Interim measures in the arbitration process are temporary and urgent measures aimed at securing claims of both a property and non-property nature. Such measures are designed to prevent unlawful actions in relation to the subject or person during the period when the trial will continue. However, any measures should be fully consistent with the stated requirements. All participants in the process have the right to file an application, at any stage of the trial.
Chapter 8 of the APC of the Russian Federation is fully devoted to the issue of interim measures in the economic litigation. At the same time, the rules of interim measures for some areas of legal relations are provided for by other legislative acts.
Kinds
Article 91 of the APC identifies the types of measures that can be applied in the arbitration process:
- seizure of cash or property;
- a ban on certain actions for which penalties may be imposed on the defendant or on other persons involved;
- imposing obligations on the defendant to perform certain acts that are aimed at preserving the disputed property;
- Assignment of the obligation to transfer property to the applicant or another person;
- suspension of penalties;
- suspension of the implementation process.
There are other types of interim measures of the arbitral tribunal. At the same time, the judge may take several measures. It is allowed to replace one of them with another. Both the defendant and the plaintiff have the right to request a replacement (Article 95 of the APC).
Statement
The provisions of Article 92 of the APC stipulate that an application for the application of interim measures by arbitration courts may be submitted together with the statement of claim or during the examination of the case on the merits, but in any case until the final decision on the case is made.
The application must contain the following blocks:
- name of the arbitral tribunal;
- details of the parties (defendant and plaintiff);
- a brief description of the essence of the dispute;
- property requirements, their nature and size;
- substantiation of the need for interim measures;
- list of attached documents.
If the application is submitted through an authorized person, then a power of attorney or other document that confirms its authority is attached to the application.
Payment
According to the requirements of Article 102 of the APC, the state duty (interim measures in an arbitration court), the payment procedure and its amount are determined by the current legislation of the country on taxes and fees. According to the provisions of Article 333.21 of the Tax Code, a fee of 3 thousand rubles is established for interim measures.
Counter claim
Article 94 of the APC provides that interim measures may be put forward by the defendant. In this case, the judge has the right to demand from him:
- depositing funds into a court deposit account;
- providing a bank guarantee (or a guarantee of another credit institution).
Counter security is established in the amount of the plaintiff's claims, may be calculated as a percentage of this amount. In any case, it cannot be less than half of the stated requirements.
The judge is obliged to consider the petition from the defendant within 1 day from the moment of his arrival in court. The interim measures of the arbitral tribunal themselves should be spelled out in a determination that is subject to immediate implementation on the basis of a writ of execution. In addition, a person who refuses to comply with the requirements of the court may be fined.
Counter security can be made at the initiative of the court.
Execution order
Interim measures of the arbitral tribunal are subject to immediate enforcement - as stated in Part 1 of Article 96 of the APC. After the ruling is issued, the judge issues a writ of execution. This document indicates the time frame over which the measures will be in effect. If the proceedings are suspended, then the measures still continue to be valid until the judge cancels them. So, interim measures are valid until the actual execution of the judgment.
Decisions made by courts of other countries are not subject to execution on the territory of the Russian Federation, especially by force.
The choice of measures is entirely up to the judge. The bailiff has no right to act independently. For example, if in a ruling the judge seized the property, but did not obligate it to be deposited with a third party, then the bailiff has no right to demand from the tenants to leave the apartment.
In the case of losses due to failure to comply with interim measures of the arbitral tribunal, the dispute shall be considered in the same court. However, in order to recover damages, the injured party will have to file a new claim.
Cancel
The cancellation of interim measures may be carried out in the manner specified in article 97 of the APC. The application for cancellation is considered by the judge within five days from the moment of its receipt. If the petition is submitted on behalf of the defendant along with evidence of the counter-support, then the petition is considered no later than the next day from the receipt of the document.
Cancellation is possible in the following cases:
- a judicial act begins to apply, for example, the receipt of a refusal becomes relevant;
- there is no need for interim measures.
