Private antitrust litigation in Russian Federation: overview

A Q&A guide to private antitrust litigation in Russian Federation.

The Q&A provides a high level overview of the legal basis for bringing private antitrust litigation actions; parties to an action; limitation periods and forum; standard of proof and liability; costs and timing; pre-trial applications and hearings; alternative dispute resolution; settlement or discontinuance of an action; proceedings at trial; available defences; available remedies; appeals and proposed legislative reform.

This Q&A is part of the Private Antitrust Litigation Global Guide.

The private antitrust litigation global guide serves as a single, essential, starting point of practical reference for both clients and practitioners in considering the various merits of commencing, defending or settling antitrust claims.

Gavrilov Denis, Bolshakov Evgeny, Krychkova Maria and Gavrilov Igor, Egorov Puginsky Afanasiev & Partners
Contents

Legal basis for bringing private antitrust litigation actions

1. Can stand-alone and/or follow-on actions be brought in the context of private antitrust litigation? If so, what is the legal basis for bringing such actions?

Stand-alone actions

The general rules of the Russian civil and antitrust laws provide for judicial protection of rights that have been infringed through failure to comply with the antitrust law, and to seek compensation for losses, including the actual damage and the lost profit.

In the Russian Federation, a stand-alone action over infringement of the antitrust law can be brought in court whether or not there is a competitive authority's decision recording the infringement. Statutory regulation of such actions must be consistent and must not depend on whether there is a decision of the Federal Antimonopoly Service of Russia (Russian antitrust authority) in an antitrust law infringement.

The Plenum of the Supreme Arbitrazh Court of the Russian Federation in its Decree No. 30, 30 June 2008, provided that an application for judgment to a competitive authority is not an absolute prerequisite for judicial protection of infringed rights.

Where an action is brought with no decision issued by the competitive authority regarding the infringement, the court must establish the facts of an infringement (or no infringement). However, it is the claimant who bears the burden of proof.

Actions with no underlying competitive authority decision are rarely brought before the court. This is because a competitive authority decision materially improves the claimant's position regarding proving the infringement. Generally, a claimant brings a stand-alone action in court after the competitive authority has issued a decision.

A stand-alone action can be brought over any antitrust infringement, both:

  • Individual antitrust infringement (for example, abuse of a dominant position).

  • "Collective" antitrust infringement (entering into anti-competitive agreements).

Russian law does not provide for any restrictions related bringing stand-alone actions. However, there are a few practical examples of applications arising from cartel infringements. Due to the specific nature of cartel agreements, it is complicated for the claimant alone to prove the offence under the action proceedings.

A liberty to bring a stand-alone action in court is not dependent on whether a competitive authority decision has been appealed from and/or whether a judgment has come into effect following appealing therefrom. A claimant may go to court at any time.

However, where a court is considering two cases in parallel, the proceedings in one of the cases can be suspended until the other one has been considered (for example, in appealing from the competitive authority decision and in a stand-alone action over an antitrust infringement). Normally, the proceedings in a stand-alone action will then be suspended.

Legislative. The right to bring a standalone action (that is, a restitution action) in case of an antitrust infringement is expressly provided by Article 37(3) of the Competition Protection Law (Federal Law No. 135-FZ " On Protection of Competition" , 26 July 2006).

Additionally, the Russian Civil Law (Civil Law of the Russian Federation (Part One) , No. 51-FZ, 30 November 1994), provides for general rules on the civil rights having to be exercised in good faith, and no abuse of right, including abuse of a dominant position is permitted (Article 10, Russian Civil Law). A person, whose right has been infringed, can request full compensation for damage suffered, including the actual damage and the lost profit (Article 15, Russian Civil Law).

Non-legislative. In the Russian Federation, only legislative acts are binding. In the context of stand-alone actions, these are the Russian Civil Law and the Competition Protection Law.

Case law, without being a source of law, is taken into account by the parties to legal relations in order to formulate their positions. However, case law cannot be qualified as extensive and developed as related to stand-alone actions over antitrust infringements.

