Компетенция международных арбитражных учреждений: вопросы соотношения международного и национального права

Abstract

The competence of two types of international arbitration institutions is analyzed: international commercial arbitration and international investment arbitration. It was established that when determining the competence of these institutions, the following aspects should be taken into account: approaches to the interpretation of the wording of arbitration agreements by Russian courts; the compliance of this practice with the provisions of Russian legislation and international law; the presence of a state-expressed consent to refer the dispute to international investment arbitration in international bilateral agreements and agreements with the investor; whether the investor has or does not have the right to choose an arbitration institution; the possibility of applying the RF Constitutional Court’s Definition of December 24, 2020, to determine the competence of arbitration institutions based on international treaties; theoretical and practical approaches to the relationship between arbitration clauses of investment contracts and provisions of bilateral investment agreements. A conclusion about potential uncertainty in a number of the above aspects is based, firstly, on the practice when Russian courts create ambiguity by interpreting arbitration agreements formally and literally, and, secondly, on the Determination dated 12.24.2020 that creates tension about whether the investor has the right to choose the method of resolving the dispute. Analysis of the documents issued by the Government of the Russian Federation of approaches to concluding investment agreements with investors supports the current uncertainty