ARBITRATION AWARD: THE CONCEPT AND BASIC REQUIREMENTS

2017 ◽  
Author(s):  
Anayit Khoperiya ◽  
Keyword(s):  
Conceptual Understanding ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Arbitral Award ◽  
Written Form ◽  
Definition Of ◽  
Arbitration Award

The article deals with the approaches to the definition of "arbitration award". Particular attention was paid to the problem of conceptual understanding of "arbitration" in Ukraine and difference of this understanding opposite to its worldwide understanding. The main problematic points that introduce contradictions between the Ukrainian and international approach to the definition of "arbitration award" were outlined. A formal and substantive distinction between the concepts of "award of arbitration courts", "decision of international commercial arbitration" and "arbitration award" was made. The author proposes considering arbitration award as a legally binding act of the arbitrator or arbitrators, which resolves a legal dispute between the parties, the competence of which arises from the prior agreement of the parties, and which is the final act of arbitration, under which the obligated party voluntarily performs its obligations determined by the arbitral award, or one of the parties applies to the court for recognition and / or granting permission to enforce the arbitral award. The main features and requirements for arbitration awards are identified. Based on the practice of foreign states, it is concluded that not all requirements for arbitration awards that are considered mandatory in the doctrine and legislation of Ukraine are the same in other states. In particular, the author states that in some cases such requirements as written form or justification of the arbitral award may not be mandatory. However, it is noted that failure to comply with the written form could make impossible to recognize and enforce the arbitration award in other jurisdictions. Author mentioned that all states could be divided into those whose legislation is more flexible in determining the requirements for arbitration award and the level of discretion of the parties in this area, or those whose legislation contained mandatory requirements for arbitration, which was Ukraine’s case.

Problems of recognition and enforcement of international commercial arbitration decisions

2021 ◽  
Author(s):  
Rafael' Komilzhonov ◽  
Yuliya Ivanova
Keyword(s):  
Russian Federation ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Recognition And Enforcement ◽  
The Russian Federation ◽  
Arbitration Award

The article analyzes the problematic aspects of recognition and enforcement of international commercial arbitration decisions on the territory of the Russian Federation. It is noted the complexity and lack of procedural guarantees for the parties to the dispute to implement the arbitration award. It is concluded that it is necessary to remove obstacles to the rapid and effective execution of commercial arbitration decisions.

scholarly journals INTERNATIONAL AGREEMENTS FOR THE PROTECTION OF FOREIGN INVESTOR

2017 ◽  
Vol 3 (4) ◽  
pp. 99-105
Author(s):  
Ирина Хлестова ◽  
Irina KHlyestova
Keyword(s):  
Russian Federation ◽  
International Agreements ◽  
Most Favored Nation ◽  
Foreign Investments ◽  
Legal Concept ◽  
Commercial Arbitration ◽  
Foreign Investors ◽  
International Commercial Arbitration ◽  
The Russian Federation ◽  
Definition Of

The article is devoted to the analysis of international agreements on questions of protection of foreign investments. The multilateral agreements are investigated in the indicated area. There is a detailed analysis of agreements concluded originally by the USSR and then by the Russian Federation. The author draws attention to the lack of a unified approach to the definition of the concept of “foreign investment”, which has evolved over time. It is argued that both national and foreign investments are an economic category and there is no single legal concept for them, similarly with respect to the definition of the term “an investor”. The guarantees to the foreign investors by virtue of bilateral international agreements on protection of foreign investments are investigated, in particular: most favored nation treatment, national treatment, payment obligation for compensation in case of nationalization, expropriation and other measures that have analogical characters, permission of disputes between an investor and a state accepting investment. The author comes to the conclusion that in international law there is no ordinary norm about investment disputes settlement by international commercial arbitration. The author analyzes changes to the Law of the Russian Federation of July 7, 1993 No. 5338-I on International Commercial Arbitration introduced as a result of the adoption of the Federal Law of December 29, 2015 No. 409-FZ. The article highlights the influence of state courts on the activities of international commercial arbitration, the expansion of the competence of international commercial arbitration and the filling of gaps in the 1993 Law on International Commercial Arbitration. The author believes that the expansion of the use of international commercial arbitration bodies ensures the creation of conditions to protect the interests of foreign investors.

scholarly journals The Influence of the Law of the Country of the Place of Enforcement of the Arbitral Award on the Settlement of Disputes in the International Commercial Arbitration

2020 ◽  
pp. 86-97
Author(s):  
Volodymyr NAHNYBIDA
Keyword(s):  
Public Policy ◽  
New York ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Arbitral Award ◽  
Opposing Party ◽  
Recognition And Enforcement ◽  
The Law ◽  
New York Convention ◽  
The Impact

