The Plenum of the Supreme Court approved new rules of the arbitration process
24 dec 2021
The draft resolution was discussed for the first time at a Plenary session on December 14. By the "second reading", the editorial commission took into account the wishes of the presidential legal department and made a number of significant amendments. So, the Supreme Court allowed not to certify a copy of the diploma of higher education, but forbade both the basis and the subject of the claim to be changed at the same time.
The new resolution completely replaces the explanations of the Plenum of the Supreme Arbitration Court, which were adopted back in October 1996.
Rules of jurisdiction
The Supreme Court recalled that a lawsuit can be filed at the location of any of the co-defendants. The arbitration court is not entitled to return the claim only on the grounds that it could have been filed at the location of another co-respondent. At the same time, it is necessary to state any requirement to the co-respondent, according to which jurisdiction is chosen, otherwise the claim will be returned.
The parties can also specify in the contract in which court their possible dispute will be resolved. The agreement on the change of jurisdiction does not depend on other terms of the contract. Therefore, if the contract is declared invalid, this clause will continue to apply, unless, of course, the entire contract has been falsified.
A new explanation was included in the final version of the resolution. The determination in the agreement of the place of performance of the obligation cannot be considered as the place of performance of the contract for changing the jurisdiction. "The place of actual performance of the obligation is not a sufficient basis for filing a claim at the place of performance of the contract," the Supreme Court emphasizes.
Acceptance of the claim
If the court returned the claim due to the lack of jurisdiction of the case to the courts of general jurisdiction, the applicant may apply to the arbitration court and attach an act of the first court to the claim. In such a case, the arbitration court is obliged to accept and consider such a claim on the merits. At the same time, he must set off the state fee paid by the applicant when applying to the court of general jurisdiction.
From the final version of the document, an explanation was removed about the need to refuse to accept a statement of claim if such a dispute is not subject to consideration in the courts.
It is possible without a diploma
According to the rules of the Arbitration Procedural Code, representatives in arbitration courts must have a higher legal education. But not everyone needs a diploma.
Lawyers can confirm the right to participate in the case only by a power of attorney. A certificate or a copy of it will not be required, because information about their education is confirmed by information from the registry of the bar chamber.
Lawyers may also not bring a diploma of higher education to court. A notarized copy is not required: if the court has doubts about the qualifications of the representative, he can ask him to submit the original document of education.
Arbitration managers and bankruptcy representatives do not have to confirm their qualifications in court.
Prosecutor in bankruptcy
By the "second reading", the Plenum supplemented the explanations with a new paragraph. It provides for the right of the arbitration court to involve a prosecutor in a bankruptcy case if the issue of the housing rights of the debtor or his minor children is being resolved.
Unknown defendant
If the plaintiff does not know the date and place of birth of the defendant and none of his identifiers, the court may make a request to the tax authorities, the Ministry of Internal Affairs or the Pension Fund.
Thoughtful changes
The Arbitration Procedural Code gives the plaintiff the right to change the basis of the claim. For example, to reclassify a claim from the recovery of losses to the recovery of unjustified enrichment.
Another available option is to change the subject of the claim. For example, to ask not for the recovery of damages, but for the replacement of goods of inadequate quality.
But simultaneous change of the subject and the basis of the claim is unacceptable. Thus, the court will not accept the change of the requirement to declare the transaction invalid due to violations committed during its conclusion to the requirement to terminate the contract with reference to violations that were committed during the execution of the transaction.
Counterclaims
The arbitration court may accept a counterclaim if it is directed to offset the original. There may be no direct connection between the counterclaim and the initial claim. For example, in one case, counterclaims for payment under several different contracts may be considered, if there are grounds for setting off claims from these contracts.
The court must also accept a counterclaim if its satisfaction in whole or in part excludes the satisfaction of the original claim. "For example, in the case of a claim for debt collection under a contract, it may be declared that this contract is invalid," explains the Plenum.
Without "pre-trial", but also without abuse
Under the new rules, the defendant can file a counterclaim without observing the pre-trial dispute settlement procedure. Now the courts are completely "transferring" the rules for filing an "ordinary" claim to the counterclaim filing procedure. Now the Supreme Court makes an exception for such requirements.
The Plenum recommends filing a counterclaim "in a timely manner". If such an action is "obviously" aimed at delaying the process, the counterclaim will be returned. At the same time, the defendant will have the right to file a separate claim.