Adversarial or inquisitorial. Judicial proceedings in stand-alone actions over antitrust infringements are adversarial. Adversariality and optionality are the key principles of Russian procedural law (both in general jurisdiction courts and in state commercial (arbitrazh) courts). These principles are translated by each party having to prove the facts it relies on, while the court maintains independence and impartiality.

Follow-on actions

Bringing a "follow-on" action in reliance on findings of a competitive authority and/or a competent court is much more common, since the entire material evidential base for the case has been collected, and most importantly there is a confirmation of the person having committed an antitrust infringement.

Follow-on actions may be brought after any antitrust infringement has been established, whether this is abuse of a dominant position, or entering into a cartel agreement.

Bringing an action does not require a mandatory judicial examination of the competitive authority decision and may follow the delivery thereof. However, where the competitive authority decision is further appealed from, the related proceedings are very likely to be stayed until the court has confirmed that the Federal Antimonopoly Service (FAS) decision is valid.

Legislative. The right to bring follow-on actions (actions of restitution) in case of infringement of antitrust laws is provided by law (Article 37, Federal Law No. 135-FZ, 26 July 2006 on Competition Protection).

Additionally, the Civil Code of the Russian Federation contains the general principle of good faith which prohibits abuse of rights including abuse of a dominating position in the market (Article 10, Russian Civil Code). The individual whose right has been violated, is entitled to demand the full recovery of the losses inflicted on him including compensatory damage and missed profit (Article 15, Russian Civil Code).

Non-legislative. The jurisprudence in stand-alone actions has repeatedly emphasised that the court must take into account the proof of an antitrust infringement by a competitive authority decision that has come into force. For example, the Supreme Court satisfied the claims of a distributor seeking to recover damages exceeding EUR5.5 million against a pharmaceutical company due to an abuse of a dominant position by way of an unreasonable refusal to enter into a supply agreement (Biotek v Teva, case # F05-12889/2016). The Russian Supreme Court in its decision referred to the infringement itself having been established by a decision of the Federal Antimonopoly Service (FAS).

The Federal Antimonopoly Service's explanations also refer to the efficiency of follow-up actions (Decision No. 7 of the FAS' Presidium, 25 May 2016).

Adversarial or inquisitorial. Follow-on actions in Russian courts are adversarial. Contentiousness and optionality are the general principles of Russian procedural legislation (both in arbitration courts and courts of general jurisdiction). These principles mean that each person participating in the action must prove the circumstances to which he refers as to the ground of his claims and objections, and the court retains independence and impartiality.

 

Parties to an action

2. What must be demonstrated to commence an action?

Stand-alone actions

When bringing a stand-alone action, the claimant has to demonstrate that their rights have been infringed by the defendant's actions. The claimant must prove the:

  • Antitrust infringement itself.

  • Antitrust infringement was caused by the defendant.

  • Defendant's actions having infringed the claimant's rights.

When bringing an action for damages, the claimant must also prove the:

  • Claimant suffered damage.

  • Causal link between the defendant's actions and the claimant's damages,

  • Amount of damages.

Unless all of these facts have been proved, the action cannot be satisfied.

The action may be brought by a person, whose rights have been infringed by the defendant's actions.

Article 23 of the Competition Protection Law vests the right to bring antitrust infringement actions in court into the antitrust authorities. More specifically, a competitive authority may bring an action seeking to vary/terminate an agreement infringing the antitrust law, to invalidate non-regulatory legal acts issued by authorities and so on. Such actions may contribute to restore the infringed rights of a particular person but cannot be qualified as stand-alone ones by their nature.

Under the Russian law, any person believing their rights have been violated by the defendant's actions is entitled to bring a stand-alone claim in court. Therefore, both direct and indirect purchasers can act as claimants.

An infringing party must not formally be denied a right to bring an action against other infringing parties in order to reinstate their right. However, the authors' are unaware of such cases.

Follow-on actions

See above, Stand-alone actions.

 
3. Is it possible to bring actions on behalf of multiple claimants (for example, collective actions)?

Stand-alone actions

Multiple claimants. Both the Civil Procedural Code and the Arbitration Procedural Code of the Russian Federation provide for joinder of parties (that is, multiple claimants and/or defendants). This is possible where the:

  • Matter at issue is the common rights of several claimants.

