When is the pre-trial order of dispute settlement in the arbitration process mandatory?

Arbitration and Procedural Legislation of the Russian Federation contains rules that in many cases require parties to economic disputes to initiate pre-trial resolution of disputes that have arisen. This procedure has quite a few nuances, due to the specific features of the legal relationship, as well as the specifics of inter-corporate interaction of enterprises. What are they? In what cases is the pre-judicial settlement of arbitration disputes necessarily due to the requirements of the law?

What is the essence of the pre-judicial order of settling disputes 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 immediate judicial review of the claim. Therefore, the order in question is sometimes called a claim order. If, within the pre-trial procedure, the parties did not reach a compromise, the appeal is already made to the arbitration court.

Is it mandatory to apply pre-trial order in arbitration disputes?

Previously, pre-trial consideration of disputes could be initiated by a party to legal relations, which felt a violation of its rights in the interaction with the counterparty, at her request. Now the pre-trial procedure for resolving a dispute in the arbitration process is generally required if differences 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, which contains this provision - the AIC RF.

The application of an economic entity to the competent body that conducts arbitration cases can be effected only after 30 days from the date when the counterparty was sent a claim. But in the contract between business entities other conditions may be prescribed.

It is worth noting that in the event that the dispute concerns the challenge of a decision made by an arbitration court and is related to corporate, as well as administrative and other public relations, then its pre-trial consideration by the parties is mandatory 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 there were rules on which the initiation of a claim procedure for the consideration of a civil dispute was also mandatory, if certain sources of law required it. For example, in the sphere of cargo transportation, the regulatory legislation required from economic entities having disagreements not to immediately apply to arbitration, but to initiate a pre-judicial order to review the difficulties encountered.

If the plaintiff refuses to conduct a pre-trial settlement of the dispute, the arbitration will have the right to leave his claim without motion, but to invite the relevant economic agent to eliminate the violation committed by him within a certain period. If the court finds that the pre-trial procedure for resolving the dispute in the arbitration process is not met after the adoption of the claim, the relevant appeal will be left without consideration.

Thus, in civil disputes - actually, they are most often found in business, parties that have disagreements - you need to first consider the problem in a 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 the pre-trial settlement of the dispute

It can be noted that a claim can be a source that makes sense not only when there is a mandatory pre-trial settlement of disputes, but, in principle, in most situations where there are disagreements among business partners. The fact is that work 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 the economic entity, it will be in its interest to satisfy the corresponding claim. But if he refuses to do this or finds that he did not violate the provisions of the treaty, it is already possible to initiate an appeal to arbitration.

The form of the claim in question is not legally approved. Thus, despite its importance, the relevant document, the preparation of which presupposes the pre-judicial order of dispute settlement, is made in an arbitrary form, but subject to the general rules of record keeping.

It is desirable that it was formed using the company letterhead of the organization, which subsequently intends to file a claim against the counterparty in an arbitration court, contained the signature of the head of the firm, the date of compilation and other necessary requisites. Consider what formulations may include the claim in question.

Content of claim: subject of dispute

First of all, the relevant document should fix the obligation under the contract between business entities, which led to disagreements between partners. The document also specifies a specific violation, which, in the opinion of one of the parties to the legal relationship, was committed by its counterparty, as well as by the unfulfilled legal norms - also according to the version of the relevant party. In addition, the claim fixes the requirement for the counterpart to eliminate the violation.

Also, the pre-judicial procedure for resolving a dispute in an arbitration process using a claim involves the inclusion in the relevant document of the indicators of the value of the demand that the party of legal relations puts forward.

Claim content: response time

The document in question should reflect the period during which the counterparty is obliged to respond to the claims that are put forward by the business entity. However, it can not be less than the period provided for in the contract or the provisions of the law. In the claim also it makes sense to include language on which the counterparty will be warned by his partner about the consequences of leaving the requirements unanswered. That is, you can specify in the document that the next step of the firm will be to contact the competent authority that conducts arbitration cases.

Claim content: attachments

Claims can be supplemented by various applications - for example, documents, extracts, confirming that the counterparty violated the rights of the business entity. In principle, you can attach and copy them, but the originals still need to be in the party to the dispute in the operational access.

Pre-trial claim: how to send the document to the counterparty?

The claim as a key document in the framework of such procedure as pre-trial settlement of the dispute in the arbitration process may be forwarded to the counterparty:

- by registered mail;

- by fax;

- by e-mail - but in this case it is desirable that the authenticity of the claim can be unequivocally certified.