The Plenum of the Supreme Court approved new rules of the arbitration process
The draft resolution was discussed for the first time at a Plenary session on December 14. By the "second reading", the editorial commission took into account the wishes of the presidential legal department and made a number of significant amendments. So, the Supreme Court allowed not to certify a copy of the diploma of higher education, but forbade both the basis and the subject of the claim to be changed at the same time.
The new resolution completely replaces the explanations of the Plenum of the Supreme Arbitration Court, which were adopted back in October 1996.
Rules of jurisdiction
The Supreme Court recalled that a lawsuit can be filed at the location of any of the co-defendants. The arbitration court is not entitled to return the claim only on the grounds that it could have been filed at the location of another co-respondent. At the same time, it is necessary to state any requirement to the co-respondent, according to which jurisdiction is chosen, otherwise the claim will be returned.
The parties can also specify in the contract in which court their possible dispute will be resolved. The agreement on the change of jurisdiction does not depend on other terms of the contract. Therefore, if the contract is declared invalid, this clause will continue to apply, unless, of course, the entire contract has been falsified.
A new explanation was included in the final version of the resolution. The determination in the agreement of the place of performance of the obligation cannot be considered as the place of performance of the contract for changing the jurisdiction. "The place of actual performance of the obligation is not a sufficient basis for filing a claim at the place of performance of the contract," the Supreme Court emphasizes.
Acceptance of the claim
If the court returned the claim due to the lack of jurisdiction of the case to the courts of general jurisdiction, the applicant may apply to the arbitration court and attach an act of the first court to the claim. In such a case, the arbitration court is obliged to accept and consider such a claim on the merits. At the same time, he must set off the state fee paid by the applicant when applying to the court of general jurisdiction.
From the final version of the document, an explanation was removed about the need to refuse to accept a statement of claim if such a dispute is not subject to consideration in the courts.
It is possible without a diploma
According to the rules of the Arbitration Procedural Code, representatives in arbitration courts must have a higher legal education. But not everyone needs a diploma.
Lawyers can confirm the right to participate in the case only by a power of attorney. A certificate or a copy of it will not be required, because information about their education is confirmed by information from the registry of the bar chamber.
Lawyers may also not bring a diploma of higher education to court. A notarized copy is not required: if the court has doubts about the qualifications of the representative, he can ask him to submit the original document of education.
Arbitration managers and bankruptcy representatives do not have to confirm their qualifications in court.
Prosecutor in bankruptcy
By the "second reading", the Plenum supplemented the explanations with a new paragraph. It provides for the right of the arbitration court to involve a prosecutor in a bankruptcy case if the issue of the housing rights of the debtor or his minor children is being resolved.
Unknown defendant
If the plaintiff does not know the date and place of birth of the defendant and none of his identifiers, the court may make a request to the tax authorities, the Ministry of Internal Affairs or the Pension Fund.
Thoughtful changes
The Arbitration Procedural Code gives the plaintiff the right to change the basis of the claim. For example, to reclassify a claim from the recovery of losses to the recovery of unjustified enrichment.
Another available option is to change the subject of the claim. For example, to ask not for the recovery of damages, but for the replacement of goods of inadequate quality.
But simultaneous change of the subject and the basis of the claim is unacceptable. Thus, the court will not accept the change of the requirement to declare the transaction invalid due to violations committed during its conclusion to the requirement to terminate the contract with reference to violations that were committed during the execution of the transaction.
Counterclaims
The arbitration court may accept a counterclaim if it is directed to offset the original. There may be no direct connection between the counterclaim and the initial claim. For example, in one case, counterclaims for payment under several different contracts may be considered, if there are grounds for setting off claims from these contracts.
The court must also accept a counterclaim if its satisfaction in whole or in part excludes the satisfaction of the original claim. "For example, in the case of a claim for debt collection under a contract, it may be declared that this contract is invalid," explains the Plenum.
Without "pre-trial", but also without abuse
Under the new rules, the defendant can file a counterclaim without observing the pre-trial dispute settlement procedure. Now the courts are completely "transferring" the rules for filing an "ordinary" claim to the counterclaim filing procedure. Now the Supreme Court makes an exception for such requirements.
The Plenum recommends filing a counterclaim "in a timely manner". If such an action is "obviously" aimed at delaying the process, the counterclaim will be returned. At the same time, the defendant will have the right to file a separate claim.
Link: https://pravo.ru/story/237844/