
- •Lecture 1.
- •If we say 'arbitrazhniy sud' in Russia we mean state arbitration. If we say the same in England we mean only voluntary form of dispute resolution.
- •It was a very significant position of supreme state arbitration court.
- •Lecture 2.
- •Jurisdiction of ica.
- •Arbitral agreement.
- •In both these situation there is a direct indication that such rulings may be appealed.
- •Security measures.
- •The procedural formation of arbitral panel.
- •Proceedings.
- •If there's a permanent arbitration, but arbitrators are in different countries. Every arbitrator will sign the award in its own city. Where the award is issued? - that is the question.
- •In arbitration proceedings interpreteurs are also permitted. For their services the requesting party pays.
- •Oral hearing.
- •If on the basis of this deliberate mistranslation there'll be wrong award it should be unenforceable. But that's all. No criminal responsibility on the side of the interpreteur.
- •It should be indicated that the deputy acts as ceo. Otherwise a power of attorney issued by the deputy would be invalid.
- •Applicable law.
- •If the parties failed to agree on governing law then there's article 1211 of Civil Code, which contains conflict of law rules in the case when parties failed to agree on applicable law.
In arbitration proceedings interpreteurs are also permitted. For their services the requesting party pays.
As for the documents state courts and arbitration deal with them differently. In state courts verified translation is required. Verified translation means notary varification. Notary verifies the text of translation if he knows English. If he doesn't know English then he should verify the signature of the translator. That's all.
As for the documents in arbitration it depends. Arbitrators may require translation or may refrain from it.
Oral hearing.
Art.24 of Model Law: subject to any contrary agreement by the parties the tribunal shall decide whether it calls on hearing or whether the dispute should be resolved on the basis of documents. But if the parties request hearings the tribunal shall hear the arguments of the parties in the hearings.
Usually arbitrators do prefer oral hearing because in the course of hearing they may assess the arguments of the parties in details.
If parties agreed that no hearing is required the tribunal may not decide to organise hearings on its own initiative. What if parties initially agreed that no hearing is required and after that one party insists to organise hearings and another one insists not to do so? Art.453 (the agreement may be cancelled by the court if there's substantial violation of the agreement by other party) may be used in such situation as an anology.
What if the parties agreed that no hearing is required but the tribunal does believe that hearings are necessary. Whether the tribunal is able to organize the hearings despite the fact that parties did not want them? No, it's not able. If the dispute cannot be resolved using documents the proceedings are terminated by the tribunal.
Both in state courts and in arbitration there's a possibility to cross-examine witnesses. In state courts any witness' testimony is preconditioned by a warning of criminal responsibility for lie. Is such a warning required in arbitration?
Let's suppose that in the course of oral hearing in tribunal it was discovered that what was told by witness was a lie. Whether in such a situation witness should bear a criminal responsibility?
Of course, the problem whether the witness should be subject to warning about criminal responsibility is preconditioned by other problem: whether in case of such a lie this witness should bear criminal responsibility?
What is a crime? It's something which is prohibited by Crime law and by nothing else. Art.307 of Criminal Code speaks of state courts, not the arbitration. If, for instance, a witness lays far from the place of arbitral proceedings and via a rogatory letter arbitral tribunal requests a state court to examine this witness. Certainly, the state court judge will definitely start with a warning of witness. But in case a witness appears before a tribunal such a warning will not be given since witness will not be subject to criminal responsibility if he/she is examined in the tribunal.
But what if such a false testimony will lead to wrong arbitral award? It should be just unenforceable. That is it.
That's why when arbitral tribunal starts to examine a witness, it certainly will warn a witness that he/she should talk only truth, but not that he/she bears a criminal responsibility for false testimony.
We've also discussed previously that interpreteur should not deliberately mistranslate. Otherwise criminal responsibility is possible. But it is fair for state court proceedings, not arbitral proceedings. Certainly, arbitral tribunal will warn the interpreteur that it expects correct translation.