In the current era of a developed market economy, the competent resolution of economic disputes is a rather important aspect. In this article, we will dwell in more detail on the consideration of such an institution for asserting rights in an arbitration court, such as filing a counterclaim.
You may ask, why get into these legal “jungle” in more detail, because a large number of counterclaim statements can now be found on the Internet. However, not every one of them is able to reflect all the nuances of a particular case, therefore, a general idea of the counterclaim, its structure and rules for filing with the court must be had. In addition, for clarity, a competent sample of the counterclaim will be presented.
Essence
A counterclaim is a claim of the defendant to the plaintiff in the main claim, substantiated with the help of legal norms, that is stated in the framework of the case accepted for consideration by the court. That is, this document as a whole is almost no different from the usual statement of claim, the distinguishing feature - the defendant and the plaintiff in the main claim are interchanged. The defendant becomes the plaintiff and claims the latter.
If you are developing a lawsuit for yourself or your company, you should not immediately take as a basis the first available samples of counterclaims to the arbitration court, since each case has its own distinctive features. It is also worth considering the stage at which the case is being considered in court and what evidence has already been presented in the case file, since the outcome of the case depends on the initial competent preparation of the counterclaim.
Benefits
The considered instrument of protection of rights is convenient both for the court and for the parties, since it leads to a more rapid resolution of mutual disagreements in one process.
In addition, the counterclaim institution is aimed at saving time and labor of procedural workers and judges, which is important, since all collected evidence is evaluated by the court in two lawsuits at once, the parties do not have to be called twice.
Counterclaim Structure
The content of these lawsuits in different branches of law (as well as in different states) may look completely different. So, in the sample of the counterclaim under the Code of Civil Procedure of the Russian Federation, various norms of procedural legislation - civil are given.
Moreover, in any counterclaim that you intend to file with the arbitration court, the following structural elements must be mandatory:
- “Cap” - the initial part of the claim, which indicates the name of the court, the name of the plaintiff and defendant, their addresses, contact details (phone numbers, e-mail, fax), the price of the claim (if the requirements are of a property nature);
- narrative - the main part of the claim, which contains the reproduction of all circumstances of the case, the transfer of evidence, references to the rule of law;
- petitioning part - the final part, which begins with the word “I ask” and contains clear requirements for the defendant;
- list of attached documents - regulated by Art. 126 APC of the Russian Federation.
It should be noted that, for example, in the sample of the counterclaim of Kazakhstan (hereinafter referred to as the RK) you can find, as a mandatory reference to the reference to the arbitration agreement, which is absent in Russia.
State duty
Despite the fact that this claim is called “counterclaim”, that is, it is a response to the original (as a forced way to protect against the plaintiff’s legal claims), the state duty on it must be paid.
The amount is determined by tax legislation and depends primarily on the type of claims claimed (property or non-property), and if the requirements are property, the state duty will be directly determined by the price of the claim calculated by you, while you should adhere to a certain gradation fixed by this rule of law.
When filing, it is imperative to attach a document on payment of the fee (original), which must be indicated in the appendix so that the claim is accepted by the court promptly.
If it is not possible to pay the fee due to any unfavorable circumstances (financial, etc.) or it is impossible to fully pay it immediately, you can submit a motivated statement at the same time as the claim for deferral or installment payment with the application of the relevant documents.
It is also worth noting that the court usually awards all costs incurred to the winning party, including the cost of paying the fee.
If you are unable to correctly calculate the state duty, you should contact a professional lawyer who specializes in compiling samples of counterclaims in an arbitration court.
Suing
By virtue of Art. 132 of the Arbitration Procedure Code of the Russian Federation, a counterclaim is filed under the general rules for filing statements of claim.
Basic principles:
- the lawsuit is filed with the court where the initial lawsuit is located;
- the form of the document must comply with the requirements specified in Art. 125 agribusiness of the Russian Federation;
- the claim must have an independent character, that is, its subject and basis;
- must be connected with the main requirements of the plaintiff for their joint consideration in one case;
- must be paid by state duty if there are no statutory benefits or applications for a deferral / installment plan of its payment;
- adopted by the court until a substantive decision is made;
- there is the possibility of applying collateral;
- it can be filed only in the court of the first stage (with the exception of the case provided for in paragraph 6.1 of article 268 of the APC of the Russian Federation).
And of course, the key rule is to use a competent counterclaim statement.
Acceptance Terms
The main conditions for the adoption of this claim for consideration with the original are the following:
- the claim in the counterclaim is aimed at offsetting the claim contained in the main claim;
- “Winning” in a counterclaim fully or partially creates the inability to satisfy the main claim;
- the main and counterclaims are interconnected, and their joint consideration contributes to a faster and more effective resolution of the case.
If the above conditions are not met upon presentation of this document, the court has the right to return it by virtue of Part 4 of Art. 132 APC of the Russian Federation, which does not prevent the filing of a claim in the general manner. In this case, the decision to return may be appealed to a higher court of arbitration.
Case studies
Regarding the above conditions of adoption, for clarity, it is worth bringing the following cases from practice (one for each of the conditions):
- One of the construction companies filed a lawsuit against the contractor to recover payment for the work performed, and the contractor, in turn, filed counterclaims to recover the debt for the supplied materials. Thus, the court set-off the mutual claims and recovered the remaining amount from the construction company.
- An individual entrepreneur filed a lawsuit to prolong the water use agreement, and the institution with which this agreement was concluded filed a counterclaim to declare this agreement non-concluded. Therefore, the requirements are mutually exclusive.
