Pre-trial dispute settlement procedure in the arbitration process. When it’s necessary?

Jan, 12 2024


Pre-trial settlement of disputes is a list of measures aimed at resolving the conflict situation before the parties go to court.

Arbitration proceedings are the process of resolving conflicts within the framework of arbitration procedural legislation. At the same time, the parties to the dispute must have the status of an entrepreneur or a legal entity. As a rule, such legal proceedings involve the resolution of economic conflicts or disputes related to entrepreneurial activity.

Thus, the pre-trial dispute settlement procedure in arbitration proceedings involves taking steps to resolve a conflict situation of an economic or business nature before filing a lawsuit in court. As a rule, the law allows the parties to the dispute to solve the problem with the least losses through negotiations or with the involvement of third parties. In any case, this practice reduces the legal costs of businessmen and the burden on Russian courts.

What you need to know about the pre-trial dispute settlement procedure in the arbitration process

Article 5, Article 4 of the Arbitration Procedural Code of the Russian Federation prescribes the parties to try to resolve the dispute before going to court before initiating the arbitration process.

However, there are situations when the parties will not be able to do with an informal approach. The Federal Law clearly establishes a list of cases when the obligation of pre-trial settlement of a dispute in the arbitration process applies. Such situations include:

  • Issues related to the execution of the contract.
  • Amendments to the contract or its termination.
  • Upon termination of the lease agreement.
  • Upon termination of logistics contracts.
  • Disputes between two sole proprietors or a legal entity and an individual entrepreneur.
  • Conflict situations where the potential defendant is a government agency. In this case, the pre-trial dispute resolution procedure is valid in two cases. Firstly, if the taxpayer does not agree with any decision of the Federal Tax Service. Secondly, if the registration authority has decided to refuse state registration of something.

In this case, the mandatory pre-trial settlement of disputes in the arbitration process presupposes the claim-based nature of the conflict resolution. As a rule, a document with a list of requirements is sent once. However, there are examples of situations where it is possible to reuse such a method. For example, an entrepreneur sends a claim to the counterparty with the declared amount of debt and the amount of the penalty calculated according to the terms of the contract. After the court’s decision on the recognition of these claims as substantial, the entrepreneur can send a repeated claim for the payment of a penalty before the next trial.

The law establishes the following actions in case of mandatory settlement of the conflict before the court:

  • Notification of a potential defendant by means of a pre-trial claim with a list of requirements.
  • Filing a statement of claim to the court in 30 calendar days from the date of filing the document, provided that the counterparty ignored the requirements of the potential plaintiff. If a different deadline was specified when drawing up the contract, then you should rely on the contractual terms.

The bottom line is that when applying to the court, the plaintiff must provide evidence of an attempt to settle the dispute in a pre–trial manner – a copy of the claim with the date of its dispatch. Otherwise, the case will not be accepted.

What you need to know when drafting and submitting a claim?

The legislation of the Russian Federation does not provide for the existence of clear rules governing the preparation of the document. However, there are some points that we want to pay attention to.

  1. The claim must contain clearly formulated requirements that will correspond to the claims in the future.
  2. It is desirable that the amounts of debt, penalties and interest are the same in the claim and in the claim. However, there are precedents when such minor inconsistencies were mistaken for errors in the calculation.
  3. The claim must be accompanied by a complete list of documents, the list of which is established by law or by a contract between the parties. Both the plaintiff and the defendant must have business papers from this list. If the defendant does not have a complete set of documents, he must report this in the cases prescribed by law.

As a rule, the claim is sent by registered mail to the address specified in the Unified State Register of Legal Entities or in the contract. If there is a regional branch, the law allows you to send a claim to such an address if the subsidiary has rights to pre-trial dispute resolution. If such a requirement is not spelled out in the contract, then it is not necessary to send it in the form of a valuable letter with an inventory of the attachment. In any case, the plaintiff has a postal receipt in his hands, which is proof of the fact of sending the claim.

However, there are other ways to notify the defendant of their requirements:

  • Personal delivery to the secretary of the company with the assignment of an incoming number.
  • Sending a letter through the courier service.

By e-mail address, subject to the establishment of such an order by regulatory acts or contract.

In any case, it is important to make sure that the letter was accepted by an authorized person.

How to avoid mistakes when making a claim?

In 2022, the Supreme Court of the Russian Federation summarized the practice of drafting and submitting claims as part of the pre-trial dispute settlement procedure in the arbitration process. Such a legal educational program was necessary to reduce the practice of returning statements of claim or leaving them without movement. In order not to waste time correcting errors, it is necessary to ensure the correctness and thoroughness of the entire process in advance. It is necessary to consider:

1. Clarity of wording when drafting a claim.

First, this applies to a detailed description of the requirements and their legal justification. It is not uncommon for plaintiffs to prescribe one list of requirements during the pre-trial procedure, and this list is expanded in the statement of claim. In such a situation, the court will refuse to consider the applicant’s claim due to the vagueness of his position.

