The sources of the arbitration process are an external form of expression of legal norms. Since the Russian Federation belongs to the Romano-Germanic legal family, respectively, the most popular sources are regulations.
Types of Expression Forms
Sources of arbitration procedural law are divided into two types:
- The laws.
- By-laws and regulations.
In addition, article 3 of the APC of the Russian Federation defines not only the above-mentioned concepts as sources, but also refers to such the Constitution of the state, federal constitutional laws, as well as a number of international treaties.
A prerequisite that all sources of the arbitration process have is that they belong to the field of activity in question. Thus, only those international treaties, acts and conventions that regulate the described area will be recognized as a form of expression of legal norms.
Incredibly complex in design and stages is the arbitration process. Legal proceedings of this type are regulated only by federal legislation. Regions have a small circle of powers and issues that can be affected by the publication of relevant documents.
Features of the arbitration process as a branch of law, which includes mainly procedural rules, are that this area of activity is regulated only by law. Judicial precedents, customs, and other forms of expression of law are not authoritative for arbitration.
Separate types of sources
Chapter Seven of the Constitution of the Russian Federation establishes general provisions that govern the activities of the entire judicial system, in particular, the arbitration process. You will not find the concept, types, as well as other fundamental sections in the Basic Law, but based on the available information, certain conclusions can be drawn. For example, it is in this section that the general principles of the functioning of the judiciary are enshrined. More recently, the provisions of the Constitution in this area have begun to be applied directly in practice.
The decisions of the Presidium of the Supreme Arbitration Court play a special role in the arbitration. Official documents published by this body are not sources of law, nor do they contain applicable legal norms. However, the role of the decisions is to clarify controversial issues.
The role of the Federal Law and the Federal Law
Sources of the arbitration process include federal and federal constitutional laws in their system. Some of them are directly devoted to the implementation of legal proceedings, while others only indirectly relate to this type of activity. In any case, each of them is a source of legal norms. Among the variety, the most important are:
- FKZ “On the Judicial System”, as well as “On Arbitration Courts in the Russian Federation”.
The significance of the first NLA is that it establishes the foundations on which the entire judicial system as a whole is based. The second directly determines the system of the arbitration process: jurisdiction, jurisdiction, composition of the court, and so on.
- Arbitration Procedure Code of the Russian Federation.
Sources arbitration procedural rights include the Arbitrazh Procedure Code. This regulatory act contains a number of procedural rules that are directly applicable in the arbitration process.
- Law on the Status of Judges.
Refers to the entire judicial system of Russia, regardless of membership in a particular court. This law establishes legal protection and guarantees for persons authorized to administer justice.
Codes in arbitration
As mentioned earlier, the arbitration process as a branch of law is based not only on federal laws, but also on codes that have the status of the above regulatory legal acts. The main array of rules governing and determining the procedure for conducting arbitration proceedings is concentrated in the text of the APC of the Russian Federation. This is a basic regulatory document, where there are concepts, terms, conditions for accepting or not accepting an application, a circle of persons, and so on.
In this regard, the question arises: why not accumulate all the rules in a single legal act and build the activities of arbitration courts in accordance with it? The answer is obvious and simple. Many sources of the arbitration process are of a special nature. They apply and are used in relation to a certain category of cases. Thus, it makes no sense to fix in the Code that norm, which is not generally applicable, but is regulated by a separate regulatory act.
International law
The sources of the arbitration process are full of variety. A table of their distribution by legal force will show that normative acts of an international nature top this list.
Part 4 of Article 15 of the Constitution of the Russian Federation says that international treaties and agreements, acts, conventions, as well as other documents are part of the legal system of the state. This includes not only universally recognized principles, but also substantive and procedural law.
A striking example of such provisions is the Agreement governing the resolution of disputes arising as a result of business activities. Equally important is the Convention, which repeals the requirement of legalization of official documents on the territory of a foreign state. The significance of the arbitration process is so great that even the European Convention for the Protection of Human Rights is a source. Namely, article 6 says that every citizen of the state has the right to a fair trial.
About judicial practice
Despite the fact that the prevailing role of the regulation of public relations belongs to legal norms, the judicial practice of the Russian Federation to one degree or another affects the resolution of a certain category of disputes. Today, most legal scholars say that judicial practice has not only a law-forming, but also a law-enforcement effect.
