Client Alert | International Arbitration
Russian arbitration reform
Authors: Julia Zagonek, Pavel Boulatov, Oleg Todua
On 29 December 2015, the Russian President signed two laws the Federal Law on Arbitration in the Russian Federation1 and Federal Law on Amendments to Certain Legislative Acts of the Russian Federation (together the "Laws").2 As set out below, their provisions, with a number of exceptions, entered into force on 1 September 2016. The Laws, aimed at eliminating "pocket" arbitration institutions and improving the overall quality of arbitration in Russia, are a product of a discussion which has been going over the last few years. They focus on the following key areas:
(a) new mechanisms, in particular for support from Russian state courts, in line with the UNCITRAL Model Law;
(b) pro-arbitration approach to the form and contents of the arbitration agreement; (c) relatively clear-cut rules on arbitrability of different types of disputes; (d) mechanisms for controlling establishment and operation of arbitration institutions; and (e) amendments to the procedure for challenging and recognising/enforcing awards. The Laws will drastically change the arbitration landscape in Russia. Although the Laws are a step forward, they create a number of ambiguities and potential problems. This alert does not purport to re-state the Laws or provide a detailed commentary to each of the provisions but rather focuses on these problematic areas. This alert comprises the following sections: support from Russian state courts; new rules on arbitration agreement; arbitrability, including of corporate disputes; licensing requirements for foreign arbitration institutions; different regimes for institutional arbitration and ad doc arbitration; challenging and enforcement of wards; entry into force.
1 Federal Law No. 382-FZ dated 29 December 2015 (the "Arbitration Law"). 2 Federal Law No. 409-FZ dated 29 December 2015 on Amendments to Certain Legislative Acts of the Russian
Federation and the Repeal of Article 6 (1)(3) of the Federal Law on Self-Regulating Organisations in connection with the Adoption of the Federal Law on Arbitration in the Russian Federation (the "Amendment Law").
Support from Russian state courts
Previously, support from the Russian courts to both domestic and international arbitration was largely limited to granting interim measures and recognising and enforcing awards (leaving aside challenging rulings on jurisdiction and awards). The Laws introduce a set of new mechanisms, designed to make Russia more arbitration-friendly, empowering the Russian state courts to assist tribunals and parties with obtaining evidence and appointing and challenging arbitrators.
In institutional arbitration seated in Russia, a tribunal or a party with the tribunal's permission can apply to state courts for assistance with obtaining evidence. Evidence which can be obtained is limited to documents and physical evidence, and the Laws do not provide for the possibility of obtaining assistance with respect to, for example, witness evidence or deposition.3 It also appears that the Laws do not envisage any assistance with on-site inspections (for example, of a construction site or other objects in possession of third parties) or other similar ways of obtaining evidence.
The criterion for determining which court has jurisdiction to hear such an application is the location of the evidence sought.
There are no express provisions stating whether rulings concerning assistance with obtaining evidence may be appealed. It appears, however, that such rulings should be treated as appealable in the context of the provision that rulings preventing the case from moving forward can be appealed.4 If such rulings were not appealable, this would create the following risks:
(a) when considering an application for assistance with obtaining evidence, the court inter alia determines whether the application is made in respect of an arbitrable dispute.5 If, for example, the court rejects an application stating that the underlying dispute is not arbitrable, the issue of arbitrability may be considered as res judicata at the enforcement stage. In the absence of an appeal mechanism, this would put enforcement of the final award in jeopardy; and
(b) where rulings concerning assistance with obtaining evidence affect the rights and/or legitimate interests of third parties, such third parties would be left with no means of appealing such rulings.
