Has the Supreme Court allowed the jurisdiction of disputes to be determined directly in the contract?

As is known, as a general rule, all disputes are subject to resolution by the court at the location (residence) of the defendant. This regulation is due to the legislator’s protection of the defendant’s side, who is thus more likely to be notified of the date and place of the hearing of the case (the defendant is not the initiator of the dispute, and therefore the issue of notifying him is extremely important), in addition, it facilitates the defendant’s opportunity to appear in court, reducing transport, time and other costs.

At the same time, the parties can change the jurisdiction of disputes arising between them

(with the exception of exclusive and generic (subject) jurisdiction), that is, to change the territorial jurisdiction (Article 32 of the Code of Civil Procedure of the Russian Federation).

But in practice, the question arises: how free are the parties to formulate the terms of the agreement on changing territorial jurisdiction. Can counterparties not indicate a specific court, but define a certain algorithm for determining it or include a condition that all disputes are subject to resolution at the location (registration) of the plaintiff, taking into account that such an address may change more than once during the execution of the contract

. Can such contractual regulation take place in the case of an adhesion agreement, as well as with the participation of consumers?

, the dispute recently considered by the Supreme Court of the Russian Federation seems interesting

Description of the situation

As follows from the text of the ruling of the Supreme Court of the Russian Federation No. 5-KG20-142-K2 dated February 16, 2021, a citizen rented a car in one of the Russian car sharing services. The citizen parked the rented car in the wrong place

(on the lawn), which violated Art. 8.25 Code of Administrative Offenses of Moscow. A fine of 300,000 rubles. in accordance with the law, was issued against a car sharing company, the latter paid it, and subsequently decided to recover this amount as damages from the citizen who committed an administrative offense.

The car rental agreement included a clause stating that disputes would be resolved at the location of the lessor. When the parties entered into an agreement, the office of the car sharing company was located in one district of Moscow, but by the day the claim was filed, the company had moved. The new address fell within the territorial jurisdiction of the Zamoskvoretsky District Court of Moscow; That’s exactly where the car sharing company turned.

Zamoskvoretsky District Court of Moscow returned the statement of claim to the plaintiff

, pointing out that it does not follow from the lease agreement that the parties agreed to transfer the case to a specific court, while the wording “at the location of the plaintiff” itself cannot be regarded as an agreement to change territorial jurisdiction, the court of first instance explained its decision .

Moscow City Court

I agreed with this position, noting that otherwise jurisdiction could be changed repeatedly and arbitrarily without the participation of the tenant.
cassation
court supported the conclusions of the lower courts, after which the car sharing company appealed to the Supreme Court of the Russian Federation.

Article 36 of the Arbitration Procedure Code of the Russian Federation. Jurisdiction at the choice of the plaintiff (current version)

1. In Art. 36 of the APC indicates cases when the plaintiff can choose, at his discretion, the arbitration court of a constituent entity of the Russian Federation to which he would like to apply for the protection of his rights, i.e. bring a claim to the arbitration court of your choice (alternative territorial jurisdiction). At the same time, Part 7 of Art. 36 of the APC specifically stipulates that only the plaintiff has the right to choose an arbitration court in cases regulated by this article.

In Part 1 of Art. 36 of the APC provides for the case when the location of an organization or the place of residence of an individual is unknown at the time of filing a claim. In this case, the plaintiff has the right to file a claim either in the arbitration court at the location of the property of such a defendant, or in the arbitration court at his last known location (place of residence). This refers to the last known location (residence) of the defendant in the Russian Federation, and not outside its borders.

Within the meaning of the commented norm for property on the basis of Art. 128 of the Civil Code includes any things (real and movable), including money, securities, as well as property rights. So, for example, if the defendant has money in a bank, then a claim against such defendant on the basis of Part 1 of Art. 36 of the APC can be presented at the location of this bank. If the defendant has the right of ownership, for example, of a building (or premises in a building), then a claim against him can be filed at the location of this real estate.