- The state structure filed a lawsuit against the legal entity to terminate the building lease agreement, and the legal entity filed counterclaims for the return of the paid rent. There is interconnectedness between the claims, therefore, their joint consideration will be most appropriate.
Counterclaim Form
As mentioned above, there are a great many examples of counterclaims on the Internet, both in the branches of legislation (civil, arbitration, family, etc.) and in countries (Republic of Kazakhstan, Belarus, etc.). However, when searching for appropriate templates, you should pay attention to many legal subtleties so as not to be mistaken.
In this article, as an illustrative example, a sample of the counterclaim is submitted under the agro-industrial complex of the Russian Federation, which can be found below.
Arbitration Counterclaim Form
In the Arbitration Court of Novgorod Region Claimant: LLC “Star” (name or full name of the defendant in the main claim), TIN BIN Address: ___________________________ (for an entrepreneur: information on the date, place of birth, state registration) Tel./fax: Email: _________________ Defendant: LLC "Month" (name or full name of the plaintiff in the main claim) Address: _____________________ Tel./fax: Email: _________________ Cost of claim (if the claim is material): Counterclaim ________ The proceedings of the Arbitration Court of the Novgorod Region are in case No. _______ at the suit of the defendant (plaintiff in the main claim) against the plaintiff (defendant in the main claim) about _____________________. The following are the circumstances of the case, counterclaims, references to the rule of law. Information about the direction of the claim for the settlement of the dispute is reflected. Based on the foregoing, in accordance with Articles ___________ (relevant regulations), I BEG: - Collect from the defendant (the plaintiff in the main claim) the debt in the amount of ________________ (________________) rubles.
Application: - Copies of documents (contracts, invoices, checks, receipts, acts of reconciliations, etc.).
- Notification of a counterclaim and copies of documents to the defendant.
- Calculation of the amount of the dispute.
- A copy of the claim, documents on its sending to the defendant.
- State duty payment document.
- Copy of registration certificate.
- Extract register (about the plaintiff).
- Extract from the register (about the defendant).
- Power of attorney of a representative (if a representative acts on behalf of the plaintiff).
- Other documents.
"____" _____________ _______ Claimant (Representative): _____________________ |
It is worth noting that, for example, the norms of the Law of the Republic of Kazakhstan dated April 8, 2016 No. 488-V “On Arbitration” do not provide for an accurate list of documents-annexes to the claim, therefore, the sample of the counterclaim of the Republic of Kazakhstan will always be individual.
If you are not at all able to find the template for the desired claim, then it is worth noting that various samples of counterclaims in civil cases are almost always available on the stand or website of the court.
Court procedure
As a result of the presentation of the counterclaim, the proceedings on the case begin from the beginning, that is, all the missing evidence is collected, the parties are interrogated, witnesses are interrogated, third parties are involved, written and other materials are communicated and examined.
Having completed all the actions prescribed by law, the court is removed to make a decision.
In this decision, the court must indicate the satisfaction or dissatisfaction of not only the main claim, but also the counterclaim. There may be cases where the court may not satisfy any of the claims. The situation, when the court satisfies both claims at once, is impossible, since this will contradict the essence of this institution of protection of rights.
The arguments of the court on the reasons for the refusal of claims or, conversely, the satisfaction of a particular claim should be sought in the substantiating part of the court decision.
It is also worth noting that either side of the initial or counterclaim has the right to appeal the decision of the court of first instance in case of disagreement with it. At the same time, it is recommended that you contact professional lawyers for help, since the appeal proceedings are very different from the court proceedings at the first stage.
Features of the arbitration process in counterclaim
Attention should also be paid to the main differences between a counterclaim in arbitration and similar claims in a civil proceeding:
- If the arbitral tribunal already has a case in a lawsuit filed by a defendant that meets all the requirements of the counter, the court may, at its prompting or at the request of either party, combine it with the case instituted in the main lawsuit for further joint resolution.
- The court cannot refuse to accept it, it has the right to return it only on the basis of part 4 of art. 132 of the APC of the Russian Federation in case of non-compliance with the conditions established by part 3 of this article, according to the requirements of Art. 129 APC of the Russian Federation.
Consequently, the counterclaims will be significantly different, so when drafting in many cases it is better not to risk it and turn to professional lawyers or the law office.
Hot issues
About this below:
- Can I file more than one counterclaim with an arbitration court? - In one case, it is possible to submit a counterclaim only once, in which several counterclaims can be indicated. If it is necessary to supplement or change claims, then the law provides for the possibility of filing an updated application (part 1 of article 49 of the APC of the Russian Federation).
- Is it possible to file a claim against another defendant in a counterclaim and thereby bring him into action? - No, in arbitration, a counterclaim can only be brought against the plaintiff in the main claim, claims against other persons not involved in the case are considered in a separate case. Moreover, it is worth noting that the claims against another defendant in the same dispute cannot be accepted as a counterclaim, as they are separate claims and must be made out in the form of a main claim.
- Is it possible to find samples of counterclaims on the court website? - It is likely, since the court is also interested in an effective and proper consideration of the case. The only thing - do not look for the word “counter” in the name, because in terms of content and structure it is fully consistent with the usual statement of claim.
Conclusion
Thus, summarizing all of the above, we can conclude that the counterclaim in the arbitration process is an effective and relevant way to protect the rights of organizations and entrepreneurs against the claims of the plaintiff.
There are a great many examples of counterclaims to the court, however, when drafting it is not necessary to “build” them only according to templates, you should always take into account the individuality of each case and certain unique nuances.