Pre-trial claim procedure for the settlement of disputes of the APK of the Russian Federation

Since June 1, 2016, for some categories of disputes, pre-trial settlement has become mandatory. This innovation was intended to facilitate the work of authorities considering conflicts arising between business entities. Besides, pre-trial claims dispute resolution is a sufficiently effective legal instrument that allows a creditor to satisfy its requirements without additional time and financial costs. Meanwhile, in practice, many actors approach the procedure formally, underestimating its significance.

Normative base

Situations when counterparties improperly fulfill the terms of the transaction, unfortunately, are often encountered in practice. There are two options for resolving them:

1. Pre-trial claims dispute resolution.

2. Claim proceedings.

Often, the subjects manage to solve the problem at the first stage, especially when the counterparties have been cooperating for more than one year. Compulsory claim pre-trial dispute resolution previously provided for a small number of cases. Since June 1, 2016 this list has been significantly expanded. Currently, in most cases it is necessary to apply pre-trial claims procedure for the settlement of economic disputes. Agribusiness fixes the corresponding requirement in article 4 (paragraph 5).

Exceptions

Compliance with pre-trial claims dispute resolution not required for cases:

1. On the establishment of facts of legal significance.
2. The imputation of compensation for a violated right to a court proceeding or the execution of a court order within a reasonable time.
3. Bankruptcy (insolvency).
4. About corporate disputes.
5. On the early termination of the legal protection of a trademark in connection with its non-use.
6. On appeal of decisions of the arbitration court.

Nuance

You should be aware that the Civil Code also provides pre-trial claims dispute resolution. Civil Code of the Russian Federationhowever, has not undergone changes. In it, all the rules remained the same. It should be remembered that the court, within the framework of both the arbitration and civil lawsuit, will verify the fact of compliance with the order, as well as the content of the claim sent to the counterparty.

General design rules

Setting pre-trial claims dispute resolution, agribusiness does not provide specific requirements for contacting the counterparty. In practice, meanwhile, certain rules have formed. In general, a claim should be understood as the entity’s claim directed to the debtor to resolve the dispute through the voluntary implementation of specific actions. The appeal must be submitted in the form of a written document. It must have specific requirements. For example, this may be a proposal to terminate the agreement, change its contents, pay off debt, pay interest, etc. The appeal must also indicate the circumstances on which the person concerned bases the claims, as well as evidence confirming them. The content of the letter should contain references to specific regulatory acts governing the relevant issue. Without fail, the claim shall indicate the amount of claims, its calculation, as well as other information related to the dispute. Documents can also be attached to the request (for example, a copy of the agreement, payment document, etc.).

Content Specifics

From the text of the claim it should be clear what exactly the author requires. Experts recommend avoiding ambiguous language. The court should understand the requirements, their grounds. Otherwise, the document will not be accepted as evidence. Accordingly, the plaintiff will lose both time and money, and nerves. Moreover, it will be necessary to apply again claim or other pre-trial dispute settlement procedure. The requirements set forth by the creditor must, in addition, be connected with the claim, which will be filed if they are not satisfied. If in the appeal some claims were stated, and in the statement to the court - other, the order will not be recognized as complied with.

Mandatory details

As stated above, the claim form is not approved by law. However, like other documents used in the framework of civil circulation, it must comply with a number of general requirements. The subject of the claim includes the following mandatory details:

1. Name of addressee or full name (if the counterparty is an individual).
2. Address of residence / location.
3. Information about the sender. It also indicates the name or full name, address and contact information (phone number, e-mail).
4. Title of the document ("Claim").
5. Text.
6. Signature, date.

When describing circumstances and making demands, the use of emotional expressions should be avoided. Proposals must be formulated in the official business language. Of course, you should not threaten the counterparty, otherwise it can lead to negative consequences for the author. The content of the claim must comply with the requirements of the statement of claim, which will be filed in the event the counterparty refuses to fulfill its obligations voluntarily. If the information in the application does not correspond to the information in the letter, then it will not be considered.

