- •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.
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.
Certainly, oral hearing both in state courts and in volutary arbitration allows a participation of representatives of the parties. The question arises: what representatives should not have a power of attorney? Firstly, Chief Executive Officer (CEO). It is ex officio not required to have a power of attorney. But as for other persons power of attorney should be produced by representatives. This power of attorney should have a specific indication that the person in question may represent the company not only in state courts but also in arbitration.
The question is as follows. Once prof. Musin was an arbitrator. The oral hearing happened. One party was represented by an agent who produced a power of attorney. Other party was represented by two persons. One was company's CEO. Another one produced no power of attorney and noone requested to produce it. But the second person was a manager of legal department of the company. And CEO asked the arbitrator during the proceedings to allow this manager to represent the company. May prof. Musin allow this manager to represent the party without a power of attorney but with expressed consent of CEO given in the proceedings?
By analogy of lex we may in such a situation apply relevant rules both or either of APK and GPK. According to these rules CEO may give an authorization.
Furthermore, the company was represented by a person who had a power of attorney issued by deputy of CEO. Court refused this person to represent the company because deputy of CEO could not sign a power of attorney. But Presidium of State Arbitration Court (SCA) noted that this deputy was acted as a CEO. The Presidium indicated in its ruling that acting CEO enjoys completely the same right that are appointed to CEO. In view of such an approach the deputy is entitled to issue a power of attorney.
It should be indicated that the deputy acts as ceo. Otherwise a power of attorney issued by the deputy would be invalid.
Applicable law.
So. When the oral hearing is completed arbitral tribunal should go to deliberation room in order to decide how the dispute should be resolved on its merits.
What will be the next issue to be resolved? The issue of governing law. Since ICA (inter'l commercial arbitration) deals with foreign trade disputes it means that the applicable law may and shall be foreign at least for one of the parties (or both). Now we should draw our attention to the problem of identification of governing law in voluntary arbitration.
We've already learng Private Inter'l Law. The problem of conflict of laws is familiar to us.
The matter is that a law of country is effective only within its borders. Why? Because par in parem imperium non habet. The state should give a consent to apply a foreign law. The consent should be given in a treaty of in a law. Art.1186 of Civil Code: Law applicable to civil law relations with a participation of foreign persons, or related to other foreign element (civil rights located abroad, for instance) shall be identified on the basis of inter'l treaty of Russian Federation or of federal law.
What is a foreign element? Firstly, when the parties located in different states. Secondly, when a subject-matter of relation is located abroad. Third, when something else is located abroad (didn't hear).
There's a lex voluntatis principle, according to which legal relationship should be governed by law chosen by them. If they did made such a choice this choice will be binding upon the state court. According to art.1192 only if despite of all efforts to establish foreign law the state court failed to identify it the russian law shall be applied. But these situation regulated by art.1192 of Civil Code are very rare.
For instance, if a state court judge sees that, let's say, the parties agreed upon some foreign law as a governing one meanwhile judge don't like the chosen law (don't want to study it) he/she may not refuse to apply it.