Arbitration Law of Russia: Practice and Procedure
Author(s):
ISBN:
978-1-937518-14-1
Page Count:
328 pages
Published:
February, 2013
Practice Areas:
Jurisdictions:
Last Updated:
February, 2013
A comprehensive review of the arbitration law and practice in Russia including: discussion of arbitration practice and procedure; an examination of the jurisdiction of the arbitral tribunal; the appointment of arbitrators including the challenge and replacement of arbitrators; an analysis of the various types of awards including a discussion on deliberations, agreements, settlements, and the costs of arbitration; a discussion on the amendment and challenge of awards including the liability of arbitrators; and, a review of the enforcement of domestic and foreign arbitration awards.
ABOUT THE AUTHOR
LIST OF ABBREVIATIONS
INTRODUCTION
2.1 International Treaties
2.2 National Legislation
2.3 Distinction between National and International Arbitration
2.4 Proposed Amendments to the Legislation
3.1 ICAC
3.2 MAC
4.1 Arbitration Clauses and Submission Agreements
4.2 Essential Content of the Arbitration Agreement
4.2.1.. Consent of the Parties to Arbitration
4.2.2.. Scope
4.2.3.. Arbitration Institution
4.2.4.. Exclusivity
4.3 Form of the Arbitration Agreement
4.4 Incorporation of an Arbitration Clause Contained in General Terms and Conditions
4.5 Law Applicable to the Interpretation of Arbitration Clauses
4.6 Binding Effect of an Arbitration Clause on Third Parties
4.6.1.. Assignment
4.6.2.. Bank Guarantees
4.7 Enforcement of an Arbitration Agreement within or by Court Proceedings
4.7.1.. Effect of Invoking an Arbitration Clause within a Court Proceeding (and Time Limits for Such Motions)
4.7.2.. Competent Court for Obtaining a Declaration That an Arbitration Agreement Is Valid and Binding
