Russian Arbitration Research Articles

Constitutionalization of Arbitration

The number of arbitration cases handled by the Constitutional Court of the Russian Federation has steadily increased over the years. The evolution of social practices and judicial approaches to arbitration procedures has prompted the supreme body for judicial protection of the Russian Constitution to repeatedly review whether the legal concepts used to resolve civil disputes by arbitration courts and international commercial arbitrations align with the nation’s basic law. The outcome of this process is a set of legal principles that define the constitutional and judicial foundations of arbitration in Russia. The above trends have facilitated the use of the integrative concept of constitutionalism in arbitration. This study highlights the constitutionalization of both arbitration and its social application. From a standalone perspective, the problems of enhancing the constitutional and legal principles of arbitration were discussed, and the further progress of constitutionalism in Russian arbitration was predicted.

The development of arbitration proceedings in Russia

The article reviews the general development of arbitration proceedings in the Russian Federation. The paper’s main aim is to review the general development of arbitration proceedings in the Russian Federation. Using the legal comparative method allowed us to study national and foreign legislation to formulate conclusions about developing the arbitration procedure in Russian legislation. The application of the formal legal analysis made it possible to understand the concept of the arbitration court from a Russian perspective. A brief historical excursion of the development of arbitration proceedings, starting from the twelfth century, was made to achieve the paper’s aim. Following that, the author delves into the 2016 arbitration reform, its significance and the current state of arbitration in Russia. The author briefly describes and analyzes permanent arbitration institutions operating in the Russian Federation. At the end of the article, the author discusses the current trends in the development of arbitration and the challenges facing arbitration proceedings in Russia.

5A_78/2023, Urteil vom 23. November 2023 [Referral to Russian arbitration court found to designate commercial court]

5A_78/2023, Urteil vom 23. November 2023 [Referral to Russian arbitration court found to designate commercial court]

Arbitration in the USA: the main trends in legal regulation

The article is devoted to the study of the current state of the legal regulation of arbitration in the USA. The author analyzes the transformation of regulatory sources – regulations, court precedents, regulations of arbitration institutions in 2019–2022. It is noted that in 2022, the chapter 4 was added to the US Federal Arbitration Act. A brief analysis of the latest precedents of the U. S. Supreme Court and the Appellate Courts of the districts in the field of arbitration is given. Objective. To form understanding of the formation and development of arbitration in the United States based on the analysis of regulations, judicial precedents, and scientific sources. Methods. Theoretical methods of formal and dialectical logic; empirical methods of comparison, description, interpretation. Private scientific methods were used: legal-dogmatic and method of interpretation of legal norms. Results. The conducted research showed that the decision of the US Supreme Court in 2022 in the case “ZF Automotive US Inc et al. v. Luxshare Ltd” clearly demonstrates the tendency of increasing court interference in arbitration practice. Conclusions. The main trends in the practice of US arbitration institutions over 2019–2022 include: a) accelerated arbitration; b) emergency arbitration; c) simplified (summary) proceedings; d) virtual hearings and digital tools; e) data protection and cybersecurity. These trends should be regarded as positive and recommended for implementation in the regulations of Russian arbitration institutions (arbitration courts).

Application of para. 4 of Article 248.1 of the Arbitrazh Procedural Code of the Russian Federation: issues raised by the court practice

The article examines the practice of application of Article 248.1 of the Arbitrazh Procedural Code of the Russian Federation by Russian courts. On the basis of the doctrine and judicial practice analysis, the author highlights two approaches to the interpretation of the condition limiting the sanctioned party`s access to justice which allows to transfer a dispute to the jurisdiction of the Russian arbitration court despite the clause referring the dispute to a foreign court or arbitration. Considering each of these approaches, the author concludes that this condition should not be interpreted broadly and that the mere fact of the existence of personal or sectoral sanctions is not sufficient to establish that he has obstacles in access to justice. In order to correct the prevailing approach and to ensure a uniform interpretation of para. 4 Art. 248.1 of the Arbitrazh Procedural Code of the Russian Federation, it is proposed to adopt the Resolution of Plenum of the Supreme Court of the Russian Federation. This Resolution must contain the rebuttable presumption that the sanctions imposed by a foreign state in respect of a Russian person limit his right of access to justice and, accordingly, provide grounds for “transfer” the dispute to the jurisdiction of the Russian court.

