The AIC provides for alternative dispute resolution procedures. Often, they allow parties to conflict to come to a consensus at the lowest cost. Let us further consider what constitutes the pre-trial (claim) order.
General information
The claim procedure for the settlement of disputes in an arbitration court (article 5, part 4 of the APC) requires certain actions to be taken before the statement of claim is sent to an authorized court. In accordance with the specified norm, for some categories of cases it is mandatory. Arbitration law, therefore, does not allow the filing of a claim without observing it.
Characteristic
Pre-trial settlement of conflicts is one of the forms of protection of rights. It consists in an attempt to find a mutually acceptable solution for its participants on the obligation arising before sending a statement of claim to an authorized instance. Arbitration practice shows that this method of resolving the conflict is quite popular today. They resort to it even in cases where its binding is not established by law.
Content
The claim procedure for the settlement of disputes in an arbitration court is reduced to the following actions. The creditor (future applicant) submits to the debtor (defendant) a requirement to fulfill the substantive obligation accepted by the latter. The claim is made in writing. It contains an indication of the obligation itself and a reminder that it must be repaid. In this case, the creditor establishes a reasonable period for fulfilling the claim. After sending, he expects a response. The debtor may voluntarily pay off the obligation or offer his own version of its performance. If there was no answer from him, and the obligation was not repaid, then it is considered that the creditor complied with the claims procedure for resolving disputes. In an arbitration court, timelines will be of great importance when considering a case. The claim, which the creditor sends, should establish a reasonable period, that is, one in which the debtor could pay off the obligation. Pre-trial proceedings may involve the obligation of the creditor to appeal to certain state authorities before filing a claim.
Normative base
A claim procedure for dispute settlement in an arbitration court is mandatory if this is expressly stated in the law or it is established in the contract. It should be noted that the list of federal regulations that provide for the measures under consideration is quite extensive. Among them are the Civil Code. Art. 452 para. 2 stipulates that the requirement regarding termination / amendment of the contract may be declared by the participant in the transaction only after he receives a refusal from another entity to the relevant proposal or if the response is not received within the prescribed time. If the latter is not established, then 30 days are taken as a control period. Art. 797 Civil Code. In accordance with the norm, prior to suing the carrier with a claim arising from the contract for the transportation of goods, the creditor is required to comply with the claims procedure for the settlement of disputes. In an arbitration court, an application will be considered only in case of a partial or complete refusal of the service organization to pay off obligations or if a response is not received within a month. The request must be sent according to the rules established by the transport code or charter.
Concretization of provisions
In separate codes and charters, the claims procedure for dispute settlement is significantly expanded. In the arbitration court in the proceedings of cases, authorized officials shall be guided by:
- The charter of railway transport dated 10.01.2003, No. 18. In Art. 120, this normative act provides that a claim must be filed before a claim is filed with a claim against a carrier. It is worth considering that this rule applies not only to cases of cargo transportation, but also to baggage.
- Merchant Shipping Code. In Art. 403 KTM determined that before sending a lawsuit to the court, the creditor is obliged to present a claim to the debtor.
- Code of water (internal) transport. In this normative act, the claim procedure is significantly expanded. In particular, the Code says that before filing a claim related to the carriage of baggage, passenger, cargo, as well as towing an object, it is mandatory to submit requirements to the responsible persons. This position is established in Art. 161.
- Air Code. In Art. 124, p. 3 It is established that a claim is required before a lawsuit is filed in violation of the terms of the contract for the air transportation of cargo or mail.
- Charter of automobile transport. Clause 158 determines that before a claim is sent by the consignee / sender to the carrier (company or organization), a claim is required. In this case, however, there are certain contradictions. First of all, the said charter is not a federal law. In Art. 5 of the Federal Law No. 71, which regulates the introduction of the agro-industrial complex, it is determined that the pre-trial procedure described above is applicable to cases that took place before the approval of the relevant regulatory act. Meanwhile, according to the Federal Law No. 96, Law No. 71 has been declared invalid since September 1, 2002, except for Art. 9. It follows that the aforementioned Art. 5 also has no legal effect.