  • Rights of several claimants have a common basis.

  • Matter at issue involves similar rights and obligations.

However, co-claimants generally proceed per se but may delegate the proceeding to one or a few of them.

In addition, in 2009 the Arbitration Procedural Code of the Russian Federation was amended (section 28.2 was added) so that actions in protection of a group (collective actions) can be brought. The Russian Arbitration Procedural Code contains no restrictions regarding the areas where collective actions may be brought in. Therefore, a stand-alone action seeking to protect the rights and legal interests of a group of persons can also be brought over an antitrust infringement.

However, this concept has not been extensively applied to antitrust law, due to ill-developed procedural rules, among other things. The procedural rules for collective actions are still not developed and do not take into account specific issues of antitrust regulation.

Opt-in or opt-out. To become a claimant in a collective action, a party must opt in to the claim by submitting a written application. However, a court may only consider a case in a collective action where at least five persons have joined the collective action by the legal action date.

Certification. A collective action requires no particular form of certification. The only requirement is that the claimants must be parties to the relationship the claim has resulted from. There must be a causal relationship between the damage of a claimants and antitrust violation of the defendant.

A representative bringing a collective claim in protection of the rights and legal interests of a group does not have to be approved or certified by any court.

Follow-on actions

See above, Stand-alone actions.

 
4. On what basis will a court or tribunal assume jurisdiction with respect to a claim?

Stand-alone actions

A stand-alone action can be brought both against a person staying and operating in the Russian Federation, or a person staying and/or operating elsewhere. The provisions of Article 3 of the Competition Protection Law also apply to foreign companies. The Competition Protection Law also applies to actions outside the Russian Federation, if those actions affect the competitive market in the Russian Federation.

The obligations arising due to a restraint of competition is governed by the law of the country whose market has been or may be affected by such restraint of competition, unless otherwise required by the law or the nature of the obligation (Russian Civil Code).

The rules of the Russian arbitrazh courts' jurisdiction over economic disputes involving foreign corporate entities have been provided in the Russian Arbitration Procedural Code. For example, where a company is registered outside the Russian Federation but operates in the Russian Federation and has infringed the antitrust law, which resulted in damages, the dispute over the resulting damages may be resolved by a Russian arbitrazh court.

Follow-on actions

See above, Stand-alone actions.

 
5. Can actions be brought against individuals (such as directors of corporate entities), whether domiciled within, or outside of, the jurisdiction?

Stand-alone actions

Under the Competition Protection Law, antitrust law may only be infringed by corporate entities. Corporate entities include:

  • A business entity.

  • A non-profit organisation engaged in income-generating activities.

  • An individual entrepreneur.

  • Another individual not registered as an individual entrepreneur but engaged in income-generating professional activities.

However, not only companies themselves, but their guilty officers (for example, directors) will be held administratively liable for antitrust infringements. For a cartel agreement, only the guilty officers of a company will be prosecuted.

Follow-on actions

See above, Stand-alone actions.

 

Limitation periods and forum

6. What are the relevant limitation periods for stand-alone and/or follow-on actions? When do these start to run? Can these be extended?

Stand-alone actions

The general limitation period runs for three years starting from the date on which the claimant learnt or should have learned that their right has been infringed and who is the due defendant under the action seeking to protect this right (Article 196, Russian Civil Code). No particular limitation period has been provided for stand-alone antitrust infringement actions.

However, infringement of the claimant's rights in such cases is closely related to the defendant's antitrust infringement. A claimant is not always in a position to identify on their own that the excess payment for goods was due to the defendant's abuse of a dominant position or to a cartel agreement. To that end, the case law contains examples of a court qualifying the Financial Antimonopoly Service (FAS) decision establishing the infringement as the commencement of the limitation period.

The limitation period can be suspended on the grounds provided by Article 202 of the Russian Civil Code. These grounds include failure to bring a claim due to a force majeure, suspension of a statute or another legal act governing a respective relationship, among other things.

Additionally, the limitation period can be exceptionally extended for a good cause related to the claimant's personality (for example, their health) (Article 205, Russian Civil Code). The limitation period extension rules may only apply where the claimant is an individual.

