The issue of a unilateral (optional, alternative, hybrid) arbitration clause is highly controversial in commercial arbitration. The approach to these clauses varies from jurisdiction to jurisdiction. In 2012, the Supreme Arbitration Court of Russia (a state court), in Russian Telephone Company v. Sony Ericsson, declared a unilateral arbitration clause invalid. The decision attracted attention of…

In recent years, Russia has become a frequent respondent in investment treaty matters. This is a new development. There are currently at least ten treaty claims pending against Russia, with a number of other disputes threatened. At the same time, Russia is trying to protect its assets against a large-scale enforcement campaign in Europe and…

In 2013 the President of the Russian Federation Vladimir Putin announced in his annual message to the Council of the Federation: “I would like to attract your attention to one more problem – the mechanisms of commercial dispute resolution are still not as good as the global practice is, and it is necessary to raise…

Introduction and background Vladivostok is often perceived as the ‘capital’ of Russia’s Far East. It is also often portrayed, however, as Moscow’s backward colonial outpost, with few cars on the streets and where the supermarkets’ half-empty shelves offer nothing but Bulgarian pickles and stale bread. This perception is misguided. Russia’s Far East encompasses 36% of…

No doubt that the last three years have been quite busy for the Energy Charter Treaty (ECT) and for the Energy Charter Conference. The number of investor-state arbitration cases under Article 26 of the ECT doubled in this time span, going from thirty known cases to sixty-eight (as reported on the website of the Energy…

and Brenda Horrigan and Rebecca Soquier, Herbert Smith Freehills LLP, Shanghai The sanctions arising out of the Ukrainian crisis have led commercial entities to consider their options for resolving current or potential disputes. In this post, we consider the impact of the sanctions against Russia on the future of dispute resolution for Russian entities and…

Numerous commentators have reported on the sanctions war in the past. What remains to see is how the sanctions war affects the Russia-related arbitration geography. On 8 September 2014, the European Union introduced a new set of sanctions on major Russian companies and wealthy individuals. The sanctions came following Russia’s annexation of Crimea and its…

By Resolution of 27 March 2014, the United Nations (UN) General Assembly condemned the violation of Ukraine’s territorial integrity (A/RES/68/262). The Security Council remained, however, powerless to impose against Russia economic sanctions which all UN member States would have had to implement. In the absence of such “multilateral” sanctions, the European Union (EU) and the…

and Julia Popelysheva, Clifford Chance LLP Introduction On 19 June 2012 the Presidium of the Supreme Arbitrazh Court of the Russian Federation (“SAC RF“) issued a decree (“Decree“) in case No. VAS-1831/12 in which it examined the validity of an optional jurisdictional clause. The full text of the Decree setting out the rationale for the…

One of the oft quoted advantages of arbitration is the perceived certainty that the national courts of New York Convention states should enforce an arbitral award unless one of the limited grounds for refusal is met. However, the relationship between national courts and arbitration is far from straightforward. In particular, one notable area where there…

When the Arbitrazh Court of Kemerovo Region in Siberia granted leave to recognize an annulled ICC award in 2011 for the first time, international and domestic commentators rushed to acclaim the new arbitration-friendly attitude of the Russian courts, thus placing Russia ‘into line with a select number of jurisdictions’ (e.g. France and the Netherlands). Some…

Overview of the conference held on February 23 – 24 in London A conference on international dispute resolution involving Russian and CIS (Commonwealth of Independent States; association of former Soviet Republics) companies took place in London last week. The conference was well attended, mainly by major law firms in London and Russia, by Cypriot lawyers…

Over the past few months, Russia’s outgoing Prime Minister Vladimir Putin has been busy campaigning for foreign investment into various industries of the Russian economy. In a nutshell, the thinking behind the new plan for improving the investment climate in Russia is that easing access to strategic industries for foreign investors will do the trick….

On 7 October 2011 the Svea Court of Appeal ruled on whether an arbitral award should be declared invalid or annulled because the dispute – as alleged by the plaintiff – was not arbitrable under the Swedish Arbitration Act.1)Case no. T 6798-10. In finding that the dispute was arbitrable, the Svea Court considered several interesting…

While Russia is a signatory to the New York Convention, there is a perception amongst some practitioners and arbitration users that Russia is not an arbitration friendly jurisdiction. This viewpoint is, no doubt, due to a perceived scepticism of the Russian courts and is the driving force behind many foreign investors doing business in Russia…

Last year, around this time, I offered a list of 10 investor-state arbitral awards I hoped to see in 2010. If time permits, I may do another list for 2011. But, first I thought I’d take a look back at last year’s list and offer a brief update on those cases. Rather, than do all…

Paul Hobeck and Christian Stubbe explained that internationally operating companies fear a “surprising interpretation of the term public policy” 1)“eine überraschende(…) Auslegung des Begriffs Ordre Public“, Hobeck / Stubbe, Genese einer Schiedsklausel (The Genesis of an Arbitration Clause), German Arbitration Journal (SchiedsVZ) 2003, p. 15, 19. when it comes to the recognition and enforcement of…

The clearest indication of a shift in the approach of the Russian arbitrazh (commercial) courts* came in April 2010, when the Presidium of Russia’s Supreme Arbitrazh (Commercial) Court issued a precedential decision, holding that interim relief measures may be ordered by Russian arbitrazh courts in aid of foreign arbitration. The ruling has resolved an ongoing…

It is well known that the New York Convention is widely recognized as a foundational instrument of international arbitration. In addition to this Convention, there are also international bilateral agreements in which Paragraph 1 of Article VII of the New York Convention specifically refers to and determines the relationship between its provisions and other agreements….

Last month a number of noteworthy arbitration-related developments took place in Moscow. Firstly, the international conference “Commercial Arbitration in Russia, Sweden and the UK: New Business Opportunities”, was held on 9-10 June at the Congress Center of the Russian Chamber of Commerce and Industry. The conference was jointly organized by the Center of Arbitration and…

Dispute resolution clauses often provide for negotiations, conciliation or a similar procedure before arbitration. Both UNCITRAL Model Law on International Commercial Arbitration and the Russian law contain no provisions on the legal effect of the pre-arbitration procedure of dispute settlement. In particular, they are silent on whether its non-fulfillment precludes the arbitral tribunal’s competence. Accordingly,…

Under the Russian legal system, the last resort a party has with respect to challanging a court decision is to apply to the Constitutional Court of the Russian Federation with a claim to review the decision’s compliance with the Russian Constitution in terms of the provisions of laws and/or regulations applied by lower courts. There…

Unlike arbitration which is quite solidly supported by legislation (the law of the Russian Federation “On International Commercial Arbitration”, which is almost completely based on the UNCITRAL Model Law, was adopted in 1993. The Federal Law “On Arbitration Courts” governing domestic arbitration entered into force in 2002), mediation in Russia lacks adequate legal framework. The…