In December 2010 important amendments were adopted to the Arbitrazh Procedure Code (the "APC") and to the Civil Procedure Code (the "CPC") providing for significant changes to Russian procedural law. Considerable amendments to the CPC deal with different review procedures. The amendments to the APC concentrate on rules relating to judicial review pursuant to establishment of new and newly discovered circumstances. These changes represent a further step towards the development of a case law system in Russia.
Below is a broad overview of these improvements, which will come into force on 28 March 2011 for the APC and on 1 January 2012 for the majority of the CPC.
Amendments to the Arbitrazh Procedure Code
Review pursuant to establishment of new and newly discovered circumstances
The amendments introduce new rules relating to judicial review pursuant to establishment of new and newly discovered circumstances. They were adopted following the decision of the Constitutional Court of the Russian Federation which required that it should be possible to review a judicial act if it had been or should have been based on a provision of law, the application of which was changed or adopted by the Supreme Arbitrazh Court (the "VAS") after such act became effective.
Such review will be exercisable in relation to a decision which is already effective by the court which resolved the case. The modified review mechanism will be triggered by establishment of either new circumstances (arising after the judicial act was adopted and having significant value regarding the correct resolution of the case) or newly discovered circumstances (relating to the case and existing at the moment when court adopted a judicial act).
A legal position of the VAS will constitute a ground for review pursuant to establishment of new and newly discovered circumstances if it is expressly provided for by the VAS. In that case, application for review must be filed within six months of the date when the last judicial act entered into force. If, however, the VAS is requested to review a judicial act in supervision procedure and the request is based on establishment or change by the VAS of its legal position on a certain legal issue after the challenged decision became effective, then the VAS will have the power to decline such a request, notifying the applicant of the appropriate review procedure.
Amendments to the Civil Procedure Code
The amendments extend appeal procedure to decisions of any court which heard the case in the first instance, thus contributing to harmonization between civil and arbitrazh procedural law. Under a general rule, an appeal court will not hear new evidence. Even if only part of a decision is challenged, an appeal court can examine it in full. Application to challenge a judicial act in an appeal procedure must be filed with the court of first instance within one month of the date when such court adopted a decision.
Cassation review procedure has changed its role and is now provided for judicial acts which have entered into force. Appeal review will be a prerequisite for cassation proceedings. Cassation review will be devoted solely to review of issues of law, and not to questions of fact. A cassation court will no longer be able to examine new evidence and will rely on circumstances established by lower courts. Such a review will only concern the part of the court decision being challenged. Application to challenge a judicial act in a cassation procedure must be filed with the cassation court within six months of the effective date of the acts being challenged.
Only the Supreme Court will be competent to hear cases in supervision review. The amendments set out an exhaustive list of judicial acts that can be so challenged. Application for supervision review must be filed with the Supreme Court within three months of the effective date of the judicial acts being challenged.
Review pursuant to new and newly discovered circumstances
The amendments introduce new rules relating to review pursuant to establishment of new and newly discovered circumstances. Such review will be exercisable in relation to a decision already effective by the court which resolved the case in a procedure analogous to the corresponding review procedure in arbitrazh proceedings, as described above.