Commercial Arbitration

Russia

Oxana Peters

Dechert LLP

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?

    The Russian Federation, as the legal successor of the USSR in respect of all international treaties, is a party to the New York Convention with the following reservations:

    • that it will apply the convention only to the recognition and enforcement of awards made in the territory of another contracting state; and
    • that with regard to awards made in the territory of non-contracting states, it will apply the convention only to the extent that these states grant reciprocal treatment.

  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?

    In addition to the New York Convention, the Russian Federation is a party to the European Convention on International Commercial Arbitration, dated 21 April 1961 (the European Convention).

    The Russian Federation is also a party to the Moscow Convention on the Settlement by Arbitration of Civil Law Disputes Arising from Relations of Economic, Scientific and Technical Cooperation of 26 May 1972. This convention was intended for COMECON countries and provides for the recognition and enforcement of arbitral awards without any special procedures. This convention rarely applies, but has been used in some cases, for example, ICAC case No. 8/1997 of 5 March 1998.

  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?

    International commercial arbitration is governed by the Law on International Commercial Arbitration (the ICAL), whereas domestic arbitration is governed by the Private Arbitration Tribunals Act.

    The ICAL is based on the UNCITRAL Law. There are, however, some differences between the ICAL and the UNCITRAL Law:

    • Determining whether an arbitration is international, the ICAL does not incorporate sub-clauses (3)(b) and (3)(c) of Article 1 of the UNCITRAL Law. At the same time, the ICAL states that disputes between Russian entities where at least one entity is a company with foreign investment may be resolved by way of international arbitration.
    • The ICAL prescribes that the functions of appointment and challenge are to be performed by the President of the Russian Federation Chamber of Commerce and Industry, whereas the UNCITRAL Law stipulates they are to be performed by a competent court.
    • Under the ICAL there is no possibility to decide cases ex aequo et bono. Consequently, Russia-based arbitrations cannot be decided on such basis or on the amicable compositeur basis.

  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?

    There are two well-known and authoritative international arbitration institutes in Russia: the International Commercial Arbitration Court at the RF Chamber of Commerce and Industry (the ICAC) and the Maritime Arbitration Commission at the RF Chamber of Commerce and Industry (the MAC).

    With respect to disputes pending before the ICAC and the MAC, the appointment procedure is governed by their own rules under which the appointing authority for ICAC arbitration is the presidium of the ICAC and for MAC arbitration the president of the MAC.

  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?

    Consideration of a case by a foreign arbitral institution, in the territory of the Russian Federation is not prohibited by Russian legislation, provided that the parties are free to agree on the place of arbitration (Article 20 of the ICAL). It should be taken into account that the functions that arbitral providers perform in Russia should be consistent with Russian legislation (the ICAL), though as regards the appointment of arbitrators by foreign arbitral providers, no major issues should arise.

  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?

    There is no specialist arbitration court in Russia. The courts of general jurisdiction and the arbitrazh courts of the Russian Federation (‘arbitrazh’ defines the commercial courts) have jurisdiction over the recognition and enforcement as well as applications for setting aside of domestic and international arbitral awards. Matters connected with international arbitral awards fall within the competence of the arbitrazh courts, which are generally familiar with the law and practice of international arbitration.

    7. Agreement to arbitrate

  7. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?

    The definition of an arbitration agreement in Article 7(1) of ICAL is identical to the definition in Article 7 of the UNCITRAL Law. Therefore, the basic legal requirements as regards the arbitration agreement are the following:

    • inclusion of an explicit statement that disputes should be submitted to arbitration;
    • definition of the legal relationships and disputes that should be submitted to arbitration; and
    • specification of the arbitration institution or ad hoc arbitration that should resolve the disputes.

      • Moreover, pursuant to Article 7(2) of ICAL which reproduces Article 7(2) of the UNCITRAL Law, an arbitration agreement must be in writing.

      It is very important for the arbitration agreement to correctly name the relevant arbitration institution that would administer the disputes. Russian courts often refuse to enforce arbitral awards on the grounds that the arbitration institutions have not been named precisely in the relevant arbitration agreement.

