Russian and World NewsWhere to go to have legal proceedings
Concluding the contract with foreign firm, you should solve at once, in what country you will have legal proceedings, if in this connection disputes arise the contract. From in what establishment you address, depends both the size of a legal cost, and speed of a resolution of dispute, and, at last, a outcome of process.
the Useful reservation
About in what court will be resolved possible dispute, it is better to think in advance, differently then you can be deprived possibility effectively to protect the interests. By the general rules will resolve its state court in the location of the respondent. However under the agreement of parties it is possible to choose other jurisdiction, and also to agree about dispute consideration not in the state court, and in arbitration (about specificity of these concepts of Russia and abroad see the inquiry).
the Arrangement on consideration of possible dispute in arbitration (in the international sense of a word), named the arbitration agreement, can be issued by the parties as the separate document (simultaneously with the conclusion of the prime contract or at later stage) or is included in the contract text. In the latter case the arbitration agreement is called as the arbitration reservation, but an essence from it does not change.
entering into the arbitration agreement, you can provide a resolution of disputes with the counterpart in one of the world arbitration centres operating on a constant basis. Other variant is the court establishment ad hoc (“ on a case “) . Such court is created for consideration of your dispute and stops existence right after it.
in Russia constantly operating arbitration courts are the International commercial arbitration court at TPP Russia, the Sea arbitration commission at TPP Russia and a number of others. Abroad the most authoritative arbitration bodies are the Arbitration institute of a chamber of commerce of Stockholm, the London international arbitration court, the International arbitration court of the International chamber of commerce in Paris, the American arbitration association, the International arbitration court of federal chamber of economy in Vienna, etc.
Exists a number of the specialised arbitration courts which consider disputes in any certain sphere pravootnosheny - a marine law, an air law, intellectual property right and etc. The world organisation of intellectual property has created the Arbitration centre widely using the Internet in consideration of disputes and conflicts from - for names of domains. The virtual arbitration courts which already start to compete successfully to courts real in view of obvious economy of means and time of the parties for consideration of disputes are created even. The pilot project in this direction considers the project “ the Virtual judge “ started in 1996 the American arbitration association.
any large arbitration court, as a rule, has the text of the approximate arbitration reservation recommended to the parties for inclusion in the text of the contract in the regulations. And if you have already chosen court in which you will consider the disputes would be logical for using the text of the arbitration reservation offered by this court.
in what country to have legal proceedings?
the Common decision, suitable for all kinds pravootnosheny, does not exist. It is necessary to weigh in each separate case all pro et contra and taking into account concrete circumstances to define the most effective jurisdiction for consideration of your dispute.
in most cases it is more convenient to have legal proceedings in that country and to apply the right of that country with which your contract is closely connected. We will assume that at you the contract with the Turkish partner on object building in Russia is concluded. Contract execution occurs in Russia, the Russian right is thus applied, the Russian requirements and standards in the field of building, the object of building is in territory of Russia, here there are all proofs which can be demanded for court, and etc. the Factor of a close connection of the contract with the country of its execution will speak well in this case for a choice for consideration of possible dispute of Russia.
however, making of the decision on a choice of the country of dispute, it is necessary to consider and where this decision will be executed. So, if in the resulted case the decision will be executed in territory of Russia (we will assume, your Turkish counterpart is forced to execution of any actions in territory of Russia), presence of the decision of Russian court - the factor which is speaking well for the claimant. And if the decision is taken out against the Turkish company and assumes collecting of debts from it in your advantage? In this case the decision of Turkish court would be much more effective tool.
the matter is that owing to a principle of the territorial sovereignty the judgements which have been taken out in one country, have no automatic force in other country. And if your counterpart refuses to execute voluntary the foreign judgement (not important - arbitration or state court) it will be necessary for you to undergo special procedure of a recognition and execution of the Russian decision in country of origin of your counterpart.
However there are situations when it is more favourable to select territory of the third country to a resolution of disputes. We will present a situation that your partner - the English company, which all actives are deduced to Cyprus. Very often happens so: the company has one country of origin, and its basic property is in other country. If you know about it, the most convenient jurisdiction will be that where these actives are. The choice as a place of consideration of disputes not countries of origin of the counterpart, and the country where there is a property for which account requirements of the claimant will be satisfied, that is you, gives you essential economy in time and, of course, in money. In the described case insist on that your arbitration reservation looked as follows: in case the respondent are you, legal proceedings can pass in Russia and in case the respondent is your British counterpart, you will have legal proceedings in Cyprus, instead of in Great Britain.
