No wonder our ancestors said:
“A smart man does not go to court, but a stupid man does not leave the court.”
Or here’s another one about legal fees:
“Do not sue: bast shoes will become more expensive than boots.”
If you think that lawyers like to sue, you’re wrong. Our company never recommends its clients to immediately enter into legal disputes. After all, a legal dispute has a lot of disadvantages.
That is why, if it is acceptable for the client, we start our work with pre-trial (out-of-court) methods, that is, those in which the parties try to resolve a civil dispute before transferring the case to the court (pre-trial dispute settlement).
Pre-trial methods for resolving civil disputes are:
- claim procedure;
- arbitration proceedings;
- mediation.
A claim procedure means sending a claim (claim) to the counterparty, which indicates what obligations it has violated, what it can correct, and what consequences of further non-performance await it.
The claim procedure for pre-trial settlement of disputes may be provided for by the legislation or the contract. It should be noted that if it is established, the dispute is referred to the court for resolution only after compliance with this procedure.
The claim should include:
- Name of the organization that the claim is addressed to.
- Full name of the organization with the exact postal address, means of communication, and payment details.
- details of the claim itself.
- Details of documents that form the basis of the parties ‘ relations (for example, a contract, shipping documents).
- References to specific clauses of the agreement, the violation of which caused the submission of the claim;
- Applicant’s requirements themselves, which should be clearly stated to the counterparty;
- An indication of the consequences of non-settlement of the dispute in the claim procedure, the amount of additional penalties and costs of the debtor;
- Legal norms in accordance with which the claim applicant justifies his claims;
- The number of claims with a calculation (if necessary, in the form of an appendix to the claim).
- A list of attached documents justifying the claim claims, or a reference to the fact that the addressee has all the documents for consideration of the claim.
We provide services for writing a claim that not only meets the requirements of the law, but also encourages the debtor to fulfill its obligations. Drawing up (developing) and sending a claim to the debtor, when it is not just a formal procedure that precedes a court dispute, allows you to collect the debt without going to court.
Arbitration proceedings
Arbitration courts are non-governmental bodies established to resolve disputes in the field of private economic relations, usually before the disputing parties apply to a state court. In Belarus, the most common practice is to refer cases to the IAC (МАС) at the BelCCI (БелТПП), which is a permanent international arbitration (arbitration) court operating in accordance with the Law of the Republic of Belarus of July 9, 1999 “On the International Arbitration Court”.
The specifics of the IAC (МАС) at the Belarusian Chamber of Commerce and Industry consist in assigning to its competence, in the presence of an arbitration agreement, both civil disputes between any legal entities that arise in the course of foreign trade and other types of international economic relations, if the location or place of residence of at least one of them is located abroad, and internal disputes of an economic nature that arise between the subjects of the Republic Belarus.
Among the features of consideration of disputes in the IAC (МАС) at the Belarusian Chamber of Commerce and Industry, the following can be distinguished:
- participation of the dispute parties in the formation of the composition of the court;
- the ability to choose a specific person as an arbitrator;
- ability to choose the applicable law;
- possibility to choose the venue of the arbitration;
- possibility to choose the language of arbitration proceedings;
- confidentiality of consideration of cases;
- ability to determine the procedure for proceeding a case;
- time limit for reviewing the case and making a decision;
- flexible payment system for the arbitration fee;
- finality of decisions of the International Arbitration Court at the Belarusian Chamber of Commerce and Industry. Decisions of the International Arbitration Court at the Belarusian Chamber of Commerce and Industry are not subject to review on the merits of the dispute;
- if there is an arbitration clause, we are ready to prepare the necessary materials;
- the third, but first in importance, mediation procedure.
Mediation in Belarus
The question arises: does mediation work in Belarus in the field of financial and economic disputes, if dispute resolution through mediation is a recognized and popular method of conflict resolution all over the world? Frankly speaking, the number of cases in this segment is quite insignificant due to a lack of understanding of this procedure.
Mediation is a method of conflict resolution that is alternative to traditional litigation. It is a negotiation between the parties with the participation of an independent person – a mediator in order to find a mutually beneficial solution for all parties, and this decision is made by the parties themselves, and the mediator only conducts the process.
It happens in our business culture that going to an intermediary other than a court is not considered a really worthy alternative to it. But a sober calculation suggests otherwise. First of all, we are talking about the very possibility of resolving a conflict situation and doing it at the lowest cost.
Advantages of mediation
When submitting an application to the court, the plaintiff bears the costs of not only paying the state fee for submitting the application, but also paying for the lawyers ‘ time to draw up the necessary documents. At the same time, the reason why the defendant does not pay may be based not in the legal or even in the economic plane, but based on problems of interpersonal relations and distortion in communication.
The claim is filed, but it is never too late to conclude a settlement agreement (which will allow you to return half of the amount of the state fee paid) or a mediation agreement (and return the entire amount of the state fee). The money that will not go to the budget will be used to pay off the debt, isn’t it a plus?
The costs of mediation are significantly less (provided that the amount collected is not extremely insignificant) and consist of the actual remuneration of the mediator, as well as additional costs that are related to mediation and are agreed separately.
It should be noted that only a petition and an agreement on mediation are required to be submitted to the court. However, the court is no longer interested in whether a mediation agreement was actually concluded or not, and this is not required to refund the fee (we do not in any way urge you not to sign a mediation agreement).
Execution of a mediation agreement
Like any voluntary agreement, it is executed primarily voluntarily, but the law explicitly provides for the possibility of its enforcement. To do this, an application is submitted to the economic court at the location of the debtor, which is accompanied by the original mediation agreement.
Based on the results of consideration of the application, a court order is issued and enforcement action is carried out in accordance with the generally established procedure, including with the initiation of enforcement proceedings
It should also be remembered that according to Article 10 of the Civil Code of the Republic of Belarus, before applying to the court with a claim for disputes between legal entities and (or) individual entrepreneurs, it is mandatory to submit a claim (a written proposal for a voluntary settlement of the dispute) or use mediation, unless otherwise established by this Code, other legislative acts or an agreement. In other words, mediation also replaces the claim procedure, if necessary.
In conclusion, we note that the unsuccessful use of mediation does not deprive the plaintiff of the right to judicial protection. For example, if the parties did not agree on the mediation procedure or the mediation did not take place for any reason, the plaintiff may re-apply to the court for protection of his right.
Thus, mediation can act as a real alternative out-of-court method of solving problems, as well as a mechanism for reducing the cost of recovery.
Our team includes certified mediators who are ready to settle disputes, saving both your money and the counterparty’s funds.
