Is it still possible to serve documents in Russia under the Hague Convention or can the German court go straight to public service?

In a legal dispute between a German claimant and a Russian respondent, the Berlin Higher Regional Court (Kammergericht) dealt with the question of the admissibility of arbitration proceedings based on a dispute over the fulfilment of contractual obligations.

In its landmark decision (dated 1 June 2023, case no 12 SchH 5/22), the Berlin Higher Regional Court dealt, among other things, with Section 1032 (II) German Code of Civil Procedure (Zivilprozessordnung, ZPO), its scope beyond national borders and the problem of service abroad.

The key facts

The case

The underlying legal dispute between a German claimant and a Russian respondent (12 SchH 5/22) concerned, in short, an application for cancellation of a contract relating to the maintenance and repair of 294 electric trains and the fulfilment of the resulting contractual obligations.

The claimant was no longer able to fulfil its contractual obligations due to the need to comply with sanction regulations. These financial and investment sanctions[1] were imposed on the respondent in connection with Russia’s invasion of Ukraine at the end of February 2022. These economic sanctions subsequently imposed on the respondent made it impossible for the claimant to fulfil its contractual obligations. The applicant therefore cancelled the contract.

The cancellation of the contract by the applicant was rejected by the other party. The respondent then turned to the Arbitrazh Court in St. Petersburg to assert its claims, object to the cancellation and continue the contract. At the same time, an anti-suit injunction was filed with the Arbitrazh Court in Moscow, based on, inter alia, the articles 248.1 and 248.2 of the Russian Arbitration Code (RAC) (see below for more details).

The applicant filed an action for a declaratory judgement with the Berlin Higher Regional Court with the request to determine the admissibility of arbitration proceedings pursuant to Section 1032 (II) ZPO. This was based on the fact that an arbitration clause had been agreed on in the contract between the parties, which stipulated that all disputes arising from this contract with regard to its performance, amendment, termination or cancellation were to be settled before the Vienna International Arbitral Centre (VIAC).

The issue

In the course of things, the Berlin Higher Regional Court order with a request for a statement from the respondent was to be served by means of an application for service in accordance with the Hague Service Convention.

The State Arbitrazh Court in Moscow refused service of these documents (А40-301955/22-3-2280). The reasons given for this were that a service of a foreign court or a competent body of a foreign state is not subject to acceptance if it violates fundamental principles of Russian law or is otherwise contrary to the public order of the Russian Federation (citing article 256 section 2 point 1).

Article 256 section 2 point 1 reads as follows: “The order of a foreign court or a competent authority of a foreign state shall not be executed if (1) the service of the order/document violates fundamental principles of Russian law or is otherwise contrary to the public order of the Russian Federation.”

The refusal of service was also based on article 13 of the Hague Service Convention, which states that: “Where a request for service complies with the terms of the present Convention, the State addressed may refuse to comply therewith only if it deems that compliance would infringe its sovereignty or security.

It may not refuse to comply solely on the ground that, under its internal law, it claims exclusive jurisdiction over the subject-matter of the action or that its internal law would not permit the action upon which the application is based.

The Central Authority shall, in case of refusal, promptly inform the applicant and state the reasons for the refusal.“

Reference is also made to the above-mentioned dispute between the two parties regarding the validity of the cancellation and any subsequent contractual obligations (A40-98907-2022). In the submission there, reference is made to art. 248.1 and art.248.2 of the Russian Arbitration Code.

According to art. 248.2 (1) RAC in connection with art. 248.1 RAC, a party against whom a dispute is initiated before a foreign state court or arbitration tribunal may turn to an Arbitrazh Court of the Russian Federation in cases of disputes arising from Art. 248.1 RAC.[2] The applicant did so.

Art. 248.1 Nr. 3 (2) RAC also regulates an anti-suit injunction with reference to Art. 248.2 RAC  in the event that “the handling of disputes with its participation is submitted to the jurisdiction of a foreign court and an international commercial arbitration court outside the territory of the Russian Federation, due to the application of restrictive measures of a foreign state […] is not enforceable against one of the persons involved in the dispute”.

According to the Arbitrazh Court of Moscow, the purpose of art. 248.1 and 248.2 is to guarantee the protection of the rights and legal interests of citizens and legal entities of the Russian Federation subject to sanctions.

It was precisely this imposition of restrictive measures (sanctions) that prompted the respondent to refuse service of the legal documents.

The convention

The Hague Service Convention is a multilateral treaty ratified by Germany and Russia, Article 10 of which applies in the present case.

