Arbitration is a set of sequentially implemented procedural actions committed by arbitration courts and other participants in the proceedings of the same name. The concept, features and organizational principles of the arbitration process will be described in detail in our material. All information given in the article is a revised norm from the Arbitration Procedure Code of the Russian Federation.
The concept and principles of the arbitration process
The subject of arbitration is the administration of justice in the field of economic or entrepreneurial activity. The purpose of the process can be called the restoration of violated rights. The procedural form of arbitration law is the procedure for initiating proceedings, preparing for trial, consideration and resolution of the case, as well as its appeal and review.
The following features and features are characteristic of the arbitration process:
- Legislative regulation. So, the procedure for the consideration and resolution of arbitration cases in court is determined by an independent legal industry - arbitration procedural law.
- The universality of the procedural form of arbitration in resolving a case in court. The Arbitration Procedure Code (APC) provides a procedure for the consideration and resolution of cases in all forms of arbitration proceedings and at all stages of the arbitration process.
- The detail of the development of the judicial procedure. It is about the sequence of all necessary judicial actions.
- Imperativeness of the procedural form. The procedure for considering cases established in the agro-industrial complex is obligatory for everyone. Its violation may lead to the cancellation of the decision made by the court, or to the imposition of a certain sanction.
From the above signs, we can draw conclusions about the principles of the arbitration procedure. But first you should talk about the stages and types of arbitration.
The arbitration process: main stages
The most important principle of the arbitration process is detail. All actions implemented by the courts and related entities are permitted in a strict logical sequence. Lawyers divide the arbitration process into the following eight stages:
- initiation of proceedings in an arbitration court;
- preparing a case for trial;
- direct examination of the merits in the trial court;
- appeal proceedings;
- cassation proceedings;
- review of judicial acts in the control and supervisory procedure;
- proceedings for the review of entered into force of judicial decisions;
- implementation of enforcement proceedings.
The presence of the indicated stages does not mean that each arbitration case must go through all of them. Each of the presented steps has a specific character. The stages are determined by the subjective composition of the participants at each stage, the object of the relationship, as well as the purpose and content of the procedural actions.
All stages of the arbitration can be reduced to three main stages: a lawsuit, direct proceedings on the case and the resolution of the conflict in the second instance (appeal or cassation).
The content of the arbitration
There is not much point in discussing the principles of the arbitration process without fully understanding the structure of the concept itself. Like many other legal categories, arbitration and procedural relations can be characterized from the perspective of three components: content, subject and object.
The object of arbitration relations is everything about what they arise.Distinguish between general and special objects. In the first case, we are talking about the arbitration case itself, resolved by the court. Regarding the general object, all the necessary procedural relations arise. A special object is a separately taken phenomenon that affects the legal relationship. For example, a special object is the interest of the plaintiff or defendant.
The subject of the arbitration-procedural relations is a separately taken person involved in the process. This can be a court, a citizen, an institution, an enterprise, an organization, and much more. Simply put, the subjects are all persons involved in an arbitration relationship.
Finally, the content of the arbitration is a set of subjective obligations and rights characteristic of the subjects of the process. The arbitration sphere is closely connected with economic disputes, the business sphere, issues of finance, management, etc. All relations in the field of arbitration are imperative, that is, imperious. Subjects must obey the will of the court. For non-compliance with legal decisions, as well as for disrespect for the court, the subject will be held liable.
Rule of law
The first and main principle of the arbitration process is legality. This is a general legal principle, that is, it is characteristic of any legal industry. However, in the arbitration field, legality has its own specifics. It means compliance of decisions made by arbitration courts with the fundamentals of Russian legislation. All specific rules of law must be consistent with the provisions and principles enshrined in the Russian Constitution.
The principle of legality in the arbitration process is proclaimed as the main one. This is quite logical: the priority should be the legal nature of the implemented actions, and only then everything else. Legality is ensured by the competent application of normative legal acts and laws, as well as compliance by all judges with the rules of procedure established by law. This is stated in article 6 of the APC of the Russian Federation. Any actions that do not comply with the law will lose their legal force.