It is reflected in the decisions of the International Court of Justice, and in the decisions of the High Courts, and in the decisions of justices of the peace. Based on the analysis of numerous court decisions, judges make a decision or decision on a par with the rule of law, were guided by previously issued court decisions. Moreover, priority is given to those bodies that are at the very top of the ranks, that is, the Higher forms of justice.
Reasons for using case law
It would seem that in the Russian Federation all the prerequisites have been created for the sources of the arbitration process to exist only in normative norms and regulations. However, judicial precedent is increasingly used in judicial activity due to the presence of the following reasons:
- Final decisions have a direct impact on the activities of legislative and executive authorities. Moreover, the impact is not only at the federal level, but also at the regional and even local level. Thus, judges involuntarily exercise control over the activities of other state bodies, although in fact this should not be. That is why the likelihood of making a mistake is completely excluded. In order to make the right legal decision that meets all the legal norms of Russian legislation, it is easiest to take advantage of the experience of your colleagues and do the same.
- The legal system of the state is at a new stage of development. Borders and the number of conflicts that cannot be resolved by the rule of law alone are gradually expanding. Today it is impossible to create a single codified act that streamlined all areas of relations in society. Moreover, each of them is divided into several types. For example, in civil law there are property and personal non-property relations, among which exclusive and other legal relations stand out as a separate category.
International Law Enforcement
The sources of the arbitration process in legal force include the judicial precedent that exists in international law. Russian judges analyze court decisions of the European Court of Human Rights as one of the dominant judicial bodies.
In addition, the European Convention for the Protection of Human Rights determines that the decisions of the above-mentioned body are binding on the territory of the Russian Federation. If a citizen has exhausted domestic methods of protecting his legal status, he has every reason to appeal to the European Court.
Procedural Consequences of Decisions of International Justice Bodies
The practice of applying international decisions of the European Court gives rise to certain consequences, which are mandatory for implementation on the territory of the Russian Federation. According to the Arbitration Procedure Code of the Russian Federation, if the proceedings are pending in the proceedings of an international justice body, then in the Russian Federation all actions in this case are terminated.
If after the decision the appeal proceedings were initiated, as a result of which violations of the provisions of the Convention were found, then this fact is the basis for the review of the judicial act issued by the European Court of Human Rights, due to newly discovered circumstances.
Federal court practice
Sources of the arbitration process with examples appear on the official websites of federal courts. Of particular importance in the procedural activities of arbitration courts is given to decisions made by the Constitutional Court of the Russian Federation.
If previously all powers to resolve disputes in the field of civil proceedings belonged to the Supreme Arbitration Court, now this area of activity is referred to the competence of the High Court of the Russian Federation. A distinctive feature of this category of solutions is that they are mandatory not only for individuals and legal entities in Russia, but also for representative, executive and legislative bodies, as well as local self-government.
The specifics of decisions of the constitutional court
The peculiarity of this category of decisions lies in the fact that after the proclamation it immediately enters into legal force. Moreover, all decisions of the Constitutional Court are not subject to appeal, do not require confirmation by other officials and any state bodies.
The significance of the decisions of the Constitutional Court lies in the fact that the revision of certain provisions of the Constitution directly affects the legality of justice, including in the implementation of arbitration proceedings. All decisions made by a court that are based on the rule that is subject to review by the Constitutional Court are subject to quashing.
It is worth noting that the practice of the Constitutional Court includes many decisions relating to arbitration and procedural activities. Most often, attention is drawn to the agro-industrial complex, the provisions of which are sometimes recognized as incompatible with the Constitution of the Russian Federation. More recently, legislation has been amended to review cases by arbitration tribunals due to newly discovered circumstances.
Legal force
All sources of legal norms are divided by legal force. The Constitution of the Russian Federation leads this list, and judicial practice has an indirect meaning. In any case, the legal system of Russia develops over time and gives new ways and forms of expression of legal norms, as well as legal regulation. Moreover, the wide range of public relations regulated by the arbitration law is constantly expanding. This is evidenced by the numerous opinions of legal scholars, and not only at the level of the Russian Federation, but also on an international format.