Stasiv N. Civil proceedings in cases of granting permission to enforce the decisions of arbitration courts

The dissertation is devoted to the proceedings in cases of granting permission for enforcement of decisions of arbitration courts. The genesis of enforcement of the court of arbitration decision was studied. The legal nature of the specified type of proceedings is described. The procedural status of the participants in the case on the issuance of a writ of execution on the decision of the arbitration court was described. The powers of the court at the stages of opening proceedings and consideration of the case merits were analyzed. The scientific novelty of the dissertation is that it is the first in Ukraine comprehensive study of civil proceedings in cases of granting permission to enforce the decisions of arbitration courts. For the first time in the dissertation was formulated a unified conceptual approach to understanding the procedure for granting permission to enforce the decision of the arbitration court as an independent simplified type of non-litigious civil proceedings in the Court of Appeal of general jurisdiction, which considers cases of establishing grounds for enforcement the court of arbitration decisions. Simplification of the civil procedural form within the proceedings on granting permission to enforce the decision of the court of arbitration is in the following: the subject of the appeal (the party to the arbitration proceedings in whose favor such decision was made); the form of the appeal (application for issuance of a writ of execution for enforcement of the decision of the arbitration court is the only type of application initiating the proceedings, which does not contain among its details information on the grounds of the applicant's appeal to the court of general jurisdiction); instance jurisdiction (the application is considered by the appellate court as a court of first instance), territorial jurisdiction (the application is considered by the court at the place of arbitration); shortened terms of consideration (15 days from the moment of receipt of the application in court); the impossibility of applying a number of procedural institutions (in particular, the appointment of expertise, securing a claim or evidence, etc.). Author suggested her own definitive apparatus and defined the legal status of participants of a case on granting of the permission for compulsory execution of the decision of arbitration court defined in part 5 Article 42 of the Civil Procedural Code of Ukraine. Thus, the obligatory participants in the case of granting permission to enforce the decision of the arbitration court are the applicant and the debtor. Bearing in mind the principle of dispositiveness, the need to amend Article 485 of the Civil Procedural Code of Ukraine and fixing in this article special rights of the applicant such as: the right to refuse the application submitted by him for the issuance of a writ of execution for enforcement of the decision of the arbitration court; the right to file a petition to leave without consideration the application submitted by him for the issuance of a writ of execution for the enforcement of the decision of the court of arbitration. It is noted that a special ground for suspending the proceedings on the application for a writ of execution on the decision of the court of arbitration is the impossibility of considering this case before resolving the case on cancellation of the arbitral award, the applicant requests enforcement in his application. The impossibility of applying to the application for the issuance of a writ of execution on the decision of the arbitration court general grounds for suspension of the proceedings (Articles 251, 252 of the Civil Procedural Code of Ukraine) except for the grounds provided for in paragraph 1 of Part 1 of Article 251 of the Civil Procedural Code of Ukraine. Author suggested foreseeing the following additional grounds for refusing to issue a writ of execution for the enforcement of the decision of the court of arbitration, by making appropriate changes to part 1 of article 486 of the Civil Procedural Code of Ukraine, in particular: 1) «the party was not duly notified of the election (appointment) of the arbitration court or the date, time and place of the arbitration or for other valid reasons could not provide the arbitration court with its explanations»; 2) «the decision of the arbitration court is executed». If the decision of the arbitration court is partially executed, the issuance of a writ of execution may be denied only in the part of the decision that has already been executed by the debtor. It was established that the rules of articles 353, 487 of the Civil Procedural Code of Ukraine provide for the possibility of appeal against the decision to refuse to issue a writ of execution for enforcement of the decision of the arbitration court. At the same time, the appeal against the decision to issue a writ of execution against the decision of the arbitration court is not provided by law.