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Peculiarities of Consideration of Economic Disputes with the Participation of Foreign Economic Entities

The Civil Code of the Republic of Belarus provides that foreign legal persons carry out entrepreneurial and other activity in the Republic of Belarus that is regulated by the civil legislation in accordance with the rules established by legislation for such activity of legal persons of the Republic of Belarus unless the legislation of the Republic of Belarus for foreign legal persons provides otherwise (article 1113 of the Civil Code).

Rules of the section VII of the Civil Code “International Private Law” are applied to the civil legal relations with a foreign element on a common basis, unless legal acts of the Republic of Belarus provide otherwise. The law of the legal person is the law of the country of incorporation of this legal person (article 1111 of the Code). Civil capacity of a foreign legal person is determined under the law of the country of incorporation of this legal person.

Rules of law contained in the international treaties of the Republic of Belarus that have entered into force are the part of the legislation valid in the Republic of Belarus and subject to direct application.

The procedure for the consideration of economic disputes and other cases with the participation of foreign persons is governed by the rules of Chapter 27 of the Code of Economic Procedure of the Republic of Belarus and the Law of the Republic of Belarus “On International Arbitration Court” of July 9, 1999 No. 279-Z.

Cases with the participation of foreign persons are considered by the economic court in the Republic of Belarus according to the rules established by the Code of Economic Procedure taking into account the peculiarities provided by Chapter 27. If an international treaty concluded by the Republic of Belarus establishes other rules than those contained in the Code and other legal acts, the rules of the international treaty are applied.

Foreign legal persons, foreign citizens and stateless persons enjoy procedure rights and bear procedure duties on equal basis with legal persons, individual entrepreneurs and citizens of the Republic of Belarus. However, the Government of the Republic of Belarus may establish counter-limitations (retorsions) in relation to the rights of citizens and legal persons from those states that have special limitations of rights of citizens and legal persons of the Republic of Belarus.

When submitting a claim to the economic court it is necessary to remember that the documents made up in a foreign language shall be accompanied by the duly attested translation to one of the state languages of the Republic of Belarus.

The documents issued, drawn up or attested by authorized bodies of foreign states outside the Republic of Belarus according to legislation of foreign states in relation to legal persons, individual entrepreneurs and citizens of the Republic of Belarus or foreign legal persons, foreign citizens and stateless persons are accepted by the economic courts of the Republic of Belarus if they are legalized or have an Apostil unless international treaties of the Republic of Belarus stipulate otherwise.

Economic court in the Republic of Belarus shall leave the claim without consideration if a foreign court considers the case between the same parties with the same dispute, about the same subject matter and in connection with the same grounds, on condition that the consideration of this case is not under the exclusive jurisdiction of the economic courts of the Republic of Belarus.

The court shall terminate the case proceedings if there is a decision of any foreign court that has entered into force and that was taken in relation to the dispute between the same parties, about the same subject matter and under the same grounds, on conditions that the consideration of this case is not under the exclusive jurisdiction of the economic courts of the Republic of Belarus or there is no reason to refuse the recognition or enforcement of the mentioned decision.

Civil legal disputes between any legal entities arising during foreign trade and other international economic transactions, as well as other disputes of economic character, may be submitted to an international arbitration court under an agreement between parties if the location of at least one of the entities is outside the Republic of Belarus and if the agreement of the parties provides the submission of the dispute to international arbitration court and it is not prohibited by the legislation of the Republic of Belarus.

National legislation of the Republic of Belarus regulating the principles and rules of consideration of cases with the participation of foreign persons by the courts of the Republic of Belarus includes, first of all, Civil Code of the Republic of Belarus (section VII), Code of Economic Procedure of the Republic of Belarus (chapter 27), Law of the Republic of Belarus of July 9, 1999 “On International Arbitration Court”, Law of the Republic of Belarus of July 23, 2008 “On Treaties of the Republic of Belarus”, Edict of the President of the Republic of Belarus of February 3, 1997 No. 121 “On Acceding of the Republic of Belarus to the European Convention on Information on Foreign Law and Additional Protocol to the European Convention on Information on Foreign Law”.

