The arbitration and procedural legislation of the Russian Federation contains rules that in many cases oblige the parties to economic disputes to initiate pre-trial settlement of the differences. This procedure has quite a few nuances, due to the specifics of a particular sphere of legal relations, as well as the specifics of inter-corporate interaction between enterprises. What are they? In what cases is pre-trial settlement of arbitration disputes necessary by law?
What is the essence of pre-trial dispute resolution between firms?
The pre-trial procedure for the settlement of a dispute in the arbitration process involves the use by the parties, that is, business entities, of an exchange mechanism for claims that are not part of the direct judicial review of the claim. Therefore, the order in question is sometimes referred to as claims. If, within the framework of the pre-trial order, the parties have not reached a compromise, they will appeal to the arbitration court.
Is pre-trial procedure mandatory in arbitration disputes?
Previously, pre-trial consideration of disagreements could be initiated 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-trial procedure for the settlement of a dispute in the arbitration process is generally obligatory if disagreements 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 in which this requirement is contained is the APK of the Russian Federation.
An appeal of an economic entity to the competent authority conducting arbitration cases can be carried out only 30 days after the moment the claim was sent to the counterparty. But in the contract between business entities other conditions may be prescribed.
It is worth noting that if the dispute concerns the contestation of a decision made by the arbitral tribunal and is related to corporate, as well as administrative and other public relations, then its pre-trial consideration by the parties is necessary 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 Federation norms were in force according to which the initiation of a claim procedure for the consideration of civil disputes was also mandatory if certain sources of law required it. For example, in the field of cargo transportation, the regulatory legislation required business entities with disagreements not to immediately go to arbitration, but to initiate a pre-trial procedure for considering the difficulties encountered.
If the plaintiff refuses to conduct a pre-trial settlement of the dispute, the arbitration tribunal will have the right to leave his lawsuit motionless, however, invite the relevant business entity to eliminate the violation that it has committed within a certain period. If the court finds that the pre-trial procedure for the settlement of the dispute in the arbitration process has not been complied with 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, for parties that have disagreements - you first need to consider the problem in 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 pre-trial dispute resolution
It can be noted that the claim can be a source that makes sense to apply not only when mandatory pre-trial settlement of disputes is carried out, but, in principle, in most situations when there are disagreements 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 rights of an economic entity, then it will be in its interests to satisfy the corresponding claim. But if he refuses to do this or considers that he did not violate the provisions of the contract, it is already possible to initiate an appeal to arbitration.
The claim form in question is not approved by law. Thus, in spite of its significance, the corresponding document, the drafting of which presupposes a pre-trial procedure for the settlement of disputes, is drawn up in an arbitrary form, but subject to the general rules of paperwork.
It is desirable that it be formed using the letterhead of the organization, which subsequently intends to file a lawsuit against the counterparty in the arbitration court, contain the signature of the head of the company, the date of drawing up and other necessary details. Consider what language the claim in question might include.
Claim content: subject of dispute
First of all, the corresponding document should record the obligation under the contract between business entities, which led to disagreements between partners. The document also indicates a specific violation, which, in the opinion of one of the parties to the legal relationship, was committed by its counterparty, as well as the rule of law that it failed to fulfill, also according to the version of the relevant party. In addition, the claim fixes the requirement that the counterparty eliminate the violation.
Also, the pre-trial procedure for the settlement of the dispute in the arbitration process using the claim involves the inclusion in the relevant document of indicators of the cost expression of the claim, which is put forward by the party of legal relations.
Claim content: response time
The document under consideration should reflect the period during which the counterparty is obliged to answer the requirements that are put forward by the business entity. However, it cannot be less than the period provided for by the contract or the provisions of the law. It also makes sense to include wording in the claim, according to which the counterparty will be warned by its partner about the consequences of leaving claims unanswered. That is, you can indicate in the document that the next step of the company will be to contact the competent authority that conducts the arbitration cases.
Claim content: applications
Various applications can supplement the claim - for example, documents, extracts confirming that the counterparty violated the rights of an economic entity. In principle, you can attach copies of them, but the originals should still be available to the dispute side on-line.
Pre-trial claim: how to send a document to the counterparty?
A claim as a key document in the framework of such a procedure as a pre-trial procedure for the settlement of a dispute in the arbitration process may be sent to the counterparty:
- registered mail;
- by fax;
- by e-mail - but in this case it is desirable that the authenticity of the claim can be clearly verified.
