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INTERBATIONAL COMMERCIAL ARBITRATION © Vinogradova Elena Lapland University October 30, 2007 INTRODUCTORY PART: ICA in the CONTEMPORARY WORLD © Vinogradova Elena Lapland University October 29, 2007 International Commercial Arbitration What is International Commercial Arbitration? 1. What is “Arbitration”? 2. What is “Commercial”? 3. What is “International”? International Commercial Arbitration What is International Commercial Arbitration? 1. What is “Arbitration”? 2. What is “Commercial”? 3. What is “International”? International Commercial Arbitration ARBITRATION – is one of the ADR methods of disputes resolution (ARBITRATION v. COURT) ARBITRATION – is PRIVATE (NOT PUBLIC like COURT) ARBITRATION – is CONTRACTUAL by nature (NO ARBITRATION AGREEMENT - NO ARBITRATION) ARBITRATION - generally is a CONTRACTUAL PROCEDURE ARBITRATION – render an ARBITRAL AWARD (FINAL and BINDING upon the parties to the disputes) International Commercial Arbitration The term "commercial" should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature … International Commercial Arbitration An arbitration is international if: (a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States; or (b) one of the following places is situated outside the State in which the parties have their places of business: (i) the place of arbitration if determined in, or pursuant to, the arbitration agreement; (ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; or (c) the parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one country. Article 1 UNCITRAL Model Law “On International Commercial Arbitration” (1985) International Commercial Arbitration Is one of the integral indicators of the foreign investments climate International Commercial Arbitration IS NOT SO EASY IN USE AS in LAWYERS ANECDOTICAL TALES International Commercial Arbitration “How could one become a good international arbitration?” (Yong lawyer asked) “Oh, that’s no problem, you just have to survive the first thirty years” (An experienced practitioner answered) International Commercial Arbitration Basic dilemma of international arbitration: A sound knowledge and comparative attitude is not enough Success requires a GOOD MIXTURE of: Legal knowledge Long practical experience Common sense Commercial thinking Reputation Natural procedural skill Klaus Peter Berger Arbitration Interactive 2002 (www.peterlang.de) International Commercial Arbitration Introduction Arbitration Agreement Arbitral Proceeding Arbitration Hearing Arbitral Award Setting Aside and Enforcement of the ICA award International Commercial Arbitration Arbitration procedure v. Judicial Procedure Impact of the legal system and cultures traditions International Commercial Arbitration UNINTED NATIONAS COMMISSION ON INTENATIONAL TRADE (UNCITAL) WWW.UNCITRAL.ORG International Commercial Arbitration - INSTITUTIONS ICAC AT THE CCI RF www.tpprf.ru ICA AT THE ICC www.iccwbo.org Deutsche Institution für Schiedsgerichtsbarkeit e. V. (DIS) http://www.dis-arb.de LCIA – www.lcia.co.uk Arbitration Institute of the Stockholm Chamber Of Commerce – www.chamber.se International Arbitration Court at the ICC – www.iccarbitration.org International Arbitration Court of the Austrian Federal Chamber of Commerce – wko.at/arbitration International Commercial Arbitration International Commercial Arbitration: Locating the Resources - Revised http://www.llrx.com/ http://www.eisil.org/ International Commercial Arbitration Basic Trends Possible Development International Commercial Arbitration Basic Arbitration Trends follows Litigation Changes in Litigation (Aim, Procedure, Case-Management, Time-limits, etc.) are determinative for similar changes in Arbitration The dimension of truth: rectitude of decision In all systems of procedure doing justice means arriving at decisions which give the parties before the court what is legally due to them. In order to do justice, then, the court has to determine the true facts and then correctly apply the law to them. In Bentham’s terminology, the purpose of procedure is rectitude of decision, which requires the correct application of law to the true facts. ADRIAN A.S. ZUCKERMAN “Civil Justice in Crisis Comparative Perspectives of Civil Procedure” ADRIAN A.S. ZUCKERMAN on Civil Procedure. 2d ed. Sweet&Maxwell.2006. “The court is under the duty to decide the case according to the law and facts, but the court is not infallible. No system can guarantee the factual correctness of each and every judgment. Furthermore, we do not have a meta-test for judging the conformity of individual judgment to the truth; if we had independent means of ascertaining the truth, we would be using them rather than the present procedure.” International Commercial Arbitration Basic Trends Globalozation in Arbitration means more garmonization beween different Cultures and Different llegal system (Common law v. Civil Law) 1. BASIC TRENDS: 2. National Legislation ON ICA mostly based on and generally consistent with the NYC (1958), The UNCITRAL Model Law “On ICA” (1985) almost literally was repeated For instance, in the Law of the RF “ON ICA” (1993) and it’s provisions on setting aside and enforcement were incorporated in the new Russian procedural legislation (since 2002) BASIC TRENDS: 3. Critical Issues in ICA: Multi-parties arbitration (representation or principalagent relationship; third party beneficiaries or assignees; universal or individual transfer; etc.) More Efficient and Speedy Procedure (more Institutional Control on arbitral procedure, inc. composition of the arbitral tribunals, elements of casemanagement, scrutiny of the award “BUT NOT ON THE MERIT”), more power for arbitrators to determine the arbitral procedural rules, etc. V. Parties Autonomy in Private Arbitration). BASIC TRENDS: 3. Critical Issues in ICA: Arbitration agreement “in Writing”??? Mixed Role of Arbitrator in Med-Arb Finality of the Award and the scope of the RES JUDICATA Effect. Possible development 1. 