If the claim is filed at the location of the defendant’s property, then in the statement of claim the plaintiff must indicate the address of the defendant’s last known location (residence). In this case, the plaintiff must provide evidence that the defendant was (lived) at this address. Otherwise, the plaintiff bears the risk of adverse consequences of postponing the trial of the case or the reversal of judicial decisions due to inadequate notification of the defendant who failed to appear. When sending court documents to the defendant, the arbitration court has the right, both on its own initiative and at the request of the plaintiff, to request the authorities that register legal entities about the address of the location of the relevant legal entity.

2. In part 2 of Art. 36 of the APC establishes a rule according to which, if the case involves defendants located in the territories of different constituent entities of the Russian Federation, then the claim, at the choice of the plaintiff, can be brought to the arbitration court at the address (if it is a legal entity) or location (if it is an individual) one of the defendants.

3. Norm part 3 art. 36 of the APC applies to foreign organizations, foreign citizens, stateless persons, Russian organizations and Russian citizens. This rule applies if the following conditions are met in total:

1) the location (residence) of the defendant outside the Russian Federation;

2) the presence of such defendant’s property on the territory of the Russian Federation.

Regarding the location of the defendant’s property, see the commentary to Part 1 of Art. 36 APK.

4. In accordance with Part 4 of Art. 36 of the APC, the plaintiff may bring a claim to the arbitration court, or, based on the general rule of territorial jurisdiction, to the arbitration court at the address or location of the defendant, or to the arbitration court at the place of execution of the contract, if it is specified in the contract.

It should be noted that the rules of this norm are subject to application only if the contract contains a direct indication of the place of its execution, for example, “the supplier must transfer the goods to the location of the buyer.” Thus, the location of the buyer in this case will be, based on the provisions of the commented norm, the place of execution of the contract, and, consequently, the possible place for filing a claim arising from this contract. For claims arising from a work contract, the place of execution of such a contract will be the place where the work is carried out, for example, repair and construction work in a building at a specific address specified in the contract. In one of the cases, having examined and interpreted according to the rules of Art. 431 of the Civil Code, an agreement for the provision of services for the transmission of electrical energy, containing an indication of the provision of services for the transmission of electrical energy (power) to delivery points for the customer’s needs and a list of delivery points agreed upon by the parties to the agreement located on the territory of the Udmurt Republic, the courts came to the conclusion that the parties agreed on the location execution of the contract on the territory of the Udmurt Republic.

———————————

See: Determination of the Supreme Arbitration Court of the Russian Federation dated March 29, 2012 N VAS-2982/12.

See: Determination of the Supreme Arbitration Court of the Russian Federation dated March 28, 2011 N VAS-2846/11.

With regard to disputes related to the circulation of bills of exchange, it is necessary to keep in mind that given the fact that the obligation under a bill of exchange is subject to execution in a place specified in it (place of payment), which may not coincide with the address or location of the person(s) obligated on the bill of exchange (persons), a claim for collection of a bill of exchange debt can be filed both in the place determined in accordance with the general rules on jurisdiction, and in the place of payment on the bill of exchange (clause 40 of the Resolution of the Plenum of the Armed Forces of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 4, 2000 N 33/ 14 “On some issues in the practice of resolving disputes related to the circulation of bills”).

Since an agreement can also be concluded through the exchange of written documents (Article 434 of the Civil Code), if these documents contain an indication of the place of fulfillment of the obligations assumed by the parties, Part 4 of Art. 36 of the APC can be applied by the plaintiff when filing a claim arising from these contractual relations.

It should be noted that when applying the commented norm, it is unacceptable to apply the rules of Art. 316 of the Civil Code, which establishes the rules for determining the place of fulfillment of obligations if the contract does not directly establish the place of their fulfillment.

5. In accordance with Part 5 of Art. 36 of the APC, the plaintiff has the right to file a claim both at the location of the branch, representative office, and at the location of the legal entity itself.

It should be borne in mind that even if in the described Part 5 of Art. 36 of the APC, in cases where the claim is filed with the arbitration court at the location of the separate division of the legal entity, the defendant in the claim will always be a legal entity, since by virtue of clause 3 of Art. 55 of the Civil Code, representative offices and branches are not legal entities; their managers act on behalf of the legal entity and in its interests on the basis of a power of attorney issued to them. However, due to the functions assigned to them by the legal entity, they have the right to carry out activities on behalf of the legal entity that may cause claims to be made against the legal entity.

