I, Karina Duvall, declare under penalty of perjury under the laws of the United States of America that the following is true and correct.
1. I submit this declaration in support of Plaintiff’s opposition to Defendant’s motion to dismiss the Complaint.
2. I am an attorney licensed to practice law in the Russian Federation and am an expert in Russian law. I am fluent in Russian and English and regularly appear to testify on Russian law in U.S. courts.
3. I have reviewed the Agreement that is the subject of this litigation. I have also reviewed other materials relevant to this lawsuit and am generally familiar with the subject matter thereof.
4. Article 3 of the Civil Procedure Code of the Russian Federation (RF) establishes that an aggrieved person has the right to apply to a court, in accordance with the civil procedure law, for the purpose of contesting violations of or challenges to his rights, liberties, or lawful interests. The existence of violated or challenged rights, liberties or lawful interests is a necessary and sufficient condition of any such application to the court.
5. It is my opinion that, from the point of view of the law of the Russian Federation – in particular, Article 3 of the RF Civil Procedure Code – Section 2 of the Agreement is an attempt to restrict the right of the Plaintiff to judicial protection, and is thus, invalid and unenforceable. Procedurally, to the extent that Section 2 is a contractual term restricting Plaintiff’s right to apply to a court for relief, it is not enforceable.
6. Substantively, to the extent that Section 2 is a contractual term preventing Plaintiff, by itself, from obtaining ultimate relief from a court, it is not enforceable. Specifically, in the present situation, where I understand that Defendant has made Plaintiff’s compliance with Section 4 impossible, a Russian court cannot deny ultimate relief on the merits based solely on Plaintiff’s non-compliance with the terms of Section 3 without violating his right to judicial protection guaranteed by Article 3 of the RF Civil Procedure Code.
7. Further, Section 6 of the Agreement cannot be used to deny relief to Plaintiff. From a procedural standpoint, the arguments applicable to the unenforceability of Section 3 apply here as well.
8. Substantively, plaintiff’s non-compliance with Section 6 cannot be used to deny him ultimate relief under the Agreement, because it is not, under the RF Civil Code, an “essential” or “material” provision of the Agreement whose breach may result in such an outcome. Article 432 of the RF Civil Code provides that “material” provisions are those “dealing with the object of the contract, the terms, defined as essential or indispensable for the given kind of contracts in the law or in the other legal acts, and also all the terms, about which, by the statement of one of the parties, an accord shall be reached.” Section 6, by its language, does not appear to contain any such terms. Therefore, Plaintiff’s non-compliance with Section 6 cannot be used to deny him relief under the Agreement.
9. However, the invalidity or unenforceability of a part of the Agreement does not affect the validity of other parts thereof (see Articles 180, 431.1. of the RF Civil Code).
10. Certainly, a Russian court would not have the power to grant the relief apparently sought by Defendant in this matter by dismissing suit on the basis of his alleged non-compliance with Section 4 or Section 6. To be sure, a Russian court has the power to reject a complaint solely on procedural grounds, without going into its merits, as per Article 134 of the RF Civil Procedure Code. However, such grounds are limited to those listed in Article 134 of the RF Civil Procedure Code, and do not include a failure to comply with a contractual condition precedent. The grounds can be paraphrased and summarized as: the complaint is subject to consideration and resolution via another judicial procedure (1); the complaint demands the defence of rights, liberties or lawful interests by a person who lacks standing to seek such relief (2); and there is a pre-existing enforceable judicial decision, or an arbitral decision, covering the parties’ dispute (3).