Many firms prefer to use the help of courier services in the delivery and personal delivery of the claim to the counterparty for signature. To solve this problem, corresponding orders can be given also to the company's specialists. Any documents confirming the fact of sending the claim to the counterparty, for example, receipts for payment for courier services or, for example, notification from the mail, should be retained by the business entity. If the compulsory pre-trial settlement of the dispute in the arbitration process does not lead to a resolution of the problem and the parties still have to apply to arbitration, then the relevant documents will need to be attached to the statement of claim. They will be proof that the claim was forwarded to the counterparty, as required by law.

In addition, the corresponding receipt, notification or other similar document will be the basis for the counting of the period after which the pre-trial procedure for the settlement of the dispute in the arbitration process can be legally completed . Terms, as we noted above, in this case can be determined in the provisions of legislation or in agreements between business entities. Once they expire, the firm can, if it deems it necessary, initiate a claim in arbitration. Which, in turn, will no longer have a legitimate reason for refusing to accept a claim.

The importance of the claim procedure for the consideration of economic disputes

The procedure under consideration - the pre-judicial procedure for settling a dispute - is of great importance in the arbitration process, not only in terms of the compliance of business entities with the rules of arbitration and procedural law, but in many other aspects. For example, if the counterparty recognizes those positions that are reflected in the claims of the economic entity, then on the basis of the relevant document, the arbitration court may decide in a simplified procedure. This feature allows to save time and reduce expenses of the parties for consideration of the object of disagreement in court if to compare them with those that characterize the usual solution of arbitration disputes.

Claim as part of the dispute settlement process

It is worth paying attention to the most important nuance of legal relations with the participation of economic entities: the claim can actually be only a part, albeit one of the most important, but still one of many, procedures for resolving a dispute outside arbitration. This document is mandatory from the point of view of the requirements of the arbitration-procedural legislation. But in practice, many enterprises themselves, outside consideration of disagreements in the context of possible prospects of applying to judicial instances, initiate a pre-trial order of dispute resolution.

In this case, the problem-solving algorithm can be based:

- on the provisions of civil law;

- on intercorporate agreements, establishing for their participants certain rights and obligations.

The standard procedure for resolving disputes outside arbitration may include:

- conducting consultations, internal meetings on the problem;

- Analyzing the problem that occurred, evaluating various circumstances that may be relevant from the point of view of developing the position of the economic entity in interaction with the counterparty;

- evaluation of evidence of violations of the interests of the enterprise;

- determination of the legality of the position of the economic entity from the point of view of the norms of the current legislation;

- Forming a claim against the counterparty - in this case, as part of the dispute settlement process;

- initiation of negotiations with contractors.

In order to effectively resolve disputes with the counterparty, the enterprise can apply to various competent firms for additional consultations. For example - in the center of arbitration disputes, promoting firms also in resolving issues and without trial.

An alternative to applying to arbitration may be, for example, consideration of a dispute by an arbitral tribunal. This process is characterized by much faster operability, involves referring to the same qualified judges who are able to make a fair decision.

Thus, it is obvious that in such legal relations the claim is only one of the possible documents that the parties use to resolve the problem. Firms do not necessarily, therefore, initiate, in fact, the pre-trial order of dispute settlement in the arbitration process. The right of economic entities is to resolve the dispute privately. In which, however, a document such as a claim can be used, in its turn, in the case of arbitration disputes.

Summary

So, we examined the cases when in accordance with the norms of the APC of the Russian Federation the pre-trial procedure for settling a dispute in an arbitration process is mandatory. Now it needs to be implemented in all cases when the problem arose within the framework of legal relations between economic entities that interact in the jurisdiction of civil law. Previously, the firms cooperating on the basis of the Civil Code of the Russian Federation could voluntarily - unless otherwise provided for by the federal law, initiate a pre-trial order of dispute settlement in the arbitration process. Changes in the regulatory legislation, which came into force in 2016, require civil entities to do this in any case.

In turn, if the dispute arose in the framework of challenging the decision of the arbitral tribunal, with administrative, corporate legal relations, then its resolution in the pre-trial order is mandatory only if it is required by a separate federal law.

The main document used in the pre-trial settlement of disputes between business entities is a claim. It should be sent by a firm that considers its rights violated, to the counterparty before the claim is submitted to arbitration - otherwise the court will leave it without moving. Only 30 days after sending the claim, which is documented, for example, by notification from the post, the firm can apply to arbitration.

The fact that the counterparty recognizes the claims reflected in the claims can be taken into account by the arbitral tribunal in terms of the legality of the dispute in the simplified procedure .

The claim, which is drawn up in the framework of such procedure as pre-trial procedure for resolving disputes between economic entities, can also be applied in the interaction of the parties that decided to overcome differences in principle without resorting to court. In this case, its direction can only be one of the stages in the settlement of the dispute.