17.05.2012
Russian Federation participates in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (done at New York, on 10 June 1958). Moreover, the Law of the Russian Federation, On International Commercial Arbitration, No. 5338-1, which is based on the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law (UNCITRAL), was adopted in Russia on the 7th of July 1993. For that reason awards rendered by the ICAC of the Chamber of Trade and Industry of the RF cannot be reviewed on their merits by the state courts of Russia. An arbitral award may be set aside by the court only on the grounds, which are listed in Art. 34 of the above Law. The same grounds are provided by Art. 34 of the UNCITRAL Model Law. These grounds can be connected with possible defects of arbitration agreement and/or defects of procedure of hearing of a case. State court has no power to interfere in the merits of a dispute being resolved by arbitrators.
ICAC award can be set aside by the Moscow state arbitrazh1 court in accordance with the Arbitrazh Procedural Code of the Russian Federation, which has entered into effect as of September 1, 2002, within 3 months from the date of its receipt by a party, which wishes to challenge it. The decisions of this court in this type of action are not subject to appeal of the first level of the state courts, but may be appealed at the state Federal Arbitrazh Court of the Moscow region. Nowadays both the Moscow state arbitrazh court and the state Federal Arbitrazh Court of the Moscow region have accumulated great experience of hearing cases on setting aside of ICAC awards. The common practice is that decisions of the above mentioned courts point out that the Russian state courts have no authority to review awards rendered by the ICAC on their merits.
The party submitting an application for setting aside of ICAC award should point out certain grounds for challenge of the award provided by Art. 233 of the Arbitrazh Procedural Code. The list of such grounds provided by that article is an exhaustive one. The application is to be returned to the party which has submitted it or left without consideration by the state court, if no suchcorresponding grounds are indicated (Art. 231.2 of the Arbitrazh Procedural Code). The application shall be also returned to this party, if it is based on the grounds which are not provided in the Arbitrazh Procedural Code, although they may seem to it like being important (for example, error in determination of applicable substantive law, mistake in calculation of losses).
The party applying for setting aside of ICAC award should inform the other party to a dispute about its action (Art. 231.3.5 of the Arbitrazh Procedural Code).
The application for setting aside of an international commercial arbitration award rendered in the territory of the RF can be submitted only by the participants to the dispute. No such application may be submitted by a shareholder of such participant, state prosecutor, public fund or governmental body.
The most number of ICAC awards is performed voluntarily because of the small probability of setting aside of an award of international commercial arbitration or because of limited possibilities to obstruct their enforcement. If an award is not performed voluntarily, the party in which favor it was rendered can apply to the state court for help in enforcement.
Enforcement of ICAC awards abroad is regulated by the New York Convention. Enforcement in Russia is carried out by state arbitrazh court of area of the Russian Federation where the debtor or its property (if the debtor’s place of location is unknown) is situated (in accordance with Para. 2 of Title 30 of the Arbitrazh Procedural Code of the Russian Federation). No recognition of ICAC award is required for enforcement in Russia, it is just an issue of obtaining of a writ of execution.
The New York Convention is not strictly applicable to the procedure of issuance of a writ of execution for enforcement of ICAC award in Russia. However Articles 35 and 36 of the Law of the Russian Federation, On International Commercial Arbitration, which regulate that procedure, are based on the norms of this Convention. Regulations of Russian legislation included in Para. 2 of Title 30 of the Arbitrazh Procedural Code, are also based on the international standard mentioned above. Moreover, Art. 239.4 of the Arbitrazh Procedural Code establishes specifically that state arbitrazh court may refuse to issue a writ of execution for enforcement of international arbitration award (i.e., an award of the ICAC in particular) only if possibility of refusal is provided by international treaties of the Russian Federation and by the Law of the Russian Federation, On International Commercial Arbitration, and grounds for such refusal are exhaustively listed in Art. 36 of this Law. It is important that the state court may examine the possible grounds for refusal of enforcement of international arbitration award connected with possible defects of arbitration agreement or arbitration procedure only per request of the party which objects the enforcement. That goes without saying that formulation of grounds for denial of enforcement listed in Art. 36 of the Law of the Russian Federation, On International Commercial Arbitration excludes possibility of revision of arbitration award made by the ICAC on its merits by the state courts of Russia in the process of its enforcement.