2. Further development oF the “res judicata” concept preventing as much as possible appearance of the conflicting awards/ awards and judicial acts Improving the national arbitration laws “on ica” and practice on the basis of the UNCITRAL 39th session resolutions reflecting new trends of the “arbitration in writing interpretation and implementation” and dealing with the “draFt legislative provisions on Interim measures and preliminary orders” UNCITRAL MLA 2006 Thirty-ninth session New York, 19 June-7 July 2006 United Nations A/CN.9/605 United Nations A/CN.9/606 United Nations A/CN.9/607 ARBITRATION AGREEMENT Vinogradova Elena Lapland University October 30, 2007 Definition of arbitration agreement: TYPES of Arbitration Agreements: MANDATORY arbitration agreements: Bilateral Investment Treaties, other International Agreements (Treaties) Arbitration agreements concluded by contracting parties (VOLUNTARY) Definition of VOLUNTARY CONCLUDED arbitration agreement: 1)International Conventions: New-York Convention, 1958 (Art. II), Model UNCITRAL Law, 1985 (Art. 7) 2)Domestic law – Russian Law on ICA, 1993 (Art.7) Definition of arbitration agreement: New-York Convention 1958 (Art. II.1): “Each Contracting States shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen OR which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration”. Definition of arbitration agreement: New-York Convention 1958 (art. II.2): “The term “AGREEMENT IN WRITING” shall include an arbitration clause in a contract OR an arbitration agreement, signed by the parties OR contained in an exchange of letters or telegrams”. Definition of arbitration agreement: New-York Convention 1958 (art. II.2): United Nations A/CN.9/607 General Assembly 13 April 2006 Draft declaration regarding the interpretation of article II, paragraph (2), and article VII, paragraph (1), of the New York Convention … Taking the view that guidance on interpretation of article II, paragraph (2) would be useful in achieving the objective of ensuring uniform interpretation that responded to the needs of international trade, the Working Group decided that a declaration, resolution or statement addressing the interpretation of the New York Convention that would reflect a broad understanding of the form requirement could be further studied to determine the optimal approach.14 ….. Definition of arbitration agreement: UNCITRAL MLA 1985 (Art.7) = RF LAW “On ICA” (1993): “DEFINITION AND FORM OF ARBITRATION AGREEMENT” Definition of arbitration agreement: UNCITRAL MLA 1985 (Art.7) = RF LAW “On ICA” (1993): “DEFINITION AND FORM OF ARBITRATION AGREEMENT” “1. Arbitration agreement” is an agreement by the parties to submit to arbitration all OR certain disputes which have arisen OR which may arise between them in respect of a defined legal relationship, whether contractual or not. Arbitration agreement may be in a form of an arbitration clause in a contract or in a form of a separate agreement. Definition of arbitration agreement: UNCITRAL MLA 1985 (Art.7) = RF LAW “On ICA” (1993): “DEFINITION AND FORM OF ARBITRATION AGREEMENT” “2. The arbitration agreement SHALL BE IN WRITING. An ARBITRATION AGREEMENT IS IN WRITING IF It is contained a a document signed be the parties OR in exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement, OR in an exchange of statement of claim and defence in which the existence of an agreement is alleged by one party and not denied by another. Definition of arbitration agreement: UNCITRAL MLA 1985 (Art.7) = RF LAW “On ICA” (1993): “DEFINITION AND FORM OF ARBITRATION AGREEMENT” “The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract” Definition of arbitration agreement: UNCITRAL MLA 1985 (Art.7) = RF LAW “On ICA” (1993): “DEFINITION AND FORM OF ARBITRATION AGREEMENT” In exchange of statements of claim and defense in which the existence of an agreement is alleged by one party and not denied by another. United Nations A/CN.9/592 United Nations Commission on International Trade Law Thirty-ninth session New York, 19 June-7 July 2006 UNCITRAL MLA 2006 (Art.7, revised) “DEFINITION AND FORM OF ARBITRATION AGREEMENT” (1) ‘Arbitration agreement’ is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (NO REVISION) United Nations A/CN.9/592 United Nations Commission on International Trade Law Thirty-ninth session New York, 19 June-7 July 2006 UNCITRAL MLA 2006 (Art.7, revised) “DEFINITION AND FORM OF ARBITRATION AGREEMENT” (2) The arbitration agreement shall be in writing. (NO REVISION) United Nations A/CN.9/592 United Nations Commission on International Trade Law Thirty-ninth session New York, 19 June-7 July 2006 UNCITRAL MLA 2006 (Art.7, revised) “DEFINITION AND FORM OF ARBITRATION AGREEMENT” (3) An arbitration agreement is in writing if its [terms are] [content is] recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means. (NEW) United Nations A/CN.9/592 United Nations Commission on International Trade Law Thirty-ninth session New York, 19 June-7 July 2006 UNCITRAL MLA 2006 (Art.7, revised) “DEFINITION AND FORM OF ARBITRATION AGREEMENT” (4) The requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained therein is accessible so as to be useable for subsequent reference; “Electronic communication” means any communication that the parties make by means of data messages; “Data message” means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy . (NEW) United Nations A/CN.9/592 United Nations Commission on International Trade Law Thirty-ninth session New York, 19 June-7 July 2006 UNCITRAL MLA 2006 (Art.7, revised) “DEFINITION AND FORM OF ARBITRATION AGREEMENT” (5) Furthermore, an arbitration agreement is in writing if it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other. (NO REVISION) United Nations A/CN.9/592 United Nations Commission on International Trade Law Thirty-ninth session New York, 19 June-7 July 2006 UNCITRAL MLA 2006 (Art.7, revised) “DEFINITION AND FORM OF ARBITRATION AGREEMENT” (6) The reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract. (NO REVISION) Definition of arbitration agreement: TYPES of Arbitration Agreements: 1. ARBITRATION CLAUSE SUBMISSION 2. Definition of arbitration agreement: TYPES of Arbitration Agreements: 1. ARBITRATION CLAUSE About disputes which may arise in the future Included in a document (contract, usually) signed by the parties Definition of arbitration agreement: TYPES of Arbitration Agreements: 2. SUBMISSION - An agreement about disputes which have been already arisen AFTER the dispute occurred is not easy to conclude Definition of arbitration agreement: TYPES of Arbitration Agreements ARBITRATION CLAUSE Example 1 “All disputes, controversy or claim which may arise out of or in connection with the present contract (agreement), or the execution, breach, termination or invalidity thereof, shall be settled by ICAC at the CCI of the Russian Federation” (ICAC Arbitration clause recommended for insertion in foreign contracts) Definition of arbitration agreement: TYPES of Arbitration Agreements 1. ARBITRATION CLAUSE Example 2 “All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with these Rules” (ICC Arbitration clause – STANDART) Definition of arbitration agreement: TYPES of Arbitration Agreements 1. ARBITRATION CLAUSE “ Example 3 Any dispute arising out of or in connection with this contract, Including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be [one/three]. The seat, or legal place, of arbitration shall be [ The language to be used in the arbitral proceedings shall be [ The governing law of the contract shall be substantive law of [ “. (LCIA Recommended Clause – Future Disputes) Effective 1 January 1998 Definition of arbitration agreement: TYPES of Arbitration Agreements 2. SUBMISSION Example 1 “If a dispute has arisen, but there is no agreement between the parties to arbitrate, or if the parties wish to vary a dispute resolution clause to provide the LCIA arbitration, the following clause is recommended. Words/spaces in square brackets should be deleted\completed as appropriate. A dispute having arisen between the parties concerning [ ], the parties hereby agree that the dispute shall be referred to and finally resolved by arbitration under the LCIA Rules. …” (LCIA Recommended Clause – Future Disputes) Effective 1 January 1998 Definition of arbitration agreement: TYPES of Arbitration Agreements 1. ARBITRATION CLAUSE Examples: Definition of arbitration agreement: TYPES of Arbitration Agreements 1. ARBITRATION CLAUSE Example #1 INFORMATION LETTER OF THE PRESIDIUM OF THE SUPREME ARBITRAZH COURT OF THE RUSSIAN FEDERATION NO. 29 OF FEBRUARY 16, 1998 THE JUDICIAL AND ARBITRATION OVERVIEW OF SETTLEMENT OF DISPUTES IN CASES INVOLVING FOREIGN PERSONS (Para.13) Definition of arbitration agreement: TYPES of Arbitration Agreements 1. ARBITRATION CLAUSE Example #1 The foreign economic contract for international purchase and sale contained an arbitration clause to the effect that all the differences that may arise out of obligations under the contract shall be considered "at the Paris institute". Definition of arbitration agreement: TYPES of Arbitration Agreements 1. ARBITRATION CLAUSE Example #1 The arbitration court established that the claimant the same as the respondent was in no position to specify the content of the given clause: failed to give an accurate name of an international institutional arbitration, to supply explanations thereabout and denied the validity of declaration of its will regarding the arbitration arrangement in the given foreign economic contract. Definition of arbitration agreement: TYPES of Arbitration Agreements 1. ARBITRATION CLAUSE Example #1 In other words, the court established that the given arbitration arrangement could not be specified and consequently, implemented by the parties to the foreign economic contract. Definition of arbitration agreement: TYPES of Arbitration Agreements 1. ARBITRATION CLAUSE Example #2 The Arbitrazh Court recognized that arbitration clause is exist and valid, when there was no exact name of the institutional arbitration in Austria. Definition of arbitration agreement: TYPES of Arbitration Agreements 1. ARBITRATION CLAUSE Example #2 There was such wording of the arbitration clause: “Disputes, which shall arise beween the contracting parties will be resolved in the Arbitration Court at the CCI of Austria, in Viena” Definition of arbitration agreement: TYPES of Arbitration Agreements 1. ARBITRATION CLAUSE Example #2 Arbitrators interpreted the given wording and stated that “International Arbitration Court of Austria in translation into Russian sounds like ARBITRATION COURT at the CCI in Austria”. Decision of the Feferal Arbitrazh Court Of the VOLGO-VJATSKIJ CIRCUIT of April 24, 2003 # 13260/02-15-28 isp. Definition of arbitration agreement: TYPES of Arbitration Agreements 2. SUBMISSION Example #1 INFORMATION LETTER OF THE PRESIDIUM OF THE SUPREME ARBITRAZH COURT OF THE RUSSIAN FEDERATION NO. 29 OF FEBRUARY 16, 1998 THE JUDICIAL AND ARBITRATION OVERVIEW JUDICIAL PRACTICE IN CASES INVOLVING FOREIGN PERSONS (Para.14) Definition of arbitration agreement: TYPES of Arbitration Agreements 2. SUBMISSION Example #1 The foreign trade contract for international purchase and sale contained an arbitration clause to the effect that all the differences arising out of obligations under the given contract shall be resolved by an ad hoc arbitration. Russia and France are the parties to the European Convention on Foreign Trade Arbitration (Geneva, 1961). Definition of arbitration agreement: TYPES of Arbitration Agreements 2. SUBMISSION Example #1 Under Item 2 of Article 1 of the Convention the term "arbitration" means the resolution of disputes by arbitrators appointed for each individual case (ad hoc arbitration). Item 3 of Article IV of the Convention prescribes that the procedure for composition an ad hoc arbitration in the event the parties have failed to agree in the arbitration clause about the appointment of an arbitrator (arbitrators) and to designate a place of arbitration. In such a situation, the court shall solve the issue of it’s competence as regards the consideration of a dispute under a foreign economic contract containing an arbitration clause in accordance with the provisions of the Convention and the national law. Definition of arbitration agreement: TYPES of Arbitration Agreements 1. ARBITRATION CLAUSE Example #3 INFORMATION LETTER OF THE PRESIDIUM OF THE SUPREME ARBITRAZH COURT OF THE RUSSIAN FEDERATION NO. 29 OF FEBRUARY 16, 1998 THE JUDICIAL AND ARBITRATION OVERVIEW OF Judicial Practice IN CASES INVOLVING FOREIGN PERSONS (Para.15) Definition of arbitration agreement: TYPES of Arbitration Agreements 1. ARBITRATION CLAUSE Examples Under the Arbitrazh Procedural Code of the Russian Federation the arbitrazh court shall neglect a claim in the event the parties concerned have agreed about the reference of the given dispute for settlement to a court of arbitration and the possibility to refer the dispute to a court of arbitration has not been lost and if the respondent objecting against the resolution of a case by an arbitrazh (state) court has made an application not later than its first statement as to the merits of the dispute for reference the dispute for resolution to a court of arbitration. Definition of arbitration agreement: TYPES of Arbitration Agreements 1. ARBITRATION CLAUSE Example #3 The arbitration court shall neglect a claim on the basis the Arbitrazh Procedural Code of the Russian Federation related to a cession in the event that the principle contract of assignment of a claim contained an