Appointing and challenging arbitrators and termination of their powers
If parties or a designated arbitration institution in certain circumstances fail to form a tribunal, a party can request a state court to make the necessary appointment(s).6 In doing so, the court shall have regard to any qualifications stipulated by the parties' agreement and to such considerations as are likely to secure the appointment of independent and impartial arbitrators (this rule mirrors the language of the UNCITRAL Model law).7
It is not clear, however, how the state courts will actually select arbitrators, in particular when there is no agreed shortlist of candidates provided by the parties. Originally, the draft proposed by the Russian Ministry of Justice in 2014, which formed the basis for the Laws, provided that the courts would select them from a list of recommended arbitrators of the arbitration institution administering the dispute or from the list which would be drawn up in accordance with the procedure established by the Russian Ministry of Justice, but eventually these provisions were not included in the Laws. Another area of concern is administrative work: in order to appoint an arbitrator, it is necessary to liaise with him or her, provide information for a conflicts check, confirm
3 Article 27 of the Law on International Commercial Arbitration No. 5338-1 dated 7 July 1993, as amended by the Amendment Law (the "ICA Law"); Article 30 of the Arbitration Law; Article 74.1 of the Commercial Procedure Code Federal Law No. 95-FZ dated 24 July 2002, as amended by the Amendment Law (the "CPC"); Article 63.1 of the Civil Procedure Code Federal Law No. 138-FZ dated 14 November 2002, as amended by the Amendment Law (the "Civil Procedure Code").
4 Article 188 (1) of the CPC, Article 331 (1) of the Civil Procedure Code. 5 Article 74.1 (4)(3) of the CPC, Article 63.1 (4)(3) of the Civil Procedure Code. 6 Article 11 (4) of the ICA Law, Article 11 (4) of the Arbitration Law, Article 240.1 of the CPC, Article 427.1 of the Civil
Procedure Code. 7 Article 11 (6) of the ICA Law, Article 11 (5) of the Arbitration Law.
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whether he or she is able and willing to act as an arbitrator, agree the hourly rate and address other administrative issues which are handled with by secretariats in institutional arbitration. It is not clear how these issues will be dealt with by the Russian courts in the absence of specific provisions to this effect in the Russian procedural law.
In the absence of any guidance on the legislative level as well as practice and experience in handling these matters, Russian courts may struggle with selecting suitable candidates and securing their appointment.
A party whose challenge to an arbitrator has been refused in an arbitration can challenge such decision in the state court within a month of receiving the decision.8 The Laws also provide for the possibility of submitting an application to terminate an arbitrator's powers when he or she does not resign voluntarily when the relevant grounds arise.9
The court competent to deal with the issues listed above is determined on the basis of where the arbitration "takes places". This rule has two ambiguities:
(a) it is not entirely clear whether the Russian courts will consider the reference to the location where the arbitration "takes place" as a reference to the legal seat of arbitration or, to the contrary, to the venue of arbitration; and
(b) there is no mechanism for determining the competent court where the seat of arbitration has not yet been chosen/determined.
The mechanisms described above can only be opted out of (1) in institutional arbitration and (2) by express agreement of the parties (as to which see below).
The Laws provide that the state courts' rulings with respect to appointment of and challenges to arbitrators are final and may not be appealed.10 However, one cannot exclude the possibility that such rulings will still in fact be held appealable at least in some instances, for example, on the basis of the so-called absolute reasons some of the Russian state courts had previously allowed appeals with respect to rulings concerning the jurisdiction of tribunals on the basis of the general provisions of the Commercial Procedure Code, notwithstanding the express provision prohibiting such appeals in the ICA Law.11
An exception is made for arbitrations administered by International Commercial Arbitration Court (ICAC) and the Maritime Arbitration Commission (MAC): the Laws provide that the issues relating to appointing, challenging and termination of powers of arbitrators described above shall be dealt with by the President of the Russian Chamber of Commerce rather than a state court.12
New rules on arbitration agreement
The Laws expressly provide that an arbitration agreement may be:13
(a) concluded in electronic form;
(b) included in the rules of a trading platform or clearing rules; and
(c) included in the company's charters and corporate (shareholders') agreements, with a number of exceptions.
8 Article 13 (3) of the ICA Law, Article 13 (3) of the Arbitration Law, Article 240.1 of the CPC, Article 427.1 of the Civil Procedure Code.
9 Article 14 (1) of the Arbitration Law, Article 14 (1) of the ICA Law, Article 240.1 of the CPC, Article 427.1 of the Civil Procedure Code.
