recognition and enforcement of a foreign arbitral award is not subject to an ordinary appeal procedure. A party wishing to appeal such a ruling must do so by way of a cassation appeal, which would otherwise have been a second appeal. A cassation appeal must be filed with the arbitrazh court of the relevant district within one month from the day of the issue of the ruling.
(Source: Arbitrazh Procedural Code, Art. 245 (para. 3).)
At the second level, the ruling in the cassation proceedings (which will enter into force immediately) may be appealed to the Judicial Board of the Supreme Court of the Russian Federation within two months from the day the ruling of the arbitrazh court of the district (in the cassation proceedings) comes into force. This level of appeal is discretionary, i.e. the Judicial Board of the Supreme Court will only accept cases for reconsideration if a Supreme Court Judge, after considering a party’s appeal, passes a ruling granting the transfer of the cassation appeal to the Judicial Board of the Supreme Court.
As a matter of practice, very few further appeals (approx. 2%) are accepted for consideration (see the statistics published by the Supreme Court of Russia). If such a further appeal is not accepted for consideration, a party may ask the Chairman of the Supreme Court, or its Deputy, to overrule the ruling of a Supreme Court Judge, and accept the case for consideration by the Judicial Board of the Supreme Court.
When the case is accepted for consideration, the Judicial Board of the Supreme Court hears the appeal and issues a ruling. The ruling may be further appealed to the Presidium of the Supreme Court.
(Source: Arbitrazh Procedural Code, Arts. 291.1 to 291.15 and 308.1 to 308.13.)
In civil procedure, rulings of the courts of general jurisdiction on recognition and enforcement are subject to a regular appeal procedure for rulings. An appeal must be filed with the appellate court, within 15 days from the date when the ruling was issued. Appellate rulings may be further appealed to the cassation court. This level of appeal is currently discretionary.
(Source: Civil Procedural Code, Arts. 413 (para. 5), 331, 332.)
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
The earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets in the Russian Federation is after the ruling of the Russian court of the subject of the Russian Federation (granting enforcement of the award) has entered into force.
In arbitrazh procedure, the ruling on the recognition and enforcement of an arbitral award is immediately enforceable.
In civil procedure, the ruling enters into force after the expiry of the time limit allowed for filing an appeal.
(Source: Arbitrazh Procedural Code, Arts. 187, 318 (para. 1); Civil Procedural Code, Art. 428, (para. 1).)
E. Evidence required
12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
In arbitrazh procedure, for recognition and enforcement of foreign arbitral awards, the following evidence must be supplied by the award creditor: an application for recognition and enforcement in written form signed by this party or by its representative containing:
The following evidence must also be supplied with the application for recognition and enforcement of the foreign arbitral award:
(Source: Arbitrazh Procedural Code, Arts. 242 (paras. 2, 4, 5), 126; Federal Law ‘On international commercial arbitration’, Art. 35 (para. 2); Tax Code, Art. 333.21 (para. 11) as amended by the Federal Law of the Russian Federation No. 221-FZ ‘On amendments to Chapter 25.3 of Part II of the Tax Code of the Russian Federation’ (21 July 2014).)
If the applicant is a foreign entity, official documents confirming its status must be issued by a competent authority of the foreign State and must contain up-to-date information (as at the time of the proceedings). Additionally, such documents must be duly legalised and apostilled and accompanied by a properly certified (by a public notary) Russian translation.
(Source: Para. 25, Informational Letter of the Presidium of the Supreme Arbitrazh Court No. 158 (9 July 2013).)
With respect to Russian legal entities the excerpt from the State register may be printed from the official website of the Federal Tax Service of the Russian Federation at http://egrul.nalog.ru/ and certified by the applicant’s representative. In case of foreign legal entities, the applicant may present other documents confirming the entity’s legal status and its right to carry out business and other economic activities. If the person is an individual not registered as an individual entrepreneur, it is not necessary to provide the court with an excerpt from the State register or an analogous document.
(Source: Para. 3, Resolution of the Plenum of the Supreme Arbitrazh Court No. 12 (17 Feb. 2011); Arbitrazh Procedural Code, Art. 254 (para. 3).)
Applications may be made by way of filing out the form posted on the arbitrazh court official Internet web-site. The documents enclosed to the application may be presented to the arbitrazh court in electronic form.
(Source: Arbitrazh Procedural Code, Art. 242 (paras. 2, 7).)
