Это архивная страница предыдущей версии сайта Лиджиста.
Актуальную информацию смотрите на обновленном сайте.

Form and Content of a Statement of Action

      Meeting the requirements of Art. 125 of the Code of Arbitration Practice of 2002 (the CAP) dwelling upon the form and content of a statement of action is of a key importance for initiation of arbitration, since it is this article that determines the form of a statement of action and its requisites, i.e. the data that should be obligatorily stated therein. Violation of these requirements, which is often the case in practice, has negative consequences for persons initiating an action. These consequences may be a shelving of an action (Art. 128 of the CAP) and sometimes its return (Art. 129 of the CAP).

      Part 1, Art. 125 of the CAP requires filing an action with the court in writing. Such legal requirement is conditioned by a number of reasons. First, it disciplines a person intending to initiate proceedings in the arbitration court, since it requires an express formulation of the claim and its cause. Second, it allows the higher courts to control activities of a court of original jurisdiction with respect to observance of the procedural law rules in acceptance of actions, for example, when an action is returned (now also when actions are shelved). Altogether it creates more favorite conditions for securing a respective interested person's right of relief. (Art. 46 of the Constitution of RF, Art. 4 of the CAP).

      An action may be executed either directly by the claimant (represented by an authorized individual if the claimant is an entity - Art. 53 of the Civil Code of RF (the CC of RF), or by its representative having respective authorities granted by a power of attorney (Art. 182 of the CC of RF).

      In the event the entity is governed by a collective body, a statement of action should be attached with a document asserting authorities of a person who has signed it (for example, relevant minutes of the meeting). In case there is no such document, the statement of action should be shelved, in our opinion (para. 5, Art. 126 of the CAP), although during operation of the CAP of 1995 such an action was to be returned.

      Pursuant to part 2, Art. 125 of the CAP the first requisite for a statement of action is the name of an arbitration court before which the action is filed. It is understandable, because if a claimant identifies the jurisdiction incorrectly, a lawful award cannot be rendered in due time. Even if for some reasons such statement of action is not returned, as required by para 1, part 1, Art. 129 of the CAP, the case instituted following the action should be referred to the court of a relevant jurisdiction (para.. 3, part 2, Art. 39 of the CAP). The name of an arbitration court with which the claimant files its action should be indicated without abridgment.

      The next requisite for a statement of action is that it should state the claimant's trade name (including its business form) and location (according to the respective constituent documents, and it is also desirable that the actual address of its principal office be stated). If the claimant is an individual entrepreneur, along with his full name he should indicate his place of residence, the date and place of birth, and the date and place of his statutory registration as an individual entrepreneur. The legislator found it necessary to indicate such detailed data on individual claimants because, evidently, it strove to ensure the most precise identification of the person making recourse to the arbitration court.
      In case an action is filed by a public prosecutor, his statement of action should state not only his position (part 2, Art. 52 of the CAP) and full name, but also the name of the person in protection of whose violated rights and interests he files the action before the arbitration court, i.e. the name of the substantive claimant.

      The necessity is also established to indicate in a statement of action the name of a respondent, its location or, if the matter is about an individual, his place of residence. In this connection the lack of the requirement to state, for example, the date and place of registration of a person as an individual entrepreneur is a reasonable procedural measure facilitating accessibility of arbitration justice, since at the stage of an action filing it is undesirable to restrict the claimant's capacity to submit his claim..

      Apart from the CAP of 1995 (para. 2, part 2, Art. 102), the current CAP contains no rule which necessitates stating names and addresses not only of the parties but also of all other persons participating in the case. Nevertheless, we presume that these essential elements of other persons supposed by the claimant, who participate in the case, should be stated. It is justified also purely pragmatically since, for example, later involvement of a third person in the matter may delay an award, which delay, as a rule, runs counter to the claimant's interests.

