COMPETENCE OF ARBITRATION SHIPS
As a result of studying Ch. 4 students must:
• the notion of judicial jurisdiction and civil jurisdiction
• the order of transfer of the case from one court to another;
be able to
• Apply the experience of international and United States judicial practice in arbitration proceedings;
• The skills of applying modern legal tools to solve practical problems.
Jurisdiction of cases to the arbitral tribunal
The jurisdiction in the arbitration process is one of the legal conditions that determine the occurrence of the right to apply to the court.
There is no uniform definition of subordination in the United States legal procedural literature. The term jurisdiction has a native United States origin and means "bring under the authority", introduce any legal issue (matter) into the system of institutions that serve any state branch. That is, subordination means that the solution of any issue is in someone's specific jurisdiction.
Jurisdiction in the legal sense is an independent arbitration procedural institution, the content of which constitutes the totality of arbitration procedural rules governing judicial proceedings, regardless of the law in which the norms are placed.
The institution of subordination is objectively necessary in law. In accordance with Art. 11 Civil Code protection of violated or contested civil rights is exercised by various courts: courts of general jurisdiction, arbitration courts, including a specialized court for intellectual property, and arbitration courts. Military courts and the US Constitutional Court also participate in the protection of the subjective rights of citizens and organizations.
Self-defense of civil rights (Article 14 of the Civil Code) and the administrative procedure for protection are also possible. Since the legislator assigns to the courts the role of monitoring decisions made administratively (Article 11 of the Civil Code), then with such a legal regulation of the institution of protection of subjective rights without jurisdiction is difficult to do.
Thus, subordination is a property of cases, by virtue of which their consideration and resolution is attributed by law to the jurisdiction of a particular body.
When establishing jurisdiction, the legal significance will be the characteristics of the stakeholders, the nature of the legal relations in which the dispute over the law arose and develops, etc. The competence of the courts establishes the powers of the courts to administer justice in one or another civil cases.
However, the concept of "subordination" substantially differs from the broader term "competence", which also includes the jurisdiction of cases. The competence of the US courts is determined by the tasks assigned to them by the Constitution. Jurisdiction, however, characterizes a specific case, subject to proceedings in a particular order and a specific judicial authority.
Therefore, the institution of subordination is an indispensable condition for the legality of justice, as it ensures a clear functioning of the judiciary and the correctness of consideration and resolution of civil cases.
The case for economic disputes and other cases related to the implementation of entrepreneurial and other economic activities are subordinated to the Arbitration Court, with the participation of:
• Organizations that are legal entities
• citizens engaged in entrepreneurial activities without the formation of a legal entity and having the status of an individual entrepreneur, acquired in accordance with the procedure established by law;
• The United States and its subjects;
• State bodies and local self-government bodies, as well as other bodies;
• entities that do not have the status of a legal entity;
• Citizens who do not have the status of an individual entrepreneur.
According to Part 4 of Art. 27 APK statement adopted by the arbitration court to its proceedings in compliance with the rules of jurisdiction should be considered by him in substance, at least in the future, a citizen who does not have the status of an individual entrepreneur will be brought into the case as a third person who does not declare independent requirements for subject matter of the dispute.
In the agrarian and industrial complex it is also established that the arbitration courts consider cases subordinate to them with the participation of United States organizations, citizens of the United States, as well as foreign organizations, international organizations, foreign citizens, stateless persons engaged in entrepreneurial activity, organizations with foreign investments, if other is not stipulated by the international treaty of the USA. As a matter of lawsuit, arbitration courts consider economic disputes arising out of civil legal relations and other matters related to the performance of entrepreneurial and other economic activities by legal entities and individual entrepreneurs, other organizations and citizens.
In addition, in accordance with Art. 29 APC in administrative proceedings, arbitration courts consider arising from administrative and other public legal relations economic disputes and other cases related to the implementation by organizations and citizens of entrepreneurial and other economic activities:
1) on challenging normative legal acts affecting the rights and legitimate interests of the applicant in the field of entrepreneurial and other economic activities, if the consideration of such cases in accordance with federal law is attributed to the competence of the arbitral tribunal;
2) on challenging the applicant's rights and legal interests in the sphere of entrepreneurial and other economic activities of non-normative legal acts, decisions and actions (inaction) of state bodies, local self-government bodies, other bodies, organizations allocated by federal law to individual state or other public powers, officials;
3) on administrative violations, if the federal law considers their consideration in the competence of the arbitral tribunal;
4) on collecting from compulsory payments from organizations and citizens engaged in entrepreneurial and other economic activities, unless the federal law provides for a different procedure for collecting them;
5) other cases arising from administrative and other public legal relations, if the federal law considers their consideration in the competence of the arbitration court.
In addition, in special proceedings, arbitration courts consider cases on the establishment of facts that are of legal significance for the emergence, change and termination of the rights of organizations and citizens in the sphere of entrepreneurial and other economic activities (Article 30 of the APC).
In accordance with Art. 31 AIC arbitration courts consider cases:
• on challenging decisions of arbitration courts on disputes arising in the course of carrying out entrepreneurial and other economic activities
• on the issue of enforcement orders for the enforcement of decisions of arbitration courts on disputes arising in the conduct of entrepreneurial and other economic activities;
• on the recognition and enforcement of decisions of foreign courts and foreign arbitral awards on disputes arising in the conduct of entrepreneurial and other economic activities (Article 32 of the APC).
Special jurisdiction of cases to arbitration courts (Article 33 of the agrarian and industrial complex) is provided for:
• about insolvency (bankruptcy);
• on disputes about the creation, reorganization and liquidation of organizations, etc. (cases on corporate disputes);
• on refusal of state registration, evasion from state registration of legal entities, individual entrepreneurs;
• on disputes arising from the activities of depositaries related to the consideration of rights to shares and other securities and the exercise of the rights and duties provided for by law;
• on disputes arising from the activities of state corporations and related to their legal status, the order of their management, their creation, reorganization, liquidation, organization and powers of their bodies, the responsibility of persons entering their bodies;
• on disputes on the protection of intellectual property rights with the participation of organizations that carry out collective management of copyright and related rights, as well as disputes related to the jurisdiction of the Intellectual Property Court;
• on the protection of business reputation in the field of entrepreneurial and other economic activities;
• On arising when carrying out entrepreneurial and other economic activities, in cases provided for by federal law.
The cases of special jurisdiction are considered by the arbitral tribunal, regardless of whether the legal relations, from which the dispute or claim arose, are legal persons, individual entrepreneurs or other organizations and citizens (Article 33 of the agrarian and industrial complex).
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