The second cassation in the arbitration proceedings: The genesis, results of the procedural activity and prospects for uniformity of judicial and arbitration practice

The article considers relevant issues on the topic of the Genesis and results of the procedural activity of the Judicial Board for economic disputes of the Supreme Court of the Russian Federation as the second cassation instance. Taking into account, on one hand, the relative recency of this court in the arbitration process, and the significance of its role in the aspect of ensuring uniformity of judicial and arbitration practice on the other, this may prove to be of certain importance. The authors aim to summarize and analyze the judicial and statistical indicators of the second cassation for the 2015-2019 period. The methodological basis of the article consists of general scientific (analysis, analogy, description, synthesis, system-oriented) and private scientific methods (statistical, comparative legal, formal legal). Based on the results of the study, the main trends and problems of the second cassation review of judicial acts on economic disputes are identified. Based on the analysis of statistical indicators of cassation activity, the authors come to the conclusion that it is necessary to modernize the structure and functioning of the second cassation instance and increase its role in ensuring uniformity of judicial and arbitration practice. In conclusion, generalized proposals aimed at improvement of the efficiency of the second cassation instance are formulated. The study was conducted on the basis of judicial statistics published on the website of The Judicial Department of the Supreme Court of the Russian Federation.

He was the best among us. In memory of our friend and colleague - Vitaly Vasilyevich Bezbakh (1947-2021)

It just so happens that you begin to understand the true scale of a scientists personality after his death. Vitaly Vasilievich Bezbakh left us on June 25, 2021, completing his life path in the prime of his talent as a scientist, organizer of science and teacher. The article is dedicated to the memory of Professor Bezbach. The main directions of scientific research, contribution to Russian civil law, arbitration process and private international law are analyzed.

PONIŠTAJ ARBITRAŽNE ODLUKE DONETE OD STRANE AGENCIJE ZA MIRNO REŠAVANjE RADNIH SPOROVA

Word of the dispute is primarily associated with the intervention of the court. This is a traditional way of resolving labor disputes. The tendency in the world is to get as many of these disputes resolved peacefully, fast and fair manner at low cost. Avoiding court decision increases the chance of finding a favorable solution to the two opposing sides. The content of an arbitration agreement is of great importance to the parties in the arbitration proceedings. An arbitration agreement express the contractual freedom of the parties and list of facultative elements of an arbitration. Main benefits from peaceful solving labor disputes are expediency and cheap costs of the arbitration process. The arbitratior represents quasi – judicial instance and him may be wrong in his decision. The decision process is single and there is no possibility of appeal. This option would slow down the process of resolving issues. But, it can not be situation that would not be any way to void the wrong decision of the arbitratior. It could be chance to avoid this situation. Exactly because of that case, it must be provided for the possibility of annulment decision from peaceful settlment labor disputes agency. Reasons for cancellation must be a procedural character. Courts should not enter into the merits because it would further slow the troubleshooting. This would replicate the slowness of the trial in arbitration deciding. This length of proceedings before the courts is contary to the idea of arbitration as a quick, cheap, efficient and above all peacefull methods of resolving labor disputes. Court in relation to arbitration should have only a supervisory function. Blending the merits of arbitartion decisions would be deprived of independence and efficiency.

The Legal Policy of Executability in the International Arbitral Tribunal Decision for Settlement of Investment Disputes

<div><table cellspacing="0" cellpadding="0" align="left"><tbody><tr><td align="left" valign="top"><p class="AbstractText">The growing number of investment disputes indicates more challenging and controversial matters in the various arbitration practices. However, the International Centre for the Settlement of Investment Disputes (ICSID) rules do not entirely solve the problem in the arbitration process. This study aims to explain how the ICSID tribunal’s inherent reconsideration power can be exercised to “fill the gap” in arbitration proceedings. This study concludes that it can be enforced under Article 44 of the ICSID Convention, which decides the question submitted to the tribunal that the ICSID Convention does not cover. Second, in completing this study, the wording of Rules 19 of Arbitration Rules gives an almost similar order to the tribunals in the case of absence in the conduct of proceedings. Third, under Rule 38 (2) Arbitration Rules, the tribunals can exercise the reconsideration power when discovering new facts that decisively affect the case's outcome.</p></td></tr></tbody></table></div>

THE ISSUE OF ENSURING MEASURES IN CORPORATE DISPUTES IN THE ARBITRATION PROCEDURE

The article analyzes the current problems of the application of measures to secure a claim for corporate disputes in the arbitration process. It also examines the grounds on which arbitration courts take measures to secure a claim, indicates the rules of law that govern this issue, and analyzes the law enforcement practice of arbitration courts.

