Changes in pre-court dispute resolution in 2017
July 12, 2017 entered into force the Federal law from 01.07.2017 year № 147 – FZ "On amendments to article 1252 1486 and part of the fourth Civil code of the Russian Federation and articles 4 and 99 of the Arbitration procedural code of the Russian Federation". This law amended the APC RF relating to the procedure of pre-trial settlement of the dispute. Informed pre-trial settlement of the dispute was compulsory in all disputes arising out of civil relations. The exceptions were the cases concerning establishment of facts of legal significance, the case on awarding compensation for violation of the right to trial within a reasonable time or the right to execution a judicial act within a reasonable time of insolvency (bankruptcy) cases on corporate disputes, cases concerning protection of rights and legitimate interests of a group of persons, cases on early termination of legal protection of a trademark due to its non-use, cases on challenging the decisions of arbitration courts.
Now, the legislator has specified categories of disputes when arbitration procedure is mandatory regardless of whether the dispute settlement procedure in the agreement. Such disputes are civil law disputes concerning the recovery of funds for claims arising from contracts and other transactions, and unjust enrichment. Other disputes arising from civil legal relations are to be settled in the arbitration court after compliance with pre-trial settlement of dispute only if such procedure is established by Federal law or contract.
In addition, the law added to the list of exceptional cases where pre-trial dispute settlement is not mandatory. In particular, added the case of the writ proceeding, the case related to the implementation of arbitration courts of the functions of assistance and supervision in relation to arbitration proceedings on the recognition and enforcement of foreign judgments and foreign arbitral awards.
What are generally the nuances and pitfalls of pre-trial settlement of the dispute?
Quite often, questions about the order and timing of complaint procedure of dispute resolution, the need for its performance arise among the participants of civil legal relations already upon the occurrence of a dispute. However, in our view, the effectiveness of this procedure depends on how well will be worked out and spelled out the terms of her contract. Therefore, at the stage of conclusion of the contract carefully to make and (or) to review the section "settlement of disputes". Particular attention should be paid to:
1) the place where you want to send the claim;
In our opinion, it is undesirable to specify a condition that the claim must be sent to the actual location of the counterparty. The actual location of the counterparty may change at any time, and then have to deal with the complexities of presenting the claim. The time of delivery of the claim, in turn, is important when the court is considering the issue of recognition of pre-trial settlement of the dispute met (nablyudeniem). So the most optimum is the condition of the issue of claims to the legal address of the company. You can always find him either on the official website of the FTS of Russia in a network the Internet or by requesting a certificate of incorporation in the territorial bodies FNS of Russia.
2) the manner of giving of the claim;
As a rule, prescribed in the contract such ways of sending (delivery): on purpose under the painting, by Russian post, by courier service, by Fax or via e-mail and other. It is worth noting that all of the list above, the direction of the claim by Russian post registered mail with notification with the list of contents is less likely in dispute on compliance (non-compliance) complaint procedure.
In recent years the most common way is to claim through Fax or specific email. However, in a dispute in court can be difficult to prove the fact of delivery of the claim. In a contract stipulating such a condition should include a clause of legal force of such documents.
If the contract conditions of the direction of claim by courier service, at the stage of execution of the contract should pay attention to the filling of the accounting documents of the service delivery. Their inadequate design, You can play a "cruel joke" and serve as the basis for the recognition of pre-trial order nablyudeniem.
3) the term of consideration of claim and response on it;
It seems reasonable that such a period should not be prolonged. In our opinion, the period of response to the claim shall not exceed 7 – 10 working days from the date of receipt. Otherwise, the procedure of dispute resolution, including pre-trial, delayed, which may adversely affect the actual results of the resolution (the lack of property which can be levied, the resale of the claimed property, etc.).
Before sending the claim to the participant of civil legal relations it is necessary to assess the completeness and possibility of collecting of the evidence contained in her circumstances, after its receipt by the addressee. If "fate" of evidence may impact the counterparty (for example, not to sign the act of reconciliation of accounts, delete information previously posted on the website in the Internet and shared, etc.), you should insure and prepare evidentiary basis before the start of the claim procedure.
In addition, the importance of out of court dispute settlement has the correct text of the claim. In particular, it is generally desirable not to mention the claim of "weak" aspects of your position (your requirements) or, if necessary, to get them really worked out slightly, not concentrating special attention. Nevsegda should disclose fully all proof of your position (your requirements). In the claim it is useful to focus on the adverse consequences of non-compliance of its requirements (for example, the appeal to bodies of state control and supervision, etc.), including on appeal to the court for resolution of the dispute. In the absence of such wording, the courts are guided by paragraph 2 of part 1 of article 148 of the APC, unable to leave the claim without consideration.