Ивакин В.Н. Оформление полномочий адвоката-представителя в гражданском и арбитражном процессе: проблемы определения порядка

Аннотация: Attorney representative attendant in civil and arbitration proceedings can carry out activities only on the basis of the powers established under some or other procedure. In this connection the problems of determining of the way of their establishing are the issue of the day, have practical importance and require to be studied in a more thorough way as so far as it is done. Powers differ from rights by three essential characteristic features, namely, a) powers are legal capabilities to take proceedings not on one’s own behalf but on behalf of other person; b) powers are derived from rights; c) accrual and further existence of powers of the representative, in general, depend on volition of the person being represented. With regard to the above characteristic features, powers should be distinguished from rights, in particular, not to confuse the former with common rights of persons involved in a case and representing legal capabilities to take proceedings on their own behalf. The right of an attorney to appear in court as a representative is ascertained by authorization certificate (order) issued by the relative bar. To carry out the so called handling acts (i.e., acts relative to handling of statutory remedies, in particular, of civil complaint or claim), attorney representative attendant shall have powers of attorney document with indication of the corresponding special powers and authorities. As distinct from the western countries, during recent years there has appeared a tendency in this country expressed in theoretical appeals and practical actions aimed at toughening of the procedures for establishing of powers of attorneys representatives in civil proceedings. Meanwhile, unreasonable formalization of a process always has adverse impact on the interests of persons involved in a case and, above all, on citizens. Even though the problem of procedural establishment of powers of attorney representative in civil proceedings in clearly solved by law the state of affairs in arbitration proceedings is different. Powers of attorney to plead a case in arbitration court are ascertained in compliance with the federal law. In connection with non-availability of specific procedures for establishment of powers of attorney in arbitration remedial legislation, present-day juridical literature contains different opinions concerning the procedures for establishment of such powers. The following state of affairs is hardly justified when an attorney is allowed as a representative in arbitration proceedings under power of attorney, while to participate in civil proceedings it is enough to produce an authorization certificate. The simplified procedure for establishment of powers of attorney in civil proceedings is determined by the fact that such attorney delegated by the state to perform the function of protection of rights and legitimate interests of citizens and organizations performs public function and acts as a legal intercessor and not just as a private legal representative of a person involved in the case. Besides, the requirement to produce an authorization certificate rather than a power of attorney significantly facilitates the process of establishment of powers of any attorney which is of no small importance from political standpoint since any attorney may plead a significant number of civil cases with different principals in courts of general jurisdiction. However, public function of protection of rights and legitimate interests of other persons is performed by attorneys both in civil and arbitration proceedings and their participation in the latter is absolutely the same as participation in the former. In this connection it should be provided that powers of attorney to appear in arbitration court as a representative are established by an authorization certificate.

Abstract: Attorney representative attendant in civil and arbitration proceedings can carry out activities only on the basis of the powers established under some or other procedure. In this connection the problems of determining of the way of their establishing are the issue of the day, have practical importance and require to be studied in a more thorough way as so far as it is done. Powers differ from rights by three essential characteristic features, namely, a) powers are legal capabilities to take proceedings not on one’s own behalf but on behalf of other person; b) powers are derived from rights; c) accrual and further existence of powers of the representative, in general, depend on volition of the person being represented. With regard to the above characteristic features, powers should be distinguished from rights, in particular, not to confuse the former with common rights of persons involved in a case and representing legal capabilities to take proceedings on their own behalf. The right of an attorney to appear in court as a representative is ascertained by authorization certificate (order) issued by the relative bar. To carry out the so called handling acts (i.e., acts relative to handling of statutory remedies, in particular, of civil complaint or claim), attorney representative attendant shall have powers of attorney document with indication of the corresponding special powers and authorities. As distinct from the western countries, during recent years there has appeared a tendency in this country expressed in theoretical appeals and practical actions aimed at toughening of the procedures for establishing of powers of attorneys representatives in civil proceedings. Meanwhile, unreasonable formalization of a process always has adverse impact on the interests of persons involved in a case and, above all, on citizens. Even though the problem of procedural establishment of powers of attorney representative in civil proceedings in clearly solved by law the state of affairs in arbitration proceedings is different. Powers of attorney to plead a case in arbitration court are ascertained in compliance with the federal law. In connection with non-availability of specific procedures for establishment of powers of attorney in arbitration remedial legislation, present-day juridical literature contains different opinions concerning the procedures for establishment of such powers. The following state of affairs is hardly justified when an attorney is allowed as a representative in arbitration proceedings under power of attorney, while to participate in civil proceedings it is enough to produce an authorization certificate. The simplified procedure for establishment of powers of attorney in civil proceedings is determined by the fact that such attorney delegated by the state to perform the function of protection of rights and legitimate interests of citizens and organizations performs public function and acts as a legal intercessor and not just as a private legal representative of a person involved in the case. Besides, the requirement to produce an authorization certificate rather than a power of attorney significantly facilitates the process of establishment of powers of any attorney which is of no small importance from political standpoint since any attorney may plead a significant number of civil cases with different principals in courts of general jurisdiction. However, public function of protection of rights and legitimate interests of other persons is performed by attorneys both in civil and arbitration proceedings and their participation in the latter is absolutely the same as participation in the former. In this connection it should be provided that powers of attorney to appear in arbitration court as a representative are established by an authorization certificate.