Procurement Disputes Arbitration: Main Problems at the Present Stage

Abstract

The relevance of the paper is predetermined by the study of the key problems of arbitration in the context of the specifics of public procurement at the present stage, namely, the problem of determining the appropriate criteria for the conclusion and validity of arbitration agreements. The purpose of the study is to critically evaluate the so-called non-arbitrability formula, established in contemporary court practice; to disclose the algorithm for the emergence of contractual relations as a result of competitive procurement procedures; to substantiate the legal force of arbitration clauses incorporated into contracts before arbitration rules are deposited by the arbitration institution. The author sees the objectives of the study in substantiating the fundamentally permissible arbitrability of contractual disputes in all segments of procurement relations (not only by direct order under the federal law, but also for the future, including contractual disputes in the field of state defense orders due to the variety of available transactions); in identifying factors contributing to the proper assessment of an arbitration agreement for its validity. Methodologically, the paper is based on a set of general scientific (analysis, modeling, analogy, hypothesis), private scientific (formal logical, systemic, functional) methods, and uses the formal legal method. The results of the study allowed the author to draw conclusions about sufficiency of existing legislative regulation for assessing the conclusion and validity of arbitration agreements included in draft contracts at the stage of competitive procurement procedure; about the lack of grounds for evaluating these agreements for their compliance with the principles of procurement; aboutthe legal force of dormant arbitration clauses necessary for business turnover in the short term. The author suggests directions for improving law enforcement practice aimed at curbing abuses in terms of challenging arbitration agreements on the grounds of their non-conclusion and (or) invalidity.