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“When the unfair behavior of the opponent in the process can be used against him” — article by Arltan Tserenov and Farrukh Sarimsokov for Yurist Kompanii

In the article: five situations when you can refer to the procedural estoppel and deprive the opponent of the right to object.

The opponent behaves inconsistently in the trial, changes his position from session to session, and artificially increases the time for consideration. Such actions are grounds to impose court costs on him and deprive him of the right to object. To achieve this, ask the court to apply estoppel [1]. When the court hears your arguments and restricts the procedural rights of your opponent, you will learn from the article by Arltan Tserenov, junior lawyer of Prime Advice and Farrukh Sarimsokov for Yurist Kompanii.

NB For the first time, the Court referred to the principle of procedural estoppel when it indicated that it was impossible to make additional claims if the settlement agreement had been approved earlier. Now this practice is well established at the level of the SAC (the decision of the SAC Presidium of 22.03.2011 in case no. A60-62482/2009, the decision of the Supreme Court of 01.12.2015 in case no. A40-105443/2013).

Takes a contradictory position and arbitrarily changes it during the process

The opponent demands to conduct an expert examination after objecting to it, asks to change the questions in the re-examination, or claims that the expert is incompetent only after he has learned the results of the first one — this behavior shows that he is abusing procedural rights. Another trick of the opponent-declares in the verification instance about the consideration of the case by the court of the first illegal composition, although he did not previously declare a recusal and presented a position on the merits [2]. If you see such behavior, refer to estoppel and say that the opponent is behaving inconsistently and only delays the proceedings by his actions [3]. To prove that the opponent has changed his behavior, read the case materials and draw the court's attention to those documents that will show the opponent's previous position. For example, refer to the minutes of the meeting.

Declares that he did not receive a claim or a court notice, only when appealing

When the opponent in the appeal or cassation demands to leave the case without consideration due to non-compliance with the pre-trial procedure, although he did not declare this in the first instance, in the response to the complaint, refer to the abuse of procedural rights. If a person actively participated in the case, presented evidence, sent representatives, but lost the dispute, the judges will consider that he is only trying to take advantage of a loophole at the appeal stage.

Refer to the active participation of the opponent in the case below if he claims that he was not notified of the trial. Additionally, check whether he should have known about the case if he had behaved in good faith. For example, the courts rejected the application of the founder of a bankrupt company that he was not notified of the time and place of the court session. However, as the sole participant, he could not have been unaware of the bankruptcy procedure, had the opportunity and interest to track the progress of the case and all separate disputes, and therefore violated the obligation to use procedural rights in good faith [4].


1 Part 2 of Article 41 of the Administrative codex

2 Ruling of the Supreme Court of 24.03.2021 in case no. A43-8378/2018

3 Decision of the Central District Administrative Court of 22.10.2020 on case no. A23-4182/2018

4 Decision of the Administrative Court of the East Siberian District of 21.07.2020 on case no. A10-1853/2017

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