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A.G. Pershutov, A.E. Solokhin Trends in improving arbitrazh (commercial) procedural legislation
The article examines the most striking trends in the development of arbitrzh (commercial) procedural legislation of the last ten years related to the unification of procedural legislation, the expansion and improvement of simplified (accelerated) proceedings and the optimization of legal proceedings, the development of elements of electronic justice, judicial conciliation procedures and the institution of reconciliation in general. The features and problems of these trends are revealed.
Keywords: arbitrzh proceedings, arbitrazh process, arbitrazh procedural legislation, simplified procedures, optimization of legal proceedings, electronic justice, reconciliation of the parties, judicial conciliation procedure
DOI: 10.46279/ASMO.2024.54.16.001
Analytics: Trends in improving arbitrazh (commercial) procedural legislation
E.V. Mikhailova Arbitrazh proceedings as an independent form of administration of justice: main problems and solutions
The article examines three fundamental problems of the current arbitrazh (commercial) procedural legislation. The first problem is related to the legal uncertainty of the category of ‘economic activity’. It is proposed to consider it as a narrower phenomenon in comparison with entrepreneurial activity and to understand it as legal relations arising in connection with the creation of conditions for engaging in entrepreneurial activity and its organization. Secondly, the existing system of types of arbitrazh proceedings is criticized, it is proposed to revise it, guided by the criteria of the legal nature of the cases subject to consideration, and not their industry affiliation. Thirdly, attention is drawn to the contradiction of the settlement agreement in public law cases with the provision of Part 3 of Art. 2 of the Civil Code, in connection with which it is advisable to adjust the norm of Art. 190 of the Arbitrazh Procedure Code of the Russian Federation by indicating such a condition for reconciliation of the parties to public-law conflicts as the presence in the norms of substantive law of a special indication of such a possibility.
Keywords: entrepreneurial activity, economic activity, arbitrazh proceedings, types of arbitrazh proceedings, corporate dispute, private and public-law relations, settlement agreement
DOI: 10.46279/ASMO.2024.35.35.002
A.V. Yudin The coincidence of interim measures with the stated claims: problems of admissibility
One of the important issues of interim measures is the detection of a balance of interests of the parties in their application. In judicial practice, there are cases of applications for interim measures that coincide with the claims, and, accordingly, with a future possible court decision to satisfy the claims. The courts initially rejected such applications with reference to the coincidence of the requested measures with the claims, but later judicial practice changed. The author concludes that the application of interim measures that coincide with the claims and, accordingly, with a future possible court decision on the satisfaction of the claims should be recognized as permissible. Denying the possibility of satisfying such statements only with reference to their coincidence with the claims marks a purely formal approach to resolving the issue. However, the revealed fact of coincidence does not exempt the court from assessing the proportionality of the requested measures, which, in relation to the situation under consideration, means checking compliance with the balance of rights and interests of the parties, when the plaintiff, even before satisfying the claims, may be able to enjoy the benefits that are associated for him with the court's decision on the merits of the dispute. It would also be unacceptable if the court or the defendant could, accordingly, reject or fend off urgent temporary measures aimed at securing the claim as a tool for protecting the plaintiff's rights, simply with reference to their formal coincidence with the plaintiff's chosen method of protection, which is the subject of the claim, without assessing how such measures will contribute to the enforcement a future court decision.
Keywords: securing a claim, interim measures, proportionality of measures to secure a claim, coincidence of measures to secure a claim with claims, coincidence of measures to secure a claim with a decision to satisfy a claim, prejudging the case, preservation of existing relations, inadmissibility of measures to secure a claim
DOI: 10.46279/ASMO.2024.32.21.003
S.V. Nikitin Procedure of compensation for damage caused by illegal regulatory requirements in the field of tariff regulation
The author of the article analyzes the problems that arise when the arbitrazh (commercial) courts consider cases for compensation for damage caused by the action of illegal regulatory legal acts in the field of tariff regulation. According to the author, the only legal basis for compensation for losses, supplier or recipient of services caused by the establishment of an illegal tariff is the circumstances of the damage caused (Article 1069 of the Civil Code of the Russian Federation). In this regard, they disagree with the established judicial practice of recovering losses in the amount of overpayment for the supplied resources from their supplier as a result of unjustified enrichment (Articles 1102-1103 of the Civil Code of the Russian Federation). The author makes proposals to improve the practice of consideration and resolution of cases of this category by the arbitrazh courts.
Keywords: state regulation of prices (tariffs), losses, compensation for damage, judicial regulatory control, regulatory legal act in the field of tariff regulation
DOI: 10.46279/ASMO.2024.22.12.004
M.Sh. Patsatsiya On optimizing the use of set-off counterclaims and answers to set-off claims as procedural remedies for defendants in proceedings in arbitrazh courts in the light of dispositive and instance principles
The attitude of arbitrazh (commercial) court’s practice in specific cases and that of the doctrine to the use of set-off counterclaims and answers to set-off claims can hardly be recognized as uniform. At the same time, the approaches to it at the level of the highest judicial instance do not look, on the one hand, immutable, and on the other hand — all that specific and clear. Yet it is one of the most important procedural means of protecting the rights of the defendant we are talking about. This article considers those aspects of their use, which are related to the limits of the defendants' realization of these procedural tools, in the context of dispositive and instance principles of proceedings in arbitrazh courts. The correct definition of these limits can have a significant impact on the optimization of proceedings in arbitrazh courts.