Follow-on actions

See above, Stand-alone actions.

 
7. Where can an action be commenced? Are there specific courts or tribunals before which stand-alone and/or follow-on actions may be brought?

Stand-alone actions

Both stand-alone and follow-on actions can be brought in a general jurisdiction court or an arbitrazh court depending on the specific nature of a relationship according to the general principles of arbitrability and jurisdiction.

There are no specific courts before which such claims may be filed in the Russian Federation.

If a claim arises out of a relationship not related to entrepreneurial activities, the action must be brought in a general jurisdiction court. It will be brought to an arbitrazh court if a claim arises out of a relationship related to entrepreneurial activities.

Follow-on actions

See above, Stand-alone actions.

 
8. Where actions can be brought before different courts and tribunals, what are the comparative advantages and disadvantages of bringing actions in each forum?

Stand-alone actions

The principles of arbitrability and jurisdiction are provided by the Arbitration Procedural Code on a limited number of action types, claimants are entitled to identify the arbitrability (but not the jurisdiction) on their own. However, this does not apply to disputes over stand-alone antitrust infringement actions.

To that end, the issue of advantages and disadvantages of various forums is irrelevant for the Russian Federation.

Follow-on actions

See above, Stand-alone actions.

According to current case law, follow-up actions are increasingly popular. Most of them are successful. The choice for follow-up actions and their success rate is explained by the fact that the competitive authority would in these cases prove the infringement and get the required evidence, which may be further used by the claimant to recover losses. A claimant may also use the amount of a fine calculated as a percentage of the company's revenue (a turnover-based fine) imposed on the infringing party by the regulator as a reference for proving the amount of losses. This approach can be used by the claimant's counsel while stating his case when seeking damages.

 

Standard of proof and liability

9. What is the standard of proof?

Standard of proof

Under the general standards of proof, each party must prove the facts it relies on in its case. For more details on the facts to be proven by claimants (see Question 2).

Burden of proof

It is the claimant who bears the burden of proof for the underlying facts of an action and the defendant bears the burden of proof for the facts rebutting the action.

Rebuttable presumptions

There are no presumptions regarding stand-alone antitrust infringement actions.

However, stand-alone actions are governed by the legal view taken by the Russian Supreme Court, where the amount of damages is calculated with reasonable confidence. According to the Supreme Court, no claim for damages can be dismissed only on the basis that the exact amount cannot be established. In this case the amount of damages recoverable must be established in view of all the facts in the case based on the principles of equity and proportionality of the infringement and the liability.

 
10. Is liability on a joint and several basis?

Liability for an antitrust infringement is imposed on each person to the extent they are guilty of the infringement.

In theory, a stand-alone action can be brought against several defendants at a time (joinder of parties) in the circumstances expressly provided by the procedural law, that is:

  • The matter at issue is the common rights and/or obligations of several defendants.

  • The rights and/or obligations of several claimants have a common basis.

  • The matter at issue involves similar rights and obligations.

However, in any case each defendant must be an independent party and may be held civilly liable only for those acts they have done.

Specifically, a claimant must prove the amount of losses resulting from the acts of a particular defendant rather than the total amount of losses.

It is up to the claimant alone to identify and prove the:

  • Antitrust infringement.

  • Damage done to a claimant.

  • Causal link between the defendant's actions.

  • Infringement of claimant's rights and legal interests.

  • Amount of losses (where these are claimed for compensation).

The court will only establish if their claims are reasonable without identifying the amount (limits) of the defendant's liability on its own. Where the court finds that the claimant's claims are unreasonable (for example, the damages claimed are unreasonable), such action is dismissed.

Indirect purchasers may seek damages from the cartel members if the direct causal link between the infringing party's wrong-doings and the claimant's damages is proved. It must not be the behavior of the party to the agreement that lead to the damages, but the cartel member actions.

 

Costs and timing

11. What are the recent trends in relation to the costs of bringing an action before the relevant courts/tribunals?

Stand-alone actions

Costs of an action include the payment of:

  • A state duty.

  • Counsel's and other attorneys' fees.

