Pre-trial and out-of-court adjustment of disputes in the commercial process of Ukraine

Exhorting for the resolution of commercial disputes without going to court, the current legislation of Ukraine is characterized by different approaches to fixing and defining the categories of «pre-trial» and «out-of-court» of the dispute. Thus, the Constitution of Ukraine and the Commercial Procedural Code of Ukraine attach the possibility of pre-trial settlement of disputes. The rules of the claim procedure for the settlement of an commercial dispute are defined in Article 222 «pre-trial procedure for the realization of commercial and legal responsibility» of the Commercial Code of Ukraine. At the same time, the procedure for the pre-trial settlement of commercial disputes precedes the appeal to the court with the demand for the resolution of the dispute on the merits and provides for a voluntary preliminary agreement on it between the sides or cases when such measures are mandatory according to the law. Defining measures and methods in domestic legislation that the sides can resort to within such a procedure will only contribute to their practical application.

A popular out-of-court dispute settlement procedure today is the conciliation procedure of mediation. The legal principles and procedure for conducting mediation as an out-of-court procedure for conflict (dispute) settlement, the principles of mediation, the status of a mediator, requirements for its training and other issues related to this procedure are fastened the Law of Ukraine «On Mediation». As an out-of-court, procedure for settling commercial disputes (for example, mediation), it can be conducted before going to court, during court proceedings, or during the execution of a court decision.

The application in practice of procedures for resolving commercial disputes without going to court ensures, on the one hand, a reduction in the burden on the judicial system and judges, and on the other hand, it provides sides with an impartial and quick resolution of the dispute. And the application of procedures aimed at reconciliation involves the resolution of commercial disputes from the position of harmonizing the interests of the sides, which gives the sides the opportunity to independently resolve the conflict that has arisen between them.

The lack of a clear legislative definition of the categories of «pre-trial» and «out-of-court» dispute settlement creates conditions for their ambiguous interpretation and ineffective practical application.