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Lecture notes, cheat sheets
Advocacy and notary office. Representation of a lawyer in courts (lecture notes)
Directory / Lecture notes, cheat sheets Table of contents (expand) LECTURE No. 15. Representation of a lawyer in courts 1. Representation in arbitration and international commercial arbitration Modern Russian legislation on the arbitration court was formed under the influence of the UNCITRAL Model Law "On International Commercial Arbitration *" (adopted on June 21, 1985 at the 18th annual session of the UN Commission on International Trade Law (UNCITRAL)) based on the convergence of the regulation of the organization and activities of all arbitration courts on the basis of principles and norms originally intended for international commercial arbitration. The Model Law was conceived and executed as intended to serve as a basis for the harmonization of national law on international commercial arbitration. During its development, the experience of legislative regulation of arbitration in various countries of the world belonging to different legal systems was studied. The form of the Model Law was intended to ensure the harmonization of national laws on the arbitration court and at the same time serve as a basis for the harmonization and unification of laws not only on international commercial arbitration, but also on the so-called domestic arbitration court. Legislative practice in a growing number of States confirms the vitality of an assessment of the Model Law that: 1) is used as the basis for unified laws on the arbitration court (Germany - 1998, Finland - 1992, Sweden - 1999, etc.); 2) is almost completely accepted as the basis of national laws on international commercial arbitration (Canada, Russian Federation - 1993; Ukraine - 1994, etc.); 3) adapts to the established national traditions of legal regulation while adjusting them (for example, England - 1996, Switzerland - 1987). Legitimacy of arbitration is based on the constitutionally enshrined "right of freedom of action of citizens and their private autonomy." The right of everyone to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law is proclaimed in Part 1 of Art. 34 of the Constitution of the Russian Federation. According to Part 2 of Art. 45 of the Constitution of the Russian Federation: "Everyone has the right to protect their rights and freedoms by all means not prohibited by law." In modern Russian legislation, the main federal laws in which the state authorized the arbitration of civil law disputes are: the Civil Code of the Russian Federation (Article 11); Code of Civil Procedure of the Russian Federation (part 3 of article 3); APC of the Russian Federation (part 6 of article 4). In order to avoid mistakes in determining the rules of arbitration, a lawyer needs to understand the meaning of the main terms and legal techniques used in each of the two Russian laws on arbitration. The UNCITRAL Model Law "On International Commercial Arbitration" and the following Law of the Russian Federation of July 7, 1993 No. 5338-1 "On International Commercial Arbitration" are subject to arbitration proceedings (process, procedure) carried out in any arbitration court, including arbitration proceedings organized by a permanent arbitration court. The prototype of the concept "arbitration court", as a single for two types of arbitration, served as a seemingly similar term "arbitration" in Art. 2 of the Law of the Russian Federation "On International Commercial Arbitration". However, in reality, these terms in Art. 2 of each of the two laws have a different meaning. The developers of the UNCITRAL Model Law "On International Commercial Arbitration", which formed the basis of the Russian law of the same name, gave the term "arbitration" a meaning that included: 1) arbitration agreement, 2) preparation and conduct of arbitral proceedings and arbitral awards. In the Federal Law of July 24, 2002 No. 102-FZ "On Arbitration Courts in the Russian Federation" The term "arbitral tribunal" is used in two main meanings: 1) as a general name for the institution of an arbitration court, which has two types - a permanent arbitration court and an arbitration court for resolving a specific dispute (an arbitration court for resolving a specific dispute); 2) in relation to the composition of the arbitral tribunal, elected (appointed) to resolve a specific dispute in an arbitral tribunal of any of its two types. The different meaning of the key term "arbitration" - "arbitration court" predetermined the peculiarities of the structure of each of the two Russian laws on the arbitration court, as well as the use of various legal techniques used in formulating most of its dispositive provisions in relation to each type of arbitration court. Thus, the rules of arbitration proceedings are to be determined using not only the provisions of Ch. V "Arbitration", and all legal provisions on the arbitration procedure. At the same time, it should be borne in mind that the rules of arbitration in a permanent arbitration court and in an arbitration court for resolving a specific dispute are regulated in the same way, but often this is done in the provisions of the Federal Law "On Arbitration Courts in the Russian Federation" addressed to each of them. At the same time, terminological unity is not maintained, and the meaning of the term "arbitral tribunal" should be determined each time depending on the context. 