On December 8, 2017, there was held IX Annual Conference of the American Bar Association "The Resolution of CIS-Related Business Disputes" in the hotel Marriott New Arbat in Moscow. The conference was organized by the ABA Committee on International Law and the Arbitration Association.
The plenary session of the Conference was devoted to the topic "Navigating business disputes between Russian and US-EU companies in an era of heightened tensions".
The speakers were Alexis Rodzianko, President of American Chamber of Commerce in Russia.
Alexander Zamaziy, Chief of Staff, Arbitration Centre RSPP, Rusia.
Daniel Russell, President and CEO, U.S.-Russia Business Council, USA.
Fredrik Ringquist, Partner, Mannheimer Swartling, Russia.
Peter Pettibone, Pettibone International ADR LLC, USA.
Alexis Rodzianko commented that despite the sanctions and ambiguous political relations between the countries the influx of new investors is quite large.
Alexander Zamaziy also stressed out that the instability in legal regulation creates an obstacle for the new investors, that the investors want to see compliance with international law and transparency of the system.
Daniel Russell commented that the instability creates its advantages for the foreign investors, that currency rates now create more favorable conditions for investment, including for hedge-funds.
Fredrik Ringquist commented that the sanctions negatively affect the overall state of the economy, however, many investors are focused on long-term relations with Russia, that Russia is a very large market with different opportunities.
Peter Pettibone commented that the American administration is aimed at changing the relations with Russia. The anti-Russian actions taken are directed rather at the domestic consumer and are the political battles. He underlined that there are opinions that the United States wants to have responsible and productive relations in Russia.
Alexis Rodzianko stressed out that the resolution of disputes in connection with the new concept of arbitration courts in Russia requires a special approach that all efforts will be conducted on the productive settlement of disputes between the companies.
Further, the Conference continued in the parallel sessions, which were held in the formats of round tables.
The first round table was devoted to "Jurisdictional forum shopping in cases involving Russian/CIS parties: Winning the tug of war between your court and mine" and covered the key issues of the possibility of dealing with the specific arbitration, as well as the related characteristics of the processes, the pros and cons of choosing an arbitration institution, potential problems and some future trends in the use of such a mechanism by the parties in the dispute. The speakers of the session were Anna Tumpovskiy, Partner, Tumpovskiy Law Group, P.A., USA, Dmitry Lysenko, Senior Associate, Baker & McKenzie, Russia, and Richard Happ, Partner, Luther Rechtsanwaltsgesellschaft mbH, Germany.
The second session was in the format of round table, the topic of the session was "The interim relief provisions in the new Russian arbitration law: How are they working, and what’s different from the interim relief available in other jurisdictions?"
The first speaker was Alexey Yadykin, Senior Associate, Freshfields Bruckhaus Deringer, Russia. Alexey commented that after the reform of the arbitration courts in Russia the possibility of using interim relief provisions was extended, however, interim relief provisions in the form of orders of foreign arbitration courts are not recognized in the Russian Federation. Alexey stressed that the interim relief provisions require strong motivation for the court and often require an emergency situation to make the court a positive decision.
The second speaker was Ed Crosse, Partner, Simmons & Simmons, England. Ed said that UK law has an interim relief provision that allows the freezing of assets around the world, this interim relief provision affects banks, which can freeze accounts and assets. Ed said that a very wide list of assets can be frozen: assets owned by the defendant, assets in which the defendant has interests, assets that the defendant has control in, assets owned by a third party in the case, also assets outside the country, etc. Ed also outlined other possible interim relief provisions, including those on interim measures such as "fishing for evidence", where the court may permit the search of evidence in the home of the defendant, and the defendant may be obliged to provide the necessary Documents.
The third speaker was Steven Richman, Resident Member, Clark Hill, USA, he spoke about the position of the courts of the United States of America. Stephen gave a comment on mid-term interim relief provisionss that U.S. courts are inclined to recognize foreign interim measures (Medellin v. Texas). However, Stephen also commented that on such measures as the prohibition of a lawsuit there is no certain position, the U.S. court has the power to restrain the claim within the country and also in other countries, where it has jurisdiction under the agreement, it can also deter this legal entity from filing a lawsuit in foreign jurisdictions.
Each speaker highlighted the features of the systems and what security measures could be applied.
The third roundtable was devoted to recommendations for foreign parties in the russian courts
The participants of the roundtable shared their views on the specifics of the Russian judicial process and practical experience in the russian courts. Participants of the round table from other countries have told about the specifics of court proceedings in their countries, particularly in Germany, Sweden and the USA.
Fedor Vyacheslavov, Partner, V Lawyers, Russia, pointed at the positive tendencies in the judicial process in Russia and its advantages in comparison with the litigations in other jurisdictions (including short terms of cases, cheap fees, availability of convenient electronic system, etc.).
