Recipe for Failure When Seeking to Set Aside an Arbitral Award:
1️⃣ Hope that the arbitrators will figure out on their own to request evidence;
2️⃣ File to set aside the award;
3️⃣ Voluntarily comply with the award on your own while the set-aside proceedings are ongoing

LLC "Sfera" (the applicant) filed a petition with the Commercial Court of the city of Moscow to set aside an award rendered by the Arbitral Institution at the Russian Union of Mechanical Engineers. The award had recovered from JSC "Tupolev" (the interested party) in favor of the applicant: RUB 20,000 in damages, RUB 1,613.25 in arbitration fees, and RUB 20,000 in legal representative costs — with the remainder of the claim dismissed.

Among other things, the applicant argued that it had been deprived of the right to a fair hearing because the arbitral tribunal had not requested necessary evidence on its own.

After examining the applicant's arguments, the Commercial Court of the city of Moscow denied the petition and upheld the arbitral award.

Referring to the arbitral institution's rules, the court stated that the arbitral tribunal has the right, but not the obligation, to invite the parties to submit additional evidence; nor is it required to obtain evidence on its own initiative if the parties themselves have not shown due diligence. The arbitral case file contained no evidence that the applicant had requested the tribunal to obtain evidence or to hold an oral hearing for that purpose.

On the contrary, the applicant neither claimed that it was unable to obtain the additional materials independently nor asked the arbitral tribunal for assistance in securing them.

The Commercial Court of the city of Moscow noted that denying a claim for lack of proof does not violate the right to judicial protection — it is simply the result of the allocation of the burden of proof, which is consistent with the principles of adversarial proceedings and party autonomy.

The court specifically emphasized that the arbitral tribunal had examined the submitted documents, assessed them, and provided specific reasons why they were deemed insufficient.

The court also took into account that the interested party had voluntarily complied with the award during the set-aside proceedings. Therefore, the court concluded that the applicant's rights in the satisfied portion had already been restored, and challenging the award as to the remainder effectively sought a substantive review of the tribunal's findings — which is impermissible.

📎 The full text of the judicial act is available here.

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Original see here