• Благотворительный фонд Весна в сердце




Which notifications of Russian company in the foreign trials are permissible should be decided by the Supreme Commercial (Arbitrazh) Court of Russia on June, 20.


Background

Between company A. (Russia) and company В. (a foreign company) there was a distribution contract (hereinafter – Contract). According to the contract, any disputes arising out of the contract shall be resolved in English court.

Company A. had breached the contract, as a result company B. filed a lawsuit in the Senior Courts of England and Wales. Also company B. filed a motion granting them the opportunity to provide proper notice of the defendant about the procedure. The Senior Courts of England and Wales issued a Writ allowing to notify the defendant about the trial by company B. according to the English civil procedural rule.Company B. had notified the defendant about the trial via DHL.

The default judgment of the Senior Courts of England and Wales was the result the suit. The Court ordered company A. to pay its debt to company B. The default judgment was not executed voluntarily and the plaintiff brought the case for Recognition and Enforcement of a Foreign Court Judgment to the Arbitrazh Court of Moscow.

The Arbitrazh Court of Moscow and the Federal Arbitrazh Court of Moscow Region (case № А40-88300/11-141-741) issued a Writ about the Recognition and Enforcement ofthe default judgment of the Senior Courts of England and Wales.

Company A. initiated supervisory review proceedings in the Supreme Commercial (Arbitrazh) Court of the Russian Federation. Company A. alleged, it was not properly notified of the trial in the Senior Courts of England and Wales.

Key issue

The main argument of company A., it a notification about the trial in the Senior Courts of England and Wales had to be done according to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (Concluded 15 November 1965 in the Hague) (hereinafter- Convention) neither according to the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Russian Federation on economic co-operation (concluded 09 November 1992) (hereinafter- Agreement).

According to the Convention [both Russia and United Kingdom of Great Britain and Northern Ireland are parties to the Convention] notification about the trial should be made through the Central Authority transmitted by consular channels. So this method – official, is more time consuming.

At the same time, according to the Agreement such notification might be done through the service of express delivery of the documents. This possibility is more effective than the official method as it was done in the present case.

On the one hand, since company A. had signed the Contract, providing for the jurisdiction of English courts for the resolution of disputes voluntarily, it should have known about all risks arising in the trial abroad.

But, on the other hand, the Convention as an international treaty prevails and the parties to the contract can not change the imperative nature of its provisions [of the procedures for notification of the parties of the trial].

Thus, the main question of the present case is which notification of the parties of the trial – according to the Convention or Agreement is a proper one.

The answer on this question is not only resolving the specific conflict it also could be a politician question. If the Supreme Commercial (Arbitrazh) Court of Russia decides that Convention has supreme legal force on the Agreement then the Writ (Ruling) the Recognition and Enforcement ofthe default judgment of the Senior Courts of England and Wales may be revised and as the Arbitrazh Court of Moscow may refuse in the Recognition and Enforcement ofthe default judgment of the Senior Courts of England and Wales. That will cause another rebuke to the Supreme Commercial (Arbitrazh) Court of Russia`s jurisdictional aggression.

UPD. The SCC has postponed the case for three months.