Anna Grischenkova, Partner, KIAP, Russia, noted the specifics of case-handling in the regional courts, emphasizing that, in her opinion, it is somewhat easier to interact with the judges in the regions and judges can pay more attention to each case, in comparison to the judges in Moscow or St. Petersburg.
The fourth roundtable of the conference was devoted to the very important topic of investor-state arbitrations involving Russian/CIS investors and states. The speakers raised the most important questions concerning the scope of settlement of investment disputes taking into account the aspects which are characterized by the participation of investors from Russia and CIS countries.
The speakers of the round table were Dmitry Dyakin, Partner, Egorov Puginsky Afanasiev & Partners, Russia, and Alexey Dudko, Partner, Hogan Lovells, Russia.
The fifth roundtable was called "Prove it: Effective strategies for collecting evidence in cross-border disputes".
The first speaker was Thomas Sullivan, Attorney, Mars & Sokolov, USA. Thomas told that it is necessary to know the law of which country that is used in the collection of evidence, that often the legislation of the country may have a proscription on those or other methods of collecting evidence, that it is important to understand which methods a lawyer can use and which not.
The second speaker was Sergey Morozov, Associate, BEITEN BURKHARDT, Russia. Sergey described in detail the difference of legal systems: The common law system and the system of continental law, and the difference in the collection of the evidence.
The thirs speaker was Alex Volcic, Kroll International, Russia, Alex shared his own experience and experience of the company in conducting investigations in foreign economic disputes.
Alex also spoke about the experience of using high technologies and limitations in this sphere.
The sixth round table raised the problems of resolving shareholder disputes and strategic considerations for counsel and clients under the new Russian arbitration law.
The speakers of this table were Dominic Pellew, Partner, Dentons, Engalnd, Johan Sidklev, Partner, Roschier, Sweden and Roman Zykov, Partner, Mansors, Russia.
Participants of the roundtable discussed the problem of arbitrability of corporate disputes in Russia and determination of validity and execution of arbitration agreements concerning corporate disputes, which were concluded before the adoption of the Federal Law on Amendments to the Arbitration Procedure Code of the Russian Federation (i.e. until December 29, 2015) or until the entry of this law into force (i.e. until September 1, 2016).
The participants of the roundtable also expressed their opinion on the problem of the validity of "mixed" arbitration agreements concerning disputes arising not only from corporate, but also from the other legal relations of the parties.
Roman Zykov told the participants of the conference about the necessity of accreditation of the Arbitration Institute in Russia for consideration of some categories of corporate disputes.
The participants of the roundtable noted the importance of dividing the monetary requirements and requirements concerning the ownership of the shares in the company located in Russia, in order to take into account the applicability of the restrictions established by the Russian legislation, сoncerning arbitrability of corporate disputes.
The seventh round table made the following agenda: "Enforcement of Russian arbitral awards and judgments abroad: Dissecting the lessons of Maximov v. OJSC NLMK (with stops in Moscow, London, Paris and Amsterdam) and other recent cases".
The participants of the roundtable discussed the peculiarities of the mechanism of recognition and enforcement of Foreign Arbitral Awards in the framework of the legal system of France, Holland and England both in general and in relation to the mentioned case. The particular attention was paid to the difficulties associated with the previous abolition of this decision by the Russian state court, the attitude to this factor by the courts of the named States, as well as to other aspects taken into account by foreign Courts in dealing with such matters. The speakers of the roundtable were Sergey Usoskin, Attorney, Double Bridge Law, Russia, Ivan Urzhumov, Foley Hoag, France, and Maria Gritsenko, Counsel, Bryan Cave, England.
The eighth round table was devoted to the topic "A landmark year for Russian jurisprudence: Lessons from the Transneft v. Sberbank, Tizpribor v. Vympelcom, and Rosneft v. Systema cases".
The first speaker was Anastasia Astashkevich, Partner, Astashkevich & Partners, Russia. Anastasia shared her legal position on the Tizpribor v. Vympelcom
The second speaker was Timur Aitkulov, Partner, Clifford Chance CIS Ltd, Russia. Timur commented on the judicial dispute of Transneft v. Sberbank, in this case there is analyzed the issue of bad faith, violations of public interests.
The third speaker was Maxim Stepanchuk, Partner, Delcredere, Russia. Maxim represents one of the parties to the Rosneft v. Systema, and he told that the dispute is now under consideration. An important aspect that he covered was the occurrence of loss in the repayment of the treasury shares.
The ninth round table covered the topic: "The intersection of criminal proceedings and cross-border business disputes: Effective tool for justice or abuse of process?"
