NEWS
27 August 2010
Rules on impartiality and independence of arbitrators adopted in Russia
The President of Russian Chamber of Commerce and Industry approved Rules on impartiality and independence of arbitrators. The Rules are designed to serve as guidance for arbitrators and bodies administering arbitrations and competent to decide on termination of the arbitrators’ mandate.
The Rules specify the circumstances in which the arbitrator is obliged to withdraw from his/her office or at least to notify the parties or may be challenged by a party. The Rules elaborate on the communication between the arbitrators and the parties or their attorneys. Also the Rules specify the procedure for challenging an arbitrator by an interested party.
They have been approved and recommended for application by the Presidium of the International Commercial Arbitration Court at the Russian Chamber of Commerce and Industry and by Management Board of the Russian Center for Assistance to Arbitration.
27 July 2010
The mediation bills (“On alternative procedure of dispute settlement with participation of a mediator (mediation procedure)” and the complementary bill) have become federal laws and shall enter into force on 1 January 2011.
7 July 2010
Russian State Duma approved in the third reading the draft law “On alternative procedure of dispute settlement with participation of a mediator (mediation procedure)” and the complementary law.
Now for the bills to become laws only the President’s approval is required.
1 July 2010
The Federal Law No. 262 “The support of the access to the information about the courts’ activities in the Russian Federation” came into effect. The initiative of the President of Russia Dmitry Medvedev aims to ensure the transparence of the court decisions.
This document specifies not only the right to the information about the courts’ activities, but also the duty of the courts to give efficiently the information about their activity. The statute enhances the principle of the publicity of the trial, which is stated in the Constitution of Russian Federation.
30 June 2010
Russian State Duma approved in the second reading the draft law “On alternative procedure of dispute settlement with participation of a mediator (mediation procedure)”.
The State Duma has adopted the bill introduced by the President of Russian Federation at the second reading, and the complementary bill on introduction of amendments to the certain legislative acts of Russian Federation in connection with the adoption of such federal statute. The purpose of the procedure is to settle the disputes in the civil, family and labour relationship with the assistance of the independent mediator.
28 June 2010
The General Meeting of arbitrators of the International Commercial Arbitration Court at the Russian Chamber of Commerce was held where Professor Alexey Alexandrovich Kostin was elected as the Chairman of the ICAC, Professor Ivan Semenovich Zykin was elected as the first Deputy Chairman of the ICAC, Professor Evgeny Alekseevich Sukhanov was elected as the Deputy Chairman of the ICAC.
14 May 2010
Russian State Duma approved in the first reading the draft law “On alternative procedure of dispute settlement with participation of a mediator (mediation procedure)”.
20 April 2010
High Commercial Court of the Russian Federation granted interim measures in support to arbitral proceedings in London
The Russian legislation allows the commercial courts to grant interim measures at the request of a party to arbitral proceedings regardless of the seat of arbitration. However, the courts are often reluctant to grant them. Now the High Commercial Court Presidium ruled in favor of such interim measures (case No. A4019/09-OT-03).
A Cypriot company “Edimax Limited” sought interim measures in order to secure a claim filed in 2009 at LCIA against a Russian citizen. The claimant requested the Russian courts to order seizure of the apartment in Moscow belonging to the respondent, prohibition for the Russian registering authority to register any transfer of title to the said apartment and prohibition for the technical inventory authority to perform any actions in respect of the said apartment. The court of 1st tier had refused to grant any interim measures, finding that the claimant failed to prove their necessity. However, the appellate court (2nd tier) had granted the requested interim measures. The cassation court found that this application on interim measures fell beyond the competence of commercial courts as the respondent was not an individual entrepreneur. However, the High Commercial Court Presidium has confirmed the opportunity of the commercial courts to assist foreign arbitrations, even though the party to arbitration is an individual, provided that the dispute is of economic nature.
30 March 2010
The X Congress of the International Association of Supreme Administrative Jurisdictions was held in Australia (in Sydney and Canberra) from the 7th to the 11th of March, 2010. The Supreme Arbitrazh Court of the Russian Federation was represented at the congress by the Judge of the RF SCC O.Yu. Gvozdilina and the specialist of RF SCC Department of International Law and Cooperation Borisov G.A.
The representatives of 52 Supreme Administrative Courts from various jurisdictions, including the European Court of Justice, have discussed the issues related to the jurisdiction of judicial bodies, the procedure of review of the administrative decisions and the scope of authority of an administrative court judge.
22 March 2010
1st issue of “Bulletin of the International Commercial Arbitration” published in Russia
Since 2010 the Infotropic Media Publishing House, supported by the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation, the Chamber of Commerce and Industry of the Russian Federation and a number of law firms, including Muranov, Chernyakov & Partners (www.rospravo.ru), publishes the only Russian journal devoted exclusively to the international commercial arbitration issues.
The publication of the “Bulletin of the International Commercial Arbitration” in Russia is an extraordinary and significant event for the legal and business community, as well as for all those involved with private international law, international trade and arbitration proceedings in one or another way.