Thus, in the system of principles of the arbitration process, legality is given the main role. On its basis, all other ideas, principles and positions are built, which will be described in detail below.
Monopoly of the court on the implementation of legal proceedings
Justice is a special form of state activity aimed at protecting the right. It is carried out only by the courts. No other entity or group of entities has the ability to organize a trial.
There are several types and forms of legal proceedings. According to Chapter 7 of the Russian Constitution, the judicial system has two main steps: the Constitutional Court and the courts of general jurisdiction. A constitutional court is needed to interpret and supplement the country's basic law. In addition, it compares the rest of the law with the provisions of the Constitution.
An extensive system of courts of general jurisdiction includes the federal Supreme Court and many regional instances. These are regional, provincial, district, world and many other courts. Until some time, the Supreme Arbitration Court functioned in the country. For a number of reasons, he was transformed into one of the committees of the Supreme Court. At the moment, the Committee on Arbitration Proceedings manages the widest system of various regional instances.
All arbitration courts are specialized. They are not mentioned in the Constitution of the Russian Federation. The status and powers of the instances of the arbitration system are prescribed in a separate Federal Law. Despite the fact that the Constitution does not contain clear provisions on the activities of the courts in question, the principles of legality and monopoly on the implementation of legal proceedings remain.
Only arbitration courts have the right to legal resolution of economic disputes and the application of substantive law within their powers. No other person is able to assume the responsibility of administering justice. The only exceptions are the arbitration courts. But they operate independently of the state and in accordance with special provisions of the law.
The principle of the monopoly of judges on the implementation of judicial proceedings is organizational in nature. All the beginnings and ideas on which legal proceedings are based can be divided into two main groups: organizational and functional. The first group of principles will be discussed in detail below.
Judicial independence
The second organizational principle of the judicial arbitration process is the independence of the judiciary, namely judges. Judges do not depend on anyone and are not subordinate to anyone except the law alone. This is written in the most important regulatory act of the country, the Constitution of the Russian Federation. Extraneous influence on representatives of arbitration courts is not allowed. Any intervention of state bodies, as well as local authorities or any public associations is prohibited. Judges are completely independent, as evidenced by a number of political, legal and economic guarantees.
The first guarantee of the independence of judges is the procedure for their appointment. According to the provisions of the Russian Constitution, the appointment of court employees is the responsibility of the head of state, that is, the president. He signs decrees on the empowerment of judges. The president helps the upper house of the Federal Assembly of the Russian Federation - the Federation Council. No person may be appointed to the post without the consent of a separate qualification board.
So, the independence of judges is the most important judicial principle of the arbitration process. Joining a judge is very difficult. You need to have the skills and knowledge of the highest level. But this is compensated by complete independence and unlimited duration of tenure. Thus, the independence of judges is the second organizational principle of the arbitration process. The Code of Arbitration Procedure (AIC) and the Russian Constitution directly indicate this.
The idea of equality before the law
Despite the obvious differentiation of the courts, as traced in the Russian legislation, the principle of equality of all subjects of legal proceedings is still preserved. At the same time, the equality of all citizens and organizations before the law and the court should be pointed out. This is the most important organizational principle, enshrined in article 7 of the APC of the Russian Federation.
According to Russian law, citizens are equal before the court and the law, regardless of gender, nationality, language, race, religious or philosophical beliefs, place of residence, official or financial status, etc. The idea of equality, like the principles outlined above, is general legal character. It is characteristic of all branches of law - administrative, criminal, civil and arbitration proceedings.
The principle of equality is closely interconnected with the idea of combining collegial and sole consideration of cases. According to Article 17 of the Arbitration Procedure Code of the Russian Federation, cases in the first instance can be considered individually or collectively. Collegial judicial composition is determined in advance. It is necessary for the consideration of large and complex cases. Sole resolution of issues occurs much more often. Only one judge is involved in the case.
