The advantage of international commercial arbitration, compared to other mechanisms for resolving economic disputes, and above all with the system of state judicial bodies, is the presence of a fairly developed system for the recognition and enforcement of foreign arbitral awards. In accordance with section. 8 of the RF Law on MCA, a foreign arbitration award is recognized in Russia and, upon filing a petition to the competent court, it is executed. Moreover, the provisions of this section apply equally to arbitration awards on international commercial disputes made on the territory of Russia in permanent arbitration or ad hoc arbitration, and to arbitration awards made in other states and presented for execution in the Russian Federation.

Rules providing for the recognition and enforcement of arbitration awards made in other states are available in private international law of almost all states. In Art. 192 of the Swiss International Private Law Act states: “The decision is final from the moment it is communicated to the parties... And here: The decision can be challenged only in the following cases”:

• - if the procedure for appointing a sole arbitrator or the procedure for forming arbitration courts was violated;
• - if the arbitration court erroneously declared itself competent or incompetent;
• - if in its decision the arbitration court went beyond the scope of the claims or did not express its attitude to any of the claims;
• - if during the arbitration proceedings the equality of the parties or their right to express their position in the adversarial process was violated;
• - if the decision is incompatible with public policy.

In France, to enforce an arbitration award of a foreign state, a decision of the French court (exequatur) at the place of execution of the award is required, and in Germany such decisions are executed in the same manner as decisions of German arbitration, and there are no requirements for reciprocity.

But economic life in the world required the unification of norms on this problem, which began in 1923 with the signing of the Geneva Protocol “On Arbitration Clauses”. The protocol has not been widely used due to its imperfections. The Geneva Convention on the Enforcement of Foreign Arbitral Awards (1927) became directly applicable to the enforcement of arbitral awards made outside of states. An important principle underlying this convention was the principle of “double exequatur”. In accordance with it, in order to enforce an international arbitration award, it was necessary to obtain an exequatur in the state court at the place where it was issued and only then - in the state court at the place of its execution, otherwise in the state court at the location of the defendant or his property.

However, the provisions of the Geneva Convention of 1927, and even more so the Protocol of 1923, did not sufficiently meet the requirements of international commercial turnover, which developed rapidly after the Second World War. Therefore, in 1953, the preparation of a new convention began within the UN.

It was the New York Convention (1958) that served as the basis for the recognition and enforcement of foreign arbitral awards. More than 112 states participate in the Convention. The Convention is the most important and significant, as it contains the optimal legal basis for a positive solution to this problem. Its effect extends to foreign arbitration awards made not only by permanent arbitrations, but also by ad hoc arbitrations. The main provisions of the Convention have been recognized and embodied in various national legislative acts adopted in many states. As a result, there was a need to study the relationship and interaction of the norms of national acts with the norms of the Convention.

The Convention abandoned the principle of “double exequatur” and introduced such basic concepts as “arbitration agreement” and “written form”, used in formulating rules on the binding nature of an arbitration agreement. They are one of the key mechanisms for the operation of the Convention. Such long-known institutions of international private law, used in the Convention, as “public order” and “arbitrability” also receive a new meaning. Without understanding these categories, it is impossible to correctly and uniformly apply the rules of the Convention on the Limitation of Grounds for Refusal to Recognize and Enforce Foreign Arbitration Awards.

More than two thirds of the states that have acceded to the Convention, in accordance with paragraph 3 of Art. 1 made statements that they would apply its rules only to decisions made in the territory of another member state. In the Russian Federation (successor to the USSR), when ratifying the Convention on behalf of the USSR, a reservation was made that “the provisions of the Convention in relation to arbitral awards made on the territory of states that are not parties to the Convention are implemented only on the terms of reciprocity) "

The New York Convention obliges contracting states to recognize foreign arbitral awards as binding and to enforce them on the following grounds:

• -the state recognizes and enforces foreign arbitral awards in accordance with its procedural law;
• - the national law of the state where enforcement is sought determines the judicial authority that is competent to execute the decision and the rules for such execution;
• - the interested party applies to the competent authority of the state in which enforcement is sought with a request, together with which they submit: a certified original arbitration award or a copy thereof; the original arbitration agreement or a certified copy thereof; translation of these documents into the official language of the country where execution is sought;
• - recognition and enforcement of an arbitration award may be refused, but only on the basis of Art. 5 of the Convention. The first group is grounds that can be applied only at the request of the party against whom the decision was made, and if she proves their existence. The second group is the grounds that can be applied at the initiative of the competent authority considering the request for execution.

So, the first group of grounds is mainly related to the arbitration agreement. Recognition and enforcement of an arbitral award may be refused if the arbitral award is invalid; the arbitration award went beyond the scope of the arbitration agreement; the composition of the arbitration tribunal and the arbitration process did not comply with the arbitration agreement; if the decision did not become final, that is, it was suspended or canceled by the competent authority of the state where the decision was made. The second group includes two grounds: firstly, if the competent authority of the state from which enforcement is sought can refuse this, and if it finds that the object of the dispute cannot be the subject of arbitration under the laws of that state, secondly, if recognition and enforcement of the decision are contrary to the public policy of that State

Decisions of international commercial arbitrations adopted on the territory of foreign states on disputes and other cases arising in the implementation of entrepreneurial and other economic activities (foreign arbitration decisions) are recognized and enforced in the Russian Federation by arbitration courts, if recognition and enforcement of such decisions is provided for international treaty of the Russian Federation and federal law (clause 1 of article 241 of the Arbitration Procedure Code of the Russian Federation). The Law of the Russian Federation “On International Commercial Arbitration” (Article 35) provides that an arbitral award, regardless of the country in which it was made, is recognized as binding in Russia and is enforced when a petition is submitted to the competent court. Thus, foreign arbitral awards are enforced in Russia regardless of whether the Russian Federation has an international treaty in this area with the relevant state.

Recognition and enforcement of foreign arbitral awards is regulated by New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958 This Convention applies to foreign arbitral awards rendered by both permanent bodies of international commercial arbitration and ad hoc arbitration.

The New York Convention has not created a uniform procedure for the recognition and enforcement of foreign arbitral awards: recognition and enforcement are carried out in accordance with the procedural rules of the state where recognition and enforcement is sought. The Soviet Union, when ratifying the New York Convention, made the following statement: “The USSR will apply the provisions of this Convention in relation to arbitral awards made in the territory of states that are not parties to the convention only on conditions of actual reciprocity.” Consequently, in Russia (the successor state of the USSR), foreign arbitration awards are enforced if they are made: a) in a country that is a party to the New York Convention; b) in other countries - in the presence of actual reciprocity.

The New York Convention (Art. IV) establishes that in order to enforce a foreign arbitral award, the party who seeks such enforcement must present: a) a duly certified original arbitral award or a duly certified copy thereof; b) the original arbitration agreement or a duly certified copy thereof. If a foreign arbitration award or arbitration agreement is executed in a foreign language, then the party seeking enforcement of this award must provide a translation of these documents into the official language of the country of execution.

