International Commercial Arbitration Issue No. 3 for 2006
V.V. Yarkov. The Claim of the State Prosecutor in the State Court and the Arbitration Clause
The State Prosecutor of the Kaliningrad region of the Russian Federation submit ted a claim to the Russian state court seeking invalidation of a Loan agreement which was executed by the Governor of the Kaliningrad region with one of the Western banks. This claim emerged after the creditor filed a request for arbitration in accordance with the arbitration clause of the Loan agreement. The Prosecutor insisted that since the Loan agreement was signed by the Governor without prop er authorization, it was void ab initio, and thus the borrower was not required to return the funds and was not bound to arbitrate. Russian courts referred the Prosecutor to arbitration under Art. II of New York Convention. The judgment as commented by Prof. Yarkov is published in the same issue of the journal.
D.V. Kurochkin. Several Comments on the Circular of the Presidium of the High Arbitrazh Court of the Russian Federation on Judicial Practice of Recognition and Enforcement of Arbitral Awards
The article dwells on a controversial Circular of the top Russian judicial authori ty concerning matters of enforcement of arbitral awards. Together with some pro arbitration features, this Circular at the same time contains numerous provisions departing radically from the international standards of support of arbitration. The author considers modifications which were introduced by the staff of the High Arbitrazh Court of the Russian Federation to certain judgments rendered by Russian courts in the process of drafting of the Circular, thus putting emphasis on the attitude of the specialists of this court to the very idea of cooperation of courts and arbitral tribunals. Mr. Kurochkin is a partner of Herbert Smith.
S.A. Belyaev. Cooperation between State Courts and Arbitral Tribunals in the Course of Arbitration Proceedings in Germany
This article analyses the difference between the modern German legislation on ar bitration and the UNCITRAL Model Law On International Commercial Arbitration. Modifications to the Model Law were introduced with an idea to make Germany more attractive as a venue for conduct of international arbitration proceedings.
Christer Soderlund. MultiModal Dispute Resolution Clauses
One often encounters arbitration clauses which contain more or less detailed re quirements regarding settlement and mediation attempts (“prestage”) before hostility arises between the parties and they resort to arbitration. Article by Mr. Sderlund, who is a partner of Advokatfirman Vinge, describes various types of such prestages and their impact on commencement and conduct of arbitration proceedings.
E.E. Yuriev. International Arbitration and the Law of the European Union: Coor dination and Controversies
The article covers numerous problems connected with the duties of arbitrators having to apply the law of the European Union. It is based on the analysis of nu merous judicial decisions rendered in the EU in the course of the recent years.
From this issue we start publication of a set of materials on application of the 1980 UN Convention on Contracts for the International Sale of Goods:
CISG Advisory Council Opinions nos. 1-5
The CISGAC is a private initiative supported by the Institute of International Commercial Law at Pace University School of Law and the Centre for Commercial Law Studies, Queen Mary, University of London. The International Sales Convention Advisory Council (CISGAC) is in place to support under standing of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the promotion and assistance in the uniform interpre tation of the CISG. We publish the Russian translations of its Opinions rendered in 20032005.
A.S. Komarov. Filling the Gaps in the CISG in the Course of Resolution of Disputes
The article discusses the most sensitive problems of application of CISG by the Russian state courts and compares their practice with experience of international commercial arbitral tribunals. Prof. Komarov pays a special attention to the prob lem of access of Russian courts to international practice of interpretation and ap plication of the Convention.
V.A. Musin. On Certain Grounds for Exemption from Liability for a Failure to Perform the Party's Contractual Obligations under a Contract of International Sale of Goods
Prof. Musin based his article on materials of application of Art. 79 of CISG and similar provisions of the Russian legislation in the practice of various arbitral tri bunals in Russia, comparing their approach with those of foreign arbitrators and judicial authorities. He also discusses the issue of application of mandatory norms of the Russian law in the course of resolution of disputes under CIGS.
M.G. Rozenberg. Practice of the ICAC at the Chamber of Commerce and Industry of the Russian Federation in the Issues of Application of CISG
CISG could be rarely applied for resolution of disputes without support of norms of national law. Moreover, under Art. 90 of the Convention, it does not prevail over other treaties existing in the sphere of international sales of goods, thus con tracts of Russian companies with companies from CIS and China are often ex empt from the application of CISG. Prof. Rozenberg also considers to what ex tent the parties are authorized to modify the norms of the Convention by their contracts.
O.N. Zimenkova. Exemption from Liability under CISG in the Practice of the ICAC at the Chamber of Commerce and Industry of the Russian Federation
Worsening of economic situation in various markets and financial crisis may not be regarded as excuses for failure to perform the party's obligations under an inter national contract for the sale of goods — this is a common point in practice of ap plication of Art. 79 of CISG. Prof. Zimenkova considers the issue of absence of certain administrative permits as a factor in evaluation of a party's performance under a contract and grounds for application of norms of Art. 80 of the Convention.