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Proving and Evidence in Disputes Arising out of Energy Law Relations
 
PIIS231243500022167-1-1
DOI10.18572/2410-4396-2019-4-72-75
Publication type Article
Status Published
Authors
Elena A. Nakhova 
Affiliation: All-Russian State University of Justice
Address: Russian Federation, Saint Petersburg
Journal nameEnergy law forum
EditionIssue 4
Pages72-75
Abstract

V.V. Romanova justly notes that legal support of the balance of interests of energy market participants is one of the key tasks of energy law and underlines that the fundamental principles of energy law can be implemented only with a relevant legal support in place offering an efficient protection of participant’s rights and property interests. Public and non-public jurisdictional bodies offer protection of rights violated in the energy sector. Among public jurisdictional bodies, one can distinguish regular courts, considering cases in civil and administrative legal proceedings, and commercial arbitration courts considering cases using the Arbitration Procedure Code of the Russian Federation (APC RF). The non-public dispute resolution bodies include arbitration courts and international commercial arbitration bodies. The article analyses the use of certain means of proving in particular dispute categories in the sphere of energy and characterizes generally identifying the subject of proving, distribution of the burden of proving, and evidence required in such disputes. The study takes into account the judicial practice of energy dispute resolution.

Keywordsenergy law, energy disputes, legal support of protection of interests of energy market participants, proving and evidence
Received22.08.2019
Publication date01.12.2019
Number of characters10155
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Table of contents

Written evidence in energy disputes
1 The subject of legal regulation of energy law includes a range of public law and private law relations in the sphere of energy arising, in particular, in connection with energy resources production, supply, transportation, and energy facilities construction [1]. Considering issues of legal support of protection of interests of energy market participants, V.V. Romanova distinguishes disputes arising out of private law relations due to controversies between parties of these relations in the course of energy resources search, extraction, supply, transportation, transfer, and storage, the technological connection of energy receivers to energy networks, and energy facilities construction, as well as disputes within public law relations dealing mainly with controversies with competent authorities related to application of rules of antimonopoly laws, tariff regulation, industrial safety ensuring, and laws on subsoil use [2].
2 V.V. Romanova justly notes that legal support of the balance of interests of energy market participants is one of the key tasks of energy law and underlines that the fundamental principles of energy law can be implemented only with a relevant legal support in place offering an efficient protection of participant’s rights and property interests. [3]. Public and non-public jurisdictional bodies offer protection of rights violated in the energy sector. Among public jurisdictional bodies, one can distinguish regular courts, considering cases in civil and administrative legal proceedings, and commercial arbitration courts considering cases using the Arbitration Procedure Code of the Russian Federation (APC RF). The non-public dispute resolution bodies include arbitration courts and the international commercial arbitration bodies. Depending of the jurisdictional body used for the protection of a right, proving and evidence are governed by: Article 6 of the Civil Procedure Code of the Russian Federation (CPC RF), Article 7 of the APC RF, Articles 25–30 of the Law On Commercial Arbitration (Arbitration Proceedings) in the Russian Federation, and Articles 23–27 of the Law On International Commercial Arbitration.
3 In energy disputes, explanations by the parties of the dispute, third parties, and other persons involved in the case, written evidence and exhibits, professional advice in arbitration proceedings, and expert opinions are the most often used means of proving.
4

Explanations by persons involved in a case
5 The said persons may give their explanations to the court orally or in writing. M.K. Treushnikov points out that parties’ explanations are structured in a certain way and “in addition to giving information and facts (i.e. evidence) can contain expressions of will, motives, and arguments used by either party to interpret the actual circumstances to their benefit, as well as expression of emotions, moods, and judgements regarding the legal category of the legal relations” [4]. While information on facts only has value as evidence. The court takes into account the consistency, coherence, clarity, and reasonableness of the explanations, and they are evaluated together with other evidence in entirety. The recognition of a circumstance should comply with law and should not infringe the rights of other persons [5]. The legal procedure regarding explanations by the persons involved in a case is established by Articles 68, 174 of the CPC RF, Articles 81, 162 of the APC RF, and Articles 68, 159 of the Code of Administrative Court Procedure of the Russian Federation (CACP RF). Some categories of energy disputes require the court to make the award only based on the entirety of the explanations by the parties and other persons involved in the case, as well as the written evidence; such categories include, for example, administrative cases on challenging regulations in the sphere of energy. Ruling on Appeal No. АПЛ17-44 of the Appeal Collegium of the Supreme Court of the Russian Federation dd. April 6, 2017 can serve as an example.
6

Written evidence in energy disputes
7 Procedure codes define written evidence in the form of a list, which includes various statements containing information on the facts of the subject of proving and executed according to the statutory procedure allowing verification of the document’s reliability. Within the meaning of the current legislation and judicial practice, electronic evidence belongs to written evidence. The legal procedure regarding written evidence is established in Article 71, 72, 181–182 of the CPC RF, Article 75, 78 of the APC RF, and Articles 70, 71, 74 of the CACP RF.
8 When considering energy disputes, acceptable written evidence include: effective judicial acts ascertaining the prejudicialness of certain circumstances [6], energy supply agreements and other agreements, for example, technological connection ones [7]; disagreement reconciliation memorandums, VAT-invoices, detailed electricity consumption statements, electricity cost calculations (recalculations) [8], requests for technological connection to power grids [9], etc. Thus, when considering a case, the lower-instance “courts failed to verify whether the defendant’s calculations were lawful. Particularly, the company argued that the power grid company when calculating the cost of the services provided to the claimant used the stated power instead of the actual one. The defendant did not disprove that circumstance”. The said circumstances lead to the reversal of the judicial acts [10].

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8. Ruling of the Supreme Court of the Russian Federation No. 304-ЭС17-17401 in Case No. А03-6835/2016 dd. November 24, 2017. URL: http://ras.arbitr.ru/  (Определение Верховного Суда РФ от 24.11.2017 No. 304-ЭС17-17401 по делу No. А03-6835/2016. URL: http://ras.arbitr.ru/). 
9. Judgement of the Thirteen Commercial Arbitration Court of Appeal in Case No. А56-66835/2013 dd. June 2, 2014. URL: http://ras.arbitr.ru/ 
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12. Award of the Sverdlovsk Region Commercial Court in Case No. А60-32237/2016 dd. December 4, 2017. URL: http://ras.  arbitr.ru/
13. Award of the Yaroslavl Region Commercial Court in Case No. А82-14216/2016 dd. January 26, 2018. URL: http://ras.  arbitr.ru/
14. Ruling of the Administrative Cases Collegium of the Supreme Court of the Russian Federation in Case 1АПГ16-3 dd. May 26, 2016. URL: http://ras.arbitr.ru/ 
15. Ruling on Appeal of the Voronezh Region Court No. 33-2827 dd. May 20, 2014. URL: http://ras.arbitr.ru/ 
16. Ruling of the Economic Dispute Collegium of the Supreme Court of the Russian Federation No. 305-ЭС15-8748 in Case No. А40-53908/2014 dd. October 26, 2015. URL: http://ras.arbitr.ru/

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