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Disputes settlement in the CIS: any signs of proarbitration approach?
Markian Malskyy
Partner, Attorney-at-law
Moscow, 2012
Content
1. Importance of the issue of arbitrability
2. Subjective and objective arbitrability
3. Status quo
4. Conclusions and recommendations
2
Importance of the issue of arbitrability
•
Arbitrability is the foundation of a pro-arbitration attitude
•
Arbitration is often regarded as much better than litigation for resolution of international
commercial disputes
•
Pro-arbitration approach of the arbitral tribunals, but more strict and formalistic approach of
the judges at the setting aside and enforcement stages
•
Clear prescription by law of certain category of disputes as non-arbitrable justly estop the
parties to a dispute from the right to choose dispute resolution method
•
Uncertainty in arbitrability of some disputes is the hardest situation, it give rise to the risks of
(i) arbitral tribunal’s conclusion of its non-competence to decide the dispute, (ii) setting aside
or (iii) denial in enforcement of the award by competent court
3
Importance of the issue of arbitrability
Arbitrability in CIS – it is all about uncertainty!
How can we speak about hostile to arbitration approach, when the door for arbitration is only shut
softly, but not closed completely?!
Almost any commercial dispute in the CIS may be settled by arbitration!
Why it is not pro-arbitration jurisdiction?
4
Subjective and objective arbitrability
“subjective arbitrability” – whether certain individuals or entities are considered unable
to submit their disputes to arbitration because of their status or function;
“objective arbitrability” – whether the subject-matter of the dispute submitted to
arbitration is not one which can be resolved by arbitration
(Emmanuel Gaillard and John Savage (eds), Fouchard Gaillard Goldman on
International Commercial Arbitration, (Kluwer Law International 1999) pp. 312-313)
5
Status quo – subjective arbitrability
The following cases may be referred to international commercial arbitration:
•
disputes resulting from contractual and other civil legal relations arising in course
of foreign trade and other forms of international economic relations, provided that
the place of business of at least one of the parties is situated abroad;
•
disputes arising between enterprises with foreign investment and international
associations and organizations established in the territory of Ukraine/Russia, among
themselves, disputes between their members, as well as their disputes with other
legal entities in Ukraine/Russia.
Disputes involving state and state-owned entities may be settled by international
commercial arbitration and rendered awards are enforceable.
6
Status quo – objective arbitrability
•
The category of non-arbitrable disputes is not clearly defied by the law
•
Real estate disputes
Ukraine: pros – right understanding of Article 77 of the Private International Law Act;
cons – wrong understanding of this provision
Russia: pros – Constitutional Court Ruling dated 26.05.2011; cons – negative court
practice prior that decision
•
Corporate disputes
Ukraine: pros – unclear wording of para. 2 of Article 12 of the Commercial Procedural
Code of Ukraine; cons – court practice
Russia: pros – possibility of pro-arbitration interpretation still exists; cons – Maksimov
case
7
Conclusions and recommendations
•
So far as the list of disputes, which cannot be settled by international commercial
arbitration, is not clearly defied, there are signs of pro-arbitration approach in the
CIS
•
The door for arbitration is not closed and may open at any time for any concrete
case
•
Reasons of such uncertainty as to arbitrability:
-
low awareness of the judges with key principles of international commercial
arbitration;
bad reputation of domestic arbitration;
judges desire to monopolize the right to consider the most interesting cases
(corporate, real estate etc.)
•
Arbitration remains the best choice in such uncertainty, however, the final choice of
appropriate dispute resolution scheme shall be made on case by case basis
8
Markian Malskyy, Partner, Head of West Ukrainian Branch
Specialization: Real Estate & Construction, Dispute Resolution,
Corporate Law / M&A, Commercial Law, International Arbitration.
Experience: Markian Malskyy, attorney-at-law, LL.M., specializes in
representing clients’ interests before judicial authorities of Ukraine and
dispute settlement under the procedures of commercial and investment
arbitration. He has extensive experience in corporate dispute settlement
in the energy sector, contractual disputes, trade and real estate disputes.
He represented one of the major oil producing company of the Russian
Federation in a dispute on collection of more than 200 million USD of
losses caused by improper execution of the shareholders agreement. He
handled cases under the Arbitration Rules of ICSID, ICC, SCC,
UNCITRAL, LCIA and ICAC. Prior to joining Arzinger attorney-atlaw Malskyy worked as a lawyer in the international arbitration team in
the firm Freshfields Bruckhaus Deringer in Paris. Markian Malskyy is
the author of two books on commercial dispute settlement, published
more than 50 legal articles. He is a recommended arbitrator of two
arbitration courts of Ukraine, a member of the Board and the Head of
the Law Committee of the West Ukrainian Branch of EBA.
In June 2009 Markian Malskyy was elected for a two-year term as a
Representative of one the International Bar Associations’ committees in
Ukraine. Member of the Lviv Oblast Bar Association, Ukrainian Bar
Association, International Bar Association
Languages: Ukrainian, Russian, English, German, French and Polish
Contacts:
Phone: +38 032 242 96 96
E-mail: Markian.Malskyy@arzinger.ua
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About Arzinger
Advantages of Arzinger
Experience
We have international legal experience on the markets of Central and Eastern Europe since 1990
and leading legal experts in the sphere of foreign investments attraction. The majority of our
clients are large and mid-sized companies and corporations both local and international.
A Personal-Touch Approach
The Partner in charge is always available; working closely with the client to analyze issues at
stake, to find potential solutions, and to identify the most successful strategy. This Partner will
personally handle your case, and will build an optimum team of lawyers to best satisfy the
requirements of each project.
Our People
Arzinger has built its reputation on the quality and character of its lawyers, many of whom are
recognized leaders in the Ukrainian legal community. We have a team of 90 Highly Educated and
Experienced Employees.
Scope of Activities
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Corporate Law / M&A
Real Estate & Construction
Antitrust and Competition
Intellectual Property
Dispute Resolution
Public Procurement
Tax / International Tax
Banking & Finance
Public Private Partnership
Employment
Capital markets / Private Equity /
Investment
Regulatory
Maritime Law
White Collar Defense
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Energy
Food and Beverages
Retail and Leisure
Telecommunications
Aviation
Agriculture
Infrastructure & Transport
Insurance
Automotive
Environment
Banks and Financial Institutions
Investment Banking and Corporate Finance
Private Equity
Pharmaceutics
Our Contacts
Head Office of Arzinger
Eurasia Business Center, 75 Zhylyanska St.
Kyiv, 01032, Ukraine
РўРµl.: +38 (044) 390-55-33
Fax: +38 (044) 390-55-40
West Ukrainian Branch of Arzinger
6/1 Generala Chuprynki St.
Lviv, 79013, Ukraine
Tel.: +38 (032) 242-96-96
Fax: +38 (032) 242-96-95
South Ukrainian Branch of Arzinger
Pokrovsky Business Center, 33 Zhukovskogo St.
Рћdessa, 65045, Ukraine
РўРµl. / Fax: +38 (048) 711-74-74
mail@arzinger.ua
www.arzinger.ua
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We are looking forward to our future
cooperation!
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