Litigation in an arbitration proceeding is a complex, multi-step process that may require many hours of review over several days. During this time, organizational or force majeure circumstances may arise that will require the APC to postpone the consideration of the case to a later date. A break can occur either at the initiative of the court or at the initiative of the parties involved in the case.
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How to draw up a petition to postpone a court hearing, what may be the basis and where to apply will be discussed in the article.
How to postpone a court hearing in arbitration proceedings
The possibility of postponing the trial in arbitration is provided for in Art. 158 Arbitration Procedure Code of the Russian Federation. This rule of law sets out a list of circumstances that serve as grounds for the court to make a decision to postpone the hearing to another date, as well as the procedure for the actions of the party initiating the postponement and the court making a decision on the petition.
The legislator deliberately did not indicate in Art. 158 of the APC is an exhaustive list of reasons why a meeting may not take place or be postponed to another date. The grounds can be grouped into several groups:
- related to the occurrence of force majeure circumstances;
- associated with the desire of a participant in the process to delay the consideration of the case, to gain time to solve problems that may influence the decision of the judges;
- objective reasons why the absence of certain materials in the case will not allow the court to make an objective decision;
- malicious or irresponsible actions of one of the parties.
Adjournment as part of case management strategy
For certain reasons, a defendant (usually) or a plaintiff (rarely) may use the adjournment procedure as a type of litigation strategy or as part of such a strategy. In fact, this approach, of course, is an abuse of law. But if everything is done procedurally correctly and convincing arguments are presented, then formally the court will have no reason to refuse to postpone the trial. Moreover, it is possible that the court will not even suspect such goals.
Why are the parties delaying the process? The goal, of course, is always the same - to get time to solve some problems:
- The parties often drag out the process in the hope of “wearing down” the other party. The litigation itself can negatively affect both the reputation of the company or individual entrepreneur and their business activities. If the trial lasts a long time, the negative consequences and the effect from them last a long time. All this can force the opponent to either agree to the demands or make an unfavorable compromise.
- Defendants often use delaying the process to obtain a kind of deferment of fulfillment of obligations. Sometimes it is more profitable to drag out the litigation and not pay the bills than to quickly lose the case and be forced to withdraw money from circulation to pay off the court award.
- If the defendant predicts a loss, then it is likely that he may delay the process to complete transactions and operations, transfer or withdraw assets.
The above reasons are the main ones, but far from the only ones. However, something else is important - delaying the process is a fairly popular strategy. At the same time, as a rule, postponing the process is only part of a larger game in which the whole range of ways to delay the case is used.
Filing a motion to postpone a court hearing
The procedure for submitting an application to the Arbitration Procedure Code of the Russian Federation is regulated in Part 1 of Art. 159. It provides three options:
- In writing addressed to the court, directly through the secretary, or through the office of the arbitration court.
- In electronic form (if the applicant has an electronic signature).
- Orally, during a conversation with a judge or at a court hearing. An oral petition must be reflected in the minutes kept by the court clerk.
Before deciding to consider motions submitted orally, when other participants in the process are present, the judge has the right to listen to their opinions and objections.
Sample application form
A written petition is drawn up in accordance with the requirements for business documents (GOST R 6.30-2003) “Unified documentation systems...” and section 2 of Order No. 23 of the Armed Forces of the Russian Federation dated 02/04/2016.
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Additional Documentation
When filling out an application to postpone a court hearing in a civil case, it is necessary to prepare a list of documents confirming the stated reasons. The court evaluates how respectful the arguments presented are. If the authorized body considers that they are not such, the application will be refused approval. So, if a person is unable to attend a meeting due to a serious illness, he will need to provide a sick leave certificate. When a person is sent on a business trip, a travel certificate is included in the list.
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Where to submit, deadlines for consideration
The application should be prepared in advance, as well as collecting documents confirming its validity. If the reason for postponing the case is force majeure or illness of a representative of one of the parties, there may not be time to collect evidence. In this case, the application may be submitted orally or by telephone. But the applicant must indicate a telephone number or email by which the court can verify the authenticity of the argument: the address and number of the hospital, ambulance service, the name of the doctor, an employee of the Ministry of Internal Affairs, the Ministry of Emergency Situations or another department that can confirm force majeure.
