Arbitration Procedure Law of the Russian Federationcontains rules that in many cases oblige the parties to economic disputes to initiate pre-trial resolution of disputes. This procedure has quite a few nuances, due to the peculiarities of a particular area of legal relations, as well as the specifics of the intercorporate interaction of enterprises. What are they? In what cases is the pre-trial settlement of arbitration disputes mandatory by virtue of the requirements of the law?
Pre-trial dispute resolution procedurethe arbitration process involves the use by the parties, that is, the business entities, of the mechanism for the exchange of claims, which are not directly part of the judicial review of the claim. Therefore, the order in question is sometimes referred to as a claim. If, within the framework of the pre-trial procedure, the parties fail to reach a compromise, they are already referred to the arbitration court.
Previously, pre-trial disputes couldinitiated by the party of legal relations, which felt a violation of their rights in the framework of interaction with the counterparty, at her request. Now the pre-court procedure for settling a dispute in an arbitration process is generally obligatory, if disagreements arise within the framework of civil law relations. That is, before going to court with a statement, the party must file a claim with its counterparty. The main source of law, which contains this prescription - APC RF.
Appeal of the economic entity to the competentthe body conducting the arbitration cases can be carried out only 30 days from the moment when the claim was sent to the counterparty. But in the contract between economic entities other conditions may also be prescribed.
It is worth noting that in case the dispute concernschallenging the decision, which was made by the arbitration court, and is connected with corporate, as well as administrative and other public relations, its pretrial consideration by the parties is only necessary if it is prescribed by the provisions of a separate federal law.
It may 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 required by separate sources of law. For example, in the field of cargo transportation, the regulatory legislation required economic entities that have disagreements not to immediately go to arbitration, but to initiate a pre-trial procedure for the consideration of the difficulties encountered.
In case the claimant refuses to holdthe pre-trial settlement of the dispute, the arbitration will have the right to leave his claim without movement, however, to propose to 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 settling a dispute in the arbitration process is not respected after the claim has been accepted, the relevant appeal will be left without consideration.
Thus, in civil disputes -in fact, they are the ones most often encountered in business, parties that have disagreements — you first need to look at the problem in the pretrial order. That is using the claim. Consider what it is and how it is composed.
It may be noted that the claim may bea source that makes sense to apply not only when the mandatory pre-trial settlement of disputes, but, in principle, in most situations when there is disagreement between business partners. The fact is that working with a claim is usually a less laborious and costly process than initiating a court hearing.
If the counterparty objectively violates the rightsbusiness entity, it will be in its interest to satisfy the relevant claim. But if he refuses to do it or considers that he did not violate the provisions of the contract, it is already possible to initiate recourse to arbitration.
Форма претензии, о которой идет речь, не approved by law. Thus, despite its significance, the corresponding document, the drafting of which presumes the settlement of disputes, is drawn up in an arbitrary form, but subject to the general rules of office work.
It is desirable that it be formed withusing the letterhead of the organization, which subsequently intends to file a claim with the counterparty in the arbitration court, contained the signature of the head of the firm, the date of preparation and other necessary details. Consider what formulations may include the claim in question.
Прежде всего, соответствующий документ должен to fix the obligation under the contract between business entities, which has led to disagreements between the partners. The document also indicates a specific violation, which, in the opinion of one of the legal relations, was made by its counterparty, as well as by the norms of law that were not fulfilled by him - also according to the version of the corresponding party. In addition, the claim records the requirement for the counterparty to correct the violation.
Also the pre-trial dispute resolution procedureThe arbitration process with the use of a claim implies the inclusion in the corresponding document of indicators of the value expression of a claim that the party of legal relations makes.
This document should reflectthe period during which the counterparty is obliged to respond to the requirements put forward by the economic entity. However, it can not be less than the period stipulated by the contract or the provisions of the law. It also makes sense to include in the complaint wording, according to which the counterparty will be warned by its partner about the consequences of abandoning the requirements without an answer. That is, you can indicate in the document that the next step of the firm will be to appeal to the competent authority that conducts arbitration cases.
Претензию могут дополнять различные приложения — for example, documents, extracts, confirming that the counterparty violated the rights of an economic entity. In principle, it is possible to attach their copies, but the originals must still be available to the party to the dispute in online access.
A claim as a key document under such a procedure as a pre-trial procedure for settling a dispute in an arbitration process may be sent to the counterparty:
- by registered letter;
- by fax;
- by e-mail - but in this case it is desirable that the authenticity of the claim can be clearly identified.
Many firms prefer to use help.courier services in the delivery and personal delivery of the claim to the counterparty under the signature. To solve this problem, appropriate orders can also be given to staff specialists of the company. Any documents confirming the fact of sending a claim to the counterparty, for example, receipts for payment for courier services or, for example, notification by mail, must be kept by the business entity. If the mandatory pre-trial procedure for settling a dispute in an arbitration process does not lead to a resolution of the problem and the parties still have to go to arbitration, then the relevant documents will need to be attached to the statement of claim. They will be evidence that the claim was sent to the counterparty, as required by law.
In addition, the corresponding receipt,a notice or other similar document will be the basis for a period, after which a pretrial order of settling a dispute in an arbitration process may be lawfully completed. Terms, as we noted above, in this case can be defined in the provisions of the legislation or in agreements between economic entities. As soon as they expire, the firm can, if it considers it necessary, initiate a claim to arbitration. Which, in turn, will no longer have a legal basis for refusing to accept a claim.
Рассматриваемая процедура - досудебный порядок dispute resolution - in the arbitration process, the value is not only expressed in the compliance of business entities with the rules of arbitration procedure, but also in many other aspects. For example, if the counterparty recognizes those positions that are reflected in the claim of the economic entity, then, on the basis of the relevant document, the arbitration court can decide in summary procedure. This opportunity saves time and reduces the parties' expenses for consideration of the subject of disagreements in court, if we compare them with those that characterize the usual decision of arbitration disputes.
It is worth paying attention to the most important nuancelegal relations with the participation of business entities: a claim can actually be only a part, even if the most important, but still one of many, procedure for settling a dispute outside arbitration. This document is mandatory in terms of the requirements of the arbitration procedure legislation. But in practice, many enterprises themselves, outside the consideration of disagreements in the context of possible prospects for appealing to the courts, initiate a pretrial dispute resolution procedure.
In this case, the problem consideration algorithm can be based on:
- on the provisions of civil law;
- on intercorporate agreements establishing certain rights and obligations for their participants.
The standard procedure for settling disputes outside arbitration may include:
- holding consultations, internal meetings on the problem;
- analysis of the problem, assessment of various circumstances that may be important in terms of developing the position of an economic entity in cooperation with the counterparty;
- assessment of evidence of violations of the interests of the enterprise;
- determination of the legitimacy of the position of an economic entity in terms of the norms of current legislation;
- formation of a claim to the counterparty - in this case, as part of the dispute resolution process;
- initiation of negotiations with counterparties.
In order to effectively resolve disagreements withThe counterparty may contact various competent firms for additional advice. For example - in the center of arbitration disputes, assisting firms also in resolving issues 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, a document such as a claim can be used - the main one, in turn, in arbitration disputes.
Итак, мы рассмотрели то, в каких случаях obligatory in accordance with the rules of the APC RF 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, firms 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 claim is submitted to 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.
