I INTRODUCTION TO DISPUTE RESOLUTION FRAMEWORK
The
The legal system of the
The legal acts of the
Precedent is not recognised in
The court system in
According to the principle of specialisation the courts are divided into:
a civil courts, including military courts and judicial bodies responsible for resolving disputes on patent matters;
b economic (commercial) courts; and
c the Constitutional Court of the
There is an ongoing discussion on the proposed establishment of specialised courts such as labour, family or juvenile courts, but there has been no firm decision made so far.
Civil courts execute justice by way of civil, criminal and administrative procedures. Economic (commercial) courts execute justice by means of economic and administrative procedures.
Each of the aforementioned procedures has its own codified procedural law, namely the Code of Civil Procedure ('the CCP'), the Code of Criminal Procedure, the Code of Economic Procedure ('the CEP') and the Code of Procedure and Execution on Administrative Offences, the latter is applied by both civil and economic courts.
There is an ongoing discussion on the proposed establishment of specialised courts within the system of economic (commercial) courts (e.g., insolvency courts, land courts and tax courts). At present, however, no new courts have been created.
The system of economic courts of the
The system of enforcement in the
The Constitutional Court exercises judicial control over the constitutionality of normative legal acts in the state.
Under the principle of territoriality civil courts are divided into:
a district (town) courts, inter-garrison military courts;
b regional (and the city of
c Supreme Court of the
The system of economic courts is formed of:
a the economic courts of each of six regions and of the city of
b the Supreme Economic Court of the
The courts of higher instance mainly serve as appellate (cassation or supervisory) courts but also may serve as courts of first instance for particular cases (disputes with state authorities, disputes involving state secrets, etc.).
II THE YEAR IN REVIEW
i Legislation
There were no significant amendments to civil and economic procedural law in 2010. The past year was, however, marked by certain novelties concerning the resolution of disputes by arbitration. A new arbitral institution was established in 2010, an international arbitration court known as the Chamber of Arbitrators of the Union of Lawyers. Before its creation, the only arbitral institution in Belarus was the International Arbitration Court ('the IAC') of the Belarusian Chamber of Commerce and Industry ('the BelCCI').
ii Court practice
The appeal instance of the commercial court of the Homel region has passed a resolution on the reversal of a decision of the court of first instance. The court of first instance dismissed a case of lessor, financing performance of lease agreement at the expense of credited funds, received in foreign currency, on recovery from the lessee of costs, connected to the difference between amount of value added tax and, paid in Belarusian roubles, paid by the lessor in accordance with Belarusian legislation when purchasing subject of lease and taken to deduction subsequently, and amount of the value added tax remunerated by the lessee in the process of the agreement performance. In connection with the conversion of the foreign currency into Belarusian roubles during the term of validity of the agreement, the amount in Belarusian roubles, subject to payment to the budget after receipt of rent from the lessee, increased. Consequently, the lessor had to pay to the budget an amount greater than the amount of VAT that could be deducted in connection with the purchase of the subject of lease. recovery of such costs was provided in the lease agreement.
The court of first instance dismissed an action for the recovery of such costs and decided that the lessor did not provide evidence that it bore such costs. The lessor could not provide any document confirming the aforesaid costs and the amount of the costs was confirmed by calculation only. The court of appeal, within the framework of its review of the decision, appointed legal and accounting experts, who established the existence of the costs and their amount. On the basis of this expertise, the claim of the plaintiff was satisfied and costs were recovered. This decision was supported at the cassation instance.
This case was one of first concerning relationships arising from leasing contracts, but the problem of such costs is urgent for many business entities working in this area. The final decision on this case is a revealing deviation of the court from the formal settlement of disputes on recovery of costs and a profound and comprehensive estimation of all facts of the case by the court.