10 Article 240.5 (3) of the CPC, Article 427.5 (3) of the Civil Procedure Code. 11 For example, the Federal Commercial Court of the Moscow Circuit in its Resolution No. 40-65888/11-8-553 dated 24
January 2012 reconsidered a Ruling of the Moscow Commercial Court concerning the tribunal's jurisdiction. This Resolution, in turn, was not overridden by the Supreme Commercial Court (Ruling of the Supreme Commercial Court No. SCC-1168/12 dated 22 February 2012). 12 Clause 11 of Annex I and Clause 10 of Annex II to the ICA Law.
13 Article 7 of the ICA Law, Article 7 of the Arbitration Law.
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The Laws also stipulate that certain issues may be agreed only by way of "express agreement" of the parties.14 It means that to be valid, the parties' agreement on such an issue must be expressly set out in the text of the parties' arbitration clause, rather than addressed in the arbitration rules to which the arbitration clause refers. Issues which may be addressed only by parties' "express agreement" include:
(a) excluding the possibility of referring to the state courts for assistance with formation of a tribunal and challenging the tribunal's ruling on jurisdiction in the state courts;
(b) conducting arbitration without an oral hearing; and
(c) excluding the possibility of setting aside the final award.
Interestingly, the rules concerning express agreement differ for international and domestic arbitration. For example, restrictions in items (a) and (c) above apply both to domestic15 and international arbitration seated in Russia,16 which means that if these issues are covered by the arbitration rules to which the parties have agreed, it will not be sufficient and the Laws will override such "indirect" agreement of the parties. On the contrary, item (b) is relevant only to domestic arbitration,17 whereas in international arbitration parties do not need to set out their agreement concerning the conduct of arbitration without an oral hearing in their arbitration agreement a reference to the rules which provide for such possibility will suffice.
None of the restrictions concerning express agreement are stated by the Laws to apply to international arbitration seated abroad. However, in arbitrations seated abroad where Russian law is the law governing the arbitration agreement, theoretically some tribunals may still find these restrictions to be applicable as part of Russian law.
The new rules on express agreement create a risk of contradiction between Russian law (either by virtue of being lex arbitri or law governing the arbitration agreement) and arbitration rules of international institutions. For example, in an arbitration under the SIAC Rules seated in Russia, a contradiction may arise between the SIAC Rules, which, inter alia, provide that the SIAC Court of Arbitration's decisions on challenges "shall be final and not subject to appeal"18 and that an "award shall be final and binding on the parties from the date it is made",19 and the Laws, which provide that parties' agreement on these matters can only be valid if included in the text of the arbitration agreement itself.20
While tribunals will have to deal with such contradictions on a case by case basis, this risk is likely to become another hurdle which may jeopardise making Russia a more popular seat of arbitration.
Other notable amendments include the introduction of the following rules:
(a) any doubts as to the validity of an arbitration clause shall be interpreted in favour of its validity and enforceability;21 and
(b) arbitration clauses are stated to apply, by default, to any amendments to the principal agreement, as well as to any issues relating to the validity and termination of such agreement.22
The Laws provide a list of non-arbitrable disputes, which include:23
14 Article 7 (13) of the ICA Law, Article 2 (13) and Article 7 (12) of the Arbitration Law. 15 Article 11 (4), Article 13 (3), Article 14 (1), Article 16 (3), Article 40, and Article 47 (1) of the Arbitration Law. 16 Article 11 (5), Article 13 (3), Article 14 (1), Article 16 (3), and Article 34 (1) of the ICA Law. 17 Article 27 (1) of the Arbitration Law. 18 Rule 16.4 of the SIAC Rules (2016). 19 Rule 32.11 of the SIAC Rules (2016). 20 Article 13(3) and Article 34 (1) of the ICA Law, Article 13(3) and Article 40 of the Arbitration Law. 21 Article 7 (9) of the ICA Law, Article 7 (8) of the Arbitration Law. 22 Article 7 (10) of the ICA Law, Article 7 (9) of the Arbitration Law.
