YUST / Press-center / Analitics

Moving a counter-claim in the instance of appeal

22.04.2014

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Mikhail Chugunov, Associate of the Law Firm "YUST", for the “Corporate Lawyer. Practicum” Magazine

The provisions of part 1 of Article 132, part 3 of Article 266 of the APCRF reflect the legal nature of the counter-claim. According to those, moving a counter-claim, as a general rule, is only possible, when the case is being considered by the first instance court of arbitration, and it is not allowed during the consideration of the case in the instance of appeal. However, there is a number of exceptions.

First exception

According to part 1, 6.1 of Article 268 of the APCRF, the arbitration court of appeal reconsiders the case and, if any unconditional grounds for repeal of the judgment of a lower instance court given in part 4 of Article 270 of the APCRF are discovered, may move to settle the case according to the rules for the first instance court. In this case, pursuant to clause 27 of the Resolution No. 36 “On application of the Arbitration Procedural Code of the Russian Federation to consideration of cases in the arbitration court of appeal” dated 28.05.2009 by the Plenum of the HCA of Russia (hereinafter – Resolution No. 36), the limitations on the frames of consideration of the case in the instance of appeal fixed by part 3 of Article 266 of the APCRF are eliminated. Therefore, the respondent in such situation doubtlessly may file a counter-claim against the claimant in the instance of appeal. Also, it should be acknowledged that the respondent also may add, correct or in any other way change his counter-claim, which was previously filed with the first instance court and considered by it (Resolution No КГ-А40/10702-10.on the case No. А40-45151/09-28-366 dated 02.11.2010 by the FCA of the Moscow District).

Second exception

The second group of exceptions to the general rule prohibiting the filing of a counter-claim with the court of appeal refers to the cases, when the counter-claim filed with the first instance court was not accepted or was accepted and not considered on its merits. The Plenum of the HCA of Russia in clause 8 of the Resolution No. 36 pointed out that a single appeal request may contain claims to appeal against, in particular:

∙ ruling and determination to return the statement of counter-claim;

∙ determination to leave the counter-claim without consideration;

∙ determination to terminate the counter-claim proceedings.

Such situations may take place, for example, when the respondent files a counter-claim in the first instance court, but the counter-claim is not considered on its merits, and there is no real possibility of independent appeal against the determination of the first instance court preventing the movement of the counter-claim. If in the studied situation the court of appeal discovers reasons to repeal the determination that prevents the counter-claim, then, according to the sense of clause 8 of the Resolution No. 36, it may decide the matter of accepting the counter-claim for proceedings on its own. Such circumstance will be an unconditional reason to repeal the ruling of the first instance court and to reconsider the case (in consideration of the counter-claim) in the court of appeal on the rules of the first instance court (determinations by the Thirteenth Arbitration Court of Appeal dated 19.09.2011 on the case No. А56-18617/2011, dated 28.10.2011 On the case No. А56-18617/2011).