The court leaves the accepted cassation appeal undecided. Is it lawful?

The cassation appeal submitted by e-mail was accepted for process. The court pointed out the need to furnish the original of the appeal and of the attached documents. The applicant failed to comply with this requirement. The court left the cassation appeal undecided challenging the authorities of the signatory.

Paragraph 5, clause 2 of Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation (SACRF) No. 12 dated 17 February 2011 “On some issues of applying the Arbitration Procedure Code of the Russian Federation as amended by Federal Law No. 228-FZ dated 27 July2010 “On Amendments Made to the Arbitration Procedure Code of the Russian Federation”” clarifies that in the course of proceedings the court establishes whether a statement of claim (petition, appeal) received by the court via e-mail has been really filed by the signatory. While preparing a case for court proceedings, the court may suggest that the signatory, in order to confirm the specified circumstance, attend a preliminary court session, a court session or present to the court the original document he has filed, before the deadline set by the court. The fact that the document received by the court via e-mail was signed by the person who sent it can be also established by the court from other documents provided by this person. If the efforts taken by the court fail to confirm the circumstance, the court will leave the respective appeal undecided under Clause 7, Part 1, Article 148 of the Arbitration Procedure Code of the Russian Federation.

Subject to Clause 7, Part 1, Article 148 of the Arbitration Procedure Code of the Russian Federation, the court of arbitration leaves a statement of claim undecided, if after accepting the claim for process the court finds that it is not signed or is signed by a person without a signing authority.

The provisions of the above clause are aimed at establishing the will of trial participants to protect their interests in the event of suits or petitions filed contrary to their will and interests. Leaving a cassation appeal undecided on the above ground is possible given that a claimant has no right to require from the court considering and resolving a dispute subject to a certain procedural order.

The court should take into account, however, that Article 148 of the Arbitration Procedure Code of the Russian Federation is in consistent interaction with Clause 6, Part 1, Article 185 of the said Code, which provides for the obligation for the court to indicate motives that brought it to certain conclusions as one of general requirements to the ruling content.

Therefore, the legal provisions mentioned above cannot be regarded as permitting a court of arbitration, when deliberating on whether or not to review a cassation appeal already accepted for process, to arbitrarily doubt the authority of the representative who has signed an appeal, without offering any specific actual and legal motives for such doubts.

The Judicial Chamber for Commercial Disputes of the Supreme Court of the Russian Federation (SCRF) noted the following. The court may leave a cassation appeal undecided, provided that it substantiates the motives for doubting the signatory’s authority. The court may not call into doubt a representative’s authority in the absence of specific actual and legal motives. In the situation under review, it was necessary to ascertain whether the company was really going to file an appeal. If necessary, the court could have adjourned the session, but it actually did not.

Furthermore, while accepting the appeal for process, the court expressed no doubt in the signatory’s authority. The power of attorney was sent via e-mail along with the appeal. The case files contained a copy of a similar power of attorney and its original was presented to lower courts. There was no evidence that the power of attorney was revoked.

Document: SCRF Ruling No. 305-ES16-6892 dated 29 August 2016