Does Article 248.1 of the CPC of the Russian Federation Establish a Presumption of Restriction of the Procedural Rights of Russian Persons under Sanctions?

Abstract

The article examines the relatively new provisions of Article 248.1 of the Commercial Procedure Code of the Russian Federation, which establish the exclusive competence of Russian courts for Russian persons under sanctions. The analysis of the practice of application of this Article by arbitration courts allows us to identify three criteria for its use: the subject criterion, the subjective criterion and the absence of another established procedure for dispute resolution.

Having studied the judicial practice, the author concludes that the application of restrictive measures against a Russian person is sufficient for a reasonable assumption that there are restrictions on access to justice for him and the observance of guarantees of a fair trial, i. e. the effect of the presumption of restricting access of a Russian person to whom restrictive measures have been applied to justice in a foreign state. In this case, the rules on the exclusive competence of the Russian arbitration court on the basis of Article 248.1 of the Commercial Procedure Code of the Russian Federation should be applied. At the same time, this presumption is refutable. It is obvious that the duty to refute the presumption of restricting access to justice in a foreign state rests with the defendant in the claim of a Russian person.