Analytics Legal analytics Energy

28
December

Failure of the courts to use statutory instruments when resolving disputes – interpretations from the Russian Federation Constitutional Court

By virtue of Section 2, Article 13 in the Russian Federation Arbitration Procedural Code, an arbitration court that has, while reviewing a court case, established that there is a discrepancy between one statutory instrument and another statutory instrument that possesses greater legal validity, including by publishing it and exceeding the scope of authority, adopts the court order that corresponds to the statutory instrument that possesses greater legal validity. This discretionary authority on the part of the arbitration court is aimed toward protecting the interests of the parties involved in litigation, including in those instances where contesting the statutory instrument is impossible under the rules of the administrative proceedings because it was rescinded, either in accordance with judicial or administrative procedures, or because it has expired.

Evgeniy Rodin, Partner, Head of Energy practice
22
June

Using municipal district heating networks to supply heat – is unjust enrichment occurring?

Currently, taking into account the normalization of the heat supply market, the relations governing the supply of heat to end users are, on the whole, fairly regulated and understandable for all participants in the market. One important feature of the market’s statutory regulation is the prevalence of peremptory legal norms, including during the process of defining parties’ financial obligations.

Evgeniy Rodin, Partner, Head of Energy practice
3
February

The Russian Supreme Court affirmed the possibility of paying back a debt in installment payments

In accordance with article 37 of the Federal Law No. 299-FZ, dated October 2nd, 2007 and entitled “On enforcement proceedings”, an execution creditor, debtor, or bailiff/court officer is entitled to request that the court, other authority, or government official that issues a writ of execution grant a delay or rescheduling for the enforcement of the court order or for the ruling made by another authority or government official, and also to request changes in enforcement procedures and methods.

Evgeniy Rodin, Partner, Head of Energy practice
18
November

The powers of the court of cassation: assessment of the law, lack of evidence

Can a court of cassation facilitate the implementation of procedural law (for example, the right to present evidence, objections to the opponent’s arguments, etc.) by means of sending a case for a new trial in the lower court? An answer to this question was obtained after reviewing the decision of the Supreme Court of the Russian Federation on case No. A76-2453/2015.

Evgeniy Rodin, Partner, Head of Energy practice
24
June

Overturning the enforcement of a judgment: is it possible to collect interest?

According to Part 1 of Article 325 of the Arbitration Procedure Code, if the enforcement of an act is repealed, in whole or in part, and a new judicial act adopted, on a full or partial denial of the claim, or the claim is left without consideration, or the proceedings were terminated, the defendant is returned all that was recovered from him in favour of the plaintiff on the repealed, or modified in the relevant part, judicial act. In the application of the rule of law, courts have said there were issues related to the accrual of interest for the use of funds in the case when these funds were transferred to the claimant, after the entry into force of the judicial act, but later the judicial act was abolished through a cassation appeal. Answers to these questions were given by the court when resolving a particular dispute.

Alexander Sitnikov, Managing partner
Evgeniy Rodin, Partner, Head of Energy practice
13
April

Changes to the APC RF were made at the initiative of the Supreme Court of the Russian Federation

On 29 October 2014, the Supreme Court of the Russian Federation introduced to the State Duma a draft federal bill No. 638178-6 “On Amendments to the Arbitration Procedure Code of the Russian Federation and in the second part of the Tax Code of the Russian Federation”. The bill not only makes significant changes to the existing provisions of the Arbitration Procedure Code, but also offers an innovation, previously unknown in arbitration procedural law, the institute of summary procedure.

Alexander Sitnikov, Managing partner
Evgeniy Rodin, Partner, Head of Energy practice
9
October

The actual owner of the housing facilities should be responsible for paying for electricity

In Case No. A73-6824/2014, the Supreme Court considered a non-standard situation in which the supplier of last resort filed a claim for the recovery of electrical energy debts directly against the owner of the property, referring to the fact that the transactions involving the transfer of the said property, via a lease to a third party, had been recognized by the courts as invalid.

Alexander Sitnikov, Managing partner
Evgeniy Rodin, Partner, Head of Energy practice
16
July

The tri-zone version of a tariff does not violate the rights of the population

Ensuring uniform electric energy consumption by the population, taking into account the peak loads on the power grid in the mornings and evenings, as well as its significant reduction at night-time is one of the tasks of the state policy in the field of energy efficiency. (This legal update is available only in Russian)

Alexander Sitnikov, Managing partner
Evgeniy Rodin, Partner, Head of Energy practice
13
May

Abuse of rights in making calculations between the network organizations – innovation of the Supreme Court

Decision of the RF Supreme Court dated 08.04.2015 No. 307-ES14-4622 on Case No. A26-6783/2013, concerning a dispute between the Prionezhsky Grid Company OJSC and Petrozavodsk Utilities JSC. (This legal update is available only in Russian)

Alexander Sitnikov, Managing partner
Evgeniy Rodin, Partner, Head of Energy practice
19
March

Network organizations: a new “eligibility criteria” for doing business

On 12 March 2015, Decree No. 184 of the Government of the RF entered into force, dated 28.02.2015 “On the allocation of owners of transmission facilities to the territorial network organizations”, adopted in the development of changes made to the Federal Law dated 29.12.2014, No. 466-FZ in Article 2 of the Federal Law dated 26.03.2003 No. 35-FZ “On the electric power industry” in the part of the concept of a “territorial network organization” (TNO). (This legal update is available only in Russian)