The speakers of this roundtable were Anna Zeitlinger, Partner, Lansky Ganzger + partner, Austria, Vladimir Melnikov, Partner, Linklaters, Russia and Alexander Zabeyda, Partner, Zabeyda & partners, Russia.
The participants of the roundtable discussed the possibility of using the criminal prosecution tool to influence the opponent in the foreign economic dispute, as well as the admissibility of such actions from the point of the professional ethics.
Anna Zeitlinger described the fairly positive practice of referring to the criminal prosecution tool in Europe to counteract unfair counterparties, emphasizing that the abuses in this area rarely occur due to hard ethical standards for the work of lawyers and attorneys.
Vladimir Melnikov expressed quite critically on the effectiveness of law enforcement agencies in Russia and pointed to the nuances of the criminal process in Russia, which must be taken into account before the applying to the law enforcement agencies
The participants of the roundtable also discussed the potential risks of criminal prosecution of lawyers and possible strategies to minimize them.
The theme of the tenth roundtable was the problem of enhancing efficiency while retaining quality in international arbitral proceedings.
The participants of this session considered the most significant problems of the resources for litigation in arbitration, and suggested some general and private ways to maximize the control over the time and costs of arbitration procedures in obligatory observance of the condition on preservation of their efficiency on the example of functioning, in particular, arbitration institutions at ICC and ICDR. Miroslava Schierholz, Director, ICDR/AAA, USA, Ilya Nikiforov, Managing Partner, Egorov Puginsky Afanasiev & Partners, Russia, and Peter Wolrich, Partner, Curtis, Mallet-Prevost, Colt & Mosle LLP, France, shared their experiences and ideas as the speakers of the session.
The Eleventh round table was devoted to the topic "Property of the state: Enforcement of judgments and arbitral awards against states and state-owned entities."
The first speaker was Maxim Kulkov, Managing Partner, Kulkov, Kolotilov and Partners, Russia. Maxim participates in the dispute Tatneft v. Ukraine. He discussed the question of judicial immunity and how it was considered by the courts in the dispute, Maxim also considered the issue of execution of court decisions in the territory of a foreign state.
The second speaker was Gene Burd, Partner, Arnall Golden Gregory LLP, USA. Gene also commented on the case Tatneft v. Ukraine in the part of the execution of the court decision in the United States.
The third speaker was Olena Perepelynska, Partner, Head of CIS Arbitration Practice of INTEGRITES, Ukraine. Olena commented on the question of whom to consider as the appropriate defendant in disputes with a state, gave an example of the practice of arrest of the property of Ukraine.
The fourth speaker was Ramūnas Audzevičius, Partner, Motieka & Audzevičius, Lithuania. Ramunas gave a commentary on the question of investment arbitration in Europe, highlighted the positions of the European Commission on intervention in cases on lawsuits against the members of the European Union, and the interference in the payment of claims against members of the European Union.
The twelfth round table covered the problems of multi-jurisdictional restructuring and bankruptcy disputes with a Russian/CIS connection.
The speakers in this session were Andrey Zelenin, Managing Partner, Lidings, Russia, Pamela Egan, Partner, Rimon, USA, and Sergey Petrachkov, Partner, Alrud, Russia.
The participants of the roundtable shared their experience of participation in cross-border bankruptcy procedures and discussed problems related to the execution of foreign judgments in Russia and the execution of Russian court decisions abroad due to the absence of necessary international agreements.
The participants of the roundtable noted that Russian courts should adhere to a soft interpretation of the principle of reciprocity, which is a formal basis for recognition and enforcement of foreign judicial decisions in Russia, thereby increasing effectiveness of cross-border bankruptcy procedures.
Rustem Miftahutdinov, Associate professor of the Department of Business and Corporate law of MSAL told his colleagues about the latest trends in judicial practice in the field of bankruptcy, noting the positive trends in the number of court decisions on bringing in to subsidiary responsibility of the beneficiary companies. At the same time, Rustem stressed out that the search for beneficiaries remains a very urgent problem.
The final plenary session was devoted to the theme "Cross examination styles and techniques."
The master Class was led by Will Phillips, Partner, Covington & Burling LLP, USA, Anna Kozmenko, Senior Associate, Schellenberg Wittmer, Switzerland, and Julia Zagonek, Partner, White & Case LLC, Russia.
At the master class the participants learned the features of cross-examination in Switzerland from Anna Kozmenko, the peculiarities of cross-examination in the USA from William Phillips, and also the features of cross-examination in the UK from Julia Zagorek.
The participants of the session shared their personal experience in this field, told about the possible problems and difficulties in building such interrogation and paid attention to the most important tactical aspects, which are extremely important for practicing lawyers in the sphere of Dispute resolution.
The conference ended with a reception where participants could communicate in an informal atmosphere and share their impressions.