The concept for a Unified Procedure Code is nearly complete

The attention of the Russian legal community is currently drawn to the reform of the civil procedure resulting from the merger of the Supreme Court and the Supreme Arbitrazh Court of the Russian Federation. This global event for the judicial system will result in major changes in the form of a new unified procedure code.

Recently, in Yekaterinburg, a key meeting took place of the working group on the unification of the civil procedure legislation.  Leading Russian lawyers discussed the concept of creating a new Civil Procedure Code (CPC), the document that establishes unified rules for the cases under consideration in the courts and the resolution of cases in the arbitrazh courts.  The authors of the document are Pavel Krasheninnikov, chairman of the Duma Committee on Civil, Criminal, Arbitration, and Procedure Legislation, and Vladimir Pligin, a deputy of United Russia.  The new code will replace the existing Civil Procedure Code and Arbitration Procedure Code (APC) and the Code of Administrative Procedure of the Russian Federation, which the State Duma managed to approve in draft form on its first reading.  According to the authors, the code will eliminate contradictions that exist between the applicable procedural rules in the courts of general jurisdiction and arbitrazh courts.

The working group decided that the competence rules in the arbitrazh courts and the general jurisdiction courts will not change.  Excluded from the jurisdiction of the courts of arbitration are international commercial arbitration and matters involving foreign vessels because they fall under special courts of arbitration, unless international treaties or the Uniform Code of Federal Law permit an exception.

The authors of the document pointed out that the procedural rules in Article 39 of the existing CPC and Article 49 of the APC must be uniform: changing the bases or the subject of a claim; changing the size of a claim; rejecting a claim; recognizing a claim, and settling an agreement.  If the actions are not limited in some way, the APC provides that, based on the decision of the court of first instance, the plaintiff can change the basis of a claim, increase or decrease the size of a claim, or reject a claim in whole or in part.  Rejecting the claim is only possible in the appellate court.  The authors of the document are following the approach of the APC.

In addition, the working group proposed to establish uniform rules for awarding compensation for violating the right to trial within a reasonable time or the right to execute a judgment. Furthermore, a single judge in the courts of general jurisdiction considers such cases (Article 244.8), while a college of judges in the arbitration court presides over the proceedings (Article 222.8 of the APC). The working group has not come to a consensus on these issues.

The authors plan to unify some concepts. For example, they propose to use the phrase judicial acts for all the orders, decisions, and rulings, which is now the wording of the APC. In the existing CPC, however, the term judicial decisions appears.

The authors are giving legal costs a great deal of attention. They proposed to abandon the current rules, which set reasonable limits for the payment of legal services.  According to the proposed code, reimbursement must be in full.  However, the authors proposed to introduce exceptions if the defeated party can prove an opponent’s fees or his attorney’s fees are unfair.  In that case, the court may reduce the remuneration.  Such a situation may occur when the opposing party has some agreement with his attorney, can influence the terms of a contract to artificially increase fees, or has used evidence that was irrelevant or inadmissible.

The working group favors the principle of proportional distribution of court costs: the plaintiff shall reimburse a portion of the defendant’s costs, and the defendant shall do the same for the plaintiff. This rule may extend to nonmaterial demands as a means of partially satisfying legal costs.

Cases that end when the parties reconcile their differences require special consideration. The working group believes it is preferable for the parties to allocate the legal costs in the text of their settlement. If they have not done so, the court shall resolve this issue when approving the settlement agreement.

The working group is giving special attention to the reconciliation of the parties during court proceedings.  According to Krasheninnikov, judicial conciliation may provide the parties with an “outsider’s view” into their dispute, giving them ways to resolve their conflict quickly and peacefully, with the hope of preserving the business relationship. In the new code, the authors propose to introduce judicial mediators, but they have not revealed their function.  Eligible for the post, however, will be retired judges and assistant judges who have not participated in the proceedings of a given case as well as court staff with law degrees.  However, these mediators must not be parties to the process and do not have the right to take actions that entail the emergence, change, or termination of rights or obligations of the parties participating in the case and other participants in the arbitration process.

Not all members of the legal community support the idea of a new code.  For example, the deputy chairman of the Russian Supreme Court, Peter Serkov, believes that the unification of procedural rules does not take into account the differences in the legal nature between civil and administrative disputes.  In his opinion, “civil proceedings would be absorbed as well as the procedure for the case consideration, arising from public legal relations, and it does not provide for true judicial review.”

According to Krasheninnikov, the proposed code still is under development; however, he noted that the working group will approve it in December.