Advocacy and notary office. Participation of a representative in the appellate, cassation and supervisory authorities of the arbitration process (the most important)

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Advocacy and notary office. Participation of a representative in the appellate, cassation and supervisory authorities of the arbitration process (the most important)

Lecture notes, cheat sheets

Directory / Lecture notes, cheat sheets

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20. Participation of a representative in the appeal, cassation and supervisory instances of the arbitration process

Arbitration court decisions that have not entered into legal force are subject to appeal.. An appeal may be filed by persons participating in the case. Unlike the persons participating in the case, their representatives (including lawyers) do not have an independent right to appeal to the appellate court. An appeal can take place only on instructions and on the basis of a power of attorney from the persons participating in the case, other persons entitled to appeal judicial acts.

An essential feature of the review of the case in the appellate instance is retrial.

The lawyer at this stage must take into account that it is not advisable to state new requirements in the appeal, since they cannot be the subject of proceedings and deliberately distract the court of appeal from the analysis of those problems that remained relevant for the applicant of the complaint after the decision was made by the court of first instance.

The persons participating in the case have the right to appeal against the decision of the court in the cassation procedure. This is possible only in relation to the acts of the courts of the first and appellate instances located in the arbitration districts. Decisions of the Supreme Arbitration Court of the Russian Federation in accordance with the generally established procedure are not subject to cassation appeal.

An interested person may file a complaint with the court of cassation, bypassing the court of appeal, and in the cases established by law (Articles 195, 234, 240, 245 of the Arbitration Procedure Code of the Russian Federation), the law does not provide for an appeal against judicial acts of first instance to the court of appeal.

The revision of judicial acts that have entered into legal force, in the exercise of supervision, is carried out exclusively by the Supreme Arbitration Court of the Russian Federation. A lawyer must take into account that in the supervisory court a judicial act that has entered into legal force can only be challenged. If an appeal against a judicial act entails consideration of the complaint (appeal, cassation) on the merits, then its contestation is connected with a preliminary consideration of the issue of the presence or absence of grounds for initiating supervisory proceedings.

In order to streamline the appeal to the Supreme Arbitration Court of the Russian Federation with applications and submissions by way of supervision, a three-month period has been established from the date of entry into force of the last judicial act adopted in the case.

Supervisory court is always exceptional. Unlike other courts, in which the arbitration court determines the sequence of the process, taking into account the opinions of the persons participating in the case (Article 153 of the APC of the Russian Federation), in the supervisory court this procedure is predetermined by law. In this case, the lawyer speaks with justification of his position only after hearing the judge-rapporteur as a representative of a person.

Authors: Nevskaya M.A., Shalagina M.A.

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