Compliance with the claims procedure in the arbitration process

Compliance with the claims procedure in the arbitration process

Recently, there has been a tendency towards an increase in the number of citizens' requests for judicial protection, which indicates an increase in citizens' trust in the judiciary, confidence in the ability of the justice authorities to professionally and effectively protect their rights and legitimate interests. At the same time, this entails an increase in the workload of judges and court staff.

In these conditions, the problem of optimizing the judicial workload and solving the problem of ensuring the right of citizens to a fair and public trial within a reasonable time is becoming increasingly important.

From June 1, 2021, the legislator introduced a mandatory claim procedure for resolving disputes in the arbitration process.

According to Part 5 of Article 4 of the Arbitration Procedural Code of the Russian Federation, civil disputes regarding the collection of funds under claims arising from contracts, other transactions, as a result of unjust enrichment, may be referred to the resolution of the arbitration court after the parties have taken measures for pre-trial settlement after thirty calendar days. days from the date of sending the claim (demand), unless another period and (or) procedure is established by law or agreement.

Other disputes arising from civil legal relations are referred to the arbitration court after compliance with the pre-trial dispute resolution procedure only if such a procedure is established by federal law or an agreement.

Economic disputes arising from administrative and other public legal relations may be referred to arbitration court after compliance with the pre-trial dispute resolution procedure if such a procedure is established by federal law.

Failure to comply with the claim procedure is grounds for returning the statement of claim or leaving the statement of claim without consideration.

The pre-trial procedure for resolving economic disputes represents mutual actions of the parties to a material legal relationship aimed at independently resolving disagreements that have arisen. A person who believes that his rights have been violated by the actions of another party appeals to the violator with a demand to eliminate the violation. If the recipient of the claim finds its arguments justified, then he takes the necessary measures to eliminate the violations committed, thereby eliminating the need for judicial intervention. This procedure leads to a faster and mutually beneficial resolution of disagreements and disputes.

In the review of judicial practice of the Supreme Court of the Russian Federation No. 4, approved by the Presidium of the Supreme Court of the Russian Federation on December 23, 2015, it is explained that the claim procedure for resolving a dispute in judicial practice is considered as a method that allows you to voluntarily, without additional costs for paying state fees, with a significant reduction in time, restore violated rights and legitimate interests. This procedure for resolving a dispute is aimed at its prompt resolution and serves as an additional guarantee of the protection of rights.

From the above provisions it follows that the establishment of a mandatory pre-trial stage is intended to ensure a more expeditious, less formalized and costly (compared to the judicial process) resolution of disputes.

What are the requirements for a claim?

Russian legislation does not establish any requirements for the form and content of a letter of claim to be sent in accordance with the provisions of Part 5 of Article 4 of the Arbitration Procedure Code of the Russian Federation.

It should be assumed that the claim must contain the date of its preparation, the name, address of the location of the person who sent the claim, the name, address of the location of the person to whom the claim is made, a description of the circumstances that served as the basis for filing the claim, justification, calculation and amount of the claim, a list attached documents confirming the circumstances set out in the claim, last name, first name and patronymic, position of the person who signed the claim, his signature.

Part 5 of Article 4 of the Arbitration Procedural Code of the Russian Federation establishes that disputes can be referred to the arbitration court after the parties take measures for pre-trial settlement after thirty calendar days from the date of filing the claim.

Thus, by the ruling of the court of first instance, upheld by the court of appeal, the statement of claim was returned to the plaintiff due to the fact that he did not comply with the pre-trial procedure for resolving the dispute.

As evidence of compliance with the pre-trial procedure for resolving the dispute, the plaintiff referred to the fact that the statement of claim contains the following note: “This statement of claim is at the same time a claim addressed to the defendant in accordance with Part 5 of Article 4 of the Arbitration Procedure Code of the Russian Federation.”

The courts of first and appellate instances indicated that, according to Part 5 of Article 4 of the Arbitration Procedure Code of the Russian Federation, the direction or delivery of a claim (demand) must be made 30 days before filing the statement of claim.

If the statement of claim is accepted by the court for proceedings before the expiration of the 30-day period established for filing a claim, the court must find out whether the parties have intentions to resolve the dispute peacefully.

Since the claim dispute resolution procedure serves the purposes of the voluntary implementation of civil sanctions without the participation of special government bodies, the court must proceed from the real possibility of resolving the conflict between the parties if there is the will of the parties to take appropriate actions aimed at independently resolving the dispute. If there is evidence indicating the impossibility of implementing the pre-trial procedure, the claim is subject to consideration in court.

If it is not clear from the case materials that the defendant intends to voluntarily and promptly resolve the dispute out of court, both after receiving the claim and after receiving the claim, leaving the claim without consideration may lead to unreasonably delaying the resolution of the dispute and infringement of the rights of one of its parties.

The claim procedure for resolving a dispute cannot be considered not followed if the defendant has received a claim, but at the same time he has not taken any actions aimed at resolving the dispute.

