Right of Appeal Appeal against Arbitration Court Decisions
In the arbitration process, the right of appeal appeals is the right to initiate appeal proceedings (proceedings in a court of second instance) to verify the legality and validity of the decision of the arbitral tribunal that has not entered into legal force.
The right of appeal to the relevant appellate instance through the court of first instance arises from the parties and other persons participating in the case. The prosecutor participating in the case may bring an appeal against the decision of the court.
The course of the procedural period as a general rule begins the day after the date or the occurrence of the event, by which its beginning is determined. Therefore, the right to file an appellate complaint within a month arises with the persons participating in the case from the day following the day of the decision of the judge in the final form. A complaint can be filed for a decision in whole or in part (for example, the reasoning of the decision, the resolution part).
The subjects of the right of appellate appeal are the persons participating in the cases of the lawsuit proceedings, i.e. plaintiffs, defendants, third parties, as well as the prosecutor (Article 257 of the AIC).
An appeal can be filed within a month from the date of the decision in the final form (Article 259 of the APC). The complaint submitted after this period is returned by the judge to the person who filed it, if at the same time he received no requests to restore the missed deadline or the judge refused to restore this term (Article 264 of the APK).
The filing of an appellate complaint directly to the appellate instance is not provided by law. An appeal is filed in writing. It should contain the following:
• the name of the court to which the appellate complaint is addressed;
• the name of the person who filed the complaint and other persons participating in the case, their place of residence or location;
• an indication of the appealed court decision, the case number and the date of the decision, the subject of the dispute;
• the request of the person concerned and the basis on which he appeals against the decision, with reference to the laws;
• list of documents attached to the complaint (Article 260 of the APC).
The appellate complaint is signed by the person filing the complaint. An appeal can also be filed by filling out a form posted on the official site of the arbitration court in the information and telecommunications network of the Internet. In the presence of special powers, a complaint may be filed by a representative. The appeal, the submission and the documents attached to it must be submitted with copies of the number of persons participating in the case. The appeal is accompanied by:
1) a copy of the impugned decision;
2) documents confirming the payment of the state fee in the established order and amount or the right to receive benefits on payment of the state fee, or an application for granting a deferment, installment of its payment or reduction of the state fee;3) a document confirming the sending or giving to other persons participating in the case of copies of the appeal and documents that they do not have;
4) power of attorney or other document confirming the authority to sign the appeal.
This complaint is paid by the state duty in the same amount as when filing a cassation complaint, i.e. in the amount of 50% of the state duty, collected at the filing of statements of claim, calculated from the amount contested on appeal, if the person submitting it (for example, the prosecutor) is not exempted from it.
The grounds for the return of the appeal are the following:
• filed by a person who does not have the right to appeal;
• filed for a judicial act, which is not appealed in the procedure of appeal proceedings;
• failure to comply with the instructions of the judge, contained in the court ruling on leaving the complaint without motion, within a specified time;
• the expiration of the appeal period, if the complaint does not contain a request for the restoration of the missed period or in its restoration is refused.
An appeal against the determination of the arbitral tribunal on the return of the statement of claim must also be accompanied by a returned statement of claim and documents attached to it when filed with the arbitration court. Documents attached to the appeal can be submitted to the arbitration court electronically.
The person participating in the case has the right to submit to the judge a written response to the appeal, accompanied by documents confirming the objection to the complaint (Article 262 of the APC). Objections and the documents attached to them must be presented in copies but to the number of persons participating in the case.
At the end of the appeal period, the judge must send the case with the appeal and the attached documents to the court of appeal.
The issue of accepting an appellate appeal to proceedings is decided by a judge of the arbitration court of the appellate body alone within five days from the day of its receipt by the arbitration court of the appellate instance (Article 261 of the APC).
On the adoption of an appeal by the arbitration court of the appellate instance makes a ruling, which institutes proceedings on the appeal.
The definition specifies the time and place of the hearing of the appeal hearing. Copies of the determination are sent to the persons participating in the case within five days from the date of receipt of the complaint to the arbitration court of the appellate instance.
The arbitration court of the appellate instance on the petition of the persons participating in the case has the right to suspend the execution of judicial acts adopted by the arbitration court of first instance, provided that the applicant has substantiated the impossibility or inconvenience of turning the performance or provided the security provided for in Part 2 of Art. 265.1 APC.
Consideration of the case by the arbitration court of the appellate instance. The arbitration court of the appellate instance examines the case in a court session by the collegial composition of the judges on the rules for the consideration of the case by the arbitration court of first instance with the features provided in Ch. 34 APK. Arbitration assessors (Article 266 of the APC) are not involved in the consideration of the case in the procedure of appeal proceedings.
During each court session of the arbitration court of the appellate instance, as well as in the course of individual procedural actions outside the court session, a protocol is kept according to the rules provided for in Art. 155 APK.
The arbitration court of the appellate instance does not apply the rules on the connection and separation of several claims, the change in the subject or cause of the claim, the change in the amount of the claim, the presentation of a counterclaim, the replacement of the inadequate defendant, the involvement of third parties in the case, as well as other rules established by the AIC only for the consideration of the case in the arbitration court of first instance.
In accordance with Art. 267 of the APC, the arbitration court of the appellate instance shall consider an appeal against the decision of the arbitration court of first instance within a period not exceeding two months from the date of receipt of the complaint to the arbitration court of the appellate instance, including the time for preparing the case for trial and adoption of the judicial act. This term can be extended on the basis of the motivated statement of the judge who is considering the case, by the chairman of the arbitration court until six months due to the special complexity of the case, with a significant number of participants in the arbitration process.
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