  • Experts' and specialists' fees.

  • Other documented expenses related to the proceedings (for example, DHL or postal expenses).

The attorneys' fees normally constitute most of the costs of an action. In addition, they are most difficult to recover in court. The procedural law does not regulate the procedure for quantification of the attorneys' fees recoverable from the opponent. The only requirement is that such fees will be reasonable. However, it is up to the court to decide on what is "reasonable".

Over the recent years, the attorneys' fees recoverable in court have been gradually increasing. The costs awarded will still vary depending on the regions of Russia.

However, the author is unaware of any judicial recoveries of attorneys' fees in the proceedings commenced in stand-alone antitrust infringement actions.

Follow-on actions

See above, Stand-alone actions.

 
12. What is the applicable principle regarding the apportionment of the costs of the action? Is there a "loser pays" approach to costs?

Stand-alone actions

The costs of an action are normally recovered from the losing party (Article 110, Russian Arbitration Procedural Code; Article 98, Russian Civil Procedural Code). However, the authors are unaware of recoveries of costs of an action under stand-alone antitrust infringement actions.

Follow-on actions

See above, Stand-alone actions.

 
13. Can parties insure against costs risk associated with an action?

Stand-alone actions

Russian law does not provide for insurance against costs risk associated with an action.

Follow-on actions

See above, Stand-alone actions.

 
14. Can a third party fund the costs of bringing an action?

Stand-alone actions

The procedural law does not restrict a third-party right to fund the costs of bringing an action. However, under the mandatory requirements of procedural codes, a state duty must be formally paid by the claimant (no matter where the funds come from).

Follow-on actions

See above, Stand-alone actions.

 
15. Can claimants assign their claim to a third party funder?

While the parties can be substituted where the parties are substituted in the main obligation, in this case the liable party at issue is a party infringing the antitrust law and, as a result, no substitution of parties applies to this type of action.

 
16. Can parties engage legal representation under either a "conditional" fee arrangement, or a "damages-based" fee arrangement?

The procedure for establishing the costs of legal representation (including the attorneys' fees) are not legislated. Therefore, parties can include any provisions in their legal assistance agreements.

However, regarding "conditional" fee arrangements, the Russian Constitutional Court advised that the parties to a legal assistance agreement "cannot make the payment of fees contingent upon taking of a particular decision: … a court decision may not act as a subject of someone' s civil rights, or a subject matter of any civil law agreement".

As a result, the conditional fee is rarely recovered as part of the costs of an action.

 
17. If it possible for a defendant to a claim to bring an application for security for costs?

Not applicable.

 
18. What is the current trend, if any, regarding the period of time from commencing an action to a subsequent first instance judgment by a competent body?

The period of time to a first instance judgment is up to three months for arbitrazh courts, and up to two months for general jurisdiction courts (Article 152, Russian Arbitration Procedural Code; Article 154, Russian Civil Procedural Code).

The Russian Arbitration Procedural Code provides for extension of this period for up to six months on the judge's reasoned statement due to complexity of the case or a large number of the parties involved.

 

Pre-trial applications and hearings

19. Where statements of case are lodged with the relevant court or tribunal, can third parties seek to obtain copies?

Parties that are not involved in the case must not have access to the case materials, including, among others:

  • Claims.

  • Responses.

  • Petitions.

  • Statements.

Only judicial acts are publicly available (for example, decisions and judgments are published on the court's website).

 
20. Can a claimant seek interim measures?

Stand-alone actions

Both the Russian Arbitration Procedural Code and the Russian Civil Procedural Code provide for interim measures, regardless of the type of dispute. Therefore, interim measures can be applied for in a stand-alone antitrust infringement action. A claimant may seek to compel the defendant not to stop deliveries of goods or not to comply with a non-regulatory legal act that the claimant believes to be anti-competitive.

Interim measures are granted where a failure to do so could render enforcement of a judicial act difficult or impossible, as well as in order to prevent material damage to the claimant.

Interim relief is granted in order to prevent damage or any other adverse effect.

The case law for private antitrust litigation is very scarce, and the authors are unaware of any interim applications filed in such litigations.

