NY Convention Article V(2)(a): The Subject Matter of the Difference is Not Capable of Settlement by Arbitration under the law of the Russian Federation - Chapter 8 - The Enforcement of Foreign Arbitral Awards in Russia

Author(s):

William R. Spiegelberger

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6 pages

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Published:

August, 2014

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NY Convention article V(2)(a) and ICA Law article 36(2)(1)

provide that enforcement of a foreign arbitral award may be denied if

the subject matter of the dispute is not capable of settlement by

arbitration under the law of the enforcing state. It has been said that

this article is superfluous because the “question of the non-arbitrable

subject matter is generally regarded as forming part of the general

concept of public policy” under NY Convention article V(2)(b).1

Perhaps for this reason, there appear to be few cases around the

world specifically invoking article V(2)(a).2 That is certainly true in

Russia, where only one case was found that seems to fall within the

article V(2)(a) exception, even though the court applied article

V(1)(c) instead. The case is described below.

A. Legal Framework: Non-Arbitral Matters

The presumption in Russia is that a matter is arbitrable unless

otherwise provided by law. This is suggested, among other places, in

• CPCC article 4(6): “By agreement of the parties a dispute
subject to the jurisdiction of the commercial court arising out