What are the formal requirements for an enforceable arbitration agreement?
An arbitration agreement shall be in writing or in any other form that is deemed equivalent to the written form, such as the exchange of emails, and inclusion in relevant clearing or trading rules, etc. The arbitration agreement can be concluded as an arbitration clause or as a separate agreement. With regard to corporate disputes, the arbitration agreement can be inserted into the charter of a Russian company, as long as it is adopted unanimously by the shareholders (provided that there are fewer than 1,000 in total); however, it may not be included in the charter of a public joint stock company.
Both the ICA Law and the Arbitration Law provide that the arbitration agreement can also be concluded by the exchange of procedural documents (including a statement of claim and a statement of defence), whereby one party declares an arbitration agreement and the other party does not object to jurisdiction.Arbitral procedure
Does the domestic law contain substantive requirements for the procedure to be followed?
The general rule is that the parties to an arbitration agreement determine the arbitration procedure. In the event that no procedure is specified (for example, the arbitration agreement contains no reference to institutional rules), the tribunal may follow any procedure it deems appropriate, taking into account the applicable law, notably the ICA Law for international arbitration or the Arbitration Law for domestic arbitration.Award
When and in what form must the award be delivered?
The Arbitration Law and ICA Law provide similar requirements for the form of arbitral awards. The arbitral award shall be evidenced in writing and signed by a sole arbitrator, or at minimum a majority of the arbitrators, where there is more than one.
According to provisions of the Arbitration Law (which impose generally similar requirements to the ICA Law), the following shall be contained within the arbitral decision:
- the date of the award;
- the place of the arbitration;
- the composition of the arbitral tribunal and the procedure for its formation;
- the names and locations of the parties;
- the grounds for jurisdiction of the arbitral tribunal;
- the claims of the claimant and the respondent’s objections, and the parties’ petitions;
- the circumstances of the case as established by the arbitral tribunal, the evidence on which the findings of the arbitral tribunal are based, and the legal norms;
- the decision on the merits; and
- the distribution of costs.
On what grounds can an award be appealed to the court?
Where the parties agree to assign the dispute to a permanent arbitration institution under the terms of the arbitration agreement, they could agree that the resulting award is final and may not be subject to further challenge. In the event that such an agreement is not made, awards may be challenged within three months of the date the award was granted. Where a commercial court considers a claim to challenge an arbitration award, the resulting judgment will enter into force immediately. The parties could subsequently appeal that judgment further to the cassation level (ie, the commercial court of the relevant circuit) and then to the Supreme Court if necessary or desired.
The award can be challenged at a party’s request on the following grounds:
- one of the parties to the arbitration agreement was not fully legally capable, or the agreement is invalid under the applicable law (in the absence of choice, the law of the Russian Federation);
- one of the parties was not duly notified of the appointment of an arbitrator or of the arbitral proceedings, including the time and place of the arbitral tribunal’s hearing, or was unable to provide its explanations in the case for other reasons;
- the arbitral decision was concluded on a dispute that was not covered by the arbitration agreement, or was not subject to its terms, or the decision was concluded on issues that went beyond the scope of the arbitration agreement;
- the composition of the arbitral tribunal or the arbitration procedure did not comply with the agreement of the parties or federal law.
The courts have a discretion to set aside an arbitration award in circumstances where:
- the dispute in question could not be resolved by arbitration under applicable Russian law; or
- the award contradicts public policy.
What procedures exist for enforcement of foreign and domestic awards?
Unless there are grounds for setting aside the award (see question 31), the award will be enforced by the courts. It should be noted that it is easier to enforce an arbitral award than a foreign court decision. Enforcement of an award requires a straightforward application to be made to the state court, attaching the award and the arbitration agreement. Normally, at the stage of enforcement the state court should not review the award on its merits; however, in practice courts often do so to identify whether there are any issues that would either make the dispute unable to be concluded via arbitration, or would be contradictory to public policy.