When is the pre-trial order of dispute settlement in the arbitration process mandatory?
Arbitration and Procedural Legislation of the Russian Federationcontains norms that in many cases oblige the parties to economic disputes to initiate pre-trial resolution of the disputes that have arisen. This procedure has quite a few nuances, due to the specific features of the legal relationship, as well as the specifics of inter-corporate interaction of enterprises. What are they? In what cases is the pre-trial settlement of arbitration disputes necessarily due to the requirements of the law?
What is the essence of the pre-judicial order of settling disputes between firms?
Pre-trial settlement of the dispute inarbitration process involves the use by the parties, that is, business entities, of an exchange mechanism for claims that are not part of the immediate judicial review of the claim. Therefore, the order in question is sometimes called a claim order. If, within the pre-trial procedure, the parties did not reach a compromise, the appeal is already made to the arbitration court.
Is it mandatory to apply pre-trial order in arbitration disputes?
Previously, pre-trial review of the differences couldinitiated by a party to legal relations, which felt a violation of their rights in the interaction with the counterparty, at her request. Now the pre-trial procedure for resolving a dispute in the arbitration process is generally required if differences arise within the framework of civil legal relations. That is, before going to court with a statement, the party must send a claim to its counterparty. The main source of law, which contains this provision - the AIC RF.
Treatment of an economic entity in a competentthe body that conducts arbitration cases can be exercised only after 30 days from the date when the counterparty was directed to the claim. But in the contract between business entities other conditions may be prescribed.
It should be noted that in case the dispute concernscontesting a decision made by an arbitral tribunal and connected with corporate, as well as administrative and other public relations, then its pre-trial consideration by the parties is obligatory only if it is prescribed by the provisions of a separate federal law.
It can be noted that earlier in the legislation of the Russian Federationthere were rules on which the initiation of a claim procedure for the consideration of a civil dispute was also mandatory, if certain sources of law required it. For example, in the sphere of cargo transportation, the regulatory legislation required from economic entities having disagreements not to immediately apply to arbitration, but to initiate a pre-judicial order to review the difficulties encountered.
In the event that the plaintiff refuses to holdpre-trial settlement of the dispute, the arbitration will have the right to leave his claim without motion, but to invite the relevant economic entity to eliminate the violation committed by him within a certain period. If the court finds that the pre-trial procedure for resolving the dispute in the arbitration process is not observed after the adoption of the claim, the relevant appeal will be left without consideration.
Thus, in civil disputes -in fact, they are most often found in business, parties that have disagreements - you need to first consider the problem in a pre-trial order. That is, using the claim. Consider what it is, and how it is composed.
Claim as the main document in the framework of the pre-trial settlement of the dispute
It can be noted that the claim may bea source that makes sense not only when there is a mandatory pre-trial settlement of disputes, but, in principle, in most situations where disagreements arise between business partners. The fact is that working with a claim is a process, as a rule, less time-consuming and costly than initiating a court hearing.
If the counterparty objectively violates the rightseconomic entity, it will be in his interest to satisfy the corresponding claim. But if he refuses to do this or finds that he did not violate the provisions of the treaty, it is already possible to initiate an appeal to arbitration.
The form of the claim in question is notapproved by law. Thus, despite its importance, the corresponding document, the preparation of which presupposes a pre-judicial order of dispute settlement, is made in an arbitrary form, but subject to the general rules of record keeping.
It is desirable that it be formed fromusing the company letterhead of the organization, which is subsequently going to file a claim against the counterparty in the arbitration court, contained the signature of the head of the firm, the date of compilation and other necessary requisites. Consider what formulations may include the claim in question.
Claim content: subject of dispute
First of all, the relevant document shouldto fix the obligation under the contract between economic entities, which led to disagreements between partners. The document also specifies a specific violation, which, in the opinion of one of the parties to the legal relationship, was committed by its counterparty, as well as by the unfulfilled legal norms - also according to the version of the relevant party. In addition, the claim fixes the need for the counterpart to eliminate the violation.
Also, the pre-trial settlement of the dispute inArbitration process using the claim involves the inclusion in the relevant document of indicators of value expression of the demand that the party of legal relations puts forward.
Claim content: response time
The document should be reflectedthe period during which the counterparty is obliged to respond to the claims that are put forward by the business entity. At the same time, it can not be less than the period stipulated in the contract or the provisions of the law. In the claim it also makes sense to include language on which the counterparty will be warned by his partner about the consequences of leaving the requirements unanswered. That is, you can specify in the document that the next step of the firm will be to apply to the competent authority that conducts arbitration cases.
Claim content: attachments
Claims can be supplemented by various applications -for example, documents, extracts confirming that the counterparty violated the rights of the business entity. In principle, you can attach and copy them, but the originals still have to be on the side of the dispute in the operational access.
Pre-trial claim: how to send a document to the counterparty?
The claim as a key document within the framework of such procedure as pre-trial settlement of the dispute in the arbitration process may be forwarded to the counterparty:
- by registered mail;
- by fax;
- by e-mail - but in this case it is desirable that the authenticity of the claim can be unequivocally certified.