According to Art. 55 of the Civil Code of the Russian Federation, representative offices and branches must be indicated in the Unified State Register of Legal Entities. Thus, it is in the Unified State Register of Legal Entities that the location (address) of a separate division of a legal entity must be indicated, which is determined based on the constituent documents of the legal entity.

6. In accordance with Part 6 of Art. 36 of the Arbitration Procedure Code, claims for compensation for losses caused by collisions of ships, recovery of remuneration for providing assistance and rescue at sea may be brought:

1) to the arbitration court at the location of the defendant’s ship;

2) to the arbitration court at the place where the losses were caused;

3) to the arbitration court of the home port of the defendant’s vessel.

The concept of “location of the defendant’s vessel” should be understood literally, i.e. as the physical location of the vessel at the time of filing the claim. This could be one or another sea or river port. The place of loss is the place where the collision of ships actually occurred, causing damage to the ships. The home port of a ship should be understood as the port of its registration, i.e. the port where the vessel and the rights to it are registered in the appropriate registry (Article 33 of the MCC).

The choice of the plaintiff between three options for territorial jurisdiction provided for by the commented norm is determined by the nature of the object of the disputed legal relationship. So, for example, if a collision of ships occurred in neutral waters, i.e. in territories where no state has jurisdiction, then a claim for compensation for damage caused by such a collision may be brought to the arbitration court at the place of registration of the defendant’s ship or at the location of the ship at the time of filing the claim. If the collision of ships occurred in any seaport, then the plaintiff has the right to choose from all those provided for in Part 6 of Art. 36 APC jurisdiction options.

Claims for remuneration for assistance and rescue at sea, due to the nature of the subject of such claims, can be filed either at the location of the defendant’s vessel or at the location of its home port. The rules on the place of infliction of losses do not apply in this case, since remuneration for assistance and rescue at sea is not considered losses (see Article 15 of the Civil Code).

Comment source:

Ed. V.V. Yarkova “COMMENTARY ON THE ARBITRATION PROCEDURE CODE OF THE RUSSIAN FEDERATION” (ARTICLE-BY-ARTICLE)”

ABSALYAMOV A.V., ABUSHENKO D.B., BESSONOVA A.I., BURACHEVSKY D.V., GREBENTSOV A.M., DEGTYAREV S.L., DOLGANICHEV V.V., ZAGAINOVA S.K., KUZNETSOV E. N.N., LAZAREV S.V., PLESHANOV A.G., RAZDKONOV E.S., RENZ I.G., RESHETNIKOVA I.V., SKURATOVSKY M.L., SOLOMEINA E.A., SPITSIN I.N. ., TARASOV I.N., TIMOFEEV Y.A., KHAZANOV S.D., KHALATOV S.A., CHUDINOVSKAYA N.A., YARKOV V.V., 2021. Publishing house "STATUT"

Position of the Supreme Court of the Russian Federation

The Supreme Court of the Russian Federation did not agree with the position of the lower courts

. The parties have the right to change the territorial jurisdiction by specifying in the contract not a specific court, but by agreeing that all disputes must be resolved in court at the location of the plaintiff or defendant, which is consistent with the principle of freedom of contract.

At the same time, the mere fact that an adhesion agreement was concluded between the parties, and therefore, the citizen was deprived of the opportunity to influence or change this condition at the stage of concluding the agreement, does not negate the possibility of the above regulation.

The citizen did not challenge the jurisdiction clause

, just as he did not object to the consideration of the case in the Zamoskvoretsky District Court of Moscow, the Supreme Court of the Russian Federation noted, canceling the judicial acts of the lower courts and sending the material to the first instance to resolve the issue of accepting the claim for proceedings and consideration on the merits.

Which court hears disputes between legal entities?

The first step is to understand which court deals with disputes between organizations, including their branches and other separate divisions. The answer to this question is obvious – arbitration. Therefore, when determining whether it is possible to bring a claim against a branch of a legal entity, one should be guided by the provisions of the current Arbitration Procedure Code of the Russian Federation.