- Federal Law No. 126 and 176. In Art. 55 and Art. 37, accordingly, the obligation to send a claim to the operator by the communication user is established in case of improper fulfillment or non-fulfillment of the terms of the contract for the provision of services / work.
Additionally
As the arbitration practice shows, far from in all cases it is possible to distinguish the obligatoriness of the creditor’s preliminary sending of claims to the debtor from the so-called warning and proposal. The latter act as circumstances of a substantive nature, which, in turn, are included in the basis of the statement and the subject of proof. In such cases, the plaintiff may require qualified legal assistance. Among normative acts, which stipulate the direction of the above “warning”, the Civil Code should be mentioned. For example, in Art. 286 it is established that a local or state authority whose competence includes the decision to seize land in accordance with the grounds defined by Art. 284-285 of the Code, as well as the rules for prior notification of allotment owners of their violations, are provided for by the LC. If the owner of the land plot informs the authorized structure, which approved the relevant resolution, of the consent, the property owned by him can be sold at public auction. If the owner opposes the seizure, the body that made the decision has the right to go to court.
Tax law
Arbitration law often intersects with the Tax Code. The Tax Code provides for rules according to which, after a decision has been made to hold a person accountable for a violation, the control authority seeks to recover sanctions from it. Up to this point, the tax inspectorate is obliged to invite the payer or other entity to pay the corresponding amount voluntarily. In the event of the debtor's refusal or if the deadline for the payment of the sanction is missed, the control body may appeal to the court.
Federal Law No. 948-1 of the RSFSR
In the specified normative act (with amendments and amendments subsequently adopted), which regulates the sphere of competition and restriction of monopolistic activity, in Art. 20 it is determined that if the applicant has not received a response from the FAS at his request within two months or does not agree with the decision, he can go to court. The calculation of the specified period is carried out from the date of receipt by the authorized body of the corresponding notice from the subject.
Patent law
According to Art. 21, paragraph 9 of the Federal Law No. 3517-1 (with the adopted additions and amendments), if you disagree with the decision to grant a patent for an invention or refuse to do so, as well as declaring the application revoked, the interested person may file an objection with the authorized Chamber at the executive federal body within six months from the date of receipt of the relevant act. The decision of the specified authority shall be approved by the head of the structure engaged in activities in the field of intellectual property. This decision shall enter into force upon adoption and may be challenged in court.
Tariff Regulation
In Federal Law No. 14, it was pointed out that in case of disagreement regarding the establishment of rates for thermal and electric energy, suppliers and consumers, regional energy commissions have the right to apply to the Federal Institution for their resolution. Disputes related to state regulation of tariffs, including those that are not resolved by the said body, are subject to judicial review. Meanwhile, Federal Law No. 38, these provisions were deleted. Issues arising from the application of Federal Law No. 14 were referred to the Government and the executive federal body for monitoring natural monopolies. According to experts, this fact does not indicate the mandatory pre-trial settlement of disputes under Federal Law No. 14.
Customs Code
This normative act previously contained ch. 57, which provided for an “initial appeal”, which essentially served as a pre-trial settlement. However, under Art. 46 (paragraph 1) of the Code, filing a complaint about the inaction / action of the customs structure or its employee does not exclude the right to subsequently or simultaneously submit a statement of similar content to the first instance.
Contractual relationship
They may also include claims. At the same time, the text of the agreement should indicate which issues are to be resolved in this way. As a rule, participants in the transaction do not draw up a separate document providing for pre-trial agreement of the parties. Usually in the text of the original contract there is only a clause about it. Meanwhile, all probable cases of violation by the counterparty of the terms of the transaction cannot be foreseen. In this regard, often, even with the relevant reservations in the contract, participants in legal relations require legal assistance.
Nuances
The key task of debtors in the event of conflict is the conclusion of an agreement on favorable terms. Situations in life can be very different, respectively, the reasons why the counterparty violated the contract can be any. Nevertheless, bona fide participants in the relationship seek to find a compromise. It is worth saying that this is beneficial for the lender, since the pre-trial agreement will save time, effort and money on the proceedings. First you need to properly draw up your requirements.
