“The Supreme court asked KS to clarify the jurisdiction over procurement by state companies

The definition issued in the framework of the dispute between the “Mosteplosetstroy” and “Mosinzhproekt”

Photo: panthermedia/vostock-photo

The Supreme court asked the constitutional court to pronounce whether the arbitration courts to parse disputes about contracts of state-owned companies. The interpretation of the COP will be critical for the outcome of the dispute on jurisdiction of such cases.

The armed forces sent the constitutional court a request regarding the legal rules that allowed consideration in arbitration courts of disputes regarding contracts of state-owned companies and other economic entities whose activities are regulated by the Federal law No. 223-FZ. “Judicial Board (on economic disputes – approx. If) found uncertainty in the question whether certain provisions of the Arbitration procedure code, Federal law No. 223-FZ “On procurement of goods, works, services by separate types of legal entities”, Federal law No. 382-FZ “On arbitration (arbitration proceedings) in the Russian Federation” the Constitution of the Russian Federation”, – stated in the definition of the armed forces, dated October 23, 2017.

The definition issued in the framework of the dispute between the private JSC “Mosteplosetstroy” and JSC “Mosinzhproekt”, 100% shares of which belongs to the state. According to system “SPARK-Marketing”, they signed a contract for the relocation and removal of utilities in the construction of the station “Spartak” value 72.4 million rubles.

Their contract provided that the dispute needs to dismantle the Arbitration court construction companies of the city of Moscow, ANO “Center for legal support of construction organizations of the city.” 14 July 2017 this arbitration on the claim of “Mosteplosetstroy” sought to “Mosinzhproekt” 5.2 million rubles, but the company did not pay.

“Mosteplosetstroy” tried to achieve a forced debt collection “Mosinzhproekt” through the state courts. The Moscow arbitration court and the appellate court upheld the plaintiff’s claims, but then intervened aircraft. He saw merit in the arguments of the defendant, which rests, first, that the purchase made in the public interest (the state program of construction of metro), but not in the framework of civil law relations, and, secondly, that the company is owned by the city authorities. Which means, insisted “Mosinzhproekt”, the arbitral Tribunal to conduct the proceedings could not.


Now the outcome of the case will depend on the position of the constitutional court. “Any interpretation of the COP will be critical, given the serious disputes regarding the bill on amendments to the 223-FZ,” – said the head of the Analytical centre “Interfax-Goscopy” George Suhodolsky. Essence of the dispute, he said, is whether his economic activity of companies with state participation of the state tasks and functions, i.e. acting in the public interest, or the main thing for them is a commercial component, i.e., they operate within the framework of civil law relations.

The Ministry of economic development, for example, believes that the subjects N223-FZ can resort to arbitration (letter No. Д28и-337 dated 27 January 2017). FAS expressed a different position. In her opinion (letter number AD/75923/15 dated 28 December 2015), the agreement on transfer to arbitration courts for such disputes illegal as the principles of arbitration do not allow to achieve the objectives N 223-FZ.

“It is likely that the constitutional court will decide the fate of the fundamental approaches to the regulation of the procurement activities of state-owned companies in the coming years,” said Suchodolski.

The COP may restrict the ability of dealing with disputes of state-owned companies in arbitration courts, experts say. “He can give konstitutsionno legal interpretation of the provisions of the law and to consider that the meaning of legislative regulation such a dispute cannot be arbitrarily” – said to “Interfax” the partner Saveliev, Batanov and partners Sergey Savelyev.

Earlier from the jurisdiction of arbitration courts was withdrawn disputes over government contracts, which are governed by law No. 44-FZ. First is the limitation of the competence of commercial arbitration was formalized by the decision of Presidium of the Russian Federation, and then changed and APK.

Such a prospect in respect of purchases of state companies will lead to a significant increase in the load on the arbitration courts, says Savelyev. “Now [such] contracts with an arbitration clause set. If the COP deems such disputes neautrally, it will lead to rampant “shaking off” the arbitration of reservations that would undermine stability of civil turnover”, – he said.

The benefit of the company

As for the argument “Mosteplosetstroy” and “Mosinzhproekt”, the experts see the actions of the customer abuse of the right. “The contract says that in case of ambiguity, the case will be considered by the arbitration court. However, after consideration of the case by the customer, which sought a penalty, doesn’t want to implement the decision and stalling, arguing that such a dispute should consider arbitration. The court practice on such disputes is ambiguous. If a customer is abusing their rights? I would say Yes. But proving it would be very, very difficult,” – said “Interfax” the partner of legal Bureau “Olevinsky, Buyukyan and partners” Dmitry Terentyev.

The courts of first two instances were right when they satisfy the requirements of the “Mosteplosetstroy” on compulsory execution of the arbitral award, says Saveliev. “I believe that this dispute may be the subject of arbitration. In case of doubt, the provisions of the act should be interpreted in favor of arbitration. In this case, no doubts, but simply according to the letter of the law, such a dispute arbitrable” he said.

If the COP decides that the case is subject to consideration in arbitration court, “Mosteplosetstroy” will be forced to appeal to the arbitration court with the claim about collecting again, said Terentyev. “While the new suit will be heard and the court’s decision will enter into force, “Mosinzhproekt” will win the time – quite legally he can still have 3-6 months to pay the defendant” – he said.

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