Compulsory Claims Dispute Resolution Procedure

The claim procedure is a special conciliation procedure. It is carried out by the parties to the conflict on their own. One party sends another written claim, and the recipient, in turn, responds to it.

The essence of the procedure

The essence of the claim procedure is that the defendant is presented with claims before the plaintiff appeals to the court. To some extent, this procedure is beneficial to both parties. In particular, the defendant is able to fulfill the requirements of the plaintiff on a voluntary basis. This, in turn, allows him to avoid additional costs if the conflict is resolved by an authorized authority. The claim procedure contributes to the formation of the evidence base, if the parties failed to resolve the differences on their own.

Classification

Claim procedure may be:

1. Mandatory established by the Federal Law.
2. Normative. Recommendations about it may be present in federal law and other regulatory acts, but it is not considered mandatory.
3. By agreement. This procedure is provided for by the parties in an agreement between them.
4. Notifying. This kind of procedure is used in the absence of guidance in the rules or agreement.

Let us further consider in detail what constitutes a mandatory claim procedure in the arbitration process.

Conflict Categories

A mandatory claims dispute settlement procedure is established for relations arising in the field of transportation:

1. By rail. According to Art. 120 ФЗ No. 18 Compliance with the claims procedure is mandatory prior to suing the railway carrier.
2. River transport. The mandatory claim procedure for the settlement of disputes is established by Art. 161 of the Code on Inland Water Transport.
3. By sea transport. The procedure is carried out in accordance with Art. 403 of the Merchant Shipping Code. In this case, the claim procedure is mandatory in cases of transportation of goods in cabotage.
4. By car. The procedure is performed in accordance with paragraph 158 of the Charter on automobile vehicles.
5. Air transport. The procedure is provided for in article 124 (paragraph 3) of the Air Code.

Claim procedure for dispute settlement is mandatory if there are violations in the field of postal shipments and the provision of communication services. Preliminary measures to resolve the conflict are carried out upon presentation of requirements for termination or amendment of agreements. For example, under Art. 745, paragraph 3 of the Civil Code, the contractor has the right to insist on the replacement of unusable equipment or material by the customer. Refusal of the latter to satisfy the requirements or evasion of the answer to them allows the first to terminate the contract and expect to reimburse the cost of the work performed.

Another example is art. 484 GK. Clause 3 of the norm provides for the seller’s ability to make complaints to the buyer when the latter does not accept the goods, thereby violating the terms of the contract. A preliminary procedure is also necessary when it is spelled out in the agreement. It should be borne in mind that in the contract the mandatory claim procedure (contract or other document signed by the parties and determining the terms of the transaction) must be clearly stated. There should be no ambiguity in the interpretation of the provisions.

Record form

In situations where a mandatory claim procedure is applied, the law has a regulatory role.For relations within which such a procedure is fixed by agreement of the parties, it is necessary to take into account a number of nuances. First of all, it should be said that claims agreements are used quite often. As a rule, participants in a transaction draw up this agreement as independent conditions and write them down in the main contract. Why do you need to know this nuance? This is necessary in order to be vigilant and understand how to behave when abuses of contractors. For example, often subjects indicate that submitting a statement of claim is unacceptable until the mandatory claim procedure is completed.

A record of the need for preliminary activities may look different. For example, in the agreement, the parties indicate that all disagreements will be resolved through negotiations in accordance with applicable laws. If it is impossible to resolve the conflict peacefully, it will be considered in the arbitration court. However, some conditions may be provided. For example, the agreement states that the plaintiff must comply with the mandatory claim procedure, regardless of whether such an opportunity is lost or not.

Important point

Determining the mandatory claim procedure, the AIC previously allowed the claim to be left without consideration if the possibility of carrying out preliminary measures was not lost. According to the norms in force today, this fact does not matter. Compulsory claim procedure ensures the collection of evidence for the plaintiff. If preliminary measures have not been taken, the authority authorized to resolve the conflict will not accept the statement from the plaintiff. In addition, the mandatory claim procedure provides that the costs are borne by the one who did not respond to the requirements.

