Working Group on amicus curiae review

The aim of this Working Group is to systematize court practice and monitor the Supreme Court decisions related to arbitration.

Coordinator of the Working group:

Marina Zenkova, Associate, White & Case

Oleg Todua, Associate, White & Case

Sergey Lysov, Senior Associate, Kulkov, Kolotilov and Partners 



Group members:

Alan Nadirov, Paralegal, Mannheimer Swartling

Alena Tihonova, Partner, MNP Avocats

Alexandra Gerasimova, Head of practice, FBK Legal

Andrea Barzon, Magister Juris, Università degli Studi di Padova

Anna Grishchenkova, Partner, KIAP

Anna Kozmenko, Partner, Schellenberg Wittmer

Anton Maltsev, Partner, Baker McKenzie

Elena Fedorova, Attorney at law, Bonifassi Avocats

Natalia Kislyakova, Associate, KIAP

Roman Zykov, Secretary General, RAA

Sergey Usoskin, Attorney at law, Double Bridge Law

 

3. 18 may 2017 in the case №A60-12039/2016 LTD "Digital Service" against LLC "EKATERINBURG-2000".

Letter from the Arbitration Association reviewing the practice of foreign courts on the existence of an arbitration agreement in a situation where each of the parties to the dispute has separately joined a particular Association and has agreed that disputes arising between it and other members of the Association in respect of certain transactions shall be subject to arbitration (Amicus Curiae).

The letter was prepared by the Working group of the Arbitration Association on the monitoring court practice in the following composition:

Sergey Usoskin - head of the group

Yana Avdeeva, judge of the commercial court of Tyumen region

Anton Alifanov, attorney

Zenkova Marina, profession, HSE

Roman Zykov, secretary general, Arbitration Association 

Kurbanova Asiyat, Associate Professor, State University of management

Morozov Sergey, associate, BEITEN BURKHARDT

Oleg Todua, counsel, White & Case

Alexandra Shmarko, associate, Baker McKenzie

 

4. 29 June 2017 in case №A56-13914/2016 of LTD "Redius-T" against OOO "GSE crass".

Letter from the Arbitration Association with an overview of the legislation and practice of foreign courts on the relationship of the right to judicial protection, in the absence of the plaintiff's funds to pay the arbitration fee (arbitration costs), and the principle of freedom and binding contract (Amicus Curiae).

Thus, the non-payment of the arbitration fee (arbitration costs) does not entail the invalidity or unenforceability of the arbitration agreement in most of the studied legal orders, among which England and Sweden are analyzed as examples, the presence of which, as a General rule, prevents the party from filing a claim with the state court. In a small number of countries, which include Germany, the United States and Finland, there is a legal position, according to which, the inability of the claimant to pay the arbitration fee, and as a consequence, the refusal of the arbitral Tribunal to resolve the dispute, may open the possibility for the party to refer the dispute to the state court. The courts of this group of countries, allowing the possibility of appeal to the state court in the presence of a valid arbitration agreement between the parties, a) establish a high standard of proof of insolvency of the plaintiff as objectively existing circumstances; b) insolvency is often due to the bankruptcy of a legal entity or the lack of permanent income of a nature person; C) in some countries, such a right is allowed only if the plaintiff is a natural person, that is, a weaker party to the contract.

The letter was prepared by the Working group of the Arbitration Association on the monitoring court practice in the following composition:

Roman Zykov -  head of the group

Yana Avdeeva, judge of the commercial court of Tyumen region

Anton Alifanov, attorney

Anna Grishchenkova, partner, KIAP

Kurbatova Asiyat, Associate Professor, State University of management

 

5. July 24, 2017 in the case № A40-188599/2014 ACS "OZZ" against ACS "FSK UES"

Letter from the Arbitration Association with an overview of the legislation and practice of foreign courts on the issue of arbitrability of disputes involving public entities, as well as disputes possibly related to the indirect use of budgetary funds (Amicus Curiae). 

According to the review the practice of most countries does not recognize non-arbitrable contractual disputes to which the public entity is a party. As far as we know, based on the analysis of legislation and practice, none of the states under consideration recognizes non-arbitrable contractual disputes that are indirectly related to the use of budgetary funds. The best-known example of a state limiting the arbitrability of disputes involving a public entity is France. However, in France, as a rule, only disputes involving public entities and institutions, as well as those related to public order, which is expressly established by the Civil code, may not be submitted to internal arbitration. In the case of international commercial arbitration, the European Convention on international commercial arbitration should be taken into account, if applicable.

The letter was prepared by the Working group of the Arbitration Association on the monitoring court practice in the following composition:

Usoskin Sergey - head of the group

Roman Zykov, secretary general, Arbitration Association 

Anton Alifanov, attorney

Zenkova Marina, profession, HSE

Roman Zykov, secretary general, Arbitration Association 

Morozov Sergey, associate, BEITEN BURKHARDT

Oleg Todua, counsel, White & Case

 

6. December 18, 2017 in the case №A64-906/2017 PJSC "Sberbank of Russia" against the Committee for property management of Tambov region

Letter Arbitration Association with the review of legislation and judicial practice of a number of foreign , connected with the succession to the arbitration clause in the case of succession in respect of the substantive obligation in a Treaty, and the force of law (Amicus Curiae).

