International Commercial Arbitration Issue No. 4 for 2006
Prof. M.P. Bardina Subsidiary Application of National Legislation in the Course of Filling of the Gaps of CISG. Practice of the ICAC at the Chamber of Commerce and Industry of the Russian Federation
Art. 7(2) of the CISG permits application of national legislation for filling of its gaps only to the extent such gaps may not be filled by application of its general principles. However, it is national legislation which is applied most frequently in the absence of specific norms in the CISG that are required for the resolution of certain legal disputes. The article discusses choice of law rules applied by the ICAC and correlation of norms of CISG and national law in the practice of this arbitration institution.
Prof. A.A. Kostin Collection of Damages and Interest under CISG in the Practice of the ICAC at the Chamber of Commerce and Industry of the Russian Federation
Are claims for damages compatible with claims regarding collection of interest and to what extent such claims may be granted in the course of a single arbitration? Prof. Kostin addresses this question on the basis of practice of the ICAC. He also discusses frequent claims for compensation of damages resulting from administrative fines of the Russian currency control authorities that were imposed on Russian companies due to failure of a foreign partner to perform its contractual duties.
Prof. N.G. Vilkova CISG in Arbitration Practice of ICC
This article discusses various aspects of application of CISG in the course of arbitration under the auspices of ICC. It contains various relevant statistics and description of certain interesting cases as resolved by ICC arbitrators on the basis of this Convention subject to subsidiary application of national legislation.
V.V. Veeder, QC 1922: The Birth of the ICC Arbitration Clause and the Anglo-Soviet Urquhart Concession's Demise
An exciting story of negotiations between the Bolshevik country and Mr. Urquhart concerning the most promising concession ever discussed by the Soviets. It appears that it was the arbitration clause which has resulted in the failure of this project, since Mr. Urquhart insisted on selection of truly independent arbitrators, this being totally unacceptable for Lenin and Stalin. However, those difficult negotiations have led to some positive results, but neither for the benefit of Mr. Urguhart, nor for the benefit of the Soviet Union: the mechanism of selection of independent arbitrators which was approached those negotiations is still applied, for example, in arbitrations under the ICC Rules of Arbitration.
S. Jarvin, C. Dorgan Are Foreign Parties Still Welcome in Stockholm? The Svea Court's Decision in Titan Corporation v. Alcatel CIT S.A. Raises Doubts
Aren't Swedish courts too supportive of arbitration? If the state courts in the place of arbitration decline to consider challenge against the award, this might have a negative impact on selection of the respective country as a place for arbitration. The parties to international disputes need a clear understanding of which courts would have jurisdiction over the setting aside of the award.
D.V. Litvinsky Principles of Reciprocity and the Right for Judicial Protection in the Sphere of Enforcement of Foreign Judgments in Russia: Decision of the Federal Arbitrazh Court of the Moscow District of February 22, 2006.
Russian legislation establishes that foreign judgments may be recognized and enforced in Russia only on the basis of an international treaty ratified by the Russian Federation. However, Russian courts recently recognized and enforced an English judgment rendered in favor of consortium of international banks and against the Russian oil company Yukos. The recognition of this foreign judgment has led to acceleration of Yukos bankruptcy procedures. However, the political or economic aspects of that famous case are not within the purview of this article: it dwells exclusively on legal aspects of possibility of recognizing and enforcing an English judgment in the Russian Federation in the absence of a corresponding treaty between the latter and the United Kingdom. The author describes the history of the problem and then thoroughly examines all references made by Russian judges in this case to various issues of international law. This article may be regarded as the first full-scale legal analysis of this judgment in Russian (and, probably, any other) literature. The commented judgment of the Russian court is also published in the current issue of our journal.
ICAC Award of January 13, 2006, Case No 137/2004
This is quite a usual award in the practice of the ICAC at the Chamber of Commerce and Industry of the Russian Federation. The tribunal had to decide whether it was competent to consider the claim since the proper title of this arbitration institution was not indicated in the arbitration clause. In order to resolve this problem the arbitrators had to analyze the intentions of the parties. Another issue raised in the award was the possibility of simultaneous application of a fine for failure to perform contractual obligations and interest.
ICAC Award of February 2006, Case No 102/2005
In this case the claimant, a Russian company, ordered delivery and installation of certain equipment from a German counter-party. After the contractor failed to complete installation on time, the customer terminated payments under the contract and filed a claim to the ICAC seeking a fine. The respondent filed a counter-claim, seeking payment for the equipment supplied. This counterclaim was granted as there existed no excuse for failure to pay for the delivered items of machinery. Thus, it was the claimant who was ordered to pay compensation for damages to the respondent under this award.
In this interesting case the arbitrators were required to fill numerous gaps left in the contract by the parties. No necessary norms could be found in the CISG and the tribunal had to apply the norms of German law.