Certain Issues of Concluding an Arbitration Agreement on Disputes with a Foreign Element

Abstract

The article examines the current state of legislative regulation of the issues of concluding an arbitration agreement. Scientific approaches to the concept of an arbitration agreement are analyzed, a comparative analysis of the definition of this concept in international documents, in particular, the UNCITRAL Model Law on International Commercial Arbitration and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, as well as the consolidation of the corresponding concept in the norms of domestic legislation On this basis, the author's definition of the concept of an arbitration agreement is proposed.
 The authors analyze approaches to the classification of arbitrage transactions. It is noted that the classification fixed by the legislation into two types - an arbitration agreement and an arbitration clause - has received the greatest application in the practical plane. It is indicated that from a practical point of view, the arbitration agreement is more adapted to a specific dispute, since the procedural aspects in it are more defined. However, an arbitration clause is a more common type of transaction because it is included in the contract before the dispute arises between the parties. In this regard, it is easier for the parties to reach a compromise on arbitration issues. Doctrinal approaches to the classification of arbitration agreements are also explored.
 Regarding the content of the agreement, the authors point out that despite the position set out in the legislation on maximum assistance to the parties in exercising their right to submit a dispute to arbitration, an exact indication of the name of the arbitration institution to which the dispute is submitted is necessary. This is one of the important conditions for recognizing the arbitration agreement as feasible, creating conditions for further legitimate arbitration consideration of the dispute and the proper execution of the arbitral award.
 Concerning the issue of arbitrability of disputes, the authors indicate that today this concept has not found normative consolidation. It is positive that the list of disputes that cannot be referred to arbitration by the norms of the Economic Procedural Code of Ukraine is fixed. At the same time, the inexhaustibility of this list creates conditions for a certain legal uncertainty. The authors express an opinion on the need for further improvement of the legislation in terms of determining the range of non-arbitrable disputes.