How to refuse a claim in arbitration

The right to refuse claims submitted to the court is guaranteed to the plaintiff by law. In the th century The Arbitration Procedural Code (hereinafter referred to as the APC) states that he can do this at any time until a court decision is made on the merits of the case (in the first or appellate instance).

The plaintiff has the right to waive his claims in whole or in part. He must inform the court of his intention in writing by drawing up and sending a corresponding statement. In the text of the document, the plaintiff should indicate:

• in the header:

  name of the court;

• name, address – yours and the defendant’s;
• case number;
• Full name of the judge who deals with it;

It is not necessary to explain the reason for refusal. But in certain cases this should be done, for example, in order to have grounds to collect state duty from the defendant. At the end of the statement, the plaintiff refers to Art. 49. APC, and also reports that he knows the consequences of the procedural action being performed, specified in Article 151. Arbitration Procedural Code.

If the refusal comes from a person representing the interests of the plaintiff, a copy of the power of attorney is attached to the application. It must stipulate that the representative is authorized by the principal to withdraw claims (Article 62 of the APC).

Who can file a cassation appeal?

In the lawsuit, the Moscow government asked that the investment contract, which was concluded in 2001, for the reconstruction of four facilities located on the Kremlin embankment be declared illegal. In particular, the defendant had to reconstruct and restore the architectural monument “Alyabyev House”.

And if such a statement of claim is mistakenly accepted by the court for proceedings, this legal proceeding will subsequently be terminated.

The company, but then decided to stop it. For example, the opponent voluntarily satisfied the company’s demands, and the claim was no longer necessary.

Thus, part 2 of Article 49 of the Arbitration Procedure Code of the Russian Federation, of course, cannot be a basis for refusing to approve the agreement reached in cassation.

Answer. A collective hearing of a case in an arbitration court of first instance is allowed only in cases provided for in parts 2, 3 of Article 17 of the Arbitration Procedure Code of the Russian Federation.

By a ruling of the Arbitration Court of the Volgograd Region dated March 9, 2000, on a complaint from bankruptcy creditors against the actions of the bankruptcy trustee, the agreements of Metallurgical OJSC with a number of citizens, including L.E.

In addition, please note that a claim can only be withdrawn at the stage of consideration in the first instance or appeal, before a decision is made on the merits. At the cassation stage, this is only possible if the parties sign, the text of which contains a condition on the plaintiff’s waiver of claims.

The appellate court, having established a contradiction to the requirements of the law or a violation of the rights of other persons by the stated refusal of the claim, does not accept it and considers the appeal on its merits.

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Having studied the presented agreement, the judicial panel found it possible to approve it as not contradicting the law and legal acts and not violating the rights and legitimate interests of other persons. By a ruling of the cassation court, this settlement agreement was approved, and therefore the decision and ruling of the arbitration court were canceled and the proceedings in the case were terminated.

At the same time, the current articles allow you to additionally send a cassation appeal against decisions and rulings of district courts that have entered into force even to the Supreme Court of the Russian Federation, when they have already been appealed to the presidium of the court of a constituent entity of the Russian Federation. True, as we already learned above, the Supreme Court considers a little more than 1% of such complaints. But it's still worth a try.

If the plaintiff’s representative waives the claim, the court must check the presence of such authority in the power of attorney, since the waiver of the claim refers to a number of “special” rights and is not specified in all authorizing documents. When issuing a power of attorney to conduct legal matters, the right to refuse a claim must be separately stated in the authorizing document.

To complete the process, an application is filed with the court. You can draw up such a document using a sample waiver of claim in the arbitration process. If the company intends to withdraw the claim, the court must be notified of this. They submit an application to abandon the claim to the arbitration court that heard the case.

The arbitration cassation appeal system is two-level and includes two links: district arbitration courts and the economic disputes panel of the Supreme Court. The complaint must be filed through the court of the authority that made the decision being appealed.

The basis for filing claims against the first defendant was his failure to fulfill his obligation to pay for goods purchased from the plaintiff.

This postulate especially clearly illustrates the activities of the Supreme Court of the Russian Federation as a cassation instance. Thus, according to statistics, the RF Armed Forces satisfy only 1.35% of such complaints received against it. That is, on average, only 1 complaint out of 100! This is a very low percentage. Most of the complaints received are not even transferred to the appropriate board of the RF Armed Forces.

On the abandonment of a claim in the court of cassation An example is usually given of a situation where unscrupulous plaintiffs, having lost a case, abandon the claim, trying to avoid prejudice that is unfavorable to them.

If the plaintiff has declared a waiver of the claim for compulsion to conclude an agreement in connection with the conclusion of a settlement agreement, the court should not accept the waiver of the claim without approving the settlement agreement.

A settlement agreement is the best alternative to such a measure as abandoning a claim in civil proceedings.

