Advocacy and notary office. Representation in arbitration court and international commercial arbitration (most important)

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Advocacy and notary office. Representation in arbitration court and international commercial arbitration (most important)

Lecture notes, cheat sheets

Directory / Lecture notes, cheat sheets

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27. Representation in arbitration and international commercial arbitration

Modern Russian legislation on the arbitration court was formed under the influence of the UNCITRAL Model Law "On International Commercial Arbitration" (adopted on June 21, 1985 at the 18th annual session of the UN Commission on International Trade Law (UNCITRAL)) based on the convergence of the regulation of the organization and activities of all arbitration courts on the basis of principles and norms originally intended for international commercial arbitration.

Legitimacy of arbitration is based on the constitutionally enshrined "right of freedom of action of citizens and their private autonomy." The right of everyone to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law is proclaimed in Part 1 of Art. 34 of the Constitution of the Russian Federation. According to Part 2 of Art. 45 of the Constitution of the Russian Federation: "Everyone has the right to protect their rights and freedoms by all means not prohibited by law."

The UNCITRAL Model Law "On International Commercial Arbitration" and the following Law of the Russian Federation of July 7, 1993 No. 5338-I "On International Commercial Arbitration" are subject to arbitration proceedings (process, procedure) carried out in any arbitration court, including arbitration proceedings organized by a permanent arbitration court.

The developers of the UNCITRAL Model Law "On International Commercial Arbitration", which formed the basis of the Russian law of the same name, gave the term "arbitration" a meaning that included:

1) arbitration agreement;

2) preparation and conduct of arbitral proceedings and arbitral awards.

In the Federal Law of July 24, 2002 No. 102-FZ "On Arbitration Courts in the Russian Federation" The term "arbitral tribunal" is used in two main meanings:

1) as a general name for the institution of an arbitration court, which has two types - a permanent arbitration court and an arbitration court for resolving a specific dispute (an arbitration court for resolving a specific dispute);

2) in relation to the composition of the arbitral tribunal, elected (appointed) to resolve a specific dispute in an arbitral tribunal of any of its two types.

Thus, the rules of arbitration proceedings are to be determined using not only the provisions of Ch. V "Arbitration", and all legal provisions on the arbitration procedure. At the same time, it should be borne in mind that the rules of arbitration in a permanent arbitration court and in an arbitration court for resolving a specific dispute are regulated in the same way, but often this is done in the provisions of the Federal Law "On Arbitration Courts in the Russian Federation" addressed to each of them. At the same time, terminological unity is not maintained, and the meaning of the term "arbitral tribunal" should be determined each time depending on the context.

Authors: Nevskaya M.A., Shalagina M.A.

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