The New York Convention (Article V) establishes seven grounds for refusing recognition and enforcement of foreign arbitral awards. Thus, recognition and enforcement of an arbitration award may be refused in accordance with paragraph 1 if:

a) the parties to the arbitration agreement were, under the law applicable to them, in any way incapacitated or the agreement is invalid under the law to which the parties subjected the agreement, or, in the absence of such indication, under the law of the country where the award was made;

b) the party against whom the award was made was not properly notified of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to provide an explanation;

c) the arbitration award was made on a dispute not provided for or not falling within the terms of the arbitration agreement or arbitration clause in the contract, or contains rulings on issues that go beyond the scope of the arbitration agreement or arbitration clause in the contract, provided that if the rulings on issues covered by the arbitration agreement or clause can be separated from those not covered by such agreement or clause, then that part of the award which contains rulings on the matters covered by the arbitration agreement or the arbitration clause in the contract may be recognized and enforced;

d) the composition of the arbitral body or the arbitration process was not in accordance with the agreement of the parties or, in the absence of such agreement, was not in accordance with the law of the country where the arbitration took place;

e) the award has not yet become final between the parties or has been annulled or suspended by the competent authority of the country where it was made or the country whose law applies.

According to paragraph 2, recognition and enforcement of an arbitral award may be refused if the competent authority of the country in which recognition and enforcement is sought finds that:

a) the subject matter of the dispute cannot be subject to arbitration under the laws of that country;

b) recognition and enforcement of this decision are contrary to the public policy of that country.

It should be noted that the grounds provided for in the first paragraph 1 of Art. V, must be proven by the party against whom the arbitration award is directed. And the grounds established by paragraph 2 of Art. V, the court may apply on its own initiative. In particular, recognition and enforcement of foreign arbitral awards may be refused if the court of the country where such recognition and enforcement is sought finds that the subject matter of the dispute cannot be the subject of arbitration under the laws of that country. For example, in Russia, disputes related to the filing and consideration of applications for patents for inventions, utility models, industrial designs, selection achievements, trademarks, service marks and appellations of origin of goods, with state registration of these results of intellectual activity and means of individualization, with the issuance relevant documents of title, challenging the provision of these results and means of legal protection or its termination are within the competence of the Federal Institute of Industrial Property of the Federal Service for Intellectual Property and the Ministry of Agriculture of the Russian Federation (Article 1248 of the Civil Code of the Russian Federation). In accordance with the Federal Law “On Insolvency (Bankruptcy)” (clause 3 of Article 33), bankruptcy cases cannot be referred to an arbitration court.

The arbitrability of a dispute is also determined by the law of the court where recognition and enforcement of a foreign arbitral award is sought. A similar norm is contained in clause 3 of Art. 233 of the Arbitration Procedure Code of the Russian Federation, according to which the arbitration court cancels the decision of the arbitration tribunal if it determines that the dispute considered by the arbitration tribunal cannot be the subject of arbitration proceedings in accordance with federal law. Some laws place the resolution of certain disputes within the exclusive competence of courts and other bodies. Article 138 of Part One of the Tax Code of the Russian Federation dated July 31, 1998 No. 146-FZ provides that acts of tax authorities, actions or inactions of their officials can be appealed to a higher tax authority, to a court, or an arbitration court. Art. takes a similar position. 382 Labor Code of the Russian Federation. According to Art. 39 of the Federal Law “On Protection of Competition”, cases of violation of antimonopoly legislation are considered by the antimonopoly authority.

According to paragraph 5 of Art. 230 of the Arbitration Procedure Code of the Russian Federation, in cases provided for by an international treaty, a foreign arbitration award may be challenged in the arbitration court of a constituent entity of the Russian Federation at the location or place of residence of the debtor, and if his location or place of residence is unknown, at the location of the property of the debtor - the parties to the arbitration proceedings.

And finally, the refusal to recognize and enforce an arbitral award may be caused by the fact that this decision is contrary to public policy (Clause 2 of Article V of the New York Convention) (see Chapter 4 of the textbook).

The parties do not have the right to invoke a violation of public policy in cases where international commercial arbitration applied Russian law. Only the application of a rule of foreign law can be contrary to public policy.

The content of the concept of public policy is disclosed in the resolution of the Federal Arbitration Court of the Moscow District dated June 21, 2007 in case No. KG-A40/5368-07, which states: “The decision of an international arbitration court may be recognized as contrary to the public policy of the Russian Federation in the event that if as a result of its execution actions will be committed either directly prohibited by law, or damaging the sovereignty or security of the state, affecting the interests of large social groups, which are incompatible with the principles of building the economic, political, legal system of states, affecting the constitutional rights and freedoms of citizens, as well as contradictory basic principles of civil legislation, such as equality of participants, inviolability of property, freedom of contract." A violation of public order can only be stated if the application of foreign law leads to a result that is unacceptable from the standpoint of Russian law.

The New York Convention places the burden of proving circumstances that prevent performance on the party against whom the decision is made. In other words, a party that refuses to enforce a foreign arbitral award must prove that there are legal grounds for doing so.

According to Art. 3 of the Federal Law of July 24, 2002 No. 96-FZ “On the implementation of the Arbitration Procedural Code of the Russian Federation” Decree of the Presidium of the Supreme Soviet of the USSR of July 21, 1988 “On the recognition and execution in the USSR of decisions of foreign courts and arbitrations” (hereinafter – Decree of 1988) from the moment the Arbitration Procedure Code of the Russian Federation came into force is applied to the extent that does not contradict it. In the literature, the opinion was expressed that clause 10 of the 1988 Decree continues to be in effect. This paragraph establishes that foreign arbitral awards that are not subject to enforcement are recognized without any further proceedings, unless there is an objection to this from the interested party. In essence, a similar norm is contained in Art. 35 of the Law of the Russian Federation “On International Commercial Arbitration”, according to which an arbitration award, regardless of the country in which it was made, is recognized as binding. However, it must be taken into account that... 10 of the Decree of 1988, establishing a judicial procedure for recognizing a foreign arbitral award in cases where the interested party refused to recognize it. Therefore, one cannot but agree that clause 10 of the 1988 Decree remains in effect in this part.

On the basis of a foreign arbitration award and a court ruling that has entered into legal force to authorize compulsory execution, a writ of execution is issued and sent to the place of enforcement. Foreign arbitration award in accordance with and. 2 tbsp. 246 of the Arbitration Procedure Code of the Russian Federation can be executed within three years from the date it comes into force. If a party missed this deadline, then, at the request of the claimant, the arbitration court has the right to restore it.

A number of provisions regarding the enforcement of foreign arbitral awards are contained in the Moscow Convention on the Resolution by Arbitration of Civil Disputes Arising from Relations of Economic, Scientific and Technical Cooperation of 1972 (see paragraph 23.2).

The Moscow Convention was concluded in 1972, when the main activities for economic, scientific and technical cooperation were carried out by state foreign trade associations. With the transition of Russia and the countries of Eastern Europe to market relations, the circle of participants in foreign economic activity has expanded incredibly. Foreign economic activity began to be carried out by organizations of all forms of ownership.

