In the issue of the magazine "Bulletin of the Chamber of Commerce and Industry of the Krasnodar Region" (No. 2, 2016), there was published an article of Konstantin Serdyukov, the head of the private law practice of “National Law Company “Mitra’.
The end of 2015 there was marked for the legal community by the key stage of the reform of arbitration courts, initiated in late 2012 and early 2013 - the signing on December 29 of federal laws defining new rules for the creation and functioning of arbitration courts in Russia. We are talking about the Federal Law № 382-FL "On arbitration (arbitration) in the Russian Federation" (hereinafter - the Law on Arbitration), which will replace the existing Federal Law "On arbitration courts in the Russian Federation", dated 24.07.2002 № 102-FZ ( hereinafter - the Law on arbitration courts), as well as the Federal Law № 409-FZ, amending the Law of the Russian Federation from 07.07.1993 № 5338-1 «on international commercial arbitration", the Arbitration Procedure Code and the Civil Procedural Code of the Russian Federation and other regulatory legal acts. Preparation and passing of drafts laws in the parliament there was accompanied by close attention of specialists and active discussions of the proposed short stories on various discussion platforms. The ways of fighting "pocket" arbitration courts, the criteria for arbitrability of disputes and, of course, the limits of state interference linked with the functioning of non-state courts were also discussed.
One of the main changes in legislation on arbitration courts is the transition from notification to the permissive procedure for the creation of permanent arbitration courts and tightening of the requirements for the organization, under which an arbitration court is established.
The current Law on Arbitration Courts provides for the possibility of forming a permanent arbitration court in any organization - a legal entity, with the exception of federal and regional government authorities and local self-government authorities At the same time for creation a court of arbitration is enough to make a decision about its creation, to approve the position of the Court and the list of arbitrators, as well as direct to the competent court at the location of the arbitration court a copy of documents showing the formation of a permanent arbitration court. There are no other requirements to the procedure for the formation of a permanent arbitration court according with the Law on Arbitration Courts.
Entering into force on September 1, 2016, the Arbitration Law provides for stricter rules. First of all, permanent arbitration institutions - organizations that are called upon to replace the existing permanent arbitration courts - can be created only with non-profit organizations. The law separately stipulates the inadmissibility of creating arbitration institutions by federal and regional authorities, local authorities, state and local government agencies, public corporations, state-owned companies, political parties and religious organizations, legal practices, federal and regional lawyer chambers, the Chamber of Notaries and the creation of one arbitration institution at the same time with two or more non-profit organization.
At the same time, the status of a non-profit organization for creating and operating a permanent arbitration institution is not enough. Such an institution acquires the opportunity to carry out its activities only if the non-profit organization, under which it was created, obtains the right to carry out the functions of a permanent acting arbitration institution. This right is granted by an act of the Government of the Russian Federation adopted on the basis of the recommendation of a new body, the Council for the Improvement of Arbitration Proceedings established under the Ministry of Justice of the Russian Federation.
Special attention should be paid to the question of the criteria that a non-profit organization must meet in order to obtain the right to exercise the functions of a permanent arbitration institution. Arbitration Act provides that such a right may be granted only a non-profit organization, whose reputation, scale and nature of its activities, taking into account the composition of its founders (participants), will ensure a high level of organization of the arbitration institutions, including in terms of financial security of its creation and activities, the organization's activities aimed at developing arbitration in Russia.
Even if we consider the Council on improving the arbitration proceedings, including the representatives of public authorities (no more than one third of the Board), the all-Russian associations of employers, chambers of commerce, legal, scientific and business community, other persons will hardly be possible to avoid subjectivity when assessing the reputation of a non-profit organization and the scale of its activities.
In addition, the formation of a permanent arbitration institution and the receipt by it of the opportunity to carry out activities for administering arbitration (arbitration) is linked with a number of other conditions.
Firstly, a permanent acting arbitration institution must have a website on the Internet, where will be information about it.
Secondly, the authorized authorities of a non-profit organization, under which an arbitration institution was created, must adopt the rules of a permanent acting arbitration institution. These rules are to be posted on the website of the arbitration institution and deposited with the Ministry of Justice of the Russian Federation. The latter should be specifically notified of the placement of the rules on the website of the arbitration institution.
Finally, the arbitration institution must maintain and post on its website the list of arbitrators recommended by it, consisting of at least thirty people, not less than a third of whom must have a scientific degree awarded in Russia on the scientific specialty included in the list approved by the Ministry of Justice of the Russian Federation on the basis of recommendations of the Council on improving the arbitration, and not less than half - to have experience in resolving civil disputes as arbitrators or arbitrators in arbitration courts (arbitration), the Federal Court, the regional constitutional (charter) court, justices of the peace for at least ten years preceding the date of inclusion in the recommended list of arbitrators.
The general and bleak, because of excessive regulation, the picture of the procedure for the formation of a permanently functioning arbitration institution will be supplemented in the near future by by-laws, the adoption of which is directly provided for in the Arbitration Act. In particular, the Government of the Russian Federation should establish the procedure for the adoption of an act on the granting of the right to exercise the functions of an arbitration institution, and the Ministry of Justice of the Russian Federation - to approve the provision on the procedure for the creation and activities of the Council for the improvement of arbitration proceedings, the list of documents, submitted for consideration by the Council on the issuance of a recommendation on granting the right to exercise the functions of the arbitration institution, the procedure for their consideration, as well as the procedure for depositing the rules of the arbitration institution and procedure for sending notices to place rules on the site of an arbitral institution.
Thus, the procedure for the formation of permanent arbitration institutions, provided by the Arbitration Law, testifies to the tightening of state control over the creation and operation of arbitration courts and the desire to regulate in detail the activities of non-state courts. At the same time, such an approach entails a number of dangers, the main one of which is to eliminate the advantages of arbitration and, as a consequence, the disappearance of the arbitration courts. In this regard, it will not be out of place to recall the words of the famous Russian pre-revolutionary investigator of commercial arbitration courts, Volkov, written by him on the basis of a historical study of the institute of the arbitration court: "... Arbitration courts could function successfully only when they were organized on the basis of free will of the parties and when the state did not try to regulate in detail the private law rules relating to this. As soon as the state began exaggerating attention to the arbitration courts, in the sense of endowing them with special privileges, or in terms of furnishing excessive formalities, the institution itself disappeared and ceased its activities. "
The head of private law of National Law Company “Mitra”
Konstantin Serdyukov
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