Keywords: correlation of set-off counterclaims and answers to set-off claims; limits of dispositiveness in the use of set-off counterclaims and answers to set-off claims; instance limits of filing set-off counterclaims and answers to set-off claims; optimization of proceedings in arbitrazh courts
DOI: 10.46279/ASMO.2024.86.44.005
E.A. Nakhova On the legal nature of the norms regulating the subject of proof in arbitrazh proceedings
The author states that the issuance of lawful and justified decisions by courts is a decisive criterion in assessing the functioning of the judicial system. The effectiveness of legal proceedings and judicial defence as a whole is largely conditioned by the effectiveness of proof. Incomplete determination by the court of the circumstances of the subject of proof serves as a ground for cancellation of the judicial act in appeal and is a violation of the requirement of validity of the judicial act. The author considers the norms on the subject of proof from the point of view of the institutional approach. Based on theoretical studies on the legal nature and attributes of subinstitutes of law, the author concludes that the norms on the subject of proof have all the attributes of a subinstitute of evidentiary law. Thoroughness of judicial cognition of the claims and objections of persons participating in the case is due to the fact that the claims and objections of persons participating in the case are taken into account by the arbitrazh court in determining the subject of proof in the case. Scientific aspects of the concept of the subject of proof at the present stage of development of scientific thought in the arbitrazh (commercial) process are also considered. The author comes to the conclusion that in the arbitrazh procedural legislation it is necessary to fix the category of ‘subject of proof’, giving its legislative definition and regulating the general and private mechanisms of its determination. The general mechanism is the rules for determining the subject of proof in a case, taking into account the specifics of the application of both substantive and procedural law, claims and objections of persons involved in the case, as well as the specific circumstances of the case. The private mechanism is the rules for determining the local subject of proof in the case, taking into account the peculiarities of application of norms of procedural law, claims and objections of persons involved in the case, as well as the specific circumstances of the need for a procedural action.
Keywords: arbitrazh proceedings, law enforcement, subject of proof, judicial cognition
DOI: 10.46279/ASMO.2024.29.35.006
V.G. Domshenko Non-traditional forms of participation of group members in group proceedings
The article examines possible procedural forms of participation of members of a group in collective proceedings. The author criticizes the current version of the law, which allows the participation of members of a group of persons in such proceedings as co-plaintiffs, third parties, who declare or do not declare independent claims regarding the subject of the dispute. It is concluded that a member of the group in the case of a class action of the type of homogeneous rights may either join the claim or not join it while retaining the ability to defend their rights individually. In a class action of the type of general rights, all members of the group should be considered by default as having joined the class action. At the same time, members of the group who disagree with such a class action have the right to participate in the case on the side of the defendant as third parties who do not declare independent claims regarding the subject of the dispute.
Keywords: class action, class proceedings, co-plaintiff, third parties, joining the class action, common and homogeneous rights
DOI: 10.46279/ASMO.2024.86.85.007
D.E. Podgornyi On the composition of an arbitrazh (commercial) court of the cassation instance when considering appeals against judicial acts on the issue of indexation of the adjudged monetary sums
The article analyzes amendments introduced by the Federal Law of December 25, 2023 No. 667-FZ “On Amendments to the Arbitrazh Procedural Code of the Russian Federation” in the part of simplifying the procedure of considering the application for an indexation of the adjudged monetary sums and examines the issue of the appropriate composition of the court when trying the given category of disputes in the proceedings in the arbitrazh (commercial) court of the cassation instance. The author criticizes the emerging in the current judicial practice approach to the stated problem, which is based on the unconditional necessity of collective consideration of cassational appeals against judicial acts adopted as a result of consideration of the application for indexation, and offers a substantiation of the allowability and preferability of the sole consideration of such appeals by a single judge of the court of cassation by analogy with the way it is currently provided for cases of simplified and writ proceedings.
Keywords: indexation of the adjudged monetary sums, proceedings in the arbitrazh (commercial) court of the cassation instance, personal and collective consideration of cases, interpretation of law
DOI: 10.46279/ASMO.2024.64.92.008
V.S. Degtyareva Simplified proceedings on commercial disputes in the procedural legislation of the EAEU member states
The article is devoted to the analysis of the provisions of the civil procedure codes of the member states of the Eurasian Economic Union in terms of regulation of the simplified proceedings. The theoretical issues arising in the practical application of Chapter 29 of the Arbitrazh (Commercial) Procedure Code of the Russian Federation are highlighted.
Keywords: simplified proceedings, arbitrazh (commercial) litigation, civil procedure, tendency of simplification of court proceedings
DOI: 10.46279/ASMO.2024.84.89.009
Analytics: Open Tribune
S.A. Sinitsyn Competition and its protection in digital civil circulation
The author set the goal of defining the features and main directions of development of competition law in the digital economy, having done this on the basis of the analysis of the existing problems of development of competition law. The proposed conclusions and judgments allow to see and evaluate the advantages and disadvantages, further prospects of development of competition law and its current state. It is possible to see the independence of the subject and method, goal-setting of competition law, which together are sufficient to distinguish competition law as a separate branch of Russian law.
Keywords: competition law, antitrust requirements, digital economy
DOI: 10.46279/ASMO.2024.30.52.010
Court practice reviews
Review of legislation and judicial practice on topical issues in the field of land use in Moscow
Minutes No. 176 of the meeting of the working group to discuss the practice of application of the Arbitrazh (Commercial) Procedure Code of the Russian Federation