Hungary, Poland, and the Czech Republic denounced the Moscow Convention, citing the fact that its provisions apply only to state organizations. As for Bulgaria, one of its courts in a specific case refused to issue an exequatur when the issue of enforcement of a foreign arbitral award in Bulgaria arose. Germany also does not consider itself bound by the provisions of the Moscow Convention. Romanian arbitration takes a similar position. Three states currently consider themselves participants in the Moscow Convention: Russia, Cuba, and Mongolia. Its provisions must be taken into account when concluding arbitration agreements with organizations in these countries. The participation of Bulgaria and Romania in the Moscow Convention still remains unclear. The positions of the Arbitration Court at the Bulgarian Chamber of Commerce and Industry and the Court of International Commercial Arbitration at the Romanian Chamber of Commerce and Industry cannot be considered as acts of denunciation of the Moscow Convention in the light of the Vienna Convention on the Law of International Treaties of 1969.

In light of the above, the provisions of the Moscow Convention regarding the enforcement of foreign arbitral awards remain in force. According to the Moscow Convention, the decision is considered recognized without further proceedings and is subject to execution in the same manner as the decision of the state court of the country of execution that has entered into force (clause 2 of Article IV). Thus, the nature of judicial decisions is recognized behind arbitral awards. Arbitration awards not executed voluntarily may be brought for forced execution within two years (Article IV of the Moscow Convention). This period is calculated from the date of delivery of the decision to the party who requires execution, and when sending the decision by mail - from the date of the postal department’s stamp on acceptance of the registered letter for dispatch.

The Moscow Convention (Article V) establishes the following grounds for refusal to recognize and enforce foreign arbitral awards: a) if the award was made in violation of the rules on competence established by it; b) if the party against whom the decision was made proves that it was deprived of the opportunity to defend its rights due to a violation of the rules of arbitration proceedings or due to other circumstances that it could not prevent, and also notify the arbitration court; c) if the party against whom the decision was made proves that, on the basis of the national legislation of the country where it was made, the decision was canceled or suspended.

Concerning order recognition and execution of foreign arbitration awards, then in accordance with Part 1 of Art. 242 of the Arbitration Procedure Code of the Russian Federation, an application for recognition and enforcement of a foreign arbitration award is submitted by the party in whose favor the decision was made to the arbitration court of a constituent entity of the Russian Federation at the location or place of residence of the debtor or, if the location or place of residence is unknown, at the location of the debtor’s property.

An application for recognition and enforcement of a foreign arbitration award is submitted in writing and must be signed by the claimant or his representative. The details of the application are defined in Part 2 of Art. 242 of the Arbitration Procedure Code of the Russian Federation. The following shall be attached to the application, unless otherwise provided by an international treaty: 1) a duly certified original foreign arbitration award or a duly certified copy thereof; 2) the original arbitration agreement or a duly certified copy thereof; 3) a duly certified translation of the foreign arbitration award and arbitration agreement; 4) document confirming payment of state duty. Documents drawn up in a foreign language, when submitted to a Russian arbitration court, must be accompanied by a duly certified translation into Russian.

According to Part 1 of Art. 243 of the Arbitration Procedure Code of the Russian Federation, an application for recognition and enforcement of a foreign arbitration award is considered in a court hearing by a single judge within a period not exceeding three months from the date of receipt by the arbitration court according to the rules of Chapter. 31 of the Arbitration Procedure Code of the Russian Federation, unless otherwise established by an international treaty of the Russian Federation.

In accordance with Part 3 of Art. 245 of the Arbitration Procedure Code of the Russian Federation, the ruling of the arbitration court in the case of recognition and enforcement of a foreign arbitration award may be appealed to the arbitration court of the cassation instance within a month from the date of the ruling.

The Arbitration Procedure Code of the Russian Federation (Part 1, Article 246) provides that the forced execution of a foreign arbitration award is carried out on the basis of a writ of execution issued by the arbitration court, which issued a ruling on the recognition and enforcement of a foreign arbitration award in the manner prescribed by the Arbitration Procedure Code of the Russian Federation and the Federal Law " On enforcement proceedings." A foreign arbitration award may be submitted for enforcement within a period not exceeding three years from the date the award entered into legal force. If the claimant missed this deadline, it can be restored by the arbitration court according to the rules of Chapter. 10 Arbitration Procedure Code of the Russian Federation.

Rules § 2 ch. 30 of the Arbitration Procedure Code of the Russian Federation are applied when an arbitration court considers applications for the issuance of writs of execution for the forced execution of decisions of international commercial arbitrations adopted on the territory of the Russian Federation (Part 1 of Article 236 of the Arbitration Procedure Code of the Russian Federation).

In accordance with Part 3 of Art. 236 of the Arbitration Procedure Code of the Russian Federation, an application for the issuance of a writ of execution for the forced execution of an arbitration court decision in a dispute is submitted to the arbitration court of a constituent entity of the Russian Federation at the location or place of residence of the debtor or, if the location or place of residence is unknown, at the location of the debtor’s property.

There is one exception to this general rule. In the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 No. 96 (clause 14), it is noted: “The jurisdiction of the arbitration court of the constituent entity of the Russian Federation, on the territory of which the decision of the arbitration court was made, the case applies when one party to it simultaneously arbitration proceedings filed an application to challenge the decision of the arbitration court, and the other party to the arbitration proceedings filed an application for the issuance of a writ of execution for the forced execution of the said decision."

The judge considers the application individually within a period not exceeding three months from the date of its receipt by the arbitration court, including the period for preparing the case for trial and issuing a ruling.

According to paragraph 4 of Art. 239 of the Arbitration Procedure Code of the Russian Federation, an arbitration court may refuse to issue a writ of execution for the forced execution of an international commercial arbitration decision on the grounds provided for by an international treaty of the Russian Federation and the Law of the Russian Federation “On International Commercial Arbitration”.

Refusal to issue a writ of execution for compulsory execution by an arbitration court is not an obstacle to re-applying to an arbitration court, if such an opportunity has not been lost, or to an arbitration court. In accordance with Part 5 of Art. 240 of the Arbitration Procedure Code of the Russian Federation, the ruling of the arbitration court in the case of issuing a writ of execution for the forced execution of an international commercial arbitration decision may be appealed to the arbitration court of the cassation instance within a month from the date of the ruling.

• Submitted by SPS "ConsultantPlus".
• Cm.: Ignatenko G. V., Fedorov I. V. Arbitration procedural code in the international legal dimension // Journal of Russian Law. 2003. No. 7. P. 27. The opinion was also expressed that this paragraph does not apply (see: Karabelnikov B. R. Enforcement of international commercial arbitration decisions. Commentary on the New York Convention of 1958 and Chapters 30 and 31 of the Arbitration Procedure Code of the Russian Federation of 2002. M., Statute, 2008. P. 127).

Fable of the case

In this case, a Russian law firm received a decision from the Russian-Singapore Arbitration Court to collect debt under a contract for the provision of legal services from a Russian legal entity. Then she applied to the Moscow Arbitration Court for recognition and enforcement of such a decision in accordance with Chapter 31 of the Arbitration Procedural Code of the Russian Federation (APC RF).