Deviation from the formal application of legal rules was demonstrated by the a decision of the Commercial Court of Minsk on 7 September 2010, especially taking account of the increase in foreign investments and the provision of privileges to foreign investors concluding investment agreements with the republic of Belarus. In accordance with norms of Belarusian legislation, the land plot provided to the business entity can be withdrawn by state if the business entity does not meet the specified conditions (including the terms of construction and planned order of building construction) established by the state authority in decisions on the allocation of the land plot. In this case, when applying for the land plot, the business entity submitted a construction plan in which approximate terms for construction were stated. The state authority referred to this document in its decision on the allocation of the land plot and stated that the construction would be performed in compliance with the plan. Subsequently, the terms of implementation of this plan were violated by the developer, which rationaled for taking decision by the state authority on withdrawal of the land plot. This decision was disputed by the developer in court, but the court left the decision without alteration with the following motivation. The legislation of Belarus provides that construction shall begin on the land allocated for construction within one year of such allocation. The legislation understands commencement of construction to include any action, including thee preparation of design estimates. At the same time, where the developer has received the land, and having submitted the construction plan does not fulfil its obligations, such violation of the construction plan shall be qualified as an untimely commencement of construction.
III COURT PROCEDURE
Protection of infringed or disputed civil rights is carried out by the civil court, economic court or arbitration court subject to their jurisdiction established under procedural law or, if allowed by law, in accordance with the agreement of the parties. The court procedure will therefore vary depending upon the nature of the claim and the court in which the claim is to be considered.
Disputes arising from commercial (economic) relations are considered by economic courts under the procedure stipulated by the CEP that was adopted on 15 December 1998 and last amended on 15 June 2009.
Economic courts exercise justice by resolving commercial disputes that arise from civil, administrative and other legal relations and parties to which are either legal entities or private entrepreneurs. Such disputes will include but not be limited to:
a disagreements arising while concluding statutory contracts;
b disagreements arising while concluding the contracts agreed by the parties;
c changing and annulment of the contract;
d non-fulfilment or improper fulfilment of the obligations;
e acknowledgement of right, including the property right;
f claim of property from another's unlawful possession by the owner or other lawful possessor;
g infringement of the right of owner or other lawful possessor that is not connected with the depriving of possession; and
h compensation of damages.
Civil disputes arising out of relations involving individuals, family or labour relations shall be considered by civil courts under the procedure stipulated by the CCP, adopted on 11 January 1999 and last amended on 15 July 2010. Civil courts consider disputes arising out of civil, family, labour, housing, land relations, relations with regard to using land resources as well as the environment, if at least one of the parties to the dispute is an individual (not a private entrepreneur).
IP is a separate area of law, where the civil court, represented by Patent Board of the Supreme Court, has exclusive jurisdiction over intellectual property.
In the event of a conflict of jurisdiction, the civil courts will have priority if not otherwise specifically provided by the law.
i Overview of court procedure
As stated supra, the CEP provides the legal basis for the procedure to be followed when the case is considered by an economic court, whereas the rules of civil procedure are laid down in the CCP. More detailed procedural regulations on particular matters are laid down in the resolutions of the plenums and presidiums of both supreme courts.
The main institutional difference between the two systems of courts is that civil courts do not have an appeal instance and, therefore, the judgment of the court of first instance may only be challenged in cassation or through the supervisory procedure.
ii Procedures and time frames
Procedures and time frames in economic courts
Legal procedure in the economic court is adversarial in nature and based on the principle of equality of rights of the parties. Court hearings in the economic courts are public in most cases.
Cases in economic courts can be considered both individually and collegially. In most cases in the first instance, even if it is heard in the Supreme Economic Court, the dispute will be resolved by a single judge.
Economic courts of appellate, cassation and supervisory instances shall consider cases collegially. Appeal and cassation courts normally sit in panels of three judges, whereas the supervisory instance is represented by a presidium or plenum of the Supreme Economic Court.
In accordance with the general rule of jurisdiction the action is to be brought to the economic court at the defendant's location or place of residence. A claim against a defendant whose place of location is not known can be submitted to the court at the location of his or her property or at his or her last known location in the republic of Belarus. A counterclaim shall be always submitted to the court that considers the primary claim.
The claimant and the respondent are considered as the parties of the case and shall have equal procedural rights to present their case and bear equal procedural duties.
Third persons may participate in the case if it affects or may affect their legal rights by means of either submitting their independent claims concerning the subject matter of the dispute or without making such a claim.