      An arbitration agreement under Russian law may cover future disputes.

  8. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?

    Generally all commercial and other civil law disputes are arbitrable. As a general rule, public law disputes, eg, disputes arising out of public misfeasance, may not be referred to arbitration. According to Article 33(3) of the Federal Law on Insolvency (Bankruptcy), bankruptcy cases, including any monetary claims against a debtor that arise after bankruptcy has commenced, are not arbitrable in Russia. According to Article 138 of the RF Tax Code, tax disputes may not be referred to arbitration.

    Disputes related to subsoil use are generally of a public nature and, therefore, cannot be referred to arbitration. However, since January 2000, parties may agree on the arbitration of property disputes in this sphere.

  9. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?

    Russian law does not provide for the possibility of an arbitral tribunal assuming jurisdiction over third parties, which are not themselves parties to an arbitration agreement.

    In ICAC proceedings, a third party may only join in the arbitral proceedings before the end of the period in which a statement of defence can be submitted and with the consent of the parties in dispute and the consent of the invited person (consent of the latter should be in writing) (ICAC Rules, section 28).

  10. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?

    The ICAL does not have provisions for the consolidation of claims or proceedings, nor are any such provision contained the ICAC Rules, except for section 11(3) of the ICAC Rules, under which ‘where a statement of claim contains demands arising out of several contracts, it shall be accepted for arbitration, provided that there is an arbitration agreement covering all such demands’. Thus consolidation rarely takes place. However, an arbitral tribunal may make a decision on some form of consolidation, for example to consider two cases in one arbitral proceeding and then render separate awards on each case (eg, case No. 177/1996 of 9 February 2000).

  11. 11.Groups of companies
    Is the “group of companies doctrine” (or any other method of piercing the corporate veil) recognised in your jurisdiction?

    There is no ‘group of companies doctrine’, or other method of piercing the corporate veil in the Russian Federation in the context of international arbitration.

  12. 12.Separability
    Are arbitration clauses considered separable from the main contract?

    According to Article 16 of the ICAL, an arbitration clause that forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is void shall not entail by law the invalidity of the arbitration clause.

  13. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?

    The principle of competence-competence is recognised in legislation. Under Article 16 of the ICAL, an arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. Only an arbitral tribunal may rule that it does not have jurisdiction either as a preliminary question in a partial award or in the final award.

    If a particular arbitral tribunal decides that it has jurisdiction, issues its ruling to this effect separately as a preliminary matter, then a party may challenge such ruling in a

    Russian court within thirty days after having received notice of such ruling. (Article 16(3) of ICAL).

  14. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?

    When drafting an arbitration clause, it is advisable to specify the arbitration institution and its rules; or refer to an ad hoc arbitration, stating the applicable law, the number of arbitrators, the language of the proceedings, the place of arbitration, the pre-arbitral procedure, etc.

    Unless otherwise agreed, the parties are not automatically bound by confidentiality regarding the arbitration proceedings. If confidential proceedings are important for the parties this should be addressed in the arbitration agreement.

  15. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?

    Institutional international arbitration is more common in Russia than ad hoc international arbitration and entrepreneurs tend to refer matters to the two known and authoritative institutions: the ICAC and the MAC. The UNCITRAL Rules are commonly used in ad hoc international arbitrations in the Russian Federation, which has resulted in the adoption of the Rules of Assistance by the ICAC for arbitration on the basis of the UNCITRAL Rules. The Rules of Assistance were approved by the president of the RF Chamber of Commerce and Industry on 9 December 1999, came into force on 1 January 2000, and are aimed at creating a legal basis for the ICAC’s assistance to ad hoc arbitral tribunals on the basis of the UNCITRAL Rules.

  16. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.

    Multi-party arbitrations are allowed in Russia, although there are no special rules in this regard. In multi-party arbitrations, the parties shall agree on appointing the arbitrators, but if they fail to do so, then the Presidium of the ICAC shall make the appointment (ICAC Rules, section 17(8)).