The parties to the Russian-Singapore arbitration proceedings were two Russian companies that do not have branches, management bodies or representative offices abroad. The agreement that gave rise to the dispute is governed by Russian law. The Russian-Singapore arbitration court, which considered the case, is registered and operates in Singapore. At the same time, the controversial arbitration decision reflected that the place of arbitration proceedings and the decision was the city of Moscow.

The Russian court, having examined the above facts together, refused to satisfy the application, applying the fundamental basis for refusing to recognize and enforce a foreign arbitration award - a contradiction to public policy. The court found that this decision of the Russian-Singapore Arbitration Court is in fact an arbitration court decision made on the territory of the Russian Federation.

In other words, in the situation under consideration, foreign arbitration, formally referred to as such, actually covers the Russian arbitration court, and, therefore, enforcement of such a decision will be contrary to the public policy of the Russian Federation.

Thus, the court found that the recognition and enforcement of such a decision in the manner prescribed for foreign arbitration decisions (Chapter 31 of the Arbitration Procedure Code of the Russian Federation) is a bypass of the established procedure for consideration by the arbitration court of applications for the issuance of writs of execution for the forced execution of arbitration tribunal decisions taken in territory of the Russian Federation (Chapter 30 of the Arbitration Procedure Code of the Russian Federation). According to the court, it is contrary to public policy to replace the legal structure of the Russian arbitration court with “fictitious” foreign arbitration, for whose decisions a simpler procedure for execution is provided.

When is arbitration international?

The ruling made by the Moscow Arbitration Court is, in our opinion, legal and justified. It is a logical continuation of both international legal acts and trends in Russian legislation in the field of regulation of international arbitrations and arbitration of domestic disputes.

Thus, Article I of the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards provides that it applies to the recognition and enforcement of arbitral awards made in the territory of a state other than the state where recognition and enforcement of such awards is sought. That is, in this convention, the key is the place of the decision, and we can say that this is the logic that the court applied in the case under consideration.

For the organization of international arbitrations, the UNCITRAL Model Law on International Commercial Arbitration (1985, as amended in 2006) is of great importance, which was developed as a model law for national regulation of international arbitrations and was used to form national legislation in this area in more than 70 countries of the world.

Article 3 of the UNCITRAL Model Law on International Commercial Arbitration makes clear that an arbitration is international if the places of business of the parties to the arbitration agreement are located in different States at the time of its conclusion; or in the event that one of the following places is outside the state in which the parties have their place of business:

the place of arbitration, if determined in or pursuant to the arbitration agreement;

any place where a significant part of the obligations arising from trade relations is to be performed, or the place with which the subject of the dispute is most closely connected; or

the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.

The logic proposed in this article of the UNCITRAL Model Law also shows that arbitration is recognized as international when either the legal relations of the parties or the parties are connected with the place of arbitration.

Thus, we can say that the determination of the Moscow Arbitration Court complies with the principles of the main international treaty in this area and the principles of the UNCITRAL Model Law.

Arguments of Common Legal Property LLC

The arguments of the applicant, seeking recognition and enforcement of the controversial award of international arbitration, were that, within the meaning of the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Chapter 31 of the Arbitration Procedure Code of the Russian Federation, the decision in question is a decision of international arbitration. The decision itself determines the place of arbitration (Singapore), and the fact that the arbitration decision was made on the territory of the Russian Federation does not automatically make it a decision of domestic Russian arbitration. According to the applicant, Russian law establishes that an arbitral award is considered to be made at the place of arbitration. However, it does not establish that the place of arbitration is the place where the arbitral award was made. Consequently, its enforcement cannot violate the public order of the Russian Federation.

We cannot agree with such arguments, since they represent a formal interpretation of the provisions of the Arbitration Procedure Code of the Russian Federation and the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The possibility of specifying the place of arbitration in the country of registration of the international arbitration institution and at the same time making an award in the place where both parties to the proceedings are located should not allow the parties to circumvent the requirements of the law. The legal meaning of the institution of international arbitration allows the parties to resolve disputes with a foreign element out of court, and in the absence of such a foreign element, the parties must apply to a national arbitration court.

Precedent value

The definition discussed in the article is also important for assessing the prospects for the work of domestic arbitration courts and international arbitrations in Russia. Thus, the new Federal Law No. 382-FZ dated December 29, 2015 “On Arbitration (Arbitration Proceedings) in the Russian Federation” regulates the organization of arbitration of internal disputes. It provides that now on the territory of the Russian Federation it is possible to obtain the right to exercise the functions of a permanent arbitration institution only if a number of conditions are met. For example, the requirements include the reputation of the non-profit organization under which a permanent arbitration institution is being created, the scale and nature of its activities, taking into account the composition of its founders (participants), which will ensure a high level of organization of the activities of a permanent arbitration institution, including in terms of financial support for the creation and activities of the relevant institution, the implementation by the said organization of activities aimed at the development of arbitration in the Russian Federation.

Verification of such characteristics will be new for arbitration courts, and, accordingly, will make it difficult for many organizations to obtain permission to perform the functions of a permanent arbitration institution.

The new federal law “On Arbitration (Arbitration Proceedings) in the Russian Federation,” which sets high standards for the organization of arbitration courts, allows the legislator to provide a unified legal framework for resolving commercial disputes, providing the parties with effective and impartial proceedings. The corresponding requirements are presented in the Arbitration Procedure Code of the Russian Federation for the forced execution of arbitration decisions taken on the territory of the Russian Federation.

In the plot of the considered ruling of the Moscow Arbitration Court, there is an opportunity to bypass the new requirements for arbitration of internal disputes, which the creators of arbitration courts in Russia in the future can use to continue their activities. Formally, the registration of an arbitration tribunal in a foreign jurisdiction and the issuance of a decision by such an arbitration tribunal remotely or at the location of the parties (as in the situation under consideration - in Moscow) do not contradict the requirements of the applicable norms of international law and Russian legislation.

However, the ruling of the Moscow Arbitration Court under consideration provides for a solution to this problem for practice using the instrument of contradiction to public order. The court, when interpreting the circumstances of the case, did not apply a formal approach to the situation in which arbitration resolving a dispute is only called international. This definition corresponds to the principles laid down in international acts and Russian legislation, which clearly distinguish between arbitration of domestic disputes and international arbitration. Such a definition is a positive trend for Russian judicial practice, since it does not allow replacing two different legal institutions with different regulations and enforcement procedures.

conclusions

The ruling of the Moscow Arbitration Court in case No. A40-219464/2016 is a clearly positive trend for Russian judicial practice, since it does not allow the replacement of two different legal institutions with different regulations and enforcement procedures. At the same time, the court rightfully rejected the applicant’s arguments based on a formal interpretation of the legislation.

The ruling in question has already stood in the cassation court, however, in the file of arbitration cases there is information about the applicant filing a cassation appeal to the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation. The Supreme Court's assessment of the circumstances of this case will also be significant for judicial practice, however, since the determination provides an exhaustive legal analysis of the problem and factual circumstances, there is a high probability that the Supreme Court will not accept the complaint for proceedings.

