About the arbitration court, EDS and international jurisdiction

Denial of responsibility.

The article is not written by a lawyer for non-lawyers. Some formulations and concepts are simplified and inaccurate, however, this is not false. The article contains a certain amount of legal information, terms and nuances, as a result, it can be difficult to read. If you are allergic to products containing jurisprudence, use the article carefully, at your own risk.
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Good day!

Now we are working closely on the implementation of electronic signature for the participants of our service . We plan to attract foreign firms. In the course of working with the “legal component”, they were horrified by the picture when two representatives of the parties come to court with a flash drive, draw it to the judge and say - “all the documents are here, and now judge us, your honor”. And then we faced, no less, an alternative to the state judicial system. We immediately share this wonderful discovery with you. So…

What is an arbitration court?

Justice in civil cases in the Russian Federation is carried out by the resolution and consideration of cases by courts established in accordance with the federal constitutional law “On the judicial system of the Russian Federation”. These are state courts of general jurisdiction and arbitration courts. Their activities are governed by procedural law.

But, as it turned out, Russian legislation allows for the existence of other legal mechanisms for resolving civil disputes. We are talking about arbitration courts, which are created in accordance with the law of the Russian Federation “On international commercial arbitration” (1993) and the federal law “On arbitration courts in the Russian Federation” (2002).

The arbitration court is a non-governmental organization and its activities are governed by the laws and regulations of the court listed above. In other words, the order of work of the courts is not unified, for each court it has its own and the court itself establishes for itself the order of work (it’s the rules). However, there are general recommendations that are respected by the majority of the courts, and there are mandatory requirements. The rules affect the procedure of the court. Then we will speak about the common and most common properties of arbitration courts, without “configurations for a specific user”.

It is necessary to stipulate arbitration beforehand . To do this, the contract includes an arbitration clause. It states that the parties have agreed to sue the arbitral tribunal.

Who are the judges?

The composition of the court is formed as a result of the election of one judge from each of the parties to the dispute. The two arbitrators elected in this way agree on the candidature of a third judge - the chairman of the judicial composition. The dispute is considered collectively, the decision is made by a majority vote of the judges who are part of the arbitration. Most courts regulate the binding nature of the presence of a legal education of judges, although the law does not require it.
Such judges are usually very competent in the matter under consideration and quite well represent the details of what is happening. In addition, the procedure for attracting experts in such a court is quick and adequate.
The advantage is that in matters relating to IT, for example, the court does not look at the parties with glazed eyes, but immediately gets down to business.

Recognition and execution of decisions.

According to a good English manner, the decision of the arbitration court must be executed by the parties themselves. If, horror of horrors, this did not happen, the competent state court of the Russian Federation (arbitration or general jurisdiction), at the request of the party in whose favor the decision was made, issues a writ of execution within a month to enforce the arbitration court decision.

At the same time, the competent state court is not entitled to review the case, assess the evidence and otherwise interfere with the substance of the dispute considered by the arbitration court.
The grounds for refusal to issue the writ of execution or cancellation of the decision of the arbitration court can only be an exhaustive list of circumstances (art. 233, 239 of the APC RF and art. 421, 426 CCP RF), these are the circumstances:

- if the arbitration agreement is invalid;
- if the arbitration court violated the right of the party to judicial protection (the party was not notified of the election of the arbitrator, the time and place of the court hearing, etc.);
- A dispute resolved by an arbitration court cannot be the subject of arbitration proceedings (for example, disputes from public relations) or the composition of the court or the procedure for considering the dispute did not comply with the agreement of the parties or the law;
- The decision of the arbitral tribunal violates the fundamental principles of law.

Such circumstances are rare and indicate the lack of professionalism of the arbitration court.

Now the fun part. Recognition and enforcement of decisions of Russian state courts in the territory of another state is possible only in cases when the state has an appropriate legal assistance agreement with the Russian Federation. Today, Russia has such agreements, for example, with the CIS countries and the Baltic countries, Albania, Algeria, Vietnam, India, Iran, Yemen, Tunisia and a number of other countries. However, the Russian Federation does not have similar agreements with such countries of the world as the United States of America, Great Britain, France, Germany, Japan, Sweden or Finland.
This state of affairs means that most of the countries of Western Europe and America do not allow legalization of judicial acts adopted by courts of the judicial system of the Russian Federation on their territory, which somewhat complicates the development of economic relations.

At the same time, the Russian Federation (as the successor of the USSR), together with more than one hundred and thirty states of the world, ratified the 1958 New York Convention on the recognition and enforcement of foreign arbitral awards (hereinafter referred to as the 1958 Convention). In accordance with the current Russian legislation and subject to the presence of relevant provisions in the regulations, the arbitration court considering a dispute, in which at least one party is a foreign entity, acts according to the rules established for international commercial arbitration. If the parties to the arbitration proceedings are economic entities or citizens of different countries and these countries have ratified the New York Convention, the decision of the arbitration court in one of these countries is subject to recognition and enforcement in the territory of the second state in accordance with the procedure established by the 1958 Convention .

Thus, on the territory of most developed countries, decisions of state courts of the Russian Federation do not have any legal force, but at the same time are subject to recognition and enforcement of a decision of an arbitration court located in the Russian Federation.

Then he stole, then he stole from him.

In contrast to the consideration of disputes in state courts, where publicity is the main principle of legal proceedings, the arbitration court acts on the basis of respecting the full confidentiality of the dispute. This principle applies both to any information reported to the court by the parties, and to the very fact of filing a claim with the arbitration court.

Speed.

Due to:

- Multiple lesser workload of judges and the availability of more time to prepare and hear the case;
- the absence of such a procedural form as a “preliminary meeting”;
- a wider range of ways to notify and notify the parties;
- in general, less conservative rules for the consideration of a dispute compared to more strictly regulated and sometimes excessively formalized procedural laws;
- competence of judges in the subject matter;

Arbitration courts amazingly often fit into the terms of consideration of the case established by the regulations. Usually it is 1-2 months. Let us add one more month to receive the sheet, as a result of 2-3 months and a sheet from you.

So, it was, basically, the positive part of the description, now let's move on to the negative.

Price.

The amount of the arbitration fee is considered preliminary, according to the general method, of the amount of the dispute. The claimant, as usual, pays, reimburses - guilty. But if the cost of services of state courts asymptotically tends to zero, then the amount of the fee can be quite large. Moreover, the smaller the amount of the dispute - the greater will be the relative amount of collection.

Dark stories.

In the 90s and further, the mechanism of arbitration courts was actively used by well-known citizens for all sorts of unseemly measures, such as the decision of internal, scam, nibial, and even a number of concepts denoting the profile non-physical impact on the object. A similar situation was with the banks, but if at the moment dubious banks have chosen licenses, the courts have not (in view of the total absence of these). So, if you decide to use the services of an arbitration court - choose carefully.

Epilogue.

It is fair to note that the system of arbitration courts is not without flaws and requires a very responsible approach. We do not offer a panacea, but only hope that we talked about another tool, which in some cases can be extremely useful.

PS
Many thanks to Zhenya Bogomolov and his organization for a clear explanation of the incomprehensible.