Russian arbitration reform, two years later
"For everything there is a season… time to cast away stones, and a time to gather stones together; a time to embrace, and a time to refrain from embracing…"
Ecclesiastes, 3
The Russian arbitration reform started at the end of 2015 when major changes were made to the LawOn International Commercial Arbitration ("ICA Law")[1]and the procedural codes,[2]and a new law on domestic arbitration was enacted[3]("Law on Domestic Arbitration") (jointly "New Arbitration Laws").The New Arbitration Laws came into force on 1 September 2016. More than two years have passed since, and thus one could consider whether the declared goals of the arbitration reform were achieved.
1.HARMONIZE RUSSIAN ARBITRATION LAW WITH THE 2006 UNCITRAL MODEL LAW
One of the purposes of the arbitration reform was to bring Russian arbitration laws into compliance with the UNCITRAL Model Law. The ICA Law declares that it takes into account the provisions of the UNCITRAL Model Law, not only in its original version of 1985, but as amended in 2006. However, as a matter of fact, only insignificant changes from the 2006 Model Law were implemented.
Just to recap, the changes made to the 2006 UNCITRAL Model Law dealt with two major issues:
First, the 2006 amendments to UNCITRAL Model Law allowed arbitration agreements to be concluded orally.
Second, they extended the tribunal's authority to take decisions on preliminary or conservatory measures and provided for the mandatory enforcement of such decisions.
The new ICA Law does not allow an arbitration agreement to be concluded orally, although it recognizes that an arbitration agreement is concluded in writing in the form, "allowing to fix the information contained therein and to make it accessible for subsequent reference."
As to the tribunal's authority to grant interim measures, although declaring the right of the arbitral tribunal to take a decision on preliminary or conservatory measures, the ICA Law does not provide for the possibility to enforce such measures through state courts.
Full version of text is available here.
Vladimir Khvalei,
RAA, Chairman of the board
[1]Russian Federation Law No. 5338-1, adopted on 7 July 1993.
[2]The Code of Arbitrazh Procedure ("CAP") and the Code of Civil Procedure ("CCP").
[3]Federal Law No. 382-FZ of 29 December 2015 "On arbitration (arbitration proceedings) in the Russian Federation."