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1) bankruptcy cases;
2) disputes over state registration of companies and individual entrepreneurs;
3) certain disputes over intellectual property rights;
4) public law disputes, including challenging decisions of state authorities;
5) class actions; and
6) disputes over privatisation and public procurement contracts.
Notwithstanding the provision that no other types of disputes shall be non-arbitrable unless expressly provided by federal law,24 in light of the approaches applied by the Russian courts previously, it is unclear whether they will consider the following types of disputes arbitrable:
1) disputes involving public interest other than those referred to above, in particular, arising out of contracts concluded pursuant to Federal Law No. 223-FZ dated 18 July 2011 "On Purchase of Goods, Works and Services by Certain Types of Legal Entities";
2) disputes related to auction/tender procedures, including public sales when they are not "organised" sales;
3) private actions for damages caused by infringements of competition law;
4) disputes over current payments in bankruptcy proceedings; and
5) disputes concerning the validity of transactions arising out of special provisions of the Russian insolvency legislation involving banks, pension funds and/or insurance companies where provisional administration (rehabilitation) has been introduced in respect of such a bank/pension fund/insurance company but no insolvency proceedings have commenced yet.25
There is a number of other specific questions which remain unaddressed by the Law, including whether foreign institutions which have obtained a permit (as to which see below) are deemed to be domestic institutions for the purposes of Federal Law No. 115-FZ dated 21 July 2005 "On Concession Agreements" and are thus authorised to administer disputes between a concessor and a concessionary.26
The Laws resolve the ambiguity over the arbitrability of various types of corporate disputes which has existed for several years and introduce a relatively clear-cut set of solutions. The Laws distinguish between: 1) non-arbitrable corporate disputes. These are disputes relating to/arising out of:27
convening general shareholders' meetings;
exclusion of shareholders;
challenging resolutions and actions of state authorities with respect to issuance of stock; and
strategic legal entities (except where the amount of shares in dispute does not exceed the threshold which triggers the need to obtain approval from the Government Commission on Monitoring Foreign Investment).
23 Article 33 (2) of the CPC, Article 22.1 (2) of the Civil Procedure Code. 24 Article 33 (2)(8) of the CPC, Article 22.1 (2)(10) of the Civil Procedure Code. 25 According to a recent ruling of the Supreme Court of the Russian Federation, such disputes, at least as far as they
concern banks, are not arbitrable as having "public nature" and involving "social dimension" see Ruling of the Supreme Court No. 305-E16-4051 dated 16 August 2016 in Case No. A40-117039/2015. We note that this Ruling was rendered prior to the Laws coming into force. 26 See White & Case Client Alert on The Validity of Arbitration Clauses in Concession Agreements, August 2016.
27 Article 225.1 (2) of the CPC.
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2) corporate disputes arbitrable in institutional arbitration seated in Russia and administered under special arbitration rules for corporate disputes. These are disputes relating to/arising out of:28
establishment, reorganisation and liquidation of legal entities;
challenging the resolutions of management bodies;
appointment/election and removal of directors and their liability; and
challenging major and interested party transactions (only if all parties to the dispute have concluded an arbitration agreement).
The new rules on arbitrability of corporate disputes are obviously based on the German experience generally and the example of the German arbitration institution ("DIS"), which has separate arbitration rules for corporate disputes.
DIS is the only reputable international institution which administers corporate disputes under a separate set of arbitration rules. In light of the enactment of the Laws, several leading arbitration institutions have already confirmed that they are not considering issuing separate sets of rules for corporate disputes,29 which, pursuant to the Laws, need to contain a number of provisions contrary to the key features of arbitration (such as a requirement to publish information about the submission of a statement of case on the arbitration institution's website).30 Accordingly, it is highly unlikely that such disputes will be administered by leading foreign institutions (other than DIS) in the near future.
3) corporate disputes arbitrable in institutional arbitration not necessarily seated in Russia and in the absence of special rules for corporate disputes.31 These are disputes relating to/arising out of:
ownership of shares and enforcement of share pledge agreements; and
activity of registrars.