Thus, by the decision of the court of first instance, the claim was satisfied in full.

The defendant, appealing the court's decision, raised objections to the court's conclusions about the plaintiff's compliance with the pre-trial procedure for resolving the dispute, pointing out that the claim presented in the case file does not constitute evidence of compliance with this procedure, since the 30-day period provided for responding to the claim has not expired .

Leaving the decision of the first instance court unchanged, the appellate court pointed out that in the written claim the plaintiff invited the defendant to voluntarily pay the debt within 5 working days from the date of its receipt according to the details specified in the said document. Meanwhile, in the case materials there was no information about any measures taken by the defendant within the deadline established for the response to peacefully resolve the dispute, as well as during the consideration of the dispute by the court.

Taking into account the goals and objectives for which the institution of pre-trial dispute resolution is applied, the applicant’s argument about the plaintiff’s failure to comply with the pre-trial procedure for resolving the dispute was recognized by the appellate court as untenable.

Evidence of compliance by the plaintiff with the pre-trial (claim) procedure for resolving a dispute with the defendant is a copy of the claim and documents confirming its sending to the defendant. The latter includes a postal receipt (when sending documents by registered or other valuable mail), a certified extract from the log of fax messages (when sending documents by teletype or fax) or a copy of the claim itself, containing the defendant’s note on acceptance of the documents (if documents were delivered in person).

Thus, by the ruling of the court of first instance, left unchanged by the ruling of the appellate court, the statement of claim was left without consideration due to the fact that the plaintiff did not prove the fact of sending the claim to the defendant.

To confirm compliance with the claim procedure for resolving the dispute, the plaintiff submitted a claim dated October 16. The plaintiff, justifying the sending of this claim, presented a register for sending postal correspondence dated October 16 with the stamp of the postal authority.

Meanwhile, the register of postal correspondence presented by the plaintiff did not contain data on the acceptance of correspondence by the postal authority (there was no signature of an employee of the postal authority) and did not indicate further sending of the claim to the addressee; a postal receipt for sending the said claim to the defendant was not presented in the case materials. At the same time, the defendant challenged the receipt of the claim in court.

Having assessed these documents presented by the plaintiff, the court came to the conclusion that from the attached register it is not possible to draw a conclusion about the actual filing of the claim by the plaintiff, since there is no information about payment for postage and the postal identifier number. In connection with the above, the court recognized the plaintiff’s arguments about compliance with the mandatory pre-trial procedure, in the absence of objective data about the filing of the claim, as well as the receipt of this claim by the defendant, as unfounded and unproven.

The question remains whether the claim procedure will be considered complied with if the claim is sent not to the address of the legal entity’s location, but to the address of its branch.

Thus, the court of first instance satisfied the claims in full.

The defendant, appealing the court decision, pointed out that the court of first instance committed a violation of procedural law, since the plaintiff did not comply with the claim procedure for resolving the dispute, since the claim was sent by the plaintiff to the address of the location of the branch of the Federal State Unitary Enterprise "Russian Post", while the defendant FSUE Russian Post, headquartered in Moscow, acted in the case.

The appellate court recognized the defendant’s argument about the plaintiff’s failure to comply with the claim procedure for resolving the dispute as untenable, since paragraph 2 of Article 55 of the Civil Code of the Russian Federation established that a branch is a separate division of a legal entity located outside its location and performing all or part of its functions, including including the functions of representation.

In accordance with paragraph 6 of paragraph 63 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 No. 25 “On the application by courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation,” the addressee of a legally significant message, who has received and established its content in a timely manner, does not have the right to refer to that the message was sent to the wrong address or in an inappropriate form (Article 10 of the Civil Code of the Russian Federation).

If the plaintiff’s claim was received by the defendant’s branch, he had the opportunity to establish the content of the claim, then this indicates compliance with the claim procedure.

An interesting fact is that the limited liability company SIBTEC challenged the constitutionality of Part 5 of Article 4 of the Arbitration Procedural Code of the Russian Code.

In its complaint to the Constitutional Court of the Russian Federation, the limited liability company "SIBTEK" indicated that part 5 of article 4 of the Arbitration Procedural Code of the Russian Federation contradicts articles 34, 45, 46, 118 and 123 of the Constitution of the Russian Federation.

The Constitutional Court of the Russian Federation refused to accept the complaint for consideration, pointing out that the mandatory pre-trial settlement by the parties of a dispute arising from civil legal relations, established by Part 5 of Article 4 of the Arbitration Procedural Code of the Russian Federation, with the exception of cases listed in the same statute, is aimed at stimulating disputing persons to promptly resolve disagreements that have arisen between them without going to court and using mechanisms of state legal coercion. If measures for pre-trial settlement of the dispute do not lead to a resolution of the dispute, the party that believes its rights, freedoms and legal rights have been violated is not deprived of the right to seek their protection in court (Determination of the Constitutional Court of the Russian Federation dated May 25, 2017 No. 1088-O) .