arbitration clause about the referring of disputes under the deal to the international commercial arbitration. Definition of arbitration agreement: TYPES of Arbitration Agreements 1. ARBITRATION CLAUSE Example #3 Belgian and USA companies made in 1996 a contract of assignment of action, claim and payment under which the first company assigned to the other company the right of claim against a Russian stock company for the return of moneys received by the latter from the Belgian company under a loan agreement. The American company opened in Russia its representative office and filed a claim to the arbitration court of the Russian Federation against the Russian stock company for the recovery of the debt under the loan issued by the Belgian company. Definition of arbitration agreement: TYPES of Arbitration Agreements 1. ARBITRATION CLAUSE Example #3 The parties specified in the loan agreement that any disputes and differences that may arise therefrom shall be settled through negotiations and in case points at issue cannot be settled amicably, - at the Arbitration Institute under the chamber of commerce in the city of Stockholm in accordance with the rules of procedure of the said Arbitration Institute. Definition of arbitration agreement: TYPES of Arbitration Agreements 1. ARBITRATION CLAUSE Example #3 By lodging a claim to the (state) arbitrazh court of the Russian Federation the assignee maintained that the arbitration clause as an arrangement between the parties represents an independent condition apart from the principle contract and lacks any material and legal nature, but rather has a procedural character, therefore it could not been assigned to it under a contract of cession. Definition of arbitration agreement: TYPES of Arbitration Agreements 1. ARBITRATION CLAUSE Example #3 Under Article 384 of the Civil Code of the Russian Federation the right of prior creditor shall pass over to a new creditor in the scope and under the conditions that existed at the moment of such transfer, unless otherwise is specified under the law or a contract. Definition of arbitration agreement: TYPES of Arbitration Agreements 1. ARBITRATION CLAUSE Example #3 The analysis of the said rule and the contract of cession signed between the parties providing also for the assignment of right of action made it possible to make the following conclusions: the lodging of claim to protect the infringed rights constitutes one of the components of the content of the right of claim transferred to another creditor; Definition of arbitration agreement: TYPES of Arbitration Agreements 1. ARBITRATION CLAUSE Example #3 the preservation by the parties of the previously established procedure for settling disputes does not impair the rights of the assignee and makes it possible to ensure the proper protection of the debtor's interests. Definition of arbitration agreement: TYPES of Arbitration Agreements 1. ARBITRATION CLAUSE Example #3 In view of the above, the (state) arbitrazh court made a justified conclusion that the conditions mentioned under Article 384 of Civil Code of the Russian Federation under which the rights of a prior creditor are transferred to a new creditor may also include the condition of choosing a certain arbitration to resolve eventual disputes between the parties to the contract. Concequences of arbitration agreement: “KOMPETENZ-KOMPETENZ” Severability of arbitration agreement Concequences of arbitration agreement: “KOMPETENZ-KOMPETENZ” Arbitral tribunal is authorized to decide issue of it’s own competence Art. 16(1) UNCITRAL MLA, Art.16 (1) RF LAW “On ICA” Concequences of arbitration agreement: “KOMPETENZ-KOMPETENZ” The arbitral Tribunal may rule on it’s own jurisdiction, including any objections with respect to the existence and validity of the arbitration agreement Art. 16(1) UNCITRAL MLA, Art.16 (1) RF LAW “On ICA” Concequences of arbitration agreement: 2. (AUTONOMY) Severability of Arbitration Agreement For THAT PURPOSE, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. Art. 16(1) UNCITRAL MLA, Art.16 (1) RF LAW “On ICA” Concequences of arbitration agreement: 2. (AUTONOMY) Severability of Arbitration Agreement A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the validity of the arbitration clause Art. 16(1) UNCITRAL MLA, Art.16 (1) RF LAW “On ICA” Concequences of arbitration agreement: 2. Autonomy (Severability) of arbitration agreement – establishment the principle in a case-flow. EXAMPLE. V/O SOJUZNEFTEEXPORT (USSR) V. “JOC OIL” COMPZNY (Bermuda) Concequences of arbitration agreement: V/O SOJUZNEFTEEXPORT (USSR) V. “JOC OIL” COMPZNY (Bermuda) “The doctrine of separability is at the heart of the case. It has loomed large at all stages because it goes to the issue of the validity of the arbitration agreement, i.e., it relates to the defence under Sect. 5(2)(b) of the 1976 Act. Joc Oil's argument throughout has been that the arbitration agreement is invalid because the contract in which it is imbedded is invalid under Soviet law. In short, the invalidity of the main agreement taints the arbitration clause. … [3 Court of Appeal of Bermuda, 7 July 1989] Concequences of arbitration agreement: V/O SOJUZNEFTEEXPORT (USSR) V. “JOC OIL” COMPZNY (Bermuda) “It would appear that logically the question of whether the arbitration clause is itself a 'transaction in foreign trade' within the meaning of the 1935 Signature Decree (as Joc Oil contends) so as to require the signatures of two authorized persons should be considered before one embarks upon an examination of the doctrine of separability, for if Joc Oil is right in their contention, and there is no valid arbitration agreement and that is an end of the matter and the question of the existence of the doctrine of separability in Soviet law would become an academic issue. The FTAC Arbitrators held that the 1935 Signature Decree had no application. … [3 Court of Appeal of Bermuda, 7 July 1989] Concequences of arbitration agreement: V/O SOJUZNEFTEEXPORT (USSR) V. “JOC OIL” COMPZNY (Bermuda) “Having considered the arguments advanced by both SNE and Joc Oil, I can see no reason to doubt the correctness of the conclusion reached by three of the experts on Soviet law, by the FTAC Arbitrators and by the learned Judge, that the 1935 Signature Decree has no application to an arbitration clause. … [3 Court of Appeal of Bermuda, 7 July 1989] Concequences of arbitration agreement: “KOMPETENZ-KOMPETENZ” A plea that the tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. Art. 16(2) UNCITRAL MLA, Art.16 (2) RF LAW “On ICA” Concequences of arbitration agreement: PRACTICE INFORMATION LETTER OF THE PRESIDIUM OF THE HIGHER ARBITRATION COURT OF THE RUSSIAN FEDERATION NO. 10 OF DECEMBER 25, 1996 "REVIEW OF THE PRACTICE OF SETTLEMENT OF DISPUTES RELATED TO CASES INVOLVING FOREIGN PERSONS“ (Para. 2) Concequences of arbitration agreement: The state arbitrazh court shall have the right to examine a dispute subject to its respective jurisdiction and involving a foreign person given the agreement between the parties to the dispute on referring the differences for settlement to an arbitration provided always that a claim has been lodged with a relevant state arbitrazh court of of the subject of the Russian Federation; the respondent has not applied for referring a dispute to arbitration prior to its first statement as to the essence of the dispute or prior to the first award made by the state arbitrazh court. Concequences of arbitration agreement: The court of arbitration received a claim lodged by a Russian foreign trade association against a British commercial company. The dispute has resulted from a foreign trade transaction that was to be executed, basically, in the territory of the Russian Federation. The foreign trade contract signed by the parties contained an arbitration clause. Concequences of arbitration agreement: Meanwhile, the claim was filed to the state arbitrazh court in the Russian Federation, the respondent (the British company) presented its objections against the claim, the evidence to substantiate them as well as participated in the court sessions as the dispute was considered by the trial and appeals authorities. Only in the exercise of the right of appeal by cassation did the respondent make a reference to the fact that the claim had been lodged in breach of the arbitration agreement related to the transaction and the state arbitraz court had no right to consider the dispute arising from the said contract. Concequences of arbitration agreement: Nature of Arbitration Agreement 1. 2. 3. Contractual concept Procedural concept Sui generis concept Concequences of arbitration agreement: Nature of Arbitration Agreement Contractual concept All matters in arbitration have to be decided on the basis of civil law It coursed oversimplification in the modern state arbtrazh courts practice: “Arbitration agreement is an ordinary transaction (contract) which is of civil law nature” Concequences of arbitration agreement: Nature of Arbitration Agreement Procedural concept 1. All matters in arbitration have to be decided on the basis of law on civil procedure It is criticized for impossibility to explain why all questions concerning parties capability to conclude arbitration agreement, it’s form and it’s validity are to be decided on the basis of the contract (civil law) Concequences of arbitration agreement: Nature of Arbitration Agreement Sui generis concept (Swissair-Hall, 1952) 1. 2. Arbitration is based on the agreement (“contract”) autonomous from the other provisions of main contract. General provisions of Civil (Contact) Law are applied to the arbitration agreement: Concerning the parties capability to conclude; About the form of the arbitration agreement; In deciding on it’s validity; On it’s availability (substantial arbitrability). Concequences of arbitration agreement: Nature of Arbitration Agreement Sui generis concept (Swissair-Hall, 1952) Arbitration is based on the agreement (“contract”) autonomous from the other provisions of main contract. 1. After the Arbitration Agreement is concluded it has procedural consequences: “KOMPETENZ-KOMPETENZ” SEVERABILITY Impossibility of non-contractal -one-side waiver of the concluded arbitration agreement Exclusion of the State court jurisdiction Relative state court absence of jurisdiction (possessing jurisdiction when there is no prima facie existing, valid, enforcable arbitration agreement). Concequences of arbitration agreement: Nature of Arbitration Agreement Russian special practice 1. Filing claims to the state courts for invalidation of arbitration clauses OR 2. For the cancellation of the arbitration clause Concequences of arbitration agreement: Nature of Arbitration Agreement 1. Russian special practice Filing claims to the state courts for invalidation of arbitration clauses EXAMPLE: Concequences of arbitration agreement: 1. Nature of Arbitration Agreement Russian special practice Filing claims to the state courts for invalidation of arbitration clauses EXAMPLE: State Arbitrazh Court in the first instance decided that arbitration agreement – the only provision of the additional agreement to the main contract - is invalid. The reasoning of this decision was – to qualify the arbitration agreement as an ordinary transaction and apply the provisions of the Civil Code of the RF on the invalidity of civil contracts. Concequences of arbitration agreement: 1. Nature of Arbitration Agreement Russian special practice Filing claims to the state courts for invalidation of arbitration clauses EXAMPLE: North-West Circuit State Arbirazh Court as a court of cassation overruled this decision because of the wrong qualification in accordance with Article 153 of the RF Civil Code. It was stated that arbitration agreement have not to be qualified as an ordinary transaction. It is not caused civil rights and obligations in accordance with Article 153 of the RF Civil Code. Decree of the NW Circuit State Arbitrazh Court Of May 16, 2005, case # A56-2109/04. Concequences of arbitration agreement: Nature of Arbitration Agreement Russian special practice 2. For the cancellation of the arbitration clause EXAMPLE: The state arbitrazh Courts in Krasnodar Region in 20002001 formed local practice – to cancel to this agreement agreements because of the objections of one party to the arbitration agreement (usually – defendant) against based on this valid arbitration agreement arbitration proceeding. Concequences of arbitration agreement: Nature of Arbitration Agreement Russian special practice 2. For the cancellation of the arbitration clause EXAMPLE: The Supreme Arbitrazh Court stated that the reasoning behind such practice is erroneous. This resoning is inconsistent with the established rule of law allowed arbitration agreements and recognized principles: Impossibility of non-contractal -one-side waiver of the concluded arbitration agreement Exclusion of the State court jurisdiction Relative state court absence of jurisdiction (possessing jurisdictiom when there is no prima facie existing, valid, enforcable