Russian Roulette? Part 2: The advantages and disadvantages of the Russian Court System

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Summary: In this second article in a two part series, Roman Khodykin provides an overview of the legal assistance available between Russia and England, including: the service abroad of judicial and extra-judicial documents; the taking of evidence in Russia; and the enforcement of English judgments in Russia.

In this second article in a two part series, Roman Khodykin provides an overview of the legal assistance available between Russia and England, including: the service abroad of judicial and extra-judicial documents; the taking of evidence in Russia; and the enforcement of English judgments in Russia.

Service of Judicial and Extrajudicial Documents


Russia is a party to the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and a number of bilateral international agreements.

The Convention sets out a procedure whereby the request for service of is sent directly to a Central Authority which is tasked with executing the requests. In Russia, the central Authority is the Ministry of Justice.

In ratifying the Convention, the Russian Federation included two reservations: (1) that documents to be served within the territory of the Russian Federation shall only be accepted if they have been written in, or translated into, Russian; and (2) parties are not permitted to serve documents by any of the alternative methods listed in Article 10 of the Convention (i.e. by post or personal service direct to persons in Russia, or through judicial officers or other officials in the requesting state or in Russia).

Under English law, a party is authorised to serve proceedings by any method permitted by the English Civil Procedure Rules, or by the law of the country in which the proceedings are to be served, provided that it does not authorise parties to do anything that is contrary to the law of the country where the proceedings are to be served.

This has given rise to a debate as to whether this excludes a type of service which is not permitted under local law or just those which are illegal.

In BNP Paribas v Russian Machines and another [2011] EWHC 308, the court held that alternative service in Russia in person or by post is not permitted but neither is it illegal and the court allowed service of English proceedings on a Russian party by courier. However, the Supreme Arbitrazh Court decided that service must comply with the formal requirements of the Convention in order to be effective.

Taking of Evidence Abroad


The 1954 Hague Convention on Civil Procedure sets out a fairly complex diplomatic process for transmitting letters of request through the Ministry of International Affairs. The 1970 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters contains a simplified procedure whereby letters of request are transmitted through a central authority. However, Russia is yet to appoint a Central Authority which means that, whilst Russian Courts can send Letters of Request to the English Central Authority, English courts can only count on the 1954 Hague Convention and its obsolete mechanisms.

On receipt of a request to take evidence from a witness in Russia, a Russian court will summon the witness, question him and return the statement produced from the questioning through the appropriate channels.

Enforcement of English Judgments in Russia


Enforcement of foreign judgments is possible through both the arbitrazh courts and the courts of general jurisdiction. An application for enforcement must be filed with the arbitrazh court at the place where the debtor or its property is located.

The Civil Procedure Code and the Arbitrazh Procedure Code both provide that decisions of foreign courts may be recognised or enforced if so provided by international treaties to which the Russian Federation is a party. There is no treaty on the recognition and enforcement of judgments between Russian and the UK.

There have, however, been instances where foreign judgments have been recognised and enforced without an applicable treaty or convention on the grounds of reciprocity (i.e. on the grounds that Russian judgments are enforceable in England). Reciprocity must be established on a case-by-case basis and, due to the limited case law on the subject, it is difficult to predict with certainty whether a particular foreign judgment would be enforced in Russian on the grounds of reciprocity.

In the case of BNP Paribas SA and others v Yukos Oil Company, an English High Court judgment was recognised and enforced in Russia in the absence of a treaty on the basis of the 1994 Agreement on Partnership and Cooperation between Russian and the European Union which was recognised as a treaty on reciprocal legal assistance.

As regards the principle of reciprocity, the claimants submitted a legal opinion from Professor Adrian Briggs of Oxford University that Russian Judgments are generally enforceable in England. Professor Briggs relied on two cases: Golubovich v Golubovich [2010] EWCA Civ 810 and Commercial Bank Alfa Bank v Kozeny (Bahamas) [2002] UKPC 66 and stated that he was unable to find any cases where an enforcement of a Russian judgment was refused.

This is, however, no longer the case. In the recent case of Aeroflot v Berezovsky and Glushkov [2012] EWHC 3017 the English court refused to enforce a judgment of a Moscow general jurisdiction court. It could be argued that there were grounds to refuse enforcement in that particular case however, it remains to be seen whether the case will be used as an argument against reciprocal enforcement of English judgments in Russia.

A fuller version of the article appeared in the 2014 edition of the European Business Law Review. For more information on any of the issues raised in this article please contact Roman.Khodykin@blplaw.com.

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