The most important factor when concluding international commercial contracts is the confidence of their participants in the ability to enforce a foreign court or arbitration award in another country. In this article we will consider the issue of enforcement of foreign arbitration awards, which are understood as decisions of arbitration courts and international commercial arbitrations made in the territories of foreign states.

Consideration of disputes through arbitration

Arbitration is a widely used alternative means of dispute resolution. There are two types of arbitrations (arbitration tribunals): a) arbitrations ad hoc(that is, formed specifically to consider a given case) and b) permanent arbitrations, which have their own rules and staff of arbitrators. The latter include internationally recognized arbitration bodies, such as the International Court of Arbitration of the International Chamber of Commerce (ICC) in Paris, the London Court of International Arbitration (LCIA), the Arbitration Institute of the Stockholm Chamber of Commerce, the International Commercial Arbitration Court at the Russian Chamber of Commerce and Industry (Moscow) and etc.

Why do parties to international commercial transactions often choose arbitration courts rather than state ones?

Firstly, the parties can resort to the services of an arbitration court both in the state of location of one of the parties and in any third state, which ensures the neutrality and impartiality of the arbitration. In addition, the parties to the dispute themselves participate in the formation of the arbitrators.

Secondly, arbitrators, unlike judges of state courts, as a rule, have greater competence in resolving commercial disputes, due to the presence of special knowledge in such areas as, for example, international trade, investment, merchant shipping, etc.

Thirdly, proceedings in arbitration court, as a rule (although not always), are characterized by shorter terms for consideration of the case than in ordinary court proceedings. This is partly due to the fact that arbitration decisions are not subject to appeal.

Fourthly, such proceedings are much more confidential (meetings are held behind the scenes, and decisions, as a rule, are not published for public information).

Finally, the possibilities for recognition and enforcement of arbitration awards abroad are much wider compared to decisions of state courts. This is due to the presence of a universal international legal mechanism - the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. As of 2013, the majority (149) countries of the world participate in this Convention, including Russia (the Convention entered into force for the USSR on November 22, 1960 and continues to apply to Russia), the CIS and Baltic countries. This Convention obliges member states to recognize foreign arbitral awards on their territory, defines a list of documents that may be requested in the relevant procedure by local competent authorities (courts) and a closed list of grounds for refusal to recognize and enforce awards.

Arbitration clause (agreement)

An agreement between the parties to a contract to submit to arbitration all or certain disputes that have arisen or may arise between them is called an arbitration agreement. It can be expressed in the form of one of the provisions in the text of the contract (arbitration clause) or in the form of an independent document. The arbitration agreement is binding on the parties, and removes potential disputes from the jurisdiction of state courts (that is, does not allow the parties to turn to an ordinary court in the event of a corresponding dispute).

Typically, in an arbitration clause, the parties stipulate that any disputes that arise will be considered in a specific permanent arbitration tribunal. (its exact name must be contained in the arbitration clause). In international practice, various versions of arbitration clauses are used, many of them are formulated in international documents of a recommendatory nature.

For example, the standard arbitration clause recommended in the Annex to the UNCITRAL (United Nations Commission on International Trade Law) Arbitration Rules 2010 reads as follows: “Any dispute, controversy or claim arising out of or relating to this agreement, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules.”. In this case, the parties must include in this clause information: a) about the competent authority they choose (name of institution or name of person); b) the number of arbitrators (one or three); c) the place of arbitration proceedings (city and country); d) the language of the arbitration proceedings.

Enforcement of foreign arbitral awards

Based on the New York Convention of 1958, each participating state recognizes arbitral awards as binding and enforceable in accordance with the procedural rules of the country in which the award is enforced. For example, if in a dispute between an English company (plaintiff) and a Russian company (defendant) an arbitration decision was made in Sweden in favor of the plaintiff, this decision can be enforced in Russia at the request of the plaintiff, taking into account the procedural rules existing in Russia.

In Russia, decisions of international commercial arbitrations and foreign arbitration courts are enforced arbitration courts in accordance with the norms of the Arbitration Procedural Code (Chapter 31).

They stipulate that an application for recognition and enforcement of a foreign arbitration award is submitted to the arbitration court of a constituent entity of the Russian Federation at the location of the defendant (debtor) or, if it is not known, at the location of the debtor’s property. The requirements for the content of such an application and the list of documents attached to it are contained in paragraphs 2 and 4 of Article 242 of the Arbitration Procedure Code of the Russian Federation.

According to Article V of the New York Convention of 1958, refusal to recognize and enforce the award is possible if the party against whom the arbitral award was directed proves one (any) of the following circumstances:

a) incapacity of the parties or invalidity of the arbitration agreement;

b) failure to notify of the party regarding the appointment of an arbitrator or the proper conduct of the arbitration;

c) the dispute on which the decision was made was not foreseen or was not subject to the arbitration agreement (clause);

d) the arbitral tribunal or the arbitral process did not comply with the agreement parties or, in the absence of one, did not comply with the law the country where the arbitration took place;

e) the decision is not final for the parties either was canceled or suspended.

The second group of grounds for refusal under the 1958 New York Convention contains only two points and covers cases where the competent authority in the country in which recognition and enforcement is sought finds that:

a) the object of the dispute cannot be subject to arbitration according to the laws of this country; or

b) recognition and enforcement of this decision contrary to public policy of this country.

The last of the indicated grounds for refusal of enforcement - contradiction to public order - is increasingly used in Russian arbitration practice. In this regard, in Information Letter No. 156 dated February 26, 2013, the Presidium of the Supreme Arbitration Court of the Russian Federation explained the meaning, scope and procedure for applying this basis by arbitration courts.

So, let us outline some important points that parties to international contracts and potential participants in commercial disputes need to know.

1. The parties to a contract are free to choose the method of resolving disputes, the place of arbitration and the formulation of an arbitration clause (agreement). However, such a clause must be expressed unambiguously and it must clearly follow from its content that it binds the parties to the dispute.

2. When including an arbitration clause in the text of a contract, the parties are advised to take into account all factors that may affect the further possibility of their execution in accordance with applicable law. In particular, it will be necessary to take into account the legal requirements that are mandatory both in the place of arbitration and in the place where the award will be enforced (in particular, the procedure for filing an application, the procedure for its consideration by a local court, the practice of applying grounds for refusal of enforcement, practical nuances of forced execution and etc.). Another important factor that should also be taken into account when choosing a place for resolving disputes is the amount of possible costs for resolving the dispute through arbitration.

3. One of the main grounds in arbitration practice for refusal to recognize and enforce a foreign award is a contradiction to public order - an interested party (for example, a Russian defendant who lost a dispute in a foreign arbitration) can use it to prevent the recognition/enforcement of an arbitration award made not in her favor, in her own country. However, to do this, she will have to justify the existence of such a contradiction to the Russian arbitration court, where the party that won the dispute applied for enforcement of the foreign decision (this was indicated by the Presidium of the Supreme Arbitration Court of the Russian Federation in paragraph 3 of the Information Letter dated February 26, 2013 No. 156).

