scholarly journals International Commercial Arbitration in Russia: Results of the Reform

Lex Russica ◽  
2021 ◽  
pp. 9-22
Author(s):  
O. F. Zasemkova
Keyword(s):  
Ad Hoc ◽  
State Courts ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Russian Law ◽  
The Right ◽  
Improvement Of Legislation

September 2021 marks five years of the arbitration reform in Russia. During this period, fundamental changes have occurred in this area, affecting both arbitration institutions that are authorized to administer disputes on the territory of Russia, and the distribution of categories of arbitrable disputes between permanent arbitration institutions and arbitration tribunals created to resolve a specific dispute (ad hoc arbitration tribunals). The paper attempts to analyze the main results of the reform and assess its impact on Russia’s attractiveness as a place of arbitration. The author comes to the conclusion that, despite some positive consequences of the reform (such as "pocket" arbitration courts leaving the market, resolving the issue of arbitrability of corporate disputes, empowering state courts with the functions of promoting and monitoring the activities of arbitration courts, etc.) a number of problems remained unresolved, and the attitude towards Russia as a place of arbitration remainedalmost unchanged. Moreover, innovations that relate to the procedure for creating arbitration tribunals and obtaining the right to administer disputes on the territory of Russia and apply, among other things, to foreign arbitration institutions, have led to attempts to circumvent the requirements of Russian law both by the parties and by the arbitration institutions that failed to obtain appropriate permission. An equally important problem resulting from the reform includes leaving the market by regional arbitration courts that used to be popular among small and medium-sized businesses that are often not ready to pay rather high arbitration fees set by large arbitration centers. Thus, most of the goals set by the reform ideologists have not been achieved, which indicates the need for further improvement of legislation in this area.

scholarly journals Peculiarities of responsibility to arbitrators of international commercial arbitration

Legal Ukraine ◽  
2019 ◽  
pp. 32-39
Author(s):  
Keyword(s):  
Criminal Liability ◽  
Legal Framework ◽  
Point Of View ◽  
Quantitative Composition ◽  
Commercial Arbitration ◽  
Wrong Decision ◽  
International Commercial Arbitration ◽  
Foreign Countries ◽  
Black List ◽  
The Right

The article explores the problems of arraignment of arbitrators, while analyzing both the legal framework for international commercial arbitration of foreign countries and the existing arbitration practice. In particular, it is emphasized that the arraignment of arbitrators is quite problematic, as there are significant omissions and gaps in the domestic arbitration laws of several states, which avoids the liability of unfair arbitrators. However, given that international commercial arbitration is a non-governmental institution, built on the principle of autonomy of the will of the parties, which allows the parties to influence positively the arbitration (by determining the right on the basis of which the dispute, languages and places of arbitration will be settled and the quantitative composition of arbitration, etc.), in this case, the role of ethical rules is growing significantly. Accordingly, unscrupulous arbitrators cannot further claim to be involved in arbitration proceedings, as they fall into the so-called «black list of arbitrators» and the parties refuse to provide their services. This «public disclosure» method can be viewed to some extent as a means of preventing arbitrators. From a practical point of view, we consider it justified to include in the regulations of international commercial arbitration tribunals the provisions on the application of sanctions for violation of the parties' consideration of their obligations. If the arbitrator makes a deliberately wrong decision, it is advisable to provide for the following sanctions: withdrawal (in particular, the grounds for dismissal should be: financial dependence, subordination and other professional relations of the arbitrator with one party; the same nationality of the arbitrator and one or both parties; or opinion; court precedents); suspension of activity, prohibition on occupation of certain positions, liability for damages, administrative and criminal liability. Key words: arbitration, international commercial arbitration, arbitrator, responsibility of arbitrators, sanctions in international commercial arbitration.

scholarly journals The Meaning of Soft Law in International Commercial Arbitration

2016 ◽  
Vol 16 (1) ◽  
pp. 97-109
Author(s):  
Miluše Hrnčiříková
Keyword(s):  
Due Process ◽  
Fair Trial ◽  
Soft Law ◽  
Discretionary Power ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Arbitral Proceedings ◽  
The Right ◽  
The Impact ◽  
Discretionary Powers

Summary The growth in the amount of international arbitrations, the value of the disputes and expenses invested into the arbitral proceedings have escalated the pressure to succeed in dispute. The arbitrators face to guerrilla tactics or threats of annulment of arbitral awards based on the violation of a right to a due process. Soft law regulating the arbitral procedure endowers the effectives of the arbitration, however, in the recent years the critical voices can be heart which warn against overregulation and its judicialization. On the following pages the impact of the soft rules prescribing the arbitral proceeding on the effectiveness of the international commercial arbitration is examined. Firstly the author deals with the right to a fair trial and the discretionary power of arbitrators in the framework of the notion of soft law and then the binding character of this soft law is determined. The aim of this article is to answer the question whether the regulation of the arbitral proceedings by soft law is still welcomed or if it represents a threat for the discretionary powers of the arbitrator and arbitration as such.

scholarly journals International Commercial Arbitration: History, Modernity, Attempt to Look into the Future