Written confirmation may be provided at a later date.
The processing time in days is not specified. In Part 1 of Art. 159 of the Arbitration Procedure Code of the Russian Federation states: “after hearing the opinions of other persons...”. Part 4 of this article sets a period of 5 days, but it applies only to requests to participate in a court hearing via videoconference.
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Abuse of right
In the process of solving the problem of how to postpone a court hearing in arbitration proceedings, you must definitely think about whether the court will consider this an abuse of law.
Against the backdrop of the fact that plaintiffs and defendants often artificially delay the process, courts are increasingly and more meticulously evaluating any attempts to postpone, reschedule, or suspend the process.
What may be considered an abuse of right and a fine imposed:
- Repeated failure to appear in court for the same reasons or without notifying the court of the reasons.
- Filing a motion to postpone the process without providing evidence of the existence of grounds.
- Repeated postponement of the process under the same or similar pretexts, where a kind of system of certain actions is seen.
- Taking an excessively long time to collect evidence or indicating the need to collect evidence that could well have been obtained in advance and presented during the trial.
- Constant attempts to delay the process using various methods, not just postponing the meeting. For example, a party may submit a flurry of various petitions and statements - recusal of a judge, appointment of various examinations, calling witnesses, filing a counterclaim, changing requirements, requesting evidence, etc.
If a party has asked to postpone the court hearing 1-2 times and has well argued the request, then this is unlikely to be seen as an abuse of right. But if this happens regularly and the process has clearly stalled, then the court will definitely pay attention to this.
We cannot exclude the possibility that the other side of the process will begin to use countermeasures. She has the right to object to the granting of the motion to postpone the proceedings, as well as other motions and statements of the opponent. She may insist that the proceedings continue without the participation of the other party to the case or without additional evidence. You also need to be prepared for this. It is not enough to convince the court - you need to make sure that the opponent’s arguments are weaker.
Commentary on Article 158 of the Arbitration Procedure Code of the Russian Federation
1. The provisions of the arbitration procedural legislation on the postponement of trial in the appellate court for a period of no more than one month if there is a need to conduct additional verification of the case, ensure the appearance of persons, presence at the court hearing and in other cases if the court deems it necessary (Article 158 in conjunction with Article 266 of the Arbitration Procedure Code of the Russian Federation), are aimed at a complete and objective study and consideration by the arbitration court of all circumstances relevant to the consideration of the case, ensuring the right of persons participating in the case to bring to the court their objections and additions to the case, and therefore also cannot be considered as violating the rights of the applicant.
See: clause 5 of the Definition of the Constitutional Court of the Russian Federation dated 06/04/2007 N 518-O-P.
Filing an application for the award of compensation is not a basis for postponing the trial in the case in connection with which the application for awarding compensation was filed, suspending the proceedings in this case, or suspending the proceedings for the execution of a judicial act issued in this case.
See: paragraph 31 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 30 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 64 of December 23, 2010 “On some issues that arose during the consideration of cases on the award of compensation for violation of the right to legal proceedings within a reasonable time or the right to execute a judicial act within a reasonable time” term".
The court may postpone the trial (Article 158 of the Arbitration Procedure Code of the Russian Federation), inviting the company to submit the necessary documents to the registration authority no later than the deadline established in the court's ruling. In the event of failure to comply with the court's instructions given in preparation of the case for trial or in the ruling to postpone the trial, the court decides on the liquidation of the relevant joint stock company, bearing in mind that such behavior indicates a gross violation of Part 1 of Art. 1 of Law No. 174-FZ, admitted by the company in carrying out its activities (paragraph three of paragraph 2 of Article 61 of the Civil Code of the Russian Federation).
See: clause 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 17, 2009 N 90 “On some issues of the practice of applying the Federal Law “On State Registration of Issues of Shares Placed Before the Federal Law “On the Securities Market” came into force.”
