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- Conciliation procedures and amicable settlement in arbitrazh (commercial) proceedings
- Courts News
  
  News of Moscow District Courts
  
  Interview of the issue
  
  L.Yu. Mikheeva. The world would be a much happier place if family disputes were settled out of court
  
  Topicality
  
  Appeal against a ruling on approval of a settlement agreement by a third party that does not make independent claims with respect to the subject matter of the dispute
  
  Analytics: Conciliation procedures and amicable settlement in arbitrazh (commercial) proceedings
  
  Vladislav O. Vatamanyuk Application of general provisions of civil legislation on obligations and contracts to settlement agreements in civil proceedings
  
  The article discusses the issue of applying the general provisions of civil law on obligations and contracts to a settlement agreement in civil proceedings. It is concluded that, due to the principle of freedom of contract, the parties are free to determine the terms of the settlement agreement. They have the right to include in its content any conditions, both provided and not provided for by law or other legal acts, but corresponding to the basic principles and meaning of civil legislation. It is concluded that the procedural law should provide interested participants in the process with the widest possible opportunities in determining the terms of the settlement agreement and not create unreasonable differences in comparison with pre-procedural relations in the event of agreement on a peaceful settlement of the dispute. The work discusses the most pressing issues of applying the general provisions of civil law on obligations and contracts to a settlement agreement: the application of provisions on the invalidity of transactions, amendment and termination of a contract, liability and enforcement of obligations provided for in a settlement agreement, the moment of concluding a settlement agreement, as well as other controversial issues . In conclusion, it is concluded that the general provisions of civil law are subject to application to a settlement agreement in civil proceedings, taking into account the specifics of the specified legal institution.
  
  Keywords: settlement agreement; deal; civil contract; imaginary and feigned settlement agreements; invalidity of the settlement agreement; modification and termination of the settlement agreement
  
  DOI: 10.46279/ASMO.2024.75.64.001
  
  E.S. Razdyakonov Procedural features of the application of subjects of corporate relations in the arbitration court
  
  The article examines the procedural aspects of reconciliation of the subjects of disputed corporate relations, which were not settled by the legislator during the last reform of the institute of reconciliation and world agreement. The author focuses on the correlation of pre-trial agreements and reconciliation actions, on the possibility of classifying a corporation as a subject of conciliation procedures and on identifying the legal grounds for participation in conciliation procedures of those entities that have not acquired the procedural status of a party (plaintiff or defendant) in the case.
  
  Keywords: corporate dispute, conciliation procedures, settlement agreement, corporation
  
  DOI: 10.46279/ASMO.2024.40.63.002
  
  T.R. Gizzyatov The system of principles of judicial conciliation in arbitration proceedings
  
  This article is an attempt to analyse the current state of the system of principles of judicial conciliation in arbitration proceedings. In particular, the author notes that judicial conciliation is based on general arbitration principles of legal proceedings; general principles of judicial conciliation; special principles provided for the activities of a judicial conciliator. These principles include the principles of voluntariness, co-operation, equality of parties and confidentiality, independence, impartiality of the judicial conciliator, legality, etc. At the same time, it is noted that there are other ideas that should be perceived as guiding principles in the conduct of judicial conciliation. Such principles include variation and persuasion, which are special principles of the considered type of activity. In conclusion, the author reveals the content of these two principles and offers the author’s vision of the system of principles of the institution under study.
  
  Keywords: principles of process, arbitration process, conciliation, judicial conciliator, guiding principles, system of principles
  
  DOI: 10.46279/ASMO.2024.64.13.003
  
  A.A. Solovyov, A.O. Lytkina Legal regulation of conciliation procedures in the civil process: Experience of the Kingdom of Belgium and the French Republic
  
  The article is devoted to the study of legal regulation of conciliation procedures on the example of two European states: the Kingdom of Belgium and the French Republic. Analysing the Judicial Code of Belgium and the Code of Civil Procedure of France, the authors consider the types of conciliation procedures implemented in these states, procedural features of their application, as well as the problems arising in the process of conciliation. The authors conclude that the study of the institute of conciliation procedures is relevant not only in Russia, but also in other countries, and the legislator seeks to improve them by modifying the relevant legal framework.
  
  Keywords: foreign experience, Kingdom of Belgium, French Republic, civil process, conciliation procedures
  
  DOI: 10.46279/ASMO.2024.20.68.004
- I.D. Areshkina The right to resolve a dispute through the mediation procedure
  
  The article presents the results of a study of the issues on the right to resolve a dispute using mediation in the context of arbitration proceedings. The article is devoted to an overview of the key differences between mediation and justice, allowing us to identify some of the advantages of conflict resolution over judicial dispute resolution. The article also discusses scenarios for the possible development of the institution of mediation in Russia and the risks of their implementation.
  
