Author Archive: Sergey Usoskin

Sergey Usoskin is an advocate (member of
the Russian bar) and a senior associate at Ivanyan&Partners. He has experience advising clients on and representing them in commercial and investment arbitration matters as well as before the Russian court (including the Supreme Commercial Court). He is a graduate of St Petersburg State University, Faculty of Law and University College London Faculty of
Laws.

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Russia’s Supreme Commercial Court Voids An Optional Arbitration Clause
By 3 September, 2012 2 Comments Read More →

Russia’s Supreme Commercial Court Voids An Optional Arbitration Clause

Russia’s highest commercial court has ruled that an optional arbitration clause creates an unfair advantage for one of the parties and hence is contrary to the equality of arms principle. Pursuant to the clause in question both parties were required to submit any disputes among them to arbitration under the ICC rules. However, the seller […]

Will Exercise of Jurisdiction by a Foreign Court Be Accepted in Russia?

Will Exercise of Jurisdiction by a Foreign Court Be Accepted in Russia?

The Presidium of the Russian Supreme Commercial Court is set to hear the first case in a while directly dealing with the enforcement of a foreign court judgment. The central issue is the following: can a Russian court assess the reasonableness of a foreign court’s decision to exercise jurisdiction in ruling on whether to recognise […]

Gazprom v Lithuania: SCC Tribunal Rules on Arbitration Clause and Parallel Litigation

Gazprom v Lithuania: SCC Tribunal Rules on Arbitration Clause and Parallel Litigation

Lithuanian leading natural gas company Lietuvos Dujos is in the centre of a number of litigations and arbitrations between Gazprom and Lithuania, which are both shareholders in the company. Gazprom is challenging Lithuania’s recent regulations requiring Lietuvos Dujos to divest its gas transit assets as a breach of the bilateral investment treaty between the Russian Federation and […]

Tacit Agreement to Arbitrate to be Examined by the Supreme Commercial Court

Tacit Agreement to Arbitrate to be Examined by the Supreme Commercial Court

The Presidium of the Supreme Commercial Court will clarify which of a respondent’s actions may evidence implicit acceptance of an arbitral tribunal’s jurisdiction. The case which will be heard by the court in October focuses on the respondent’s constantly changing position as to the jurisdiction of the arbitral tribunal. Though the respondent eventually contested jurisdiction, […]

Green Light for Enforcement of a High Court Judgment in Russia

Green Light for Enforcement of a High Court Judgment in Russia

As we reported earlier two levels of Russian courts have recognised and enforced a High Court judgment on the basis of reciprocity. Now in a ruling released on Friday a three-judge panel of the Supreme Commercial Court refused the respondent’s petition to have these decisions reconsidered. The panel’s ruling restates the lower court’s position that the […]

Newly Released Arbitration Award Says Yukos Was Expropriated

Newly Released Arbitration Award Says Yukos Was Expropriated

An arbitral tribunal in Stockholm concluded in an award released yesterday that tax assessment measures taken against Yukos were arbitrary and discriminatory. The proceedings were instituted by a group of Spanish investors in 2007. The award also confirmed that the claimant’s expenses in the arbitration were entirely funded by the Menatep Group (Yukos’ majority shareholder) which […]

ICSID Tribunal: Kyrgyzstan Judiciary’s Decisions Amounted to Expropriation

ICSID Tribunal: Kyrgyzstan Judiciary’s Decisions Amounted to Expropriation

The importance of an ICSID award rendered in a case which involved Kyrgyzstan goes beyond the facts of the case and covered topics such as the corruption of state officials, expropriation through judicial action and calculation of the value of expropriated property in the absence of comparable transactions in Central Asia. In 2005 the Kyrgyz […]

Disputes Arising Out of Investment Agreements with Russian Authorities Not Arbitrable?

Disputes Arising Out of Investment Agreements with Russian Authorities Not Arbitrable?