It is not clear what happens if a foreign arbitration institution administers such a dispute in the absence of a permit and with the seat abroad the Laws do not give an express answer to this question and there is a theoretical risk that the Russian courts may hold the award rendered in such an arbitration unenforceable by virtue of it not being an institutional award. However, such approach would be counter-productive.
Importantly, all of the above provisions and restrictions appear to apply only to disputes involving Russian companies, although this is not immediately clear from the language of the Laws.
As stated above, subject to a number of conditions and exceptions, the Laws provide that arbitration clauses can be included in companies' charters and corporate (shareholders') agreements. The Laws specify that disputes between shareholders and a company arising in connection with the company's relations with a third party can be referred to arbitration if all the shareholders, the company and relevant third parties (where such disputes involve them) are parties to an arbitration agreement.32 Such an agreement can be included in a corporate (shareholders') agreement involving the counterparty.33 An alternative to such a tripartite agreement is an arbitration clause included in a company's charter, provided that the relevant counterparty expressly consents to such an arbitration clause.34
The new rules, if applied thoughtfully, can become a powerful weapon against the so-called "Russian torpedo" tactics widespread before, whereby a contract with an arbitration clause could be declared invalid following a
28 Article 225.1 (3) of the CPC. 29 This was announced, in particular, at III Annual RAA Conference (2016). A report on the event in Russian is available
here. 30 Article 45 (8)(2) of the Arbitration Law. The Laws refer to the "statement of case" and do not use the term "request for
arbitration". 31 Article 225.1 (5) of the CPC, Article 2 (11) of the Arbitration Law. 32 Article 225.1 (3) and (4) of the CPC. 33 Article 225.1 (1)(4) of the CPC. 34 Article 7 (8) of the ICA Law, Article 7 (7) of the Arbitration Law.
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derivative claim to a Russian state court by a shareholder of a party to that contract in order to undermine enforcements in Russia of any award rendered in an arbitration between the company and third parties under such underlying contract.35
It is yet uncertain whether the Russian courts will treat an arbitration agreement included a company's charter coupled with an arbitration agreement between the company and the counterparty as an equivalent of such a tripartite agreement.
Licensing requirements for foreign arbitration institutions
Permanent arbitration institutions36 will be allowed to operate in Russia only if they obtain a permit (license) from the Russian Government.37 The deadline for obtaining permits is 1 November 2017.38
The Government will issue such permits on the recommendation of a special Council for development of arbitration (the "Council"), which is to be formed by the Russian Ministry of Justice following consultation with business and academic communities.39 The Council will be also responsible for assessing whether the arbitration institutions comply with the set of requirements provided for by the Laws.40
Foreign arbitration institutions will be treated as "permanent arbitration institutions" if they obtain such permits.41 Pursuant to the Laws, the only condition for obtaining a permit by a foreign institution is having a "widely recognised international reputation."42
The procedure for issuing permits, set by the Government in its Resolution No. 577 dated 25 June 2016, enters into force on 1 November 2016. It does not provide any further detail as to the criteria to be applied by the Government when deciding whether to issue a permit.
The list of documents43 which a foreign institution must submit in order to obtain a permit includes:
1) an application for a permit signed by an authorised representative;
2) a note on the history and activities of the institution;
3) an extract from the register of companies or another official document confirming the legal status of the institution or organisation under the auspices of which the institution has been established; and
4) rules for corporate disputes certified by the institution (in case it intends to administer corporate disputes which in accordance with the Laws require special rules for corporate disputes).
These documents must be submitted in Russian or with a certified Russian translation.
Accordingly, the procedure for obtaining permits by foreign institutions on its face does not appear to be burdensome.
From the practical points of view, the consequences of failure to obtain a permit are twofold.
35 See, e.g., Karabelnikov B.R. Enforcement and setting aside of awards of international commercial arbitrations. Commentary to the New York Convention of 1958 and Chapters 30 and 31 of the CPC of 2002. 3-rd edition, M., Statut, 2008, p. 365; http://cisarbitration.com/wp-content/uploads/2015/06/RAA40-Newsletter-No-2-2014.pdf (p. 33) for discussion.