The arbitration court has the right to postpone the proceedings in the case of canceling the decision of the arbitration tribunal if it is possible to comply with the established deadlines for its consideration, and in the absence of such, to suspend the proceedings in the case, guided accordingly by Art. 158 or clause 1, part 1, art. 143 Arbitration Procedure Code of the Russian Federation
See: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 10, 2009 N 11885/08.
2. At the stage of preparing the case for trial, the judge takes measures to reconcile the parties (part 3 of article 133, clause 2 of part 1 of article 135 of the Arbitration Procedure Code of the Russian Federation). In this regard, the judge explains to the parties not only their right to conclude a settlement agreement, refer the case to arbitration, or seek assistance from a mediator, but also the essence and benefits of conciliation procedures, as well as the legal consequences of these actions. Thus, as part of preparing the case for trial, the judge may postpone the holding of a preliminary court hearing and other preparatory actions at the request of both parties if they seek assistance from a mediator in order to resolve a dispute or use other conciliation procedures (parts 2, 7 Article 158 of the Arbitration Procedure Code of the Russian Federation).
See: paragraph 13 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 20, 2006 N 65 “On preparing the case for trial.”
See also: Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 23, 2006 N 975/06, dated November 4, 2003 N 3484/03.
3. The court has the right to postpone the hearing of the case if it is impossible to replace the suspended lawyer with another. Otherwise, it would be tantamount to leaving a person without qualified legal assistance and would lead to a violation of his rights guaranteed by Art. 48 (part 2) of the Constitution of the Russian Federation.
See: clause 2.1 of the Constitutional Court of the Russian Federation of January 15, 2009 N 106-О-О.
See also: Definition of the Constitutional Court of the Russian Federation dated 06/04/2007 N 518-O-P.
According to the second paragraph of Part 1 of Art. 121 of the Arbitration Procedure Code of the Russian Federation, information on the acceptance of a statement of claim or statement for proceedings, on the time and place of the court hearing or the commission of a separate procedural action is posted by the arbitration court on its official website on the Internet no later than 15 days before the start of the court hearing or the commission of a separate procedural action, unless otherwise provided by the Code. When applying this provision, arbitration courts should also take into account that a court hearing may be postponed for a period of less than 15 working days if the persons participating in the case are present at the court hearing and are notified of the time and place of the next court hearing against receipt.
See: clause 13 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 02/27/2011 N 12 “On some issues of application of the Arbitration Procedural Code of the Russian Federation as amended by the Federal Law dated 07/27/2010 N 228-FZ “On Amendments to the Arbitration Procedural Code of the Russian Federation”.
Rulings to transfer the case according to jurisdiction or to refuse to transfer the case according to jurisdiction (Part 3 of Article 39 of the Arbitration Procedure Code of the Russian Federation), to refuse to satisfy a request for a co-plaintiff to join the case, to involve a co-defendant (Part 7 of Article 46 of the Arbitration Procedure Code of the Russian Federation), on the refusal to enter into the case of a third party who declares independent claims regarding the subject of the dispute (Part 4 of Article 50 of the Arbitration Procedure Code of the Russian Federation), on the refusal to enter into the case of a third party who does not declare independent claims regarding the subject of the dispute (Part 3.1 of Article 51 of the Arbitration Procedure Code RF), on the refusal to satisfy a petition to combine cases into one proceeding, on the refusal to satisfy a petition to separate claims into separate proceedings (Part 7 of Article 130 of the Arbitration Procedure Code of the Russian Federation) can be appealed within a period not exceeding 10 days from the date of their issuance , to the court of appeal. Taking into account the consequences of considering appeals against these rulings, in cases of filing appeals against such rulings, arbitration courts should postpone consideration of the case until the consideration of the complaint against the said rulings (Part 5 of Article 158 of the Arbitration Procedure Code of the Russian Federation).
