INSTITUTE OF REPRESENTATION IN THE ARBITRATION PROCESS...

INSTITUTE OF REPRESENTATION IN THE ARBITRATION PROCESS

As a result of studying Ch. 6 students must:

know

concept, types and powers of the representative in court;

• features of the prosecutor's participation in arbitration proceedings;

be able to

apply the experience of international and United States judicial practice in arbitration proceedings;

own

skills of applying modern legal tools to solve practical problems.

The concept of "representation in court"

In the arbitration process, the judicial representation is a legal relationship, by virtue of which the judicial representative performs procedural actions within the limits of powers granted to him in accordance with the power of attorney on behalf of and in the interests of the represented (party or third person). Representation in the arbitration court is an independent arbitration procedural institution that performs the function of procedural safeguarding of the rights and legitimate interests of the parties, third parties, applicants, therefore this advocacy function is one-sided.

The current United States arbitration procedural legislation does not include court representatives to persons participating in the case (Article 40 of the APK). The reason for such a decision of the issue by the legislator was, apparently, the lack of substantive interest in the outcome of the case by the judicial representatives.

At the same time, it is impossible to consider court representatives who are completely uninterested in the outcome of the case, since within the limits of their authority they seek to achieve in the process of a certain positive legal result in favor of the person being represented. Thus, the representative of the plaintiff is trying to obtain a court ruling on the satisfaction of the claim. Such a position means that the court representative is interested in the outcome of the case.

However, this interest is not of a substantive, but procedural nature, since the representative does not act in his own interests, but in the interests of the represented. At the same time, the procedural interest in the outcome of the case (namely, the rules of arbitration procedural law defines the legal nature of the representative's participation in the court and the essence of this procedural institution), as well as substantive law, is legal because it is based on law.

Therefore, the nature of the interest of the judicial representative in the case allows us to believe that there are all grounds for assigning the judicial representatives to the persons participating in the case, and this should in the future be fixed in the arbitration procedural law.

According to Art. 59 APC citizens can conduct their cases in court in person or through representatives. The cases of organizations are conducted in court or by their bodies acting within the powers granted to them by the federal law or constituent documents (by-laws or regulations) or their representatives. On behalf of the liquidated organization, the court is represented by an authorized representative of the liquidation commission.

The judicial representative promotes more complete implementation of procedural rights and duties of persons who are not legally knowledgeable or poorly informed. In addition, a judicial representative is also required when a person participating in the case, due to illness, employment, stay in another locality can not personally attend the proceedings. 1

Depending on the basis of participation in the court of the representative, as well as the reasons that prompted the person participating in the case, to turn to the representative's help, he can either completely replace in the process of being represented, or participate jointly with him in the conduct of the case.

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Thus, a judicial representative is a person who performs procedural actions in an arbitration court on behalf of and in the interests of the represented (physical or legal person) within the limits of the powers delegated to him by the author.

The relationship between the principal and the representative is regulated by the rules of substantive law (civil, labor, family, administrative), and between the judicial representative and the arbitration court are governed by the rules of arbitration procedural law. Representation is allowed in all stages of arbitration.

In the power of attorney issued by the represented person or other document, the right of the representative to sign the statement of claim and the response to the statement of claim, the application for securing the claim, the transfer of the case to the arbitration court, the full or partial waiver of the claim and the recognition of the claim , the change in the basis or subject matter of the claim, the conclusion of an amicable agreement and agreement on actual circumstances, the transfer of its representative authority to another person (transfer of trust), and the right to sign a petition In spite of judicial decisions on new or newly discovered facts, the appeal court decision of the arbitral tribunal, receive awards of cash or other assets (Art. 62 APC).

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