Important points

Not only legislation can be established claim pre-trial procedure for the settlement of disputes. In the contract counterparties can provide for it, even if it is not specifically fixed for their legal relationship. In such a situation, it is necessary to take into account an important point. If the legislation claims procedure is not provided for a specific transaction, but the counterparties have fixed it with an agreement, it is considered mandatory for them.

How to send an appeal?

Pre-trial claims dispute resolution meansthat the entity cannot file a claim until it sends written claims to the counterparty. If this procedure is prescribed by law or by agreement, the court will leave the application filed bypassing it without consideration. Accordingly, the plaintiff must provide evidence that he has realized pre-trial claims dispute resolution. In the arbitration court confirmation may be, for example, a postal receipt of sending a letter to the counterparty. Some instances, when accepting such evidence, indicate that the law does not establish specific rules for sending a claim. Meanwhile, other authorized bodies return claims due to the lack of an inventory of the letter, that is, providing a receipt for them is not enough. It is worth saying that in any case, it is necessary to obtain confirmation that the counterparty accepted the requirement. If this did not happen, there should be a document indicating the reasons. Thus, there may be the following dispatch options:

1. Personally to the counterparty or its representative under the subscription. This option is considered the most reliable. Indisputable evidence of receipt of the claim is the presence of a seal and a signature on its copy, which remains with the author. Meanwhile, do not forget that the counterparty may not have a seal.
2. By courier. A receipt will act as evidence of receipt. It indicates the list of transferred securities.
3. By registered mail with notice.It is nevertheless advisable to compile an inventory of the investment.

The recipient must be an entity authorized to receive correspondence. On the receipt of delivery (when sending a registered letter) must be his full name and position. It is also desirable to have a print imprint.

Pre-trial claim procedure for the settlement of economic disputes: deadlines

By default, the law sets 30 days to formulate a response to received requirements. Before the expiration of this period, it makes no sense to file a lawsuit. Otherwise, it will be returned to the applicant. Meanwhile, prescribing pre-trial claims dispute resolution in the agreement, counterparties may set a different period. For example, a partner may be given 7, 9, 10 days to formulate a response from the date he receives the requirements. In this case, when filing a claim, you must attach a copy of the contract in which this period is established. In determining time, one must be guided by the principle of rationality. Within the established time period, the counterparty must have time to formulate a response and send it, and the partner, accordingly, receive. Therefore, during the period you need to lay the days provided for by the postal service for delivery. It is also worth considering that in some regulatory acts the terms are fixed by peremptory provisions. Counterparties are not entitled to change them at their discretion. Such provisions, in particular, are present in transport charters.

Possible problems

It must be said that in practice it is far from always advisable to use the pre-trial claim procedure for settling a dispute provided for by law. Does this mean that the person concerned, at his discretion, can refuse it? Unfortunately not. Pre-trial claims dispute resolutionstipulated by law should be applied even in cases when it is clear from the essence of the relationship that it will not bring the expected result. For example, this concerns a conflict with an entity building an unauthorized building. It is hard to imagine that a person, having received a demolition request, will fulfill it. Another problem that may arise in a subject using pre-trial claims procedure for the settlement of economic disputes, concerns the established periods for the formulation and sending of a response. Not all counterparties behave in good faith. Some individuals begin to artificially delay the process, drawing the lender into lengthy correspondence. If the agreement does not establish a different period, then pre-trial claims dispute resolution will be deemed completed after 30 days. Upon receipt of the demand, the counterparty may well withdraw its assets, declare bankruptcy, etc. It is impossible to prevent this. It is also impossible to apply any interim measures in such a situation, since for this you need to go to court. And this interested person also can not do, because not a month has passed.

Counterclaim

Some entities are interested in whether pre-trial procedure should be applied when applying for claims already filed in court. It seems that this is not necessary. Pre-trial claims dispute resolution has already been applied by the plaintiff appropriately. Accordingly, when filing a counterclaim, no further action is required. If there are any objections, they can be indicated in the response to the request. If the author of the claim does not agree with them, then he will sue, and the debtor has the right to file a counterclaim.