In this case we are talking about Article 44, which determines the possible parties to the trial. Organizations or citizens can act in this capacity, which applies equally to both the defendant and the plaintiff. In other words, neither branches nor representative offices are mentioned in the text of the article. Therefore, they cannot act as parties to the lawsuit. As a result, the parent organization becomes the defendant in the case.

Has the Supreme Court of the Russian Federation taken a compromise position?

In the absence of objections from the defendant (citizen), the condition of the adhesion agreement that all disputes between the parties are resolved by the court at the location of the plaintiff (without indicating a specific court) is valid and the courts are obliged to be guided by it at the stage of accepting the claim for their proceedings.
At the same time, if during the trial (we assume that in the first court session) the defendant (citizen) raises objections regarding jurisdiction, the court is obliged to consider the issue of declaring such a condition invalid (inapplicable) and transferring the dispute to another court (we assume that according to the location of the defendant due to the provisions of the Law on the Protection of Consumer Rights and the Code of Civil Procedure of the Russian Federation). At the same time, it remains not entirely clear in what procedural form a citizen must file such objections (in the form of a counterclaim or as written objections). In other words, the Supreme Court of the Russian Federation did not give a clear answer that such conditions (if there are objections) are subject to recognition by the court as invalid due to their contestability or nullity.

The position of the Supreme Court of the Russian Federation, in general, seems logical and justified

. At the same time, in our opinion, the highest court should have highlighted the fact that the citizen acted as a consumer in relations with the car sharing company, which imposes special features on such relations, including endowing the consumer with additional rights and guarantees.

Commentary to Art. 36 Arbitration Procedure Code of the Russian Federation

1. In Art. 36 of the APC indicates cases when the plaintiff can choose, at his discretion, the arbitration court of a constituent entity of the Russian Federation to which he would like to apply for the protection of his rights, i.e. bring a claim to the arbitration court of your choice. Thus, in Art. 36 of the APC refers to alternative territorial jurisdiction. At the same time, Part 7 of Art. 36 of the APC specifically stipulates that only the plaintiff has the right to choose an arbitration court in cases regulated by this article.

In Part 1 of Art. 36 of the APC provides for the case when the location of an organization or the place of residence of an individual is unknown at the time of filing a claim. In this case, the plaintiff has the right to file a claim either in the arbitration court at the location of the property of such a defendant or in the arbitration court at his last known location (place of residence). This refers to the last known location (residence) of the defendant in the Russian Federation, and not outside its borders.

If the claim is filed at the location of the defendant’s property, then in the statement of claim the plaintiff must indicate the address of the defendant’s last known location (residence). In this case, the plaintiff must provide evidence that the defendant was (resided) in this place. Otherwise, the plaintiff bears the risk of adverse consequences of postponing the trial of the case or the reversal of judicial decisions due to inadequate notification of the defendant who failed to appear. When sending court documents to the defendant, the arbitration court has the right, both on its own initiative and at the request of the plaintiff, to request the authorities that register legal entities about the address of the location of the relevant legal entity.

2. In part 2 of Art. 36 of the APC establishes a rule according to which, if the case involves defendants located in the territories of different constituent entities of the Russian Federation, then the claim can be brought to the arbitration court at the location of one of the defendants. It is the plaintiff who is given the right to determine the territorial jurisdiction of the dispute.

3. In accordance with the rule of Part 3 of Art. 36 of the Arbitration Procedure Code, a claim against a defendant located or residing in the territory of a foreign state may be brought to the arbitration court at the location of the defendant’s property on the territory of the Russian Federation. This rule applies to foreign organizations, foreign citizens, stateless persons, Russian organizations and Russian citizens. This rule applies if the following conditions are met in total:

1) the location (residence) of the defendant outside the Russian Federation;

2) the presence of such defendant’s property on the territory of the Russian Federation.

Regarding the location of the defendant’s property, see the commentary to Part 1 of Art. 36 APK.

4. In accordance with Part 4 of Art. 36 of the APC, at the choice of the plaintiff, the jurisdiction of cases arising from the agreement, which indicates the place of its execution, can be determined.