There are also other cases when in your interests to choose a place of consideration of dispute not country of origin of your counterpart and at all the country of placing of its actives, and the third country. For example, if your dispute has a non-material component - we will assume, the right recognition, and it for you is more important, than a material component. In that case a place of consideration of dispute it is necessary to choose the country where such right should be recognised.
however it is necessary to consider that there are categories of disputes in which relation your autonomy of will is very narrowed also you cannot choose, to what jurisdiction to go. These are norms about the exclusive competence of national courts. Such norms are in legislations of all countries of the world. So, many national legislations carry to the exclusive competence of the courts disputes of noncommercial character (for example, connected with protection of the rights of consumers), the disputes mentioning a public order; The disputes connected with procedure of bankruptcy and liquidation of the enterprises; the disputes infringing on interests of the state. Item 248 of agrarian and industrial complex of the Russian Federation also contains the norms defining an exclusive competence of the courts of the Russian Federation on affairs with participation of foreign persons.
state or the arbitration court?
the Second question which before you rises, - to choose for consideration of the dispute state or the arbitration court. Here too there is no uniform approach which would be optimum for all pravootnosheny. Let`s consider advantages and lacks of each of the named systems of consideration of disputes which should be meant at the decision of a question on a court choice.
the state court
At first about its advantages.
speed. It is necessary to tell that this characteristic is inherent in exclusively Russian arbitration court - that is, we will underline, to the state court considering disputes in sphere economic pravootnosheny. Possibly, the person who was not facing world system legal proceedings, hardly will believe in it, but, perhaps, any state court of Europe or America does not work so quickly, as the Russian arbitration court. Frequently procedure in such court occupies less time, than in any of arbitration institutes of the world. (Once again we will make a reservation that at world state courts of advantage in speed before the arbitration courts is not present.)
Economy in court costs. the State tax and a legal cost in the state courts of the whole world almost always more low, than in private arbitration bodies.
possibility of the appeal of a judgement in essence. the Urgency of this advantage immeasurably increases, when the decision is taken out against you. (Thus the arbitration court decision always definitive and to the appeal is not subject. It can be challenged on remedial and some other bases, but in general possibility of correction of a miscarriage of justice has enough ogranichenny.)
Remedial guarantees, given to the parties the law and supported with imperious powers of the state court. (Conciliatory character of the arbitration court frequently it is not enough for the decision of separate remedial questions - istrebovanija proofs, acceptance of measures on maintenance of the claim, etc.)
Now about lacks of the state court.
in - the first, the big problem of the state courts in all civilised world is delivery of documents to the foreign participant of process, and first of all notices on the process which has begun against it. make remedial actions abroad any state court of the world cannot, if other is not provided by the international contract. Thus, in most cases at a direction of documents abroad the state court should resort to the help of competent bodies of the corresponding country. In practice process of the notice of the foreign party occupies about six months, and sometimes lasts years.
the state courts of the world face the same problems and in need of fulfilment of other remedial actions in territory of other countries: Receptions and grantings from - for a boundary of proofs on business, a call of the witness or the expert, reception of the information on the operating foreign legislation, an establishment of the maintenance of the foreign right, practice of application of legal certificates.
other basic lack of the state legal proceedings are complexities with execution of the foreign judgement abroad.
If we want to address for a recognition and execution, for example, the Russian decision abroad or we will want to execute the decision of foreign court in the Russian territory, it is necessary to be guided by bilateral agreements about mutual legal assistance which at us are concluded with 32 states (and at all with the basic our external economic partners), and the multilateral agreements concluded within the limits of the CIS.
And if your respondent comes, say, from Georgia which did not ratify the Kiev agreement on an order of the permission of economic disputes of 1992, or, say, from Guinea-Bissau to recognise and execute our decision the corresponding states will be (or will not be), simply being guided by principles of the international politeness (comity) and reciprocity.
the arbitration court
At first is reversible to its advantages.
theoretically the arbitration court, or commercial arbitration, with bolshej confidence degree can consider independent and unbiassed. Dispute between the companies from Russia and Afghanistan for lack of the arbitration reservation will be considered anyhow by the state court of one of these two countries. Naturally, the opposite side will be not always assured of objectivity of such court in spite of the fact that before the law all are equal, and court - is independent. To address in the state court of the neutral country it will not turn out: the court will not accept business to consideration. And here, for example, the Stockholm arbitration which is in Sweden, by consideration of this business hardly it will be possible to suspect of bias.
objectivity of arbitrators the international arbitration courts too does not raise the doubts. Corruption among them is almost excluded. They are authoritative lawyers, it is frequent with a world name which value the reputation. Eventually, arbitrators of the international arbitration courts receive high enough fees for the work.
process of the notice of the opposite side about the trial beginning in the arbitration courts is not such zabjurokratizirovannym, as in the state court. Here it is not necessary to resort to such difficult official procedure: as a rule, it is enough to send the summons about the notice.
As to questions of execution of the decision of the arbitration court, that a situation here too much more favorable. Concerning the international commercial arbitration Nju - the Jorksky convention of the United Nations of 1958 " operates; About a recognition and a carrying out of foreign arbitral awards “. Participants of this convention are about 200 states (among them almost all external economic partners of Russia). This factor essentially facilitates process of execution of the decision of the arbitration court no matter where - practically all over the world.
among advantages of arbitration trial before the state legal proceedings it is possible to name and confidentiality of procedure. the confidentiality Principle is fixed and in the law of the Russian Federation “ About the arbitration courts “ (item 18) also contains in regulations of all leading arbitration institutes of the world. (In turn, according to the Constitution of the Russian Federation, agrarian and industrial complex of the Russian Federation and GPK the Russian Federation, legal proceedings in the Russian state courts is carried out on the basis of publicity. Similar norms are present practically at all world jurisdictions as the state judicial bodies all over the world as a matter of fact are public.)