Members of the editorial board include such well-known Russian experts in the international commercial arbitration (ICA) sphere as A.S. Komarov, S.N. Lebedev, A.L. Makovsky, M.G. Rozenberg, A.A. Kostin and some other prominent Russian legal scholars and practitioners. The Chief Editor of the new journal is the Head of the Private International Law Department of the Private Law Research Centre at the RF President, Ph.D. in Law (candidate of legal sciences), arbitrator of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation A.N. Zhiltsov.
11 March 2010
Mediation bill brought forward by President Dmitry Medvedev
The Russian President Dmitry Medvedev introduced into the State Duma (the lower chamber of the federal parliament) a draft federal law “On Alternative Procedure of Dispute Settlement with Participation of Mediator (Mediation Procedure)” together with a complementary bill on amending certain legislative acts of the Russian Federation in view of adopting such federal law.
The scope of application of the President’s bill encompasses mediation in civil, commercial, labor and family disputes. The bill provides regulation mostly with regard to connection between mediation and litigation or arbitration. It specifies the modalities of commencing mediation procedure when the dispute is already at court; entering into the mediation agreement; establishes procedural guarantees of confidentiality of the mediation procedure; concluding mediated settlement agreement.
Adoption of such law is likely to contribute to development of mediation in Russia, both in domestic and international disputes.
01 March 2010
Judgments of the European Court of Human Rights form ground for reviewing civil cases in Russia
The Russian Constitutional Court held that the courts of general jurisdiction may not avoid reviewing civil cases on the ground of judgments of the European Court of Human Rights in Strasbourg. The Constitutional Court filled the gap in the Code of Civil Procedure allowing courts to set aside motions for review. Experts see this decree as a halfway measure: on the one hand, the Constitutional Court stressed the mandatory nature of the Strasbourg Court’s judgments for Russia, but, on the other hand, it never guaranteed that Russian courts will invariably take favourable decisions for the applicants.
4 February 2010
Major international telecom merger approved by Russian Government Commission
The Government Commission for Foreign Investment Control approved the merger of the Russian VimpelCom with the Ukrainian mobile operator Kievstar forming a new company VimpelCom registered in the Bermudas. Now it is for the VimpelCom minority shareholders to decide whether to approve the deal which will put an end to the five years’ conflict between Alfa Bank and the Norwegian Telenor. The operator promises to send them the offer in the nearest days.
1 February 2010
Energy Charter Treaty interim awards in investment arbitration cases against Russia made public
The interim awards on jurisdiction and admissibility rendered by the Permanent Court of Arbitration in Hague on 30 November 2009 in cases instituted by three foreign investment funds against Russia have been published on the Investment Treaty Arbitration website. The awards admit Energy Charter Treaty claims worth up to US$100 billion to proceed against Russia. The tribunal found that Russia is bound by its obligations under the Energy Charter Treaty even though it never ratified this international instrument, on the ground of “provisional application”.
The claimants are Hulley Enterprises Limited (Cyprus), Yukos Universal Limited (Isle of Man), Veteran Petroleum Limited (Cyprus). The proceedings are conducted under the UNCITRAL Arbitration Rules 1976.
22 January 2010
Russian court passed a ruling on seizure of the US-based property
The Basmanny district court of the city of Moscow ordered the seizure of the New York apartment of the political émigré Boris Berezovsky securing the civil claim of Mr. Vladimir Terliuk residing in London. The claim was filed in the course of investigation of the criminal action on Article “Intentionally false denunciation” initiated by the Investigating Committee under the Prosecutor General’s Office of the Russian Federation against Mr. Berezovsky. The Russian court is expected to address the New York court for enforcement of the said judgment.
The Constitutional Court of Russia backed the forming of the case law in Russia simultaneously demanding that this process be conducted in strict compliance with and regulated by the law
In recent years the case law has been actively introduced into the commercial courts system: the Supreme Arbitrazh Court (SAC) demanded that lower courts take into consideration its legal views in particular cases. In addition to that, SAC stated about the necessity to review the cases having been resolved differently by the time the precedent was set. This, however, may only be done in exceptional cases, the Constitutional Court of Russia officials believe — e.g., when a precedent increases protection of people in dispute with public authorities. The Constitutional Court ruled that the SAC legal views may only have retroactive force in exceptional cases and subject to SAC separately specifying that this particular SAC decree has retroactive force.
7 December 2009
Russia’s Supreme Arbitrazh Court upholds lower courts judgments which recognized and enforced a Dutch court judgment on the basis of international comity
On June 5, 2009 the Arbitrazh court of Moscow region by its ruling in case No. A41-9613/09 recognized and enforced the judgment of the District court of Dordrecht rendered upon a dispute which arose out of a commercial lease between a Dutch company Rentpool B.V. and a Russian company “Podyemnye technologii” LLC. The court held that the judgment is subject to recognition and enforcement in the territory of the Russian Federation on the basis of the principles of reciprocity and comity of nations even in absence of a bilateral treaty between Russia and the Netherlands on recognition and enforcement of judgments. Such finding was upheld by the Federal Arbitrazh Court of Moscow Circuit in the Ruling of July 29, 2009. The Supreme Arbitrazh Court by its ruling No. BAC-13688/09 of 7 December 2009 upheld these judgments and pointed out that the international comity obliges states to be respectful towards foreign legal systems.