In this case, the plaintiff can bring a claim to the arbitration court, either based on the general rule of territorial jurisdiction, i.e. to the arbitration court at the location of the defendant, or to the arbitration court at the place of execution of the contract, if it is specified in the contract.

With regard to disputes related to the circulation of bills of exchange, it must be borne in mind that taking into account the fact that the obligation under the bill of exchange is subject to fulfillment in a place specified in it (place of payment), which may not coincide with the location or residence of the person (obligated) on the bill of exchange (persons), a claim for collection of a bill of exchange debt can be filed both in the place determined in accordance with the general rules on jurisdiction, and in the place of payment on the bill of exchange (clause 40 of the Resolution of the Plenum of the Armed Forces of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 4, 2000 N 33/ 14 “On some issues in the practice of resolving disputes related to the circulation of bills”).

Since an agreement can also be concluded through the exchange of written documents (Article 434 of the Civil Code), if these documents contain an indication of the place of fulfillment of the obligations assumed by the parties, then in this case, Part 4 of Art. 36 of the APC can be applied by the plaintiff when filing a claim arising from these contractual relations.

5. Rule Part 5 of Art. 36 of the APC provides that a claim against a legal entity arising from the activities of its branch or representative office located outside the location of the legal entity may be brought to the arbitration court at the location of the legal entity or its branch or representative office. In accordance with the commented norm, the plaintiff has the right to file a claim both at the location of the branch, representative office, and at the location of the legal entity itself.

On the issue of determining the location of a legal entity, see the commentary to Art. 35 APK.

The location of a separate division of a legal entity is determined based on the constituent documents of the legal entity, which must contain information about its branches or representative offices, including the addresses of their location (see, for example, paragraph 6 of Article 5 of the Federal Law on JSC, clause 5, article 5 of the Federal Law on LLC). The address of the location of a separate division is also indicated in the regulations on the branch (representative office), approved by the authorized management bodies of the legal entity.

1) to the arbitration court at the location of the defendant’s ship;

2) to the arbitration court at the place where the losses were caused;

3) to the arbitration court of the home port of the defendant’s vessel.

Issues of compensation for damage caused by collisions of ships are regulated by the International Convention for the Unification of Certain Rules Concerning Collisions of Ships and Concerning Assistance and Rescue at Sea, signed in Brussels on September 23, 1910, to which Russia is also a party, as well as the rules of Chapter. XVII KTM.

Issues of collecting remuneration for providing assistance and rescue at sea are regulated by the International Salvage Convention of 1989, to which the Russian Federation is a party, and the rules of Chapter. XX KTM.

The above regulations mainly determine the proper parties, other persons participating in the case, as well as the conditions and limits of liability of the obligated persons.

Protection of the weaker party to the contract

The position taken by the Supreme Court of the Russian Federation is not new and was previously reflected in the practice of the highest court

In order to protect the rights of consumers as the economically weaker party to the contract, the legislator has introduced additional mechanisms of legal protection, including in the matter of determining the jurisdiction of civil cases involving them.

Judicial practice is based on the possibility of a citizen challenging, on the basis of Part 7 of Article 29 of the Code of Civil Procedure of the Russian Federation, paragraph 1 of Article 16 of the Law of the Russian Federation On the Protection of Consumer Rights, the terms of an agreement on the territorial jurisdiction of disputes in cases where it is included by the counterparty in the standard form of the agreement, which, taking into account the provided rule on alternative jurisdiction (at the choice of the consumer), as well as the provisions of Article 421 and paragraph 2 of Article 428 of the Civil Code of the Russian Federation on its validity and on the conditions for termination or amendment of the connection agreement does not violate the rights of the consumer - an individual only when he had the opportunity to conclude an agreement with the organization and without a named condition.

At the same time, if the condition contained in the contract, which determines the territorial jurisdiction of cases arising between the disputing parties to the relationship, has not been disputed in the manner prescribed by law and is valid, then this condition continues to apply on the day the case is considered by the court.

(Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated September 22, 2009 No. 5-B09-115, etc.).

