The new Arbitration Association study on application of the New York Convention in Russia during 2008-2017
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (New York) celebrates its 60th anniversary in 2018 (“Convention”). Since its inception, 159 Contracting States have joined the Convention. The USSR ratified the Convention on 22 November 1960. The Russian Federation, as a successor of the USSR, continues to be a Contracting State.
The Convention introduced a universal mechanism for the recognition and enforcement of foreign arbitral awards, which shall apply uniformly in all Contracting States.
The Convention sets out the exhaustive list of grounds, which the national courts may apply for rejecting the recognition and enforcement of foreign arbitral awards. The grounds are listed in Article V of the Convention and are duplicated in Article 36 of the Russian International Arbitration Law. Article V of the Convention is also partly
duplicated in Article 244.1 of the Code of Commercial Procedure (“APK”).
There is a significant body of legal research on the application of the Convention in Russia. However, this study represents the first time when it is being studied through the prism of Russian case law. The Working Group of the Russian Arbitration Association has analyzed all cases decided in the past 10 years, which relate to the application of the Convention.
This study (“NYC Study”) was commenced over a year ago and comprised three (3) stages. To begin, we identified approximately 700 court rulings of the first, appeal and supreme instances, in which the courts applied Article V of the Convention or related national legal norms in determining the recognition and enforcement (“R&E”) of the foreign arbitral award. The approximately 700 court rulings were deducted to 472 R&E cases arising out of 472 foreign arbitral awards. Each court ruling was analyzed in accordance with
45 parameters, such as date of the arbitral award, date of the R&E application, date of the first instance ruling, number of instances, results per instance, date when the R&E was granted or rejected, nationality of the claimant, names of the parties, seat of the arbitration, arbitration rules, applicable law, subject matter of the dispute, awarded amounts and currency, number and names of arbitrators, number and names of state court judges in each instance, geography of state courts, requested and granted grounds under Article V of the Convention, and the final result of the R&E application. We entered all extracted data into a master table, which comprised over 21,000 elements in total.
At the initial stage, the Working Group that carried out the case law analysis comprised Oleg Todua, Marina Zenkova, Dmitriy Laverychev and Irina Maisak (White & Case LLP) who analyzed cases from the years 2017 and 2016; Dmitry Samigullin and Afina Lesnichenko (RBL | GRATA International) – cases from 2015; Anton Alifanov (Dentons) – 2014; Natalya Dvenadtsatova (VLawyers) – 2013; Mikhail Samoylov and Natalya Andreeva (Egorov Puginsky Afanasiev and Partners) – 2012; Sergey Petrachkov and Asiyat Kurbanova (ALRUD) – 2011; Marina Akchurina and Ksenia Khanseidova (Cleary Gottlieb Steen & Hamilton LLP) – 2010; Grishchenkova Anna and Irina Suspitsyna (KIAP) – 2009; and Anastasia Rodionova – 2008.
To ensure accuracy, the case search was done through two legal data bases, which were kad.arbitr.ru and Consultant Plus. The cases have been cross checked to ensure that the gathered data is accurate and complete. It should be noted that the existence of publicly available case law databases in Russia is, in itself, a great
achievement because it improves court’s transparency and makes case law accessible to anyone.
The second stage of the NYC Study focused on coding the data to make it machine readable. Though it was a time-consuming exercise, the result enables us to handle a broad range of data types.
At the final stage, we built models for correlated data and visualized them. Practically, these models enable us to describe the court practice and tendencies in the application of the Convention in Russia. For example, we can show how amounts in dispute affect Russian court decisions; which courts and judges are arbitration friendly; the judges whose rulings are successfully appealed; and the ratio of successful cases per instance.
This is a whole new place to go with numbers, but this NYC Study is just scratching the surface. As more data comes in, we now have a better context to explain what these numbers really mean by comparing the cases, judges, outcomes and many other factors. In a few years, this NYC Study can be used to consider how things have changed in Russia by comparing the measurements and conclusions drawn in this study. This work will continue with the annual updates published at www.newyorkconvention.ru.
We are glad to present the English version of the study in the Annex to the current issue of Arbitration.ru.
The Russian Arbitration Association is very grateful to Kirsten Cox for her work on this Study.
Chair of the Working Group
Secretary General, RAA
Managing partner, Law firm MANSORS