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Russian Constitutional Court on Language in Arbitration Proceedings

The arbitral tribunal may consider evidence in any language even if the parties agreed upon a particular language of the arbitration, the Russian Constitutional Court confirmed.

Russian parties trying to enforce arbitral awards sometimes apply to the Russian Constitutional Court to clarify the meaning of the Federal Law “On International Commercial Arbitration”.This law almost completely reproduces the UNCITRAL Model Law on international commercial arbitration. Thus in fact parties try to defend their case by questioning the conformity to Russian Constitution of provisions of this international instrument.

The most recent judgment of the Constitutional Court is the Decree of 19 October 2010. It resulted from ООО “Voskhod”’s application of Article 19 “Determination of rules of procedure” and Article 22 “Language” of the said Law.

The claimant alleged, in particular, that the Article 68 (1) of the Constitution which provides for Russian as state language in the Russian territory had been violated.

According to the claimant, proceedings were held by International Commercial Arbitration Court of Russian Federation in violation of the parties’ agreement. In particular, the parties agreed that arbitration procedure shall be conducted in Russian language, whereas the arbitral tribunal accepted evidence made in a foreign language. The state courts found no ground to set aside the award referring to Articles 19 and 22 of the Federal Law “On International Commercial Arbitration”. The claimant alleged that these provisions contradicted the Russian Constitution.

The Constitutional Court explained that the parties were free to select any language for their arbitral proceedings. The language is designated by the arbitral panel only in the absence of this choice. However, as follows from Article 22 (1) of the Federal Law “On International Commercial Arbitration”, the choice of language operates only with regard to written statements by the parties, hearing and award, decision or other communication by the arbitral tribunal. As per Article 22 (2), the arbitral panel had a right, but no obligation to order the documentary evidence to be accompanied with the translations into the language or languages agreed upon by the parties. Thus, there were no valid grounds to believe that the constitutional rights were anyhow infringed.

Notably, the language agreed upon by the parties or designated by the court does not apply to the method of evidence submission. Generally, the documentary evidence may be presented in any convenient language unless the arbitral tribunal demands the relevant translation into the language agreed upon by the parties or designated by the tribunal. Therefore, the necessity of such translation is defined in every particular case at the discretion of the arbitral tribunal.

Dmitry Davydenko, Natalya Karetnaya

Muranov, Chernyakov & Partners Law Firm

Moscow

About the Author:

Prof Yarik Kryvoi, MCIArb is the founder and co-editor of the CIS Arbitration Forum. He is the Senior Research Fellow in International Economic Law and Director of the Investment Treaty Forum at the British Institute of International and Comparative Law (BIICL). He holds law degrees from Harvard, Moscow and St Petersburg. He has been teaching and practicing international arbitration in Russia, the United States and England for over ten years and is listed as arbitrator by several arbitration institutions. Prof Kryvoi also served as a Co-Chair of the International Courts Committee of the American Bar Association's Section of International Law. He also serves a tutor at the Chartered Institute of Arbitrators in London. See full profile at kryvoi.net.

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