Lex Russica ◽  
2020 ◽  
pp. 157-165
Author(s):  
G. D. Uletova ◽  
N. V. Kanishevskaya ◽  
A. A. Kukuev
Keyword(s):  
Dispute Resolution ◽  
Point Of View ◽  
International Standards ◽  
State Courts ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Existing Problems ◽  
Domestic Jurisdiction ◽  
The Will ◽  
And Control

The paper is a review of the textbook "International Commercial Arbitration", prepared by a group of authors under the scientific editorship of leading experts in the field of alternative dispute resolution, i.e. O.Yu. Skvortsov, M.Yu. Savranskiy, G. V. Sevastyanov. The significance of this publication is due to the need to develop a sustainable pro-arbitration approach in Russia, strengthen contractual principles in the field of legal conflict resolution, and develop international commercial arbitration (hereinafter referred to as the ICA) as an important component of increasing the attractiveness and competitiveness of the Russian jurisdiction. Legal science representatives and practicing lawyers have been in an active discussion about the role of arbitration institutions and arbitrators in modern civil commerce, the nature of arbitration, effective forms and methods (models) of interaction between state justice and arbitration, the limits of assistance and control of state courts in relation to arbitration courts, as well as the limits of the will of civil commerce participants in choosing forms and methods for resolving legal conflicts, and the importance for Russia, in the conditions of new challenges in the economy, and formation of a balanced Pro-arbitration policy. The reviewed book is the result of serious and very deep study of the ICA history and its contemporary state, all its major institutions. It contains the latest information about the most important directions of its modernization from the point of view of international standards and in the context of the Russian arbitration reform, demanded by both domestic and foreign business. The comparative legal research method chosen by the authors and reference to the best practices in the field under study made it possible not only to identify problems, current challenges and new trends in the field of arbitration, but also to propose a set of measures to solve existing problems in order to increase the role and authority of the ICA in Russia, increase confidence in the arbitration form of dispute resolution by state courts, expand the arbitrability of disputes, and increase the competitiveness of domestic jurisdiction.

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.

3 Arbitrability of Disputes

2020 ◽  
Author(s):  
Oda Hiroshi
Keyword(s):  
International Economic ◽  
Civil Law ◽  
State Courts ◽  
Constitutional Court ◽  
Federal Law ◽  
Real Property ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Economic Relations ◽  
International Economic Relations

This chapter examines the concept of arbitrability. Arbitrability is about whether a certain category of dispute is eligible for settlement by arbitration or should be reserved for state courts. The 1993 Law on International Commercial Arbitration provided that ‘disputes arising from contractual and other civil law relationships and other types of international economic relations, insofar as one of the parties is outside the country’, fall within the scope of this Law. Meanwhile, the 2002 Law on (domestic) Arbitration provided that any dispute arising from civil law relations could be handled by arbitration, unless otherwise provided by Federal law. Despite such provisions, Russian courts narrowly interpreted the scope of arbitrability. For example, disputes on real property were not arbitrable until the decision of the Constitutional Court in 2011. Since this decision, the focus was on the arbitrability of corporate disputes. The 2015 Reform acknowledged the arbitrability of corporate disputes with some exceptions and requirements. Some judges found a basis for non-arbitrability of certain disputes in the Code of Commercial Court Procedure (APK).

Legal Ground of Choice of Law Agreement Permissibility in International Commercial Arbitration

2020 ◽  
Vol 7 ◽  
pp. 23-30
Author(s):  
T. V. Novikova ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Ad Hoc ◽  
Civil Code ◽  
Commercial Arbitration ◽  
Choice Of Law ◽  
International Commercial Arbitration ◽  
The Supreme Court ◽  
Research Goal ◽  
The Russian Federation

Problem statement. Specific nature of international commercial arbitration raises an issue whether in this case lex fori is capable to be the ground of choice of law agreement permissibility. Topicality of the issue is determined by the Supreme Court of the Russian Federation explanation of 09 July 2019 to courts referring issues of choice of law permissibility to lex fori. Goals and tasks of the research. Goal – research of legal ground of choice of law permissibility in international commercial arbitration. Tasks: to study the ICAC approaches to choice of law acknowledgement; to advance a hypothesis on the influence of explanation by the Supreme Court of the Russian Federation in respect of article 1210 of the Russian Federation Civil Code to the ICAC practice and to draw a conclusion on the international commercial arbitration «procedural documents» provisions as the ground for it to acknowledge choice of law agreement. Methods. Methods of formal logic play a key role: analysis of the ICAC practice permitted to distinguish three approaches to choice of law agreement permissibility grounding; induction of ratio decidendi of the ICAC separate decisions – to draw a conclusion on the article 1210 of the Russian Federation Civil Code influence to the ICAC practice in general and on this basis to advance a hypothesis on possible influence of explanations by the Supreme Court of the Russian Federation in this respect; comparison of the international commercial arbitration rules – to draw a conclusion that these provisions are the ground of choice of law acknowledgement by the tribunal. Results, brief conclusion. Firstly, three approaches of the ICAC to the choice of law agreement permissibility grounding have been revealed and in each them the ICAC relies on the article 1210 of the Russian Federation Civil Code. As far as the article 1210 has an impact on choice of law permissibility grounding within the ICAC, explanations by the Supreme Court of the Russian Federation in respect of this article are capable to have a possible impact on the ICAC practice. Secondly, within the international commercial arbitration the choice of law agreement permissibility grounding should be based on provisions of its «procedural documents», e. g. national law on international commercial arbitration, rules of institutional arbitration or ad hoc arbitral tribunal, – these rules (but not conflict of laws addressed to courts of the state of the arbitration seat) could be considered as its peculiar lex fori.