The Russian Supreme Commercial Court has held that disputes arising out of investment agreements with Russian authorities are not arbitrable at least for the purposes of domestic arbitration. The court upheld the decisions of the lower courts refusing the enforcement of a domestic arbitral award in a dispute between a private investor and a Russian […]

Russian Supreme Commercial Court: Not All Domestic Disputes Can Be Resolved in International Arbitration

Russian Supreme Commercial Court: Not All Domestic Disputes Can Be Resolved in International Arbitration

Can an essentially domestic dispute be referred to an international arbitral tribunal sitting outside of the Russian Federation? Can an “international” dispute be resolved by a domestic arbitral tribunal? These questions may be troubling for a practitioner drafting an arbitration clause in a contract. This is especially true because figuring out whether the dispute is […]

Recognition of Foreign Judgments in Russia: How to Reconcile Conflicting Judgments

Recognition of Foreign Judgments in Russia: How to Reconcile Conflicting Judgments

The CIS Arbitration Forum recently reported on a decision of the Moscow Circuit Commercial Court to enforce a judgment of the English High Court on the basis of reciprocity. We noted then that there was a growing trend of recognition of foreign court judgments on the basis of reciprocity (i.e. in the absence of a bilateral treaty). […]

ICSID Tribunal Refuses Jurisdiction in a Dispute Against Kazakhstan

ICSID Tribunal Refuses Jurisdiction in a Dispute Against Kazakhstan

According to the Kazakh Ministry of Justice, a foreign company which initiated a dispute against Kazakhstan has failed to establish that it was controlled by a national of a state party to the ICSID Convention. The ICSID tribunal in Caratube International Oil Company v Kazakhstan decided that the claim was brought by a Kazakh company which failed […]

Heavy Blow to the Turkish Investors’ Claims Against Turkmenistan

Heavy Blow to the Turkish Investors’ Claims Against Turkmenistan

In a decision released by the ICSID on May 25, 2012 the Tribunal found that the Turkey-Turkmenistan BIT required submission of the dispute in question to the national courts before the initiation of international arbitration proceedings. The tribunal however specifically noted that it is yet to decide on the effect of non-compliance with this condition. […]

Government Procurement Disputes Still Arbitrable in Russia

Government Procurement Disputes Still Arbitrable in Russia

The Russian courts have sent a state establishment and several state agencies to arbitration to have their claim for termination of a contract with a German contractor resolved pursuant to the agreed dispute resolution procedure (case reference No. А40-106514/2011). The claimants argued in both the Moscow Commercial Court and the Ninth Appellate Commercial Court that […]

Enforcement of Foreign Court Judgments in Russia: Reciprocity as a Separate Basis

Enforcement of Foreign Court Judgments in Russia: Reciprocity as a Separate Basis

Recognition and enforcement of foreign judgments in Russia remains a grey area, because according to the Arbitrazh Procedure Code foreign judgments may be enforced on the basis of a federal law or an international treaty. There is no generally applicable law providing for the enforcement of foreign judgments and there are few international treaties (particularly […]

Optional Arbitration Clauses to be Scrutinised by the Russian Supreme Commercial Court

Optional Arbitration Clauses to be Scrutinised by the Russian Supreme Commercial Court

Up until now optional arbitration clauses have come before Russian commercial courts only indirectly, in cases where lenders have chosen to exercise their option to bring claims before Russian state courts. In a line of cases decided by the Moscow Circuit Commercial Court the validity of such an option was upheld and it was held […]

Careful Drafting of the Arbitration Clause Remains Critical

Careful Drafting of the Arbitration Clause Remains Critical

Arbitration clauses are usually treated as one of the boilerplate terms of commercial contracts. They are frequently formulated off the top of one’s head and though major arbitration centres recommend standard clauses they are not always used. In a decision rendered on 13 March 2012 the Moscow Circuit Commercial Court confirmed the lower court’s decision […]

Resisting Arbitral Award Enforcement Because of Excess of Mandate – Either at the Seat or Never

Resisting Arbitral Award Enforcement Because of Excess of Mandate – Either at the Seat or Never

It seems that in at least one respect Russian courts are now more arbitration-friendly than courts in many other countries. In a string of cases decided during 2011 the Supreme Commercial Court held that enforcement of an arbitral award may not be refused on the basis of a tribunal’s lack of jurisdiction if the award was […]

Russia Defeats Investment Arbitration Claim Arising Out of Soviet-time Trade Debt
By 15 November, 2011 1 Comments Read More →

Russia Defeats Investment Arbitration Claim Arising Out of Soviet-time Trade Debt

This summer an UNCITRAL tribunal sitting in Stockholm held that it had no jurisdiction over a case submitted by Italian company Cesare Galdabini under Italy-Russian Federation BIT. According to media reports the claim arose out Russian Federation refusal to settle a debt owed for  EUR 278’000 worth of equipment, which Galdabini supplied in the end […]

Armenia Prevails in an Investment Arbitration

Armenia Prevails in an Investment Arbitration

It is reported that in TS Investment Corp v. Republic of Armenia, LCIA tribunal found in favor of the Respondent rejecting investor’s claims. TS Investment Corp asserted claims based on breach of a contract between the parties as well as US-Armenia BIT. The arbitration centered around TS’s investment into a tire plant in Yerevan, Armenia, […]

Arbitration and Litigation: Same or Basic Guarantees?

