Settlement in arbitration approved by the court only if it meets all the criteria and requirements of enforceability. These include: clear certainty and clarity, unconditional requirements. In the legislation of the Russian Federation there are still a large number of inaccuracies and inconsistencies in connection with which, the application of the norms of certain articles of the procedural code is somewhat difficult.
Therefore, in an arbitration court, amicable agreements are approved only in contentious cases of judicial proceedings. Moreover, the agreement concluded by the parties is obliged to contain the unconditionalness of the requirements, to have the clarity and certainty that are inherent in any judicial document. Settlement agreement in the arbitral proceedings may not have various interpretations and any unclear points on which additional further debate of the parties is possible.
The wording of individual clauses of the agreement is carried out in a clear sequence, which strictly defines the possibility by which this agreement should be implemented. However, no other alternative is provided for the implementation of this agreement. That is, if one party transfers any property, then the return must be made by the property. An amicable settlement by law cannot be alternative. The property in the agreement cannot be replaced with money or the provision of services. Since the violation of certainty and clarity of demand creates difficulties for enforcement.
Failure to comply with the settlement agreement approved by the court in the arbitration process is fraught with coercive measures. So, according to the APC of the Russian Federation (Article 142), the court’s responsibilities also include checking the settlement agreement for compliance of its points with the requirements of the current legislation. Since in the absence of voluntary compliance with the requirements, enforcement is possible on the basis of a judicial act through the bailiff service. At the same time, if the settlement agreement has any ambiguities, does not comply with the norms and all requirements of the law, does not comply with the will of the parties, then the transition to compulsory judicial execution is impossible, as it is groundless and illegal. In addition to clarity, certainty and unconditionalness, a settlement should motivate the parties to end the dispute and be justified.
An arbitration agreement shall be approved by the arbitration court if it is signed by authorized persons whose authority is confirmed by documents giving the right to conclude this settlement agreement. The verification of the powers of proxies is carried out by the arbitration court on the basis of Art. 53 of the Civil Code of Russia, according to which, the powers of officials (director or president) are confirmed by official documents. At the same time, they must have separate documents in the form of an order or general power of attorney from the founders of the company to conduct business and sign a settlement agreement. According to the law of the Russian Federation, lawyers or other unauthorized persons can be a representative of a legal entity in court. Therefore, inadequate verification of the credentials of proxies who participate in the arbitration process and sign a settlement agreement without the authority to do so, can lead to the cancellation of the signed agreement. Then the settlement is also recognized as invalid and is subject to return for a new trial in the court, since the factual circumstances of the case do not correspond to the actual evidence.
An amicable agreement in arbitration shall be approved by a court decision only if its participants are directly opposite parties, namely the plaintiff and defendant, but by no means partners in this process on the part of the plaintiff and on the part of the defendant.