State’s Arbitration Proceedings Participation: Theoretical and Practical Aspect

2020 ◽  
pp. 31-36
Keyword(s):  
Public Law ◽  
Practical Aspect ◽  
The State ◽  
Broad Sense ◽  
State Courts ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
State Participation ◽  
The Russian Federation ◽  
Special Competence

In modern conditions, interest to public law participants in transnational contracts to appeal to arbitration, which, in turn, is determined by a very significant share of the Russian Federation in its economy attaches importance of the perspective of the study of international commercial arbitration, oriented towards the participation of the state in the broad sense, proposed in the article. The article deals with the main aspects of state participation (in a broad sense) in arbitration of legal disputes, such as interaction models between state courts and arbitration tribunals; disputes arbitrability involving the state; special competence as a basis for participation of subjects vested with authority in the arbitration agreements conclusion; problems of correlation between the confidentiality of arbitration proceedings principle and the possibility of civil society to obtain information on disputes in international commercial arbitration with the state participation; the tendency of contractualizing Russian and foreign jurisdictions’ civil procedure in disputes involving public elements.

scholarly journals La entrada e intervención de terceros en el arbitraje comercial internacional = Joinder and intervention of additional parties in international commercial arbitration

2020 ◽  
Vol 12 (1) ◽  
pp. 365
Author(s):  
María Victoria Sánchez Pos
Keyword(s):  
Third Parties ◽  
Arbitral Tribunal ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Party Autonomy ◽  
International Commercial Arbitration ◽  
The Right ◽  
Privacy And Confidentiality

Resumen: En el marco del arbitraje multiparte, la entrada e intervención de terceros es definida como la incorporación de partes adicionales a un arbitraje ya iniciado. Este mecanismo procesal presenta, sin embargo, multitud de dificultades que derivan de la naturaleza eminentemente consensual de la institución arbitral. Así, entre otras, la constancia de la voluntad -expresa o tácita- de todas las partes involucradas en el arbitraje a la entrada del tercero o la salvaguarda de su derecho esencial de participar de manera directa y equitativa en la constitución del tribunal arbitral y de las garantías de privacidad y confidencialidad del arbitraje. Partiendo de estas someras premisas, este trabajo tiene como objetivo el análisis crítico de las disposiciones específicas sobre la admisibilidad y presupuestos de la entrada e intervención de nuevas partes en el arbitraje que las instituciones arbitrales internacionales de mayor relevancia han regulado en los últimos años.Palabras clave: Entrada, intervención, terceros, partes adicionales, arbitraje multiparte, tribunal arbitral.Abstract: One of the major challenges that international arbitration has faced in the last decades is the regulation of multiparty arbitrations, which involve a confrontation between more than two parties with opposing interests. In this context, joinder and intervention deals with the need, in terms of justice and efficiency, to bring an additional party into the proceedings when the arbitration may already be in progress. However, the main characteristic of arbitration is its consensual nature. For this reason, mechanisms for joinder or intervention present considerable difficulties related to the principle of party autonomy, the right to equally participate in the nomination of the arbitrators and the protection of privacy and confidentiality in arbitration proceedings. Apart from dealing with these difficulties, the author discusses in this article the latest joinder provisions contained in leading arbitral rules.Keywords: Joinder, Intervention, Third parties, Additional parties, Multiparty Arbitration, Arbitral Tribunal

Part II The Doctrine of Res Judicata in International Commercial Arbitration, 3 Res Judicata Issues Arise in International Commercial Arbitration

2016 ◽  
Author(s):  
Schaffstein Silja
Keyword(s):  
State Courts ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Investment Protection ◽  
Res Judicata ◽  
National Courts ◽  
Arbitration Proceeding

This chapter presents varying situations in which issues concerning the res judicata doctrine arise before arbitral tribunals. These situations may be sorted into four categories, based on the nature of the court or tribunal having rendered the first final and binding decision. First, situations that arise between arbitral tribunals and state courts; second, between different arbitral tribunals; third, within a same arbitration proceeding between a partial and a final award and lastly, between supra national courts or tribunals and arbitral tribunals. The fourth category concerns mostly investment protection treaty cases. Because of the proliferation of multiple proceedings and an increasing bifurcation of arbitration proceedings, the number of cases in which arbitrators will have to deal with res judicata issues will also increase.

International Commercial Arbitration

2009 ◽  
Author(s):  
Simon Greenberg ◽  
Christopher Kee ◽  
J. Romesh Weeramantry
Keyword(s):  
Commercial Arbitration ◽  
International Commercial Arbitration
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