Pre-Trial Settlement of a Commercial Dispute: an Obligation or Right
Abstract
The legal institute of pre-trial settlement of an commercial dispute has a long history of its development. In this way the legal requirements gradually changed, decreasing the mandatory implementation of the pre-trial settlement of the dispute from the absolute imperative requirement of compliance to the absolute abandonment of it. At the same time, it remained possible to apply the pre-trial settlement of a dispute by mutual consent of the parties as an alternative way to resolve an economic dispute. Recent changes in the commercial procedural legislation have again led to the return of such an institution as a duty to pre-trial settlement of commercial disputes in cases envisaged by law, which must be applied before appealing to the economic court. At the same time, it was still possible to use the pre-trial settlement of a commercial dispute as an alternative means of resolving commercial disputes. The aspects of the legal setting of the commercial dispute pre-trial settlement and the legal consequences of using such a method for resolving a commercial conflict are important. The article highlights the degree of legal setting (fixing) of application of pre-trial settlement of commercial disputes by the rules of material and procedural law. It is proved that pre-trial settlement of commercial disputes is not a stage of economic trial. The procedural consequences of violating the mandatory application of a pre-trial settlement of a commercial dispute and the parties’ agreement are confirmed. The legal norms of the commercial dispute pre-trial settlement Institute are contained in various legal acts. The main provisions of the Commercial Procedural Code of Ukraine establish the binding and the possibility of its application, as well as the consequences of non-compliance for participation in economic legal proceedings. While the provisions of the general procedure for presentation of a claim and receiving a response are not fixed at all in the current legislation. However, the special procedure for pre-trial settlement of commercial disputes for the application of sanctions and in certain spheres of economic activity is set out in the relevant regulatory legal acts.
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