Dmitriy Ratnikov

At present, arbitration courts consider a large number of disputes, the correct resolution of which requires the use of special knowledge.The Russian legislation does not provide for a legal definition of the concept of special knowledge. At the same time, in the traditional legal literature, this term is understood as a system of theoretical knowledge and practical skills in the field of a specific science or technology, art or craft, acquired through special training or professional experience and necessary to resolve issues arising in the judicial process. Moreover, well-known, as well as legal knowledge is usually not classified as special (see, for example: Rossinskaya E.R. Forensic Examination in Civil, Arbitration, Administrative and Criminal Process, Moscow, 2005).At the same time, when we talk about the application of special knowledge in the judicial process, we are talking about the procedural form of their application, which is expressed in the form of a forensic examination and specialist consultation. Thus, in accordance with Part 2 of Article 64 of the Arbitration Procedure Code of the Russian Federation, "written and material evidence, explanations of persons participating in the case, expert opinions, expert consultations, witness testimony, audio and video recordings, and other documents and materials are admissible as evidence".The expert's opinion is the main type of application of special knowledge in the arbitration process and consists in the preparation by the expert of a written opinion, which is drawn up on the basis of the study on the issues posed to the expert by the court.Classification of forensic examinations and possible errorsForensic examination can be classified on various grounds.Depending on the scope of the study, examinations are divided into basic and additional.The main examination is appointed if in the process of considering the case the court has issues that require special knowledge. In accordance with Part 1 of Article 82 of the Arbitration Procedure Code of the Russian Federation, an expert examination is appointed by the court at the request of a person participating in the case, or with the consent of the persons participating in the case, and if the appointment of an expert examination is prescribed by law or provided for by a contract, or is necessary to verify an allegation of falsification of the evidence submitted, or if it is necessary to conduct an additional or repeated examination, the commercial court may appoint an expert examination on its own initiative. At the same time, in accordance with the provisions of Article 8 of the Federal Law "On State Forensic Activities in the Russian Federation" (hereinafter referred to as the "Federal Law of the State Forensic Expert System"), an expert conducts research objectively, on a strictly scientific and practical basis, within the relevant specialty, comprehensively and in full.The expert's conclusion should be based on provisions that make it possible to verify the validity and reliability of the conclusions made on the basis of generally accepted scientific and practical data.In case of non-compliance with the requirements for a forensic expert opinion, it cannot serve as proper evidence in the arbitration process.Defects in the expert's opinion arise due to expert errors. Thus, in particular, in the process of conducting research and preparing a conclusion, an expert can go beyond his competence, substantiate his conclusions with the materials of the case, and not the results of the study, begin to independently collect materials for the examination, there may be internal inconsistency of the expert study and other errors. Additional, primary and repeated examinationsDepending on the nature of the errors, their elimination can be solved by appointing an additional or repeated examination. In accordance with Part 1 of Article 87 of the Arbitration Procedure Code , "in case of insufficient clarity or completeness of the expert's opinion, as well as in case of questions regarding the previously investigated circumstances of the case, an additional examination may be appointed, which shall be entrusted to the same or another expert". Thus, if the expert error does not affect the expert's conclusions, an additional examination may be appointed to specify or clarify the results of the study of the main examination.An additional examination may also be appointed in cases where after the expert examination new questions arise in relation to the same object, which were not posed to the expert during the main examination.Additional examination, as a rule, is entrusted to the same expert who conducted the main examination, since he is already familiar with the case materials and the object of the study.Thanks to the additional examination, the errors made by the expert at the stage of the main examination can be corrected and full conclusions based on the results of the study can be given.It should be noted that since the additional examination is appointed to clarify and clarify the results of the main examination, the conclusions of the additional examination cannot contradict the conclusions of the main examination.Depending on the sequence of the examination, it is possible to distinguish between primary and repeated examinations. In accordance with Part 2 of Article 87 of the Arbitration Procedure Code, "in case of doubts about the validity of the expert's opinion or the presence of contradictions in the conclusions of the expert or the commission of experts on the same issues, a second examination may be appointed, the