Persons participating in the case may familiarise themselves with the case materials, propose disqualifications and make applications, present evidence, ask questions to other persons participating in the case, to witnesses and experts with the court's permission, submit written and oral explanations to the court, and bring their arguments in regard to all questions arising in the course of the case being heard.
Besides the persons participating in the case, witnesses, experts, interpreters, specialists and representatives may take part in the court proceedings.
Belarusian legislation provides for two means of settling the dispute in the economic court, namely, (1) simplified documentary procedure and (2) action procedure.
Simplified procedure
The simplified procedure is applicable only to disputes dealing with collecting money and execution upon property. Within the simplified procedure the court does not hold court hearings and resolves the dispute upon the examination of written documents submitted by the parties.
It is, in particular, possible to initiate the simplified documentary procedure if the creditor possesses a written document whereby the debtor expressly acknowledges an obligation to pay. In such a situation, the creditor may submit an application to the court along with the documents confirming the claim and the document confirming that a copy of the application was sent to the debtor.
The court considers the application within 20 days from the date the application is received. If all formal requirements with regard to the application and to the documents attached are observed and the debtor does not object in written form (i.e., submits a negative response to the application) the court shall issue an order awarding the creditor the claimed amount, subject to further voluntary execution by the debtor or enforcement procedures initiated by the creditor.
If the debtor objects to the application for simplified procedure, he is generally expected to provide reasons; however, in practice a pure statement that there is a dispute with regard to the obligation may serve as a sufficient ground for the court to reject the application and direct parties to the action proceedings (see infra).
If the application for initiating the simplified procedure is returned by the court the creditor may proceed with action proceedings and the state fee paid for filing the application for the simplified procedure shall be returned to the applicant.
Action proceedings
Action proceedings are initiated by submitting a claim to the court. The judge who is appointed to consider the claim shall decide within five days whether the claim complies with the formal requirements set forth in the CEP If all formalities are duly observed, the judge issues an order on accepting the claim and initiating action proceedings. By this order the judge shall set the date for preliminary court hearing that shall be held within 15 days from the date the claim was received by the court. The order is sent to the parties or their representatives by registered mail.
Both parties are called for the preliminary court hearing. However failure of a party to appear in the preliminary court hearing does not prevent the court from proceeding as a matter of principle.
In the preliminary court hearing the judge undertakes measures to conciliate the dispute and guide the parties to amicable settlement, decides on the applications submitted (e.g., application for calling witnesses), defines whether the evidence submitted by parties is satisfactory for rendering the decision, considers other questions and performs other necessary procedural actions.
As the result of the preliminary hearing, the judge shall issue the order on appointment of the case for the main hearing.
Under Article 175 of the CEP, the case in the commercial court is to be considered within a month from the date the court issued an order on appointment of the case for the main hearing if both parties are located in
The higher instances have also tight time frames for considering appeals. Thus the appeal instance has to deliver its decision within 15 days after the date when the appeal was filed with the court (the appellant has only 15 days after the decision of the court of the first instance was announced for filing the appeal). Exceptionally, the chairman of the appeal court or his deputy may grant an additional 15 days to consider the appeal.
The cassation appeal can be submitted by the appellant within one month after the contested decision became effective. The cassation instance has than one month to consider the appeal without the possibility of prolongation.
Finally, supervisory appeal may be filed within one year after the decision in question came into force. The supervisory process is two-tier and somewhat complicated but overall it shall not take more than five months in cases when the supervisory protest was submitted to the presidium or plenum of the Supreme Economic Court.
In practice, all the aforementioned terms are strictly observed by the judges and even if a judge has doubts on the sufficiency of evidence, the judge would tend to render the decision rather than apply for an extension of the time limit.
Procedures and timeframes in civil courts
Procedures and time frames in civil courts do not in principle differ much from those observed by economic courts.
The courts of the first instance normally consider the case with a sole judge, whereas the courts of cassation and supervisory instances operate in panels of three or more judges. The case in the first instance court under the general rule shall be considered within two months from the date when the claim was filed.