Thus, the Constitutional Court of the Russian Federation came to the conclusion that the contested legal provision cannot be considered as violating the constitutional rights of the applicant listed in the complaint in his specific case.

Based on the foregoing, we can conclude that judicial practice on the issue of proper establishment and compliance with the claim procedure is just beginning to take shape, and quite a lot of time must still pass to make accurate conclusions about what legal facts are considered to be the proper establishment and compliance with the claim procedure or other pre-trial dispute resolution.

One of the main advantages of introducing the institution of a claim dispute resolution procedure is the development and improvement of Russian procedural legislation in terms of the development of alternative methods of dispute resolution, which in the future may reduce the judicial burden.

The claims procedure for resolving disputes serves the purposes of the voluntary implementation of civil sanctions without the participation of special government bodies. If it is impossible to implement the pre-trial procedure, the claim is subject to consideration in court

From June 1, 2021, the legislator introduced a mandatory claim procedure for resolving disputes in the arbitration process. The procedure is regulated by part 5 of article 4 of the Arbitration Procedure Code of the Russian Federation.

ANNA MILOSERDOVA

, ASSISTANT JUDGE OF THE ARBITRATION COURT OF KHABAROVSK TERRITORY

Source of publication: information monthly “The Right Decision” issue No. 12 (182) release date of December 20, 2017.

The article was posted on the basis of an agreement dated October 20, 2016, concluded with the founder and publisher of the information monthly “Vernoe Reshenie” LLC “.

In what cases is pre-trial dispute resolution mandatory?

The claim procedure is considered necessary in two cases:

• when it is specified in the contract;
• when it is determined by law.

The list of disputes with mandatory pre-trial settlement includes:

1. Termination of contracts, including lease agreements and lease of movable and immovable property.
2. Claims against a tour operator related to the provision of low-quality tourism services.
3. Disputes arising from road, sea, inland waterway, rail freight and passenger transport.
4. Collection of payments under compulsory motor liability insurance.
5. Disagreements arising from state and municipal contracts.
6. Termination of agreements for opening and servicing a bank account.
7. Termination of contracts concluded without fail.
8. Conflicts arising in connection with the protection of the rights of consumers of financial services.
9. Request for mandatory payments and financial sanctions.
10. Collection of customs duties from legal entities.

How to properly submit a claim

You can submit your request in the following ways:

1. Personally.

The sender or his representative will have to visit the office of the recipient company and deliver the claim to an authorized person. This could be the manager himself, an office worker or a secretary. One copy of the document is given to the recipient, and on the second he signs for receipt.

If there is a stamp for incoming correspondence, such a stamp is affixed to the document indicating the number and date of receipt. Personal contact, despite its “inconvenience,” is considered the most reliable. Since the sender will be absolutely sure that the addressee received the letter.

1. By registered mail.

The rules for sending regular registered mail apply here. The claim with attached documents is placed in a postal envelope and sent to the counterparty's address.

This option is convenient in cases where the conflicting parties are located in different cities, as well as in the absence of electronic communication methods.

When sending a claim by mail, it is worth remembering that a letter can “travel” across the expanses of the homeland for more than one week, so time for response measures should be provided taking into account the duration of sending.

The inclusion in the claim of a clause stating that the period for satisfying the claim begins to run from the moment the letter is received by the addressee will help eliminate misunderstandings. You will be able to find out about this via an email notification confirming receipt.

1. Email.

Each company today has its own email address, which is displayed on letterheads, business cards, and contracts.

To send a claim by e-mail, it is advisable not only to write the e-mail itself, but also to attach to it a scanned copy of the paper claim with a live signature and other documents related to the case.

In addition, it is recommended that the electronic message itself be signed using an electronic digital signature. Only in this way will it be possible to reliably establish that the appeal came from this specific person.

According to Art. 434 of the Civil Code of the Russian Federation, the court accepts as evidence in an arbitration dispute only those documents whose originator can be identified.

1. Other methods.

As other methods of sending, we consider sending a notification by phone and/or using instant messengers - WhatsApp, Telegram, etc. Such options also have a right to exist, especially since the technical features of mobile instant messengers make it possible to track the moment the recipient reads the message.

Another question is that the court may not accept telephone correspondence as evidence. Although, on the other hand, many judges consider this method of solving the problem to be quite objective.

Pre-trial dispute resolution - deadlines

The period for pre-trial settlement of disputes is established in two ways:

• by law - for disputes with a mandatory pre-trial settlement procedure (10 days, no more than 30 days);
• contract - for legal relations that do not require mandatory completion of this procedure (reasonable period).

In the second case, the reasonableness of the period implies that it should not be too short or too long. So, for example, if 3 days are given for the delivery of undelivered goods, the counterparty, despite a positive attitude towards the requirement, may simply not have time to fulfill it in such a short time.

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As for the period being too long, if the violating party refuses or remains silent, the pre-trial dispute will drag on until unknown times.