In both these situation there is a direct indication that such rulings may be appealed.

Art.235 of APK reads: in cases as provided by int. treaty of Russian Federation and federal law any party of arbitral proceedings may apply a state arbitration court in order to reject the ruling of voluntary arbitration of the preliminary character. Actually, part 1 of art.235 APK just repeats what is said in Section 3 of Art.16 of the Law on ICA, which is a federal law.

Part 4 of art.235 of APK - state arbitration court shall issue a ruling on rejection of the ruling of the tribunal on existance of its jurisdiction or on refusal to satisfy such a motion. So the state arbitration court when dealing with this motion may resolve either way - to satisfy or to reject. But unlike to article 234 and 240 there is no provision regarding the possibility to challenge such a ruling of state court. So how we should interpret art.235 of APK - does it provide a possibility to challenge the ruling of state court on existance or absence of jurisdiction of the tribunal?

Ruling confirming the absence of jurisdiction of arbitration precludes further proceedings in ARBITRATION, not in state courts. The parties are not deprived of opportunity to commence proceedings in state arbitration court. In light of art.188 of APK such ruling is not subject to further appeal.

Therefore, art.16 of Law prohibiting the challenging of such ruling of state court on jurisdiction of arbitration and Procedural Codes are not contradictory, since Procedural Codes also prohibits it.

A plaintiff for some reason may file a statement of claim to state arbitration court despite the fact that the arbitration clause exist. What the judge should do in such situation? To leave the statement without consideration (148(1)(5) of APK).

Such act of plaintiff is unilateral refusal of the contract, which is generally prohibited. If the respondent does not object submission of such statement of claim to state court then the court should not leave it w/out consideration. If the respondent objects then the claim should be left w/out consideration.

Art.8 of the Model Law - the regulation regarding the problem in question.

For whom an arbitration clause is bound? There is not doubt that it's bound for the parties of the respective agreement. Let's suppose such a situation which is quite possible.

The arbitral tribunal after commencement of the proceedings comes to a conclusion that in reality a plaintiff advanced his claim against improper respondent. And the proper respondent is somebody else. If there's a problem of substitution of improper respondent how it should be solved?

Let's look at our GPK and APK with this respect. In state court there should be the plaintiff's consent to substitute improper respondent. The consent of the respondent is not required.

In arbitration proceedings and award are only binding for those who participate in the arbitration agreement. So if it becomes clear to the arbitrators that there's a need to substitute the respondent whether an arbitral tribunal is entitled to do it on its own decision? No. The parties should give a consent to substitution. Moreover, since award is only binding upon the parties of the arbitration agreement such a substitution is only permissible when both the litigants and the new respondent give their consent.

Furthermore, the problem regarding third persons with an independent claim. In state courts any third person may submit such a claim w/out consent of the litigants (art.50 of APK).

Is such situation possible in voluntary arbitration? The litigants should give their consent and the third person as well. Arbitrators are not allowed to involve third parties to the dispute w/out consent of the litigants. But clever arbitrators will strongly recommend the parties to give such a consent, because otherwise the award might not be enforced since it violates the rights of third persons.

Both arbitration clause and arbitral award are only binding upon its parties. A state attorney was not a party to arbitration agreement. That's why he's not bound by award or arbitration agreement. He may challenge such award in state court, for instance, if the contract contradicts the public policy.

Пропустил лекцию 26.02.2014.