Arbitration and Litigation: Same or Basic Guarantees?

An interesting case is due to be considered by the Russian Supreme Commercial Court within the next few months. Two issues before the court are: (1) whether an arbitral tribunal may fine a party to the arbitration for failure to comply with the tribunal’s order and (2) whether the procedural guarantees that are accorded to […]

In the Long Run: a Story of One Award in Russia
By 27 September, 2011 0 Comments Read More →

In the Long Run: a Story of One Award in Russia

Today, it seems, an epic story of enforcement of an SCC award in Russia came to an end. After almost three years of litigation in Russia and Sweden, the Presidium of Supreme Commercial Court of the Russian Federation ruled that the award should be enforced. During the same session Presidium dismissed action seeking to invalidate […]

Failure to Seek Annulment of the Award: Any Consequences for the Enforcement in Russia?

Failure to Seek Annulment of the Award: Any Consequences for the Enforcement in Russia?

Russian courts are frequently criticized for being arbitration-unfriendly. Practitioners however acknowledge that most awards are recognized and enforced. In fact, the Russian courts are increasingly adopting pro-arbitration stance, which in some instances goes further than that adopted by the jurisdiction traditionally considered arbitration-friendly. In three recent cases Russian courts took the view, that the respondent […]

Supreme Commercial Court Takes a Closer Look at Domestic Arbitration Institutions Established by Commercial Entities

Supreme Commercial Court Takes a Closer Look at Domestic Arbitration Institutions Established by Commercial Entities

Domestic arbitration institutions established by various commercial entities have become widespread in the Russian Federation. Their existence and perceived lack of impartiality have long been criticized by many. They were also presented as an example of why arbitration should not be used to resolve private disputes.  The situation is particularly problematic where the rules of […]

Express Power to Sign an Arbitration Clause is not Required

Express Power to Sign an Arbitration Clause is not Required

Power of attorney authorizing the representative to sign a commercial contract is sufficient for such representative to sign a contract containing an arbitration clause. In a recently published decision the Presidium of the Supreme Arbitrazh Court of the Russian Federation confirmed that the provision of Article 62 of the Arbitrazh Procedure Code requiring that for […]

Paushok et al. v. Mongolia: Windfall Profit Tax and Immigration Requirements Compatible with FET Standard

Paushok et al. v. Mongolia: Windfall Profit Tax and Immigration Requirements Compatible with FET Standard

In a recently published award a tribunal found that the windfall profit tax introduced by Mongolia as well as introduction of a penalty for exceeding the limit on employment of foreign nationals were compatible with the FET standard established by the Mongolia-Russia BIT. On the other hand, the tribunal found that the conduct of Mongolian […]

GEA v. Ukraine: an Arbitral Award is not an Investment

GEA v. Ukraine: an Arbitral Award is not an Investment

In a recently published award in GEA Group Aktiengesellschaft v. Ukraine, an ICSID Tribunal found that an arbitral award for the recovery of money (due under an agreement treated as an investment) does not in itself constitute an investment (para 162). The Tribunal further held that if failure to enforce an award may constitute expropriation, […]

Supreme Commercial Court: Provisional Arbitral Awards Are Not Enforceable in Russia
By 12 December, 2010 1 Comments Read More →

Supreme Commercial Court: Provisional Arbitral Awards Are Not Enforceable in Russia

In a recently published decision, the Presidium of the Russian Supreme Arbitrazh Court (“SC”) held that provisional awards of arbitral tribunals are not enforceable in the Russian Federation. The SC said Russian law only provides for enforcement of awards that are final and actually resolve the substance of the dispute. Facts of the case Living […]

New Legal Regime for Mediation in Russia

New Legal Regime for Mediation in Russia

A set of rules aimed at regulating mediation in the Russian Federation is due to enter into force on 1 January 2011. It includes Federal Law On Alternative Procedure of Dispute Settlement with Participation of Mediator (Mediation Procedure) and a separate set of amendments to the Russian procedural laws designed to incorporate mediation into the […]