• Благотворительный фонд Весна в сердце




By the question of the equality of arms in the case about issuing of a writ of execution for the enforcement of an arbitral award


Between «OilField Service» and «Sibpromkomplekt» there was a contract for service.

According to the clause of the contract the parties agreed to brings any disputes arising out of the contract to the arbitration court of the Society for the Protection of Consumer Rights of St. Petersburg. Also the parties agreed that the arbitral award shall be final.

«Sibpromkomplekt» breached the contract and «OilField Service» filed a lawsuit in the arbitration. The arbitration ordered «Sibpromkomplekt» to pay its debt about RUB 2.6 millions to «OilField Service».

The arbitral award was not executed voluntarily and «OilField Service» brought the case about issuing of a writ of execution for the enforcement of the arbitral award to the Arbitrazh Court of Khanty-Mansi Autonomous Area – Yugra.

«Sibpromkomplekt» objected to issuing a writ of execution for the enforcement of the arbitral award. According to the statement of «Sibpromkomplekt», «Sibpromkomplekt» was prevented from nominating an arbitrator, participating in the conduct of the arbitration and also could not represent the statement. By the opinion of «Sibpromkomplekt» the arbitration breached the principle of equality of arms.

As the evidence of its position, «Sibpromkomplekt» handed a motion to request the materials of the case from the arbitration. According to article 238 of the Commercial Procedure Code of the Russian Federation, when preparing a case for judicial proceedings, the judge may, under the motion of persons participating in the case, request the materials of the case, in which the issuance of a writ of execution is claimed.

The judge of the Arbitrazh Court of Khanty-Mansi Autonomous Area – Yugra sustained the motion. However the Chairman of the arbitration denied the request. He [the Chairman of the arbitration] presented a copy of the postal receipt as evidence that the materials of the arbitration case was sent to «Sibpromkomplekt» earlier.

The Arbitrazh Court of Khanty-Mansi Autonomous Area – Yugra (ruling dated 15.12.2011) and the Federal Arbitrazh Court of West Seberian Region (resolution dated 28.02.2012) sustained the requirements – issue a writ of execution for the enforcement of the arbitral award.

But the decision was revised by the Supreme Arbitrazh Court of the Russian Federation (the resolution № 7565/12 dated 6.11.2012, published 25.01.2013).

The Supreme Arbitrazh Court of the Russian Federation revoked ruling dated 15.12.2011 and resolution dated 28.02.2012 and refused in issuing a writ of execution for the enforcement of the arbitral award.

The position of the Supreme Arbitrazh Court of the Russian Federation is if the arbitration denies the request for the materials of the case, then the Arbitrazh Court refuse in issue a writ of execution for the enforcement of the arbitral award because the party which motions a request for materials of the case [in the case about issuing of a writ of execution for the enforcement of an arbitral award] if the arbitration denies the request, deprives of the opportunity to present evidence and the other party gets procedural advantage thereby breach the principle of equality of arms.