Article 10 of the Hague Service Convention states that service may be effected by post, directly by judicial officers or other persons or by means of private requests for service. This makes direct service possible, irrespective of the involvement of central authorities in the respective state.[3]

Another requirement is that no objection to this form of service has been lodged, which is not the case here.

Russia acceded to this Convention.[4]

The solution?

In its decision, the German court argues that successful service in Russia can be assumed.

After informing the Berlin Higher Regional Court of the refusal of service, the court arranged for public service, which was deemed to have been effected on 18^th April, after being posted on the court notice board on 16^th March 2023 and accepted on 17^th April 2023 in accordance with Section 188 ZPO.

Consequently, service was effected despite the refusal of the Russian court.

Service in Russia under the Hague Convention is always a time-consuming exercise. German procedural law allows public service of documents if service abroad cannot be effected.

In the German Code of Civil Procedure, the provisions on service abroad can be found in Sections 183 et seq. ZPO. According to Section 183 (II) ZPO, due to Germany’s accession to the Hague Service Convention, this is to be given priority for service abroad. Due to the respondent’s refusal to accept service of the documents, the Berlin Higher Regional Court resorted to public service under Section 185 no. 3 ZPO.

In the event that service abroad is not promising or unsuccessful, there is the option of public service in accordance with Section 185 no. 3 ZPO. Service abroad is not likely to be successful if it can be assumed that no legal assistance will be provided or that this decision would take an unreasonably long time.[5] There is no standardised approach with the regard to the “unreasonably long time” for service abroad. However, there are points of reference that can be used as an orientation in individual cases.

Long delays for service under the Hague Convention were never considered to be an obstacle. In the decision of the German Federal Court of Justice (Bundesgerichtshof) of 20^th January 2009 – VIII ZB 47/08, a period of up to one year is granted for public service abroad. This period takes into account the special features of (public) service abroad and also does not harbour the risk of violating the right to be heard under article 103 (I) of the German Constitution (Grundgesetz), which is affected by public service.[6]

If, however, service under the Hague convention is not possible or will likely be refused, a German court might be inclined to allow public service without even trying service under the Hague Convention.

Based on the decision of the Moscow Arbitrazh Court in the matter А40-301955/22-3-2280, it could be argued that at least with regard to sanctioned entities, service in Russia will not be successful, so this could be used as an argument to allow public service without even trying service under the Hague convention.

Conclusion

Section 186 (II) 1 ZPO regulates how public service is to be effected.

“Public service” means (according to Section 186 (II) 1 ZPO) that an announcement is placed on the notice board of the court that a certain document can be picked up at the registrar of the court by the named entity. That announcement is usually posted for 1 month. However, it is not published via internet or any other real “public” means, which would allow parties from abroad to easily gain access from anywhere. So, unless the party affected by the sanctions happens to walk by the board of notice of the court, chances of really becoming aware of the proceedings are limited.

Links

Berlin Higher Regional Court:

12-SchH-5_22

Arbitrazh Court in Saint Petersburg: https://kad.arbitr.ru/Document/Pdf/604c4460-ea6f-4135-95b1-fc98f602e297/a15db5ab-f6a1-4dd6-affc-eb061d616d1f/A56-42584-2022_20220722_Opredelenie.pdf?isAddStamp=True

Arbitrazh Court in Moscow: https://kad.arbitr.ru/Document/Pdf/5896bdd7-b260-4e56-b90e-ffecda73699a/0239efba-b801-48c2-882a-b65da11a67b4/A40-301955-2022_20230227_Opredelenie.pdf?isAddStamp=True

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[1] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32022R0328&from=EN.

[2] https://www.wto.org/english/thewto_e/acc_e/rus_e/wtaccrus58_leg_61.pdf – English version

https://www.consultant.ru/document/cons_doc_LAW_37800/d0eb4aae3b2b8b34c31b47c5902cca3cc1e1eb70/ Russian version

https://www.consultant.ru/document/cons_doc_LAW_37800/b98a3b20b6ce7bb94a98a39fcd71b06e5d451bdb/#dst1900 Russian version

[3] Sujecki in: Erläuterungen zum Haager Übereinkommen vom 15. November 1965 über die Zustellung gerichtlicher und außergerichtlicher Schriftstücke im Ausland in Zivil- und Handelssachen, Art. 10, p.62.

[4] https://assets.hcch.net/docs/ccf77ba4-af95-4e9c-84a3-e94dc8a3c4ec.pdf.

[5] Wittschier in: Musielak/Voit/Wittschier ZPO § 185 [6].

[6] BGH, Beschluss v. 20.01.2009 – VIII ZB 47/08 [14].

Foto von Namzhil Chimitov auf Unsplash