The problem of the parties’ explanations as evidence in arbitration courts

The article examines the problem of the parties explanations as evidence in arbitration courts. The author analyzes this problem through the prism of the admissibility of lies in the arbitration process. This problem is resolved from both legal and philosophical and ethical positions. The untruth is something that destroys trust the foundation of society, among other things, it undermines the credibility of the court, which accepts a lie; a lie destroys the person himself. The author reasonably believes that the one who considers a lie in court to be permissible allows the victory of untruth in court, thereby contributing to the transformation of a liar into a triumphant villain with the complicity of the court. Lying leads to dysfunction of justice, allowing lies in the trial is contrary to the very foundations of justice. The entry into force of a judgment based on a lie in one dispute only gives rise to a new dispute between the same parties. The author proves that a negative attitude towards lies is characteristic of both substantive and procedural law. It is concluded that the availability of effective means of protection against lies in the process is consistent with the principle of maintaining citizens confidence in the law and the actions of the state; justice is expected from the courts, not the encouragement of lies and deceit. The author reveals a contradiction between the attitude to judicial errors formed in the Soviet era and the consideration of the procedure of revision based on newly discovered circumstances only to the procedure of revision in the order of self-control, and the actual task of the court to correct judicial errors. It is rightly noted that this approach is extremely difficult to overcome, since new evidence showing the lie of the party is not considered by the courts as newly discovered circumstances. Meanwhile, a decision based on a lie is a miscarriage of justice.

LYING OF A PARTY IN THE ARBITRATION COURT AS A PROCEDURAL LEGAL FACT

The study puts forward the idea that the development of the principle of good faith in civil law should seriously affect the arbitration process and should make it unprofitable to lie in court. Among other things, we believe that it is possible to raise the question of using the legislator’s approach without the culpable occurrence of negative consequences of false assurances about circumstances in the conduct of entrepreneurial activity. The author also argues that there should be no deception of the court, because any decision based on a lie is not justice and is contrary to the rule of law. In a situation where deception does occur, there must be a mechanism to rectify the situation and level out the consequences of the deception. As a kind of substantiation of the above ideas, the author uses a reference to the principle of direct examination of evidence, which is enshrined in Articles 10 and 71 of the APC RF and obligates the court to directly examine and perceive all evidence in the case, including hearing explanations of persons involved in the case, testimony of witnesses, expert opinions, review written evidence, examine the physical evidence. Compliance with this principle guarantees the personal perception of the judges of the arbitration court of all evidence, which is probably one of the most significant guarantees of justice.

Exit of the Court Beyond the Stated Requirements when Considering Cases from Civil, Family and Labor Relations

The article considers the grounds for the court to go beyond the stated requirements when resolving cases from civil, family and labor relations. It is shown that going beyond the stated requirements is possible both in the civil and in the arbitration process. At the same time, non-fulfillment or improper fulfillment by the court of the obligation assigned to it to resolve certain issues may lead to a violation of the rights and interests of the parties to the dispute, to the annulment of the court order. The aim of the study was to develop recommendations for improving the practice of applying the provisions of the law on the court going beyond the stated requirements. The objectives of the study were to differentiate the grounds for the court to go beyond the stated requirements with related situations; classification of cases of non-application or improper application by the court of going beyond the stated requirements; identifying ways to eliminate the violations if the court goes beyond the stated requirements. The consideration of problems associated with going beyond the stated requirements is based on general scientific research methods (formal logic method) involving industry methods (comparative study methods of arbitration and civil processes, system analysis of positive legal material), which together ensured the reliability of the results of the work. In order to correctly use the mechanism by the court to go beyond the stated requirements, to prevent and eliminate violations of the rights and interests of the parties to the dispute in such situations, the authors proposed: 2. to differentiate between the court’s withdrawal beyond the stated requirements and the situation when the court changes the wording of the claimed claim in the operative part of the decision, brings it into line with the law, and also satisfies the interest of the defendant in the court when the plaintiff’s claim itself implied this; 3. the Supreme Court of the Russian Federation to clarify in the decisions of the Plenum, in reviews of judicial practice, cases of a court going beyond the stated requirements when considering civil, family and labor disputes, limiting the arbitrary discretion of lower courts; 4. the ways to eliminate violations of the rights and interests of the parties to the dispute when the court goes beyond the stated requirements are the adoption of an additional decision, appeal of the court decision, as well as an independent claim.

