On July 2, 2021, the Resolution of the Plenum of the Supreme Court No. 18 dated June 22, 2021, “On some issues of the procedure of pre-trial settlement of the disputes considered in civil and arbitration proceedings” was published. It is worth saying that the Court, making interpretations on different issues, infrequently turns to this question. The last significant statement, drawn up by the Supreme Court in this sphere, was the Review on certain matters of judicial practice in the context of applying by arbitration courts the rules of remedial legislation about the obligatory pre-trial dispute resolution procedure, approved by the Presidium of the Supreme Court on July 22, 2020. So, the aim of this new Resolution is to ensure “the uniform application of the rules of this procedure”. Among the clarifications, made by the Court to achieve this goal, we recommend to pay attention on following key provisions.
- First of all, the Plenum clarified the definition of the term “pre-trial dispute resolution procedure”. This way legislators describe the activity of the parties before going to court carried out by them independently or with the involvement of third parties or empowered public authorities to resolve the dispute in administrative proceedings. That is why this procedure covers a wide range of actions including pre-action complaint procedure, negotiations, mediation and participation of authorized authorities. The Court also emphasized that if the pre-trial dispute resolution procedure is imperative, carrying out this duty becomes a condition for the exercise of the right of the party to legal action.
- At the same time the Supreme Court warns the parties against possible confusion and pays their attention on the fact, that unlike making claims sending an informational message cannot be considered as a pre-trial dispute resolution procedure. For instance, there will not be this procedure, if one of the participants of the civil-law community, intending to bring a claim, notifies other participants about it.
- The Supreme Court also systemized situations, for which the procedure of pre-trial settlement of the disputes was recognized obligatory. They include disputes on the conclusion and modification of the contract, on the violation of exclusive rights; disputes arising from contracts for carriage of goods, from communications services contracts etc. Besides, if the matter concerns arbitration proceedings, pre-trial dispute resolution procedure is also obligatory in case of adding such provisions in the contract.
- The opinion of the Supreme Court on the distinction of the rules in relation to the amounts of the principal debt and the penalty is also interesting. If the plaintiff has sued for both sums and has observed the pre-trial procedure only when bringing the claim for the principal debt, it considers to be observed for the penalty too. On the contrary, if the actions have been brought separately (or the claim for the penalty has not been brought at all), the subsequent observance of the procedure before suing for the penalty is necessary. These rules are also applicable for collecting interests.
- The Supreme Court noted the opportunity of the parties to replace the pre-action complaint procedure by another procedure including negotiations etc. There should be the rule of law allowing such a replacement and a parties` consent.
- The Supreme Court also points out the significance of the matter of term of the pre-trial dispute resolution procedure. If this term has not expired by the time of the person`s going to the court, and there is no document confirming observance of the procedure, the statement of claim will be returned.
- Finally, the Resolution enumerates the persons and entities, for whom this procedure is not mandatory. Among them the Plenum names: prosecutors and state bodies (when they defense public interests, the rights of organizations and citizens); legal successors in the dispute (if the procedure was observed before); persons, filling a counterclaim; third parties, filing independent claims regarding the subject of the dispute.
To sum up, it is worth admitting that the clarifications of the Supreme Court should have a positive effect on legal practice. There were rules, in detail regulated both common questions of the pre-trial procedure and some special issues for several contracts, which will allow the new Resolution to be applied to the wide range of legal relations.