36 Except for two Russian institutions the International Commercial Arbitration Court (ICAC) and the Maritime Arbitration Commission (MAC).
37 Article 44 (1) of the Arbitration Law. 38 Article 52 (13) of the Arbitration Law. 39 Article 44 (4) and (5) of the Arbitration Law. The procedure for establishment and functions of the Council is
established by the Order of the Russian Ministry of Justice No. 165 dated 13 July 2016 "On Council for Development of Arbitration" (the "Order No. 165"). 40 Article 44 (6) of the Arbitration Law. 41 Article 44 (3) of the Arbitration Law. 42 Article 44 (12) of the Arbitration Law. 43 This list of documents is set out in Order No. 165.
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On the one hand, there is a provision stating that if a foreign institution does not obtain a permit, awards in arbitrations administered by it and "rendered in the territory of the Russian Federation" will be treated as ad hoc awards, not as awards rendered in institutional arbitration (arbitration administered by permanent arbitration institutions using the terminology of the Laws),44 in the absence of other violations of mandatory provisions of Russian law. In light of express references to the "seat of arbitration" in some other provisions of the Laws, it is not entirely clear whether "rendered in the territory of the Russian Federation" is meant to be the same as "rendered in an arbitration seated in Russia." On the one hand, it may be merely inconsistency in the terminology. On the other hand, it creates a risk that if an arbitration institution does not obtain a permit, this provision will be held applicable not only to its arbitrations seated in Russia, but also, for example, to arbitrations where awards are signed by arbitrators in Russia or where the hearings take place in Russia while the legal seat is abroad.
At the same time, the Laws provide that arbitration institutions which do not obtain permits (without making a distinction between foreign and domestic institutions) will be prohibited from administering arbitrations and that any awards rendered in breach of this requirement will be treated as "rendered in breach of arbitration procedure provided for by [the Arbitration Law]")45 and may therefore be set aside or held unenforceable on this basis. This prohibition is stated to enter into force only 1 year from the date when the procedure for obtaining permits is established, i.e. on 1 November 2017.
Different regimes for institutional arbitration and ad doc arbitration
The Laws clearly favour institutional arbitration over ad doc arbitration and introduce a number of restrictions which will apply to ad hoc arbitration. In particular:
(a) parties and tribunals in ad hoc arbitrations do not have the right to apply to the Russian state courts for assistance in obtaining evidence;46
(b) corporate disputes cannot be heard in ad hoc arbitrations;47 and
(c) parties to ad hoc arbitrations are not entitled to exclude:
(i) the application of the provisions of the Laws on the assistance of the Russian state courts with respect to the appointment and removal of arbitrators;48 and
(ii) the possibility of challenging the awards.49
Challenging and enforcement of wards
As mentioned above, the parties will be able to agree that the award is final and, thus, to waive explicitly their right to challenge the award issued in an arbitration administered by a permanent arbitration institution (as opposed to ad hoc arbitration).
The Laws reduce the timeframe within which an application for recognition and/or enforcement of a foreign award must be considered by the state court to one month.50 The same timeframe applies to the procedures in respect of domestic awards.51
The Laws provide for a clear set or rules for dealing with parallel proceedings for enforcement and setting aside an award. If both enforcement and setting aside applications are filed, the court must stay the consideration of the more recent application pending the outcome of the earlier application. If both applications are filed with the court simultaneously (on the same day), the court must stay the enforcement
44 Article 44 (3) of the Arbitration Law. 45 Articles 52 (13) and 52 (15) of the Arbitration Law. 46 Article 27 of the ICA Law, Article 30 of the Arbitration Law. 47 Article 225.1 (5) of the CPC. 48 Article 11 (5), Article 13 (3), Article 14 (1) of the ICA Law; Article 11 (4), Article 13 (3), Article 14 (1) of the Arbitration
Law. 49 Article 34 (1) of the ICA Law, Article 40 of the Arbitration Law. 50 Article 243 (1) of the CPC. 51 Article 238 (1) of the CPC.