The analysis shows that in most countries (Germany, France and Switzerland) the transfer of substantive rights and obligations under the contract, regardless of the basis, entails the transfer of rights and obligations under the arbitration clause, if it is not related to the identity of the original party. This is due to the fact that the arbitration clause is considered as an accessory of the principal obligation, and also the fact that the change of the parties to the obligation should not change their position, including due process. In English law, the situation is less clear. From a commercial point of view this can be explained by the fact that, with respect to the collateral is extremely unlikely, the situation of the sale of the property without obtaining the consent of the mortgagee: any questions related to the dispute resolution procedure with a new mortgagor may be allowed at this stage. However, in the absence of a direct assignment of rights under the contract, the "contractual link" principle creates the possibility that the new owner will not be bound by an arbitration clause in the pledge contract.

The letter was prepared by the Working group of the Arbitration Association on the monitoring court practice in the following composition:

 Usoskin Sergey - head of the group

Sergey Lysov, senior associate, KK&P

Oleg Todua, counsel, White & Case

Chilikova Alexandra, associate, KK&P

 

7. May 15, 2018 in the case of № 301-ЭС17-20169, LLC "Cargo-logistics" against Kulikova

Letter from the Arbitration Association reviewing the jurisprudence of a number of foreign states on the consequences of non-compliance with the pre-arbitration procedures provided for by the agreement of the parties, as well as the distribution of roles between state courts and arbitrators in assessing whether the relevant procedures have been followed and what are the consequences of non-compliance.

This review shows that the courts of different countries have different approaches to these issues. Thus, the English and Swiss courts recognize that compliance with mandatory pre-arbitration procedures may be a condition for the arbitrators to have jurisdiction to consider the dispute, and their consideration of the dispute in a situation where such procedures have not been complied with may be grounds for cancellation of the arbitral award. On the contrary, the courts of Germany and the United States believe that the compliance with such procedures is not a question of competence (as the parties agreed for settlement of the dispute by the arbitrators), and the question of the validity (admissibility) of the stated requirements and, therefore, should be decided by the arbitrators. The courts should not, as a General rule, overestimate the arbitrators ' assessment of the factual circumstances and their conclusions on the consequences of non-compliance with pre-arbitration procedures. At the same time, the Swiss courts, while recognizing that compliance with pre-arbitration procedures is mandatory, concluded that the consequence of non-compliance should be only the suspension, not the termination of the proceedings. The courts of England and Wales and Switzerland indicated that the defendant could not invoke non-compliance with pre-arbitration procedures if it had in bad faith prevented them from being conducted. 

The letter was prepared by the Working group of the Arbitration Association on the monitoring court practice in the following composition:

Usoskin Sergey - head of group 

Sergey Lysov, senior associate, KK&P

Oleg Todua, counsel, White & Case

Chilikova Alexandra, associate, KK&P

 

8. June 13, 2018 in the case of №305-ЭС18-476 JSC "Grindeks" against JSC "Pharmstandard"

Letter from the Arbitration Association with an overview of the judicial practice of a number of foreign states judicial practice of individual States on the enforcement of international arbitration decisions against the property of foreign defendants.

The above review shows that in most countries the legislation and/or judicial practice allow the recognition and enforcement of decisions of international commercial arbitration at the location of the property of the foreign defendant, it is not required that the plaintiff had previously tried to execute the decision in the state of location of the defendant. The practice and doctrine of these countries note that this approach is consistent with the Convention on the recognition and enforcement of foreign arbitral awards (the new York Convention), which does not make the enforcement of a foreign arbitral award dependent on the place of registration of the person against whom the award is enforced. The only exception is the United States, where in individual cases the courts refused to hear applications for enforcement against a foreign defendant citing the forum non conventions doctrine. However, in the United States, the practice on this issue is inconsistent, and in recent decisions American courts have recognized their competence to consider such statements, denying the application of this doctrine

The letter was prepared by the Working group of the Arbitration Association on the monitoring of judicial practice in the following composition:

Usoskin Sergey - head of group

Baymukhametov Renat, attorney, arbiter CIETAC, FCIArb

Zenkova Marina, profession, HSE

Roman Zykov, secretary general, Arbitration Association 

Sergey Lysov, senior associate, KK&P

Oleg Todua, counsel, White & Case

Chilikova Alexandra, associate, KK&P

 

9. 3 July 2018 in case №A-40-165680/2016 of Mosinzhproekt JSC against Mosteplosetstroy JSC"

Letter from the Arbitration Association with a review of the jurisprudence of a number of foreign countries on the possibility of arbitration (arbitration) of disputes arising from contracts concluded under the procedure provided for by the legislation of Russia for purchases made by companies with state participation, as well as a number of other entities (Federal law No. 223-FZ).

This review shows that in all jurisdiction disputes involving companies with state participation are arbitrable. Most noteworthy is the case law of Brazil, where the Supreme court has repeatedly explicitly affirmed the arbitrability of the relevant disputes, pointing out that only the legislator can recognize them as non-arbitrable. In 2015, the Brazilian legislation was amended, which confirmed the arbitrability of disputes, including with the participation of state bodies and state companies. The only jurisdiction in which the arbitrability of disputes involving public actors is limited is France, but in France the relevant limitation is established by law.

The letter was prepared by the Working group of the Arbitration Association on the monitoring of judicial practice in the following composition:

Sergey Usoskin - head of group

Renat Baymukhametov, attorney, arbiter CIETAC, FCIArb

Marina Zenkova, profession, HSE

Oleg Todua, counsel, White & Case