RESOLUTION OF THE PLENUM OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of May 28, 2009 No. 36

About application of the Arbitral Procedure Code of the Russian Federation by hearing of cases in Arbitration Appeal Court

For the purpose of uniform application of the Arbitral Procedure Code of the Russian Federation by Arbitration Courts by hearing of cases in Arbitration Appeal Court, being guided by article 13 of the Federal constitutional Law "About Arbitration Courts in the Russian Federation", the Plenum of the Supreme Arbitration Court of the Russian Federation decided to make to Arbitration Courts the following explanations.

1. In case of application of Articles 257, 272 Arbitral Procedure Codes of the Russian Federation (further - the AIC of the Russian Federation, the Code) to Arbitration Appeal Courts should be taken into account that the right to appeal of court resolutions according to the procedure of appeal production is had as persons participating in case and other persons in the cases provided by the AIC of the Russian Federation. Persons about whose rights and about obligations the court resolution is adopted treat other persons owing to part 3 of Article 16 and article 42 of the Code. With respect thereto the persons who are not participating in case, both specified, and are not specified in motivation and/or substantive provisions of the court resolution having the right it to appeal according to the procedure of appeal production if it is accepted about their rights and obligations, that is this court resolution directly affects their rights and obligations, including obstacles for realization of their subjective right or proper execution of obligation in relation to one of the parties of dispute are created.

Also the legal successors of persons who are participating in case, did not enter process when considering the case of the first instance by Arbitration Court (further - Trial Court, court), and the prosecutor on the cases specified regarding 1 Article of 52 AIC of the Russian Federation treat persons having the right to appeal according to the procedure of appeal production even if he did not participate in consideration of this case in Trial Court.

2. In case the claim is submitted by person who was not participating in case, the court should check whether reasons for how the disputed court resolution directly affects the rights or the applicant's obligations contain in the claim. In the absence of the corresponding reasons the petition for appeal returns to force of Item of 1 part of 1 Article of 264 AIC of the Russian Federation.

After adoption of the petition for appeal of person who was not participating in case, Arbitration Appeal Court (further - Appeal Court, court) determines whether the adopted court resolution directly affects the rights or the applicant's obligations, and, having established it, resolves issues of cancellation of court resolution of Trial Court, being guided by item 4 of part 4 of article 270 of the Code, and about involvement of the applicant to participation in case.

If after adoption of the petition for appeal it is determined that the applicant has no right to appeal of court resolution, then in relation to Item 1 of part 1 of article 150 of the Code production according to the claim is subject to the termination.

3. Resolutions of the Trial Court on cases on contest of regulatory legal acts (part 4, of the 7th Article of 195 AIC of the Russian Federation), determinations about cancellation of the decision of reference tribunal or refusal in satisfaction of the requirement about cancellation of such decision (part 5 of article 234 of the Code), determinations about issue of writ of execution on forced execution of the decision of reference tribunal or about refusal in issue of writ of execution (part 5 of article 240 of the Code), determinations about recognition and carrying out of the foreign judgment or foreign arbitral decision, and also about refusal in recognition and carrying out of the relevant decision (part 3 of article 245 of the Code) are appealed according to the procedure of cassation production.

In the same procedure determinations about return of the statement and other determinations with which production on the called categories of cases without consideration of the application on being comes to the end are appealed (determination about suit abatement, determination about leaving of the statement without consideration).

4. If in case of adoption of the petition for appeal to production it is determined that the complaint is made about court resolution which is not appealed according to the procedure of appeal production, then such claim returns with reference to Item 2 parts of 1 Article of 264 AIC of the Russian Federation.

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