Harmonization of Terms

Within the framework of civil circulation and the practice of proceedings, several rules have been worked out that must be adhered to by entities that include pre-trial settlement clauses in the agreements.First of all, it is necessary to use accurate wording in determining the reasons why counterparties have the right to send claims to each other. In other words, it is advisable to foresee all possible violations. Of course, it is impossible to cover all cases. The pre-trial settlement clause may extend to violations of the terms and procedure for payment, delivery of goods, provision of payment documents, and so on. In general, you need to proceed from the content of the transaction itself. It is mandatory for the parties to provide for the order in which the claim is submitted, as well as the time for its consideration. You can send a claim in any legal way. In the agreement, you can fix the possibility of sending a claim by e-mail.

Legal advice

Experts advise that the following wording be included in the agreements:

1. To resolve disputes related to the fulfillment of obligations under the contract or arising from the terms of the transaction, a pre-trial procedure is applied. A participant whose rights have been violated must present a written request to the other party before filing a lawsuit. If necessary, documents attesting to violations are attached to it, as well as confirming the authority of a person acting as a representative.
2. The deadline for considering a claim is 10 days (calendar) from the date of receipt. Within the specified period, the requirements must be fully satisfied. Otherwise, the party whose right is violated may apply to the court.

Claims and other communications of legal importance may be sent:

1. By email. A copy of it saved in the format TIFF, JPEG, PNG, PDF or printed on paper is included as confirmation of sending.
2. Registered mail with an inventory. Correspondence is sent to the address of the counterparty’s location / residence.
3. To be personally transmitted directly to the second participant or his representative under the signature.

The agreement should also indicate that the parties recognize the legal force for significant messages received through the exchange of copies of documents by e-mail, as well as the equality of their actions with the original papers. It is advisable for participants to stipulate that printouts of correspondence may be used as evidence when considering a dispute in a court of law. In order to avoid problems, it is advisable to establish a rule on maintaining the confidentiality of information. The text should indicate that participants undertake to restrict third-party access to their email.

findings

The legislation provides for two options for resolving conflict situations:

1. Pre-trial claims dispute resolution.

2. Filing a lawsuit.

If the first option is fixed imperatively, then the parties to the legal relationship cannot use it, even if it is inexpedient in fact. The court is guided primarily by the rules of law. Considering the lawsuit and its annexes, the authority will conduct a thorough check. In order for the appeal to the court to bring the expected effect, lawyers recommend collecting all the documents that are created in the process of interaction between contractors. This is necessary even if partnerships exist for more than one year. After all, situations can happen different.

Conclusion

In general, as practice shows, economic entities do not have any difficulties in making claims. Questions may arise regarding the legality of sending claims to the counterparty. In case of doubt, it is advisable to contact a lawyer. Specialists will study the concluded contract and explain the possibilities that it secures. Of course, it is more beneficial for both parties to resolve the conflict peacefully. It is worth saying that it turns out to resolve many disputes without trial.This greatly facilitates the work of authorities, removing from them an additional burden. But in some cases, even before the claim is submitted, it becomes clear that a peaceful resolution of the dispute will not work. In such situations, lawyers do not recommend rushing and writing a letter to the partner so that he will be forced to refuse to fulfill the requirements. In any case, it will not work before the deadline. At the same time, do not forget that each instance has its own vision of the situation. Of particular importance will be the documents that the applicant will attach to the claim. As a rule, it is sufficient to have a basic agreement, as well as papers confirming the direction of claims. But in some cases other documents (payment orders, for example) may be needed. If a representative acts on behalf of the applicant, he must have a power of attorney certifying his authority. Also, do not forget that the consideration of cases in court is carried out after payment of the fee. A receipt confirming the operation should also be attached to the application. Pre-trial order allows contractors to save not only time but also money. The fact is that in a lawsuit, a party whose rights are infringed may demand not only the fulfillment of the terms of the transaction, but also the recovery of losses and expenses. Among the latter there are legal costs. If the applicant takes the help of a lawyer, then the costs can be quite substantial. Therefore, it is in the interests of the counterparty to voluntarily fulfill the requirements set forth in the claim.