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proceedings pending the resolution of the application to set aside (the same approach had previously been adopted by the courts).52 If the court dismisses the application to set aside, the successful party may obtain a writ of execution of the award without initiating a separate set of proceedings for enforcement. Likewise, if the court refuses enforcement of an award, the parallel setting aside proceedings must be terminated.53
The Laws provide for a mechanism whereby a party can request a stay of proceedings on setting aside an award so that the tribunal reinstates the arbitration to eliminate the grounds for setting the award aside.54 The Russian courts are now also entitled to ask for a clarification from the tribunal which has rendered the relevant award,55 however it is not clear how such requests are going to be dealt with by the tribunals in light of the provisions of applicable arbitration rules.
The Laws extinguish the controversial provision of the Commercial Procedure Code which previously provided for a possibility of challenging foreign awards made under Russian substantive law in the Russian courts.56
The Laws have changed the rules for recognition of declaratory awards which do not require enforcement. Pursuant to the Laws, any interested person can object to the recognition of such an award. The court to which such an application is to be made is the commercial court or the court of general jurisdiction at the place of residence/registered address of the applicant or the physical location of its assets. If the applicant does not reside or have assets in Russia, the application should be made to either the Moscow Commercial Court or the Moscow City Court (depending on the nature of the dispute and the arbitrating parties).57
Lastly, the Laws abrogate the Order of the Presidium of the Supreme Counsel of the USSR No. 9131-XI on the Recognition and enforcement in the USSR of the decisions of foreign courts and tribunals dated 21 June 1988,58 which remained in force to the extent that it did not contradict the Commercial Procedure Code. Pursuant to this Order, decisions which did not require enforcement (such as declaratory awards) were deemed to have been recognised automatically whereas the party against whom the decision had been rendered had the right to challenge it. In fact, however, since it was not clear whether these rules contradicted the Commercial Procedure Code, the Russian courts would sometimes issue rulings on the recognition of awards which did not require enforcement, albeit contrary to the rules set out above in this paragraph. The rules on recognition of awards which do not require enforcement are now incorporated in the Commercial Procedure Code, which has resolved the ambiguity.
Entry into force
The Laws entered into force on 1 September 2016 and generally apply to arbitrations commenced on or after 1 September 2016.59
New mechanisms of state support with respect to formation of tribunals will apply to arbitrations commenced on or after 1 September 2016.60 Other support functions (assistance with obtaining evidence) of the state courts will be available since 1 September 2016 even for arbitrations commenced earlier.61
Clauses providing for settlement of arbitrable corporate disputes by arbitration may be concluded on or after 1 February 2017. If concluded before that date, such clauses will be unenforceable.62
52 Articulated by the Supreme Commercial Court in OJSC "Centrgaz" v. LLC "Komigazinveststroiy" (Resolution of the Presidium of the Supreme Commercial Court No. 11885/08 dated 10 February 2009).
53 Article 238 (6) of the CPC, Article 425 (6) of the Civil Procedure Code. 54 Article 34 (4) of the ICA Law, Article 37 (6) of the Arbitration Law, Article 232 (5) and Article 238 (8) of the CPC, Article
420 (5) and Article 425 (8) of the Civil Procedure Code. 55 Article 243 (3) of the CPC. 56 Article 230 of the CPC (as amended by the Amendment Law). 57 Article 245.1 of the CPC and Article 413 of the Civil Procedure Code. 58 Article 13 (9) of the Amendment Law. 59 Article 13 (1) and (2) of the Amendment Law, Article 54 of the Arbitration Law. 60 Article 13 (17) of the Amendment Law, Article 52 (8) of the Arbitration Law. 61 Article 13 (20) of the Amendment Law, Article 52 (10) of the Arbitration Law. 62 Article 13 (7) of the Amendment Law.
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White & Case 7
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White & Case 8
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White & Case 9
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White & Case 10
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White & Case 11