02 December 2009
The Hague Tribunal found itself competent to hear a case against Russia under the Energy Charter
Group Menatep Limited (GML), representing the former YUKOS owners, got a prospect of suing Russia for $100 bln. The Permanent Court of Arbitration (also known as the Hague Tribunal) rendered an award about the Energy Charter provisions being applicable to the case under consideration. The court was never abashed by the fact that Russia had officially informed the Depository that it did not intend to become a Contracting Party to the Energy Charter Treaty.
23 November 2009
Champagne house defends its right to CRISTAL in Russia
The Arbitrazh court of Moscow ruled in favor of French-based champagne house Champagne Louis Roederer in a dispute about the CRISTAL trade mark with the Russian Federal state-owned enterprise Soyuzplodoimport.
22 October 2009
Berlin courts confirmed that the ‘Russian house’ cannot be subject to seizure and judicial sale so as to pay the Russian debt exceeding ?4.9 million owed to the German businessman Franz Sedelmeier
Franz Sedelmeier persists in seeking indemnification for the loss of his investment in a joint venture with the St. Petersburg local police service to reconstruct a mansion on Stone Island that was taken over by Russian authorities in 1995. In his most recent endeavor to enforce a 1998 Stockholm ad hoc arbitration award, Berlin district court (Amtsgericht) and state court (Landesgericht) sustained the Russian Government’s argument that the Russian House of Science and Culture is used for sovereign purposes and is therefore immune from seizure. The Russian House serves the purpose of international humanitarian cooperation. Its building sale value is estimated at about ?116 million. The area of the building premises is about 29 thousand sq. meters. Mr. Sedelmeier intends to apply to the German Constitutional Court, but German lawyers say the hearing of his case is unlikely.
22 September 2009
Russia’s Supreme Arbitrazh Court speaks out against formalistic interpretation of arbitration agreements
Russian courts are often criticized for excessively formalistic approach to the application of legal rules resulting in such difficulties for foreign parties’ enforcement of their rights that cannot be reasonably expected or foreseen by the latter. A new ruling of Supreme Arbitrazh Court (also referred to as the High Arbitrage Court) No. 5604/09 in case No. A57-8082/2008-116 orients lower courts to be less pedant in interpreting arbitration agreements provisions. Arbitration agreements are frequently drafted by the parties rather carelessly or vaguely. As result the courts often find that the parties failed to agree upon the arbitral tribunal. In the case in question a German seller Hebenstreit-Rapido GmbH and a Russian buyer OJSC “Saratovskaya” specified in their sale of equipment contract that all disputes and controversies which can arise out of the contract or in relation thereto and which are not resolved through negotiations shall be resolved “in derogation from general court’s jurisdiction through arbitration by the Chamber of Industry and Commerce in Vienna (Austria) in accordance with its regulations”.
A dispute between the parties arose out of this contract and the German seller applied to the International Arbitral Centre of the Austrian Federal Economic Chamber. The Russian debtor repeatedly objected to the arbitral tribunal competence, insisting that he had not agreed upon this arbitration body. However the arbitral tribunal found itself competent and awarded to the claimant 65,430.00 Euro of the principal debt with interest and arbitration costs. As the debtor failed to voluntarily execute the award, the German creditor applied for the award recognition and enforcement in the Arbitrazh Court of the Saratov Region.
In August 2008 the court refused to recognize and enforce the award on the ground that the parties failed to agree upon the arbitration body. The court held that it followed from Article 7 of the Russian Federal Law on International Commercial Arbitration (which is almost completely based on the UNCITRAL Model Law) that the arbitration agreement must clearly indicate the arbitration institution, yet the said contract provided that the disputes should be resolved directly by the Chamber of Industry and Commerce under its regulations rather than by some arbitration institution. The court also held that the arbitration clause did not specify the International Arbitral Centre of the Austrian Federal Economic Chamber or its arbitration rules. The court found that the award recognition and enforcement would contradict to Article V(1)(c) of the New York Convention and Article 36(1) of the Russian Federal Law on International Commercial Arbitration
The Federal Arbitrazh Court of Povolzhsky Circuit in October 2008 upheld this judgment.
On September 22, 2009 Russia’s Supreme Arbitrazh Court Presidium annulled the judgments of the lower courts and remanded the case to the court of the first tier. The highest court ruled that “in essence the first tier court refused to recognize and enforce the foreign arbitral award on a formal ground of non-coincidence of the foreign arbitration court name as specified in the arbitration clause with the international arbitration court which rendered the award”.
The court also pointed out: “As it follows from the arbitration clause, the parties derogated from the jurisdiction of any state courts hearing of disputes between the parties arising out of the contract or related thereto. The parties also undisputedly and unambiguously agreed upon the place of any future arbitration procedure – Austria, Vienna. […] The court of the first tier should have taken into consideration that the Economic Chamber in Vienna is an organization similar to Chambers of Industry and Commerce existing in other countries, whereas the International Arbitral Centre of the Austrian Federal Economic Chamber is the only institutional (permanent) international commercial arbitration court established by it”.