Commentary on Article 29 of the Code of Civil Procedure of the Russian Federation

1. The commented article indicates cases when the plaintiff can choose, at his discretion, the court to which he would like to apply for protection of his rights, i.e. bring a claim in a court of your choice. Thus, the commented article deals with alternative territorial jurisdiction. At the same time, Part 10 of the commented article specifically stipulates that only the plaintiff has the right to choose a court in cases regulated by the commented article.

Part 1 of the commented article provides for the case when the place of residence of an individual is unknown or this person does not have a place of residence in the territory of the Russian Federation (for example, lives abroad) at the time of filing the claim. In this case, the plaintiff has the right to file a claim either in court at the location of the property of such defendant (if any), or in court at his last known place of residence in the Russian Federation.

Within the meaning of the commented norm for property on the basis of Art. 128 of the Civil Code includes any things (real and movable), including money, securities, as well as property rights. So, for example, if the defendant has funds in a bank, then a claim against such defendant on the basis of Part 1 of the commented article can be brought at the location of this bank. If the defendant has the right of ownership, for example, of an apartment, then a claim against him can be filed at the location of this real estate.

If the claim is filed at the location of the defendant’s property, then in the statement of claim the plaintiff must indicate the address of the defendant’s last known place of residence. In this case, the plaintiff must provide evidence that the defendant lived in this place. Otherwise, the plaintiff bears the risk of adverse consequences of postponing the trial of the case or the reversal of judicial decisions due to inadequate notification of the defendant who failed to appear.

2. The rule of Part 2 of the commented article provides that a claim against an organization arising from the activities of its branch or representative office can be brought as per the general rule of Art. 28 of the Code of Civil Procedure, and to the court at the location of its branch or representative office.

According to civil law, a legal entity has the right to open its branches outside its location. This right is granted to a legal entity in order to ensure the most favorable conditions for its activities, the implementation of all or part of its functions, and the representation and protection of its interests outside the location of the legal entity. Depending on the tasks assigned by the legal entity to such a department and the functions assigned to it, they may be representative offices or branches of the legal entity. The Civil Code calls them separate divisions of a legal entity (Article 55 of the Civil Code).

It should be borne in mind that even if in the cases described in Part 2 of the commented article, a claim is filed in court at the location of a separate division of a legal entity, the defendant in the claim will always be a legal entity, since by virtue of Clause 3 of Art. 55 of the Civil Code, representative offices and branches are not legal entities; their managers act on behalf of the legal entity and in its interests on the basis of a power of attorney issued to them. However, due to the functions assigned to them by the legal entity, they have the right to carry out activities on behalf of the legal entity that may cause claims to be made against the legal entity.

The location of a separate division of a legal entity is determined based on the constituent documents of the legal entity, which must contain information about its branches or representative offices, including the addresses of their location (see, for example, paragraph 6 of Article 5 of the Federal Law dated December 26, 1995 N 208-FZ “On Joint Stock Companies” <1>, paragraph 5 of Article 5 of the Federal Law dated February 8, 1998 N 14-FZ “On Limited Liability Companies” <2>). The address of the location of a separate division is also indicated in the Regulations on the branch (representative office), approved by the authorized management bodies of the legal entity.

——————————— <1> NW RF. 1996. N 1. Art. 1. <2> NW RF. 1998. N 7. Art. 785.

3. In accordance with Parts 3 - 6 of the commented article, the following claims may be brought at the plaintiff’s place of residence:

1) claims for alimony. In this case, we mean claims for the collection of alimony both for children and for other persons entitled to this in accordance with family law. In this case, claims for reduction of alimony are subject to consideration according to the general rules of territorial jurisdiction (Article 28 of the Code of Civil Procedure);

2) claims to establish paternity;

3) claims for divorce in cases where the plaintiff has a minor with him or, for health reasons, it is difficult for the plaintiff to travel to the defendant’s place of residence. In this case, the plaintiff must attach to the statement of claim documents confirming the fact that he has a child with him or the fact of such a state of his health that would make it difficult for him to travel to the plaintiff’s place of residence;

4) claims for compensation for damage caused by injury, other damage to health or as a result of the death of the breadwinner. In addition, such claims can be brought in court at the place where the harm occurred. It should be borne in mind that claims for compensation for damage caused to property fall under the general rule of territorial jurisdiction established in Art. 28 Civil Procedure Code;

5) claims for compensation for harm caused to a citizen by illegal conviction, illegal prosecution, illegal use of detention as a preventive measure, a written undertaking not to leave the place, or illegal imposition of an administrative penalty in the form of arrest. The possibility of bringing such claims is provided for in Art. 1070 GK.

