The legal validity of the settlement agreement
There is nobody not a secret that one of the methods of conciliation and termination of legal relationship of a settlement agreement. The settlement agreement is based on the principles of mutual concessions of the parties and voluntary consent of each party. To oblige to conclude an amicable agreement impossible. The court may approve only such settlement agreement that is not contrary to applicable at the time of conclusion of the substantive law and does not violate the legitimate rights and interests of other persons (article 139 of the APC).
So how can you be in a situation when after a settlement agreement has changed the substantive rules of law governing "contentious relationship"? What takes precedence: the terms of a court-approved settlement agreement or the amendments?
The settlement agreement has "dual" nature. The reason is that, on the one hand, it acquires legal force only under condition of its "approval" by the court. Accordingly, the settlement agreement approved by court ruling, has all the attributes of a judicial act, including mandatory for all without exception of persons, and subject to immediate execution. In this case, if the parties have not expressly stipulated in it other legal consequences for the relevant relationship (including the principal obligation, which later was claimed in court the claim (claims), and additional), the agreement of the parties means a complete cessation of the dispute arising from this legal relationship. The subsequent advancement in the court of the new requirements from the same legal relationship, regardless of whether there was such a demand from the core or from the additional commitments are not acceptable (paragraph 15 of Resolution of the Plenum of the RF from 18.07.2014, № 50 "On reconciliation of the parties in the arbitration process").
On the other hand, the settlement agreement recognizes not only the procedural document, but the transaction is in the plane of substantive law, because in fact it transformirovalsya the original "controversial" obligation. Therefore, it shall apply the rules of civil law on contracts, including rules on freedom of contract (article 421 of GK of the Russian Federation) (paragraph 9 of the Resolution of Plenum of the RF from 18.07.2014, № 50 "On reconciliation of the parties in the arbitration process", the Definition of the armed forces from 14.09.2015 year No. 309-ES-15-3840).
As a General rule, enshrined in article 422 of the civil code, the terms of the contract remain in force, even if it passed a law containing mandatory rules for the parties other than those that were in force during conclusion of the contract. With the exception of cases when the law establishes a reservation on the extension of its action on relations arising from previously concluded contracts. This provision applies to both imperative and dispositive norms (p. 6 resolution of the Plenum of the Russian Federation from 14.03.2014, № 16 "On the freedom of contract and its limits").
It seems that the rule about peremptory norms may not apply to the settlement agreement without regard to its specificity, i.e. the simultaneous submission of procedural and substantive law. In our view, in contrast to other civil – legal transactions (contracts), "further fate" of the settlement agreement depends on whether amendments to the legislation of the Novella, having the opposite effect on the enforceability of the settlement agreement. This is due, primarily, in the absence of procedural law rules as the basis of revising the terms of the settlement agreement, the entry into force of the civil law that distribute its action on the relations of the parties arising before. Second, the voluntary decision of the parties at the conclusion of a settlement agreement on certain conditions. Third, binding for execution by, vested in the determination of approval of the settlement agreement.
In view of the foregoing, we consider in such a situation, there are several possible options for its development:
1) If these changes of substantive law do not impede or not impede the implementation of the settlement agreement as a judicial act, and the parties have no joint agreement about the need to "update" its terms, the parties must continue to fulfill the conditions of the previously approved settlement agreement.
2) If the parties to the settlement agreement together Express the will and desire to bring its terms in line with the innovations of legislation, they have the opportunity to force part 1 of article 139 of the APC to sign a new settlement agreement that modifies the initial conditions, and to apply to the court for its approval. "In the definition of approving the new settlement agreement should be stated that the judicial act of approving the original settlement agreement, is not enforceable" (par.6 clause 7 of article 141 of the APC) (item 23 of the Resolution of the Plenum of the Russian Federation dated 18.07.2014, № 50 "On reconciliation of the parties in the arbitration process").
3) If one of the parties refuses to "adjust" the terms of the settlement agreement, and it actually cannot be implemented or its implementation is difficult because of the entry into force legislative changes relating to the order and method of its execution and that has retroactive, then, in our opinion, the interested party (as claimant or debtor) may apply to the court to modify accordingly the method and/or procedure of its execution.
However, you must remember that a change in the method and manner of enforcement of the act is an exceptional measure applied in case of adverse circumstances complicating execution of the judicial certificate. Current legislation does not provide the grounds for such change. Therefore, the arbitral Tribunal in each particular case requires taking into account all circumstances of the case to determine whether there is a valid need to change the way and order of execution of the judicial act (Determination of the RF armed forces 02.06.2017 G. N 309-ЭС17-6753).
Furthermore, it appears that by stating such a requirement, the person concerned is limited to the options of methods and order of execution of the settlement agreement "within the rules of innovation" legislation having retroactive, and at the same time serve the cause of the difficulty or impossibility of its implementation on the initial conditions. Otherwise, disturbed the balance of interests of the parties that may lead to abuse of right and violation of the principle of voluntariness of the parties. In our opinion, this approach is consistent with the position of the constitutional Court that the court shall have the right to decide within the law granted him the freedom of discretion, that given the tasks of proceedings in commercial courts to protect violated or disputed rights and legitimate interests of persons performing entrepreneurial and other economic activities and which, in particular, the parties of Executive production, in itself cannot be considered a violation of any constitutional rights and freedoms (the constitutional Court of the Russian Federation of 18.12.2003, No. 467).
Thus, the terms of the settlement agreement are closely linked with both the applicable substantive law at the time of its conclusion, and adopted after its conclusion, but retroactive. The value of peremptory norms and their relationship with the terms of the binding settlement agreement approved by court ruling, should be set in each case, as from these indicators depends on the need of committing (omission of) the parties to the settlement agreement, certain actions related to the execution of its terms.