Follow-on actions

See above, Stand-alone actions.

 
21. Can a defendant seek to dispose of all or part of the action prior to a full trial?

Russian procedural law does not provide for either "striking out" all or part of a private action or disposing of the action prior to a full trial.

 
22. Can a defendant seek to stay an action (for example, pending the outcome of an investigation by a competent competition authority, or an appeal)?

Staying a claim

According to the Decree of the Plenum of the Russian Supreme Arbitrazh Court No. 30, 30 June 2008, arbitrazh courts are advised to adjourn (rather than to stay) the proceedings, where a claimant seeks for their rights to be protected in court and before the competitive authority at the same time.

The general jurisdiction court must stay the proceedings in an action, where such action cannot be tried pending the outcome of the administrative proceedings in another action.

The court must stay the proceedings in an action where it cannot be tried pending the outcome of another set of proceedings (Article 143, Russian Arbitration Procedural Code; Article 215, Russian Civil Procedural Code).

The authors believe that the private antitrust litigation must be stayed as the appeal from the competitive authority decision identifies whether there is a basis for a stand-alone action (that is, whether there has been an antitrust infringement).

A private antitrust litigation is also likely to be stayed, where an expert examination has been commissioned or a company engaged in the proceedings is under restructuring.

 
23. Can a party seek to have a specific issue (such as limitation) tried as a preliminary issue in advance of a full trial?

Not applicable.

 

Evidence and legal privilege

24. Are existing findings of fact and/or infringement in a decision or judgment of a competent authority or body binding in the context of an action?

Competition authority decisions

No infringement decision adopted by a competition authority will formally take precedent for judicial proceedings, except where such decision has been rendered valid by an effective arbitral award under the appeal of the decision.

Judgments

The findings of facts originating from another action are binding for the court where the same parties are involved in the new case brought by a new action.

 
25. What is the evidential status of findings of fact and/or infringement in a decision or judgment of a body in a third country?

The procedural law contains no provisions on the legal effect of foreign decisions or judgments on Russian judicial proceedings. Specifically, no such decision or judgment exempts the parties from an obligation to prove the facts of a current litigation in a Russian court.

As a result, foreign decisions or judgments must be qualified along with other evidence in the case.

 
26. If discovery is available, what is the general procedure for discovery, and what documents would need to be disclosed?

Russian law does not provide a particular procedure for discovery.

However, the parties to proceedings must disclose the evidence they rely on as the basis for their claims or defences to the other parties to the proceedings before the commencement of a court hearing or within the timelines specified by the court.

All evidence referred to by the parties to the proceedings must be disclosed to the other parties before commencement of a court hearing or within the timelines specified by the court.

A party to the proceedings can individually request all necessary documents from other parties, including the antitrust authorities. Where a party is not in a position to obtain documents individually, discovery may be petitioned for before the respective court. However, the petitioner must specify which facts having relevance to the action may be established by such evidence, and to name the reasons preventing them from obtaining the evidence.

The court must send copies of the evidence obtained to all parties in the proceedings.

Under national legislation there is no special procedure for obtaining confidential information in the court. The person participating in the case is entitled to obtain all documents he needs from other persons or authorities, including antitrust ones. The person can file a petition of discovery of documents to the court if impossible to obtain materials on his own. The person must explain what relevant circumstances will be revealed from required documents and materials.

 
27. Can a party oppose the provision of any documents not in their possession or control?

Where a party fails to submit evidence requested by an arbitrazh court he must notify the court and specify the reasons for such failure. Where the court finds the reasons insufficient, the party will be fined.

According to existing case law, a trade secret in the requested documents will not constitute a sufficient reason for non-submittal of evidence in the court.

As it stands, the Russian procedural law does not provide for any legal route to "classify" confidential documents for the other parties to an action.

However, the parties can always claim that the requested evidence is irrelevant to the case. Provision of evidence may be opposed either orally or in writing.

 
28. Can parties rely on legal privilege to withhold documents from inspection?

In terms of the competitive authority powers, the law expressly provides for a duty to submit all documents and information, including those constituting a trade secret, on their request.