Alexander Sitnikov, Managing partner
Evgeniy Rodin, Partner, Head of Energy practice
Yuriy Tatarinov, Counsel, Energy Practice
20
August

Settlement payments between district network operators - choosing a rate option

Legislation governing the regulation of rates in the electric power industry proceeds from the presumption that settlement payments for electricity transmission services should be made under conditions that are commercially justified, and should not lead to market participants taking in insufficient gross revenues. Despite the fact that the behavior patterns of the parties involved is subject to excessive regulation, in practice controversial legal situations arise that can require interpretation by the higher courts. In case No. А73-947/2016, the Russian Federation Supreme Court gave explanations on certain rules that affect the ability of district network operators to choose the charges that determine the retail rates for the payment of services related to electricity transmission. Let's examine in more detail the circumstances surrounding the arbitration case, the positions taken by the parties involved, and the findings made by the Russian Federation Supreme Court during the cassation review procedure.

Evgeniy Rodin, Partner, Head of Energy practice
30
May

Executing government contracts for the supply of electric power – the Russian Federation Supreme Court explained what legal alternative to use for fines

Regular failure to pay for electric power that has been delivered is a truly critical issue for the development of the electric power market. Consumers that refuse fulfill their obligations to pay on time for this energy resource are purchasing it on credit at the expense of the energy provider.

Evgeniy Rodin, Partner, Head of Energy practice
23
December

What can be considered as the real time limit for an appeal of a court decision?

In practice, cases often arise where the arbitration court of the first instance indicates an incorrect term for appeal against a ruling, which leads to a refusal of an applicant’s appeal, due to missing of the deadline to appeal.

Evgeniy Rodin, Partner, Head of Energy practice
17
November

Eligibility Criteria: new rules for network organizations

On 14.10.2016, the Government Decree No. 989, dated 30.09.2016, “On amendments to some acts of the Russian Federation on the functioning of territorial grid companies” came into force, amending market regulation rules for the provision of electric power transmission services by territorial network organizations

Evgeniy Rodin, Partner, Head of Energy practice
Yuriy Tatarinov, Counsel, Energy Practice
17
May

Legal or contractual penalty – dispute resolved by the Supreme Court of the Russian Federation

The Civil Code establishes two types of penalties for untimely performance of obligations – contractual and legal.In practice, there appear disputes related to the different interpretations of the legality of reducing the size of legal penalties, agreed upon by parties to an agreement. According to one position, such a reduction is possible because of the discretionary nature of civil legislation. The second opinion holds that the legal penalty is a minimum amount due for the delay in the fulfilment of obligation, and therefore its reduction is not possible. Recently, the Supreme Court has eliminated the legal uncertainty in this matter when considering a specific dispute.

Alexander Sitnikov, Managing partner
Evgeniy Rodin, Partner, Head of Energy practice
16
February

Retail Generation: guaranteeing supplier should pay for electricity not demanded by buyers

On the right of retail electric power producers to recover from guaranteeing suppliers of unjust enrichment in the form of revenues received by the network from “surplus” electricity.

Alexander Sitnikov, Managing partner
Evgeniy Rodin, Partner, Head of Energy practice
Yuriy Tatarinov, Counsel, Energy Practice
27
August

The adoption of VAT deductions in respect of compensation for the loss of electricity. Decision of the Supreme Court dated 29.07.2015

On 29 July 2015, the Judicial Panel on Economic Disputes of the RF Supreme Court issued a ruling on Case No. A51-5267/2013 and supported the position of the taxpayer – Artemovskaya Power Grid LLC, in a dispute with the tax authority about the possibility of making VAT deductions from the electricity purchased to compensate for losses. (This legal update is available only in Russian)

Yuriy Ivanov, Head of Tax practice
2
July

“Broadcast” tariff options from the consumer to the network organization

Decision of the RF Supreme Court dated 19.06.2015 No. 305-ES15-2617 on Case No. A40-8648/2014, concerning the dispute between Network and Sales companies for the recovery of debts for services of electric power transmission and penalties for violation of terms of payment. (This legal update is available only in Russian)

Alexander Sitnikov, Managing partner
Evgeniy Rodin, Partner, Head of Energy practice
20
April

Challenging the recommendations of the Federal Antimonopoly Service of Russia – the novel amendments of the Constitutional Court

On 31 March 2015, the Constitutional Court of the Russian Federation proclaimed Decree No. 6-P “On the case reviewing the constitutionality of Paragraph 1 of Part 4 of Article 2 of the Federal Constitutional Law – On the RF Supreme Court, and paragraph of the third Subparagraph 1 of Paragraph 1 of Article 342 of the Tax Code of the Russian Federation concerning the complaint of the Gazprom Neft Open Joint Stock Company”.

Alexander Sitnikov, Managing partner
Evgeniy Rodin, Partner, Head of Energy practice
17
March

Price changes involving technological connection contracts

The Supreme Court upheld the authority of local regulators to issue regulations on price changes involving technological connection agreements. (This legal update is available only in Russian)

Alexander Sitnikov, Managing partner
Evgeniy Rodin, Partner, Head of Energy practice
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