The establishment of alternative jurisdiction in these cases is due to the need to provide preferential conditions for certain groups of the population.

4. Part 7 of the commented article establishes alternative jurisdiction for claims for the protection of consumer rights. These claims must arise from relationships involving consumers.

According to the Law of the Russian Federation “On the Protection of Consumer Rights” (as amended by Federal Law No. 2-FZ of January 9, 1996) <1> a consumer is a citizen who intends to order or purchase, or who orders, purchases or uses goods (work, services ) exclusively for personal, family, household and other needs not related to business activities.

——————————— <1> NW RF. 1996. N 3. Art. 140.

Claims for the protection of consumer rights can be filed either by the consumer himself in defense of his rights and interests, or by other persons in defense of the interests of an indefinite number of consumers. So, according to Art. 46 of the Law “On Protection of Consumer Rights” the authorized federal executive body for control (supervision) in the field of consumer rights protection (its territorial bodies), other federal executive bodies (their territorial bodies) exercising control and supervision functions in the field of rights protection consumers and the safety of goods (works, services), local government bodies, public associations of consumers (their associations, unions) have the right to bring claims to the courts to recognize the actions of the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer) as unlawful in relation to an unspecified circle of consumers and to stop these actions.

The commented norm establishes five options for jurisdiction of these claims:

1) the general rule of territorial jurisdiction (Article 28 of the Code of Civil Procedure);

2) to the court at the plaintiff’s place of residence;

3) to the court at the place of residence of the plaintiff. The place of stay should be distinguished from the place of residence. Place of stay is the place where a person is temporarily located;

4) to the court at the place where the contract was concluded with the consumer. The place of conclusion of the contract may be specified by the parties in the contract itself. According to Art. 444 of the Civil Code, if the contract does not indicate the place of its conclusion, then the contract is recognized as concluded at the place of residence of the citizen or the location of the legal entity that sent the offer (proposal to conclude a contract). According to the general rule of Art. 493 of the Civil Code, a retail purchase and sale agreement is considered concluded in the proper form from the moment the seller issues a cash receipt or sales receipt or other document confirming payment for the goods to the buyer. In such cases, unless another place is indicated in the named documents, the place of concluding the purchase and sale agreement will be the place of residence of the citizen-entrepreneur or the location of the legal entity who is the seller;

5) to the court at the place of execution of the contract with the consumer. According to the general rule of Art. 316 of the Civil Code, the place of performance is indicated in the contract or is evident from business customs or the essence of obligations, and may also be indicated in a law or other legal act. If the place of performance is not determined by law, other legal acts or contract, or is not clear from business customs or the essence of the obligation, performance must be made: a) for the obligation to transfer a land plot, building, structure or other real estate - at the location of the property ; b) under an obligation to transfer goods or other property that involves its transportation - at the place of delivery of the property to the first carrier for delivery to the creditor; c) for other obligations of the entrepreneur, to transfer goods or other property - at the place of production or storage of the property, if this place was known to the creditor at the time the obligation arose; d) for a monetary obligation - at the place of residence of the creditor at the time the obligation arose; if the creditor at the time of fulfillment of the obligation changed his place of residence or location and notified the debtor about this - at the new place of residence of the creditor; e) for all other obligations - at the place of residence of the debtor, and if the debtor is a legal entity - at its location.

5. In accordance with the rule of alternative jurisdiction established in Part 8 of the commented article, claims for compensation for losses caused by a collision of ships, recovery of remuneration for providing assistance and rescue at sea may be brought: 1) to the court at the location of the defendant’s ship; 2) to the court of the home port of the defendant’s vessel.

Issues of compensation for damage caused by collisions of ships are regulated by the Convention for the Unification of Certain Rules Regarding Collisions of Ships of September 23, 1910, to which Russia is also a party, as well as by the rules of Chapter. XVII KTM.

