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

May, 09 2022

Contents:

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 various conflicts within the framework of arbitration procedural legislation. At the same time, the parties to the dispute must be entrepreneurs or have the status of legal entities. As a rule, such legal proceedings involve the resolution of economic conflicts or disputes related to entrepreneurial activity.

The pre-trial procedure for dispute settlement 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 less 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 the courts.

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

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.

The fact is that businessmen are often dissatisfied with the work of their counterparty or contractor. The reason for this may be several situations – delivery delays, arrears in payment for the performance of work or the delivery of goods, the occurrence of overpayment, which one of the parties wants to return. The pre-trial procedure suggests resolving such issues peacefully. In practice, it looks like the dissatisfied party notifies its counterparty by means of a phone call or an official appeal about the situation that has arisen and about the methods of its resolution. The parties may involve third parties to participate in such a 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 a pre-trial dispute settlement procedure in the arbitration process is mandatory. Such situations include:

  • Issues related to the obligation to sign the contract.
  • Signing a contract for the supply of goods or the performance of services for state or municipal needs.
  • Termination of the lease agreement.
  • Upon termination of logistics contracts.

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 for production.

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.

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 presentation to the secretary of the company with the award of the 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.

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 upon termination of the contract if a waiver of the contract was sent before.

F.A.Q.

If in the submitted claim I see the amount requested from me, but there is no economic confirmation  or an application with a calculation, will this be considered a fulfillment of the condition for pre-trial settlement?

Judicial practice unequivocally tells us that the claim must contain the claims of the claiment to the defendant. The legislation does not describe the form or rules for compiling such a document. Thus, such a claim means the fulfillment of the condition for pre-trial settlement of the dispute and is considered official.

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

An informational message with vague wording in social networks, instant messengers or other electronic communication channels is not an official claim. Such a letter can only be considered as grounds for presenting claims.
Shall be noted that claim with a concise statement of the essence of the problem and a complete list of requirements can be sent in instant messengers or social networks, subject to several conditions. Firstly, the parties must agree in advance on such a format, and it is desirable to write such under a clause in the contract. Secondly, a notarized screenshot of that message 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 claimants in a similar episode that can be considered in court jointly, but pre-trial claim shall be provided individually from each victim.

If I plan to file a lawsuit against the bank to reduce illegally accrued penalties and fines for a total amount of about 400,000 rubles, can I immediately go to court? 

In case of claims against insurance companies or banks for a total amount of not more than 500,000 rubles, it is worth contacting the financial ombudsman. If within 30 days the claimant does not agree with the decision, then you can send the appropriate claim to the court.
If that a person will have the right to send an application to the court only in accordance with the requirements that were contained in the claim considered by the financial ombudsman.

The contract with the contractor stipulates the 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?

If the contract provides for a certain method of serving a claim, then this procedure must be followed. The fact is that the defendant can prove the fact of violation of contractual obligations in court.
Moreover, if the contract provides for an electronic option for filing a claim, then in addition to this method, you can send a document on paper. This will help to confirm the fact of compliance with the procedure for mandatory pre-trial settlement.

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

By law, a limited list of organizations has an obligation to respond to a claim. These include 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 claimant may consider that the requirements have not been met and file a claim in the 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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