Challenging Aspects of Legal Regulation of the Institution of Undertaking in Damages in Russian Arbitration Proceedings

Challenging Aspects of Legal Regulation of the Institution of Undertaking in Damages in Russian Arbitration Proceedings

International Arbitration in the Context of Anti-Russian Sanctions: Issues Raised through Practice

In the context of the changing geopolitical situation and the introduction by various countries of anti-Russian sanctions and unilateral restrictive measures, Russian citizens faced numerous problems arising when trying to apply to a foreign arbitration institution they had previously chosen, when choosing arbitrators, experts and representatives. These problems arise at all stages of the proceedings: from its initiation and ending with the recognition and enforcement of the decision. The paper discusses the main problems and provides recommendations for their solution, supported by examples of judicial and arbitration practice, as well as references to the rules of regulations of various arbitration institutions (LCIA, ICC, SCC, HKIAC, SIAC, DIAC, ISTAC). Based on the analysis, it is concluded that the most effective ways to minimize the impact of sanctions on the proceedings are: 1) the choice of arbitration located in a neutral jurisdiction; 2) choice of ad hoc arbitration; 3) conclusion of alternative arbitration clauses; 4) an application to the Russian arbitration court with a statement recognizing its exclusive jurisdiction to resolve the dispute under Art. 248.1 APC RF.

Commercial Arbitration in Russia at the Modern Stage

Commercial Arbitration in Russia at the Modern Stage

Blockchain, metaverses and NFT in civil procedure and arbitration in Russia, China and USA

The research is devoted to the study of new technologies - blockchain, metaverse and NFT - in civil procedure and arbitration in Russia, China and USA. The author analyzes the basic concepts and characteristics of the above technologies and gives examples of their use in judicial practice. Recent US judicial precedents (2021 and 2022), which consolidate the possibility of using blockchain and NFT technologies in court proceedings are looked at. The research aims at shaping the idea of possible application of blockchain, metaverse and NFT technologies in civil proceedings; it is based on the analysis of regulations, judicial practice of Russia, foreign countries, and scientific sources. The employed methodology is empirical methods of comparison, description, and interpretation, theoretical methods of formal and dialectical logic. Private scientific methods include legal-dogmatic method and interpretation of legal norms. The outcome of the research shows that blockchain and NFT technologies have become an effective tool used by the courts of USA and China in the analysis of electronic evidence and some other procedural actions including notification of an unknown defendant through a non-interchangeable token (NFT). The research came to the following conclusions. Blockchain transactions are often called anonymous or at least pseudonymous, but this is not the case. The issue of blockchain anonymity has been raised in several cases heard by US courts. The blockchain analysis of tools industry has allowed the court and the parties to the dispute to analyze transactions on the blockchain and in many cases trace them to an identifiable user, even if such users have taken steps to conceal their identity. It is essential to refer to the US courts experience allowing private companies to conduct Technology Assisted Review (TAR).

The 2022 Sanction Challenges for International Commercial Arbitration and Methods of Resolving them

The subject of this study is the impact of the sanctions policy imposed against the Russian Federation in 2022 on international commercial arbitration. For that purpose, we analyse the restrictive measures that have had a major impact on dispute resolution in international commercial arbitration involving Russian and sub-sanctioned persons. An important part of the study is an analysis of current practice in this area and the difficulties arising in order to develop recommendations and possible means of overcoming them for the continuation of international arbitration in Russia and access to justice for sanctioned persons. Over recent years, international commercial arbitration has become one of the most common means of dispute resolution, not only abroad, but also in the Russian Federation. However, the international nature of arbitration makes it highly sensitive to sanctions. Since the implementation of anti-Russian sanctions, especially in 2022, it became evident that the field of international commercial arbitration faces inevitable difficulties in terms of cooperation with foreign jurisdictions and its operation in general. The impact of restrictive measures on international commercial relations cannot be overestimated, with the number of cross-border disputes only increasing, which makes international commercial arbitration more than relevant and requires new solutions to overcome existing challenges. The research leads to a number of conclusions: the 2022 sanctions have certainly affected the world of arbitration but have not put an end to arbitration institutions in general; they have led to a global reorientation towards Asian arbitral institutions and a strengthening of Russia's position as a place for arbitration; parties to arbitration proceedings are finding new and successful solutions to the restrictive measures; many foreign jurisdictions are slowly softening their policy towards arbitration.

Historical and Legal Aspect of Development and Some Problems of the Alternative Dispute Resolution Procedurewith the Participation of an Intermediary in the Russian Arbitration Process

Historical and Legal Aspect of Development and Some Problems of the Alternative Dispute Resolution Procedurewith the Participation of an Intermediary in the Russian Arbitration Process

He was the best among us. In memory of our friend and colleague - Vitaly Vasilyevich Bezbakh (1947-2021)

It just so happens that you begin to understand the true scale of a scientists personality after his death. Vitaly Vasilievich Bezbakh left us on June 25, 2021, completing his life path in the prime of his talent as a scientist, organizer of science and teacher. The article is dedicated to the memory of Professor Bezbach. The main directions of scientific research, contribution to Russian civil law, arbitration process and private international law are analyzed.