An appellant may file a cassation appeal, giving reasons, within 10 days from the date of receiving the decision, which shall be considered within one month thereafter unless prolonged for no more than two months by the chairman of the cassation court.
Supervisory appeals in civil cases could be filed within three years from the date when the contested decision entered into force and shall be considered one month after the respective case materials were submitted for examination to the court of supervisory instance.
Like the CEP, the CCP also provides for a possibility to use fast-track simplified documentary procedure and stipulates some specific procedural rules in relation to particular types of disputes, like cases on adoption of children, emancipation etc.
iii Class actions
Both commercial and civil procedural legislation allow consolidation of legal actions. It should be noted that the western doctrine, unlike the Belarusian approach, defines 'class action' not as 'consolidation of legal actions', but as 'a legal action undertaken by one or more people representing the interests of a large group of people with the same grievance' claim'.
Class actions in economic disputes
Consolidation of legal actions is regulated by Article 165 of the CEP. According to this Article, the claimant may consolidate different claims in the single application if they are interconnected either by their origin (legal facts that gave rise to such claims) or through evidence submitted by the claimant. Furthermore, the court may consolidate a number of similar cases to which the same persons are parties.
However, in practice, economic courts are usually very reluctant to accept consolidated claims and to consolidate proceeding on their own motion.
Class actions in civil disputes
Consolidation of legal actions is provided for by virtue of Article 250 of the CCP Under the CCP class actions are allowed when the parties have the claims that are related to one type of procedure. Consolidation of claims can be made either by the parties to the dispute or at the discretion of the judge in court.
Class actions in civil courts are mostly used by consumer rights protection organisations.
iv Representation in proceedings
As provided by Article 62 of the Constitution, everybody has a right to legal assistance for the purposes of performing protection of rights and freedoms including the right to use advocates and other representative in courts. According to Section 7 of the CEP and Section 9 of the CCP the following persons can participate in proceedings as representatives:
a statutory representatives of individuals: parents, spouses, custodians, etc.;
b executive bodies and personnel of legal entities; or
c advocates and attorneys, certified and licensed by the Ministry of Justice.
The representatives shall present to the court duly executed power of attorney or other documents, confirming their authority as prescribed by the legislation. By way of example, a power of attorney issued outside Belarus shall be certified by the notary and legalised or apostilled if the foreign country does not have a treaty on mutual recognition of official documents with Belarus.
v Service out of the jurisdiction
Due notification of the party (regardless of whether natural or legal) even if located outside
Belarus is a party to a number of international treaties that could be used for service of process to the party that has not its representative or place of business in
International treaties of universal character
a The Hague Convention on Civil Procedure of 1 March 1954;
b The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 15 November 1965;
c The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 18 October 1970; and
d The Hague Convention on International Access to Justice of 25 October 1990.
Regional conventions (involving CIS countries)
a Convention for settlement of disputes connected with commercial activities (Kiev Convention) of 20 March 1992;
b Convention on legal assistance and legal relations on civil, family and criminal matters (Minsk Convention) of 22 January 1993; and
c Convention on legal assistance and legal relations on civil, family and criminalm matters (Kishinev Convention) of 7 October 2002.
Bilateral agreements for legal assistance on civil matters
Belarus has effective agreements with 14 countries (as of December 2010): Italy, Hungary, Cuba, the Czech Republic, Vietnam, Poland, Latvia, Lithuania, Finland, Bulgaria, Iran, Slovakia, Syria and China.
The court is also free to use any appropriate means to ensure that the respondent was duly notified about the court hearing and has sufficient time to prepare and present its case. In the absence of an international treaty, the court may act in accordance with the generally accepted international principles of courtoisie internationale and use diplomatic channels for service of process outside its jurisdiction.
Belarusian courts will accept a method of service recognised by a foreign court, provided that the defendant has enough time to prepare a defence and has the possibility to present arguments before the court. As a general rule, the foreign party shall be deemed to be properly notified if the documents were served by any appropriate means and mandatory requirements established by the Hague Service Convention or any other applicable international treaty were fulfilled.
vi Enforcement of foreign judgments
Rules on the enforcement of foreign judgments are determined at both national and international levels. Belarus is a party to a number of bilateral and multilateral treaties, including those mentioned in Section III, (v), supra. Recognition and enforcement shall be granted upon examination of the written application filed with the court by a party in whose favour the decision was made. Foreign judgments shall not be reviewed per se by Belarusian courts provided that all of the procedural requirements have been met.
