Tag: arbitration clause

Pathological Arbitration Clauses in Lithuanian Case Law

Pathological Arbitration Clauses in Lithuanian Case Law

The Lithuanian courts have lately shown very positive trends of becoming an arbitration-friendly destination. Over the last couple of years, the Supreme Court has produced a spectrum of judgments infused with a western pro-arbitration attitude. These judgments make ubiquitous references to the UNCITRAL Model Law, as well as the writings of Gary B. Born and other […]

By 28 January, 2016 0 Comments Read More →
Appellate Court Restores “Lender’s Option to Litigate” Clause

Appellate Court Restores “Lender’s Option to Litigate” Clause

On 12 March 2015 a Russian appellate court overruled the lower court’s decision invalidating the “lender’s option” part of a complex dispute resolution clause and referring parties to arbitration. As discussed earlier on the CIS Arbitration Forum, the lender’s option clause empowers only one of the parties to the facility agreement to institute proceedings before any competent state court in spite of the […]

By 15 April, 2015 0 Comments Read More →
Swedish Court Confirms that Russia is Bound by an Arbitration Agreement It Has Not Signed

Swedish Court Confirms that Russia is Bound by an Arbitration Agreement It Has Not Signed

In a recent decision the Svea Court of Appeal refused to set aside the arbitral award in the Badprim case. In that case, the tribunal had extended an arbitration agreement between a private contractor and a Russian state authority to include the Russian Federation itself. This article first looks at the Badprim case, and then puts it into the […]

By 22 March, 2015 0 Comments Read More →
Russian Court (Yet Again) Finds an Optional Dispute Resolution Clause Partially Void

Russian Court (Yet Again) Finds an Optional Dispute Resolution Clause Partially Void

In a decision rendered on 27 November 2014 the Rostov Region Commercial Court voided an optional dispute resolution clause (“lender’s option”) in a facility agreement. The said provision empowered only one of the parties to institute proceedings before any competent state courts despite the arbitration clause and an alternative provision providing for the exclusive jurisdiction of English courts. […]

By 23 December, 2014 0 Comments Read More →
Russian Courts Reject Overly Broad Interpretation of Investment Treaty Arbitration Clause

Russian Courts Reject Overly Broad Interpretation of Investment Treaty Arbitration Clause

Arbitral tribunals in Moscow interpreted surprisingly broadly the dispute resolution provision in an investment treaty, allowing the investors to apply at unlimited number of fora at their choice. However, the Minsk-based CIS Economic Court in its decision on 23 September clarified that such provision establishes only a potential possibility of investor-state dispute resolution by international arbitration provided that the […]

Award Enforcement in Russia: Forum Conveniens Rule

Award Enforcement in Russia: Forum Conveniens Rule

A significant number of foreign assets can be found in the territory of the Russian Federation. As such, the country may become a popular venue for the enforcement of arbitral awards against foreign entities. This post looks at Russian law and practice when it comes to enforcement of arbitral awards against parties that are not incorporated in […]

Ambiguous Clause Successfully ‘Cured’

Ambiguous Clause Successfully ‘Cured’

Russian courts have traditionally been cautious in dealing with ambiguous and too general arbitration clauses. Where parties agree that their disputes “shall be resolved by arbitration” without more the clause is unlikely to be enforced. However, Russia’s participation in the European Convention on International Commercial Arbitration (the “European Convention”) provides a very useful instrument to […]

When It Is Not Too Late to Request Referral to Arbitration?

When It Is Not Too Late to Request Referral to Arbitration?

Under article II of the New York Convention if a state court is seized of a matter covered by an arbitration agreement it shall refer the parties to arbitration if one of the parties requests such a referral. In a recent decision the Federal Commercial Court for the North-Western Circuit provided important guidance as to the timing […]

Disputes Arising Out of Government Contracts Not Arbitrable?

Disputes Arising Out of Government Contracts Not Arbitrable?

Russia’s highest commercial court has ruled that arbitral tribunals cannot resolve disputes arising out of government contracts. The court quashed the decisions of lower courts granting enforcement of a domestic arbitral award in a dispute between a government agency and a company. The dispute arose out of a government contract by which the company agreed to […]

A Stranger in an Arbitration – Why Proper Notice and Powers are Important

A Stranger in an Arbitration – Why Proper Notice and Powers are Important

During the last session of this December’s ICC conference in Moscow panelists discussed “guerrilla tactics” in arbitration. Means to avoid being served with a proper notice and sending an unauthorised agent to represent a party to arbitration featured prominently among the guerrilla techniques. A recent decision of the Federal Commercial Court for the Povolz’e Circuit […]

By 26 December, 2013 0 Comments Read More →
More on Asymmetrical Arbitration Clauses from the Russian Courts