  The article makes a general conclusion that the right to resolve a dispute using the mediation procedure presupposes the obligation of the state to ensure it, as well as public institutions to develop it. The practical significance of the research results arises from predicting the features of the further institutionalization of mediation in Russia.
  
  Keywords: mediation, arbitration proceedings, justice, alternative methods of dispute resolution, reconciliation
  
  DOI: 10.46279/ASMO.2024.87.25.005
  
  S.V. Lazarev Identification of cases where early settlement is possible
  
  One of the reasons for the small number of cases settled in connection with the approval of a settlement agreement, the author sees in the lack of means to identify cases where early settlement of the dispute is possible. A questionnaire is proposed as a means of solving this problem. Identification by means of a questionnaire of the possibility of early settlement of a dispute should be the basis for conducting conciliation procedures. The author proposes to impose negative consequences on the parties in case of failure to provide answers to the questionnaire.
  
  Keywords: amicable agreement, conciliation procedures, conciliation, questionnaire, procedural coercion
  
  DOI: 10.46279/ASMO.2024.40.54.006
  
  K.E. Semenov To the question of the admissibility of the settlement agreement in public law disputes
  
  This article is devoted to the issues of concluding a settlement agreement in cases of a public legal nature. Two issues are being discussed: 1) on public disputes, on which, due to their nature, amicable agreements can in principle be concluded, and 2) on the consolidation of the powers of administrative bodies to conclude amicable agreements. The author comes to the conclusion that it is allowed to conclude amicable agreements in cases of challenging non-normative legal acts, collecting mandatory payments and sanctions and cases of administrative offenses, and administrative authorities have the authority to conclude amicable agreements by virtue of the Arbitration Procedural Code of the Russian Federation, therefore there is no need for a special indication of this in the substantive legislation. In addition, the author, taking into account the coverage of the issues raised in this article, proposes an alternative version of article 190 of the Arbitration Procedural Code of the Russian Federation “Reconciliation of the parties to disputes arising from administrative and other public legal relations”.
  
  Keywords: settlement agreement, conclusion of a settlement agreement, public law disputes, public interest
  
  DOI: 10.46279/ASMO.2024.13.39.007
  
  E.V. Nemtinova Nuances of conciliation etiquette
  
  The author discusses the importance of the ethical behaviour of a judge resolving a court dispute, stimulating the parties to resolve it in the most compromising way for them, and discovers the permissible limits of the judge’s influence on the procedural behaviour of the parties in such stimulation. The role of enforceability of judicial acts on approval of amicable settlement agreement is outlined. In the end the author focuses on the necessity of further introduction of conciliation procedures in the arbitrazh (commercial) judicial process.
  
  Keywords: compromise, trust, authority
  
  DOI: 10.46279/ASMO.2024.54.46.008
- Analytics: Open Tribune
  
  I.V. Reshetnikova The operation of procedural law in time in arbitrazh (commercial) proceedings
  
  The article reveals the doctrinal approach to determining the operation of procedural law in time, starting from the 19th century, as well as the modern concept. With reference to the judicial practice of the Supreme Court of the Russian Federation, law enforcement approaches are analyzed. The author especially dwells on establishing the algorithm for the operation of the law in time when a new law is adopted in relation to applications submitted but not accepted, and applications left without progress. The author also dwells on the analysis of the influence of the preconditions of the right to claim on the further process of consideration of the case. A conclusion is formulated about the need to develop a unified rule for the operation of the law over time in relation to applications submitted but not accepted, and applications left without progress.
  
  Keywords: doctrinal approach, law enforcement approach, applicable law, filing of applications, application without motion, surviving the old law, retroactive force of the law, prerequisites for the right to sue, refusal to accept an application, termination of proceedings
  
  DOI: 10.46279/ASMO.2024.84.77.001
  
  V.P. Sorokin, K.V. Bikbulatov Protection of rights and legitimate interests of persons subject to foreign restrictive measures: current problems
  
  There are two directions that allow to solve the problem of the arbitrazh (commercial) court’s protection of rights and legitimate interests of persons subject to foreign restrictive measures: (1) judicial control in cases on recognition and enforcement of foreign state and arbitration courts’ decisions in the territory of the Russian Federation in accordance with Chapter 31 of the Arbitrazh Procedure Code, and (2) imperative recognition of the competence of the Russian arbitrazh court to consider disputes involving persons subject to foreign restrictive measures. The authors stress the necessity of legislative fixation of the definition of ‘public order of the Russian Federation’ and consider the order of recognition and enforcement of foreign decisions, the normative term of consideration of applications of this category; proper notification of foreign persons about the court proceedings on the issue of prohibition of consideration of the dispute in the order of article 248.2 of the APC RF.
  
