Standard procedure according to the Commercial Procedure Code requires any lawsuit to be preceded by a mandatory complaint stage, where the interested party addresses its written claim to its counterparty. The court normally wouldn’t accept a lawsuit for consideration should the claimant fail to provide evidence of this mandatory phase fulfillment.
In practice, certain problematic issues arise. The Supreme Court provided clarifications.
In particular, it explained the following.
1. Counter-lawsuit requires standard claim stage to be observed, unless such counter-lawsuit is based on the same legal relationship as the initial one or, the response to the original claim has already outlined the essence of the counter-lawsuit.
2. No claim stage is necessary for:
- recovery proceedings against pledged property;
- damages claim;
- in case of an increase or decrease of the amount claimed;
- when replacing the defendant or engaging a co-defendant etc.
3. Negotiations may replace the mandatory claim procedure but only if terms, conditions and procedure for negotiating are determined in the contract. The mere indication that the parties will try to settle the dispute through negotiations is not enough.
4. The claim can be sent to the address specified in the contract, and not to the legal address. And, it does not have to be sent in a registered letter with a list of attachments, unless required by law or by the contract itself. Similarly, e-mailing is accepted only if such a method is provided for by the contract.
5. Differences in the amount claimed in the original claim and in the lawsuit are acceptable, since they may be due to arithmetic errors, or to the increase in the period of delay.
6. Should among the lawsuit documents’ set the complaining papers are missing, but the application itself indicates that the claim was sent, the court does not have the right to return it. It should leave the application without movement, giving time to correct the defects.
7. The right of the counter-party to refer to the pre-trial complaint procedure non-compliance should be realized in the first instance. If it hasn’t been done, this argument will not be accepted either in the appeal or in cassation.
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NAZALI TAX & LEGAL |