Application of para. 4 of Article 248.1 of the Arbitrazh Procedural Code of the Russian Federation: issues raised by the court practice

Abstract

The article examines the practice of application of Article 248.1 of the Arbitrazh Procedural Code of the Russian Federation by Russian courts. On the basis of the doctrine and judicial practice analysis, the author highlights two approaches to the interpretation of the condition limiting the sanctioned party`s access to justice which allows to transfer a dispute to the jurisdiction of the Russian arbitration court despite the clause referring the dispute to a foreign court or arbitration. Considering each of these approaches, the author concludes that this condition should not be interpreted broadly and that the mere fact of the existence of personal or sectoral sanctions is not sufficient to establish that he has obstacles in access to justice. In order to correct the prevailing approach and to ensure a uniform interpretation of para. 4 Art. 248.1 of the Arbitrazh Procedural Code of the Russian Federation, it is proposed to adopt the Resolution of Plenum of the Supreme Court of the Russian Federation. This Resolution must contain the rebuttable presumption that the sanctions imposed by a foreign state in respect of a Russian person limit his right of access to justice and, accordingly, provide grounds for “transfer” the dispute to the jurisdiction of the Russian court.