The Belarusian courts would accept jurisdiction of the foreign court provided that the case is not within the exclusive competence of Belarusian courts under Belarusian legislation or the international treaty to which Belarus is a party.
Exclusive jurisdiction of Belarusian courts to consider disputes involving foreign parties is established in Article 236 of the CEP and Article 48 of the CCP and includes disputes over state property and real estate, establishment, registration, liquidation and bankruptcy of Belarusian companies, patrimonial disputes, etc.
Enforcement of foreign judgments in commercial courts
The procedure of recognition and enforcement of foreign judgments granted in commercial disputes is allocated in a number of international and bilateral treaties and conventions to which
Foreign judgments arising out of commercial (economic) disputes and insolvency cases are recognised and enforced according to Chapter 28 of the CEP by virtue of an international treaty to which
Notably, decisions of Russian arbitration (commercial) courts enjoy the preferential regime and are directly enforceable in Belarus without recognition procedure in accordance with the Agreement between the Republic of Belarus and the Russian Federation on Mutual execution of Court Acts of 17 January 2001.
Enforcement of foreign judgments in civil courts
Foreign judgments arising out of civil disputes involving individuals, family or labour cases are recognised and enforced in
vii Assistance to foreign courts
Assistance to foreign courts granted by commercial courts
Belarusian commercial courts grant mutual assistance under the procedures set by the international principles of law, international (regional) conventions, agreements, treaties, bilateral and multilateral treaties and the legislation of the Republic of Belarus. Instructional Guidelines on Legal Assistance when Considering Commercial Disputes and Enforcing Foreign Judgments with Participation of Foreign Persons were approved by the Resolution of the Presidium of the Supreme Economic Court of 18 October 2006 No. 90.
Mutual assistance can be accomplished in the following forms: service of documents, receiving and forwarding evidences (interrogation of witnesses, receiving written evidence, accomplishing expert examinations, on-site inspections, etc.), providing the official legal information on the effective legislation in a foreign country and the practice of applying it, and ascertaining the content of the foreign law.
As a general rule, assistance will be rendered on the basis of an application forwarded by a competent court of an enquiring country and drawn up in compliance with the requirements of a respective treaty, and if no treaty is concluded between the states, in compliance with the national legislation.
Recently, the Supreme Economic Court of the
According to Article 244 of the CEP, assistance will not be granted by the economic court if it would violate the public policy of the
Assistance to foreign courts granted by civil courts
Civil courts of the
Under Article 560 of the CCP the court shall refuse procedural assistance if that would contradict the sovereignty or threaten the security of the state, or would not fall within the court's competence.
viii Access to court files
Under Article 21 of the CEP and Article 17 of the CCP, hearings in the courts are open. However there are a number of cases when public access can be limited. Such cases include those unveiling information on state secrets, commercial secrets or other information disclosure of which is prohibited by law. In civil courts the hearings can be closed when considering the information that constitutes adoption secret.
There is no possibility for the public in Belarus to obtain information about ongoing proceedings as this information can not be tracked via the Internet and only representatives of the parties to a dispute can apply to the court in order to receive the permission of the court to examine the materials of the case and make copies at their own expense.
Court files on the proceedings that have already been completed can be given to a person (literally taken outside the court premises) only with the permission of the chairman of the court or their deputy. A person can receive access to court files to examine the files on court premises with the permission of the chairman of the court, their deputy, the chief of the administrative support centre or the judge.
Reviews of court cases are published in periodicals (e.g., Bulletin of the Supreme Economic Court of the Republic of Belarus) and in other mass media as well as in legal information databases (e.g., Consultant Plus: Belarus).
ix Litigation funding
Belarusian legislation does not provide for a possibility of a litigation to be supported by a disinterested third party. The commencement of legal proceedings is possible only if the claimant attaches a proof of paying the state fee to the application filed with the court. Under the Tax Code of the Republic of Belarus (special part) dated 29 December 2009 state fees shall be paid either by a person that addresses the court or by its authorised representative.