5.1 Subjective Arbitrability
5.1.1.. Individuals
5.1.2.. Legal Entities
5.1.3.. State / State Enterprises
5.2 Objective Arbitrability
5.2.1.. Bankruptcy
5.2.2.. Real Estate Disputes
5.2.3.. Arbitrability of Corporate Dispute
5.2.4.. Subsurface Use Issues
5.2.5.. Privatisation Issues
6.1 Extent of Court Assistance in Gathering of Evidence
6.2 Assistance in Enforcing the Attachment of Assets
6.3 Power of State Courts to Intervene During the Proceedings
7.1 Separability
7.2 Competence of the Tribunal to Decide on Its Own Jurisdiction
7.3 Extent of the "Competence-Competence" Rule and Role of the Courts
8.1 Number of Arbitrators
8.1.1.. Sole Arbitrator or Panel
8.1.2.. Sole Arbitrator
8.1.3.. Two Arbitrators
8.14... Three Arbitrators
8.2 Arbitrators' Qualification
8.3 Impartiality and Independence of Arbitrators
8.3.1.. Impartiality
8.3.2.. Independence
8.3.3.. Disclosure
8.3.4.. Status of Arbitrators
8.4 Arbitrators' Obligations
8.5 Arbitrators' Rights
8.6 Arbitrators' Liability
9.1 Extent of Party Autonomy to Establish Appointment Procedure
9.2 Procedure in Absence of Agreement by the Parties' Default Appointing Authority
9.3 Circumstances and Valid Reasons for an Arbitrator to Resign
9.4 Challenge and Replacement of Arbitrators
9.4.1.. Grounds for Challenging an Arbitrator
9.4.2.. Procedure and Deadlines for Challenging an Arbitrator
9.5 Procedure for Appointing a New Arbitrator
10.1 Extent of Party Autonomy to Determine the Arbitral Procedure
10.2 Basic Procedural Principles or Mandatory Rules to Be Applied by the Arbitral Tribunal
10.3 Notifications
10.4 Determination of the Place of Arbitration in Absence of an Agreement by the Parties
10.5 Language of Arbitration
10.6 Oral Hearing or Proceedings on Basis of Written Documents
10.7 Power of the Tribunal (in Particular the Chairman) to Issue Procedural Orders
10.8 Distinction of Matters of Substance and Matters of Procedure
10.9 Effect of a Party's Insolvency
10.10 Persons Able to Represent a Party in Arbitration Proceedings
11.1 Constitution of the Arbitral Tribunal
11.2 Consolidation of Arbitration Proceedings
12.1 Submissions: Content and Form
12.2 Legal Deadlines and Effect of Non-Compliance
13.1 Burden of Proof
13.2 Standard of Proof
13.3 Admissibility of Evidence
13.4 Witnesses
13.5 Documentary Evidence
13.5.1 Form of Documents to Be Presented to the Arbitral Tribunal
13.5.2 Requirement to Produce Certain Documents and Consequences of Failure to Do So
13.5.3 Document Confidentiality and Legal Privilege
13.6 Experts
13.6.1 Appointment and Presentation of Experts by the Party or the Arbitral Tribunal
13.6.2 Admissibility and Role of Expert Witnesses
13.6.3 Independence and Impartiality of the Expert and the Right to Reject a Proposed / Appointed Expert
14.1 Interim Measures the Tribunal May Order
14.2 Limits on the Tribunal's Powers to Order Interim Measures
14.3 Orders to Provide Security for the Costs of Proceeding
15.1 Party Autonomy to Choose Applicable Substantive Law or Rules of Law
15.2 Form of the Choice-of-Law Agreement
15.3 Decisions According to Equity or Amiable Compositeur
15.4 Application of Lex Mercatoria, General Principles, etc.
15.5 Applicable Law in the Absence of a Choice of Law by the Parties
16.1 Types of Award
16.2 Time Limits (and Possible Extensions) for Making the Award
16.3 Arbitrators' Decision Making Process
16.4 Form of the Award
16.4.1 Form and Minimum Contents of an Award
16.4.2 Other Requirements
16.5 Publication of the Award
16.6 Amendment, Correction or Interpretation of the Award
16.6.1 Motion to Amend or Correct an Award
16.6.2 Interpretation of the Award by the Tribunal
17.1 Settlement by Agreement of the Parties with or without Support of the Arbitral Tribunal
17.2 "Private Settlement" and Impact on the Arbitral Tribunal
17.3 Form and Effect of a Settlement and Award on Agreed Terms
18.1 Costs of the Administration by an Arbitration Institution
18.2 Arbitrators´ Fees
18.3 Counsel´s Fees
18.4 Deposits or Advances for Costs or Fees
18.5 Time and Form of the Decision on Costs
19.1 Reasons for Setting Aside
19.2 Procedure and Deadlines for Challenging an Award
19.3 Effect of the Court Decision That Sets the Award Aside
19.4 Appeal against the Court's Decision to Set Aside or Not Set Aside the Award
19.4.1 Cassation Appeal
19.4.2 Judicial Supervision
20.1 Requirement for a Particular Procedure to Make an Award Enforceable
20.2 Details of Enforcement Procedure
20.2.1 Competent Court: Arbitrazh Court vs. Court of General Jurisdiction
20.2.2 Which Arbitrazh Court Should Be Selected?
20.2.3 Documents to Be Attached to Application for a Writ of Execution
20.2.4 Reasons for Rejection of an Application
20.2.5 Appeal against a Decision on an Application for a Writ of Execution
21.1 Rules and Requirements According to National Law
21.2 Specific Bilateral and Multilateral Treaties
21.3 Procedure for the Enforcement of Foreign Awards
21.4 Extent of Examination and Review of the Award by the Court
21.5 Application of the New York Convention in Practice
21.6 Examples of Decisions, That Do Not Apply the New York Convention Correctly
21.6.1 Broad Interpretation of Public Policy
21.6.2 Notification Issues
21.7 Remedies against Decisions Granting or Declining Enforcement
22.1 Procedure and Timing
22.2 Levy of Execution against Debtor's Property
APPENDIX
Appendix A: Law of the Russian Federation on International Commercial Arbitration No. 5338-1 of 7 July 1993
Appendix D: ICAC Rules
Appendix E:. MAC Rules
Roman Khodykin is a Partner in the London office of the law firm Berwin Leighton Paisner LLP. Mr. Khodykin holds a Ph.D in Law and, from 2005 to 2012 he was an associate professor at the Moscow State Institute of International Relations (MGIMO), in addition to being in private practice. Recognised as a rising star by Chambers & Partners, Mr. Khodykin is a frequent speaker at seminars and conferences and has authored numerous publications on international commercial arbitration and conflict of laws. He has acted as arbitrator in cases under the ICC Rules and the Rules of the Court of Arbitration for Sport at the Russian Olympic Committee. Based in London, Mr. Khodykin advises on a wide range of litigation and arbitration matters, including commercial cases, repossession of aircraft, real estate litigation, corporate disputes and oil and gas industry cases. Mr. Khodykin has represented a broad range of clients in national and cross-border matters, including matters before the LCIA, ICSID and the International Commercial Arbitration Court at the Russian Federation Chamber of Commerce and Industry. He has experience litigating cases before various Russian courts, including the Russian Federation Constitutional Court, the Supreme Arbitrazh Court (the highest judicial authority in Russia for commercial courts) and the Supreme Court.