Many firms prefer to use the assistance of courier services in the delivery and personal delivery of the claim to the counterparty under signature. To solve this problem, appropriate orders can also be given to full-time specialists of the company. Any documents confirming the fact of sending a claim to the counterparty, for example, receipts for payment of courier services or, for example, a notification from the post office, must be kept by the business entity. If the mandatory pre-trial procedure for the settlement of the dispute in the 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 relevant receipt, notice or other similar document will be the basis for the countdown of the period after which the pre-trial procedure for the settlement of the dispute in the arbitration process may be legally completed . Timing, as we noted above, in this case can be defined in the provisions of the law or in agreements between business entities. As soon as they expire, the firm can, if it considers it necessary, initiate a lawsuit in arbitration. Which, in turn, will no longer have legal grounds for refusing to accept the claim.
The value of the claim procedure for the consideration of economic disputes
The procedure under consideration - the pre-trial procedure for the settlement of the dispute - in the arbitration process is of importance not only in terms of compliance by business entities with the rules of the arbitration procedure law, but also 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 arbitration tribunal may decide in a simplified procedure. This opportunity allows you to save time and reduce the costs of the parties to consider the subject of disagreement in court, if we compare them with those that characterize the usual resolution of arbitration disputes.
Claim as part of the dispute resolution process
It is worth paying attention to the most important nuance of legal relations with the participation of business entities: a claim can actually be only part, albeit the most important, but still one of many, the dispute resolution procedure outside of arbitration. This document is mandatory from the point of view of the requirements of the arbitration procedure legislation. But in practice, many enterprises themselves, outside of the consideration of disagreements in the context of possible prospects for appeal to the courts, initiate a pre-trial procedure for resolving the dispute.
In this case, the problem-solving algorithm may be based on:
- on the provisions of civil law;
- on inter-corporate agreements establishing for their participants certain rights and obligations.
The standard procedure for the settlement of disputes outside of arbitration may include:
- holding consultations, internal meetings on the problem;
- analysis of the problem, assessment of various circumstances that may be relevant from the point of view of developing the position of an economic entity in interaction with a 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 current legislation;
- formation of a claim against the counterparty - in this case, as part of the dispute settlement process;
- initiation of negotiations with counterparties.
In order to effectively resolve disagreements with the counterparty, the company may contact various competent companies for additional consultations. For example, to the center of arbitration disputes, which also assists firms in resolving issues without a court.
An alternative to recourse to arbitration may be, for example, consideration of a dispute by an arbitration court. This process is characterized by much greater efficiency, involves the appeal to the same qualified judges who are able to make a fair decision.
Thus, it is obvious that in such legal relations, a claim is only one of the possible documents that are used by the parties in order to resolve the problem. Thus, it is completely unnecessary for firms to initiate, in fact, a pre-trial procedure for the settlement of a dispute in the arbitration process. The right of business entities is to resolve a 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.
Summary
So, we examined the cases in which the pre-trial procedure for the settlement of a dispute in the arbitration process is mandatory in accordance with the norms of the APC of the Russian Federation. Now it needs to be carried out in all cases when the problem arose 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 Civil Code of the Russian Federation could voluntarily - unless otherwise provided for by federal law, initiate a pre-trial procedure for the settlement of a dispute in the arbitration process. Changes in the regulatory legislation, which entered into force in 2016, require subjects of civil legal relations to do this in any case.
In turn, if the dispute arose as part of the contestation of the arbitration court decision, in administrative, corporate legal relations, its resolution in the pre-trial procedure is necessary only if it is required by a separate federal law.
The main document used in the framework of the pre-trial settlement of disputes between business entities is a claim. It should be directed by the company, which considers its rights violated, to the counterparty before the lawsuit is filed in arbitration - otherwise the court will leave it without movement. Only 30 days after the dispatch of the claim, which is documented, for example, by means of a notification from the post office, the company can apply to arbitration.
The fact that the counterparty recognizes the claims reflected in the claim may be taken into account by the arbitral tribunal in terms of the legality of the dispute in a simplified procedure .
The claim, which is drawn up in the framework of such a procedure as a pre-trial procedure for resolving disputes between business entities, can also be applied in the interaction of parties who decided to overcome differences in principle without going to court. In this case, its direction can be only one of the stages of the settlement of the dispute.