One example of such a violation is the relationship between the landlord and the owner of the premises. So, when sending a pre-trial claim for the payment of a penalty and the principal debt due to late lease payments, it is necessary to separate two claims: in one to prescribe the amount of the penalty for a certain period, in the other – the amount of the principal debt. If only the recovery of the principal debt is prescribed in the claim, and a penalty is added to the claim, then the court may refuse to fulfill the requirements of the application.

It is important to know that if there is a reasonable change in the amount of the debt after the registration of the claim, you do not need to send a secondary claim.

2. The accuracy of the address of the future recipient.

According to the current legislation, a letter of claim can be sent to the legal address of the company, as well as to the actual location of the office, which is prescribed in the contract. This procedure was fixed by the Supreme Court of the Russian Federation, which clarified that the claim cannot be returned based on sending a claim to an address other than the entry in the Unified State Register of Legal Entities. Moreover, if the content of the contract implies sending a claim by e-mail, then the counterparty can exercise this right.

In the event of a situation of return of the application on the above grounds, such a decision can be appealed in cassation.

3. Compliance with deadlines settlement of the dispute in a pre-trial manner.

It is impossible to send a statement of claim to the court before the completion of the pre-trial dispute settlement procedure. First, it is necessary to receive a response from the counterparty, which he can send within 30 days from the date of receipt of the claim. Otherwise, it is necessary to wait for the due date and make sure that there is no response from the second participant in the process.

If the deadlines are not met, the court will return the statement of claim without consideration. However, the court may set off if the period for pre-trial settlement expires at the time the claim is accepted for production.

What is provided in case of violation of the mandatory pre-trial settlement of conflicts in arbitration proceedings?

The legislation does not define the exact list of sanctions for non-compliance with the mandatory procedure for resolving disputes before a court hearing. As a rule, if, after filing a claim, the defendant declares that the pre-trial settlement stage has been skipped by the plaintiff, the court will leave this claim without consideration, if it has already been accepted for production. Most often, the application is rejected at the registration stage. Such a rule applies in the courts of first instance.

What clarifications about the settlement of arbitration disputes before the trial were given by the Supreme Court in 2022?

  1. If the legal successor fulfilled the pre-trial procedure condition earlier, the legal successor may not file another claim against the same company.
  2. Information about the plaintiff’s compliance with the pre-trial settlement should be reflected in the claim with the attachment of the relevant documents.
  3. When filing a counterclaim, it is not necessary to comply with the requirement of a pre-trial settlement procedure.
  4. If there are two defendants in the case, but the plaintiff turned to the improper one of them, then the second one can prove the fact of settlement of the dispute in a pre-trial order. In this case, the court may satisfy the plaintiff’s claims only partially or transfer court costs to him.
  5. The contractual condition on the mandatory pre-trial settlement of the dispute is considered null and void if the rule regarding this subject is not established by law.
  6. Pre-trial settlement can be ignored when the contract is recognized as terminated, if a unilateral refusal to fulfill the terms of the contract has been sent before.

Questions and answers

I received an e-mail with information about the presence of debt to the counterparty. Can this be considered a way of pre-trial settlement of the dispute?

An informational message with vague wording in social networks, messengers or other electronic communication channels is not an official claim. Such a letter can only be considered as grounds for making claims.
It should be noted that a claim with a succinct statement of the essence of the problem and a complete list of requirements can be sent in messengers or social networks if several conditions are met. Firstly, the parties must agree on such a format in advance, and it is desirable to prescribe such a clause in the contract. Secondly, a notarized screenshot of the correspondence must be submitted to the court.

The victims of the insurance company want to go to court together. Can they file a collective claim?

If the claims of more than two plaintiffs for a similar episode can be considered in court jointly, then the claim must be individual – from each victim.

If I plan to file a lawsuit against the bank for the reduction of illegally accrued penalties and fines totaling about 400,000 rubles, can I go to court right away?

In case of claims against insurance companies or banks for a total amount of no more than 500,000 rubles, it is worth contacting the financial commissioner (financial Ombudsman). If within 30 days the plaintiff does not agree with the decision, then you can send a corresponding claim to the court.
It should be considered here that a person will have the right to send an application to the court only in accordance with the requirements contained in the claim considered by the financial Ombudsman.

The contract with the contractor stipulates a condition for filing a claim by e-mail. However, I do not have such an opportunity, and I sent the document by registered mail. Will such an appeal be considered legitimate from a legal point of view?

It should be borne in mind that if the contract provides for a certain method of delivery of the claim, then it is necessary to adhere to this procedure. The fact is that the defendant can prove the fact of violation of contractual obligations in court.
At the same time, if the contract provides for an electronic version of filing a claim, then in addition to this method, you can send a paper document. This will help to confirm the fact of compliance with the procedure for mandatory pre-trial settlement.

I received a claim from the counterparty, am I obliged to respond to it?

By law, a limited list of organizations has the obligation to respond to a claim. These include cargo carriers and travel agencies. In other cases, the claim may not be answered. However, it should be remembered that in this case, after 30 calendar days, the plaintiff may consider that the requirements have not been met and file a lawsuit in court.

Author of the article
Pre-trial dispute settlement procedure in the arbitration process. When it’s necessary?
Valentina Khlavich
Managing Partner
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