      As to the lack in Art. 125 of the current CAP of the requirement to state names and addresses of the persons participating in the case other than the claimant and defendant, it is evidently a gap, although it may be explained otherwise. At the stage of filing an action there are as yet no persons participating in the case, since the case has not been instituted. This consideration is not deprived of logic since the rules of para.2, part.2, Art. 260, para. 2, part 2, Art. 277, and para. 1, part 2, Art. 294 of the CAP, accordingly, require that names of all persons participating in the case be obligatorily stated when an appeal or cassation, or an application to review a judicial act in exercise of supervisory powers is filed. We suppose that the High Arbitration Court of RF will clarify this issue when the court practice is accumulated in the course of time.

      Para. 4, part 2, Art. 125 of the CAP preserves the rule of para. 7, part 2, Art. 102 of the CAP 1995 which requires that in a statement of action the claimant state claims to the respondent with reference to laws and other regulatory acts, and when an action is filed against several respondents separate claims must be made to each of them. Although para. 4, Art. 125 of the CAP does not say anything about contractual provisions, in view of rather frequent recourses to the arbitration court made by interested persons in connection with counteragents' violation of contractual obligations, we find it proper to refer in a statement of action not only to the rules of regulatory acts which, in the claimant's opinion, have been violated, but also to breached provisions of respective contracts. This will facilitate the quickest more precise determination by the arbitration court of the fact of evidence in the case.

      In case there are several respondents, the claims to each of them should be worded separately. If they bear a joint and several liability, the claims addressed to joint respondents (Art. 46 of the CAP) should be worded accordingly.

      The rules of paragraphs 4 and 5, part 2, Art. 102 of the CAP 1995 are, in essence, united in para 5, part 2, Art. 125 of the CAP of 2002. In the statement of action the claimant is obliged to indicate the circumstances underlying the action and the evidence proving these. Adduction of these circumstances (legal facts) is very important for determination of the fact of evidence in the case and, eventually, for correct settlement of the dispute. Thus, a claim not to impede (an actio negatoria) is evidenced by legal facts (circumstances) pointing to impediment, for instance, to the claimant's use of office premises. Such circumstances must be clearly indicated in the statement of action, although it is not enough. These circumstances must be proved in the action by respective evidence (Art. 64 of the CAP) which is referable (Art. 67 of the CAP) and admissible (Art. 68 of the CAP).

      As to the amount of an action in those cases when it is to be estimated, it is determined according to the rules contained in Art. 103 of the CAP and is also included in the statement of action.

      In those cases when a claimant files an action seeking recovery of a certain amount, it is necessary that the statement of action contain the calculation of the amount to be recovered, or this calculation should be attached thereto as a separate document. The same concerns challenged amounts (for example, when the rate of tax sanctions is challenged).

      Para 8, part 2, Art. 125 of the CAP preserves the requirement to include into an action the information about the respondent' s observance of a claim or another pretrial procedure in the event they are provided for in a federal law or a contract.

      The requirement of para 9, part 2, Art. 125 of the CAP to include the information about the measures to secure property interests prior to filing of an action (Art. 99 of the CAP), which are provided for in Art. 91 of the CAP and taken by the arbitration court, is a novel.

      A mandatory requisite of the action preserved by the CAP is a list of documents to be attached to the statement of action.

      An action should obligatorily contain the information mentioned in paragraphs 1-10, part 2, Art. 125 of the CAP. However, the claimant is entitled to include other information in the action proceeding from the necessity to correctly and timely consider the case. The CAP authorizes a claimant to include into the action the motion to demand and obtain from the respondent or other persons respective evidence which is necessary to ensure effectiveness of arbitration proceedings.

      Moreover, Art. 125 of the CAP imposes one more obligation on the claimant (it does not actually belong to mandatory requisites of a statement of action) - to send missing copies of the statement of action and other documents attached thereto to other participants in the case by a registered mail, return receipt requested. Art 103 of the CAP of 1995 which contained a similar rule did not stipulate this requirement.

      The fact that the legislator has toughened the requirements is attributed to enhancing of the significance of contentiousness in an arbitration process, since the respondent should be notified who, on which ground, and what particular claim is filed against him. It is undoubtedly necessary for timely elaboration of his position in the case and respective procedural measures (for example, filing of a counterclaim).

M.Sh. Patsatsiya,
Doctor of Law,
associate lawyer

Это архивная страница предыдущей версии сайта Лиджиста.
Актуальную информацию смотрите на обновленном сайте.