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Starting an arbitration proceeding
What is needed to commence arbitration?
Under Article 21 of the International Arbitration Law, arbitration proceedings commence on the date on which the statement of claim is served on the respondent. Parties may agree on additional requirements. For example, they may agree that prior negotiations are required or that a certain ‘cooling-off period’ must expire before the claimant can file its request for arbitration.
Are there any limitation periods for the commencement of arbitration?
Limitation periods are generally considered to be part of substantive law. If substantive Russian law governs the subject matter of the dispute, the general statute of limitations is three years from the moment that the claimant learned (or reasonably should have learned) of the grounds for its claim and the identity of the responsible party. Shorter or longer limitation periods may apply, depending on the claim in question.
Are there any procedural rules that arbitrators must follow?
Parties are free to agree on the procedural rules that will govern the arbitration proceedings. Failing such agreement, the tribunal may, subject to the default provisions of the law, decide procedural and evidentiary issues as it wishes.
Are dissenting opinions permitted under the law of your jurisdiction?
Articles 29 and 31(1) of the International Arbitration Law imply that dissenting arbitrators may refuse to sign the award issued by majority. The reasons for withholding their signature should be specified.
Can local courts intervene in proceedings?
Under the International Arbitration Law, courts are prohibited from intervening in arbitration proceedings, except in limited circumstances, such as:
- to assist with interim measures;
- to assist with the collection of evidence;
- to assist with the composition of the tribunal, which includes ruling on challenges to arbitrators; and
- to hear appeals from an arbitral determination on jurisdiction (but such appeals need not ordinarily result in a stay of the arbitration).
Can the local courts assist in choosing arbitrators?
By default, the courts will function as the appointing authority if the parties fail to appoint arbitrators. The parties may specify another appointing authority, but ultimate recourse to the courts can be ruled out only by express agreement of the parties to arbitration administered by an arbitral institution.
What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can the courts compel parties to arbitrate? Can they issue subpoenas to third parties?
Under Article 25 of the International Arbitration Law, if a respondent fails to submit its statement of defence, to appear at a hearing or to produce documentary evidence, the tribunal may continue the proceedings and issue an award. The tribunal and the courts lack the power to compel a respondent to participate in arbitration proceedings.
Tribunals may invite third parties to participate in the proceedings, but cannot compel participation. Under the amended laws, the courts can theoretically collect evidence from third parties.
In what instances can third parties be bound by an arbitration agreement or award?
In general, there are no express provisions or universally recognised doctrines that would allow for an arbitration agreement or arbitral award to bind third parties.
In many cases shareholders of a company that is or may become involved in arbitration proceedings file derivative claims in Russian state courts to have an arbitration agreement or the contract underlying the dispute invalidated, and thus impede the arbitration proceedings or enforcement of an arbitral award in Russia. Shareholders usually claim that they are not bound by the arbitration agreement because they are not signatories to it.
Third parties are entitled to set aside or resist enforcement of an award which affects their rights.
Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?
Unless otherwise agreed by the parties, the tribunal is entitled to determine the place and language of the proceedings.
How is evidence obtained by the tribunal?
Under the International Arbitration Law, tribunals have no express authority to order the production of evidence. However, since tribunals are generally entitled to shape proceedings, they may order the production of evidence by the parties to the arbitration agreement. The consequences of a failure to produce evidence are not specified; it is for the arbitrators to draw appropriate inferences in this regard. Tribunals may invite – but cannot compel – third parties to produce evidence or witnesses to provide testimony.
Tribunals and parties may follow the International Bar Association Rules on the Taking of Evidence in International Arbitration as a ‘soft law’ instrument.
If an arbitration is administered by an arbitral institution, tribunals or the parties authorised by them can seek assistance of courts regarding collection of documentary or physical evidence.
What kinds of evidence are acceptable?
Unless otherwise specified by the parties or provided in the rules of an arbitral institution, there are no restrictions with respect to acceptable evidence. Documentary evidence, factual witnesses, party-appointed and tribunal-appointed experts and material evidence may all be utilised.
Is confidentiality ensured?
The International Arbitration Law does not address the issue of confidentiality. The parties are free to agree on confidentiality protection.
The rules of arbitral institutions may address confidentiality. For example, Paragraph 25 of the International Commercial Arbitration Court (ICAC) Rules provides that arbitrators and ICAC staff shall preserve confidentiality. However, this provision does not impose confidentiality obligations on the parties to the proceedings. The long-standing practice of the ICAC is to publish redacted versions of its decisions.
Some corporate disputes can be arbitrated only pursuant to rules mandating public notification of the arbitration on the arbitral institution's website within three days of the arbitral institution receiving the statement of claim.
Can information in arbitral proceedings be disclosed in subsequent proceedings?
Information and documents from the arbitration proceedings may be filed in court (eg, in proceedings to have the award set aside or enforced or to obtain interim measures). Court proceedings and judgments are generally public, although some submissions made in court proceedings are unavailable to the public. Third parties may be granted access to court records by the judge on showing of good cause. Under certain circumstances, parties to the litigation may request that the court declare the proceedings non-public.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
There are no general ethical codes for legal professionals in Russia.
Ethical rules exist for advocates – a special category of legal professionals which has historically focused on representing clients in courts.
Judges are subject to certain ethical rules. However, these rules do not apply to arbitrators, unless they are retired judges.
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