Advocacy and notary office. Participation of a lawyer in the arbitration process in the court of first instance (the most important)

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Advocacy and notary office. Participation of a lawyer in the arbitration process in the court of first instance (the most important)

Lecture notes, cheat sheets

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19. Participation of a lawyer in the arbitration process in the court of first instance

When considering cases in the arbitration court, all persons participating in the case may have their representatives, in accordance with Art. 40 of the Arbitration Procedure Code of the Russian Federation dated July 24, 2002 No. 95 FZ (Arbitration Procedure Code of the Russian Federation).

Judicial representation has the right to carry out only a capable person, if at the same time it does not belong to the circle of persons who, in accordance with Art. 60 of the Arbitration Procedure Code of the Russian Federation cannot be representatives in an arbitration court. The authority of a representative to conduct a case in an arbitration court must be formalized and confirmed in accordance with Art. 61 APC RF. The powers of a lawyer to conduct cases in an arbitration court are certified in accordance with the Federal Law "On Advocacy and the Bar in the Russian Federation". The Arbitration Procedure Code of the Russian Federation does not contain mandatory prescriptions on issuing a warrant for the powers of a lawyer to conduct a case in an arbitration court on behalf of the principal. Thus, an attorney in an arbitration process may represent a principal on the basis of either a warrant or a power of attorney.

The judicial representative, executing the order of his principal in court, must, by his activity, contribute to the resolution of the problems of legal proceedings in arbitration courts, pursuing the protection of the violated or contested rights, freedoms and legitimate interests of his principal as the main goal of his activity. In addition, the lawyer must assist the principal in exercising the procedural rights granted to him and the procedural duties assigned to him. This is the main difference between judicial representation and civil legal representation, the main purpose of which is the direct creation, change and termination of the civil rights and obligations of the represented.

Judicial representation as an institution of arbitration procedural law is usually divided into types depending on the grounds for its occurrence. As a general rule, distinguish voluntary (or contractual) representation, in which the person participating in the case independently elects his representative to conduct the case in court, as a rule, giving the representative the appropriate powers on the basis of an agreement on the provision of legal assistance (Article 25 of the Federal Law “On Advocacy and the Bar in the Russian Federation”) , contract of assignment or agency contract, and legal representationwhen a person is a judicial representative by virtue of a direct prescription of the law.

Analysis of the norms contained in Ch. 6 of the Arbitration Procedure Code of the Russian Federation, in their systemic connection with other provisions of the Code, indicates that representation is possible at any stage of consideration of a case by an arbitration court of the first, appellate, cassation or supervisory instances and in any category of cases referred by law to the jurisdiction of the arbitration court. In addition, the Arbitration Procedure Code of the Russian Federation does not contain restrictions on the number of representatives of each of the persons participating in the case.

Authors: Nevskaya M.A., Shalagina M.A.

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