Many firms prefer to use helpcourier services in the delivery and personal delivery of the claim to the counterparty for signature. For the solution of this task, corresponding orders can be given to the staff specialists of the firm. Any documents confirming the fact of sending the claim to the counterparty, for example, receipts for payment for courier services or, for example, notification from the mail, should be retained by the business entity. If the compulsory pre-trial settlement of the dispute in the arbitration process does not lead to a resolution of the problem and the parties still have to apply to arbitration, then the relevant documents will need to be attached to the statement of claim. They will be proof that the claim was sent to the counterparty, as required by law.
In addition, the corresponding receipt,notice or other similar document will be the basis for the counting of the period after which the pre-trial settlement of the dispute in the arbitration process can be legally completed. Terms, as we noted above, in this case can be determined in the provisions of legislation or in agreements between business entities. Once they expire, the firm can, if it deems it necessary, initiate a claim in arbitration. Which, in turn, will no longer have a legitimate reason for refusing to accept the claim.
The importance of the claim procedure for the consideration of economic disputes
The procedure under consideration is pre-trial proceduredispute settlement - in the arbitration process, the importance is not only expressed in the compliance by business entities of the rules of arbitration and procedural law, but in many other aspects. For example, if the counterparty recognizes those positions that are reflected in the claims of the business entity, then on the basis of the relevant document, the arbitrage may take a decision in a simplified procedure. This feature allows to save time and reduce expenses of the parties for consideration of a subject of disagreements in court if to compare them with those that characterize the usual decision of arbitration disputes.
Claim as part of the dispute settlement process
It is worth paying attention to the most important nuancelegal relations with the participation of economic entities: the claim can actually be only a part, albeit one of the most important, but still one of many, procedures for resolving a dispute outside arbitration. This document is mandatory from the point of view of the requirements of the arbitration procedural law. But in practice, many enterprises themselves, outside consideration of disagreements in the context of possible prospects for resorting to judicial instances, initiate a pre-trial procedure for resolving the dispute.
In this case, the problem-solving algorithm can be based:
- on the provisions of civil law;
- on intercorporate agreements, establishing for their participants certain rights and obligations.
The standard arbitration procedure may include:
- conducting consultations, internal meetings on the problem;
- Analyzing the problem that arose, evaluating various circumstances that may be significant from the standpoint of developing the position of the economic entity in interaction with the counterparty;
- evaluation of evidence of violations of the interests of the enterprise;
- determination of the legality of the position of the economic entity from the point of view of the norms of the current legislation;
- Forming a claim against the counterparty - in this case, as part of the dispute settlement process;
- initiation of negotiations with contractors.
In order to effectively resolve differences with thethe counterparty the enterprise can address in various competent firms for additional consultations. For example - in the center of arbitration disputes, promoting firms also in resolving issues and without trial.
An alternative to recourse to arbitration may beFor example, the dispute is considered by an arbitration court. This process is characterized by much greater efficiency, it involves an appeal to the same qualified judges who are able to make a fair decision.
Thus, it is obvious that in suchlegal relations claim - only one of the possible documents that are used by the parties in order to resolve the problem. It is completely unnecessary for firms, therefore, to initiate, in fact, the pre-trial procedure for settling a dispute in an arbitration process. The right of business entities to resolve the dispute privately. In which, at the same time, such a document as a claim can be used - the main one, in turn, in arbitration disputes.
So, we looked at whenobligatory in accordance with the rules of the APC of the Russian Federation pre-trial procedure for settling a dispute in an arbitration process. Now it needs to be implemented in all cases where the problem has arisen within the framework of legal relations between business entities that interact in the jurisdiction of civil law. Previously, companies cooperating on the basis of the norms of the Civil Code of the Russian Federation could voluntarily - unless otherwise provided for by federal law, to initiate a pretrial procedure for settling a dispute in an arbitration process. Changes in the regulatory legislation, which entered into force in 2016, require civil rights parties to do so in any case.
In turn, if the dispute arose withinchallenging the decision of the arbitral tribunal, in case of administrative, corporate legal relations, it is mandatory to permit it in the pre-trial procedure only if this is required by a separate federal law.
The main document used in the frameworkpre-trial settlement of disputes between business entities - the claim. It must be sent to a firm that considers its rights violated, to the counterparty before a lawsuit is filed in arbitration - otherwise the court will leave it without motion Only 30 days after the claim is submitted, which is documented, for example, by notification from the post office, the company can apply to arbitration.
The fact that the counterparty admits the claims, the claims reflected, can be taken into account by the arbitral tribunal in terms of the legality of the consideration of the dispute in a simplified proceeding.
A claim that is made under suchProcedures, such as the pre-trial procedure for resolving disputes between economic entities, can also be applied in the interaction of the parties that have decided to overcome differences in principle without going to court. In this case, its direction can be only one of the stages in the settlement of a dispute.