Interpretation of Separability of an Arbitration Agreement and its Practical Effects on Rules of Conflict of Laws in Arbitration in Russia

Abstract

THERE HAS been controversy as to the interpretation of the separability of an arbitration agreement in Russia. There has been a shift from the controversy between the orthodox contractual and procedural theories to that between the procedural and positive legal norm theories. The dispute concerns the rules of conflict of laws on the determination of the law applicable to an arbitration agreement in Russia. This article will consider the Russian controversy on interpretation of the principle of separability of an arbitration agreement and its practical implications for the determination of the law applicable to an arbitration agreement. In practice, the Foreign Trade Arbitration Commission1 (FTAC), the permanent arbitral tribunal in the USSR, had exclusive jurisdiction over disputes arising from foreign trade. Originally, the FTAC was attached to the USSR Chamber of Commerce and Industry (USSR CCI). The FTAC was renamed as the Arbitration Court by the Statute on the Arbitration Court attached to the USSR CCI adopted on 14 December 19872 (‘the 1987 Statute on the AC’). The USSR CCI, the governing body of the Arbitration Court, was officially succeeded by the RSFSR CCI under the terms of the Decree of the Supreme Soviet of the RSFSR of 18 November 1991.3 Eventually, the Arbitration Court was placed under the Russian Federation4 CCI5 (RF CCI) and renamed as the International Commercial Arbitration Court (ICAC) attached to the RF CCI by the Law on the International Commercial Arbitration enacted by the RF Congress on 7 July 19936 (‘the 1993 Law on the ICA’). The RF CCI established the new Rules on the ICAC on 8 December 1994 (‘the 1994 Rules on the ICAC’). For convenience, the term ‘FTAC’ will be used below for all cases before the Rules on the Arbitration Court (‘the 1988 Rules on …