    17. Commencing the arbitration

  17. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?

    Under Article 21 of the ICAL, unless otherwise agreed by the parties, arbitral proceedings in respect of a particular dispute shall commence on the date on which the request for that dispute to be referred to arbitration is received by the respondent. The ICAC Rules provide that arbitral proceedings shall be started by means of filing a statement of claim with the ICAC (ICAC Rules, section 8).

    Under Russian law, the rules prescribing limitation periods are considered to be substantive. If Russian law is applicable, as a general rule, under the RF Civil Code the limitation period is three years and starts from the day on which a person becomes aware of, or ought to have become aware of, the violation of his right.

    18. Choice of Law

  18. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?

    As a general rule, under Article 28(1) of the ICAL, parties are free to choose the law applicable to their relations. However, if the parties fail to determine the applicable law, an arbitral tribunal under Article 28(2) of the ICAL shall apply the law determined through the conflict of law rules that it considers applicable and which as a matter of practice are usually Russian conflict of law rules.

    Under Russian conflict of law rules the parties' choice of applicable law may be overruled in certain instances, for example by the mandatory rules of the Russian Federation or another country.

    19. Appointing the tribunal

  19. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?

    The ICAL does not place any limitations in respect of a party’s choice of arbitrator. In the ICAC, an arbitrator may be chosen either from a list of arbitrators approved by the ICAC or not.

  20. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?

    There are no legislative restrictions on foreign arbitrators acting within the territory of the Russian Federation. According to Article 11 of the ICAL, no person shall be precluded by reason of his nationality from acting as an arbitrator, unless otherwise agreed by the parties. Moreover, the ICAC’s list of arbitrators includes foreign arbitrators.

    As regards immigration requirements, foreign arbitrators acting in Russia shall need to obtain a business visa.

  21. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?

    If the parties’ chosen method for selecting arbitrators fails, or if the parties do not appoint their arbitrator, or do not succeed in selecting a sole arbitrator or the chairman of the arbitral tribunal, the president of the RF Chamber of Commerce and Industry shall appoint the arbitrators (Article 11(1) of the ICAL).

    In the ICAC and the MAC the functions of the appointing authority are performed by the presidium of the ICAC and the president of the MAC accordingly.

    Russian courts do not have the authority to intervene in either the selection of arbitrators or their appointment.

  22. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?

    There are no such rules under the ICAL. However, section 47 of the ICAC Rules provides that arbitrators shall not be liable before a party or another person for any act or omission in connection with the arbitration, unless such act or omission is proved to be wilful.

    To the best of our knowledge, so far, there have not been any lawsuits brought against arbitrators in Russia.

  23. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?

    There are no rules under Russian law providing for securing the payment of arbitrators fees. However, under section 14(2) of the ICAC Rules, the claimant shall make an advance payment of the arbitration fee for each claim filed and the case shall not progress until advance payment of the arbitration fee has been made. The ICAC may provide fundholding services under the Rules of Assistance by the ICAC to arbitration on the basis of the UNCITRAL Rules.

    24. Challenges to arbitrators

  24. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?

    The ICAL and the ICAC Rules impose similar general requirements for independence and impartiality on arbitrators. According to Article 12(2) of the ICAL and section 18(1) of the ICAC Rules, an arbitrator may be challenged if circumstances exist that cause justifiable doubts as to independence and impartiality of the arbitrator, or if the arbitrator does not possess the qualifications required by the agreement of the parties. Such circumstances must also be disclosed by the potential arbitrator prior to appointment.

    The Rules for Impartiality and Independence of Arbitrators adopted by the RF Chamber of Commerce and Industry on 27 August 2010 in Order No. 39 are intended to specify the general requirements. They take into account the IBA Guidelines on Conflicts of Interest in International Arbitration and are recommended for use in Russia, and at the same time are to be used by the president of the Chamber of Commerce and Industry while performing functions under the ICAL.

