Pre-Trial Claim in Commercial Procedure: Evolution and Contradictions of Case-Law

Abstract

After the reform of the commercial procedural legislation in 2016 pre-trial claim procedure became a procedure that is objectively necessary for most disputes considered by commercial courts. For five years a significant number of law enforcement approaches have accumulated in judicial case-law and at the same time contradictions, problems and controversial legal positions. Taking into account the fact that the presentation of a pre-trial claim is the first step towards obtaining legal protection, the practical problems of passing claim procedure require the most careful attention. The attempts of the Supreme Court of the Russian Federation to ensure the uniformity of judicial practice in matters of claim procedure can hardly be considered successful. Indeed, the Supreme Court conducts a lot of analytical work in this area, however many issues not only remain unresolved, but also create a situation of legal uncertainty for potential plaintiffs and defendants. It is curious that the questions that at first glance seem to be purely practical, at the same time test the strength and theoretical foundations of the commercial process. We did not receive proper coverage of the problem of the relationship between a pre-trial claim procedure and procedure for a counterclaim, the goals and general meaning of a pre-trial claim, the distinction between mandatory and optional cases of a pre-trial claim. Finally, the issue of the place of pre-trial claims procedure in the system of Russian law also requires attention. This study analyzes the practice of applying the provisions of the commercial procedural legislation on claim procedure over the past five years. The author begins with a general theoretical understanding of the institution of pre-trial claims, after which he moves on to specific practical issues. The subject of detailed analysis was both the legal positions of the judiciary on specific cases, as well as the materials of meetings, scientific advisory councils and other discussions of procedural issues on the basis of arbitration courts. The general conclusion of the study comes down to understanding pretrial claim procedure for resolving disputes as a complex substantive and procedural institution.
For citation: Fokin E.A. Pre-trial Claim in Commercial Procedure: Evolution and Contradictions of Case-Law. Law. Zhurnal Vysshey shkoly ekonomiki. 2021, no. 4, pp. 124–151. (In Russ.). DOI: 10.17323/2072-8166.2021.4.124.151