International Commercial Arbitration Issue No. 2 for 2006*
Circular No. 96 of the Presidium of the High Arbitrazh Court of the Russian Federation of 22 December 2005 An Overview of the Arbitrazh Court practice on the recognition and enforcement of the judgements of foreign courts, challenging of the awards of arbitration tribunals and the issuing of orders for the enforcement of the arbitral awards.
The issuance of the Court Practice Overview on challenges and enforcement of domestic and international arbitral awards by the High Arbitrazh Court of the Russian Federation has been awaited for several years. Unfortunately, many of the provisions of this Overview are contrary not only to international practice on the application of the New York Convention and the European Convention, but also to the factual circumstances of the cases the judgements on which are referred to in the Overview. The first commentary to the Overview is published in the pres ent issue of the Journal.
A. V. Asoskov — Questions of international arbitration in the new Overview of the Presidium of the High Arbitrazh Court of the Russian Federation: the search for the correct decisions.
This article provides a detailed commentary on the material parts of the new Overview of the Presidium of the High Arbitrazh Court of the Russian Federation in connection with international arbitration. Based on a detailed analysis of the cases which are included in the Overview in an amended form, the author reveals the most serious problems of the approach taken by the court of highest jurisdic tion with respect to arbitration tribunals.
Rules of the international Сommercial Arbitration Court (ICAC) of the Russian Federation Chamber of Commerce and Industry
These Rules are approved by the Decree No. 76 of the Russian Federation Chamber of Commerce and Industry dated 18 October 2005. The Rules came in to force on 1 March 2006 and are applicable to arbitration of disputes commenc ing from that date. The ICAC Rules approved by the Decree No 96 of the Russian Federation Chamber of Commerce and Industry dated 8 December 1994, as amended and extended, are applicable to the arbitration of disputes commenced prior to that date, unless the parties to the dispute agree otherwise.
A.S. Komarov — New ICAC Rules Commentary
In this article the Chairman of ICAC, Professor Komarov, provides a detailed analysis of the novelties which have been included in the Rules of the most popu lar Russian International Commercial Arbitration Court. The article also provides an analysis of the reasons for the introduction of the novelties into the Rules as well as contains proposals about the most effective ways of handling an arbitration in accordance with the new ICAC Rules.
*Редакция журнала выражает глубокую признательность гну Артему Дудко, юридическая фирма SJBerwin, Лондон, за помощь в подготовке изложения материалов №1 и 2 за 2006 на английском языке.
S. S. Trushnikov — The interrelationship between insolvency institutions and com mercial arbitration in the legislation and judicial practice of different States.
Situations where insolvency procedures become initiated against the Russian par ty prior to or in the course of arbitration become more frequent in international arbitrations involving Russian parties. The article provides the readers with an analysis of the interrelationship of the provisions concerning international arbitra tion and insolvency in accordance with the laws of USA, Germany, France and Russia. This publication is the first significant work on this issue to be published in the Russian legal journal. The author relied on court materials, arbitration prac tice and doctrinal works which would no doubt be of interest for both Russian and foreign specialists.
Dr. Thomas R. Klötzel — The right to be heard and the right to hear: cultural dimensions of international commercial arbitration.
The article is based on a speech made at the meeting of the London Arbitration Club on 13 September 2005. The great experience of the author in international arbitration makes it possible for him to provide the readers with information on different methods of increasing the effectiveness of dispute resolution. Even though some of these methods will seem highly unusual to domestic specialists, there is no doubt that such methods fully comply with the understanding of arbi tration as a method of resolving disputes and not as a mechanism of establishing the measure of guilt or innocence of the parties to the dispute in relation to the vi olations of each other’s rights. The translation is prepared and published with the kind consent of the author.
Federal arbitration court of the Moscow district Award of 15 June 2005 in Case N KGA40/434205.
This is a typical case from the practice of the Federal Arbitrazh Court of the Moscow District. The respondent who has lost his arbitration case tried to achieve the setting aside of the arbitral award by claiming that the award was rendered in breach of the “fundamental principles of Russian law” and the dispute was not within the competence of ICAC. The response of the court was quite predictable. The court explained to the applicant that his reference to the breach of “funda mental principals” of Russian law is “unsubstantiated since in fact the applicant disagrees with the assessment of the evidence by the arbitral tribunal and an arbi trazh court is not competent to review the award of the arbitral tribunal on the merits and to provide a different assessment of the facts and evidence which have been analysed by the arbitral tribunal”. The competence of ICAC was not ques tioned by the state court. The only atypical element of this case was the fact that the applicant was a foreign company usually it is the Russian company that applies to the state court as to the relevant court of higher jurisdiction over the international arbitration tribunal. However, the law is equal for everyone and the application to set aside the arbitral award has been refused.
An Arbitral award on jurisdictional issues rendered in 1998 in cases TPS 38/1997 and 39/1997 Judgement of the District Court of Stockholm rendered in 2001 in case T151099 Judgement of the Svea Court of Appeal rendered in 2002 in case T449601.
The guarantee given in accordance with Swedish law, which appears in this case, is in its character similar to the principle of “poruchitelstvo” (“surety”) known in Russian law. Accordingly, the decisions which were reached by the sole arbitrator and later by the Swedish state courts of two instances are relevant not only for guarantors, but also for sureties and generally for many other parties who take on security obligations. Most often the issue of choice of law regulating the form and content of an arbi tration agreement is determined in accordance with lex arbitri and not by the sub stantive law of the contract agreed upon by the parties. The materials of the case provide clear review of the provisions of Swedish law on these issues. It should be noted that the requirements of Swedish law to the form of an arbitration agree ment are much more liberal than similar provisions of Russian law. The arbitrator’s approach to resolving the legal jurisdictional issues that he has en countered shall also be noted. A clearly procedural issue of the guarantor being bound by arbitration agreements as contained in the ‘main’ agreements not signed by him turned out to be connected with the substantive law question of the extent of obligations arising under the guarantee. The Arbitrator initially decided that only one of the guarantees appearing in that case may actually lead to a recogni tion of obligations on the part of the guarantor towards the creditor. In the pres ent case the arbitrator found that he had the competence to decide the dispute. Finally, the arbitrator expressed quite a predictable reaction in connection with the arguments on the issue of sovereign immunity of the respondent. By reference to the Swedish law approach to this issue, the arbitrator considered that by mak ing itself bound by the terms of the arbitration agreement (even if it was not signed by the holder of sovereign rights) concerning a purely commercial transaction, the Republic was considered as having resigned from any immunities (actually, it is important to point out that this was not the Russian Federation).
ICAC Award of 25 May 2005; Case No. 163/2003
Upon termination of the proceedings due to the initiation of an insolvency proce dure against the respondent in accordance with the laws of its domicile, ICAC re ferred to the provisions of the Russian law (on personal status of a legal person) as well as the US law (on impermissibility of arbitrating disputes involving a party undergoing insolvency procedures, unless a special permission to proceed with the arbitration is received). It is important to note that conclusions of the arbitral tribunal that due to the ini tiation of the insolvency procedures against the respondent the subject matter of the dispute became non arbitrable did not affect the jurisdiction of ICAC to re solve disputes covered by the arbitration clause of the agreement. Therefore, the issue of validity of the arbitration agreement and its remaining force and the ques tion of the arbitrability of the dispute, irrespective of their close connection, re main two separate issues which are to be resolved by the application of different sources of law.