The Civil Procedural Code sets forth similar requirements for applications for the recognition and enforcement of foreign awards, and the documents that must be included. The award creditor must file an application for recognition and enforcement containing (i) the name of the award creditor, the name of its representative if the application is filed by the representative, their place of residence; if the award creditor is a legal entity, its place of business, (ii) the name of the debtor, its place of residence; if the debtor is a legal entity, its place of business, (iii) request for enforcement or the date from which the enforcement is requested.
The applicant must also submit (i) the original of the foreign arbitral award, or a duly certified copy, (ii) the original of the arbitration agreement, or a duly certified copy. If the foreign arbitral award and the arbitration agreement are in a foreign language, the applicant must submit their duly certified translation into Russian.
The differences with the requirements in the arbitrazh procedure are as follows:
(Source: Civil Procedural Code, Arts. 131,132, 411 (para. 1), 416, (para. 2).)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
It is necessary to supply the award in its entirety and the relevant pages of the document containing the arbitration agreement or a duly certified extract from it.
(Source: Arbitrazh Procedural Code, Arts. 242 (para. 4), 75 (para. 8); Civil Procedural Code, Art. 416 (para. 2).)
(c) Are originals or duly certified copies required?
All documents must be either originals or duly certified copies.
It should be noted that Art. 242 (para. 4) of the Arbitrazh Procedural Code specifies ‘a properly certified original of the award’. However, an arbitral award issued by an arbitral tribunal or a sole arbitrator in international commercial arbitration does not need to be certified by competent state authorities.
(Source: Arbitrazh Procedural Code, Arts. 242 (para. 4), 255; Civil Procedural Code, Art. 416 (para. 2); Federal Law ‘On international commercial arbitration’, Art. 35 (para. 2).)
Importantly, the Supreme Court has recently ruled that enforcement of an arbitral award in the absence of an original arbitration agreement or its duly certified copy would violate Russian public policy.
(Source: Ruling of the Supreme Court No. 305-ES17-993, 4 Sept. 2017.)
(d) How many originals or duly certified copies are required?
The following are required: (i) one original or duly certified copy of the award, and (ii) one original of the arbitration agreement or a duly certified copy.
(Source: Arbitrazh Procedural Code, Art. 242 (para. 4); Civil Procedural Code, Art. 416 (para. 2).)
(e) Does the authority or court keep the originals that are filed?
The arbitrazh court may return the originals after its ruling has entered into force, if requested in writing by the party that filed them, provided that a duly certified copy of the original is presented for the file or the arbitrazh court itself certifies a copy of the document to be kept in the file.
(Source: Arbitrazh Procedural Code, Art. 75 (para. 10).)
If the arbitrazh court considers that returning the original documents will not harm the proper hearing of the case, they can be returned before the ruling enters into force in the course of the proceedings.
(Source: Arbitrazh Procedural Code, Art. 75 (para. 11).)
13.
(a) Is it necessary to provide a translation of the documents supplied?
Yes, it is necessary to provide a duly certified translation of the documents supplied.
(Source: Arbitrazh Procedural Code, Arts. 242 (para. 4.3), 255; Civil Procedural Code, Arts. 416 (para. 2), 408; Federal Law ‘On international commercial arbitration’, Art. 35 (para. 2).)
(b) If yes, into what language?
Russian language. The documents in the foreign language submitted to the court (or duly certified copies) must be attached.
If the document was issued or certified by competent authorities of foreign States (including certified copies), it must be duly legalized or apostilled (through apostillization if that State is a party to the 1961 Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents, or through consular legalization for other countries). unless an international agreement makes this requirement inapplicable. For example, Art. 13 of rge Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Minsk, 22 Jan. 1993), concluded by a number of CIS states, provides that the documents issued by the State authorities of the parties to the Convention will be accepted without any specific certification.
The copies of the documents may be notarised by a Russian public notary or a Russian consular agent abroad.
(Source: Arbitrazh Procedural Code, Arts. 75 (paras. 5-7), 255; Civil Procedural Code, Arts. 71 (paras. 4,5), 408; Federal Law ‘On international commercial arbitration’, Art. 35 (para. 2).)
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
Yes, it is necessary for the translation to be certified.
The Arbitrazh Procedural Code, the Civil Procedural Code and the Federal Law ‘On international commercial arbitration’ do not specify how the translations are to be certified. In practice, the translations can be made by an official translator and certified by a public notary in the Russian Federation (in accordance with Art. 81 of the 1993 ‘Fundamental principles of legislation on notary of the Russian Federation’) or a Russian consular agent.