 

Alternative dispute resolution

29. Can the parties seek to resolve the action through alternative dispute resolution?

The parties may submit a stand-alone action to an arbitration tribunal. The parties may agree to submit a stand-alone action to an arbitration tribunal at any time prior to a final decision made by the court. There is an obligation to engage in alternative dispute resolution in good faith.

The court will refuse to submit an action to an arbitral tribunal, if it considers that the agreement to do so is invalid, ineffective or unenforceable.

The advantages of engaging into dispute resolution by arbitral tribunals include flexible dispute resolution, arbitrators' strong qualifications in particular fields. The disadvantages include higher costs and potential difficulties in further enforcement of arbitral awards.

 

Settlement or discontinuance of an action

30. What are the tactical advantages and disadvantages associated with making an offer of settlement?

Stand-alone actions

Both stand-alone and follow-on actions have the same advantages and disadvantages.

Advantages. The advantages include potential settlements that would be consistent with the both parties' respective interests.

However, each settlement is individual and provides for specific terms contingent upon the particular findings of fact, therefore, there seem to be no practical value in addressing the general advantages and disadvantages of settlements.

Disadvantages. The disadvantages include failing to obtain the outcome the claimant has been seeking.

Follow-on actions

See above, Stand-alone actions.

 
31. Is permission required from the relevant court or tribunal to settle any action prior to or during trial?

A settlement must be approved by a court decision. The court will not approve a settlement, which does not conform to the law or violates other parties' rights or legal interests.

In case of a settlement, the costs of an action will be apportioned between the parties according to the general principles.

After a settlement has been entered into, it will be approved by a court decision. If either party fails to further comply with the settlement, the court may issue a writ of execution for enforcement thereof.

The procedural law provides no restriction as to entering into a settlement agreement in relation to collective actions. All the above general rules also apply to collective actions.

 

Proceedings at trial

32. Are actions heard by a jury?

Only professional judges hear action in arbitrazh courts and general jurisdiction courts.

 
33. How is confidential information protected during the course of proceedings?

The Russian procedural law does not provide for any remedies restricting confidential documents from the parties to an action. The court may announce a closed hearing as petitioned by a party, in which case non-parties to the action will be not allowed to attend the hearings. However, the parties must still have full access to all the case files.

Under Russian law, confidential information can be protected from all third persons (not the parties to the case). However, the participants have full access to all documents of the case.

 
34. What evidence is admissible?

Evidence from criminal proceedings may be used by an arbitrazh court or a general jurisdiction court in the proceedings over a private antitrust action.

In addition, a criminal sentence will be binding on an arbitrazh court or a general jurisdiction court as related to whether certain acts occurred and by whom they were done.

Witness evidence is admissible. Witnesses can either testify orally in court or give written statements. They may also be cross-examined, although it is not legislated.

Experts may be engaged in proceedings where the court has commissioned an expert examination, or where an expert acts as a witness of fact (in which case no expert status will be available).

The parties to an action are entitled to ask questions to the expert. The case law in relation to private action has seen the court commissioning an expert at the parties' initiative in order to quantify the damage done through the defendant's anti-competitive acts. Specifically, an expert was once commissioned with the quantifying of the claimant's loss of profit through the defendant's unreasonable refusal to supply raw materials due to its abuse of a dominant position. Based on the materials submitted, the expert quantified the claimant's income from the manufacturing and selling of final products, where the defendant has not refused to deliver raw materials in the relevant period of time. The claims were valued at over EUR1.5 million.

 

Available defences

35. Is a "passing-on" defence available?

In response to an action brought, the defendant can refer to the victim having shifted the adverse financial consequences or any of them to their own purchasers. However, even if it is proved that the claimant has shifted all of the cost to their counter-parties (escalated their own selling prices), this does not mean the claimant has incurred no losses, and namely from the decreased volume of their own sales.

No successful defences have been identified to date.

 
36. Are any other defences available?

Defendants may use any defences available. As for a parent company, under Russian law, companies within a group are deemed independent corporate entities and be liable only for those acts that have been done by them. To that end, a parent company is not responsible for the acts of its subsidiary, where anti-competitive acts were only done by the subsidiary. However, it is entirely possible that the actions of a subsidiary are proved to have been contingent on its parent company's instruction in exercise of the corporate control, and this instruction to have led to an antitrust infringement.

