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Decree of the Plenary Session of the Supreme Commercial Court of 23 March 2012 № 12 “On Making Amendments to the Decree of the Plenary Session of the Supreme Commercial Court of the Russian Federation of 30 June 2011 № 52 “On the Application of Provisions of the Commercial Procedure Code of the Russian Federation in the Event of Reversal of Judicial Acts on the Grounds of New or Newly Discovered Circumstances”

The amendments affect the powers of the Plenary Session and Presidium of the Supreme Commercial Court to develop the law which they exercise by way of working out ‘legal positions’ (interpretations) binding upon courts. The new version of para 11 of the Judgment № 52 makes two additions to the original version, both of which will be emphasised below. The amended version of para 11 provides that:

- the circumstances which, contrary to general rule, allow reversing final judicial decisions in analogous cases by reference to a legal position of the Supreme Commercial Court shall include the expiry of periods established by Art 312 of the Commercial Procedure Code; the possibility to deteriorate the conditions of a person who was brought to public law responsibility; non-exhaustion of possibility to make recourse to court of appellate or cassational instance;

- when a decree (judgment) of the Plenary Session or Presidium contains several legal positions, it is possible to give retroactive force to only one of them, if the judgment explicitly indicates so (this provision is a new one compared with the original version of para 11);

- even in the absence of a reservation clause  in the decree (judgment) of the Plenary Session or Presidium as to the retroactive force of respective legal position in the meaning of Art 311 of the Commercial Procedure Code such legal position (interpretation) must nevertheless be taken into account by courts when considering analogous disputes which may arise in the future (prospective force of legal positions);  

- “in the judgment of the Plenary Session or Presidium of the Supreme Commercial Court of the Russian Federation there can be defined the  range of court decisions to which such reservation clause shall extend”;

- “for the judgments not containing the retroactive force reservation clause, the Plenary Session or Presidium of the Supreme Commercial Court may define the limits of the application of the legal position formulated by it, in particular by way of indicating the date of arising or change of legal relations to which it shall apply”. In other words, the application of binding interpretations worked out by the Plenary Session or Presidium may start not from the moment of their publication, but from a later moment as indicated in the respective judgment. This option is analogous to the one which is already enjoyed by the Constitutional Court of Russia, and it constitutes the second addition to the original version of para 11.

Practical consequences: these amendments make an important step in shaping the powers of the Supreme Commercial Court in the development of law by way of issuing binding interpretations.

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