The above regulations mainly determine the proper parties, other persons participating in the case, as well as the conditions and limits of liability of the obligated persons.

The concept of “location of the defendant’s vessel” should be understood literally, i.e. as the physical location of the vessel at the time of filing the claim. This could be one or another sea or river port. The home port of a ship should be understood as the port of its registration, i.e. the port where the vessel and the rights to it are registered in the appropriate registry (Article 33 of the MCC).

For example, the Rules for the registration of ships and rights to them in sea trade ports, approved by Order of the Ministry of Transport of Russia dated July 21, 2006 N 87 <1>, establishes a List of sea trade ports in which the registration of ships used for merchant shipping purposes and rights is carried out on them.

——————————— <1> BNA. 2006. N 32.

The choice of the plaintiff between two options of territorial jurisdiction provided for by the commented norm is determined by the nature of the object of the disputed legal relationship, since a collision of ships can also occur in neutral waters, i.e. in territory over which no state has jurisdiction.

6. In accordance with Part 9 of the commented article, the jurisdiction of cases arising from the agreement, which indicates the place of its execution, may be determined at the choice of the plaintiff.

In this case, the plaintiff can bring a claim to the court based on the general rule of territorial jurisdiction, i.e. to the court at the location of the defendant or to the court at the place of execution of the contract, if it is specified in the contract.

The rules of this norm are subject to application only if the contract contains a direct indication of the place of its execution, for example, “the contractor must perform work at the location (residence) of the customer.” Thus, the location (residence) of the buyer in this case will be, based on the provisions of the commented norm, the place of execution of the contract, and therefore the possible place for filing a claim arising from this contract.

With regard to disputes related to the circulation of bills of exchange, it is necessary to keep in mind that taking into account the fact that the obligation under the bill of exchange is subject to execution in the place specified in it (place of payment), which may not coincide with the location or residence of the person (obligated) on the bill of exchange (persons), a claim for collection of a bill of exchange debt can be filed both in the place determined in accordance with the general rules on jurisdiction, and in the place of payment on the bill of exchange (clause 40 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 4, 2000 N 33/14 “On some issues in the practice of resolving disputes related to the circulation of bills of exchange” <1>).

——————————— <1> RF Air Force. 2001. N 2. P. 19.

Since an agreement can also be concluded through the exchange of written documents (Article 434 of the Civil Code), then if these documents contain an indication of the place of fulfillment of the obligations assumed by the parties, Part 9 of the commented article can also be applied by the plaintiff when filing a claim arising from the data contractual relations.

When applying the commented norm, it is unacceptable to apply the provisions of Art. 316 of the Civil Code, which establishes the rules for determining the place of fulfillment of obligations.

According to the rules of Part 9 of the commented article, the jurisdiction of claims for the protection of consumer rights cannot be determined, since in relation to these claims, Part 7 of the commented article establishes special rules for determining jurisdiction.

7. Part 2 of Art. 254 of the Code of Civil Procedure establishes alternative territorial jurisdiction in cases of citizens challenging decisions and actions (inaction) of state authorities, local government bodies, officials, state and municipal employees: at the discretion of the citizen, the application can be filed with the court at the place of his residence or location government body, local government body, official, state and municipal employee, the decision, action (inaction) of which is disputed. Applications from organizations in this category of cases are submitted to the court according to the rules of general territorial jurisdiction (Article 28 of the Code of Civil Procedure).

conclusions

Summarizing the above, we note the following. In our opinion, if both parties to the contract (including accession) are professional participants in civil transactions (carry out business activities) and there is no abuse of law or obvious bad faith in the actions of one of the parties, then such conditions for determining contractual jurisdiction should be qualified by the courts as legitimate

At the same time, if one of the parties is a consumer (who was deprived of the opportunity to influence the terms of the contract at the stage of its conclusion and he stated reasoned objections in court) or bad faith is obvious

the person who proposed such regulation - such terms of the contract are subject to recognition by the court as invalid, and the dispute is subject to consideration by the court based on the current norms of procedural legislation.