Features of the compilation
The claim is made out, as was said above, in writing. The legislation does not establish specific requirements for the content of the document. However, it must be present:
- The name of the applicant, the data of St.-va on state registration.
- Location of the organization.
- Bank details.
- Grounds for submitting a claim. This may be (depending on the nature of the contract) a partial or complete loss of cargo, damage to property, shortage of goods, delay in delivery, and so on.
- The amount of the claim for each claim individually, receipt, invoice, account card, statement, etc.
- List of documents that are attached in support of the requirements.
The claim is signed by the applicant. If a representative acts from the creditor, his authority must be confirmed by a power of attorney.
The timing
They are provided for by many regulatory acts, including the ones mentioned above. According to Art. 123 of the Charter of railway transport, a claim against the carrier can be made within six months, and in respect of penalties and fines - five days. The period in Art. 406 KTM. It coincides with the limitation period for filing claims in court. A similar situation is present in Art. 161 (paragraph 4) of the Code on Water (Inland) Transport. In case of violation by the air carrier of the terms of the contract, the claim can be presented within six months. This rule is established by Art. 126 of the relevant Code. The method of filing a claim should be chosen so that later this fact can be proved. As a rule, interested parties send it by mail in the form of a registered letter with a notice of receipt. Another option is to hand in person against receipt. However, this method is not so popular, because the counterparty may refuse to sign and generally accept the claim.
Answer
Almost all transport codes and charters have an obligation to notify the applicant of a decision. If it is not provided for in law or law, then the direction of the answer is the right of the addressee. The requirements for its content are determined only in some regulatory documents. For example, they are present in the Charter of railway transport in Art. 124. If the addressee decides to refuse the claim, the answer must be substantiated. It must specify references to the regulatory documents by which the subject was guided. If a decision is made to satisfy the claim, the response should contain a description of how to fulfill the requirement. In addition, the period in which they will be performed should be indicated.
Consequences of non-compliance with legal requirements
According to Art. 126 p. 7 of the APC, the claim must be accompanied by documents proving that the claimant has been complied with, if its binding is established by the rules or the contract. The consequences of failure to comply with this requirement are set forth in Art. 128 p. 1 of the Code. If it is established during the consideration of the application that it was presented in violation of the rules defined by Art. 125-126 of the agro-industrial complex, the authorized instance makes a determination by which the lawsuit is left without movement. At the same time, the court sets a period during which the identified deficiencies must be corrected. If the person concerned has not rectified the defects, the claim shall be returned. If, after accepting the application for production, the arbitration court determines that the claim procedure has not been complied with by the plaintiff, its claims are left without consideration. This provision is established by Art. 148 agribusiness.
Who is entitled to make a claim?
At enterprises, as a rule, a legal department is provided , whose tasks include legal support of the company. The duties of the employees, among other things, include representation of the interests of the company in the courts. Accordingly, specialists work with various documents from counterparties and government agencies. Meanwhile, the direct preparation of claims may not be part of their responsibilities. This is due to the fact that the dissatisfaction of counterparties may concern various areas of the enterprise. For example, the company received a claim for late delivery. Warehouse workers are responsible for the shipment of goods. Accordingly, they can explain why the delivery was delayed or, conversely, indicate that the claim is unfounded. The tasks of lawyers at the enterprise include checking the compliance of the documentation with the requirements of the law. Thus, employees of other divisions of the enterprise responsible for a particular activity for which a claim was filed draw up a response to it (or to itself, if the counterparty committed a violation). The specialist of the legal department checks the correctness of its compilation, the presence of all the details, the necessary signatures.
conclusions
The conclusion of an agreement between participants in a civil turnover always implies a certain risk. In any case, it is likely that for one reason or another the counterparty may violate the terms of the transaction. In such situations, you should not always sue immediately. First you need to try to resolve the conflict without resorting to judicial protection. In many cases, partners manage to find a way out of the situation. In cases where the counterparties do not want to make concessions, there is nothing else left but to sue. Meanwhile, even after accepting it for consideration at the first meeting, the parties to the conflict are invited to come to a compromise. The adoption of an amicable settlement is another way to resolve the situation.