International treaties and agreements that courts shall take into account while considering economic disputes with the participation of foreign persons are the Agreement of the Council of Heads of the Governments of the CIS of March 20, 1992 “On Procedure of Settlement of Disputes Connected with Economic Activity”, Agreement of the Council of Heads of the States of the CIS, Council of Heads of the Governments of the CIS of December 24, 1993 “On Amount of State Duty and Procedure of Its Collection When Considering Economic Disputes between the Economic Entities of Different States”; Agreement of the Council of Heads of the States of the CIS of March 6, 1998 “On Procedure of Mutual Enforcement of the Decision of Arbitration and Economic Courts on the Territories of the Commonwealth Member-States”, Convention on Legal Assistance and Legal Relations on Civil, Family and Criminal Matters concluded in Minsk of January 22, 1993, Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of March 21, 1986, European Convention on International Commercial Arbitration of April 21, 1961; Convention on Recognition and Enforcement of Foreign Arbitral Awards, New York, June 10, 1958; UN Convention on Contracts for the International Sale of Goods, Vienna, April 11, 1980, UN Convention on the Limitation Period in the International Sale of Goods, New York, June 14, 1974, International Rules for Interpreting the Commercial Terms – Incoterms, Principles of International Commercial Contracts (UNIDROIT Principles), Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of November 15, 1965.

Bilateral agreements of the Republic of Belarus with other states that shall be kept in mind when considering the cases are the following:

  • Agreement between the Republic of Belarus and People’s Republic of China on Legal Aid in Civil and Criminal Matters of January 11, 1993;
  • Agreement between the Republic of Belarus and Lithuania on Legal Aid and Legal Relations in Civil, Family and Criminal Matters of October 20, 1992;
  • Agreement between the Republic of Belarus and Latvia on Legal Aid and Legal Relations in Civil, Family and Criminal Matters of February 21, 1994;
  • Agreement between the Republic of Belarus and Poland on Legal Aid and Legal Relations in Civil, Family and Criminal Matters of October 26, 1994;
  • Agreement between the Republic of Belarus and Vietnam on Legal Aid and Legal Relations in Civil, Family and Criminal Matters of September 14, 2000;
  • Agreement between the Union of Soviet Socialist Republics and Hungary on Rendering Legal Aid in Civil, Family and Criminal Matters signed in Moscow on July 15, 1958 (according to the succession, Law of the Republic of Belarus “On Succession of the Republic of Belarus in Relation to Some International Agreements on Legal Aid” of November 1, 2002 No. 140-Z);
  • Protocol on Changes and Amendments to the Agreement between the Union of Soviet Socialist Republics and Hungary on Rendering Legal Aid in Civil, Family and Criminal Matters signed in Budapest on October 19, 1971 (according to the succession, Law of the Republic of Belarus “On Succession of the Republic of Belarus in Relation to Some International Agreements on Legal Aid” of November 1, 2002 No. 140-Z);
  • Agreement between the Union of Soviet Socialists Republics and Cuba on Legal Aid in Civil, Family and Criminal Matters signed in Havana on November 28, 1984 ((according to the succession, Law of the Republic of Belarus “On Succession of the Republic of Belarus in Relation to Some International Agreements on Legal Aid” of November 1, 2002 No. 140-Z);
  • Agreement between the Union of Soviet Socialists Republics and Finland on Legal Protection and Legal Aid in Civil, Family and Criminal Matters signed on August 11, 1978 in Helsinki (according to the succession, Law of the Republic of Belarus “On Succession of the Republic of Belarus in Relation to the Agreement between Finland and USSR on Legal Protection and Legal Aid in Civil, Family and Criminal Matters signed on August 11, 1978 in Helsinki”);
  • Convention between the Union of Soviet Socialist Republics and Italy on Legal Aid in Civil Matters signed in Rome on January 25, 1979 (according to the succession, Law of the Republic of Belarus “On Succession of the Republic of Belarus in Relation to the Convention Between the Union of Soviet Socialist Republics and Italy on Legal Aid in Civil Matters” of October 29, 2004 No. 318-Z);
  • Agreement between the Union of Soviet Socialists Republics and Czechoslovak Socialists Republic on Legal Aid and Legal Relations in Civil, Family and Criminal Matters (according to the Law of the Republic of Belarus of November 1, 2002 No. 142-Z this Agreement is in force in relation to the Republic of Belarus and Czech Republic).

Besides, with a view to ensure accurate application of legislation while considering cases with the participation of foreign persons by the economic courts the Plenum of the Highest Economic Court of the Republic of Belarus adopted the Resolution of December 2, 2005 No. 31 “On the Practice of Consideration of Cases with the Participation of Foreign Persons by the Economic Courts of the Republic of Belarus” in which it gave short answers to general and special questions arising when the economic disputes with the participation of foreign entities are considered.