Arbitration clause - what is it?

There is a law on Arbitration Courts No. 102-ZF. It allows you to avoid the loss of a large amount of energy, energy and money for the settlement of disputes in the event of such, since basically the parties turn to the court for this. In the article, we will consider issues related to the arbitration clause about what it is, how a court is formed and how they resolve disputes.

Establishment of a judicial authority

Before referring the dispute to the arbitration court, the parties should answer the following questions:

1. Will cost savings be achieved this way?
2. Will time be saved?

You need to understand what an arbitration court is. The main difference from the arbitration court is that it is formed by participants in market relations, and not by government agencies. The arbitration court may be created in LLC, OJSC or CJSC, and in any other legal entity. It can be permanent or created specifically to resolve a particular dispute. To create a permanent body, you need the following:

1. Making the appropriate decision, duly executed.
2. Adoption of the regulation on the arbitration court.
3. Approval of the list of judges.
4. Forwarding copies of necessary documents to the competent court relating to the territory of the arbitration court.

It is much easier to form a court to resolve a specific dispute by providing for an arbitration clause in the contract. The court is created by agreement of the parties, which also determine the range of issues related to the rules for its consideration. The corresponding procedure is prescribed in the contract in connection with which the dispute arose, or is created by drawing up a separate document. If before the dispute appeared, the parties did not agree on the resolution of conflict situations within the framework of the arbitration court, then the provisions of Law No. 102-FZ shall apply.

Arbitrator

The best option is to appoint one arbitrator who has the necessary qualifications. This specialist must have a law degree. An individual may be appointed as a judge. It can also be recommended by an organization specializing in the provision of appropriate services.

Other requirements of a judge include:

1. Fair trial.
2. Lack of personal interest.
3. Independence from both sides of the dispute.

Of course, the appointment cannot be carried out by force.

Costs

The item of expenses in the arbitration court is an abstract concept. They can be set both above the state duty (which will have to be paid when considering a similar case in an arbitration court) and below it. This issue is decided by the parties independently.

Agreement

An arbitration agreement on the transfer of a dispute for resolution in an appropriate instance is called an arbitration clause. Usually it is prescribed in the section of the contract “Dispute Resolution Procedure”. The arbitration clause is self-sufficient.This means that the presence of this clause in the contract is sufficient so that if a conflict arises, the parties submit an application for consideration to this court.

The agreement must be drawn up in writing. If the parties have agreed on this after the conclusion of the contract, the arbitration clause may be drawn up separately, for example, by exchanging letters or messages using modern communications, in which the recording of information is provided.

The agreement can be concluded both in relation to a specific dispute, and on certain issues. In the latter case, some disputes should be considered in the arbitration court, while others - arbitration.

If the parties have entered into an agreement on an arbitration arbitration clause, then they will not be able to give a return move, except by mutual agreement. But if the decision taken by this instance did not satisfy either party, it can be challenged. To do this, within 3 months you need to apply for cancellation. True, this possibility can take place only if the agreement does not spell out the clause that the decision of the arbitration court is final. But you can try to achieve recognition of the arbitration clause invalid.

In case of disagreement with the decision of the arbitration court

Even if a party that does not agree with the decision of the arbitral tribunal appeals to the competent court on time and pays the state fee, this authority will not review the decision already made. All that can be done in this case is the cancellation of the decision in accordance with the grounds provided for in paragraph 2 of Art. 230 APC of the Russian Federation, which will entail the invalidity of the arbitration clause. The grounds can be divided into the following groups:

1. Flaws in the conduct of proceedings. These include, for example, an agreement that is not concluded; a decision made in a dispute about which there is no information in the arbitration agreement; not properly notifying the date and place of the meeting, and so on. For this, relevant evidence must be submitted to the court.
2. Consideration of a dispute that is not within the competence of the arbitral tribunal under the law.
3. The decision of the arbitration court violates the fundamental principles of Russian law.

The nuances of the execution of the decision

It turns out that the parties that have entered into an agreement on the arbitration clause in the arbitration court, undertake in the future to execute the decision of this judicial body on a voluntary basis. The decision may provide for specific deadlines and an appropriate procedure. If this is not the case, then the decision must be enforced immediately. The law does not provide for any time limits. It is believed that the parties execute the decision independently without special conditions. But basically, the party that wins the case will have to get a writ of execution, since the opposing party, as a rule, is in no hurry to fulfill obligations.

Enforcement

The losing side often does not want to execute the arbitration court decision on a voluntary basis. Then it is subject to enforcement. The procedure is carried out in the same way as after the consideration of the case in other judicial instances. The only difference is the inability of the arbitral tribunal to issue executive documents (sheets). Therefore, for this purpose it is necessary to apply to a competent court, which, without going into the details of the case, will simply issue an appropriate document.

The losing side, meanwhile, does not wait idly by. She may seek to delay in various ways the issuance of the writ of execution to the other party. The grounds for refusing extradition are provided for by Art. 239 agribusiness of the Russian Federation. Due to the time gained, the loser can hide assets. To prevent this, interim measures are being taken.

Interim measures

These measures are of the following types:

1. Imposed by the arbitral tribunal. At the same time, it must be understood that this definition cannot be enforced.
2. Applied by a competent court. This is a more common way. To do this, an application should be submitted to the competent court, to which the evidence of the suit is filed with the arbitration body, its decision on the adoption of interim measures, and a receipt of state duty.

After deciding on interim measures, the applicant is issued a writ of execution. In addition to the dispute itself, the losing party must also pay the costs of the other party to the dispute. Their composition is specified in Article 15 of Law No. 102-FZ, and it is not exhaustive. Also, costs may be agreed by the parties. If agreement on this issue has not been reached, then they will be distributed by the judicial authority.

Mediation

In addition to the arbitration clause in the contract, there is an alternative way to resolve disputes in pre-trial proceedings. This is mediation. This concept was introduced into Russian legislation only from the beginning of 2011 as a result of the adoption of the Law on the Procedure for Mediation No. 193-FZ. In accordance with it, mediation is understood as a method of resolving a conflict using a mediator by mutual agreement of the parties to achieve a solution that will be acceptable to everyone. In essence, it is in many ways similar to the consideration of cases in the arbitration court. But, of course, there are differences, which are as follows:

1. If Law No. 102-FZ provides for detailed requirements for arbitrators, then any individual from 18 years of age who has legal capacity and has no criminal record may become a mediator.
2. The procedure is established by concluding an agreement on this.
3. Mediation can be used in the presence of labor disputes, with the exception of collective, family conflicts and other civil relations.
4. Mediation can be resorted to before going to court, and during the proceedings.
5. As a result of the procedure, the parties enter into a mediation agreement, which the parties undertake to execute on a voluntary basis.
6. The functioning of the mediator does not apply to entrepreneurial activity. Mediation may be for a fee or for free.
7. Mediators can unite in self-regulatory organizations.

Conclusion

The fact that the phrase “arbitration court” was heard by virtually everyone is beyond doubt. But the fact that under it, as well as under the arbitration clause, is meant, alas, few know. Nevertheless, it seems that in the future both this authority and the mediation procedure will become more popular and will be used more often by the parties. After turning to the arbitration court, the outcome of the case is to be expected for at least 3-4 months, while in the arbitration court it may be known after a couple of weeks.