(Source: Arbitrazh Procedural Code, Arts. 242 (para. 4.3), 75, 255; Civil Procedural Code, Arts. 416 (para. 2), 71, 408; Federal Law ‘On international commercial arbitration’, Art. 35 (para. 2).)
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
It is necessary to provide a full translation of the arbitral award, entire arbitration agreement (arbitration clause of the contract). There is no need to provide a translation of the entire contract containing the arbitration clause.
(Source: Arbitrazh Procedural Code, Arts. 75 (para. 8), 242 (para. 4); Civil Procedural Code, Art. 416 (para. 2).)
F. Stay of enforcement
14.
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
Yes. A Russian court to which an application for the enforcement of an arbitral award has been made has the power to adjourn the enforcement proceedings if the unsuccessful counterparty filed an application to set aside the award. Any such adjournment is at the competent court’s discretion: there must be reasonable grounds and an arbitrazh court may request the other party to provide security.
(Source: Arbitrazh Procedural Code, Art. 243 (paras. 5, 6).)
A court may adjourn the proceedings on enforcement of a foreign arbitral award if an application to annul the award or suspend the enforcement of the award has been filed.
(Source: Civil Procedural Code, Art. 417, para. 2.)
A Russian court may adjourn proceedings on the enforcement of a foreign arbitral award if the foreign court is considering a request to annul the award or suspended enforcement of the award. The Russian court may oblige the party against which the award was rendered to provide security.
(Source: Arbitrazh Procedural Code, Arts. 243 (paras. 5, 6), 144; Civil Procedural Code, Art. 417 (para. 2); Federal Law ‘On international commercial arbitration’, Art. 36 (para. 2); Art. VI of the New York Convention contains a similar provision.)
Although Art. 243 (para. 6) of the Arbitrazh Procedural Code and Art. VI of the New York Convention confers discretion upon the court to order the other party to provide security, in practice this discretion is rarely exercised.
In Stena RoRo AB v. OJSC ‘Baltiysky Zavod’, the Supreme Arbitrazh Court suspended proceedings on enforcement of a Swedish arbitral award pending proceedings before a Swedish Court (Svea Appellate Court) on a challenge to the award. The Court did not order any security. However, it is unclear whether the successful party sought it in the first place. In an earlier case, Russian court proceedings were suspended pending foreign court proceedings on a challenge to the award.
(Source: Resolution of the Supreme Arbitrazh Court No. 9899/09, 13 Sept. 2011.)
In Delta Vilmar CIS v. Vertical, the Moscow City Arbitrazh Court suspended the proceedings concerning enforcement of an award rendered in Ukraine pending the Ukrainian court proceedings on the setting of the award aside.
(Source: Ruling of the Moscow City Arbitrazh Court, Case no. А41-20447/08, 4 Dec. 2008.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
The arbitrazh court can suspend legal proceedings for recognition and enforcement if:
(Source: Arbitrazh Procedural Code, Art.144.)
The arbitrazh court is also obliged to stay legal proceedings for recognition and enforcement proceedings, if:
(Source: Arbitrazh Procedural Code, Art. 143 (para. 1).)
The arbitrazh court or the court of general jurisdiction is obliged to stay legal proceedings for recognition and enforcement if it is impossible to examine the application before a decision is passed on another case being examined by the Constitutional Court of the Russian Federation, a court of general jurisdiction or an arbitrazh court of the Russian Federation.
(Source: Arbitrazh Procedural Code, Art.143 (para. 1); Civil Procedural Code, Art. 215.)
In civil procedure, additional grounds for suspension of legal proceedings concern matters relating to the individual which is a party to a dispute, such as his/her death if legal succession is possible, incapacity, etc.
(Source: Civil Procedural Code, Arts. 215, 216.)
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
Russian courts may, on the application of the party claiming recognition and enforcement of the arbitral award, order the other party to provide appropriate security.
(Source: Federal Law ‘On international commercial arbitration’, Art. 36 (para. 2); Arbitrazh Procedural Code, Art. 243 (para. 6).)
G. Confidentiality
15.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
No, only the parties and their representatives have access to the documents filed in legal proceedings. Court applications themselves are generally not publicly available (although at the same time they are not confidential).
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
In general, all proceedings in Russian courts are public. Proceedings may be confidential when provided for by federal legislation (i.e. laws relating to State secrets, administrative infringements, anti-terrorism).