Difficulty in practice

Is the claim procedure mandatory if it is not clearly defined in the agreement? The opinions of the authorities authorized to consider conflicts differ. So, some believe that the claim procedure is mandatory if its conditions are clearly stated in the agreement. Others are of the opinion that any mention of the need for preliminary reconciliation is sufficient. Recently, authorities indicate the need for a detailed description of the procedure in the document. This position is most clearly expressed in the Resolution of the FAS of the Moscow Federal District. In particular, the document says that the claim procedure is mandatory in cases where the agreement defines specific requirements for the form of appeal, the rules and the timing of its submission and consideration. Other conditions on preliminary conciliation measures may be recognized as established if the document contains a clear record of this. An indication of negotiations to eliminate the conflict that has arisen cannot be regarded as the establishment of a mandatory claim (pre-trial) order.

From the foregoing, conclusions can be drawn. So, in the agreement determining the mandatory pre-trial (claim) procedure, there should be a clear indication of the type of conciliation procedure. In addition, the parties are obliged to fix certain dates in it. For example, this is the period of presentation and consideration of requirements. It is also allowed to refer to a normative act providing for cases of a mandatory claim procedure for dispute settlement. An analysis of practice shows that the authorities have recently adhered to precisely this point of view.

Concretization

The agreement may determine that the claim procedure for resolving the dispute is mandatory if only some violations occur.For example, the participants in the transaction prescribe in a document that a preliminary reconciliation procedure is carried out on conflicts that arose during the execution of the contract regarding quality, shortage, loss of goods shipped, payment of the cost of products or fines. This means that for other requirements you can immediately file a lawsuit.

Rules for processing an appeal to the violator of the agreement

If the claim procedure for the settlement of the dispute is mandatory, it is necessary to correctly draw up the requirements for the counterparty. The appeal must indicate:

1. Destination.
2. Title of the document. In practice, the name of the appeal will not be significant. The main thing here is that the content is a claim. Normative acts do not impose specific requirements on the name. It is allowed to call the appeal a demand, a notification, a proposal, a statement, a notice and so on. An agreement between the parties may provide for a specific name for the claim.
3. Date of application.
4. Information about the applicant. If they are a legal entity, in addition to the name, data from the state registration certificate, location are indicated. If the applicant is a citizen, information from the passport, address of residence or receipt of correspondence are recorded. The document also indicates the bank details.
5. Circumstances serving as the basis for a claim.
6. Disagreements that arose as a result of non-fulfillment by one of the parties of the terms of the agreement. This part describes in detail the facts (partial or total loss of cargo, violation of the deadlines, shortage, delay in delivery, etc.).
7. Calculation of losses. Here it is necessary to indicate the amount of claims for each specific violation, document (receipt, invoice, account card, statement, etc.).
8. Suggestions for dispute resolution options. For example, an applicant may set a reasonable time limit for paying off a debt.
9. The period for sending a response to the requirements.
10. List of attached documents.
11. Indication of the consequences of avoiding the answer. Here, the applicant informs the addressee that he will be forced to turn to the court if a mutually acceptable result is not achieved or after a reasonable period for repayment of the debt.

Despite the fact that normative acts do not define specific content requirements, it is necessary to state the circumstances clearly and as concisely as possible. The essence of the claim should be clear to the addressee. In this case, emotional expressions should be avoided.

Key conditions

In situations where a pre-trial (claim) dispute resolution procedure is mandatory, certain requirements must be met so that subsequently it can be considered properly implemented. These conditions include the following circumstances:

1. The appeal was sent within the prescribed time.
2. The claim is drawn up by the proper applicant (the person entitled to present it).
3. The addressee is the party to the agreement that committed the violation and is authorized to consider the appeal.
4. The claim contains all the necessary data, the calculation of the sum of all requirements for consideration on the merits.
5. The appeal is accompanied by documents proving its validity.

