AO "URALMASH" v. RUSSIA
Inadmissible
Christos Rozakis
The applicant is a public company “The Urals Factory of Heavy Engineering” (Открытое акционерное общество «Уральский завод тяжелого машиностроения», AO “Uralmash” or “the applicant company”) located in Yekaterinburg. The applicant company is represented before the Court by Ms I. Krivykh, the head of its legal department. The facts of the case, as submitted by the applicant company, may be summarised as follows. Pursuant to decisions of the Sverdlovsk Regional Committee for Management of the State Property of 6 and 25 November 1992, the applicant company was privatised and the assets of the serial devices engineering plant (Завод серийных машин, “the Plant”) were included, among others, in the applicant company’s charter capital. On 9 December 1994 the applicant company made an offer to the Government to return the Plant into state ownership in exchange for a certain number of the applicant company’s shares. On 6 September 1995 the Government accepted the offer and the terms and conditions of the exchange were developed at a meeting on 17 October 1995. On 11 June 1996 the applicant company and the Government signed an agreement on the transfer of the Plant to the State for consideration. On the same day the applicant company transferred the Plant to the State Committee for Management of the State Property of the Russian Federation, acting on behalf of the Government. On 3 October 1997 the applicant company invited the Government to pay the stipulated consideration for the Plant. On 19 January and 2 February 1998 the Ministry of Finance of the Russian Federation and the Government acknowledged the outstanding debt and offered to pledge the respective amount in the next year’s State budget. However, on 27 November and 29 December 2000 the Ministry of Finance of the Russian Federation refused to pay the applicant company with reference to the absence of supporting documentation. On 2 February 2001 the applicant company lodged a civil action against the Government and the Ministry of Finance with the Moscow Commercial Court (Арбитражный суд г. Москвы). The applicant company sought to recover the outstanding payment for the transferred Plant. On 23 May 2001 the Moscow Commercial Court dismissed the applicant company’s action. The court held that the Plant had been unlawfully privatised and, therefore, it could not be legitimately transferred back into state ownership for consideration. On 13 June 2001 the applicant company brought an appeal (апелляционная жалоба) against the judgment of 23 May 2001. It argued, inter alia, that the privatisation had been lawful and subsequently approved by a Government resolution. On 17 August 2001 the Appeal Instance of the Moscow Commercial Court (апелляционная инстанция Арбитражного суда г. Москвы) granted the applicant company’s action and awarded it RUR 204,363,814.33 to be paid by the Ministry of Finance on behalf of the Russian Federation. On 11 and 17 September 2001 the Ministry of Finance and the Ministry for State Property brought cassation appeals (кассационные жалобы) against the judgment of 17 August 2001. On 24 October 2001 the Federal Commercial Court of the Moscow Circuit (Федеральный арбитражный суд Московского округа) granted the cassation appeals, quashed the judgment of 17 August and restored the judgment of 23 May 2001. The applicant company sent several applications for supervisory review (заявление о принесении протеста в порядке надзора). These applications were refused by letters of the deputy President of the Supreme Commercial Court of the Russian Federation of 27 April and 13 June 2002 and a letter of the President of the Supreme Commercial Court of the Russian Federation of 31 October 2002. On 9 January 2003 the applicant company lodged an application for supervisory review under the new procedure, in force as of 1 January 2003. On 31 January 2003 the application for supervisory review was dismissed. The applicant company was advised that, under the new procedure, no new applications on the same subject were permissible. On 1 September 2002 the new Code on Commercial Procedure of the Russian Federation (Арбитражный процессуальный кодекс РФ) entered into force, with the exception of Chapter 36 of the Code “Proceedings for the review of courts’ decisions by way of supervision” (“Производство по пересмотру судебных актов в порядке надзора”) which became effective as of 1 January 2003. Chapter 36 established a new procedure for the supervisory review of courts’ decisions that have already entered into legal force. According to a general rule in Article 292 § 3 of the Code on Commercial Procedure, the application for supervisory review can be filed with the Supreme Commercial Court of the Russian Federation within three months after the contested decision entered into legal force, provided that all other remedies have been exhausted. The Law on the Introduction of the Code on Commercial Procedure of the Russian Federation of 24 July 2002 (Федеральный закон «О введении в действие Арбитражного процессуального кодекса РФ» № 96-ФЗ) provided that, in respect of courts’ decisions made before 1 January 2003, the period for filing an application for supervisory review of such decisions will be calculated from 1 January 2003.