    The IBA Guidelines on Conflicts of Interest in International Arbitration are generally taken into account.

    25. Interim relief

  25. 25.Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

    Under Article 17 of the ICAL, arbitral tribunals are permitted to award preliminary relief in respect of the subject matter of a dispute in such form as they deem necessary. According to section 36 of the ICAC Rules, an arbitral tribunal can grant interim relief in the form of interim awards. An arbitral tribunal does not have to seek the assistance of a court to do so.

    Arbitrazh courts, upon the request of a party, may grant injunctive relief in support of a pending arbitration in situations where the court believes that a failure to do so could render the enforcement of the award impossible, or would substantially complicate enforcement or cause the applicant to incur substantial damage. A party may also request injunctive relief in support of an arbitration that has yet to commence (Informational Letter No. 78 of the Supreme Arbitrazh Court of 7 July 2004).

    However, a party must prove that the facts requiring injunctive relief exist, which makes it very difficult to obtain injunctions. At the same time, in recent years, there were cases where Russian state courts granted injunctive relief in support of pending arbitration proceedings (eg, Decree No. KG-A40/17466-10 of the Federal Arbitrazh Court of the Moscow District of 19 January 2011).

    Russian law does not provide for any anti-suit injunctions.

  26. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?

    The requirement for a close connection of the subject matter of the dispute with the claim makes it difficult to receive security for costs in arbitrations.

    National courts tend to dismiss applications for security for costs (for example, Decree No. F08-4725/2004 of the North-Caucasian District Federal Arbitrazh Court of 20 October 2004).

    27. Procedure

  27. 27.Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (e.g. general duties of the tribunal and/or the parties)?

    In international commercial arbitrations, the parties are free to agree on the procedure to be followed in their arbitral proceedings. In the absence of such an agreement, the arbitral tribunal may, subject to the provisions of the ICAL, conduct the proceedings in a manner it deems appropriate (Article 19 of the ICAL). There are also standard rules developed by Russian arbitration institutions, such as the ICAC.

    The mandatory rules of law, requiring certain procedural steps to be taken if arbitration proceedings are conducted in Russia, are not numerous. Generally, the mandatory rules are quite similar to the UNCITRAL Law, and specifically, include rules on equal treatment, form and content of an arbitral award, etc.

    The duties of the arbitral tribunal and arbitrators set forth in the ICAL provide that arbitrators must be impartial, independent and must disclose any circumstances likely to give rise to reasonable doubts as to their impartiality and independence; arbitrators must treat the parties with equality and give each party the full opportunity to present its case; and disputes must be decided in accordance with the rules of law chosen by the parties, as applicable to the subject matter of the dispute. Russian law does not stipulate general duties of the parties.

  28. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?

    If any party, without demonstrating reasonable excuse, fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and render an award on the evidence before it, unless otherwise agreed by the parties (Article 25 of the ICAL).

    Section 32(4) of the ICAC Rules prescribe that a failure by a party, properly notified of the time and place of a hearing, to appear at the hearing, shall not interfere with the proceedings and the making of an award, unless the defaulting party has requested in advance in writing that the hearing be adjourned for a good reason (eg, case of ICAC No. 107/2010 dated 13 April 2011).

  29. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?

    General rules on evidentiary matters are included in the ICAL and the relevant arbitration rules. Under Article 19(2) of the ICAL, an arbitral tribunal is empowered to determine the admissibility, relevance, materiality and weight of any evidence, unless otherwise agreed by the parties. As a general rule, each party must prove the circumstances to which it refers in its claims or defence.

    There are no special provisions on witness testimony. Witness testimony is relatively uncommon in Russian arbitrations as opposed to written evidence. Witnesses are heard without being sworn in before the tribunal.

    IBA Rules on the Taking of Evidence can be taken into account through a reference of the parties to them in the arbitral clause.

  30. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?

    According to Article 27 of the ICAL, an arbitral tribunal or a party to arbitral proceedings, with the approval of the arbitral tribunal, may request the competent national court to collect certain evidence that is relevant to the case, and the court may fulfil such requests within its competence and according to its rules on taking evidence.