IV LEGAL PRACTICE
i Conflicts of interest and Chinese walls
Professional conduct of lawyers in Belarus is regulated by two main legal acts: the Rules of Professional Ethics of Persons that Render Legal Services (2007) and the Rules of Professional Ethics of Advocates (2001), both approved by the Ministry of Justice of the Republic of Belarus, which is a supervising state authority of the legal profession.
Under both sets of rules lawyers may not render legal services to parties whose interests are contrary (conflict of interest) within one dispute in court or, more generally, within one deal or transaction.
If there is a conflict of interest, the lawyers should choose a party whose interests they are going to represent. With the consent of the parties, a conflicted lawyer can only promote the reconciliation of parties but may not represent both parties in the dispute.
If after the conclusion of the agreement for provision of legal services with the client new circumstances giving rise to a conflict of interest emerge, the lawyer shall inform the client about such circumstances or avoid the contract and ensure that the client is given advance notice to make it possible to consult with another lawyer.
Lawyers should keep secret confidential information about the activity of a client received in rendering legal services during and after contractual relations.
Without the consent of the client, a lawyer may only disclose information received from the client at the request of a court, prosecution or investigation office in connection with criminal or civil cases under consideration. The lawyer should also inform authorised bodies about executed contracts if so required for the prevention of money laundering and financing of terrorist activity.
If not otherwise provided by the contract with the client, confidentiality of information shall cover:
a all materials and documents collected or prepared by lawyers during the case;
b information the lawyer has received from the client;
c the nature of legal consultations made directly to or intended for the client; and
d information connected with commercial activity, access to which is limited according to the legislation of the
Confidentiality of information includes obligation of a lawyer to keep information from disclosure and use, and also prohibition on use for private purposes or interests of the third party.
No Chinese walls or information barriers may be legally used to circumvent conflict of interest rules.
ii Money laundering, proceeds of crime and funds related to terrorism
Lawyers' obligations in relation to the prevention of money laundering and financing terrorist activity are set up in the Law of the Republic of Belarus of 19 July 2000 No. 426-3 on Measures for the Prevention of Money Laundering and Financing of Terrorist Activity.
The law defines the main operations subject to special control in Belarus through the following conditions, at least one of which shall be met:
a if a person carrying out a financial operation has suspicions that a financial operation is carried out for the purposes of money laundering or financing a terrorist organisation, including a financial operation that does not correspond to the purposes of the activity of the person that are stated by constituting documents;
b if in respect of a person that carries out financial operation there is information about his participation in terrorist activity or a person that carries out a financial operation is under the control of persons that carry out terrorist activity;
c if a person carrying out financial activity is registered, has its place of residence or place of location in a state (in a territory) that does not participate in international cooperation in the field of the prevention of money laundering and financing of terrorist activity or there is information of his carrying out operations through accounts in a bank or non-bank credit organisation registered in the mentioned state (in the mentioned territory); or
d if the financial operation is equal to or exceeds 2,000 basic units (approximately €18,400) for individuals or is equal to or exceeds 20,000 basic units (€184,000) for legal entities and private entrepreneurs and also is one of the following financial operations: financial operation with cash monetary funds, financial operation with bank accounts and deposits of clients, financial operation of international payment and money transfer (postal, telegraph, digital); financial operation with moveable and real property; financial operations with stock; financial operations on loans and credits, connected with international transfers; financing operation on transfer of an obligation and cession.
According to the law, legal entities and individual entrepreneurs rendering legal services, and advocates carrying out on behalf or by order of their clients financial operations connected with the sale of real property, cash management, stock or other property, disposal of bank accounts or safe keeping accounts; establishment of legal entities or its separated departments or participation in its management, acquisition or sale of enterprise as property complex should:
a register financial operations that are subject to special control in a prescribed form and file it with the financial monitoring body;
b suspend financial operations if at least one of the parties is a person participating in terrorist activity or if the person carrying out the financial operation is under control of persons carrying out terrorist activity;
c at the demand of the financial monitoring body, submit information necessary for carrying out its functions; and
d keep duplicates of special forms and documents connected with carrying out financial operations subject to special control for no less than five years after the day of their filling.