arbitration agreement). ARBITRATION AGREEMENT CHECK-LIST • CHECK-LIST Types of Arbitration Agreement (mandatory and Voluntary, Arbitration Clause and Submission) Form of Arbitration Agreement (in writing) [Art.7 in the UNCITRAL Model Law 1985 and Art.7 text revised by UNCITRAL in 2006) Conclusion of Arbitration Agreement (5 methods) Wording of Arbitration Agreement (Recommended Arbitration Clauses) Procedural Consequences of concluding valid, enforceable, permissible by Rule of Law Arbitration Agreement [Irrevocability of an arbitration Clause in general, exceptions; “Kompetenz-Kompetenz”, Autonomy (Severability of Arbitration Agreement). Nature of Arbitration Agreement (3 basic Concept). Erroneous and Correct Interpretation and Implementation in Russian Judicial Practice. ARBITRATION PROCEDURE Vinogradova Elena Lapland University October 31, 2007 PROCEDURAL MATTERS CHECKLIST Determination of Rules of procedure (Art.19 MLA, 1985) Place (Seat) of Arbitration (Art.20 MLA, 1985) Language (Art.22 MLA, 1985) PROCEDURAL MATTERS CHECKLIST Procedures Applicable Prior the Hearing 1. Taking a Discovery Presentation of Written Evidence Number of Fact Witnesses 2. 3. PROCEDURAL MATTERS CHECKLIST Procedures Applicable at a Hearing 1. Oral Testimony Use of Documents at a Hearing Order of Presentation of Proof Administering of an Oath 2. 3. 4. PROCEDURAL MATTERS CHECKLIST Timing of Proceeding Tools and tactics – ICAC Commencement of the Arbitral Proceeding (Art.21, MLA-1985): Filing a Claim Content of the Statement of Claim Rectification of the Statement of Claim Request for the dispute is received by the respondent (unless otherwise agreed by the parties) Composition of Arbitral Tribunal Arbitration Fees Tools and tactics – ICAC Mechanism and period of time for an Arbitral Tribunal Composition Nationality and knowledge of Arbitrators: Foreign or National? Most appropriate qualification of arbitrators Challenge: Ground and Procedure Tools and tactics – ICAC Hearing of the case: § 27 – 37 ICAC Rules Equal treatment of Parties (MLA, 1985 – Art.18) Participation of the Parties Alteration or addition to Claim or Defense – without undue delay Counter-claim and Claim for Set-Off Third parties – conditions and consequences Tools and tactics – ICAC The Final Award No scrutiny -??? Limited scrunity by the Secretariat\Board\Presidium Time for making arbitral award in writing. Signature’s procedure. Correction of the Award – on the Party’s Request submitted within 30 Days of Receipt of the Arbitral Award Any error in computation, clerical or typographical errors Arbitration and Legal Costs - Schedule on Arbitration Fees and costs Improvement of the Arbitral Procedural Rules in the Leading Arbitral Institutions Basic Trends Reflect the global trend towards increasingly complex transactions involving multiple parties; The appointment procedure by the Institutions complies (?) with any requirements of due process which may give each party an equal right to appoint an arbitrator, in line with the practice of most institutions, ensures efficiency, and respects the agreement of the parties. Provide an effective and flexible system for conducting both domestic and international arbitrations; ARBITRAL AWARD © Vinogradova Elena Lapland University November 1st, 200 INTERBATIONAL COMMERCIAL ARBITRATION Arbitral Awards: Final and Binding (on the substance) Partial (on the substance) Default (on the substance) Ex parte (on the substance) On agreed terms (on the substance) INTERBATIONAL COMMERCIAL ARBITRATION Arbitral Awards: Interlocutory order Award (procedural) Order (procedural) Decision (on the jurisdiction) Decision (both meanings are possible) INTERBATIONAL COMMERCIAL ARBITRATION Arbitral Awards: CHECK-LIST Content, Completeness of the Award Drafting Reasoning Dissents and Concurrences Correction, Omission. Clarification Confidentially INTERBATIONAL COMMERCIAL ARBITRATION Arbitral Awards: CHALLENGING/SETTING ASIDE Time-limits Grounds (two groups) 1. To be proved by the party Applied EX OFFICIO by the Courts 2. INTERBATIONAL COMMERCIAL ARBITRATION Arbitral Awards: CHALLENGING/SETTING ASIDE 1. Grounds To be proved by the party (Art. 34 UNCITRAL MLA): (i) a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of this State; or (ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or INTERBATIONAL COMMERCIAL ARBITRATION Arbitral Awards: CHALLENGING/SETTING ASIDE 1. Grounds To be proved by the party (Art. 34 UNCITRAL MLA): (iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Law; or INTERBATIONAL COMMERCIAL ARBITRATION Arbitral Awards: CHALLENGING/SETTING ASIDE Grounds Applied EX OFFICIO by the Courts: (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or (ii) the award is in conflict with the public policy of this State. INTERBATIONAL COMMERCIAL ARBITRATION Arbitral Awards: Grounds (two groups) 1. To be proved by the party 2. Applied EX OFFICIO by the Courts [Art. 36 UNCITRAL MLA (1985), Art. Y New York Convention (1958)] INTERBATIONAL COMMERCIAL ARBITRATION Arbitral Awards: GROUNDS to Refuse in Recognition and/or enforcement): 2. Applied EX OFFICIO by the Courts [Art. 36 UNCITRAL MLA (1985), Art. Y New York Convention (1958)] INTERBATIONAL COMMERCIAL ARBITRATION The Conflict of Arbitral Awards and Judicial Decisions. The Conflict of Arbitral Awards and Judicial Decisions. Why do the Conflicts Exist? How to Eliminate the Conflicts? The Conflict of Arbitral Awards and Judicial Decisions. Typical Example of the Conflict: Rendering the Arbitral Award and Judicial Decision (Judgment) on the Same Dispute The Conflict of Arbitral Awards and Judicial Decisions. What is the “Same Dispute”? THE GENERAL DOCTRINE: RES JUDICATA The Conflict of Arbitral Awards and Judicial Decisions. What is the “RES JUDICATA”? The “TRIPLE-IDENTITY CRITERIA”: The same subject-mater OR Releif The same legal grounds The same parties THE ILA Arbitration Commission Interim Report, 2004 (Berlin) The Conflict of Arbitral Awards and Judicial Decisions. The “TRIPLE-IDENTITY CRITERIA”: Is to be said a clear example of General Principle of Law Recognized by Civilized Nations. THE ILA Arbitration Commission Interim Report, 2004 (Berlin) The Conflict of Arbitral Awards and Judicial Decisions. “RES JUDICATA” has two Effects: The Positive Effect The Negative Effect THE ILA Arbitration Commission Interim Report, 2004 (Berlin) The Conflict of Arbitral Awards and Judicial Decisions. “RES JUDICATA” / The Positive Effect A Judgment or Award is Final and Binding Between the Parties and should be