Dmitriy Ratnikov

Disputes handled by arbitration courts typically arise in the realm of business or other economic activities, with legal entities and individual entrepreneurs commonly acting as parties. In accordance with Part 1 of Article 59 of the Arbitration Procedure Code of the Russian Federation, “Citizens have the right to conduct their cases in the arbitration court personally or through representatives. Conducting a case personally does not deprive a citizen of the right to have representatives.Part 4 of Article 59 of the Arbitration Procedure Code also establishes that “the affairs of organizations are conducted in the arbitration court by their bodies, acting in accordance with federal law, other regulatory legal acts or constituent documents of organizations.”At the same time, organizations are also not deprived of the right to entrust the conduct of legal proceedings to representatives.Since the stakes in arbitration proceedings are high and mistakes lead to irreversible consequences, persons involved in the case generally seek the help of representatives to protect their interests in arbitration courts.Among the main tasks of the representative, in addition to protecting the interests of the principal, is assistance in the exercise of his procedural rights and the performance of duties. This may be expressed, for example, in the preparation of a statement of claim, response, other procedural documents, as well as in the participation of the representative in court hearings, where he speaks on issues arising in the course of the trial.Only a legally competent person with duly executed and confirmed powers to conduct the case may act as a representative in an arbitration court.Types of representationBased on the analysis of the provisions of Article 59 of the Arbitration Procedure Code of the Russian Federation, two types of representation can be distinguished: contractual and legal. Contractual representation arises by virtue of the conclusion of an agreement between the attorney and the principal on representing the interests of the latter in court. The legal structure by means of which such legal relations are formalized may be, among other things, a contract of agency.Legal representation arises by virtue of law. For example, "the rights and legitimate interests of incapacitated citizens are protected in arbitration proceedings by their legal representatives - parents, adoptive parents, guardians or trustees, who may entrust the conduct of the case in the arbitration court to another representative chosen by them (Part 2 of Article 59 of the Arbitration Procedure Code of the Russian Federation).As a general rule, representation in arbitration proceedings is professional. This means that the representative must have a higher legal education or an academic degree in a legal specialty.Thus, in accordance with Part 3 of Article 59, “Representatives of citizens, including individual entrepreneurs, and organizations may be represented in arbitration court by lawyers and other persons providing legal assistance, having a higher legal education or an academic degree in a legal specialty." The specified requirements for representatives must be observed when carrying out any procedural actions.The Supreme Court of the Russian Federation in its review of the judicial practice of the Supreme Court of the Russian Federation No. 4 (2019) (approved by the Presidium of the Supreme Court of the Russian Federation on 25.12.2019) explained that, in accordance with the Order of the Ministry of Education and Science of Russia dated September 12, 2013 No. 1061, which approved the lists of specialties and areas of training in higher education indicating the qualifications, "persons who have completed training in bachelor's, specialist's, master's degree programs or training of highly qualified personnel in the direction of training (specialty) "jurisprudence" with the assignment of the qualification "bachelor", "master", "lawyer", "forensic expert", "researcher", "teacher-researcher" are recognized as having higher legal education.When confirming the presence of higher legal education, representatives attach relevant documents on higher legal education or an academic degree in a legal specialty, in particular a bachelor's, master's or specialist's degree.However, the above requirement does not apply to representatives who have the status of a lawyer.By virtue of a direct indication in the law, for certain categories of disputes, representatives may be persons to whom the general requirements imposed on representatives do not apply. Such persons may include, in particular, patent attorneys, arbitration managers, and persons acting as representatives in bankruptcy cases.Let us dwell in more detail on the status of a patent attorney.Patent attorney as a representativeIn accordance with Article 1.1. of the Federal Law of 30.12.2008 N 316-FZ "On Patent Attorneys", "the status of a patent attorney is assigned to persons who have confirmed the necessary qualifications and work experience in the field of activity of a patent attorney in accordance with the specialization, in relation to which the citizen expresses a desire to be certified and registered as a patent attorney, and corresponding to the requirements of this Federal Law. The activities of a patent attorney are aimed at ensuring the necessary level of protection of the rights and legitimate interests of the principal. The clients of a patent attorney are applicants, copyright holders and other interested citizens and legal entities with