4. Forced execution of a foreign arbitration award is carried out on the basis of a writ of execution issued by the arbitration court that issued a ruling on recognition of the award and its enforcement, in the manner established by the Arbitration Procedure Code of the Russian Federation and the Federal Law “On Enforcement Proceedings” of 2007. A foreign arbitration award may be brought for forced execution in Russia within a period not exceeding three years from the date of its entry into legal force.

In conclusion, we note that in this article we have considered only the most general issues relating to the arbitration clause and the possibility of enforcement of foreign arbitral awards. Therefore, despite the availability of various standard forms of contracts and standard arbitration clauses, we recommend that you seek qualified legal assistance when concluding foreign economic contracts.

problems of recognition and reduction

in execution of decisions of foreign courts and foreign arbitration (arbitration) awards

Olga Vyacheslavovna MURATOVA, Senior Researcher, Department of Private International Law, Institute of Legislation and Comparative Law under the Government of the Russian Federation, Candidate of Legal Sciences

Andrey Igorevich SHCHUKIN, Leading Researcher, Department of Private International Law, Institute of Legislation and Comparative Law under the Government of the Russian Federation, Candidate of Legal Sciences

On November 14, 2018, the Institute of Legislation and Comparative Law under the Government of the Russian Federation (hereinafter referred to as the Institute) held a round table on the topic “Problems of recognition and enforcement of foreign judicial and arbitral awards”, dedicated to the 60th anniversary of the adoption of the United Nations Convention on recognition and enforcement of foreign arbitral awards of June 10, 1958 (hereinafter referred to as the New York Convention of 1958).

The round table was opened by the head of the department of civil legislation and procedure, Doctor of Law, Professor V. M. Zhuikov. He emphasized the relevance of the chosen topic and the exceptional importance of the 1958 New York Convention in the recognition and enforcement of foreign arbitration awards in the territory of contracting countries.

The head of the Department of International Private Law of the All-Russian Academy of Foreign Trade, Doctor of Law, Professor A. S. Komarov, noted the significance of the event held at the Institute and directly touched upon a number of issues: the purpose of adopting the New York Convention of 1958, its main provisions and future prospects for this document, which is the core of international commercial arbitration. As the speaker emphasized, if there were no Convention, it would be impossible to talk about the level that arbitration has reached as a means of resolving international commercial disputes.

Currently, 159 countries are parties to the New York Convention of 1958, which is almost 80% of all states existing on the globe. This document, containing only 16 articles (5 pages of text), played a big role in making arbitration the only means of resolving international commercial disputes. Empirical studies conducted in recent years, in particular, reports published by the University of London, indicate that arbitration has indeed become an important element of modern regulation of not only international commercial, but also economic turnover in general. According to experts, already in 2019 the number of countries participating in the Convention

tion can increase to 160, and this is not surprising.

The New York Convention of 1958, which was born thanks to the effective work of the United Nations Commission on International Trade Law (UNCITRAL), provides, in addition to the rules on the recognition and enforcement of foreign arbitration (arbitration) awards, a very important rule for international arbitration on the recognition of arbitration (arbitration) agreements , serving as the basis for the arbitration procedure itself.

The speaker further drew attention to the problem concerning the correct and uniform application of the New York Convention of 1958. Several years ago, the International Council of Commercial Arbitration issued a special guide for judges, prepared by the most respected specialists, which discusses in detail issues related to the application of the Convention. In turn, UNCITRAL has developed guidelines for the application of the Convention, which are available on the organization’s website on the Internet. In addition, UNCITRAL, together with the law firm Shearman&SterHng, have developed an effective website that provides an opportunity to become familiar with many aspects of the Convention and the practice of its application.

One of the main tasks that needs to be solved in practice is to teach Russian judges to correctly apply the New York Convention of 1958. There are cases when the court, for example, when considering the issue of recognizing and enforcing an arbitration award made in the city. Moscow, i.e. the decision of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation, applies the Convention (what does the court consider the basis for applying the Convention?). There are rarely references to the Law of the Russian Federation of July 7, 1993 No. 5338-1 “On International Commercial Arbitration”; more often the courts misinterpret the goals of the Convention and decide the case in a way that can confuse any person who knows this document.

The main problem is that judges, unfortunately, do not turn (perhaps due to their busyness) to sources where they can find answers to many questions. But in this case, the professor noted, representatives of the parties should help them

The speaker told in what direction possible changes to the New York Convention of 1958 are currently being discussed. In particular, the most authoritative specialist in the field under consideration, Professor A. Y. Van den Berg believes that the Convention could be extended not only to recognition and execution arbitration (arbitration) awards made abroad, but also on arbitration (arbitration) awards made within the country.

At the end of his speech, A. S. Komarov expressed confidence that through joint efforts, with the active participation of the young generation of lawyers involved in arbitration and litigation, it is possible to achieve the correct and uniform application of the Convention so that, as before, Russia is considered a country where have a fairly positive attitude towards international commercial arbitration.

Professor of the Department of International Law of St. Petersburg State University, Doctor of Law V. P. Talimonchik, raised issues related to the consideration by the World Intellectual Property Organization Center for Arbitration and Mediation (hereinafter referred to as the WIPO Center) of disputes in the field of intellectual property between non-government entities and the enforcement of decisions of this institutions. The peculiarity of this specialized arbitration is that it was created under an interstate organization that enjoys immunity from the application of national legislation. The WIPO Center is not subject to any national legislation on international commercial arbitration.

The WIPO Center proceeds from a very broad arbitrability of disputes within its competence: it considers, in particular, disputes arising from licensing and production contracts, agreements on scientific and technical cooperation. In one case, the WIPO Center examined a case between a North American company and an Asian manufacturer regarding the use of trademarks registered in different jurisdictions.

In addition, the WIPO Center traditionally considers cases that are not arbitrable in other international commercial arbitrations: these are disputes over the terms of employment contracts relating to intellectual property, cross-border patenting, termination of legal protection of industrial property and its renewal.

At the same time, some difficulties arise in connection with the implementation of decisions of the WIPO Center, including

including within the framework of the regime provided for by the New York Convention of 1958. This is due, firstly, to the fact that the WIPO Center often considers disputes that, under the legislation of the country where enforcement of the award is sought, cannot be the subject of arbitration proceedings. Secondly, under the Convention, decisions in trade cases are subject to enforcement, while the WIPO Center undertakes to consider disputes, including copyright violations.

According to V. P. Talimonchik, the activities of the WIPO Center deserve support, since there is an objective need to consider cross-border intellectual disputes, their number is steadily growing, and the WIPO Center strives to resolve these disputes not so much by resolving them on the merits, but by reconciling the parties, achieving them a settlement agreement. And in this aspect, the activities of UNCITRAL in developing a draft Convention on the recognition and enforcement of settlement agreements concluded within the framework of the international conciliation procedure are of particular importance.

