Case: Commercial lawyer's stories

Commercial lawyer's stories

The weather in Astana today is -38 degrees. I was once asked to go to Yakutsk (a district city) and Irkutsk (the region), these cities have the same frosts and often planes are crashed there. This was 2006, the beginning of February. I was asked to sue in Arbitration courts of the Sakha Republic in the Arduina vs SVMC (South-Verkhoyansk Mining Company) case concerning the collection of about 5 million US dollars. Arduina bought the debt from the original creditor. SVMC decided not to repay the new creditor. The position of the debtor is simple – it is better to sue, delay the cases, pretend they owe the debt to the original creditor and do not recognize the concession. The dispute over the loan should be considered at the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation, this is arbitration in the full sense of the word.

The ICAC supported Arduina's claims against the original creditor and issued an arbitration award in favor of Arduina. The SVMC did not recognize the arbitration award. Then Arduina appealed to the local courts of the Republic of Sakha (Yakutia, which is bigger than Kazakhstan for the whole of France) to obtain a writ of execution to collect debts through the bailiff. When I joined the case, Arduina hired Moscow cunning lawyers who hired a local Yakut clumsy lawyer to collect debt on the loan. The first instance was won, and then the local lawyer lost everything.

It was in 2006. SVMC lawyers made up the idea that the decision of the Russian arbitration is a foreign arbitration award, and according to the CPC, is not enforceable if it violates public order. The appeal and cassation considered that the public order was being violated, the national interests of the Russian Federation allegedly suffered, and therefore they refused to issue the writ of execution. I must say that, probably, corruption in the courts of the Russian Federation worked against the creditor. The case was already completely hopeless.

Without any hope, we decided to slowly file a supervisory complaint to the Supreme Arbitration Court of the Russian Federation. I wrote my version of the supervisory complaint by the agreed deadline. As Sun-Tzu advised, I transferred the battlefield to where it would be profitable for me to win. I spent the nights examining the entire judicial system of the Russian Federation, the differences between arbitration courts (state dispute resolution institutions) from arbitral tribunals (non-state alternative sites for reaching justice), as well as foreign arbitrations. And I worked not in vain.

By the way, the Moscow lawyers hired by the client were internal enemies. I checked the office of the Supreme Arbitration Court of the Russian Federation and, as it turned out, they wrote in appeal and in the cassation the same thing that was in the first instance. Nothing new, copy-paste work. I began to call and explain them, but they did not accept my version of the complaint contrary to the client's instructions. They did not even read it. A month later, they finally realized the idea. But there was only a couple of days before the deadline for filing an addendum to the supervisory complaint left. They began to whine that we do not have time, why even bother trying. I upheld my demands. I was lucky that they were lazy and just made a copy-paste of my version, being too lazy to insert their "five cents", which could destroy the argumentation. They filed an addendum to the supervisory complaint. We were in time.

The bottom line was that the decisions of the ICAC are decisions of the local arbitral tribunal, so it is not subject to verification for violation of public policy, the courts violated the CPC of Russian Federation.  Fortunately, the Presidency decided to consider my complaint and ordered court hearings in cases 2005), 4495 (A58-3154 / 2005), 4485 (A58-3153 / 2005), 4486 (A58-3152 / 2005 ), 4488 (A58-3151 / 2005). I came to Moscow when there was Madonna’s concert, on September 12, 2016. I was sitting with Moscow lawyers in a round beautiful lobby of the Supreme Arbitration Court of the Russian Federation. Then there was a meeting on our case. There were 12 judges of the Supreme Arbitration Court, among which there was one reporting judge (Neshataeva).

The Supreme Arbitration Court of the Russian Federation completely copied my text of the supervisory complaint and, of course, ruled in my favor. After such success, at work my colleagues started joking, saying: "Professor Stamkulov, let's go drink tea together”.

I left that work a little later, when my grandfather passed away, I worked there the most, worked even on weekends, but received less payment than everyone else. I firmly decided that I will dedicate time to relatives and friends (at least on weekends), invite them to visit me more often.