Recognition of Foreign Arbitral Awards. International private law. Refusal to enforce the decision of a foreign court is allowed if

The advantage of international commercial arbitration, in comparison with 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 sect. 8 of the Law of the Russian Federation on the ICA, the decision of a foreign arbitration tribunal is recognized in Russia and, when a petition to this effect is submitted to the competent court, it is enforced. Moreover, the provisions of this section apply equally both to arbitral awards on international commercial disputes made on the territory of Russia in permanent arbitration or ad hoc arbitration, and to arbitral awards made in other states and submitted for execution in Russian Federation.

The rules providing for the recognition and enforcement of arbitral awards rendered in other states are found in private international law of practically all states. In Art. 192 of the Swiss Law on MCP states: “The decision is final from the moment it is communicated to the parties ... And here: The decision can only be challenged in cases”:

- if the procedure for appointing a sole arbitrator or the procedure for the formation of arbitration courts has been violated;
- if the arbitral tribunal has erroneously declared itself competent or incompetent;
- if in its decision the arbitration court went beyond the limits of the claim or did not express its attitude to any of the claims;
- if in the course of the arbitration the equality of the parties or their right to state their position in the adversarial process was violated;
- if the decision is incompatible with public policy.

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

But economic life in the world demanded the unification of norms on this problem, which was started in 1923 with the signing of the Geneva Protocol “On Arbitration Clauses”. The protocol was not widely used due to its imperfection. The Geneva Convention "On the Enforcement of Foreign Arbitral Awards" (1927) directly began to apply to the enforcement of arbitral awards rendered outside states. An important principle underlying this convention was the principle of “double exequatur”. In accordance with it, in order to enforce an international arbitral award, it was necessary to obtain an exequatur in a state court at the place of its issuance and only then in a state court at the place of its execution, otherwise in a 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, within the framework of the UN, the preparation of a new convention was started.

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 the named problem. Its effect applies to foreign arbitral awards made not only by permanent arbitration tribunals, but also by ad hoc arbitration tribunals. The main provisions of the Convention have been recognized and embodied in various national legislative acts adopted in many states. As a result, a need arose 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. The well-known institutions of private law, which are used in the Convention, such as “public order” and “arbitrability”, also acquire a new meaning. Without understanding these categories, it is impossible to correctly and uniformly apply the provisions of the Convention on the limitation of the grounds for refusal to recognize and enforce decisions of foreign arbitrations.

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 participating State. In the Russian Federation (the legal successor of the USSR), upon ratification of the Convention on behalf of the USSR, a clause 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 basis of reciprocity), are executed on the basis 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 the enforcement is requested determines the judicial authority that is competent to execute the decision and the rules for such enforcement;
- the interested party applies to the competent authority of the state in which the enforcement is requested, with a request, together with which are submitted: a certified original arbitral award or a copy thereof; a genuine arbitration agreement or a certified copy of it; translation of these documents into the official language of the country where the performance is requested;
- the recognition and execution of the arbitral award may be refused, but only on the basis of Art. 5 of the Convention. The first group - these are grounds that can be applied only at the request of the party against whom the decision was made, and if it 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 associated with the arbitration agreement. The recognition and enforcement of the 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 arbitral tribunal and the arbitration process did not comply with the arbitration agreement; if the decision did not become final, i.e. 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 the enforcement is requested can refuse to do so, and if it finds that the object of the dispute cannot be the subject of arbitration under the laws of that state, and secondly, if recognition and enforcement of the judgment is contrary to the public policy of that state

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

The recognition and enforcement of foreign arbitral awards is governed by New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958. This Convention applies to foreign arbitral awards made both by permanent bodies of international commercial arbitration and by 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 are sought. Soviet Union when ratifying the New York Convention, he made the following statement: "The USSR will apply the provisions of this Convention in relation to arbitral awards made on the territory of states that are not parties to the convention, only on the basis of actual reciprocity." Consequently, in Russia (the state - the successor of the USSR) foreign arbitral 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) stipulates that in order to enforce a foreign arbitral award, a party that seeks such enforcement must submit: a) a duly certified original award or a duly certified copy of it; b) a genuine arbitration agreement or a duly certified copy of it. If the foreign arbitration award or arbitration agreement is executed on foreign language, then the party seeking enforcement of this decision must submit a translation of these documents into the official language of the country of execution.

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

a) the parties to the arbitration agreement were in any way incompetent under the law applicable to them or this agreement is invalid under the law to which the parties submitted this agreement, and in the absence of such an indication - under the law of the country where the award was made;

b) the party against whom the award was made was not duly notified of the appointment of an arbitrator or of the arbitration, or for other reasons could not provide an explanation;

c) the award was made on a dispute not covered by or not covered by the terms of the arbitration agreement or the arbitration clause in the contract, or contains orders on matters beyond the scope of the arbitration agreement or the arbitration clause in the contract, provided that if the orders on matters covered by the arbitration agreement or clause, can be separated from those that are not covered by such an agreement or clause, then that part of the arbitral award, which contains decisions on issues covered by the arbitration agreement or the arbitration clause in the contract, can be recognized and enforced;

d) the composition of the arbitral body or the arbitration process did not comply with the agreement of the parties or, failing such agreement, did not comply with the law of the country where the arbitration took place;

e) the decision has not yet become final for the parties or has been canceled or suspended by the competent authority of the country where it was made or the country whose law is applied.