The report of the adviser of the law firm “Egorov, Puginsky, Afanasyev and Partners”, candidate of legal sciences D. V. Kaysin and the lawyer of this bureau M. O. Demina, touched upon the topic of exequatur of decisions of international investment arbitrations against states and the role of the New York Convention of 1958. in the recognition and enforcement of such decisions. Among the main sources regulating the consideration of international investment disputes, the Convention on the Settlement of Investment Disputes between States and Natural or Legal Persons of Other States of March 18, 1965 (hereinafter referred to as the Washington Convention of 1965), UNCITRAL rules, as well as the rules of such arbitration institutions are highlighted , such as the International Chamber of Commerce (Paris), the Arbitration Institute of the Stockholm Chamber of Commerce, the Singapore International Arbitration Center. Despite the fact that the New York Convention of 1958 concerns the recognition and enforcement of foreign arbitration awards, modern practice follows the path of applying this document to the issuance of an exequatur for investment arbitration awards, which were made under the rules of UNCITRAL or according to the rules of the mentioned arbitration institutions.

According to D. V. Kaysin, one of the significant advantages of the Washington Convention of 1965, compared to the same New York Convention of 1958, is that the arbitration (arbitration) decision under the 1965 Convention is recognized as an internal decision of the national court, and it undergoes only simple registration at the place where its execution is sought.

Both Conventions do not address the issue of jurisdictional immunities of states, which are the main mechanism for protecting the state from recognition and enforcement of foreign arbitration awards. This issue is addressed by the United Nations Convention on Jurisdictional Immunities of States and Their Property of December 2, 2004, which has not yet entered into force because it did not receive the required number of votes.

M. O. Demina noted that currently international arbitration as a form of consideration of investment disputes is subject to active criticism, including due to the imperfection of the system for appointing arbitrators, the inflated cost of arbitration, the lack of a precedent mechanism and uniformity in the practice of resolving such disputes. There is also no clear, consistent procedure for appealing decisions.

With regard to the recognition and enforcement of foreign arbitral awards under the New York Convention of 1958, in this case there is a high risk that national courts will refer to a violation of public policy or the presence of immunity of a foreign state as grounds for accepting negative decision.

In connection with the identified problems, a number of proposals have been made to reform the system of international investment arbitration. One such proposal, developed by arbitrator Gabrielle Kaufman-Kohler under the auspices of UNCITRAL, would create a permanent international investment court. The difference between this court and other institutions will lie in its status as an international court, and not an arbitration center. Another proposal comes from the European Union: in cooperation with UNCITRAL, it plans to create a supranational permanent investment court that will hear investment disputes between investors and European Union states. Part of the reason for this decision was the March 2018 decision of the Court of Justice of the European Union in the case of Slovak Republic v. Achmea B.V. (No. C-284/16). It concludes that disputes between investors arising from bilateral agreements of European states are non-arbitrable. The indicated proposals, according to the speaker, are ambiguous and require additional discussion.

Lawyer, Candidate of Legal Sciences S.V. Usos-kin identified a number of problems associated with the practical application of the grounds provided for by the New York Convention of 1958 for refusal to recognize and enforce foreign arbitration awards. One of these “love-

The basis for our Russian courts, as the speaker noted, is the public order clause, which does not have clear boundaries. In the context of violation of public policy, there is sometimes a reference to the principle of legality, which is used to review arbitration decisions on the merits of the issue. Sometimes the incorrect interpretation of a civil contract by arbitrators is also considered by the courts as a discrepancy between the arbitration (arbitration) award made by them and public policy. Such judicial practice, according to the speaker, does not stand up to criticism.

In a number of cases, there is an unjustified substitution of other grounds provided for by the Convention for resolving the issue of enforcement of a foreign arbitration award with the same public policy. This occurs, for example, in the case of a challenge by one of the parties to an arbitration (arbitration) agreement due to failure to comply with its written form (case of the Korean National Insurance Corporation V. VTB Insurance Company, No. A40-60583/2016) or failure to comply with the claim procedure before contacting arbitration (case of the company "Gruz-Logistics" V. individual entrepreneur Kulikova, No. A38-2183/2017). Such a substitution by public policy for another special ground provided for in the Convention is what this document sought to avoid. That is, initially the entire logic of the document is devoted to the fact that the range of grounds for enforcing an arbitration award or refusal to do so should be limited; a public policy clause is a means to protect the most fundamental rights and interests of the person concerned. A different approach devalues ​​the agreements reached between states, which they reached within the framework of the New York Convention of 1958.

As the speaker emphasized, the correct application of the Convention by national courts will ensure Russia's continued compliance with its international obligations, and will also guarantee certainty and predictability in the issue of enforcement of foreign arbitration awards between parties to international commercial disputes.

Senior lawyer of the firm “Kulkov, Kolotilov and Partners” I. Martvel, giving a detailed analysis of statistical data of judicial practice in her report, concluded that Russian courts increasingly began to refuse recognition and enforcement of foreign arbitration awards, and very “ a convenient basis for this is the public policy clause. In connection with this, the speaker noted two points: the first is a deliberately broad interpretation of the category “public order”, which colleagues have already discussed, and

the absence of its clear definition; the second is the failure to provide in judicial acts the reasons for the decision made, why, under the given circumstances, the court referred to public policy.

When considering cases on the recognition and enforcement of foreign arbitration (arbitration) awards, any irremovable doubts about the legal position should be interpreted in favor of the legitimacy of the arbitration (arbitration) proceedings and the decision made as a result.

The emerging judicial practice in cases of recognition and enforcement of foreign arbitration awards has negative consequences: in the practice of foreign courts (in particular, in the UK), the use of 100% security for the defendant’s expenses is encountered if the plaintiff is located in Russia. Thus, the difficulty of enforcing foreign arbitration awards on the territory of the Russian Federation is recognized. However, it does not have to be this way: to a certain extent, it is a loss of image within the international community that is worth keeping an eye on.

Associate Professor of the Department of Civil Law and Procedure and International Private Law of the Peoples' Friendship University of Russia, Candidate of Legal Sciences E. V. Sitkareva, outlined the problem of enforcing a foreign arbitration award against a bankrupt debtor. Consideration by the court of the corresponding application of the creditor outside the framework of the bankruptcy case, in the opinion of the speaker, can lead to the unreasonable satisfaction of the claims of one creditor at the expense of the debtor's bankruptcy estate to the detriment of the rights and legitimate interests of other creditors.

Junior lawyer of the law firm “Egorov, Putinsky, Afanasiev and Partners” M.V. Bezruchenkov dwelled on the practice of applying the New York Convention of 1958 by Russian courts and noted a number of difficulties they face. In particular, courts sometimes do not distinguish between the concepts of “foreign judgment” and “foreign arbitration award”, applying the Convention to these two law enforcement acts that are different in nature. Meanwhile, as is known, today there is no universal international document on the basis of which it would be possible to recognize and enforce decisions of foreign judicial bodies. Nevertheless, the Russian Themis believes that such a document is the New York Convention of 1958. The saddest thing is that this position is held not only by the courts of first instance, but also by higher courts, which leave this error without due attention. This problem, as the speaker noted, is not only a problem for the court, but also for the participants in the proceedings, who in a number of cases refer to the Convention when it comes to recognizing the judicial

decisions of a foreign state, and not a foreign arbitration award. To a certain extent, this is due to the imperfection of legislative technology, since in the Arbitration Procedural Code of the Russian Federation, provisions on the recognition and enforcement of decisions of foreign courts and foreign arbitration (arbitration) awards are enshrined in one chapter.

