Consideration of international disputes

MG_9367

In accordance with the second part of Article 4 of the Law of the Republic of Belarus “On International Arbitration court” in the IAC at the BelCCI may consider civil disputes between any of the subjects of law arising in the course of foreign trade and other forms of international economic relations on the agreement between the parties, if the registered office or residence at least one of them is abroad the republic of Belarus.

Statistics show that in the IAC at the BelCCI address, first of all, the participants of foreign economic activity, one of the parties of the dispute, either the claimant or respondent, is a subject of the Republic of Belarus.

However, there are cases when the IAC at the BelCCI, acts as a neutral judicial body of a third country, settles disputes arising between two foreign entities.

The cases about non-fulfillment or improper fulfillment of obligations are the most of the cases adjudicated by the IAC at the BelCCI. The vast majority of obligations are contractual obligations. Among the non-contractual obligations – are the obligations arisen as a result of unjust enrichment. Most considered disputes are the disputes arisen from civil contracts.

Since the most common type of contracts in foreign activities, is an international agreement of purchase and sale of goods, the largest number disputes in the IAC at the BelCCI affect various aspects of this kind of contract. The main claims are the claims on refund of the advance payment, recovery of principal, contractual penalties, damages, interest on borrowed funds.

In addition, the IAC at the BelCCI resolves disputes arising from leases, leasing, commission, consignment, agency, organization of cargo transportation, freight forwarding, loan agreements, services, and other civil-law transactions.

As a general rule, stated in paragraph 1 of article 28 of the Rules of IAC at the BelCCI, the dispute resolution is held oral.

However, this rule has exceptions that allow settling the dispute without an oral hearing and on the basis of written evidence only.

Thus, resolution of a dispute on the basis of written evidence only may be in the following cases:

– Refusal of the parties to an oral hearing pursuant to subparagraph 1 of paragraph 2 of Article 28 of the Rules of IAC at the BelCCI. The relevant agreement can be reached in the arbitration agreement;

– The claimant in the lawsuit petitioned to hear the case on the basis of documentary evidence and the respondent within the time limit responded to the claim of the plaintiff and agreed with this proposal (subparagraph 2 of paragraph 2 of Article 28 of the Rules of IAC at the BelCCI);

– Acknowledgment of the respondent in writing of the claim entirely within the time limit for responding to a claim (subparagraph 3 of paragraph 2 of Article 28 of the Rules of IAC at the BelCCI).

At the same time, as indicated in paragraph 3 of Article 28 of the Rules of IAC at the BelCCI, the recognition of the claim extends to refund incurred by the plaintiff in the case of expenses, unless otherwise follows from the corresponding statements of the defendant.

In general, of course, in most cases, hearing disputes in the IAC at the BelCCI is made orally.

Members of the court, taking into account the circumstances and the opinions of the parties, appoint time and place of the proceedings.

According to the second part of Article 32 of the Law of the Republic of Belarus “On International Arbitration court” notice of the hearing shall be sent to the parties in such a way that they have enough time to prepare for the arrival and for the hearing.

The period of delivery is taken into account.

A similar provision is contained in paragraph 2 of Article 33 of the Rules of IAC at the BelCCI.

Notice of the time and place of the hearing may be sent with a return receipt or delivered personally (paragraph 2 of Article 20 of the Rules of IAC at the BelCCI).

Paragraph 3 of Article 20 of the Rules of IAC at the BelCCI provides the ability to deliver the notice may be made by any other reasonable way.

According to Article 29 of the Rules of IAC at the BelCCI a sole arbitrator or a presiding arbitrator of a panel of arbitrators shall conduct an oral hearing.

In case of absence of one of the parties in the court session, the subject of discussion is the question of whether it was proper noticed, and whether it is possible to settle the dispute in its absence. Opinion of the present party should be taken into account.

According to the second part of Article 33 of the Law of the Republic of Belarus “On International Arbitration court” in cases where any party fails to appear at a hearing or to produce documentary evidence, the Court has the right to continue the case proceedings and make a decision based on available evidence.

Paragraph 1 of Article 32 of the Rules of IAC at the BelCCI states that failure to appear does not prevent conduction of proceedings and the settlement of a dispute under the following conditions:

 – Absent party was duly notified or is deemed to be notified of the date and place of the hearing

– Absent party has not petitioned for adjournment of the case, with without showing sufficient reasons.

After making sure that the process involved full-fledged representatives of the parties, the arbitrator-chairman or sole arbitrator finds out whether the parties rely on the settlement of a dispute arising between the present composition of the court.

The right to challenge the arbitrator is fixed in article 18 of  the Law of the Republic of Belarus “On International Arbitration court” and in article 9 of the Rules of the IAC at the BelCCI.

At the hearings, the court asks the question to the representatives of the parties is whether it is possible to achieve a settlement agreement by the parties following one of the principles of the IAC at the BelCCI.

In case when the court has got an affirmative answer the settlement of a case can be postponed in order to give to the parties an opportunity to make negotiations, to discuss the terms of the settlement agreement.

At the hearing the parties shall be given an opportunity to express their views in speeches on the basis of the submitted documents.

Traditionally, the plaintiff has the right to express his position, and after this the defendant and arbitrators ask him questions. At the same time, composition of the court as a rule asks questions and clarifies the positions of the parties in the case at any stage of the proceedings.

Then the defendant expounds his position and answer the questions.

Having heard the explanations of the parties, the court determines the procedure for consideration of other evidences.

In particular, the composition of the court shall invite the representatives of the parties to present original evidences, which are based on the claims or objections.

The documents which are presented in the hearings, statements and other information provided by one of the parties should be communicated to the other party.

The testimonies of witnesses can be heard at the hearings, presentations by experts (specialists), and oral argument are also held. The conclusions of experts (specialists) are also transmitted to the parties.

Under paragraph 1 of Article 33 of the Rules of IAC at the BelCCI of the court have the right to require the parties to submit additional evidence (testimony of witnesses, written and material evidences, expert opinions (specialists), as well as other media, if they can be used to obtain information on the facts of important for the correct resolution of the dispute) (article 33, paragraph 1 of the Rules of IAC at the BelCCI).