The control of the activities of lawyers and advocates related to compliance with the legislation on the prevention of money laundering and financing of terrorist activity is carried out by the Ministry of Justice.
If they breach an order for registration or fail to inform authorised bodies about financing operations subject to special control, lawyers can incur administrative liability in the form of a warning or a monetary fine.
V DOCUMENTS AND THE PROTECTION OF PRIVILEGE
i Privilege
Belarusian law does not contain any specific provision in relation to the protection of privilege of lawyers and advocates in Belarus.
Some privileges of advocates and lawyers can be inferred from norms on the confidentiality of information received from the client that are stipulated in the Rules of Professional Ethics of Advocates and Lawyers (see Section IV, sub-section (i), supra).
Some additional privileges of advocates are envisaged in the Law on Advocacy and are directly connected with the right and obligation to keep legal advice confidential. Thus under the law an advocate may not:
a divulge information that is legally confidential (the fact that the client has consulted an advocate, the content of interviews, documents that have been examined and drawn up and other information connected with providing legal assistance, and also information about the private life of client), while providing legal services as well as after finishing relations with the client;
b give evidence and explanation of legally confidential matters; or
c carry out actions threatening the relationship of trust with the client.
Advocates can disclose information entrusted to them by the client to the extent that they consider necessary when:
a the consent of the client is given, if disclosure of such information is necessary for providing legal assistance;
b supporting the advocate's position when settling a dispute with the client or for supporting the advocate's own defence in an action and based on actions in which the client has participated; and
c consulting with other advocates, if the client does not oppose such consultations.
In-house lawyers may not disclose information about employers that became known to them while executing labour duties if this information is a trade secret of this organisation according to the local rules of this organisation. However, as state bodies authorised with control functions may familiarise themselves with information forming trade secrets of market participants, this privilege of in-house lawyers in reality is not guaranteed.
ii Production of documents
According to the CEP, each party shall prove its own case and the circumstances on which it argues its claim or defence. Belarusian law does not provide for any mandatory disclosure or exchange of documents.
A party is free to choose any appropriate evidence to prove its position in court. This may include any documents — written evidence — containing information about circumstances that may be relevant for the case including acts, contracts, business correspondence, other documents and materials performed in digital form, graphic writing, received by fax, digital or other means of communication or in other way that allows acknowledgement and verification of the document.
All documentary evidence that is fully or in part drawn up in a foreign language shall be accompanied with a translation into Russian or Belarusian and duly certified.
Documents shall be produced in the original or as a duly certified copy.
If the party does not have particular evidence in its possession it may file an application to the court to request the person having the evidence to produce it before the court. However, as there are no substantial penalties for ignoring such court request it often does not have the required effect and the evidence may still be detained.
VI ALTERNATIVES TO LITIGATION
i Overview of alternatives to litigation
Alternative dispute resolution is not yet widespread in
ii Arbitration
Arbitration in Belarus is governed by the Law of the Republic of Belarus No. 279 — Z on International Commercial Arbitration dated 9 July 1999 (last amended on 27 December 1999, 'the Arbitration Law'). This is based on the 1985 UNCITRAL Model Law on International Commercial Arbitration, although it does have certain variations. In 2008 the drafting of the new law on domestic arbitration started. The law has not been adopted and currently is at the stage of passing through Parliament.
At present there are two active arbitration institution in Belarus that are handling both international and domestic commercial disputes in Belarus: the International Arbitration Court of the BelCCI and the newly incorporated Chamber of Arbitrators of the Union of Lawyers.
An award granted by the IAC can be annulled to the Supreme Economic Court of the
The list of the grounds under which the award can be annulled is given in Article 255 of the CEP, which replicates Article 34 of the UNCITRAL Model Law.
Foreign arbitration awards are recognised and enforced in Belarus in the same way as foreign court judgments. Economic courts are competent to consider the application of the award in an economic (commercial) dispute, whereas civil courts are responsible for the recognition and enforcement of awards on private civil disputes.