whom the patent attorney (the employer of the patent attorney) has concluded an agreement including the terms of the performance of work (the provision of services) related to the activities of the patent attorney."This status arises from the moment of registration of a citizen in the Register of Patent Attorneys of the Russian Federation and is confirmed by a patent attorney certificate, which, similar to documents on higher legal education, is presented to the court when performing procedural actions.Thus, paragraph 3 of Article 3 of the Law on Patent Attorneys establishes that “a patent attorney conducts business on behalf of clients with the federal executive body for intellectual property, organizations subordinate to it, other state and municipal bodies, individuals and legal entities, including public organizations and associations, and participates as a representative in court in cases related to the legal protection of the results of intellectual activity and means of individualization.”It should be noted that in order to be a representative in arbitration proceedings, it is not enough to provide documents confirming the status of a lawyer, patent attorney or the presence of a higher legal education. In addition to the specified documents, a power of attorney from the represented person is also required, which confirms the authority to conduct the case in the arbitration court.By virtue of Part 4 of Article 61 of the Arbitration Procedure Code of the Russian Federation, “the authority to conduct a case in an arbitration court must be expressed in a power of attorney issued and executed in accordance with federal law, and in cases provided for by an international treaty of the Russian Federation or federal law, in another document.”The powers of a representative are determined, firstly, by the procedural status of the principal, and secondly, by the scope of powers that the principal has granted to his representative, reflecting them in the power of attorney.The powers can be divided intospecial, specified in Part 2 of Article 62 of the APC - procedural actions that the representative does not have the right to perform without a direct indication of this in the issued power of attorney. Such procedural actions, in particular, signing the statement of claim itself, filing applications for securing a claim, applications for refusal of claims, etc., contained in the above-mentioned norm,and general ones, formed according to the residual principle - those procedural actions, for the implementation of which it is not necessary to directly indicate this in the power of attorney. Such actions include, in particular, the right to familiarize oneself with the case materials, make extracts, take copies; file challenges; present evidence and familiarize oneself with evidence, etc.It should also be noted that the powers of a representative may be expressed in a statement of the represented person made directly in the court session, however, in such a case the powers of the representative are valid only in the court session in which the relevant statement was made. In this case, the representative will also need to present documents confirming his right to be a representative in the arbitration court.In accordance with paragraph 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 23.12.2021 N 46 "On the application of the Arbitration Procedure Code of the Russian Federation when considering cases in the court of first instance", "within the meaning of Part 3 of Article 59 of the Arbitration Procedure Code of the Russian Federation, if the representative of a person participating in the case is a lawyer or other person providing legal assistance who has a higher legal education or an academic degree in a legal specialty, along with him, persons who do not have a higher legal education or an academic degree in a legal specialty are allowed to participate in the arbitration process as representatives."However, this does not mean that such a representative can be absolutely any person who does not have a higher legal education or an academic degree in a legal specialty, as it may seem at first glance, since the above provision must be considered in conjunction with the explanations of the Constitutional Court of the Russian Federation given in the resolution of 16.07.2020 N 37-P.In accordance with the said resolution, along with a professional representative, only persons who have a direct or indirect interest in the outcome of the case, who possess special knowledge and, in this regard, are capable of conveying to the court significant information applicable to the dispute under consideration may participate as representatives.For example, the district court did not allow the second representative of the defendant to participate in the case due to his lack of legal education, since the dispute was only about legal issues (see Resolution of the Arbitration Court of the Volga-Vyatka District dated 15.01.2024 No. F01-8617/2023 in case No. A39-2703/2022).In summary, it can be noted that the institution of representation plays an important role in the arbitration process, allowing persons participating in the case to shift the burden of legal disputes onto the shoulders of professionals, without delving into the complex matters of arbitration proceedings. Professional representatives, in turn, possessing the appropriate competence, representing the interests of their clients in the arbitration court, ensure the highest quality protection of the rights and legitimate interests of their clients.