Author/Editor Detail:
Roman Khodykin is a Partner in the London office of the law firm Berwin Leighton Paisner LLP. Mr. Khodykin holds a Ph.D in Law and, from 2005 to 2012 he was an associate professor at the Moscow State Institute of International Relations (MGIMO), in addition to being in private practice. Recognised as a rising star by Chambers & Partners, Mr. Khodykin is a frequent speaker at seminars and conferences and has authored numerous publications on international commercial arbitration and conflict of laws. He has acted as arbitrator in cases under the ICC Rules and the Rules of the Court of Arbitration for Sport at the Russian Olympic Committee. Based in London, Mr. Khodykin advises on a wide range of litigation and arbitration matters, including commercial cases, repossession of aircraft, real estate litigation, corporate disputes and oil and gas industry cases. Mr. Khodykin has represented a broad range of clients in national and cross-border matters, including matters before the LCIA, ICSID and the International Commercial Arbitration Court at the Russian Federation Chamber of Commerce and Industry. He has experience litigating cases before various Russian courts, including the Russian Federation Constitutional Court, the Supreme Arbitrazh Court (the highest judicial authority in Russia for commercial courts) and the Supreme Court.
Table of Contents:
ABOUT THE AUTHOR
LIST OF ABBREVIATIONS
INTRODUCTION
2.1 International Treaties
2.2 National Legislation
2.3 Distinction between National and International Arbitration
2.4 Proposed Amendments to the Legislation
3.1 ICAC
3.2 MAC
4.1 Arbitration Clauses and Submission Agreements
4.2 Essential Content of the Arbitration Agreement
4.2.1.. Consent of the Parties to Arbitration
4.2.2.. Scope
4.2.3.. Arbitration Institution
4.2.4.. Exclusivity
4.3 Form of the Arbitration Agreement
4.4 Incorporation of an Arbitration Clause Contained in General Terms and Conditions
4.5 Law Applicable to the Interpretation of Arbitration Clauses
4.6 Binding Effect of an Arbitration Clause on Third Parties
4.6.1.. Assignment
4.6.2.. Bank Guarantees
4.7 Enforcement of an Arbitration Agreement within or by Court Proceedings
4.7.1.. Effect of Invoking an Arbitration Clause within a Court Proceeding (and Time Limits for Such Motions)
4.7.2.. Competent Court for Obtaining a Declaration That an Arbitration Agreement Is Valid and Binding
5.1 Subjective Arbitrability
5.1.1.. Individuals
5.1.2.. Legal Entities
5.1.3.. State / State Enterprises
5.2 Objective Arbitrability
5.2.1.. Bankruptcy
5.2.2.. Real Estate Disputes
5.2.3.. Arbitrability of Corporate Dispute
5.2.4.. Subsurface Use Issues
5.2.5.. Privatisation Issues
6.1 Extent of Court Assistance in Gathering of Evidence
6.2 Assistance in Enforcing the Attachment of Assets
6.3 Power of State Courts to Intervene During the Proceedings
7.1 Separability
7.2 Competence of the Tribunal to Decide on Its Own Jurisdiction
7.3 Extent of the "Competence-Competence" Rule and Role of the Courts
8.1 Number of Arbitrators
8.1.1.. Sole Arbitrator or Panel
8.1.2.. Sole Arbitrator
8.1.3.. Two Arbitrators
8.14... Three Arbitrators
8.2 Arbitrators' Qualification
8.3 Impartiality and Independence of Arbitrators
8.3.1.. Impartiality
8.3.2.. Independence
8.3.3.. Disclosure
8.3.4.. Status of Arbitrators
8.4 Arbitrators' Obligations
8.5 Arbitrators' Rights
8.6 Arbitrators' Liability
9.1 Extent of Party Autonomy to Establish Appointment Procedure
9.2 Procedure in Absence of Agreement by the Parties' Default Appointing Authority
9.3 Circumstances and Valid Reasons for an Arbitrator to Resign
9.4 Challenge and Replacement of Arbitrators
9.4.1.. Grounds for Challenging an Arbitrator
9.4.2.. Procedure and Deadlines for Challenging an Arbitrator
9.5 Procedure for Appointing a New Arbitrator
10.1 Extent of Party Autonomy to Determine the Arbitral Procedure
10.2 Basic Procedural Principles or Mandatory Rules to Be Applied by the Arbitral Tribunal