In the same way as with foreign court judgments, economic courts may use not only the international treaty but also the reciprocity principle as a legal ground for granting recognition and enforcement. However, civil courts may only recognise and enforce the award if there is an international treaty in place. As Belarus is a party to the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitration Awards, no major problems with enforcement should be expected. The only important issue to take into account when seeking the recognition and enforcement of the foreign arbitration award against the state or state-owned companies is that sometimes the concept of public policy is construed very broadly and may be invoked as a ground for refusal.
Under both the CCP and CEP, a foreign arbitration award (likewise a foreign court decision) must be submitted for recognition and enforcement within three years from the date of its entering into legal force.
iii Court-attached conciliation
The procedure of court-attached conciliation was introduced in the CEP in 2004 and became a popular means of ADR in
iv Mediation
There is no obligatory mediation or other alternative dispute resolution tool to be used by the parties before submitting their case to the court unless the parties agree otherwise in their contract.
So far, ADR, including mediation, is not widely used. Even if the parties do have an obligatory pretrial procedure stipulated in their contract, in most cases they will not involve a third neutral and will limit themselves to direct negotiations or refrain from any correspondence with each other.
In accordance with the effective legislation the conciliation procedure is voluntary and conducted by court specialists. The amicable settlement can be fixed in the amicable agreement being subject to the confirmation by the judge and thereby having the legal force equal to that of a judgment in case any of the parties refuse to fulfil it voluntarily. 50 per cent of the state fee paid upon submission of the claim is returned to the claimant from the state budget if conciliation succeeds.
Taking into account the perceived success of court-attached conciliation and increasing interest among the public in ADR, one could expect that in the near future mediation might become a real alternative to the resolution of disputes in court or through arbitration. Moreover, a large step in this direction was made within the past year. The preparation of a draft Law on Mediation was included in a law-making plan of the governmental body that prepares the draft laws for Parliament (namely, the National Centre of Law-drafting Activity of the President of the Republic of Belarus). The Centre of Resolving Conflicts of the Belarusian Republican Union of Lawyers was incorporated in June 2010. This is the first such institution in the legal history of the Republic of Belarus. At the moment, the Centre is providing education in the sphere of mediation and takes an active part in popularising mediation in Belarus.
VII OUTLOOK & CONCLUSIONS
The CCP and the CEP did not receive any substantial amendments in 2010.
The Bill on Altering and Amending Separate Codes of the Republic of Belarus on the Issues of Improvement of Commercial Proceedings was prepared and presented in the Parliament of the Republic of Belarus in 2010.
The main concept of the Bill is the improvement of alternative forms of dispute settlement — writ proceedings and judicial mediation — to reduce the number of disputes settled in legal proceedings.
Thus, as a measure promoting pretrial settlement of disputes by the parties, the Bill stated provisions on the necessity of mandatory claims (written proposals on voluntary settlement of disputes) on disputes between legal entities or individual entrepreneurs, unless otherwise provided for in legislative acts or the contract. From the point of view of the drafters of the Bill, the establishment of mandatory claims will allow business entities to decide controversies to their mutual benefit, with significant reductions of time and a reduction in the funds paid in state duties.
The Bill modifies the procedure of mediation. The possibility of using mediation is provided not only at the stage of preparation of the case for investigation, but also at other stages of commercial process. The procedure for appointing a mediator is elaborated on: a mediator can be appointed both at request of one or both parties, and at the initiative of the court.
The first step towards online justice was made with the introduction of the possibility to submit applications, complaints and other documents to the commercial court in electronic form. This will allow not only the formation of an 'electronic case' database, but it will also enable users to submit documents to the commercial courts of the Republic of Belarus from any locality. The development of electronic patterns of procedural documents is planned.
All measures taken within the frameworks of the optimisation of the commercial procedure, aimed at the improving dispute settlement methods as an alternative to legal proceedings are directed at providing to the parties the possibility of settling settle a dispute under acceptable reciprocal conditions.
The review is prepared by partner Olga Grechko and associate Kira Bondareva of Law Firm “Vlasova, Mikhel and Partners”.
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