Based on the outcome of the consideration of the application, the judge makes a determination, copies of which are sent to the parties. If other state bodies, for example, Rosreestr, are involved in the collateral process, a copy is also sent there.
Parties to the process have the right to appeal the court ruling.
Replacement
Article 95 of the Arbitration Code provides for the possibility of replacing one measure with another. It can be carried out at the request of one of the parties to the trial or at the initiative of the judge himself. Most often, such measures are taken if new circumstances appear during the proceedings that confirm inconsistency with the measures taken. The circumstances in this case may be substantive or procedural in nature.
An application for replacing measures should be considered no later than the next day from the receipt of such a document. And the replacement itself is made on the day the judge makes the relevant decision, if the request was not refused.
Preliminary interim measures in the arbitration process
Article 99 of the APC provides for the possibility of filing an application with the court for the application of preliminary measures before filing a statement of claim. The main condition: in the near future, the applicant will submit claims to the defendant by filing a lawsuit. In addition, there are a number of factors that will allow a judge to grant such a request:
- jurisdiction must be respected;
- proportionality of measures and requirements;
- paid state fee;
- filing counter security by the applicant.
Based on the outcome of the consideration of the application, the court shall issue a ruling. The term for the implementation of measures may not exceed 15 days from the date of signing the decision by the judge.
If the statement of claim is submitted to another court, then the plaintiff must notify the judge who made the decision on interim measures. In cases where the deadline for filing a lawsuit has been missed, the judge shall rule on the cancellation of measures.
If the legitimate interests of third parties are affected by preliminary interim measures, then such persons are entitled to apply to the court with a request for damages or compensation, in the manner provided for in Article 98 of the APC. You can make such a statement if the claim was not filed within the time period specified in the determination, or the court refused to accept the statement.
Responsibility
The interim measures of the arbitral tribunal, after the ruling is made, must be implemented immediately - as stated in Article 96 of the Code. On the basis of the ruling issued, a writ of execution is issued.
However, in practice, there are cases when it takes several days to implement measures. First of all, tightening can occur even at the stage of issuing the writ of execution. It may take several days for the bailiff to accept the judicial act. At the same time, interim measures cannot be independently put forward by the applicant, as is the case in the execution of Article 8 of Law No. 229-FZ, that is, the collector is not entitled to independently apply to the bank with a writ of execution.
On the other hand, the Arbitration Code provides for liability for persons who do not comply with the requirements of the court. According to the provisions of Article 96 of the APC, a judge has the right to impose a judicial fine in the manner prescribed by Chapter 11 of the Code.
As a general rule, in the event of a fine being imposed on an individual, the amount may not exceed 2.5 thousand rubles. Officials are not entitled to be fined more than 5 thousand rubles, and enterprises - more than 100 thousand rubles.
Many lawyers are sure that such small fines do not stimulate participants in the process to implement court decisions. For example, in the same Moscow, a fine for violating stopping rules is 3 thousand rubles. Naturally, interim measures and the penalty for stopping in the wrong place are completely different violations of social significance.
If you rely on the Criminal Code, then it does not even stipulate liability for citizens for failure to comply with judicial acts. According to the requirements of article 315 of the Criminal Code, only representatives of the authorities can be held responsible for maliciously failing to enter into a legal act.
Consequently, the sanctions provided for by the current legislation cannot fully ensure the implementation of judicial acts, that is, the effectiveness of justice is reduced.
Conclusion
According to statistics, statements to the arbitration court on the adoption of interim measures are satisfied a little more than a third of all petitions. According to practicing lawyers, this is due to the fact that there are no standards for their validity. On the other hand, many judges simply do not want to take responsibility for making a determination on interim measures, because not so long ago such decisions were perceived solely as manifestations of corruption.
It is no secret that in 95% of cases the applicant is not able to substantiate his claim and indicates only general wording from the current legislation. And to arrest a company’s account is practically to paralyze the activity of a legal entity, therefore, for such a measure there must be strong evidence.