  31. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?

    There are no specific rules of disclosure in Russian law. Russian procedural law does not use the concept of disclosure as it is used in common law. Parties are free to agree the scope and method of document production and may submit to the tribunal any documents that they consider relevant (Article 23(1) of the ICAL). The only obligatory requirement the ICAL prescribes is that all statements, documents and other information submitted to the arbitral tribunal by one party are to be communicated to the other party; and any expert report or evidentiary document on which the arbitral tribunal relies in making its decision is to be communicated to the parties (Article 24(3) of the ICAL). The arbitral tribunal may order a party to disclose certain documents, but its powers generally do not extend to third parties.

  32. 32.Hearings
    Is it mandatory to have a final hearing on the merits?

    The general provision under Russian law is that subject to any agreement by the parties to the contrary, an arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials. However, unless the parties have agreed that no hearings shall be held, an arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party (Article 24(1) of the ICAL).

    Under section 34 of the ICAC Rules, the parties may agree on the arbitration of their dispute to be conducted on the basis of written materials only, without holding an oral hearing. The arbitral tribunal may settle the dispute on the basis of written documents in the absence of an agreement between the parties to this effect if neither of the parties requests an oral hearing to be held.

  33. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

    Yes, if the Russian Federation is selected as the seat of arbitration, hearings and procedural meetings may be conducted at a different place. Under Article 20(1) of the ICAL, the parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties. The arbitral tribunal may, unless otherwise agreed by the parties, meet at any place considered appropriate for consultation among its members, for hearing witnesses and experts of the parties, or for the inspection of goods, other property or documents.

    34. Award

  34. 34.Majority decisions
    Can the tribunal decide by majority?

    According to Article 29 of the ICAL, in arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made, unless otherwise agreed by the parties, by a majority of all its members. However, questions of procedure may be decided upon by a presiding arbitrator, if so authorised by the parties or all the members of the arbitral tribunal. Section 38(2) of the ICAC Rules further specifies that if an award cannot be made by a majority vote, it shall be made by the presiding arbitrator.

  35. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?

    Whereas there is no explicit limit on the types of remedies that an arbitral tribunal may grant, remedies must meet the requirements of arbitrability, ie, only civil law remedies can be sought. For example, a party cannot seek that a normative act be held invalid, because such disputes are of a public law nature and as such cannot be subject to arbitration.

  36. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?

    The ICAL does not provide that an arbitrator may express a dissenting opinion. However, Section 38 of the ICAC Rules provides that any arbitrator disagreeing with an award made may express, in writing, his dissenting opinion, which shall be attached to the award. Dissenting opinions are not common practice in the Russian Federation.

  37. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?

    The requirements for a valid and enforceable award are set forth in Article 31 of the ICAL:

    · the award is to be made in writing and signed by the arbitrator or arbitrators;

    · the award is to state the grounds upon which it is based, the relief awarded and the arbitration fees to be paid by the parties; and

    · the award is to state the date of the award and the place of arbitration.

  38. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?

    The ICAL does not provide for any time limits to render an award. Under the ICAC Rules, the ICAC shall take measures to secure completion of arbitral proceedings within 180 days of the date of the composition of the arbitral tribunal. This period may be extended by the ICAC presidium at the request of the arbitral tribunal or under its discretion. (ICAC Rules, section 24).

    Time limits for the interpretation and correction of an award are governed by Article 33 of the ICAL that reproduces Article 33 of the UNCITRAL Law.

    39. Costs and interest

  39. 39.Costs
    Are parties able to recover fees paid and costs incurred? Does the “loser pays” rule generally apply in your jurisdiction?

    The general rule under Russian law is that the losing party shall bear all the costs of the winning party (including but not limited to the fees and expenses of the arbitration institution, the arbitrator's fees and expenses, and the reasonable legal costs and expenses of the winning party). In practice, arbitration tribunals tend to reduce the amount of awarded legal costs.

