The draft federal law On Amendments to Individual Legislative Acts of the Russian Federation in Connection with Improvements in Conciliation Procedures was submitted to the State Duma by the Supreme Commercial Court.
In accordance with Part 3 of Article 104 of the Constitution, the Government reviewed the draft federal law based on the submitted feasibility study.
The draft law is designed to ensure effective dispute resolution through mandatory conciliation procedures.
The Government proposes further working on the draft law as outlined in the comments below.
COMMENTS
On the draft federal law On Amendments to Individual Legislative Acts of the Russian Federation in Connection with the Improvement in Conciliation Procedures
The draft law dismisses one of the fundamental premises of Federal Law No. 193-FZ On Alternative Dispute Resolution Involving a Mediator (Mediation Procedure) (hereinafter referred to as the “Law on Mediation”) dated July 27, 2010, which concerns trained professionals conducting professional conciliatory activities, as the project provides for excluding Part 3 of Article 16 of the Law on Mediation.
The rationale for adopting the proposed amendment indicated in the explanatory note is unconvincing, as the involvement of anyone other than a professional mediator in the mediation process will reduce the quality and the effectiveness of the mediation process and increase risks of abuse by such mediators.
The draft law proposes supplementing the Code of Arbitration Procedure (hereinafter referred to as the “CAP”) with a new Article 1384 introducing the procedure for judicial conciliation. The present version of the draft law treats mediation as a form of mediation and court conciliation as different concepts, whereas both procedures – alongside negotiations and other conciliatory procedures – are variations of the reconciliation procedure.
According to this procedure, a court mediator could be a retired judge, an assistant judge who is not involved in the proceedings, or a court employee with a law degree.
Providing the right to engage in mediation to individuals who did not complete additional training under programmes approved by the Ministry of Education will ultimately discredit the institution of judicial conciliation and damage the fledgling institution of mediation.
The draft law also does not regulate the responsibility of court conciliators to parties for damage caused as a result of their exercising of such activities.
Paragraph 19 of Article 3 of the draft law proposes rewording Article 190 of the CAP, whereby economic disputes arising from administrative and other public relations can be resolved through the use of conciliation procedures.
The proposal conflicts with the regulation stipulated by the provisions of Part 5 of Article 1 of the Law on Mediation, which prohibits the use of mediation in regards to relations involving public interests.
Taking into account the present version of Article 190 of the CAP, which provides for the possibility of reconciling the parties to an economic dispute arising out of administrative or other public relations, one should consider the explanation of the procedure governing the application of this rule set forth in Resolution No. 11 of the Plenum of the Supreme Commercial Court dated December 9, 2002 On Individual Issues Related to the Enactment of the Code of the Arbitration Procedure, according to which the use of such a conciliation procedure as reaching an amicable agreement may be limited if it violates the rights and the legitimate interests of other individuals, and if its provisions are inconsistent with the law.
In its Resolution No. 48 dated November 29, 2007 On Practical Court Hearings of Cases Challenging Regulations in Whole or in Part, the Plenum of the Supreme Court also explained that since the proceedings challenging a regulation are public and its results are mandatory both for the parties involved and not involved in a case, the approval of an amicable agreement for cases in this category is not allowed.
This restriction is justified, as the legal consequences of such relationships affect the rights and the legitimate interests of an indefinite number of individuals.
According to the feasibility study, the draft law's implementation would require additional budgetary allocations. Thus, it is proposed to supplement the draft law with a corresponding article, whereby the costs should be covered through funds from the federal budget that are set aside for the commercial courts of the Russian Federation.