Applicable Substantive Law - Chapter 15 - Arbitration Law of Russia: Practice and Procedure
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.
15.1. PARTY AUTONOMY TO CHOOSE APPLICABLE SUBSTANTIVE LAW OR RULES OF LAW
In the majority of cases, the legal system and the rules of law applicable to the substance of a dispute in international cases are determined by agreement of the parties. On this point, Art. 28 (1) of the Arbitration Act provides that:
“[t]he arbitral tribunal will decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules.” (Emphasis added).
The determination that a national law will apply encompasses all of the rules of that law per the hierarchy of sources valid in that system. This will include references to statutes, case law, scholarly writings and custom, according to the authority vested in them by that legal system.1
Instead of choosing a national law, parties may choose or the arbitrators may decide to apply non-national, international or transnational substantive rules or standards.2
It should be noted that the choice of applicable rules of law instead of legal system as a whole is rarely used by Russian parties but they are not prevented from doing so, as is confirmed by Russian legal theory3 and case law.
APPLICABLE SUBSTANTIVE LAW
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