The timing

The period during which a claim is allowed is established by law. If the normative act does not indicate the term, then it is determined by agreement of the parties. Compliance with the period acts as one of the factors influencing the general conclusion on the issue of compliance with the claims procedure as a whole. In this regard, one must not underestimate the significance of the term condition, regardless of whether it is defined by a regulatory act or an agreement. The importance of the period is due to the fact that the time spent on claim settlement is included in the limitation period.Consequently, part of the period provided for the protection of interests and rights is reduced. For the correct calculation of the period should be guided by the rule. The date of presentation of claims is the number:

• indicated on the postal stamp of the sender of acceptance of the letter;
• direct delivery to the addressee;
• messages by fax or other means of communication.

Appeal form

The claim must be in writing. This rule is enshrined in many Federal Laws. Thus, a written claim for a claim is established:

1. In the Air Code (Article 127, paragraph 1).
2. Federal Law "On Seaports of the Russian Federation (Article 25, part 3).
3. Merchant Shipping Code (Art. 405, paragraph 1).
4. Federal Law "On Freight Forwarding Activities" (Article 13, paragraph 3).

Also, this requirement is defined in the regulatory acts, which recommended the claims procedure. For example, the precept is present in the Federal Law "On Communications" (Article 44, paragraph 3). The written requirement applies to all types of claims. This is due to the fact that this type of appeal ensures the implementation of their protective potential and forms the necessary prerequisites for their subsequent use as evidence in the proceedings. The written form involves the preparation of one paper, in which all the details will be present, including the text of the claim itself.

Additionally

The addressee of the claim should be the subject who is supposed to be a direct violator of the civil rights and interests of the applicant. If the appeal is sent to another person (management company, for example), then it cannot act as a proper requirement. In accordance with the general rule, the claim is sent to the address of the violator (place of residence, if he is an individual entrepreneur). This requirement directly comes from the Federal Law. So, by Art. 161, Section 2 of the Inland Water Transport Code, claims arising from non-fulfillment of agreements related to the carriage of passengers, goods, baggage or the transportation of towed objects are presented at the location of the carriers / towers.

Consequences of failure to comply with preliminary conciliation measures

First of all, non-compliance with the claims procedure is an obstacle to the handling of the statement of claim. If the conciliation procedure is provided for in the agreement or defined by the norms, the requirements shall be transferred to the authorized instance only after appropriate measures have been taken. The claim procedure must be observed, regardless of who the applicant is - the consignee or the sender, contractor or customer, supplier or buyer, etc. The claim can be returned to the sender. The agribusiness does not directly establish such an opportunity. However, the return of the claim follows from the rules. According to Art. 126, clause 7 of the Code, documents must be attached to the application, which confirms compliance by the plaintiff with the claim procedure. By Art. 128, h. 1 authorized instance, revealing a violation of the requirements provided for in Articles 125 and 126, leaves the application filed without movement. If the circumstances that caused such an action are not eliminated, and they, in turn, cannot be eliminated, since the proper order has not been observed, the claim is subject to return. If it was accepted for production, then with the indicated violations it is left without consideration. Regardless of the outcome of the proceedings, legal costs are borne by the entity who did not meet the requirements in the framework of the claim procedure.

Failure to carry out the preliminary conciliation procedure affects the extent to which the application is satisfied. This provision is confirmed by Art. 483 p. 2 of the Civil Code. In accordance with the norm, when the buyer passes the period in which he can make a claim for the quality or quantity of products, the seller may refuse to satisfy the requirements for the provision of missing products or replacement of defective goods. At the same time, the latter will need to prove that, due to non-fulfillment of the prescribed conditions by the buyer, it was impossible to take appropriate actions in favor of the acquirer or this would entail disproportionate costs in comparison with those that he would incur if he had been notified of the violation in time.

Conclusion

Among the most common claims should be highlighted requirements:

1. Arising from violations of the terms of the supply or transport agreements.
2. According to calculations for the services rendered, work performed, rent.
3. Concerning breach of contract.

The conciliation procedure includes:

1. Preparation of relevant documents and sending a statement to the debtor.
2. Consideration of the received claim and adoption of a decision on it.

The rules of the conciliation procedure provide for the preparation of a written appeal to the violator. In it, the interested party sets out clear requirements, justifies them. Within a month or in the period specified in the agreement, the addressee gives an answer. If he is not received or does not satisfy the interests of the author, he has the right to apply to the court to consider the dispute on the merits.