Report from the AIA June Conference on Arbitration in CIS Countries

Yaraslau Kryvoi, Johan Billiet and Dmitry Davydenko at the AIA conference. Photo: Polina Gryganska.

On 21 June 2012, the Association for International Arbitration (AIA) together with the Brussels Institute for Contemporary China Studies (BICCS) organised a conference on “Arbitration in CIS countries: current issues”. It was held at the Karel Van Miert Building of the Vrije Universiteit Brussel. The media partners of the conference included the CIS Arbitration Forum and the Arbitration Institute of the Stockholm Chamber of Commerce (SCC). The organisers also relied on the media support of the website “arbitrations.ru”.

The conference gathered many well-known leading arbitration practitioners from CIS and non-CIS countries whose professional questions and interesting comments created a very productive discussion. Representatives of the CIS Embassies in Belgium also attended the event. The aim of the conference was to enhance and promote intercultural dialogue and cooperation among lawyers, arbitrators and experts.

The topics chosen for the conference covered diverse facets of arbitration practice in CIS countries. They varied from the general policy of CIS countries towards arbitration to such specific and controversial questions as the matter of corruption and bribery in arbitration or the recognition and enforcement of arbitral awards annulled in the country where they were rendered etc.

The programme of the conference included four sessions. Mr Edouard Bertrand, Of Counsel at Campbell, Philipart, Laigo & Associes, Mr Johan Billiet, President of the AIA and Managing Partner at Billiet & Co, Brussels and Mr Graham Coop, independent international arbitration and energy lawyer based in Brussels, acted as moderators throughout all the sessions. After a warm welcoming speech by Mr Johan Billiet, in which he addressed the main issues and current trends in CIS arbitration, the speakers of the first session took the floor.

Session 1: General policy of CIS countries towards arbitration

The speakers of the first session on the general policy of CIS countries towards arbitration were Mr Vladimir Khvalei, Vice-President of the International Court of Arbitration at the ICC and  Partner at Baker & Mckenzie’s Moscow office; Mr Roman Zykov, independent arbitration lawyer and arbitrator and Mr Andrii Astapov, Managing Partner and Head of the International Arbitration and Litigation practice at Astapov Lawyers’ International Law Group, Kiev, Ukraine.

Mr Vladimir Khvalei provided a comprehensive overview of the arbitration picture of CIS countries (with particular focus on Russia, Belarus, Ukraine and Kazakhstan), drawing comparisons between them and setting out the most significant features of each of them.

Of particular note in Mr Roman Zykov’s presentation was his tracing of the latest changes to the Russian arbitration law pursuant to the UNCITRAL Model Law (as amended in 2006), and the intricacies of implementation thereof. He also provided a detailed overview of recent Russian case law concerning various arbitration issues.

Discussing general policy taken towards arbitration in Ukraine, Mr Andrii Astapov analysed the general picture of arbitration practice by explaining the latest statistics on cases held in Ukraine. What was also of great interest for arbitration practitioners was the issue of arbitrability, which is not clearly defined in Ukrainian law and which Mr Astapov thoroughly examined during his talk.

Session 2: Specific issues in arbitration in CIS countries (part 1)

The speakers of the second session, Dr Dmitry Davydenko, Senior Lawyer at Muranov, Chernyakov & Partners and Dr Yaraslau Kryvoi, Senior Lecturer in Law at the University of West London, discussed the situation concerning the arbitrability of real estate and corporate disputes and the phenomenon of bribery in arbitration in Russia.

Dr Dmitry Davydenko focused mainly on the question of uncertainty in the definition of arbitrability and discrepancies deriving therefrom. Most important, in our opinion, was Dr Davydenko’s analysis of the question of whether the Supreme Commercial Court is generally hostile to arbitration.

More ambiguous questions were raised during Dr Yaraslau Kryvoi’s presentation about the correlation between bribery and Russia-related arbitration. Dr Kryvoi dealt with one of the most troublesome topics in arbitration (and beyond) across all CIS countries.

Session 3: Specific issues in arbitration in CIS countries (part 2)

The third session comprised mainly of discussions of the topic of the recognition and enforcement of international arbitral awards in Russia and Ukraine, but also, in particular, interim measures at this stage. The speakers of this session were Mr Iegor Sierov, Associate at Arbitrade and Ms Dilyara Nigmatullina, Manager of the AIA and Of Counsel at Billiet & Co.

Mr Iegor Sierov provided an expanded comparison of Ukrainian law before and after the 2011 reforms, in relation to interim measures at the recognition and enforcement of international arbitral awards stage.

Ms Dilyara Nigmatullina managed to give an all-encompassing survey of the existent mechanisms of recognition and enforcement of annulled arbitral awards. She focused on the recent Russian case law concerning the above issue, paying special attention to the Ciments Français v Sibirskiy Tsement case.

Session 4: Sector-specific arbitration

The final session comprised discussions of very diverse topics, including investment disputes at the SCC, arbitration in the energy sector and the basics of the WTO Dispute Settlement System (accompanied by examples involving CIS countries). The speakers of this session were Mrs Natalia Petrik, Legal Counsel at the SCC; Mr Timur Aitkulov, Partner at Clifford Chance’s Litigation and Dispute Resolution practice in Moscow, Russia; and Ms Maria J Pereyra, Counsellor at the Legal Affairs Division of the WTO.

Mrs Natalia Petrik gave an overview of the SCC’s investment caseload. She discussed not only general caseload data of the SCC but also certain procedural issues arising out of Bilateral Investment Treaty (BIT) and Energy Charter Treaty (ECT) arbitrations.

In his presentation on arbitration in the energy sector Mr Timur Aitkulov raised the controversial question of whether the Russian Federation is bound by the ECT. This was made with regard to the Yukos v The Russian Federation case, all the most intricate details of which were dealt with in his talk.

Ms Maria J Pereyra gave a detailed outline of the experience of CIS countries (those of which are members of the WTO) when using the WTO dispute settlement system. Additionally, Ms Pereyra revealed how, in general, the system of defence in the WTO Dispute Settlement System works.

Each of the conference attendees received a 295-page book, published by MAKLU, containing articles regarding topics presented and discussed throughout the conference day as well as relevant annexes.

Preparing for an international conference required manpower and input from a large number of people. Many people took time from their busy schedules to contribute towards the success of this conference. The organisers of the conference succeeded in their aim by creating a warm and productive atmosphere among the participants.

 

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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