Recognition and enforcement of ICAC awards
Russian Federation participates in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (done at New York, on 10 June 1958). Moreover, the Law of the Russian Federation, On International Commercial Arbitration, No. 5338-1, which is based on the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law (UNCITRAL), was adopted in Russia on the 7th of July 1993. For that reason awards rendered by the ICAC of the Chamber of Trade and Industry of the RF cannot be reviewed on their merits by the state courts of Russia. An arbitral award may be set aside by the court only on the grounds, which are listed in Art. 34 of the above Law. The same grounds are provided by Art. 34 of the UNCITRAL Model Law. These grounds can be connected with possible defects of arbitration agreement and/or defects of procedure of hearing of a case. State court has no power to interfere in the merits of a dispute being resolved by arbitrators.
ICAC award can be set aside by the Moscow state arbitrazh1 court in accordance with the Arbitrazh Procedural Code of the Russian Federation, which has entered into effect as of September 1, 2002, within 3 months from the date of its receipt by a party, which wishes to challenge it. The decisions of this court in this type of action are not subject to appeal of the first level of the state courts, but may be appealed at the state Federal Arbitrazh Court of the Moscow region. Nowadays both the Moscow state arbitrazh court and the state Federal Arbitrazh Court of the Moscow region have accumulated great experience of hearing cases on setting aside of ICAC awards. The common practice is that decisions of the above mentioned courts point out that the Russian state courts have no authority to review awards rendered by the ICAC on their merits.
The party submitting an application for setting aside of ICAC award should point out certain grounds for challenge of the award provided by Art. 233 of the Arbitrazh Procedural Code. The list of such grounds provided by that article is an exhaustive one. The application is to be returned to the party which has submitted it or left without consideration by the state court, if no suchcorresponding grounds are indicated (Art. 231.2 of the Arbitrazh Procedural Code). The application shall be also returned to this party, if it is based on the grounds which are not provided in the Arbitrazh Procedural Code, although they may seem to it like being important (for example, error in determination of applicable substantive law, mistake in calculation of losses).
The party applying for setting aside of ICAC award should inform the other party to a dispute about its action (Art. 231.3.5 of the Arbitrazh Procedural Code).
The application for setting aside of an international commercial arbitration award rendered in the territory of the RF can be submitted only by the participants to the dispute. No such application may be submitted by a shareholder of such participant, state prosecutor, public fund or governmental body.
The most number of ICAC awards is performed voluntarily because of the small probability of setting aside of an award of international commercial arbitration or because of limited possibilities to obstruct their enforcement. If an award is not performed voluntarily, the party in which favor it was rendered can apply to the state court for help in enforcement.
Enforcement of ICAC awards abroad is regulated by the New York Convention. Enforcement in Russia is carried out by state arbitrazh court of area of the Russian Federation where the debtor or its property (if the debtor’s place of location is unknown) is situated (in accordance with Para. 2 of Title 30 of the Arbitrazh Procedural Code of the Russian Federation). No recognition of ICAC award is required for enforcement in Russia, it is just an issue of obtaining of a writ of execution.
The New York Convention is not strictly applicable to the procedure of issuance of a writ of execution for enforcement of ICAC award in Russia. However Articles 35 and 36 of the Law of the Russian Federation, On International Commercial Arbitration, which regulate that procedure, are based on the norms of this Convention. Regulations of Russian legislation included in Para. 2 of Title 30 of the Arbitrazh Procedural Code, are also based on the international standard mentioned above. Moreover, Art. 239.4 of the Arbitrazh Procedural Code establishes specifically that state arbitrazh court may refuse to issue a writ of execution for enforcement of international arbitration award (i.e., an award of the ICAC in particular) only if possibility of refusal is provided by international treaties of the Russian Federation and by the Law of the Russian Federation, On International Commercial Arbitration, and grounds for such refusal are exhaustively listed in Art. 36 of this Law. It is important that the state court may examine the possible grounds for refusal of enforcement of international arbitration award connected with possible defects of arbitration agreement or arbitration procedure only per request of the party which objects the enforcement. That goes without saying that formulation of grounds for denial of enforcement listed in Art. 36 of the Law of the Russian Federation, On International Commercial Arbitration excludes possibility of revision of arbitration award made by the ICAC on its merits by the state courts of Russia in the process of its enforcement.
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