Belarus - National Report - World Arbitration Reporter (WAR) - 2nd Edition

Alexey Anischenko is a partner and head of Dispute Resolution and Commercial Contracts at SORAINEN in Minsk and senior lecturer at the Belarusian State University.

Elena Kumashova, LL.M. Harvard is an Associate with Holman Fenwick Willan LLP in Brussels.

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Originally from World Arbitration Reporter (WAR) - 2nd Edition

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I. INTRODUCTION: ARBITRATION IN BELARUS—HISTORY AND INFRASTRUCTURE

A. History and Current Legislation on Arbitration

1. Historical evolution of law relating to arbitration

Until 1999, the Republic of Belarus did not have national arbitration laws.

The absence of national legislation was partly substituted by the provisions of international agreements to which Belarus was a signatory, i.e., the European Convention on International Commercial Arbitration (hereinafter “European Convention”) and Convention on the Recognition and Enforcement of Foreign Arbitral Awards (hereinafter “New York Convention”).

In 1994 the International Arbitration Court of the Belarusian Chamber of Commerce and Industry (hereinafter “IAC”), the first permanent arbitration institution in Belarus, was established. For a certain period of time it was conducting its activity in a legal vacuum, which resulted in IAC awards being recognized outside Belarus pursuant to the New York Convention and not being enforced in Belarus itself.

On February 12, 1996, the Government of Belarus passed Resolution No. 89. This legalized the status of the IAC and stipulated the grounds for the enforcement of its awards. According to the Resolution the IAC was competent to resolve (a) disputes between foreign legal and natural persons and (b) disputes arising out of foreign economic activity, in which at least one of the parties was a non-resident of Belarus. Hence, Belarusian residents were not allowed to refer their own disputes to arbitration.

Table of Contents:

I. INTRODUCTION: ARBITRATION IN BELARUS--HISTORY AND INFRASTRUCTURE

A. History and Current Legislation on Arbitration

1. Historical evolution of law relating to arbitration

2. Distinction between national and international arbitration

3. Law reform projects

4. Confidentiality and publication of awards

B. Arbitration Infrastructure and Practice in Belarus

II. CURRENT LAW AND PRACTICE

A. Arbitration agreement

1. Types and validity of agreement

a) Clauses and submission agreements

b) Minimum essential content

c) Form requirements

d) Interpretation

2. Enforcement of arbitration agreements

a) Declaratory actions in court

b) Applications to compel or stay arbitration

3. Effects on third parties

4. Termination and breach

B. Doctrine of Separability

C. Jurisdiction

1. Competence-Competence

D. Arbitrability

1. Subjective arbitrability

2. Objective arbitrability

E. Arbitral Tribunal

1. Status and qualification of arbitrators

a) Number of arbitrators

b) Qualifications and accreditation requirements

2. Appointment of arbitrators

a) Methods of appointment

b) Appointing authorities

c) Resignation and its consequences

3. Challenge and removal

a) Grounds for challenge

b) Procedure for challenge

c) Replacement of arbitrators

4. Arbitrator liability and immunity

F. Conducting the Arbitration

1. Law governing procedure

a) The “place” of the arbitration as opposed to the “seat”

2. Conduct of arbitration

a) Party autonomy and arbitrators’ power to determine procedure

b) Style and characteristics of the oral hearing

c) Submissions, deadlines and default

d) Legal representation

3. Taking of evidence

a) Overview

b) Documentary evidence and privilege

c) Witnesses

d) Experts

4. Interim measures of protection

5. Interaction between national courts and arbitration tribunals

6. Multiparty, multi-action and multi-contract Arbitration

7. Law and rules of law applicable to the merits

8. Costs of the arbitration

a) Arbitration costs

b) Legal fees

c) Security for costs

d) Arbitrators´ fees: law and practice, judicial control

G. Arbitration Award

1. Types of awards

2. Form requirements

a) Notification to parties and registration

3. Decision making

a) Deliberations

b) Majority or consensus?

c) Signature

4. Settlement

5. Correction, supplementation, and amendment

a) Correcting the award

b) Additional award

H. Challenge and Other Actions against the Award

1. Setting aside

a) Grounds

b) Procedure and deadlines for challenging an award

c) Effects of successful challenge

d) Excluding the right to appeal by agreement

III. RECOGNITION AND ENFORCEMENT OF AWARDS

A. Domestic Awards

B. Foreign awards

1. Various regulatory regimes

a) Domestic rules

2. Requirements to be fulfilled by the applicant (procedure, time limits)

3. Remedies against decisions granting or declining enforcement

4. Application of the New York Convention by local courts

IV. APPENDICES AND RELEVANT INSTRUMENTS

A. National Legislation

B. Major Arbitration Institutions

C. Cases

D. Bibliography