Despite the possibility of choosing the form of legal proceedings, the principle of the equality of all before the law and the court remains. There is no contradiction in this. Both one judge and the whole board are capable of presenting legal requirements that are equally important for enforcement.
The ideas of equality and a combination of forms of litigation are part of the group of organizational principles of the arbitration process. Judicial proceedings, however, are very complex, and therefore the principles are not exhausted.
Principles of publicity and preservation of the state language
The Russian Federation is a multinational country with many ethnic groups, and therefore, traditions, beliefs and languages. According to article 12 of the APC of the Russian Federation, litigation in Russia is conducted only in Russian.
Subjects who participate in the process but do not speak the language must be provided with the services of an interpreter. Not only the judge’s speeches should be translated, but also all case materials: lawsuit, indictment, material evidence texts, dialogues of the lawyer, prosecutor, etc. Violation of the rule on the language of the trial will serve as the basis for declaring the entire meeting illegal and null and void . This is stated in articles 270 and 288 of the APC of the Russian Federation.
In the classification of the principles of the arbitration process, the idea of publicity occupies an important place. Court hearings should initially be open. The issue of the closed nature of the trial can only be decided by a judge. There are several conditions because of which an open meeting can become a closed meeting. This is the likelihood of disclosure of state secrets, commercial secret information, protected information, etc.
It is important to understand that the secret nature of legal proceedings does not violate the principle of publicity. This is indicated by some guarantees of the trial: the ability to take notes during the trial, record what is happening by means of audio or video recordings, broadcast the process to the general public, etc.
Having dealt with organizational ideas and the principles of legal proceedings, attention should be paid to the functional principles of the arbitration process.
Dispositiveness and procedural equality
Dispositiveness refers to the ability of individuals to independently dispose of their rights and powers - material or procedural in nature. But how does the principle of dispositiveness combine with the imperative nature of legal proceedings, which was described earlier? Is there a paradox here? Everything is very simple.
Dispositiveness is a functional principle of the arbitration process. It means a free transition from one legal stage to another. So, the analysis of the case on appeal depends on the subject of the proceedings. Only he decides whether to continue the process in the second instance. Moreover, the imperative procedure is manifested in the decisions of the court itself. The decision made by the judge is binding. Attempts to avoid compliance will be held liable.
Dispositivity is a strictly limited principle in arbitration. Judicial system initially exists with some scope. Thus, a judge does not accept a waiver of a claim, does not reduce the size of judicial claims already made, does not approve an amicable settlement that is against the law, and generally acts strictly within the law.
The following principle is called procedural equality. It should be separated from the organizational principle of equality. In this case, we are talking about equal opportunities and rights of the parties to the proceedings. Each party has the same number of guarantees and opportunities for its protection.
Thus, the functional system of principles of the arbitration process is closely connected with a group of organizational principles and ideas. If organizational principles are more general in nature and are needed more likely to indicate the boundaries of legal proceedings, then functional principles indicate structural features of various elements of the judicial procedure.
The principle of adversarial arbitration
Competitiveness is the obligation to prove the stated objections and claims.It is about defending one’s position, providing evidence and obtaining a fair and reasonable court decision. Competition is the most important functional principle in the arbitration process.
The principle of competition in the arbitration process has two aspects of manifestation. This is the proof of the stated requirements and the direct challenge of their rights. In the Arbitration Procedure Code of the Russian Federation, each side of the arbitration process is guaranteed the right to provide evidence of a judicial instance. This again leads to an interesting contradiction: is adversarial duty, or is it the right of the parties? The law refers to the contestation of one’s rights as the main obligation of the parties to legal proceedings. However, many lawyers give adversarial dispositive form. A compromise can be found here, stating that adversarial responsibility is the duty of lawyers and prosecutors, but the right of direct participants in the process.
Thus, we examined the concept and principles of the arbitration procedure. Arbitration is a constantly evolving field. Over time, it will acquire an even greater number of features and characteristics.