Judicial Conciliation in Commercial Proceedings: Theory And Practice
Based on the analysis of the views of leading legal scholars, as well as judicial practice, the definition of a settlement agreement in commercial proceedings is formulated, its distinctive features are revealed in comparison with out-of-court agreements on reconciliation. It is shown that a settlement agreement has a public law nature and is a procedural act. Accordingly, the most important feature that is absent in out-of-court settlement transactions - enforceability - is inherent in a settlement agreement. Such an agreement and conciliation procedures correlate as a mechanism and a result: the result of conciliation procedures can be a settlement agreement. The list of conciliation procedures in the commercial procedural legislation is open, however, one should distinguish between judicial and extrajudicial conciliation procedures. The judicial conciliation procedure should be carried out within the framework of a special procedural form and in compliance with the fundamental principles of reconciliation (voluntariness, equality and cooperation). Special emphasis is laid on the fact that the arbitral tribunal does not have the right to compel the parties to conduct a conciliation procedure, threaten to make an unfavorable decision or express judgments about the case or the evidence presented by the parties. At the same time, the arbitral tribunal must adequately respond to situations where the parties, when they file a motion to postpone the proceedings in connection with the intention to conduct a conciliation procedure, do not really have such an intention and are pursuing the goal of delaying the consideration of the case. The court then should not satisfy the request. It was also emphasized that any information and documents provided by the parties during the conciliation procedure, without their written consent, cannot be admitted to the case and accepted by the arbitration court as evidence.