Сравнительно-правовое исследование ремиссии в арбитраже

Introduction: the institute of remission has only received significant development since 2016 with the adoption of the arbitration reform and the introduction of appropriate changes concerning remission. To date, the legal framework for the procedure for the return of the state court in case of finding serious shortcomings of the arbitration decision has not been fully formed. The purpose of the study: to analyze the remission in the arbitration court after the state court has returned the arbitration decision to correct significant shortcomings. Relevance: the importance and relevance of the work are since the regulations of Russian arbitration institutions do not have provisions on remission. The regulations of foreign arbitration institutions only contain a reference to remission, but do not disclose in detail the conduct of this procedure. At the same time, the institute of remission plays a significant role in arbitration proceedings. The number of applications to this procedure in foreign countries, as well as the beginning of its development in Russia, emphasizes the need and relevance of the study. Methods: in the paper, the research methodology includes the general scientific methods of cognition, specific scientific methods, and special legal methods, the comparative method of analyzing the rules of arbitration institutions is used, and the systematic method is used to determine the formation of the former composition of the arbitration or the new one. Results: the rules of the relevant arbitration institution should be considered as the applicable rules for remission. As a general rule, remitted issues are considered by the same panel of arbitrators that previously made the relevant award. The validity of the arbitrators’ mandate depends on the relationship between the remitted issues and the arbitration decision. The arbitration refusal of remission must be justified. Based on the results of remission, a new decision or an additional one may be made. Conclusions: the institution of remission is important, as it allows you to effectively and quickly correct significant shortcomings while avoiding the cancellation of the arbitration decision, and preserve the partnership of the parties. Based on the analysis and the conclusions drawn, the authors’ own rules are formulated, which can be included in the rules of arbitration institutions.

Conditional Arbitrability – A Questionable Innovation in Russian Arbitration

Conditional Arbitrability – A Questionable Innovation in Russian Arbitration

International Commercial Arbitration in Russia: Results of the Reform

September 2021 marks five years of the arbitration reform in Russia. During this period, fundamental changes have occurred in this area, affecting both arbitration institutions that are authorized to administer disputes on the territory of Russia, and the distribution of categories of arbitrable disputes between permanent arbitration institutions and arbitration tribunals created to resolve a specific dispute (ad hoc arbitration tribunals). The paper attempts to analyze the main results of the reform and assess its impact on Russia’s attractiveness as a place of arbitration. The author comes to the conclusion that, despite some positive consequences of the reform (such as "pocket" arbitration courts leaving the market, resolving the issue of arbitrability of corporate disputes, empowering state courts with the functions of promoting and monitoring the activities of arbitration courts, etc.) a number of problems remained unresolved, and the attitude towards Russia as a place of arbitration remainedalmost unchanged. Moreover, innovations that relate to the procedure for creating arbitration tribunals and obtaining the right to administer disputes on the territory of Russia and apply, among other things, to foreign arbitration institutions, have led to attempts to circumvent the requirements of Russian law both by the parties and by the arbitration institutions that failed to obtain appropriate permission. An equally important problem resulting from the reform includes leaving the market by regional arbitration courts that used to be popular among small and medium-sized businesses that are often not ready to pay rather high arbitration fees set by large arbitration centers. Thus, most of the goals set by the reform ideologists have not been achieved, which indicates the need for further improvement of legislation in this area.

Влияние Европейской конвенции на формирование производства о компенсации в арбитражном процессе: зарубежный опыт

The article examines some issues of the impact of the European Convention for the Protection of Rights and Fundamental Freedoms on the formation of compensation proceedings in the arbitration process. Foreign normative legal acts play an important role in the mechanism for protecting human and civil rights, including in the production of court proceedings on violation of the rights of citizens to consider a case within a reasonable time. In the Russian arbitration legislation today there is an extensive practice of considering cases with the use of European judicial acts. It should be noted that at the present time there is a positive practice and appeals to the European Court of Human Rights are becoming much less frequent.

ON ACCESSORY OBLIGATIONS IN RUSSIAN CIVIL LAW

In the science of civil law, two approaches to the understanding and interpretation of accessory have been formed. The first approach can be defined as the understanding of accessory in the "narrow" sense, the second - in the "broad" sense. Russian civil law contains signs of accessory in the "narrow" sense. For this reason, the problem of the concept of "accessory" is seen, which is subject to the identification of an accessory legal relationship with a security obligation, which in turn impoverishes the idea of the role of accessory in the system of legal relationships. With the development of circulation and the complication of law, examples of accessory legal relations of a different kind appeared that were not related to security obligations, i.e. "Broad" understanding of accessory, which has an auxiliary, secondary nature of the obligation, which can not always have a security focus. Russian arbitration courts have developed a number of rules to make up for the shortcomings of the institution of accessory in Russian civil law, and the possibility of using accessory in the "broad" sense. It is concluded that de jure the concept of accessory in Russian civil law is reflected in the "narrow" sense, and de facto, accessory is applied in the "broad" sense.

