Determination of Substantive Law by International Commercial Arbitration in Russian Law, ICAC Rules and Arbitration Practice - Czech (& Central European) Yearbook of Arbitration - Borders of Procedural and Substantive Law in Arbitral Proceedings - 2013
Marina P. Bardina is a professor of the Chair of Private Law of the All-Russian Academy for Foreign trade, Senior researcher of the Sector of Legal regulation of International economic relations of the Institute of state and law of the Russian Academy of Sciences. Professor Bardina is also an enlisted arbitrator of the International commercial arbitration court at the Russian Chamber of Commerce and Industry, Arbitration court at the Russian Union of Industrialists and Entrepreneurs, Arbitration Commission of Moscow Inter-Bank Currency Exchange, Arbitration Court at the Fund “Law and Economy of Fuel-Energetic Complex,” Arbitration Court at the OJSC “Gazprom.”
The article is devoted to the specifics of the determination of applicable law by international commercial arbitration in Russian law, ICAC Rules and Arbitration Practice. It is noted that special features of the determination of the applicable law by international commercial arbitration are directly confirmed on the legislative level in the Civil Code of RF (Article 1186(1),and that these may be interpreted as an acknowledgement of a certain de-nationalization of international commercial arbitration in the field of private international law. The specifics of the determination of the applicable law are stipulated by the RF Law on international commercial arbitration of 1993 based on the UNCITRAL Model Law on International Commercial Arbitration, 1985. The article provides the analysis of the freedom of the parties to choose the “rules of law,” taking into consideration the special interpretation of this term in the legal regulation of international arbitration. This would include not only the law, but also transnational rules, created for international commercial turnover which are not a part of national law. Attention is paid to the method of the determination of the applicable law by arbitration, which is free from the application of the conflict of law rules of the place of arbitration. Special attention is given to the provisions of the Rules of ICAC at CCI of RF, where Article 28 of the Law of 1993 is included, and to ICAC practice.