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91COURSE OF JUSTICE OF ARBITRATION COURTS IN THE RUSSIAN FEDERATION Andrey Soloviev
Doctor of Legal Scienses, Federal Judge,
Chair of the Court Bench, Arbitration Court of the Moscow Region
Yury Filippov
Ph .D. (History), Assistant to the Judge,
Arbitration Court of the Moscow District
Abstracs: The article concerns the key aspects of organization and operation of the system of arbitration courts in the Russian Federation. It outlines the history of the emergence and formation of the arbitration courts, focuses on key issues of their operation, describes the system and structure of the arbitration courts, determines their place in the Russian court system, and analyses such interesting procedural and institutional innovations as "e-justice” and summary proceedings
Keywords: justice, arbitration court, court system, commercial disputes, business practice, e-justice, summary proceedings
Arbitration courts in the Russian Federation are constituted in accordance with section 127 of the Constitution of the Russian Federation, the Federal Constitutional Law of 28 April 1995 "On the arbitration courts of the Russian Federation” and part 3 section 4 of the Federal Constitutional Law of 31 December 1996 "On the court system of the Russian Federation”.
Pursuant to sections 4 and 5 of the said Law, the arbitration courts in the Russian Federation administer justice by resolving arbitration disputes and reviewing other legal matters within their competence . The principal objectives of the arbitration courts in the course of resolving disputes subject to their jurisdiction are the following: to protect the rights and lawful interests, infringed or contested, of the enterprises, institutions, entities and individuals in the area of business and other economic activities, and to contribute to strengthening of legality and preventing wrongdoing in these areas
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The arbitration courts constitute a sign of a new legal reality that emerged in Russia due to enactment of the Constitution of 1993, the formation of a new system of governmental bodies and codification of a new complex of Russian laws . The arbitration courts have as a historical prototype the commercial courts that used to exist in Russia until the October Revolution of 1917 and resolve disputes related to commercial affairs, contracts and liabilities
Over the last few years, Russia has made a sure step into the market economy, absorbing complicated business mechanisms related to financial markets, corporate relations, insolvency and bankruptcy procedures As a response to the challenges of the time, the system of specialized arbitration courts was established on the eve of 1990s, having, on the other hand, a solid historical background
In the Soviet period, regardless of the lack of private ownership and free market for goods and services, there were paralegal bodies resolving property disputes between organizations and establishments. Since 1922, departmental arbitration tribunals (arbitration commissions) had existed, followed by establishing a state arbitration tribunal The latter was created for the settlement of property disputes between establishments, enterprises and organizations in order to improve contractual and planning discipline and commercial accounting. Although in the USSR the state arbitration tribunal was an administrative body, rather than judicial, it had an almost 60-year existence and played a leading part in the sphere of property dispute settlement and business practice development1.
A new page in history was opened on 4 July 1991, when the law "On the arbitration court” was adopted Since this exact moment, there has been arbitration court in Russia as an element of particularly judicial power, which is independent, separated from the executive and legislative powers, and implementing its authority in compliance with the Constitution and federal laws
The arbitration courts in the Russian Federation administer justice by resolving matters referred to their competence by the Constitution, the law "On the arbitration courts of the Russian Federation”, the Arbitration Procedure Code and other federal laws enacted in compliance therewith The common factor for attributing a dispute to the jurisdiction of the arbitration court is the genetic link of the disputable relation to commercial or other economic activities In this context, dispute settlement by the arbitration courts in Russia is reasonably called economic or commercial justice
