In Art. 49 APC RF fixed list administrative actions of the plaintiff in the arbitration process. With their commission there are many problems in practice. The fact is that decisions made as a result of their implementation are disputed less frequently than other decisions. In this regard, it is often quite difficult to determine the correct positions of the courts. Consider the features of Art. 49 APC RF with comments.
General information
The following administrative actions of the plaintiff are allowed:
- amending the grounds or subject of claims, increasing / decreasing their volume (Clause 1, Article 49 of the Arbitration Procedure Code of the Russian Federation);
- partial / complete refusal of requirements (part 2 of article 49).
The general administrative action for the parties is the conclusion of an amicable agreement (3 part). The defendant is granted the right to recognize the claim (partially / completely) (part 2 of article 49 of the APC of the Russian Federation).
In this norm, certain restrictions are set for the parties. In particular, the court does not have the right to accept a waiver of a claim, a change in the volume of claims, recognition of claims, approve an agreement if this could violate the interests of other entities or is not consistent with the provisions of the law. In such situations, the arbitral tribunal must consider the merits of the dispute.
Clarification of claims
The plaintiff may amend the grounds or subject of his claims exclusively at the first or appeal court and before a court order is issued. The right enshrined in Part 1 of Art. 49 APC of the Russian Federation, the applicant can also implement in the event that the decision was canceled by the cassation and transferred to a retrial.
The defendant has the right to file counterclaims. They are considered simultaneously with the initial statement of the plaintiff. In this case, clarification of claims is also allowed.
There are 2 ways to exercise this right. First of all, the plaintiff can reduce or increase the selected methods of protection. For example, the applicant sues for invalidating the transaction. He then puts forward an additional requirement to apply the consequences of this procedural action.
The second method is to reduce / increase the object of claims when applying one option of protection. Suppose the applicant demands to liquidate the building of the defendant. Then he changes the subject, announcing the demolition of part of the structure. In this way, it changes the size of the requirements in relation to one object.
Features of amendments to the grounds or subject of claims
The action enshrined in Part 1 of Art. 49 APC of the Russian Federation, is closely related to the concept of the identity of the claim. This means that the same parties must participate in the case, and the dispute must be about the same subject and the same grounds. In this case, you can change one thing. If the adjustments affect the base and the subject at the same time, the identity will be violated. As a result, a new requirement will arise, the consideration of which should be carried out in a new meeting.
The subject is a specific claim against the defendant. For example, this may be a requirement for recognition of rights, compensation for damage, protection of reputation, etc.
The basis is called the circumstances and facts to which the applicant refers in the presentation of claims. For example, the plaintiff indicates that the defendant’s obligations arose from another agreement, and not from the one referred to in the lawsuit. Attraction of additional evidence is not a change of reason.
In the legal literature there are 2 possible options for adjusting the subject of claims. The plaintiff may change:
- Way to protect the right.
- The subject of the dispute (for example, the recovery of an item other than specified in the lawsuit).
According to some experts, these options are not a change in the subject in its purest form. However, judicial practice indicates the opposite.
Additional requirement
The submission of a new claim in the framework of the claimed claim is another aspect in determining the subject. An additional requirement is put forward in a general manner. If it is not related to the initial claims of the plaintiff or the arbitration considers it inappropriate to consider them jointly, respectively, their proceedings in the framework of one proceeding will not be carried out. Consequently, the presentation of an additional requirement is not recognized as a change in subject matter. The applicant’s reference to the provisions of Article 49 APC of the Russian Federation, respectively, will not be accepted.
Alternative item
It is provided in cases where the applicant is provided by law with the opportunity to choose from several methods of protection. The most revealing example is article 475 of the Civil Code. According to the norm, if the seller did not notify the buyer of the defects of the product, the latter gets the opportunity to demand:
- Reduce the cost of goods.
- Gratuitous elimination of defects within a reasonable period.
- Compensation for the costs of self-rectification of deficiencies.
If the seller has committed significant violations of the requirements for product quality, the buyer may:
- Refuse the contract and insist on a refund of the amount paid.
- Demand to replace the product with another, but of good quality.
Resize claims
When considering a dispute in arbitration, the plaintiff, under Art. 49 APC of the Russian Federation, may increase or decrease the amount of requirements. He can exercise this right before a court order is issued, which ends the proceedings on the merits.
An increase in the amount of claims, in particular, is an increase in the cost of the claim while maintaining the content of the claim. This action cannot be associated with the submission of additional claims that were not previously stated. For example, an application for the application of monetary sanctions cannot be considered as a change in the amount of claims in a claim for the recovery of principal debt. Such a requirement, according to the general rules, should be stated separately.
Limitations
In the new edition of 2 parts of Art. 49 of the APC, the applicant may refuse claims only at the first and appeal levels. Moreover, the refusal can be full or partial. If the appellate court accepts it, then the earlier decision on the dispute is canceled.
Settlement agreement
In practice and in legal editions there is no consensus on its definition.
Some lawyers believe that an agreement is a kind of compromise. The parties, concluding it, make certain concessions.
According to other experts, the agreement may include various conditions. For example, the parties to the dispute may establish a deferral, installment plan, partial refusal of claims, etc.
When approving the agreement, the court invites third-party entities that have not made claims to confirm that it does not violate their interests. There is no direct provision on this in the legislation. However, judges commit this action to avoid a violation of the rules. Article 49 of the agro-industrial complex, in particular, states that an agreement cannot be approved if it infringes on the interests of other entities.
Additionally
From the provisions of paragraph 5 of part 49 of the article of the APC, it follows that the verification of non-violation of the interests of third parties should also be carried out in the event the plaintiff refuses the claims, the defendant recognizes the claim, the applicant changes the size of the claims. The court must find out whether the interests of third parties are violated by these actions, whether the law will be violated when they are committed. If possible violations are detected, the specified actions are not accepted by the authority. In such situations, the dispute is considered on the merits of the stated claims.