Реализация права на защиту в условиях санкционных ограничений

Вестник экономического правосудия Российской Федерации. 2024. № 1. С. 74–95.

Starzhenetsky V., Fomenko A.

Amendments to the Russian Commercial Procedural Code, which expand the exclusive jurisdiction of the Russian courts over disputes connected with sanctions, have proven to be a popular and highly debated legal remedy. The authors conclude that the purpose of the adoption of Article 248.1 of the Russian Commercial Procedural Code is not limited to resolving procedural deficiencies that the sanctioned persons may face in foreign jurisdictions, but it also includes the guarantees of fair resolution of a dispute on the merits from the substantive point of view (material justice). The new jurisdiction of the Russian courts has different nature and is based on different principles than the conventional exclusive jurisdiction of courts. This entails a number of important peculiarities, including the relative nature of the jurisdiction of the Russian courts under Article 248.1 of the Russian Commercial Procedural Code, the possibility for interested parties to influence the application of Article 248.1 by concluding relevant derogation agreements. These specific features should also be taken into account when determining the scope of application and limits of the Article 248.1 of the Russian Commercial Procedural Code. The authors identify both objective and subjective grounds limiting the jurisdiction of the Russian courts. The influence of international obligations of the Russian Federation, the principle of close connection, good faith exercise of procedural rights, the level of risk to the right of the sanctioned persons to justice (especially if disputes are to be considered in friendly jurisdictions) on the application of Article 248.1 of the Russian Commercial Procedural Code by the Russian courts are deliberated in detail.

 

Keywords: economic sanctions, экономические санкции, right to court, сверхимперативные нормы (нормы непосредственного применения), access to justice, право на доступ к правосудию, exclusive jurisdiction of the courts, исключительная компетенция судов, overriding mandatory rules, право на защиту, forum necessitates, forum necessitates

Publication based on the results of: Protection of economic actors’ rights via mechanisms of international justice (including international investment arbitration, courts of regional economic unions, WTO dispute settlement body, international commercial arbitration) (2023)