1 For more details see: http://www.asmo.arbitr.ru/about/about.
Arbitration courts in Russia are strictly federal, which responds to the legislature's idea at their creation to shape and protect a single economic space throughout the country
Institutionally, the arbitration courts are acting on four levels The first level is composed by the arbitration courts of constituent entities of the Russian Federation, including the arbitration courts in republics, territories, regions, federal cities, autonomous region and autonomous districts They consider cases as the first instance trial The first level arbitration courts currently total 81 The second level consists of arbitration courts of appeal performing the review of legality and reasonableness of judicial acts passed by the arbitration courts of constituent entities of the Russian Federation in the first instance The authority, procedure of formation and operation for the arbitration courts of appeal is provided by section 33.1 of the Law "On the arbitration courts of the Russian Federation”
The third level is composed of ten federal district arbitration courts, each working as cassation instance towards the group of arbitration courts constituting one court district The court bench is determined in section 24 of the same Law In the cassation instance the arbitration court judgments are reviewed solely with respect to correctness of implementing material and procedural law Thus, the Federal Arbitration Court for Moscow District carries out the review of judgments, which have entered into legal force, issued by the Arbitration Court for Moscow and the Arbitration Court for the Moscow Region along with the rulings by the 9th and 10th Arbitration Courts of Appeal
The fourth level is represented by the High Arbitration Court of the Russian Federation. Pursuant to section 127 of the Constitution, it is the supreme judicial body to settle economic disputes as well as other cases resolved by the arbitration courts, to conduct judicial supervision of their activities and provide explanation as to the matter of court practice It is incorporated into the single court system of the country along with the Constitutional Court and courts of law with the Supreme Court at their head Therefore, the main field of concern for the High Arbitration Court is to ensure uniform interpretation and application by all the arbitration courts of the laws governing economic relations This critical task is fulfilled by means of summarizing of court practice and elaborating the relevant explanations by the Plenum or Presidium of the High Arbitration Court
It should also be noted that, during his speech on 21 June 2013 at the plenary session of the St Petersburg International Economic Forum, President Vladimir Putin suggested that the Supreme Court (being the highest court for civil, criminal, administrative and other cases
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Law and Modern States № 3 — 2013
subject to settlement by courts of law and heading the system of these courts) and the High Arbitration Court should be united. According to President, uniting the courts will allow for uniform approaches to solving disputes involving both individuals and entities, as well as governmental bodies and local self-governing authorities2. In the meantime, even if a single Supreme Court is created in the Russian Federation, there are no plans for any substantial restructuring of the system of the first instance arbitration courts, arbitration courts of appeal and of cassation
Due to the unified system of appointing judges, a person complying with the legal requirements and having obtained the approval of the special qualification boards composed by judges and professionals in the sphere of law can become a judge of arbitration courts . The status of the judge is life-long: while a person can exercise the duty of the judge of the arbitration court until he or she is 70 years old, upon this age the judge is honourably discharged with the judicature, immunity and allowance retained
It is contemplated that the judges are appointed to the positions of chairpersons and deputy chairpersons of the arbitration courts of all the four levels carrying out organization and management authorities for six-year term with the right to be re-appointed for the same term The judges of arbitration courts are appointed by the President of Russia upon the recommendations of the corresponding qualification board of judges The structure of the arbitration courts of various levels differs depending on the functions and scope of work performed
As a general rule, the arbitration courts are acting within the presidium of the arbitration court, the judicial division for resolving disputes arising out of civil and other relations and the judicial division for resolving disputes arising out of administrative relations
The presidiums of the arbitration courts, upon advice of their chairpersons, approve the members of court divisions and chairpersons of the relevant court benches and consider other matters of arrangement of work of the court and issues related to summarizing court practice
Arbitration courts in Russia have been intensively implementing the e-justice system Today, almost any application or action can be filed with the arbitration court electronically via the Internet, as can the supplemental documents
The idea of e-justice is based on the principles of transparency and equal rights of all the parties to the arbitration proceedings
2 See: http://www.itar-tass.com/c188/781215.html.
Implementation of these principles at the national level implies, particularly, the opportunity for the parties to the proceedings to enjoy open access to information related to the status of the case and the copies of all judicial acts issued in respect thereto, exchange of the procedural documents with the court, and taking part in the hearing by means of video-conference
The e-justice system is composed of two key units The first one is a secured video-conference net, connecting all the arbitration courts of the Russian Federation, with direct access to the Internet through overt streaming video broadcasting channels, such as popular video hosting, for instance
If a party to the arbitration proceedings is a person registered in a region other than the location of the relevant court, or if the court needs to question a witness, get in contact with a specialist or an expert, the teleconference link is arranged connecting the courtroom and the arbitration court in the region of Russia where the party whose appearance is required is located It is important to note that each of the parties involved in the video-conference session appears in the arbitration court at the place of location thereof, their participation in the court proceedings via video-conference being preceded by verification of their authority by the judge in the region from where they establish the communication In this way, the verification of legal capacity of the remote participants to the proceedings is guaranteed along with explanation of the rights and obligations thereto, to the same extent as if they were appearing in court directly
It is obvious that large-scale implementation of video-conferencing will considerably reduce the court expenses of the parties to arbitration proceedings as well as the terms for settlement of the cases by the arbitration courts . Another advantage of the video-conference system is the opportunity to connect by this medium the judges of various courts from different regions to discuss matters related to court practice and to conduct workshops
