Advocacy and notary office. Activities of a lawyer in the arbitration process (lecture notes)

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Advocacy and notary office. Activities of a lawyer in the arbitration process (lecture notes)

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LECTURE No. 11. The activities of a lawyer in the arbitration process

1. 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). An exception is the prosecutor, who cannot participate in civil proceedings through his representative, since, according to Art. 1 of the Federal Law of January 17, 1992 No. 2202-1 "On the Prosecutor's Office of the Russian Federation", the prosecutor directly participates in the consideration of cases by arbitration courts in accordance with the procedural legislation of the Russian Federation.

Judicial representation has the right to exercise 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 for issuing a warrant for the powers of a lawyer to conduct a case in an arbitration court on behalf of a principal. In this way, lawyer in arbitration proceedings may represent trustee on the basis of either a warrant or a power of attorney. No one has the right to require the lawyer and his principal to present an agreement on the provision of legal assistance for the lawyer to intervene in the case. If the established procedure for formalizing the powers is not observed, the lawyer is not allowed by the court to participate in the process (clause 4, article 63 of the Arbitration Procedure Code of the Russian Federation).

The legislator provided some restrictions on the participation of a lawyer in any given case. So, lawyers cannot be representatives in the arbitration court if there are obstacles for their participation in the process, provided for in subpara. 2 p. 4 art. 6 of the Federal Law "On advocacy and advocacy in the Russian Federation", namely:

1) if the lawyer has an independent interest in the subject matter of the agreement with the principal, different from the interest of this person;

2) if the lawyer participated in the case as a judge, arbitrator or arbitrator, mediator, prosecutor, investigator, inquirer, expert, specialist, translator, is a victim or witness in this case, and also if he was an official in whose competence the decision was made in the interests of this person;

3) if the lawyer is in a relationship or family relationship with an official who has taken or is taking part in the investigation or consideration of the case of this person;

4) if a lawyer provides legal assistance to a principal whose interests are contrary to the interests of this person.

Judicial representative, executing the instructions of his principal in court, must, through his activities, contribute to the resolution of the problems of legal proceedings in arbitration courts, pursuing as the main goal of his activities the protection of the violated or disputed rights, freedoms and legitimate interests of his principal. In addition, the lawyer must assist the client in the exercise of the procedural rights granted to him and the procedural duties assigned to him. This is the main difference between judicial representation and civil representation, the main purpose of which, as follows from the content of Art. 182 of the Civil Code of the Russian Federation is the direct creation, change and termination of the civil rights and obligations of the represented person.

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, voluntary (or contractual) representation is distinguished, in which the person participating in the case independently elects his representative to conduct the case in court, as a rule, granting 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 Advocacy in the Russian Federation"), an agency agreement or an agency agreement, and legal representation when 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.

2. Participation of a representative in the appeal, cassation and supervisory instances of the arbitration process

Arbitration court decisions that have not entered into legal force are subject to appeal.. An appeal may be filed by persons participating in the case. They have an interest in the outcome of the case, so the law gives them the necessary procedural rights. Unlike the persons participating in the case, their representatives (including lawyers) do not have an independent right to appeal to the appellate court. An appeal can take place only on instructions and on the basis of a power of attorney from the persons participating in the case, other persons entitled to appeal judicial acts.

An essential feature of the review of the case in the appellate instance is the repetition of the trial. However, the lawyer should take into account that only what was the subject of the judicial investigation earlier is re-examined. Therefore, new claims that were not filed in the court of first instance cannot be submitted to the court of appeal, no matter what expediency may be associated with them.

The lawyer at this stage must take into account that it is not advisable to state new requirements in the appeal, since they cannot be the subject of proceedings and deliberately distract the court of appeal from the analysis of those problems that remained relevant for the applicant of the complaint after the decision was made by the court of first instance.

The persons participating in the case have the right to appeal against the decision of the court in the cassation procedure. This is possible only in relation to the acts of the courts of the first and appellate instances located in the arbitration districts. Decisions of the Supreme Arbitration Court of the Russian Federation in accordance with the generally established procedure are not subject to cassation appeal.

An interested person may file a complaint with the court of cassation, bypassing the court of appeal, and in the cases established by law (Articles 195, 234, 240, 245 of the Arbitration Procedure Code of the Russian Federation), the law does not provide for an appeal against judicial acts of first instance to the court of appeal.

At this stage, the lawyer should take into account the fact that the filing of a cassation appeal against a judicial act by one of the judicial instances that took part in the consideration of the stated claim (first or appeal) does not mean that only the appealed judicial act is subject to verification. If the consideration of the case took place not only in the court of the first instance, but also in the court of appeal, then the semantic connection between the adopted judicial acts based on the results of the consideration of the case is obvious. The mutual connection of these acts is due not only to formal logic, but also to the arbitration procedural law (Articles 168-170, 271 of the Arbitration Procedure Code of the Russian Federation). The filing of a cassation complaint only against the appeal ruling does not exclude, but involves the revision along with it of the decision of the court of first instance.

The revision of judicial acts that have entered into legal force, in the exercise of supervision, is carried out exclusively by the Supreme Arbitration Court of the Russian Federation. A lawyer must take into account that in the supervisory court a judicial act that has entered into legal force can only be challenged. If an appeal against a judicial act entails consideration of the complaint (appeal, cassation) on the merits, then its contestation is connected with a preliminary consideration of the issue of the presence or absence of grounds for initiating supervisory proceedings.

The persons participating in the case, as well as other persons, on whose rights and obligations a judicial act has been issued, may apply for its revision if they reveal a significant violation of their subjective rights and legitimate interests as a result of the incorrect application by the arbitration court of the norms of substantive and procedural law. Under similar conditions, there may be an appeal by the prosecutor in cases where the arbitration procedural law allows for the possibility of his participation in the case (Article 52 of the Arbitration Procedure Code of the Russian Federation).

In order to streamline the appeal to the Supreme Arbitration Court of the Russian Federation with applications and submissions by way of supervision, a three-month period has been established from the date of entry into force of the last judicial act adopted in the case.

Supervisory court is always exceptional. The danger of becoming an ordinary court exists only when the lower courts do not properly perform the functions assigned to them, do not ensure the unity of practice and do not convince the applicants of supervisory appeals, as well as the supervisory authority itself, that the legality of the adopted judicial act is ensured.

Unlike other courts, in which the arbitration court determines the sequence of the process, taking into account the opinions of the persons participating in the case (Article 153 of the APC of the Russian Federation), in the supervisory court this procedure is predetermined by law. In this case, the lawyer speaks with justification of his position only after hearing the judge-rapporteur as a representative of a person.

Author: Nevskaya M.A.

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