A party to court proceedings may request the court to consider the case behind closed doors (in camera). If the court grants such a request, spectators are not allowed to be present at the hearings and judicial acts related to the case should not be published on the Web. Generally, Russian courts tend to be reluctant to grant such requests, e.g. the Arbitrazh Court of denied a motion to consider the case behind closed doors (the applicant had applied to the court seeking to have an arbitral award set aside).
(Source: Arbitrazh Procedural Code, Art. 11 (para. 2); Civil Procedural Code, Art. 10 (para. 2); Letter of the Supreme Arbitrazh Court of Russian Federation No. S1-7UP-600 (25 May 2004), Para 11; Ruling of the Arbitrazh Court of the City of Moscow, Case no. A40-66296/2015, 9 July 2015.)
Parties may apply to the court for a closed hearing if there is a need to protect commercial, professional, official or other secrets protected by law. The other party is consulted but the agreement of the parties is not needed. The decision lies with the court, which, if it accedes to the request, will issue a ruling that the hearing (or a part of the hearing) shall be closed.
(Source: Arbitrazh Procedural Code, Art. 11 (paras. 2, 4); Civil Procedural Code, Art. 10 (paras. 2, 4).)
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
In general, all rulings issued by Russian courts are published on the official web-site of the relevant court after they are adopted.
The arbitrazh courts publish their rulings in full, including the names of the parties. There is no mechanism for a party to apply for removal of the names of the parties or other information from the published ruling. The judgments of the courts of general jurisdiction are published in an anonymized manner (i.e. no details of the parties are published).
Russian courts must remove information about business or State secrets that is protected by law. In some cases, the judgments may not be published (e.g. related to state security, arising from family relations, adoption of children, etc.).
(Source: Federal Law of the Russian Federation No. 262-FZ, 22 Dec. 2008 ‘On the provision of access to information on the activities of courts in the Russian Federation’, Art. 15.)
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
The Arbitrazh Procedural Code, the Civil Procedural Code or the Federal Law ‘On international commercial arbitration’ do not mention recognition and enforcement of interim or partial awards. Given that Art. 241 of the Arbitrazh Procedural Code allows the recognition and enforcement of foreign arbitral awards if provided for by an international agreement of the Russian Federation, and Art. V(e) of New York Convention allows recognition and enforcement of a foreign arbitral award to be refused if not yet binding on the parties, it may be inferred that a party can obtain the recognition and enforcement of an interim or partial foreign award provided it has become binding on the parties.
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
It is possible to obtain enforcement of non-monetary relief in foreign arbitral awards. Such enforcement should be done in accordance with general rules of enforcement of foreign arbitral awards contained in (i) Chap. 31 of the Arbitrazh Procedural Code, (ii) Chap. 45 of the Civil Procedural Code, and (iii) Arts. 35 and 36 of the Federal Law ‘On international commercial arbitration’. A foreign arbitral award may be presented for enforcement within three years from the date of its entry into legal force
(Source: Arbitrazh Procedural Code, Art. 246 (para. 2).)
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
Not mentioned in the Arbitrazh Procedural Code, the Civil Procedural Code or in the Federal Law "On international commercial arbitration".
Given that Art. 241 of the Arbitrazh Procedural Code allows the recognition and enforcement of foreign arbitral awards if provided for by an international agreement of the Russian Federation and the New York Convention does not exclude the possibility of recognition and enforcement of only part of the relief granted in a foreign award, it may be inferred that a party can obtain recognition and enforcement of only part of the relief granted in a foreign award. Such enforcement should be done in accordance with general rules of enforcement of foreign arbitral awards contained in Chap. 31 of the Arbitrazh Procedural Code, Chap. 45 of the Civil Procedural Code.
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)€ of the New York Convention?
Art. 241 of the Arbitrazh Procedural Code allows for recognition and enforcement of foreign arbitral awards if provided for by an international agreement of the Russian Federation and federal law. Given Art. V€ of New York Convention, together with Art. 244 (para. 1) of the Arbitrazh Procedural Code, recognition and enforcement of a foreign arbitral award shall be refused if such award has not become effective in accordance with the law of the State where it was made.
Pursuant to Art. 417 (para. 1) of the Civil Procedural Code, recognition and enforcement of a foreign arbitral award may be refused if such an award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.
Pursuant to the Federal law ‘On international commercial arbitration’ recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may be refused if the award made in the territory of a foreign state has been set aside or suspended by a competent authority of the country in which it was made, or of the country, the law of which is applicable.
Thus, where an arbitral award has been set aside by a competent authority, Russian courts have discretion to enforce the award in Russia.