The second component of the e-justice system is a group of portals of the High Arbitration Court on the Internet providing access to any person anywhere in the world to up-to-date information of the work of arbitration courts The key principle of the portal's functioning is ensuring the transparency of justice, both in respect of procedure and access to the judicial acts in controversial cases
Access to all the portals is exercised freely and with no charge through the main portal of the arbitration system of Russia, which is http://www.arbitr.ru. Any person with access to the Internet, including mobile browsing, can study the catalogue of arbitration cases (http://kad . arbitr. ru), the bank of arbitration court decisions (http://
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Law and Modern States № 3 — 2013
ras . arbitr. ru) and find all the cases involving certain parties resolved in the arbitration courts of all instances, determine the procedural status thereof and gain immediate access to all judicial acts passed in respect thereto, as all the judicial acts of the arbitration courts, with the exception of closed-door hearings, are subject to mandatory publication on the Internet
It is important to note that the document ( pdf) obtained from this service is an official electronic copy of the judicial act and can be submitted to any arbitration court . Thus, the parties to the arbitration proceedings do not need to make requests for and certify the copies of the required judicial acts from various courts
Verifiability of the judicial acts obtained this way is ensured by a special digital code whereby they can be found at any time on the portal of the arbitration courts and checked against the original texts available thereon
Taking into account the fact that the judges of the arbitration courts when issuing judicial acts not only issue them in hard copy, but also sign electronic versions thereof using an electronic digital signature, the next stage in development of this unit of the e-justice system will become the expansion of a complete electronic document workflow involving courts and parties to the arbitration proceedings
The initial step in this direction was implemented in 2012 with the system “My Arbiter” allowing persons to file documents electronically with and obtain any documents from the arbitration court Any person, upon registration on the portal of the system http://my arbitr. ru, may gain access to his or her profile, and may forward scanned documents via this profile directly to the court . Within a few minutes, the documents will be delivered to the server of the system, registered automatically, reflected in the catalogue of arbitration cases on the card of the relevant case and become available for the judge
It is obvious that at the stage of court hearings the court will examine not just the electronic copies submitted, but original copies of the documents as well
The following step in the development of the system will become total scanning of all the incoming documents in the arbitration courts of all instances In this way, along with the case file existing feasibly on paper, the electronic case will be automatically formed, which will avoid time spent in sending cases between the courts and identifying cases in the archive, as the judge will be able, if needed, to browse through the necessary case immediately and directly on his or her office computer
It is also noteworthy that the e-justice system allows for effective and cost-efficient notification of all the parties to the proceedings 70
of the date, time and place of court hearings . Even now, there is a mailing system through e-mail on the portals of the High Arbitration Court and one can download the mobile applications supporting PUSH notification of the new events and documents
Wide-scale adoption of these information technologies into the work practice of the arbitration courts has another advantage as well: implementing information technologies in justice offers wide opportunities for court statistics to be automated and hence early detection of court red-tape and other procedural violations When every judge of the arbitration court in Russia is under restrictions to provide in due time procedural documents and up-to-date information of the cases available on the servers of the system, the court judiciary and administration will become more responsible, and the performance discipline sustainable on the proper level
The implementation in 2012 of the dramatically renewed summary proceedings system allowed the resolution of cases related to small claims without the parties being present, provided that the latter were granted access to all the case files by means of a special secured Internet page In the course of trial under summary proceedings, the parties thereto shall receive only one ruling by mail, which contains the access code to the case files in the previously mentioned system “My Arbiter” The parties actually observe the same electronic case as the one on the judge's office computer. Therefore, they do not need to appear in court, study and copy the case files In the summary proceedings, there is no court hearing, while the judge passes the judgment on the basis of the materials submitted by the parties electronically
The judge will always have an option to rule that the case shall be heard under general procedure by civil law or administrative proceedings, ordering the parties to appear in court for a hearing of the case
Another substantial novelty in the arbitration system operating in Russia is consistent implementation of the transparency principle into the routine of the courts A number of amendments introduced to the Arbitration Procedure Code have introduced mandatory audio recording of the court hearings, provided for the right of the parties to use audio-recorders freely and facilitated access to the courtroom It is important to mention that in this case the principle of transparency of justice in the arbitration procedure is not contrary to the principle of protection of commercial secrecy The parties submitting their commercial dispute for resolution to the arbitration court in good faith are not afraid of public disclosure as they are sure that they are acting in compliance with law and good business practices . Moreover,
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the existing laws of the Russian Federation provide other options for dispute settlement, specifically through the court of referees and mediation procedures These mechanisms can be used by the parties to business transactions concerned about utmost protection of confidentiality
The transparency of procedure in the state arbitration corresponds completely to the public nature of the arbitration court as a government institution
Economic life in Russia today, maintaining sustainable commercial turnover and developing international business co-operation, would be impossible without the efficient operation of the arbitration courts The growing amount of cases being resolved by these courts shows that individuals and entities, both residents and non-residents of Russia, have more confidence in the arbitration courts with regard to the settlement of a wide range of economic disputes