The speaker also drew attention to another problem - the refusal of Russian courts to enforce foreign arbitration (arbitration) awards on the grounds of improper notification of the party about the arbitration proceedings without taking into account the provisions of the Convention, which allow, in particular, notification methods such as sending correspondence by courier service, when via fax or email correspondence.

K. S. Stepanova, a teacher at the Department of International Private and Civil Law of the Moscow State Institute of International Relations (University) of the Russian Ministry of Foreign Affairs, focused on the problem of recognition and enforcement of foreign arbitration decisions made in disputes with multiple participants. The speaker noted that the party against whom the arbitration award was made in such a dispute may object to its execution, citing the New York Convention of 1958. As a rule, the losing party refers to: 1) the absence of an arbitration award; an agreement that would bind all participants in the proceedings; 2) the fact that the arbitration (arbitration) award contains conclusions on issues that go beyond the scope of the arbitration (arbitration) agreement, by virtue of which the proceedings were conducted between the parties to the dispute; 3) the fact that the composition of the arbitration tribunal (arbitration tribunal) or the arbitration procedure did not comply with the agreement of the parties; 4) violation of public order.

In conclusion, the speaker drew attention to the initiative of the Singapore International Arbitration Center, the essence of which boils down to the creation of such a procedural mechanism as inter-institutional consolidation of cases.

Specialist of the Research Center for Private Law named after. S. S. Alekseev under the President of the Russian Federation A. V. Shagalov raised the issue of forced execution of foreign arbitration (arbitration) awards against non-signatories, i.e. parties who did not actually sign the arbitration (arbitration) agreement. On this issue, in particular, it is noted: the written form of the arbitration (arbitration) agreement can be considered complied with, even if the parties did not actually sign such an agreement. In the comments to Art. II of the New York Convention of 1958 indicates the possibility of concluding an arbitration clause through

thereby agreeing with all the terms of the contract by conclusive actions. If an arbitration (arbitration) clause was included in the proposed version of the contract, it is considered that the counterparty agreed to it (in the absence of objections on his part).

Participation of an interested party in arbitration proceedings without objections regarding the competence of the arbitrators presupposes his agreement with this form of protection of rights. In addition, signing the so-called terms of reference is equivalent to concluding a written agreement to submit a dispute to arbitration (arbitration court).

The speaker also drew attention to the problem of fulfilling the formal requirement of subsection. "b" clause 1 art. IV of the Convention, which consists in the obligation of the party to submit the arbitration (arbitration) agreement or its duly certified copy in order to demand enforcement of the arbitration (arbitration) award.

Lecturer at the Department of Legal Modeling at the University. O. E. Kutafina (MSAL), Candidate of Legal Sciences O. F. Zasemkova analyzed the draft Hague Convention on the Recognition and Enforcement of Foreign Judgments (“Judge Project”) (hereinafter referred to as the draft Hague Convention), pointing out, in particular, that the issues related to the regulation of the procedure for recognizing and enforcing a foreign judgment still remains at the discretion of the national legislator. At the same time, the draft Hague Convention provides for separate requirements regarding: 1) documents that must be submitted by the interested party; 2) indirect jurisdiction; 3) exclusive jurisdiction; 4) grounds for refusal to recognize and enforce a foreign court decision.

The speaker paid special attention to the prospects for the adoption of the Hague Convention (“Judicial Project”) and its significance for international cooperation in the field of civil procedure.

Advisor to the law firm "White&Case" P. Bulatov, in continuation of the analysis of the draft Hague Convention, touched upon the issue of ratification and implementation of this document in relation to the Russian legal system. The speaker analyzed the following reservations that the draft Hague Convention allows upon its ratification: 1) on non-execution of court decisions common to several states; 2) on the inadmissibility of a requirement to secure legal costs against a person seeking recognition of a foreign court decision on the grounds that he is a foreigner; 3) on the exclusion from the scope of recognition of court decisions in cases in which the location of the parties and all elements of the disputed legal

relations, other than the location of the court, relate to the state where recognition is sought; 4) reservations in relation to certain categories of cases; 5) on limiting the recognition and enforcement of court decisions in disputes involving a foreign government; 6) on the priority of other international agreements.

According to the speaker, if a decision is made on the Russian Federation’s accession to the Hague Convention, the issue of accepting reservations in relation to the cases described above under numbers 3, 5 and 6 should be discussed.

Lawyer of the law firm “Khrenov and Partners” A. A. Kostin considered the issue of the relationship between the concepts of recognition of foreign court decisions and their execution. Based on an analysis of the current Russian procedural legislation, the speaker came to the conclusion that it is necessary to further improve it: to retain in it exclusively the term “recognition” of a foreign court decision,” which should be correlated with endowing it with the properties of exclusivity and prejudicial force (regardless of whether the foreign court decision requires forced execution or not).

Head of the Department of Civil Law and Process of the Siberian Institute of Management (branch of the Russian Academy of National Economy and Public Administration under the President of the Russian Federation), Candidate of Legal Sciences E. P. Voitovich, presented the results of a comparative legal study of the procedure for recognition and enforcement of foreign court decisions in the Russian Federation and China People's Republic. Despite the requirement formulated in the legislation about the need for a special international treaty of the Russian Federation for the recognition and enforcement of foreign court decisions, Russian judicial practice in recent years has formed an essentially different basis for the exequatur of such decisions based on the categories of “international comity”, “reciprocity” and references to international agreements of a general nature. Although there is no unity in the application of these grounds, a similar situation is observed in the practice of the courts of the PRC.

Associate Professor of the Department of International Public and Private Law of the National Research University Higher School of Economics, Candidate of Legal Sciences E. V. Mokhova touched upon the topic of recognition and enforcement of foreign court decisions in bankruptcy cases in the light of UNCITRAL’s work on preparing a new model law on this issue. The speaker drew special attention to the extensive list of grounds for refusal to recognize and enforce these judicial acts, among which, in particular, are: the decision’s contradiction to public order, its

gain as a result of deception, failure to comply with the standards of judicial procedure. It is also noted that when preparing the model law, special attention was paid to the mechanism for verifying the competence of a foreign court, as well as the issue of providing creditors of the debtor with adequate protection of their rights.

In conclusion, the speaker pointed out the advisability of the Russian legislator taking into account the work of UNCITRAL in order to develop adequate tools for the possible formulation of

introduction of other grounds for refusal to recognize and enforce foreign court decisions, which are not identical to public order, but by their legal nature are aimed at protecting public interests.

The work of the round table was a valuable contribution to the discussion of current issues of recognition and enforcement of foreign arbitration awards and foreign court decisions.