Decision on the Arbitral Tribunal's Jurisdiction - Chapter 7 - 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.
Separability is a well-known doctrine that boils down to the question of whether the arbitration clause within a contract may be regarded as an agreement separate from other contractual provisions, i.e., the validity of the arbitration clause is not necessarily affected by invalidity of the main contract. The practical importance of the doctrine of “competencecompetence” is that the parties cannot avoid arbitration by alleging invalidity of the main contract.
From a substantive point of view, the question of separability comes into play when the agreement expires or is repudiated by one or both parties, as well as when it is performed or frustrated. But separability can have other meanings and effects. From the conflict of laws standpoint, for instance, the question is whether the law by which the main contract is governed necessarily governs the arbitration agreement. A further possible meaning is procedural and gives rise to the question of “competence-competence”, namely, whether the arbitrators are entitled themselves to rule on the validity of the arbitration clause, the very basis of their jurisdiction, or must surrender this question to the courts.1
The concept of separability is generally accepted in Russia, with some reservations. Art. 16 of the Arbitration Act provides that the arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract is to be treated as an agreement independent of the other terms of the contract. An award by the arbitral tribunal that the contract is null and void does not entail ipso jure the invalidity of the arbitration clause.
Chapter 7: DECISION ON THE ARBITRAL TRIBUNAL’S JURISDICTION (“COMPETENCE-COMPETENCE”)
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