conduct of which shall be entrusted to another expert or another commission of experts".The grounds for the appointment of a second examination may, in particular, be the contradiction of the conclusion of the primary forensic examination with the objectively existing and established circumstances of the case; procedural errors made in the process of appointing an initial examination (for example, entrusting the examination to an expert who does not have the appropriate competence), doubts about the scientific validity of the methodology used in the conduct of the primary examination.The re-examination is carried out in relation to the same objects and on the same materials as the primary examination, but cannot be entrusted to the same expert who conducted the initial examination, because one of the purposes of the re-examination is to verify the process and results of the previous examination. In the event that additional objects need to be examined for the completeness of the study, such an examination will be additional.Expert examinations based on the number of expertsAccording to the number of experts conducting the study and their specialty, the examination can be single, commission and complex.In accordance with Article 84 of the Arbitration Procedure Code of the Russian Federation, "A commission examination shall be carried out by at least two experts of the same specialty. The commission nature of the examination is determined by the arbitration court.If, based on the results of the research, the opinions of the experts on the issues raised coincide, the experts draw up a single conclusion. In the event of disagreements, each of the experts who participated in the examination shall give a separate opinion on the issues that caused the disagreements of the experts."According to the provisions of Article 85 of the Arbitration Procedure Code of the Russian Federation, "A comprehensive examination shall be carried out by at least two experts of different specialties.The expert opinion indicates what research and to what extent each expert has conducted, what facts he has established and what conclusions he has reached. Each expert who participated in the comprehensive examination shall sign the part of the report that contains a description of the studies carried out by him/her, and shall be responsible for it.The general conclusion is made by experts who are competent in assessing the results obtained and formulating this conclusion. In the event of disagreements between experts, the results of the research shall be drawn up in accordance with Part 2 of Article 84 of this Code."Commission examinations are appointed by the court in particularly complex cases (for example, with a large number of objects of research), or when it is necessary to conduct a second examination.At the same time, in accordance with Article 17 of the Federal Law of the State Forensic Examination Service, an expert has the right, among other things, to petition the head of the relevant state forensic institution to involve other experts in the forensic examination, if this is necessary to conduct research and give an opinion. Thus, such an examination will be a commission, and the conclusion may be recognized as inadmissible evidence, since in accordance with Article 84 of the Arbitration Procedure Code of the Russian Federation, the commission nature of the examination should be determined by the arbitration court. A distinctive feature of commission and complex expertise is the fact that commission examinations are carried out by a commission of experts of the same specialty, while experts of different specialties participate in the conduct of a comprehensive examination. Based on the meaning of the provisions of Article 85 of the Arbitration Procedure Code of the Russian Federation, a comprehensive examination is always carried out by a commission of experts of different specialties and cannot be carried out by one expert versed in different fields of knowledge.Thus, when conducting a comprehensive examination, experts of different specialties answer questions based on their field of knowledge, and make a general conclusion. Thus, a comprehensive analysis of the features takes place. Subject classificationThus, there are various classes of forensic examinations, the division into which is determined by the field of application of special knowledge. Classes of expertise, in turn, are divided into types of examinations, genera – into types, types – into subtypes. As an example, we can cite the class of speech examinations, the object of which is the speech products of human activity. This class of expertise includes linguistic, author's, handwriting examinations and other types of examinations, each of which has its own tasks and research methods. For example, author's expertise solves, among other things, identification tasks related to the establishment of the authorship of texts (for example, works). Such an examination may be appointed, inter alia, in disputes related to the establishment or refutation of the authorship of a work, in disputes on the protection of business reputation, etc. A handwriting examination, for example, can be appointed in connection with the verification of an application for falsification of the submitted evidence, if it is necessary to establish the authenticity of the signature on the document.Thus, we see that there are different types of examinations, the classification of which occurs on different grounds and which contribute to the correct resolution of the case.

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.