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Andrey Mikonin spoke at the Sixth Legal Forum organized by «Kommersant» publishing house

28 January 2015

This year's Forum, entitled as "Legal results of the year 2014: Laws and Business", was held at the Presidential Library. Alexey Chichkanov (Gazprombank) and Maxim Efimov ("b") were, traditionally, invited as moderators.

The event was dedicated to the Lawyer's Day and to summarizing the results of legislative activities with the participation of major experts of law, business, public administration and NGOs. In 2014 this meeting is also timed to the 150th anniversary of the great judicial reform and involved the discussion as how the XIX century solutions correlate to the current changes in Russian judicial system. At the meeting, the experts commented on the major changes in Russian law in 2014 and provided predictions on the changes in the year 2015 and their impact on business.

Over the years, the Kommersant Legal Forum has become an authoritative communication platform for informal interaction of professionals in the fields of law and jurisprudence.

The meeting was attended by the professionals from leading international and Russian firms of legal consultancy, as well as heads of the largest companies in Saint-Petersburg and Leningrad region, and also the representatives of public authorities, NGOs and associations, and in-house lawyers of major Russian and international manufacturing companies, retail chains and investment companies. The total number of participants exceeded 200.

Andrey Mikonin expressed his opinion on the results of the work of the unified Supreme Court:

"We can discuss the work of the recreated Supreme Court, that has been operating since August 6, 2014, only as regards the procedure applied, as well as the style of certain rulings of the Economic Chamber, the whole amount of which has not yet exceeded several dozens. In terms their contents, the judicial acts of Economic Chamber, though not as numerous as might be the results of the Higher Arbitration Court for a similar period of time, still remained in the existing trend of the practice of arbitration courts and thus analyze the case from the business standpoint. Ecomonic Chamber of the RF Supreme Court has already taken an opportunity to apply Article 10 of the Civil Code previously fostered by the original Higher Arbitration Court, as well as to provide consideration to the cases involving bankruptcy, leasing, investment, competition, corporate issues, advertising and taxes (one or two of each branch, as if it selected them on purpose).

The Supreme Court is sometimes criticized for the poverty of its decisions, since it tends to reverse cases for a new trial just on the basis of evidence, even when there was a place for creativity and output, to which we once got accustomed by the RF Higher Arbitration Court. However, we still can find a ratio decidendi even in those several dozens of decisions of the new Economic Chamber, such as a decision on redistribution, in bankruptcy, of the profits from the sale of a non-pledged land under a house in pledge, or a stunning passage that “a judgment finding that authorities acted lawfully by dismantling certain advertising structures amounts to a judgment to order dismantling of those structures”. Of course, this was not accompanied by a phrase common for the Higher Arbitration Court that this position is binding for future practice.

EC even found time to invalidate a decision of the Federal Antimonopoly Service, and did it in the manner not usual for the first instance of the Supreme Court, but rather in the style of the Higher Arbitration Court, since it opined that the decision had a normative nature even though it was called "the guidelines".

On the other hand, in terms of form it is the administrative disputes that turned out to be suddenly separated from the legacy of the Higher Arbitration Court, and the respective chamber is working very actively. What also causes great concern is that decisions in specific cases are sometimes signed not by judges themselves, but by their "consultants", which is an old institution of the Supreme Court. I would remind that the Higher Arbitration Court was so valuable precisely because it proved to be an effective instance, a court in the very sense of the word, a body rendering justice, and this was in a considerable part because judges really heard cases on their merits, and any formal barriers were removed, while the RF Supreme Court always avoided that and allowed all conceivable and inconceivable "filters" on the way of a petitioner.

Thus, it should be stated that there is no overnight destruction of the legacy of the Higher Arbitration Court happening, and what we are witnessing is logical development, but it is not yet clear whether this development will or will not lead to the termination of the "fourth instance" as a court, as it has already happened with the Presidium of the Supreme Court for the purposes of civil cases.

Finally, we must note on the legislative initiative of the Supreme Court to introduce simplified procedures in the Code of Arbitral Procedure, as well as the launch of the scientific advisory board, working, in particular, on interpretation of the amendments to the Civil Code, which will now be surely "common" for both the state arbitration courts and the courts of general jurisdiction."

Program 2014:

Plenary Session

• A dialogue between state and business: law in conditions of international sanctions

• Russian judicial system: what arbitration is necessary for the business?

• Major reforms of the Russian legislation in 2015: what to fear of and what to prepare for?

Roundtable: Protecting Intellectual Property Rights: Strategies and Practices

• Intellectual property in 2014: the latest legal issues and trends

• Secrets of Russian lawyers in the field of intellectual property

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