The article examines the key aspects of the impact of the law of the place of enforcement of the arbitral award on arbitration and directly on the recognition and enforcement of arbitral awards, given the study of doctrinal positions, regulations and relevant case law. It was found out that the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 refers to the procedural rules of the country of enforcement to settle matters inherent to the recognition and enforcement of foreign arbitral awards not governed by the Convention, establishing only basic and fairly simple formal requirements for the said procedure, which is one of the strong characteristics of the conventional regime of recognition and enforcement of arbitral awards. In light of this, it is concluded that such an approach is moderate and takes into account the impossibility and lack of practical necessity of unification at the international treaty level of procedural features of recognition and enforcement of arbitral awards, establishing only basic principles and requirements. It is substantiated that there are two components of the law of the place of enforcement of the arbitral award, which regulate the recognition and enforcement of arbitral awards within the relevant jurisdiction, namely substantive and procedural, which, however, are contained in single legal acts — mostly national arbitration laws. The author emphasizes the crucial role of the law of the place of enforcement of the arbitral award in the material and procedural aspects for the procedure of recognition and enforcement of arbitral awards within the relevant jurisdiction. It is concluded that the unification of material grounds for refusal of recognition and enforcement (in particular, non-arbitrability of the subject matter of the dispute and contradiction of the award to public policy as grounds that can be raised by the competent judicial authority at the place of enforcement ex officio, regardless of reference to them by opposing party), as well as the consolidation of basic procedural requirements and principles is carried out by the New York Convention of 1958, which leaves to the discretion of the national legislature, on the one hand, the settlement of minor aspects of the procedure, but, on the other hand, recognizes its full discretion in determining the limits of objective arbitrability, the content and specific filling of the category of international public policy applicable in the relevant jurisdiction. Keywords: arbitral award, international commercial arbitration, applicable law, arbitration process, public policy.

SOME ISSUES OF RECOGNITION AND ENFORCEMENT OF DECISIONS OF ARBITRATION IN UKRAINE ON THE GROUNDS OF THE INFRINGEMENT OF PUBLIC POLICY

2017 ◽  
Author(s):  
Yuliia Klymovych ◽  
◽  
Inessa Shumilo ◽  
Keyword(s):  
Public Policy ◽  
Social Relations ◽  
Court Decisions ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
National Courts ◽  
Recognition And Enforcement ◽  
Definition Of ◽  
Court Practice

The article is dedicated to the examination of such a ground for refusal of recognition and enforcement of decisions of international commercial arbitration in Ukraine as the infringement of public policy. The author describes some approaches to the definition of the content of the term «public policy» basing on the examination of court practice from 2018 to 2020 and doctrinal sources. Particular attention is focused on the determination of the criteria which may be used for identification of the areas of social relations which form public policy. The author also pays attention to some criteria, whose usage may be helpful and effective in determining whether or not the infringement of public policy exists on conditions that a decision of international commercial arbitration is enforced. The author analyses some court decisions in order to inquire the position of national courts when deciding on giving a permission or refusing to recognize and enforce a decision of international commercial arbitration if a disputing party as a ground for refusal indicates the infringement of public policy.

scholarly journals Violation of public order as a ground for refusing to recognize and enforce the decision of the international commercial arbitration

2020 ◽  
Vol 3 ◽  
pp. 86-92
Author(s):  
Oleksandr Seryogin
Keyword(s):  
The State ◽  
Public Order ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
The Public ◽  
National Bank ◽  
Recognition And Enforcement ◽  
Arbitration Award

The author of the article summarizes at the doctrinal level the following issues regarding the recognition and enforcement of decisions of international commercial arbitration. In particular: (1) whether Ukraine’s public order will be violated by the recognition and enforcement of an international commercial arbitration award, imposed on the National Bank of Ukraine, which was not a party to the proceedings, as the State of Ukraine is represented by the Ministry of Justice of Ukraine; (2) whether the public order of Ukraine will be violated if the Budget of Ukraine incurring significant losses in connection with the recognition and enforcement of the decision of the international commercial arbitration; (3) under what conditions the recognition and enforcement of the decision of the international commercial arbitration should be considered as violating the public order of Ukraine.

scholarly journals Interpretation of the «Public Policy» Category in Recent Judicial Practice

2021 ◽  
pp. 30-42
Author(s):  
Ivan KOSTIASHKIN ◽  
Olena CHERNIAK
Keyword(s):  
Public Policy ◽  
Case Law ◽  
The State ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
The Public ◽  
Judicial Practice ◽  
Recognition And Enforcement ◽  
Principles Of Justice ◽  
Definition Of

The article studies the concept of «public policy», presents doctrinal definitions of public policy, as well as definitions used in judicial practice, in particular in the decisions of the Supreme Court. It is established that the Ukrainian legislation does not contain a definition of «public policy», but from the analysis of case law it can be concluded that the public policy of any country includes the fundamental principles and principles of justice, morality, state system, political system and economic security, which the state wishes to protect, which means «public policy» is a broad and abstract concept. At the same time, such a position of the legislator, given the case law cited in the article, is justified and reasoned. It is analyzed that the Civil Code of Ukraine lists the grounds on which the transaction can be considered as violating public policy, at the same time, the analysis of case law shows that the category of public policy does not apply to any legal relationship in the state, but only on the essential foundations of law and order. The article also analyzes that the recognition or enforcement of the decisions of an international commercial arbitral tribunal may be denied if the court finds that the recognition and enforcement of this arbitral award is contrary to public policy of Ukraine, as an example listed court cases in which the enforcement of arbitral awards was refused due to a violation of public policy. In view of the above, it is proved in the article that the definition and understanding of the category of public policy is important in recognizing and bringing to the enforcement of international commercial arbitration courts decisions, as well as recognition of transactions as such that violates the public policy, which leads to insignificance of such transactions. It is summarized that today in Ukraine there is no normative definition of the concept of «public policy», and from the analysis of judicial practice we can conclude that judges interpret the concept of «public policy» quite broadly and abstractly. However, given that quite often cases of recognition of a transaction as contrary to public policy (invalid transaction), as well as the recognition and enforcement of international commercial arbitration and foreign courts judgments are «technical» cases brought in order to avoid the liability of a party against whom the decision was made, such an interpretation of the concept of «public policy» gives judges the opportunity to fully investigate, whether transactions or decisions in force violates public policy or the fundamental principles of justice and fairness of the state, without a statutory restriction on the concept of «public policy».

International Commercial Arbitration

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