2. Representation before the European Court For the protection of human rights and freedoms, of considerable practical importance is Rules of the Court defining the procedure for the implementation of complaints. It is difficult for lawyers, applicants, and representatives of the respondent state to do without understanding the significance of the Regulations. The Regulations specify the procedure for considering complaints; it is referred to in decisions and rulings of the European Court. In addition, it regulates the position of the lawyer when considering such cases. According to Rule 35 of the Rules of the European Court of Human Rights, the representation of the High Contracting Parties is carried out by official authorized persons who are entitled to the assistance of lawyers and advisers. Rule 36 of this document states that persons, non-governmental organizations or groups of individuals may initially file complaints under Art. 34 of the Convention alone or through a representative. After notifying the High Contracting Party - the respondent of the receipt of a complaint under sub. Rule 2 § 54 b of the Rules, the applicant must be duly represented, unless the President of the Chamber decides otherwise. This procedure is mandatory at any hearing scheduled by the Chamber, unless the President of the Chamber, in an exceptional case, grants the applicant the right to represent him personally, who, if necessary, may be assisted by a lawyer or other approved representative. The representative of the applicant, acting in accordance with paragraphs 2 and 3 of Rule 36 of the Rules, shall be a lawyer admitted to the practice of law in any of the High Contracting Parties and permanently resident in the territory of one of them, or any other person approved by the President of the Chamber. In exceptional circumstances and at any stage of the proceedings, the President of the Chamber, if he considers that the circumstances or the actions of a lawyer or other person justify it, may indicate that the person concerned can no longer represent or assist the applicant. In this case, the applicant is ordered to find another representative. Counsel or other approved representative, or the applicant himself, who wishes to be allowed to represent himself in a case, must have a sufficient command of one of the official languages of the Court, even if he has received such permission. If a person does not have sufficient command of one of the official languages of the Court, the President of the Chamber may, in accordance with Rule 3 § 34 of the Rules, grant permission to use one of the official languages of the Contracting States. Thus, a lawyer who is fluent in at least one of the official languages of the Court can be a representative in the European Court in order to provide qualified assistance to the client. In addition, the fact that the process of resolving disputes in the European Court differs from the system that exists in Russia makes it difficult. In particular, the features are characteristic of the composition of the Court, the parties, other persons participating in the case, etc. Order in the Courtroom is ensured by the Chairman of the Chamber. He has the right, if a representative of a party makes offensive, frivolous, unfair, misleading or voluminous arguments, to remove such representative from participation in the proceedings in the case, to refuse to admit the arguments in whole or in part to the case, or to take any other measures that he considers appropriate. Legal assistance in proceedings before the European Court may be provided free of charge. This provision is regulated by the Rules of Ch. 10 of the Regulations. The President of the Chamber has the right, either on the basis of an application from the applicant who filed a complaint in accordance with Art. 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms, or, on its own initiative, provide the applicant with legal assistance related to the conduct of the case free of charge. Such provision, subject to the provisions of Rule 96, shall remain in force in relation to the proceedings in the Grand Chamber from the moment of receipt from the High Contracting Party respondent of written observations on the admissibility of the application in accordance with sub. "b" paragraph 2 of Rule 54 or from the date of expiration of their filing. In this case, lawyers and other persons appointed in accordance with paragraph 4 of Rule 36 shall be paid remuneration. It may, in appropriate cases, be paid to more than one such representative. The amounts intended for payment of legal assistance to the applicant may include not only the remuneration of representatives, but also travel and accommodation expenses and other necessary expenses of the applicant or appointed representative. Author: Nevskaya M.A. << Back: Legal services of a lawyer (The concept and types of representation in tax legal relations. Legal services for drafting contracts and supporting transactions, claims work) >> Forward: The emergence of notaries (The emergence and development of notaries in the pre-Soviet period. Development of notaries in the Soviet period)
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