( U=341.63 )

РУБ DOI: 10.33327/AJEE-18-5.4-n000437

Аннотация: Background: One of the most important features of international commercial arbitration is the autonomy of the will of the parties to a foreign economic dispute. Such autonomy consists of the possibility of independence to resolve issues of a dispute between the parties to such a contract and those issues that already arise during arbitration proceedings. One of the most significant issues that are the subject of autonomy of the will is the choice of the rules of procedural law. In this note, we studied the procedural rules governing the activities of international commercial arbitration, which influence the course of arbitration proceedings, since the arbitral tribunal usually refers to them when determining the number of key issues, starting with questions about whether to refer the dispute to arbitration or not, whether to determine interim measures and also with respect to the arbitral award itself. Methods: This study was based on an analysis of Ukraine’s national law and some doctrine; examples of implementation of the New York convention were analysed. Results and Conclusions: Although the parties’ freedom of choice is a generally accepted principle of international commercial arbitration, it can usually be limited by the imperative norms and public order of a particular country. The trend of moving the international arbitration practice away from using lex loci arbitri was underlined. This trend reflects the avonomy of the parties and can also be considered a significant challenge of lex loci arbitri.

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Surzhenko, O. .
Annulment of an international commercial arbitration award: The Ukrainian experience [Текст] / O. Surzhenko, L. Baranova, O. Zinchenko, Z. Chevichalova // Access to Justice in Eastern Europe. - 2023. - Vol. 6 [у Web of Science не зазначено], Iss. 2. - P. 220-231. - References : p. 231
Перевод заглавия: Скасування рішення міжнародного комерційного арбітражу: український досвід

УДК

РУБ DOI: 10.33327/AJEE-18-6.2-a000121

Аннотация: Background: The development of foreign economic relations between business entities is the key to a stable economy of each country as a whole. During the implementation of these relations, the emergence of disputes and the procedure for their resolution is one of the main prerequisites for giving preference to alternative dispute resolution, namely international commercial arbitration. Despite the existence of unified rules and standards for the recognition and enforcement of international commercial arbitration awards, which are enshrined in the New York Convention of 1958, many issues arise in the doctrine of international civil procedure and law enforcement practice. These issues are the result of an inconsistent approach to arbitration in the national legislation of the member states of the New York Convention of 1958. Methods: The article will consider the distinction in the definitive approach of ‘challenging’ and ‘annulment’ the decision of international commercial arbitration through the prism of comparative legal regulation and evaluation of the results of both the domestic doctrine of arbitration and foreign scientific schools. In addition, during the analysis of the numerical judicial practice of national courts, the problematic issues of the procedural procedure for annulment of decisions of international commercial arbitration and the grounds for their annulment are considered. Results and Conclusions: Among the results, some gaps and contradictions were discovered, in particular, the ideas of ‘challenging’ and ‘appealing’ such awards. These procedures differ in that within the framework of the procedure for challenging the decision of international commercial arbitration, and the state court has no right to review such a decision on the merits.

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Kravtsov, S. .
The definitive device of the term “international commercial arbitration” [Текст] / S. Kravtsov // Juridical Tribune. - 2022. - Vol. 12, Iss. 3. - P. 346-367
Перевод заглавия: Остаточне тлумачення терміну “міжнародний комерційний арбітраж”

УДК

РУБ DOI: 10.24818/TBJ/2022/12/3.03

Аннотация: Objectives are to reveal the essence of the institution of international commercial arbitration. Methods comprise the comparative analysis of scientific approaches of various legal systems of the world, judicial practice of both national courts and the European Court of Human Rights. Results and implications. As a result of this study the term “international commercial arbitration” was indicate from both side-of a general theoretical nature and in the law enforcement activities of national courts; the efforts of bringing the arbitration laws to the “unified rules of arbitration” was confirmed as a best way of their reform.

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Kravtsov, S. .
The validity, effectiveness, and enforceability of an arbitration agreement: Issues and solutions [Текст] / S. Kravtsov, O. Surzhenko, N. Golubeva // Access to Justice in Eastern Europe. - 2021. - Vol. 4, Iss. 4. - P. 116-130
Перевод заглавия: Чинність, ефективність та можливість виконання арбітражної угоди: проблеми та рішення

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РУБ DOI: 10.33327/AJEE-18-4.4-n000088

Аннотация: The main reason for dispute in international commercial arbitration is the existence of an arbitration agreement concluded between the parties to a foreign trade agreement. The procedure of dispute resolution in international commercial arbitration will depend on the extent to which this arbitration agreement is concluded correctly in accordance with the norms of international and national law. Quite often, in the law enforcement activities of both national courts and arbitrations, there are questions about the validity, effectiveness, and enforceability of an arbitration agreement. In different countries, this issue is addressed ambiguously. In one case, national law takes precedence, and, accordingly, national courts are empowered to consider the validity, effectiveness, and enforceability of an arbitration agreement. In other cases, however, the autonomy of the arbitration agreement is a priority aspect of the consideration of any procedural issues by international commercial arbitration as the only and indisputable body authorised by the parties to the foreign trade agreement to consider a particular dispute. The article analyses doctrinal and legislative approaches to this issue, in which the authors come to the logical conclusion that national courts do not consider the validity, effectiveness, and enforceability of an arbitration agreement.

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Malinovska, I. .
“Public Order” as Grounds for Refusal in the Recognition and Enforcement of a Decision in International Commercial Arbitration: Ukrainian Realities and International Experience [Текст] / I. Malinovska, N. Yarkina, O. Filiuk // Access to Justice in Eastern Europe. - 2022. - Vol. 5 [не зазначено у Web of Science], Iss. 1 (13). - P. 154-164
Перевод заглавия: "Громадський порядок" як підстава для відмови у визнанні та виконання рішення у Міжнародному комерційному арбітражі: українські реалії та міжнародний досвід

УДК

РУБ DOI 10.33327/AJEE-18-5.1-n000096

Аннотация: The question of recognition and enforcement of international commercial arbitration (ICA) decisions, as a prototype of a foreign court decision, finds radically opposite answers in different legal systems and in the doctrine of the ICA. Thus, in the Regulation of the Council (EU) 44/2001 of 22 December 2000 on the jurisdiction, recognition, and enforcement of judgments in civil and commercial matters, formerly the Brussels Convention of 1968 and the Lugano Convention of 1988, the notion of 'arbitration' was excluded from the sphere of execution and recognition of foreign court decisions. Methods: Nevertheless, the procedure for recognising and enforcing an ICA award has a unified approach in many countries around the world. Thus, national courts, when deciding on the recognition and enforcement of an ICA award, are increasingly faced with such problematic issues as the grounds for refusing to recognise and enforce such an award. This article reveals that these grounds for refusing to recognise and enforce the award of the ICA are a violation of public order of the country where the arbitral award is subject to recognition and enforcement. Particular attention is paid to the distinction between 'substantive' and 'procedural' public order and the practical approaches of national courts in some countries to this issue. Results and Conclusions: The authors state that the way to overcome this inconsistency is still a unified approach to understanding 'public order' in all member states of the New York Convention of 1958 and clearer international regulation of this issue.

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