(Source: Arbitrazh Procedural Code, Art. 241 (para. 1); Art. 244 (para. 1); Civil Procedural Code, Art. 417 (paras.1, 3); Federal Law ‘On international commercial arbitration’, Art. 36 (para. 1).)
In addition, the European Convention on International Commercial Arbitration (also known as the 1961 Geneva Convention, signed on 21 April 1961 and ratified by Russia on 27 June 1962) provides for more favourable rules regarding the enforcement of foreign arbitral awards annulled in the State where they were rendered.
An example of a case where a Russian court recognised an arbitral award annulled in the State where it was rendered is the case of Ciments Français in which the Arbitrazh Court of the Kemerovo Region recognised a partial award (issued under the ICC Rules) annulled in Turkey. In its ruling, the Arbitrazh Court of the Kemerovo Region noted that both the New York Convention and Russian national law allowed a competent court to refuse recognition of arbitral awards that had been set aside. Nevertheless, as Russia, Turkey and France (the claimant’s place of domicile) were all parties to the European Convention, the court of the first instance held that the European Convention took precedence over the New York Convention and Russian law (Art. IX(1) of European Convention, Art. 13 (para. 4) of the Arbitrazh Procedural Code) had to be applied to the recognition and enforcement of arbitral awards.
(Source: Ruling of the Arbitrazh Court of the Kemerovo Region in Case No. А27-781/2011 (20 July 2011).)
The European Convention provides that a request for the recognition of an annulled award may be refused only where the limited grounds in Art. IX(1) (which are essentially identical to the grounds listed in Arts. V(1)(a-d) of the New York Convention) apply. However, since the reasons for the setting aside of the ICC award by the Turkish courts were not in the European Convention, the Russian courts had no grounds to refuse to recognise the award.
The ruling recognising the award was, however, overturned as the Federal Arbitrazh Court of the West-Siberian Circuit upheld the respondent’s appeal.
(Source: Resolution of the Federal Arbitrazh Court of the West-Siberian Circuit in case No. A27-781/2011, 5 Dec. 2011.)
The cassation court did not address a number of points raised in the original decision, in particular the relevant provisions of the European Convention, and instead relied solely on the New York Convention. It concluded that the ruling of the Arbitrazh Court of the Kemerovo Region was incompatible with Russian public policy because in another court case involving the contract with the arbitration clause, pursuant to which the parties in Ciments Français had submitted their dispute to arbitration, the Russian court declared that contract invalid. For this reason, the Federal Arbitrazh Court of the West-Siberian Circuit denied recognition of the arbitral award pursuant to Art. V(2)(b) of the New York Convention and Art. 244 (para. 1.7) of the Arbitrazh Procedural Code. The Supreme Arbitrazh Court refused to grant a leave to appeal to the applicant.
(Source: Ruling of the Supreme Arbitrazh Court in Case No. ВАС-17458/11, 19 Dec. 2012.)
The decision of the Federal Arbitrazh Court of the West-Siberian Circuit was further reconsidered in view of the following new circumstances. The Supreme Arbitrazh Court set aside the decisions of the Russian courts that declared the underlying contract invalid, and the Turkish appellate court annulled the decision to set aside the arbitral award.
(Source: Resolution of the Federal Arbitrazh Court of the West-Siberia Circuit in Case No. А27-781/2011, 27 Sept. 2012).
Further, the Federal Arbitrazh Court of the West-Siberian Circuit reinstated the decision of the court of the first instance to recognise the award, i.e. the enforcement of the award was granted.
(Source: Resolution of the Federal Arbitrazh Court of the West-Siberia Circuit in Case No. А27-781/2011, 12 May 2014.)
The case concerning the invalidity of the underlying contract, however, evolved further and the Federal Arbitrazh Court of the West-Siberian Circuit declared the contract invalid. Accordingly, the resolution of the Federal Arbitrazh Court of the West-Siberian Circuit granting the enforcement of the arbitral award was considered afresh under the newly discovered circumstances. The enforcement of the award was refused.
(Source: Resolution of the Federal Arbitrazh Court of the West-Siberia Circuit, Case no. A27-781/2011, 29 July 2016; Ruling of the Supreme Court No. 304-ES16-12982, Case no. A27-781/2011, 18 Oct. 2016.)
There were no cases where a Russian court recognised and enforced an arbitral award annulled in the State where it was rendered other than on the grounds of the European Convention.
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
There are no other procedural requirements worth mentioning.
Country Rapporteur: Nina Vilkova
Other contributors: Ekaterina Smirnova, Timur Aitkulov, Julia Zagonek