  Keywords: protection of violated or challenged rights and interests of entrepreneurs and other persons engaged in economic activity, legislative fixation of the definition of ‘public order of the Russian Federation’, violation of public order in the understanding of judicial practice, normative term in the order of recognition and enforcement of a foreign decision, proper notification of foreign persons about the court proceedings
  
  DOI: 10.46279/ASMO.2024.77.65.009
  
  A.R. Tigranyan Prosecutor’s participation in insolvency (bankruptcy) cases: analysis of Russian arbitrazh (commercial) courts practice
  
  The necessity and expediency of the prosecutor’s participation as an independent procedural figure in insolvency (bankruptcy) cases is debatable in Russian law. The article presents a huge layer of judicial practice, showing the general trend of tightening prosecutor’s supervision and expanding the powers of the prosecutor’s office in bankruptcy cases. The conclusion is substantiated that the expansion of the powers of the prosecutor’s office should not lead to the substitution by the prosecutor of the functions of the creditor or the authorized body in the bankruptcy case. Based on the analysis of judicial practice and theory of law, the authors of the article attempt to distinguish the procedural forms of participation of the prosecutor as a full-fledged participant in a bankruptcy case and in a separate dispute as a third party.
  
  Keywords: prosecutor, bankruptcy case, creditor, procedural form, protection of public interests
  
  DOI: 10.46279/ASMO.2024.99.41.010
  
  S.I. Lutsenko Corporate goal adjusted to the concept of sustainable development
  
  The author considers the corporate purpose of a company (business society) within the framework of the concept of sustainable development. This concept is related not only to economic characteristics (profit-making), but also includes social and environmental factors. An attempt was made to link the property interests of the owner (founder, shareholder) with the interests of other interested parties (management, labor collective, consumers, society). It is proposed to include in the current civil legislation a provision that a company should not only have its legitimate economic purpose (profit), but also take into account the social interests of interested parties. The author examines the legal status of the owner (founder, shareholder), its importance in determining the corporate goal. The behavioral model of the management (member of the board of directors) is analyzed in the context of fiduciary duties when formulating the purpose of a company. The incentive program is designed to combine the property interests of the owner and interested parties in the long term.
  
  Keywords: sustainable development, corporate goal, property interests of the founder (shareholder), fiduciary duties, stakeholders, ESG factors, legal fiction, targets
  
  DOI: 10.46279/ASMO.2024.63.36.011
  
  N.V. Sheremeteva Functional succession
  
  In the context of reforming the system of government bodies in the Russian Federation, administrative actions such as abolition, reorganization, and liquidation of government bodies are common. The relevance of considering the legal phenomenon of functional succession lies in the fact that the restoration of violated human rights and freedoms is the main function of the state, in the performance of which the norms of civil legislation applicable to public authorities cannot be applied. Judicial decisions must be executed by a State body, regardless of whether the State body was abolished, reorganized, or its powers were transferred to another body.
  
  Pre-revolutionary lawyers, Soviet jurists and modern legal interpreters have repeatedly spoken about the existence of the legal institution of functional succession of state bodies, who agreed in one opinion: the decisions of state bodies must be executed, and the exception to this rule may be the death of the state itself. Functional succession is in high demand in legal practice. In the history of the state, the Union of Soviet Socialist Republics (USSR) became the legal successor of the Russian Empire, and the Russian Federation must fulfill the obligations of the USSR.
  
  This study, concerning the acts of arbitration proceedings, allows us to conclude that the functional succession of public authorities should be legalized at the level of federal law or the clarification of the Supreme Court of the Russian Federation, so that uniform application of law throughout the Russian Federation is ensured, and the rights of citizens and legal entities are not violated due to non-compliance with decisions of authorities. The activity of the state should be carried out in accordance with the axiom: public legal relations do not cease upon the abolition, liquidation or reorganization of a state body.
  
  Keywords: functional succession, procedural succession, restoration of violated rights, reorganization or liquidation of a state body, execution of a court decision, enforcement proceedings
  
  DOI: 10.46279/ASMO.2024.95.54.012
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