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Refusal of a claim in arbitration court: consequences

When withdrawing a claim, it should be borne in mind that it will no longer be possible to present it again with the same demands to the same person (clause 3 of Article 151 of the APC). Therefore, it is very risky for the plaintiff to write a refusal, trusting the counterparty’s promises to fulfill obligations out of court.

Based on the received application, the judge makes a ruling:

• or to terminate the proceedings;
• or about the impossibility of doing this (about refusal to terminate the judicial proceedings in the case).

Termination of legal proceedings may be refused if this would violate the interests of third parties, or if the petition was filed in violation of the law. The court's ruling explains the reasons for such a decision.

The Tax Code (clause 3 of Article 333.40) allows the fee paid to the state to be returned if the proceedings are terminated, but not in all cases. For example, if the defendant voluntarily fulfills his obligations, and therefore the plaintiff withdraws the claim, the amount of state duty will not be returned from the treasury. It will be reimbursed by the defendant, which must be noted in the court’s ruling (clause 11 ]]>Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 46 of 07/11/2014)]]>.

Statement of refusal of claim under apk

Current legislation provides every person (both individuals and legal entities) with the opportunity to legally protect their rights and interests.

At the same time, the initiator of a legal dispute, when considering it, has the right not only to change the grounds and amount of his claims, but also to completely abandon the civil claim.

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This possibility is regulated by the APC and the Code of Civil Procedure of the Russian Federation. Rejection of claims against the defendant can be dictated by completely different reasons: voluntary satisfaction of demands, understanding of the low chance of winning in court, forgiveness of a debt, loss of interest in the proceedings, etc.

In any case, the waiver of a claim in arbitration proceedings, as well as in civil proceedings, must express the will of the initiator of the proceedings, comply with legislative norms and not infringe the rights of any of the parties, as well as interested third parties.

Refusal of the cassation appeal and withdrawal of the cassation protest

Having received a cassation appeal (protest), the court begins to consider the case at the appointed time. Proceedings in the court of second instance are based on the same basic principles and principles as proceedings in the court of first instance. Just like the court of first instance, it considers complaints (protests) in open court. However, it is possible to hold a closed trial on the same grounds as in the court of first instance. The prosecutor who brought the protest, as well as the superior prosecutor, may withdraw the protest before the start of the court hearing. Persons involved in the case are notified of its revocation. If for some reason the prosecutor did not manage to withdraw the protest before the start of the court hearing, the court checks the validity of the protest on its merits. If such a circumstance occurs, the prosecutor does not have the right to revoke it, but only refuse to support it.

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State fee for filing a cassation appeal

Refusal of the statement of claim in the arbitration court is made in the event of loss of interest in the judicial resolution of the conflict (clause 2 of article 49 of the Arbitration Procedural Code of the Russian Federation). The plaintiff is given the right to stop consideration of all or part of his claims before the final act is issued. Such an expression of will is usually drawn up in writing in free form.

The ruling may resolve issues regarding the distribution of legal costs between the parties and the return of state fees from the federal budget.

So, refusal of the appeal allows the person who submitted the document to the arbitration court to renounce his will and initiate termination of the proceedings for re-examination of the case materials.

Cassation proceedings are designed to protect the interests of the applicant (defendant, plaintiff or other person), to prevent violation of his legal rights and causing harm during the execution of an unlawful decision. The law gives six months to file a cassation appeal against a decision of a court of general jurisdiction and two months to appeal an arbitration decision.

The second option is suitable in cases where the plaintiff intends to commit similar actions in the future. They can be paid for using the non-returned portion of the funds.

Failure to appear at a court hearing without good reason by any of the persons participating in the case, duly notified of the place and time of the hearing, is not an obstacle to the consideration of the case.

The opponent voluntarily repaid the debt or fulfilled other requirements of the company. In this case, there is no need for litigation. However, in order to terminate the contract, the company may need the fact of violation to be reflected in the judicial act. There is no questioning of witnesses or experts here, but the consideration of the case is carried out through familiarization with the case materials, the protocol of the court session, and material and written evidence attached to the case. Only persons participating in the case and their representatives can give explanations on the merits of the complaint (protest).

Is it possible for a plaintiff to waive a claim during a civil case?

If the settlement agreement contains a condition on the plaintiff’s complete or partial refusal of the stated claims, then this circumstance in itself is not a basis for refusing to approve it. The fact is that in a cassation court a complete or partial waiver of a claim is not allowed only as a unilateral administrative action. And if the condition on the plaintiff’s refusal of the claim was included in the settlement agreement, this corresponds to the interests of all parties to the dispute, and therefore does not contradict the law. If the settlement agreement contains a condition on the plaintiff’s complete or partial refusal of the stated claims, then this circumstance in itself is not a basis for refusing to approve it. The fact is that in a cassation court a complete or partial waiver of a claim is not allowed only as a unilateral administrative action. And if the condition on the plaintiff’s refusal of the claim was included in the settlement agreement, this corresponds to the interests of all parties to the dispute, and therefore does not contradict the law.

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