7 Arbitration Procedure and Assistance and Control by the Court

2020 ◽  
Author(s):  
Oda Hiroshi
Keyword(s):  
Fundamental Principle ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Institutional Rules ◽  
Arbitration Procedure ◽  
Russian Law ◽  
The Law ◽  
Model Law ◽  
And Control

This chapter focuses on the arbitration procedure. The Russian Law on International Commercial Arbitration does not contain detailed provisions on the procedure of arbitration as is the case with the UNCITRAL Model Law. Parties may freely agree on the procedure of arbitration provided that the agreement is compatible with the Law on International Commercial Arbitration. In the absence of such an agreement, the arbitration tribunal may conduct arbitration as they find adequate, including deciding on the admissibility, relativity, and significance of evidence. Therefore, details of the procedure are determined by the institutional rules. The fundamental principle of arbitral procedure is the equality of the parties. Each party must be given every possibility of presenting their own case. The chapter then looks at the provisions on the assistance and control of arbitration by the court introduced by the 2015 Reform.

scholarly journals Problems of determining a foreign element in dispute resolution in international commercial arbitration

2020 ◽  
pp. 361-365
Author(s):  
Volodymyr Nahnybida
Keyword(s):  
International Standards ◽  
Significant Part ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Commercial Activities ◽  
The Law ◽  
Model Law ◽  
Near Future ◽  
Theoretical Foundations ◽  
Commercial Disputes

The article is devoted to a comprehensive analysis of the problems of determining the arbitrability of disputes submitted for consideration and resolution to international commercial arbitration in terms of the presence or absence of a foreign element in such disputes. The theoretical foundations of the concept of a foreign element, arbitrability, criteria for determining the competence of international commercial arbitration regarding the resolution of a dispute are analyzed in detail. Also, the article, through the prism of the provisions of the UNCITRAL Model Law on International Commercial Arbitration, substantiates the need to improve article 1 of the Law of Ukraine «On International Commercial Arbitration». Based on theoretical and regulatory sources, court practice, the author concludes that it is necessary to supplement the provisions of the Law with norms on the possibility of transferring international commercial disputes to which individual entrepreneurs, states are parties, as well as disputes in which the place of fulfillment of a significant part of the obligations and the place with which the dispute is most closely related located in a country other than the place where the parties engaged in commercial activities. The author also points out that the mechanism for determining the presence of a foreign element in assessing international commercial disputes in accordance with the provisions of the current legislation does not fully comply with international standards enshrined in UN acts. Now the provisions of the Law of Ukraine «On International Commercial Arbitration» require additions both in terms of the subject composition (individual entrepreneurs, foreign states), and by other criteria, including the place of fulfillment of a significant part of the obligations and the place with which the dispute is most closely connected. Direct work is currently underway to improve the relevant provisions, in the near future they will be submitted to parliament for consideration and adoption.

4 Arbitral Institutions

2020 ◽  
Author(s):  
Oda Hiroshi
Keyword(s):  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Institutional Rules ◽  
The Law ◽  
Set Up

This chapter focuses on arbitral institutions. After the new Law on Arbitration came into effect on 1 September 2016, permanent arbitral institutions are to be established in accordance with the amended Law. The problem was what was going to happen to the existing arbitral institutions after the Arbitral Reform. The Law provides that existing arbitral institutions that do not fulfil the requirement of the Law and thus did not receive a licence are not entitled to administer arbitration. On 1 November 2017, a vast majority of the existing arbitral institutions failed to meet the requirements of the Law on Arbitration, namely the requirement that they be set up by a non-commercial organisation, and ceased operation. There are now only two permanent arbitral institutions in Russia. Chapter 9 of the Law on Arbitration accommodates detailed rules on the organisational aspects of permanent arbitral institutions. This is different from the system before the 2015 Reform, which had almost no regulation in this respect. Chapter 9 is applicable not only to arbitral institutions which handle domestic arbitration, but also to international commercial arbitration. The chapter then looks at the institutional rules of arbitration as well as the rules on the administration of arbitration.

Notes: To stay or not to stay? Admiralty proceedings after the International Arbitration Act 15 of 2017: Atakas Ticaret Ve Nakliyat AS v Glencore International AG

2021 ◽  
Vol 138 (1) ◽  
pp. 40-57
Author(s):  
Dusty-Lee Donnelly ◽  
Seshni Govindasamy
Keyword(s):  
Case Note ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
High Court ◽  
International Commercial Arbitration ◽  
The Republic ◽  
Model Law

The decision in Atakas Ticaret Ve Nakliyat AS v Glencore International AG 2019 (5) SA 379 (SCA) made important remarks to the effect that the discretion to effect a joinder to admiralty proceedings under s 5(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983, and the discretion to refuse a stay of proceedings under s 7(1)(b) of the Act, are ‘untouched’ by art 8 of the UNCITRAL Model Law on International Arbitration that is incorporated under the International Arbitration Act 15 of 2017. The court reached this decision on the basis that, in terms of art 1(5), the Model Law does not affect other laws of the Republic under which matters may not be referred to arbitration, or may only be so referred subject to conditions. This case note analyses the nature and extent of the court’s discretion under art 8(1) of the Model Law, the argument for an implied repeal of s 7(1)(b) of the Admiralty Jurisdiction Regulation Act, the interpretation of art 1(5) of the Model Law, and the questions left unanswered by the judgment. It argues that although the Model Law does not automatically oust the jurisdiction of the high court exercising admiralty jurisdiction to hear a maritime claim, the court only retains a narrow discretion to refuse a stay of those proceedings when an international commercial arbitration agreement exists in respect of the dispute.

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