 

Available remedies

37. Are damages available, and if so, on what basis are damages awarded?

Damages

A claimant is entitled to seek for damages resulting from the defendant's antitrust infringement.

According to the Civil Code, damages may be either compensatory damages or a loss of profit. However, only proven damages are recoverable.

See Question 2 for the facts to be proven for compensation of damages.

Public action (namely, administrative fines and recovery of unlawful incomes to the revenue) is not relevant to the award of damages under a stand-alone action as compensation of damages is a compensatory action. Compensatory damages are available.

Where an infringing party has achieved profits as a result of the infringement, the non-infringing party is entitled to seek for compensation of the loss of profit amounting to at least such profits, along with other damages. No exemplary damages are available.

Interest

No interest is available on any damages awarded.

 
38. How are damages quantified?

The law does not provide for any damage quantification methods.

However, based on the successful cases and the best Western practices, the Financial Antimonopoly Service (FAS) and the Competition Support Association have jointly drafted guidelines providing for a non-exhaustive list of damage quantification methods, including:

  • Comparative economic analysis. This provides for comparing the key market features and indicators actually in place at the time of infringement with those prior to the commencement and/or after the termination of an infringement on the market at issue or on a comparable market.

  • Financial and economic modelling. This uses economic methods to identify a speculative price or other indicators that would have had place with no infringement in a comparable period (that is, "but for" the infringement).

When assessing the amount claimed, arbitrazh courts apply the principle of reasonable reliability of the amount of damages provided by the Russian Supreme Court.

The claimant may justify the amount of damages by any legal means adducing any evidence, including witness evidence. All evidence must be examined by the court to the same extent, and no piece of evidence will prevail over the others.

 
39. Are any other remedies available?

In addition to compensation for damages, a claimant may seek to compel the defendant to enter into an agreement, amend the agreement and so on

 

Appeals

40. Is it possible to appeal the judgment of the relevant court or tribunal?

A first-instance judgment in a stand-alone action can be appealed in an appellate court. Other remedies available include cassational and review appealing.

An appeal may be made on the basis of any of the following:

  • Failure to identify all of the facts relevant to the case.

  • Failure to prove the facts relevant to the case that the court took as findings of fact.

  • Inconsistencies between the conclusions made in the judgment and the findings of fact.

  • Failure to apply or to properly apply the rules of substantive law or the rules of procedural law.

 

Reforms

41. Are there any reforms proposed or due regarding the legal regime applicable to private antitrust actions?

The authors are unaware of any reforms proposed or due regarding the legal regime applicable to private antitrust actions.

 

Online resources

W en.fas.gov.ru

Description. Official website of the Federal Antimonopoly Service of Russia with a base body of the FAS and court decisions and major legal acts covering the antitrust law issues. On the official website of the Federal Antimonopoly Service of Russia there is an opportunity to switch to English (en.fas.gov.ru).



Contributor profiles

Gavrilov Denis, Counsel, Ph.D.

Egorov Puginsky Afanasiev & Partners

T +7 495 935 8010
F +7 495 935 8011
E denis_gavrilov@epam.ru
W www.epam.ru

Professional qualifications. Russia

Areas of practice. Competition law.

Bolshakov Evgeny, Counsel

Egorov Puginsky Afanasiev & Partners

T +7 495 935 8010
F +7 495 935 8011
E denis_gavrilov@epam.ru
W www.epam.ru

Professional qualifications. Russia

Areas of practice. Competition law.

Krychkova Maria, Associate

Egorov Puginsky Afanasiev & Partners

T +7 495 935 8010
F +7 495 935 8011
E maria_krychkova@epam.ru
W www.epam.ru

Professional qualifications. Russia

Areas of practice. Competition law.

Gavrilov Igor, Junior Associate

Egorov Puginsky Afanasiev & Partners

T +7 495 935 8010
F +7 495 935 8011
E igor_gavrilov@epam.ru
W www.epam.ru

Professional qualifications. Russia

Areas of practice. Competition law.


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