Arbitration Issue No. 2 for 2007
Prof. A.S. Komarov. International Unification of Regulatory Regime for Commercial Arbitration: New Edition of the UNCITRAL Model Law
The article dwells on the recently completed work of the UNCITRAL Working Group on Arbitration which has prepared amendments to the UNCITRAL Model Law on International Commercial Arbitration concerning interim measures and form of arbitration agreement. Prof. A.S. Komarov being a member of this working group gives an account of this work and briefly comments on the documents which were adopted at the thirty-ninth session of UNCITRAL.
S. Francois-Poncet. Practical Pointers for Preparing Witnesses for Testimony in International Arbitrations
Preparing witnesses of fact who have agreed to testify in international arbitration proceedings presents both opportunities and challenges for arbitration counsel. The opportunity of having a person knowledgeable about the events in dispute “tell the story” and substantiate positions advanced otherwise only through documents can make all the difference in a case. Going through the preparation process with client representatives can also further the relationship of trust and confidence between attorney and client. At the same time, preparing witnesses of fact for testifying in an international arbitration requires particular care, from the different perspectives of counsel as regards ethical considerations, of the party who is relying on such witness testimony to advance its case most effectively, and of the witnesses themselves.
The purpose of this article is to discuss certain practical approaches to addressing some of these challenges, and to introduce the author’s Twenty Commandments for Witnesses Testifying in International Arbitrations, developed (from an initial ten commandments) over the past twenty years of practice and preparation of over 200 fact witnesses.
Prof. V.V. Yarkov. Refusal of Recognition and Enforcement of an International Arbitral Award Rendered in London (Continuation of the Kaliningrad Case)
The Administration of the Kaliningrad district of the Russian Federation declined to repay a loan obtained from a Western bank. The circumstances of this case have been already discussed in our journal (see issue 3/2006). In 2005 Russian courts rejected the motion of the state prosecutor for the Kaliningrad district seeking qualification of the Loan Agreement as void ab initio. However a year later the same courts refused to recognize and enforce the arbitral award rendered in this case by an ad hoc tribunal in London. This time Russian judges revised the merits of the award and concluded that the contract was void. Three different instances of the Russian judicial system were dealing with this case, each of them putting forward its own understanding of the case and of the role of an enforcing court. Prof. Yarkov compares the conclusions of Russian courts with those of Lithuanian courts, since the award was successfully recognized and enforced in that country. All judgments discussed in the article are also published in the same issue of the journal.
Prof. E.V. Kabatova. Choice of Applicable Law During Consideration of Claims in the Sphere of Foreign Trade
The new Arbitration Rules of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation suggest that the parties should mention the applicable law in the their submissions at least twice: in a statement of claim and in a response to the statement of claim. The discretionary authority of the arbitrators in this matter has also been expanded, so the question of selection of the applicable law really becomes crucial for the outcome of many arbitrations. The article is based on materials from ICAC’s practice over recent years.
Prof. A.A. Kostin. Brief Recollections of a Long Arbitration
The award rendered by the Foreign Trade Arbitration Commission at the USSR Chamber of Commerce and Industry in the case V/O Soiuznefteexport v. Joc Oil, Ltd (Bermuda) is considered to be a classical award establishing the rule of separability of the arbitration clause. Despite the contract being considered as void, the tribunal awarded the claimant a considerable amount of compensation for losses. Our journal presents the first publication of this award in its original Russian version. Prof. Kostin was acting as a counsel for the claimant and his recollections on this case help our readers to understand better the lengthy and complicated award.
This award is published not only for academic reasons. The recent Kaliningrad case discussed in the same issue of the journal demonstrates that conclusions formulated by the FTAC arbitrators 23 years ago concerning the nullity of contracts are still not shared by Russian judges.
E.A. Rubinina. Formation of Arbitral Tribunals in Multi-Party Arbitrations
The Procedure of formation of arbitral tribunals in multi-party arbitrations is a typical problem. The author compares the approaches taken by the world’s leading arbitration institutions and materials of judicial practice (the Dutco case) with the approach expressed in the new Arbitration Rules of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation.
In addition to the judgments of Russian and Lithuanian courts in the Kaliningrad case, this issue offers seven other recent judgments of Russian courts on matters related to the enforcement and challenge of awards of international commercial arbitrations.
The Award rendered on September 29, 2006 in case # 127/2005 is typical for the practice of the ICAC at the Chamber of Commerce and Industry of the Russian Federation. It deals with the situation where the claimant originally wanted the Tribunal to award specific performance under the contract, but at a later stage of the proceedings switched to claiming compensation for damages under the 1980 CISG.