10.3 Notifications
10.4 Determination of the Place of Arbitration in Absence of an Agreement by the Parties
10.5 Language of Arbitration
10.6 Oral Hearing or Proceedings on Basis of Written Documents
10.7 Power of the Tribunal (in Particular the Chairman) to Issue Procedural Orders
10.8 Distinction of Matters of Substance and Matters of Procedure
10.9 Effect of a Party's Insolvency
10.10 Persons Able to Represent a Party in Arbitration Proceedings
11.1 Constitution of the Arbitral Tribunal
11.2 Consolidation of Arbitration Proceedings
12.1 Submissions: Content and Form
12.2 Legal Deadlines and Effect of Non-Compliance
13.1 Burden of Proof
13.2 Standard of Proof
13.3 Admissibility of Evidence
13.4 Witnesses
13.5 Documentary Evidence
13.5.1 Form of Documents to Be Presented to the Arbitral Tribunal
13.5.2 Requirement to Produce Certain Documents and Consequences of Failure to Do So
13.5.3 Document Confidentiality and Legal Privilege
13.6 Experts
13.6.1 Appointment and Presentation of Experts by the Party or the Arbitral Tribunal
13.6.2 Admissibility and Role of Expert Witnesses
13.6.3 Independence and Impartiality of the Expert and the Right to Reject a Proposed / Appointed Expert
14.1 Interim Measures the Tribunal May Order
14.2 Limits on the Tribunal's Powers to Order Interim Measures
14.3 Orders to Provide Security for the Costs of Proceeding
15.1 Party Autonomy to Choose Applicable Substantive Law or Rules of Law
15.2 Form of the Choice-of-Law Agreement
15.3 Decisions According to Equity or Amiable Compositeur
15.4 Application of Lex Mercatoria, General Principles, etc.
15.5 Applicable Law in the Absence of a Choice of Law by the Parties
16.1 Types of Award
16.2 Time Limits (and Possible Extensions) for Making the Award
16.3 Arbitrators' Decision Making Process
16.4 Form of the Award
16.4.1 Form and Minimum Contents of an Award
16.4.2 Other Requirements
16.5 Publication of the Award
16.6 Amendment, Correction or Interpretation of the Award
16.6.1 Motion to Amend or Correct an Award
16.6.2 Interpretation of the Award by the Tribunal
17.1 Settlement by Agreement of the Parties with or without Support of the Arbitral Tribunal
17.2 "Private Settlement" and Impact on the Arbitral Tribunal
17.3 Form and Effect of a Settlement and Award on Agreed Terms
18.1 Costs of the Administration by an Arbitration Institution
18.2 Arbitrators´ Fees
18.3 Counsel´s Fees
18.4 Deposits or Advances for Costs or Fees
18.5 Time and Form of the Decision on Costs
19.1 Reasons for Setting Aside
19.2 Procedure and Deadlines for Challenging an Award
19.3 Effect of the Court Decision That Sets the Award Aside
19.4 Appeal against the Court's Decision to Set Aside or Not Set Aside the Award
19.4.1 Cassation Appeal
19.4.2 Judicial Supervision
20.1 Requirement for a Particular Procedure to Make an Award Enforceable
20.2 Details of Enforcement Procedure
20.2.1 Competent Court: Arbitrazh Court vs. Court of General Jurisdiction
20.2.2 Which Arbitrazh Court Should Be Selected?
20.2.3 Documents to Be Attached to Application for a Writ of Execution
20.2.4 Reasons for Rejection of an Application
20.2.5 Appeal against a Decision on an Application for a Writ of Execution
21.1 Rules and Requirements According to National Law
21.2 Specific Bilateral and Multilateral Treaties
21.3 Procedure for the Enforcement of Foreign Awards
21.4 Extent of Examination and Review of the Award by the Court
21.5 Application of the New York Convention in Practice
21.6 Examples of Decisions, That Do Not Apply the New York Convention Correctly
21.6.1 Broad Interpretation of Public Policy
21.6.2 Notification Issues
21.7 Remedies against Decisions Granting or Declining Enforcement
22.1 Procedure and Timing
22.2 Levy of Execution against Debtor's Property
APPENDIX
Appendix A: Law of the Russian Federation on International Commercial Arbitration No. 5338-1 of 7 July 1993
Appendix D: ICAC Rules
Appendix E:. MAC Rules