Regarding consideration of the principle of primacy of arbitration in cases of invalidation of an arbitration agreement in economic proceedings

Abstract

The article examines the principle of primacy of arbitration. It continued the doctrine of «competency of competence» and can be defined as an approach established by international legal obligations of Ukraine and special legislation on international commercial arbitration, according to which consideration of the issue on validity, effectiveness, and enforceability of an arbitration agreement must precede consideration of the corresponding claim in the state court, except for cases caused by clear disregard public order by such an agreement. It has been proven that consideration by the economic court of an separate claim to invalidate the arbitration agreement goes beyond the permissible forms of state court intervention in commercial arbitration. It is justified that the issue of the invalidity of the arbitration agreement can be considered exclusively together with the claim for the protection of the violated/disputed/unrecognized subjective right or legitimate interest of the party to the agreement. However, even in such a case, the principle of primacy of arbitration must be observed. It is substantiated that the admissibility of expanded perception by state courts of the competence to consider claims about the validity of the arbitration agreement significantly limits the competence of commercial arbitrations and creates the risk of assigning Ukraine to jurisdictions unfriendly to arbitration, contradicting the experience of the leading countries of the world, in particular France, Germany, and Britain. It is substantiated that the presentation of an independent lawsuit to the commercial court to declare the arbitration agreement invalid cannot be recognized as a proper and effective way of protecting a subjective right. It is emphasized that the right to apply to the state court with an independent demand to declare the arbitration agreement invalid should be interpreted in a restrictive way due to cases of abuse of procedural rights, when the sole purpose of initiating such cases is to delay the consideration of disputes and stop the arbitration proceedings. Key words: alternative dispute resolution, international commercial arbitration, economic courts, economic procedure, arbitration clause, invalidity of arbitration agreement, principle of primacy of arbitration, doctrine of «competency of competence», public order.