of December 23, 2005 No. 34
About jurisdiction of disputes after concession of the requirement or transfer of debt
Plenum of Supreme Economic Court of the Republic of Belarus, being guided by Articles 74, 75 Codes of the Republic of Belarus about judicial system and the status of judges, decides to give to economic courts of the Republic of Belarus (further economic courts) the following explanations.
1. According to Article 40 of the Economic Procedure Code of the Republic of Belarus (further - HPK) withdrawal from jurisdiction of economic court of contentious case, arisen from civil legal relationship and belonging to jurisdiction of economic court, is possible only according to the written agreement of the parties about transfer of dispute for consideration of the international Arbitration (arbitration) Court signed before adoption of the decision by economic court on case.
2. The concession of the requirement or transfer of debt performed according to Articles 353, 362 Civil codes of the Republic of Belarus (further - group of companies), attract transition of the rights or obligations to new faces in the obligation in that amount and on those conditions which existed by the time of transition if other is not stipulated by the legislation or the agreement and if acquisition of rights or adoption of obligations are admissible according to the legislation for person entering the obligation.
Transition of the rights of the creditor to other person or transfer of debt into other person within civil legal relationship cannot change the judicial jurisdiction of cases in the Republic of Belarus established by legal acts and international treaties of the Republic of Belarus if the legal status of new faces in the obligation corresponds to legal status of those persons from whom transition of the rights of the creditor or transfer of debt is made.
If, for example, the legal entity transferred debt to other legal entity, then dispute between the creditor having the right to appeal with the claim to economic court, and the new debtor will remain in jurisdiction of economic court. If the legal entity transfers debt to the debtor citizen who is not the entrepreneur, then the dispute will stop being subordinated to economic court.
Article 62 HPK provides that in case of disposal after initiation of proceeedings of one of the parties in the disputable or established by the resolution of economic court legal relationship, including in connection with concession of right to claim or transfer of debt, the economic court according to the written application of the legal successor and with the consent of other party shall suspend proceeedings and make replacement of the disposed party with her legal successor. If as a result of procedural legal succession jurisdiction changes, proceeedings in economic court are subject to the termination based on paragraph two of article 149 HPK.
3. During the implementing of concession of right to claim or transfer of debt in full of the rights and obligations between the initial creditor and the debtor on the new creditor or the debtor earlier existing devolution agreement of dispute does not extend to the permission of reference tribunal or the arbitral agreement expressed in the arbitration clause as in the procedural legislation there is no institute similar to civil institute of concession of the requirement or transfer of debt.
Transition of the civil laws and obligations from party to party does not involve transition of procedural law and obligations in this connection, for example, the arbitral agreement cannot be cession subject.
4. According to part two of article 4 of the Law of the Republic of Belarus of July 9, 1999 "About the international Arbitration (arbitration) Court" (The national register of legal acts of the Republic of Belarus, 1999, No. 56, 2/60) (further - the Law) by agreement of the parties can be transferred to the international Arbitration Court the civil disputes between any persons of law arising when implementing the foreign trade and other types of the international commercial ties if the location or residence at least of one of them is abroad the Republic of Belarus, and also other disputes of economic nature if the agreement of the parties provides transfer of dispute on permission of the international Arbitration Court and if it is not forbidden by the legislation of the Republic of Belarus.
5. Proceeding from regulations of part one of Article 11 and part one of article 22 of the Law the arbitral agreement in the form of the arbitration clause is separate provision of the civil agreement, its part considered as the agreement which is not depending on other terms of the contract, requiring declaration of will of each of the parties for transfer arisen or able to arise between these parties of dispute on permission of Arbitration (arbitration) Court.
Jurisdiction of such court in case of concession of the requirement and transfer of debt will extend on new faces in the obligation only in case of the conclusion between them the independent arbitral agreement according to the procedure, stipulated by the legislation. In case of not achievement between the new parties in the obligation of the independent arbitral agreement jurisdiction of the arisen dispute will be determined according to general rules of jurisdiction of cases to economic courts.
The current legislation does not grant the right to the parties, the location or residence of which is in the Republic of Belarus, to sign the arbitral agreement (arbitration clause) on election for consideration of dispute of foreign, including foreign international Arbitration (arbitration) Court, and availability in the agreement of such agreement between the specified parties is invalid owing to distribution of jurisdiction of economic courts on all territory of the Republic of Belarus.
6. In case of decision making by foreign vessels and foreign Arbitration Courts on disputes in which parties are only faces the location or residence of which is in the Republic of Belarus, in the territory of the Republic of Belarus of these decisions shall be refused recognition and carrying out in connection with reference of disputes by law to competence of economic courts. The satisfaction of the petition for recognition and carrying out of such decisions will contradict public procedure for the Republic of Belarus.
In case of refusal in recognition and execution in the Republic of Belarus of the specified decisions economic courts shall be guided by article 248 HPK, and also the subitem of "b" of Item 2 of article V of the Convention of the UN on recognition and carrying out of foreign arbitral decisions concluded in New York on June 10, 1958.
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