Trademarks: The retrospect, definitions, partial tools of research

Subject. Currently, the growing competition and the economic crisis make manufacturers and sellers actively use trademarks so as to win new business and retain customers. Over 80 percent of any buying decision depend on the visual information, rather than the reasonable approach. Legal issues of trademark use in business relations draw the attention of professional and scientific communities in Russia and abroad, dating back to far away times. Objectives. We provide the rationale for a clearer definition of trademark for purposes of legal relations, examine the partial tools for studying verbal trademarks, and conduct an experiment to prove the efficiency of tachistoscopic tools for trademark studies as part of legal examinations. Methods. The study is based on general and partial methods of research. Studying verbal trademarks, the use of tachistoscopic tools helped conduct an experiment and make conclusions, notwithstanding a small sample. Results. Trademarks circulated in business affairs even in the A.C. times. In the second half of the 19th century, advanced economies set up the legislative framework on personalization means. All corresponding regulations are still being improved consistently. The systems approach and generalization helped sort out priority views on the concept trademark and coin a more specific term, which is important for scientific and practical activities of lawyers, managers and economists. Drawing upon the experiment, we made respective conclusions and suggest extrapolating them to similar studies as part of legal examinations. Conclusions and Relevance. Trademark is a construct of law from professionals' perspectives and a symbol attracting people’s attention to goods as ordinary people perceive it. In mixed economies, consumers’ perception of goods significantly determines the producer’s market position. Therefore, many market actors need to specify the concept trademark, including legal departments of companies. Trademark disputes have become more frequent cases heard by the Russian arbitration courts. So, the specified definition and the experiment are of scientific and applied value. The findings are designated to improve the legislative framework for personalization means. The tools and findings we present in our experiment can serve not only for scientific, but also practical purposes of legal examinations concerning verbal trademarks. They will also work for teaching on legal disciplines.

The II International Civil Congress on Comparative Studies: Review

The review covers The II International Civil Congress on Comparative Studies (Mozolinskie Readings) "The Role of Man in Civil Law", dedicated to the 90th anniversary of Kutafin Moscow State Law University (MSLA) held online on December 4-5, 2020. The Congress was organized by the Department of Civil Law of Kutafin Moscow State Law University (MSAL), the Scientific and Educational Center of Private Law of Kutafin Moscow State Law University (MSAL), the Statute Publishing house, the Russian Arbitration Center at the Russian Institute of Modern Arbitration, the Institute of International Relations and Socio-Political Sciences of Maurice Thorez Moscow State Linguistic University (The Maurice Thorez Institute of Foreign Languages). The Congress was organized with the participation of the Department of Civil and Administrative Proceedings and the Department of History of State and Law of Kutafin Moscow State Law University (MSLA).The Congress was attended by Russian and foreign scientists from Austria, Armenia, the Republic of Belarus, Italy, China, Latvia, Poland and the United States, as well as a representative of the world intellectual property organization. The total number of participants of the Congress was more than 600 people.On the first day of the Congress, a plenary session and a panel discussion "The Role of an and the Role of IT in Judicial Protection" were held. On the second day, master classes for young scientists, a platform for presentations by young post-graduate scientists and creative workshops for students were organized with moderation by leading scientists on the topic of the creative workshop. The sponsor of the creative workshops was the "ConsultantPlus" company.

Electronic document management and electronic cases in Russian arbitration courts: advantages and development prospects

An analysis of the activities of arbitration courts demonstrates the effectiveness of the implementation of electronic justice in Russia, which ensures the promptness of procedural actions by the parties to the dispute. Statistics show a constant increase in the number of lawsuits filed with the courts. The current procedural legislation provides for the possibility of filing a lawsuit in court in an electronic form. Meanwhile the bulk of appeals is carried out in the usual manner in a paper form, which entails certain problems, for example, an increase in the workload on the staff of the court apparatus, the need to form court cases in a paper form, and difficulties in storage.The author proposes to establish in the law a rule providing for filing a claim in an electronic form - as the main method, and going to court by filing in a standard paper form as an exception. The implementation of this proposal will make it possible to switch to the formation of completely electronic court cases, which fully meets modern requirements. At the same time the author points to the possibility of endowing multifunctional centers for the provision of state and municipal services with the right to file lawsuits and other documents to the courts in an electronic form. This will shorten the time for consideration of cases, as well as reduce the costs of both the courts and the participants in the trial.