Originally from American Review of International Arbitration - ARIA

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SUBSTANTIVE ORDRE PUBLIC
IN RUSSIAN CASE LAW ON THE RECOGNITION, ENFORCEMENT
AND SETTING ASIDE OF INTERNATIONAL ARBITRAL AWARDS
Dmitry Davydenko∗ and Eugenia Kurzynsky-Singer∗∗
 

 I. INTRODUCTION

The recognition and enforcement of international arbitral awards in Russia is
carried out in accordance with the rules established by the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the "New
York Convention"), as well as by the Law of the Russian Federation "on
International Commercial Arbitration" of 1993 and the Commercial
("Arbitrazhnyi") Procedure Code of 2002 (the "CPC"). The provisions in these
Russian laws on recognition and enforcement essentially reproduce the relevant
clauses in the New York Convention.

Under Article 244(1)(7) of the CPC and Article 36(1)(2) of the Russian
Federation Law on International Commercial Arbitration, a Russian court may
refuse to recognize and enforce an arbitral award if it is contrary to Russian public
policy (ordre public). This ground is also stipulated in the New York Convention
(Art. V(2)(b)). If the same Russian court determines that a Russian arbitral award
violates Russian public policy, it may also set aside the award. Therefore, the
means by which Russian courts interpret the public policy clause may be a key
factor for parties in international commercial arbitration.

Russian courts are generally prohibited from reviewing an arbitral award on
the merits; however, the public policy clause establishes de facto an exception to
this rule. Public policy, in the context of the recognition and enforcement of
international arbitral awards, is a broad and vague term; it encompasses both
substantive and procedural law. This article addresses the complicated scope of
substantive public policy in Russia