Implemented (Subject to any Available Appeal or Challenge) THE ILA Arbitration Commission Interim Report, 2004 (Berlin) The Conflict of Arbitral Awards and Judicial Decisions. “RES JUDICATA” has two Effects: The Negative Effect: Subject-Matter of the Judgment or Award cannot be re-litigated a Second Time (ne bis in idem) THE ILA Arbitration Commission Interim Report, 2004 (Berlin) The Conflict of Arbitral Awards and Judicial Decisions. The Positive Effect IS LARGELY UNCONTROVERSIAL THE ILA Arbitration Commission Interim Report, 2004 (Berlin) The Conflict of Arbitral Awards and Judicial Decisions. “RES JUDICATA” has two Effects: The Positive Effect The Negative Effect THE ILA Arbitration Commission Interim Report, 2004 (Berlin) The Conflict of Arbitral Awards and Judicial Decisions. “RES JUDICATA” has two Effects: The Negative Effect Finds expression in TWO LATIN MAXIMAS: THE ILA Arbitration Commission Interim Report, 2004 (Berlin) The Conflict of Arbitral Awards and Judicial Decisions. “RES JUDICATA” - The Negative Effect TWO LATIN MAXIMAS: 1. It is the Public Interest that there should be An End of the Litigation 2. No One Should Be Proceeded Twice for the Same Course THE ILA Arbitration Commission Interim Report, 2004 (Berlin) The Conflict of Arbitral Awards and Judicial Decisions. “RES JUDICATA” - The Negative Effect TWO LATIN MAXIMAS: 1. It is the Public Interest that there should be An End of the Litigation It is the Matter of Private Justice THE ILA Arbitration Commission Interim Report, 2004 (Berlin) The Conflict of Arbitral Awards and Judicial Decisions. “RES JUDICATA” - The Negative Effect TWO LATIN MAXIMAS: No One Should Be Proceeded Twice for the Same Course It is a Matter of PUBLIC POLICY THE ILA Arbitration Commission Interim Report, 2004 (Berlin) The Conflict of Arbitral Awards and Judicial Decisions. WHEN RES JUDUCATA MIGHT ARISE? The Conflict of Arbitral Awards and Judicial Decisions. EXAMPLES When RES JUDICATA MIGHT ARISE in ICA: A Partial Award AND Final Award Two Abitral Tribunals A STATE COURT and AN ARBITRAL TRIBUNAL A Supra-National Court AND COURT or an ARBITRAL TRIBUNAL THE ILA Arbitration Commission Interim Report, 2004 (Berlin) The Conflict of Arbitral Awards and Judicial Decisions. A STATE COURT and AN ARBITRAL TRIBUNAL Seem to Appear Much More Frequently because of the PARALLEL PROCCEDINGS THE ILA Arbitration Commission Interim Report, 2004 (Berlin) The Conflict of Arbitral Awards and Judicial Decisions. “RES JUDICATA” IS RECOGNIZED BY THE LEGAL DOCRTINE in RUSSIA 2. IS ESTABLISHED IN THE RF LEGISLATION (THE RF LAW “ON ICA” (1993), Art. 35(1); The RF Procedural Codes (2002) (Art. 150 Part 3 Point 1 of the APC RF 2002). 3. Stated in the New York Convention (1958), Art. III (On the Recognition and Enforcement of Arbitral Awards) 1. “Enforcement of the Arbitral Awards and Interim Arbitral in of the Measures “Enforcement Russia Measures Awards and Interim in Russia Basic Trend, Current Practice Trend,Development”. Basic Possible Current Practice Possible Development”. © Prof. Vinogradova Elena Lapland University November 1st, 2007 BASIC TRENDS: Judicial Practice on arbitral awards enforcement based on and generally consistent with the NYC (1958), The UNCITRAL Model Law “On ICA” (1985) almost literally was repeated in the Law of the RF “ON ICA” (1993) and it’s provisions on setting aside and enforcement were incorporated in the new Russian procedural legislation (since 2002) BASIC TRENDS: Judicial Practice on arbitral awards enforcement based on and generally consistent with the most important characteristics: A party resisting the ICA arbitral award recognition and enforcement has a burden of proof of one or several so-called “procedural” grounds for refusal BASIC TRENDS: Judicial Practice on arbitral awards enforcement based on and generally consistent with the most important characteristics: No scrutiny of the ICA arbitral award by the state court is allowed (with exception of arbitrability and nonconsistency with public policy ) BASIC TRENDS: Judicial Practice on arbitral awards enforcement based on and generally consistent with the most important characteristics: No Court control the merits of the award – is a most important element of the civil law concept of arbitration “… There is, however, an exception to this rule. If the award on the merits or of the manner in which it was made, would violate rules of public policy, the award may be set aside and enforcement of the award may be refused. PIETER SANDERS “Quo vadis arbitration?” (1999. p.33). BASIC TRENDS: Judicial Practice on arbitral awards enforcement based on and generally consistent with the most important characteristics: “ … WE SAW thE ExtEnt of thiS control grAduAlly furthEr hArmoniSAtion on thiS importAnt iSSuE … SEEmS not to bE ExcludEd.” bEing morE And morE rEStrictEd. … PIETER SANDERS “QUO VADIS ARBITRATION?” (1999. Pp.33-38). CURRENT PRACTICE 1. 2. 3. 4. MYTHS: The Lack of uniform and consistent judicial practice The outcome of court cases is often contradictory and unpredictable The Russian courts carry out review on the merits Public policy is the Mirror of the ATTITUDE of state courts to arbitration because the RF Supreme Arbitrazh Court requires the courts to play an active role in reviewing the case on the merits 5. Russian Courts do not trust international commercial arbitration CURRENT PRACTICE 1. Myths 1-2: The Lack of uniform and consistent judicial practice ANTI-MYTH #1 “in overcoming … “hurdles” … russia is not alone. … The success of the New York Convention itself has not been accompanied by the same degree of success internationally in its harmonious application by the local courts…” Eric A. Swarts “leboeF lamb” cited CURRENT PRACTICE 1. Myths 1-2: The Lack of uniform and consistent judicial practice ANTI-MYTH #1 “there has been DEVELOPMENT TOWARDS A MORE UNIVERSALLY ACCEPTED approach. … that is likely to continue.” Eric A. Swarts “leboeF lamb” cited Vladimir Khvalei (Beker&McKenzie) CURRENT PRACTICE MYTH #2: ANTI-MYTH #2 Official statistics in 2006-2007: The outcome of court cases are often contradictory and unpredictable In six months of 2006 and in six months of 2007 state arbitrazh courts granted: some 80% of requests for the enforcement of domestic arbitral awards and awards of international commercial arbitration Consequently, – 694 /572 (83.70%), www.arbitr.ru/ Supreme Arbitrazh Court In 2007the – RF 581 /550 (81,8%) statistical reports In 2006 CURRENT PRACTICE The general trend in enforcement practice Most often