BM Bank moved the dispute with the Italian counterparty to Russia

The Arbitration Court of the Moscow District supported BM-Bank (a subsidiary of VTB), which demanded to ban the proceedings with the Italian Rizzani de Eccher Societa per azioni in foreign arbitration. According to the cassation decision of September 26, now the dispute between the parties must be transferred to the Russian court.

The conflict between the Russian bank and the Italian company is related to the construction of the VTB Arena Park multifunctional zone, the general contractor of which in 2011 was Rizzani under an agreement with Dynamo Management Company JSC (subsequently merged with BM Bank). There was a clause in the contract that all disputes would be considered by arbitration at the International Chamber of Commerce (ICC Court). In this regard, it was there that the contractor applied in August 2021, demanding 659 million rubles from the bank. for the work done.

Meanwhile, in 2014 and 2022, the EU imposed sanctions on BM-Bank, which is why the latter in March 2022 filed an application with the Moscow Arbitration Court to ban proceedings abroad and transfer it to Russian jurisdiction (Article 248.2 Arbitration Procedure Code of the Russian Federation). The bank stated that the restrictions imposed do not allow it to obtain full judicial protection, in particular, it cannot attract “qualified international lawyers”, pay arbitration fees due to the ban on transfers via SWIFT and participate in meetings in person due to closed air borders with the EU . Rizzani countered that the applicant could involve Russian lawyers and make payments through banks that were not disconnected from SWIFT, and that the proceedings in the ICC court were impartial and could be attended online.

The Moscow Arbitration Court refused the bank, considering that it was abusing the right and there were no real restrictions for judicial protection. The lawyers interviewed by Kommersant considered this decision to be quite balanced and justified (see Kommersant dated August 22). However, the cassation appeal of BM-Bank was satisfied. The district cassation ruled that the restrictions “actually deprive companies of the opportunity to defend their rights in the courts of foreign countries” and the mere fact of the imposition of sanctions “is sufficient to conclude that such a person’s access to justice is restricted.” The decision of the cassation corresponds to the position of the Supreme Court of the Russian Federation of December 2021 in the Uraltransmash case.

Ekaterina Volkova