Using deep learning to assist readers during the arbitration process: a lesion-based retrospective evaluation of breast cancer screening performance

Objectives To evaluate if artificial intelligence (AI) can discriminate recalled benign from recalled malignant mammographic screening abnormalities to improve screening performance. Methods A total of 2257 full-field digital mammography screening examinations, obtained 2011–2013, of women aged 50–69 years which were recalled for further assessment of 295 malignant out of 305 truly malignant lesions and 2289 benign lesions after independent double-reading with arbitration, were included in this retrospective study. A deep learning AI system was used to obtain a score (0–95) for each recalled lesion, representing the likelihood of breast cancer. The sensitivity on the lesion level and the proportion of women without false-positive ratings (non-FPR) resulting under AI were estimated as a function of the classification cutoff and compared to that of human readers. Results Using a cutoff of 1, AI decreased the proportion of women with false-positives from 89.9 to 62.0%, non-FPR 11.1% vs. 38.0% (difference 26.9%, 95% confidence interval 25.1–28.8%; p < .001), preventing 30.1% of reader-induced false-positive recalls, while reducing sensitivity from 96.7 to 91.1% (5.6%, 3.1–8.0%) as compared to human reading. The positive predictive value of recall (PPV-1) increased from 12.8 to 16.5% (3.7%, 3.5–4.0%). In women with mass-related lesions (n = 900), the non-FPR was 14.2% for humans vs. 36.7% for AI (22.4%, 19.8–25.3%) at a sensitivity of 98.5% vs. 97.1% (1.5%, 0–3.5%). Conclusion The application of AI during consensus conference might especially help readers to reduce false-positive recalls of masses at the expense of a small sensitivity reduction. Prospective studies are needed to further evaluate the screening benefit of AI in practice. Key Points • Integrating the use of artificial intelligence in the arbitration process reduces benign recalls and increases the positive predictive value of recall at the expense of some sensitivity loss. • Application of the artificial intelligence system to aid the decision to recall a woman seems particularly beneficial for masses, where the system reaches comparable sensitivity to that of the readers, but with considerably reduced false-positives. • About one-fourth of all recalled malignant lesions are not automatically marked by the system such that their evaluation (AI score) must be retrieved manually by the reader. A thorough reading of screening mammograms by readers to identify suspicious lesions therefore remains mandatory.

Part III Emergency Arbitration Procedure, 6 The Seat of Emergency Arbitration

This chapter focuses on the limited role of the seat of emergency arbitration. It begins by exploring the concept of transnational norms in international arbitration, how these have been applied in the context of emergency arbitration, and whether this application is appropriate. The acceptance of a greater role for the application of transnational norms in emergency arbitration impacts on the significance of the role of the seat of emergency arbitration, and in particular, on the relevance of the lex arbitri to the proceedings. Given the limited mandate of the emergency arbitrator to determine whether urgent relief is required prior to tribunal formation, the courts of the seat of emergency arbitration are also not required to support the emergency arbitration process, although it is possible that they may be called upon to determine a challenge to the emergency arbitrator. However, the nationality of the emergency arbitrator's decision, if it is seen to constitute an award, may be relevant for enforcement purposes. The chapter then looks at the designation and the legal significance of the seat of emergency arbitration.