state arbitrazh courts deny the requests for the arbitral award (both domestic and international) enforcement on the so-called procedural grounds to be proven by an applicant: MYTH #3 The Russian courts carry out review on the merits ANTI-MYTH # 3-1 The party making an application was not given proper notice ….or was otherwise unable to present his case; The arbitration agreement is not valid; The arbitral award is against non-party to an arbitration agreement or dispute not failing within the terms the arbitration agreement; The composition of the arbitral tribunal or arbitral procedure was not in accordance with the agreement of the parties. CURRENT PRACTICE ANTI-MYTH # 3-1 Recent Cases for anti-myth #3.1 (Example #1) MYTH #3 The Russian courts carry out review on the merits “… the (state) arbitrazh court does not re-establish facts established by the arbitral tribunal in the award…” Para. 20 of the Information Letter of the Supreme Arbitrazh Court #96 dated December 22, 2005 approved “An Overview of the Practice of Arbitrazh Courts in Considering Cases of the Recognition and Enforcement of Foreign Courts Decisions, or on Challenging of Arbitral Awards and on Arbitral Awards Enforcement” CURRENT PRACTICE ANTI-MYTH # 3-1 Recent Cases for anti-myth #3.1 (Example #2) MYTH #3 The Russian courts carried out a review on the merits “…the (state) arbitrazh court does not review the international commercial arbitral award, inc. the foreign arbitral award on the merits…” On September 12, 2006 The presidium of the Supreme arbitrazh court annulled 5 lower courts decisions By which 5 ICA arbitral awards had been setting aside because of the violation of Article 809 of the Russian Civil Code and, thereFore, “the Fundamental principles oF law”. The SAC presidium decisions on the cases: 4495/06, 4438/06, 4485/06, 4486/06, 4488/06 CURRENT PRACTICE ANTI-MYTH # 3-1 Recent Cases for anti-myth #3.1 (Example #3) MYTH #3 The Russian courts carried out a review on the merits “… the (state) arbitrazh court does not review the international commercial arbitral award, inc. the Foreign arbitral award on the merits…” The SAC presidium annulled the decisions of the state arbitrazh couRts in Belgorod Region By which the arbitral award rendered is Sweden had been setting aside because that “the arbitral tribunal (in Sweden) erroneously applied Russian substantive law”. It was re-confirmed that such a revision of the (foreign) arbitral award is out of the state arbitrazh court jurisdiction and stated that the artilce 230(5) of the ARC RF is not applicable to the foreign arbitral award on the merits The SAC presidium decision of March 30, 2004, #15359/03 CURRENT PRACTICE ANTI-MYTH # 4 Recent Cases for anti-myth #4.1 (Example ) “…the (state) arbitrazh court sets aside and reFuses an arbitral award enForcement iF such award should be in conFlict with the public policy (public order) oF the russian Federation…” MYTH #4 Public policy is the Mirror of the relationship of the state courts to arbitration because the Supreme Arbitrazh Court requirement the courts to play an active role in reviewing the case on the merit at least In 10 cases of 59 The FEderal arbitrazh Court of the Moscow district (Court of cassation – “Fas mo”) has reFused to apply “public policy (public order) as a ground for ICA award setting aside or non-enforcement the “Fas mo” decisions in cases: #KG -A40-31813/05-69-286; #KG -A40-9192/05; KG -A40-10275/04; KG -A40-10375-04; KG -A40-9998-04; KG -A40-7948/04; KG -A40-16874/03-40-169; KG -A40-2399/04-П; KG -A40-2527/04; KG -A40-2002/04; KG -A40-37557/03-25-143; KG -A40-4926/03; the speaker’s research result in the data-base “ consultan plus” (September 17, 2007 – online free access between 08:00 p.m. – 24:00 p.m., Moscow time) CURRENT PRACTICE MYTH #5 ANTI-MYTH # 5 HAS NO substantial fact BASIS In the light, Russian Courts do not trust to international commercial arbitration inter-alia, of the information Given In ANTI-MYTHS 1-4 MYTHS BASIS Too formalistic approach applied by the Russian state courts, partly explained by non-awareness of already established worldwide practice (requirement of the original copy of the award only, absence of the concrete name of the arbitral institution as a ground for setting aside or enforcement refusal, confusion of the hearing place with the “place of arbitration”, etc.) Non-compliance with the basically established judicial practice in the very russian “special cases” (for instance, this summer the Federal Arbitrazh Court of the Moscow District (Court of cassation – “FAS MO”) set aside the ICAC at the CCI arbitral award in two cases: ”ROSNEFT” v. “JUGANSKNEFTEGAZ” because two of three arbitrators did not disclose information about making their presentations at the international conference partly sponsored by the law firm representing the “JUGANSKNEFTEGAZ” in arbitration (Cases: #KG-A40/6616-07; #KG-A40/6775-07). Some unreasonable legislative deviations in favor of double-standards for setting aside and enforcement refusal of domestic and international arbitral awards (for instance, questionable substitution in domestic arbitration legislation the term “public policy (public order)” for ICA and foreign awards for the “fundamental principles of the Russian law”. MYTHS BASIS In accordance with not uniform Current judicial practice Articles 90 and 99 of the APC RF on the preliminary (Provisional) measures in ICA not always available through the Russian (state) arbitrazh courts if the further arbitral proceedings are to be conducted outside the territory of the Russian Federation. MYTHS BASIS The problems to be resolved everywhere (not typical Russian problems): Duplicate proceedings and conflicting arbitral or arbitral and judicial awards (See: ILA 2006 Resolutions and Final reports on “res judcata and arbitration” and “lis pendens and arbitration”); establishing modern approach to the “arbitration agreement in writing” Making judicially enforceable an interim measure issued by an arbitral tribunal irrespective of the country in which is was issued. Possible development 1. 2. Further development oF the “res judicata” concept preventing as much as possible appearance of the conflicting awards/ awards and judicial acts Improving the national arbitration laws “on ica” and practice on the basis of the UNCITRAL 39th session resolutions reflecting new trends of the “arbitration in writing interpretation and implementation” and dealing with the “draFt legislative provisions on Interim measures and preliminary orders”