See: clause 6.1 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 28, 2009 N 36 “On the application of the Arbitration Procedural Code of the Russian Federation when considering cases in the arbitration court of appeal.”
In the absence of evidence of sending copies of the appeal to other persons, as well as copies of documents that they do not have, the appellate court issues a ruling in which it sets a deadline for submitting such evidence. The trial of the appeal may be postponed due to this circumstance.
See: paragraph 21 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 28, 2009 N 36 “On the application of the Arbitration Procedural Code of the Russian Federation when considering cases in the arbitration court of appeal.”
If during the trial it is established that a person has applied simultaneously to both the antimonopoly authority and the arbitration court for the protection of his violated rights, the courts are recommended on the basis of Part 5 of Art. 158 of the Arbitration Procedure Code of the Russian Federation to postpone the trial until the antimonopoly authority makes a decision.
See: paragraph 20 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 30, 2008 N 30 “On some issues arising in connection with the application of antimonopoly legislation by arbitration courts.”
If the need to resolve the above issues (related to the appointment of an examination) arose during the preparation of the case for consideration and this requires additional time, the arbitration court, by virtue of Art. 136 of the Arbitration Procedure Code of the Russian Federation may exercise the right to declare a break at the preliminary court hearing for up to five days. If the need to establish the specified data arose during the trial, the arbitration court may postpone the trial on the basis of Art. 158 of the Arbitration Procedure Code of the Russian Federation or declare a break in the court hearing in accordance with Art. 163 of the Code.
See: clause 4 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 20, 2006 N 66 “On some issues of practice in the application of legislation on examination by arbitration courts.”
If at the preliminary court hearing the arbitration court determines the presence of circumstances that prevent the appointment of a court hearing by the court of first instance, it has the right to postpone the preliminary court hearing according to the rules of Art. 158 Arbitration Procedure Code of the Russian Federation. Postponement of consideration of the case at the preliminary court hearing may take place within the time limits established by Art. 134 of the Arbitration Procedure Code of the Russian Federation and other articles of the Arbitration Procedure Code of the Russian Federation, which provide for time limits for consideration of cases. When postponing the consideration of the case at the preliminary court hearing, the judge must indicate in the ruling the grounds for the postponement, for example, indicate what specific evidence is to be presented and within what time period, which party is obliged to present it.
See: paragraph 25 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 20, 2005 N 65 “On preparing the case for trial.”
If the plaintiff at the court hearing changed the subject or basis of the claim, increased the amount of the claim, and the defendant, duly notified of the time and place of the trial, did not appear at the court hearing, then the trial of the case should be postponed in accordance with Part 5 of Art. 158 of the Arbitration Procedure Code of the Russian Federation, since without notifying the defendant of a change in the subject or basis of the claim, or an increase by the plaintiff in the amount of the claim, the case cannot be considered at this court hearing. Otherwise, it would mean a violation of the principles of equality of parties and adversarial process (Articles 8, 9 of the Arbitration Procedure Code of the Russian Federation).
See: clause 11 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 N 99 “On certain issues of the practice of applying the Arbitration Procedural Code of the Russian Federation.”
4. When deciding whether the ruling of the court of first instance, against which an appeal was filed, is subject to appeal separately from the appeal of the judicial act, which ends the consideration of the case on the merits, as provided for in Part 1 of Art. 188 of the Arbitration Procedure Code of the Russian Federation, it should be borne in mind that with respect to rulings to postpone the trial, objections can be raised only when appealing a judicial act, which ends the consideration of the case on the merits.
See: clause 6 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 28, 2009 N 36 “On the application of the Arbitration Procedural Code of the Russian Federation when considering cases in an arbitration court.”
5. In connection with the execution of a letter of request in a foreign state, the arbitration court postpones consideration of the case. Participants in the arbitration process are notified of the time and place of a new meeting of the arbitration court in the manner specified in paragraphs 15 - 17 of Resolution No. 8 of June 11, 1999.
See: paragraph 24 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 11, 1999 No. 8 “On the validity of international treaties of the Russian Federation in relation to issues of the arbitration process.”