  40. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?

    There are no such rules under Russian law.

    41. Challenging awards

  41. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?

    Under Russian law, arbitral awards cannot be appealed. However, a party can file an application with the competent Russian court where the arbitral tribunal that delivered the award is located, within three months from the date the award is received, seeking that an award be set aside.

    The grounds under which an arbitral award may be set aside are set forth in the ICAL and the Arbitrazh Procedure Code and are similar to those set forth in the New York Convention.

  42. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?

    No, there are no other grounds on which an award may be challenged.

  43. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?

    No, the parties cannot agree to exclude any right of appeal of an international arbitral award.

    44. Enforcement in your jurisdiction

  44. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?

    Under the New York Convention and Russian law, the enforcement of an arbitral award may be refused at the request of a party, if the party furnishes to the competent court proof that the award has been set aside or suspended by a court of the country in which, or under the law of which, that award was made.

    However, under the European Convention, the enforcement of an arbitral award may be refused if the award was set aside in a contracting state only due to the reasons set forth in the Article IX of the European Convention.

  45. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?

    One of the most important trends is more detailed regulation of precisely what disputes are arbitrable. Recent Decree No. 10-P of the Constitutional Court of the RF of 26 May 2011 is seen as expanding the scope of arbitrable disputes to civil law matters relating to rights to immovable property situated and/or registered in Russia.

    Another important trend, exemplified by a recent remarkable case, which is now pending before the Presidium of the Supreme Arbitrazh Court (Ruling of the Supreme Arbitrazh Court No. 9899/09 of 11 September 2009), is a narrower application of the public policy concept as a ground for refusing the recognition and enforcement of arbitral awards and restricting Russian courts from reconsidering the tribunal’s findings on the issue of the validity of a contract. The Presidium of the Supreme Arbitrazh Court also suspended proceedings until the Swedish Svea Court of Appeal considers an application for setting the award aside.

    Further trend are cases where Russian courts granted interim relief in support of arbitration (eg, Decree No. KG-A40/17466-10 of the Federal Arbitrazh Court of the Moscow District of 19 January 2011).

    A law on mediation was adopted in 2010 and entered into force on 1 January 2011. The law is considered to be a further step in the development of ADR in Russia.

  46. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

    Under Russian law, the execution of foreign judgments and arbitral awards against a state is allowed only with the consent of the competent authorities of that state.

    There has been a precedent set in a ruling by the presidium of the Supreme Arbitrazh Court in which it was stated that: ‘An arbitration agreement, concluded by parties that do not have the authority to waive jurisdictional immunity and which has been signed in breach of established procedures, cannot be considered as a legal ground for a state to waive jurisdictional immunity’ (Decree No. 10074/05 of the presidium of the Supreme Arbitrazh Court of 12 December 2005).

    47. Further considerations

  47. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?

    Under the ICAL there are no confidentiality requirements.

    The ICAC has special rules regarding confidentiality. Under Section 25 of the ICAC Rules, all arbitrators, reporters and other officers of the ICAC are obliged not to disclose confidential information about cases pending before the ICAC that could damage the parties. Under Section 32 of the ICAC Rules, hearings are not public unless otherwise agreed by the parties. The arbitral awards are published in edited and abbreviated form, where the names of the parties and the details of the dispute are hidden, without the permission of the parties.

  48. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?

    Information disclosed in arbitral proceedings may be relied on by the parties in other proceedings unless the parties have agreed on confidentiality.

  49. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

    Only general requirements of independence and impartiality, without specifying the details of this standard, apply to arbitrators. Please see also the answer to Question 24 above.

    There are professional standards prescribed by the Federal Law On Attorney’s Activities and Advocacy in the Russian Federation and the Professional Code of Ethics of Advocates that apply to advocates, however for those who are not advocates and represent a client in international commercial arbitrations, the abovementioned law and professional code do not apply.

  50. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?

    There are no particular procedural expectations or assumptions of which counsel or arbitrators should be aware.

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