More on Asymmetrical Arbitration Clauses from the Russian Courts

In 2012 the Supreme Commercial Courts famously voided a dispute resolution clause, which entitled only one of the parties to choose between arbitration and litigation. Now the Russian courts have to decide whether to enforce a clause, which provides that the buyer should submit all its claims to arbitration, while the supplier should litigate any […]

Report: RAA40 Seminar on Waiver of the Right to Set an Award Aside

Report: RAA40 Seminar on Waiver of the Right to Set an Award Aside

Last Thursday RAA40 held its seminar on exclusion agreements.  Two speakers – Anne-Marie Whitesell (of Counsel at Dechert LLP and former Secretary General of the ICC International Court of Arbitration) and one of RAA40’s co-chairs Olesya Petrol –addressed recent developments in the area. By entering into an exclusion agreement, which usually forms part of an arbitration clause, parties waive […]

By 23 October, 2013 0 Comments Read More →
A Landmark Decision on Validity and Enforcement of Arbitration Clauses in Russia

A Landmark Decision on Validity and Enforcement of Arbitration Clauses in Russia

Earlier this week, the Presidium of the Supreme Commercial Court released the full text of its resolution in Bosch v. Avtosped (a case we covered earlier). Unsurprisingly, the court dismissed Bosch’s claims and referred them to arbitration. However, the Supreme Commercial Court used the case to go over some basic rules that the Russian courts […]

Supreme Commercial Court to Address Arbitral Tribunals’ Ability to Handle Complex Disputes

Supreme Commercial Court to Address Arbitral Tribunals’ Ability to Handle Complex Disputes

Later this year the Presidium of the Supreme Commercial Court will hear an appeal in ENEL OGK-5 v CJSC ROS Postakva and Worley Parsons Europe Energy Services Ltd. The issues before the court are the arbitral tribunal’s power to assess evidence and the effect an alleged lack of jurisdiction over part of the dispute has on […]

Arbitration Clause Covers Claims for Damages… But Not All

Arbitration Clause Covers Claims for Damages… But Not All

On 7 August the Federal Commercial Court for the Moscow Circuit delivered a remarkable decision clarifying the principles of arbitration clause interpretation. More specifically, the Circuit Court explained which claims for damages go with a standard arbitration clause and which do not, unless expressly mentioned in such clause. It stated that such claims may fall within the […]

By 14 August, 2013 0 Comments Read More →
Russian Supreme Commercial Court on Cross-Border Litigation

Russian Supreme Commercial Court on Cross-Border Litigation

  Last Friday the Supreme Commercial Court released a long-awaited review of case law in cross-border disputes (disputes involving a foreign party) (for our earlier report on the draft review see here). While such reviews are not de jure binding, they are as a matter of practice followed by the lower courts and provide reliable guidance to litigants. The […]

Russian Dallah in the Making

Russian Dallah in the Making

In a pending case Russian courts are looking at whether the arbitral tribunal may extend its jurisdiction to the City of Moscow on the basis of an arbitration clause in a contract to which a department of the city government is a party. In March 2013, the tribunal (Professor Sherstobitov (chair) and Professors Komarov and […]

Which Decisions of Arbitral Tribunals are Enforceable in Russia?

Which Decisions of Arbitral Tribunals are Enforceable in Russia?

The Federal Commercial Court for the Moscow Circuit issued an important decision last Wednesday confirming the enforcement of a Swiss Rules arbitration order terminating arbitration proceedings. The court confirmed that tribunal decisions other than awards may be enforced in Russia. It also confirmed the lower court’s finding that the parties may modify arbitration clauses by […]

Russian SCC to Consider a “Problematic” Arbitration Clause

Russian SCC to Consider a “Problematic” Arbitration Clause

On 16 July the Supreme Commercial Court will consider whether an arbitration clause which consists of a reference to the ICC Rules of Arbitration is enforceable. The lower courts ruled that it was not, finding that it was not specific enough, with parties failing to agree on an institution to administer the arbitration. At first […]

Enforcement of Arbitral Awards in Russia: Effect of Foreign Court Proceedings

Enforcement of Arbitral Awards in Russia: Effect of Foreign Court Proceedings

In April, the Federal Arbitrazh Court for the Moscow Circuit faced two opportunities to address the implications of foreign set aside proceedings on the enforcement of an award in the Russian Federation. In the first case, it ruled that a party’s failure to raise an objection to the award in the set aside proceedings precluded […]

Can Parties Waive the Right to Challenge an Award Rendered in Russia?

Can Parties Waive the Right to Challenge an Award Rendered in Russia?

On 12 March 2013 a Russian court held that an award rendered in Russia may not be set aside if the parties have agreed that it will be final and have waived any recourse against it. The Federal Commercial Court for the Moscow Circuit ruled that in such cases the only remedy available to the […]

Russia’s Supreme Commercial Court Voids An Optional Arbitration Clause

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 […]

By 3 September, 2012 2 Comments Read More →
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 […]

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 […]