Waiver of Annulment Action in Arbitration: Progressive Development Globally, Realities in and Perspectives for the Russian Federation (Different Beds – Similar Dreams?) - Czech and Central European Yearbook of Arbitration - 2012: Party Autonomy versus Autonomy of Arbitrators
PDF from "Czech and Central European Yearbook of Arbitration - 2012: Party Autonomy versus Autonomy of Arbitrators"
Leonila Guglya is a researcher at the University of Geneva in Switzerland and an International Business Law lecturer at the Swiss Education Group. She holds an S.J.D. (Doctor of Juridical Science) degree from Central European University (Budapest, Hungary); an LL.M degree in International Dispute Settlement from the MIDS (Master in International Dispute Settlement) Program (Geneva, Switzerland); an LL.M. degree in International Business Law from Central European University; as well as degrees of Specialist in Law and Bachelor in Law from the University of "Kyiv-Mohyla Academy" (Kyiv, Ukraine).
The article is devoted to a discussion of waivers of annulment -- an "extreme" form of party autonomy in international arbitration, allowing parties to oust the review of the award made in arbitration between them by the national court of the seat of arbitration. This type of waiver, eventually gaining popularity lately, is assessed in two different contexts. First -- as a phenomenon belonging to the international arbitration setting, largely following the model reflected in Art. 192 (1) of the Swiss Private International Law Act of 1989, and, second -- as a domestic arbitration notion, specific to the Russian Federation. The two approaches, having developed independently, share enough common features, such as, for instance, their place in the relevant procedural framework -- as an issue of admissibility, the formal prerequisites with which the parties have to comply to make the renunciation of the annulment valid, the main substantive requirement for their validity -- intent. The interpretational paradigms applicable in Switzerland and in the Russian Federation, the only two states, the courts of which have a publicly known record in handling renunciations, however, vary. While the Swiss courts normally resort to a restrictive interpretation in search of the will of the parties to waive, the Russian courts are substantially more flexible, allowing in even a general reference to the arbitration rules containing "finality" wording.