Possibility of a choice of arbitrators is too argument in favour of an arbitration court choice. The parties choose judges from among people to whom they trust. Arbitrators, as a rule, get out of the list which includes avtoritetnejshih lawyers. Meaning the international character of disputes, arbitrators in the arbitration courts often are not only lawyers of the given country, but experts of other countries of the world. By the way, in many arbitration courts you are not limited by the list of arbitrators, and can to offer court a nominee also.
quality of disposal of legal proceeding in the international commercial arbitration courts, as a rule, very high - judges value the reputation. Is to that and the objective bases - arbitrators of the arbitration courts are not filled up by affairs how their colleague from the state courts, on them does not press tekuchka, they have time for the careful analysis of business. (The Russian judges in the state arbitration courts should consider on 30 affairs in a month. Such judge can qualitatively apply the state Belize substantive law?)
the arbitration courts, unlike state, have no iterative structure, and, as consequence, the legal investigation occurs during rather short term. this difference of arbitration courts from state in the western countries is especially appreciable.
procedure in the arbitration courts more flexible. It is not so regulated, and you even have a possibility as - that it to correct the agreement. As a whole commercial arbitration, considering dispute, apply wider approach, than, for example, the Russian arbitration court compelled strictly to follow to a letter of the law.
we will list arbitration court lacks.
as it was already marked, a lack is impossibility to challenge its decision in essence. Other minus is necessity notsti high expenses. Especially it is actual in a case with foreign international commercial arbitration. The structure of court costs includes fees to arbitrators, experts, translators, expenses on trips and residing and etc. But the basic item of expenses are, of course, fees to lawyers. Almost always here it is a question of the whole command of lawyers consisting both from Russian, and from foreign experts.
but, perhaps, basic problem of our compatriots in foreign arbitration all - taki remains not too adequate representation about enough specific game rules in these courts. Process in the international commercial arbitration very strongly differs from claim manufacture in the Russian courts, and consequences for Russians can be literally fatal. Many Russian enterprises and the organisations which have signed the reservation on arbitration in Paris or London, faced there serious problems which could and not to be if they had at least approximate idea about that, on what they go.
the example with the Swiss firm Noga is indicative in this sense. Our government, having concluded with it the foreign trade contract, has co-ordinated arbitration in Stockholm. When business has reached a presentation of claims to the government of the Russian Federation, it could not expose adequate protection, and the Stockholm court has passed the decision against the Russian side for the sum about $100 million Now the Swiss firm tries to arrest the Russian property worldwide: the Russian vessels, planes, means on foreign accounts of the Central Bank of the Russian Federation.
probably that the government of the Russian Federation, having acted in given pravootnoshenii as the simple participant of foreign trade activities and signing the reservation on arbitration in Stockholm, simply did not know, on what it agrees. When serious claims for the large sums of the international arbitration courts are made, it is necessary to be ready instantly to expose a command of skilled lawyers - foreign affairs specialists who know foreign languages, the foreign right, freely are guided in process, can correctly choose arbitrators, operatively solve questions of the statement of the counterclaim and etc. Only then you can estimate advantages of system of the international commercial arbitration. And differently on execution can appear are accepted, as in a case with Noga, decisions for absolutely fantastic sums.
other example of inefficient actions of the Russian side in the foreign arbitration court - a known case with the Tobolsk petrochemical industrial complex (NHK) which in one of the external economic contracts too has provided arbitration ad hoc in Sweden. This arbitration has collected from it DM200 million that has put industrial complex practically on a ruin side. Thus NHK is gradoobrazujushchim the enterprise, 80 % of the population of Tobolsk anyhow depend on its work, and its stop threatens socially - an economic crisis of the whole region.
certainly, it is better not to get to such situations. If you are not ready to operative adequate actions in foreign commercial arbitration courts, to professional and competent (and, of course, expensive) protection we to you in every possible way do not recommend to provide such courts as bodies of consideration of disputes: consequences can be unpredictable.
if all of you - taki sign the reservation on the international commercial arbitration you always should know who can particularly help you and is competent spend such business. It is necessary in advance (before claim occurrence in arbitration!) To bring the lawyers up to date, to acquaint them with the documentation that when business will reach court, they could operate quickly and effectively. As it was already told, the decision is accepted by the arbitration court definitive, and possibility for correction of errors practically will not be.
Natalia Pershin, the partner of lawyer bureau “ the Information and the right “
Edition invites experts in the field of the right to share the knowledge with readers “ Money “. E - a mail: lawyer@kommersant. ru.