According to paragraph 2, the 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 object of the dispute cannot be the subject of arbitration under the laws of that country;

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

It should be noted that the grounds provided for by the first paragraph 1 of Art. V, must be proven by the party against whom the award is directed. And the grounds established by clause 2 of Art. V, the court may apply own initiative... In particular, the 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 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 the grant of 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 of relevant documents of title, challenging the provision of these results and means of legal protection or with its termination are referred to the competence of the Federal Institute of Industrial Property of the Federal Service for Intellectual Property and the Ministry 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, Article 33), bankruptcy cases cannot be referred to arbitration.

The arbitrability of the dispute is also determined by the law of the court, where the recognition and enforcement of the 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 arbitral tribunal if it establishes that the dispute considered by the arbitral tribunal cannot be the subject of arbitration in accordance with federal law. Some laws place the resolution of individual disputes under the exclusive competence of courts and other bodies. Article 138 of part one Tax Code RF of July 31, 1998 No. 146-FZ provides that acts of tax authorities, actions or inaction of their officials may be appealed to a higher tax authority, to a court, or an arbitration court. A similar position is taken by Art. 382 of the Labor Code of the Russian Federation. According to Art. 39 of the Federal Law "On Protection of Competition", cases of violation of the antimonopoly legislation are considered by the antimonopoly body.

According to paragraph 5 of Art. 230 of the Arbitration Procedure Code of the Russian Federation in cases stipulated by an international treaty, a foreign arbitral award may be challenged in an 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 debtor's property - a party to the arbitration.

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

The parties shall not be entitled to invoke a violation of public order in cases where international commercial arbitration has 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 order is disclosed in the ruling of the Federal Arbitration Court of the Moscow District dated June 21, 2007 in case No. KG-A40 / 5368-07, which notes: if, as a result of its execution, actions are committed either directly prohibited by law, or damaging the sovereignty or security of the state, affecting the interests of large social groups that 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 contradicting the basic principles civil law, such as equality of participants, inviolability of property, freedom of contract. ”Violation of public order can be stated only if the application of foreign law leads to a result that is inadmissible from the standpoint of Russian law.

The New York Convention placed the burden of proof on the party against whom the judgment was made. In other words, a party that refuses to enforce a foreign arbitral award must prove that there is a legal basis for doing so.

According to Art. 3 of Federal Law No. 96-FZ of July 24, 2002 "On the Enactment of the Arbitration Procedure Code of the Russian Federation" - Decree of 1988) since the entry into force of the Arbitration Procedure Code of the Russian Federation is applied in the part that does not contradict it. In the literature, it was suggested that clause 10 of the 1988 Decree continues to be in force. This clause provides that foreign arbitral awards that are not enforceable will be recognized without any further proceedings, unless objections are received from the person concerned. In essence, Art. 35 of the Law of the Russian Federation "On International Commercial Arbitration", according to which the arbitral award, regardless of the country in which it was made, is recognized as binding. However, it must be borne in mind that and. 10 of the 1988 Decree establishing a judicial procedure for the recognition of 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 retains its effect in this part.

On the basis of a foreign arbitral award and a court ruling that has entered into legal force on permission of compulsory execution, a writ of execution is issued, which is sent to the place of execution. Foreign arbitral award in accordance with Art. 2 tbsp. 246 of the Arbitration Procedure Code of the Russian Federation can be executed within three years from the date of its entry into force. If a party has 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 Economic, Scientific and Technical Cooperation Relations, 1972 (see paragraph 23.2).

The Moscow Convention was concluded in 1972, when the main activities for the implementation of economic, scientific and technical cooperation were carried out by state foreign trade associations. With the transition of Russia and countries of Eastern Europe on 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, Czech Republic denounced the Moscow Convention, referring to the fact that its provisions apply only to state organizations. With regard to Bulgaria, one of its courts in a specific case refused to issue an exequatur when the question arose about the enforcement in Bulgaria of a foreign arbitral award. Germany also does not consider itself bound by the provisions of the Moscow Convention. A similar position is taken by the Romanian arbitration. As of today, three states consider themselves to be participants of the Moscow Convention: Russia, Cuba, Mongolia. Its provisions should be taken into account when concluding arbitration agreements with organizations of these countries. The participation of Bulgaria and Romania in the Moscow Convention 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 1969 Vienna Convention on the Law of Treaties.

In the light of the foregoing, 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 final decision of the state court of the country of execution (clause 2, article IV). Thus, the nature of the arbitral awards judgments... Arbitral awards that have not been voluntarily executed may be submitted for compulsory 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 that requires execution, and when the decision is sent by mail - from the date of the postmark stamp on the acceptance of the registered letter for dispatch.

The Moscow Convention (Article V) establishes the following grounds for refusing 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 award was made proves that she was deprived of the opportunity to defend her rights due to violation of the rules of the arbitration proceedings or due to other circumstances that she could not prevent, and also notify the arbitral tribunal; 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 by execution.

Concerning order recognition and enforcement of foreign arbitral awards, then according to Part 1 of Art. 242 of the Arbitration Procedure Code of the Russian Federation, an application for the recognition and enforcement of a foreign arbitral award is submitted by the party in whose favor the award 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 the recognition and enforcement of a foreign arbitral award shall be 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 APC RF. The application, unless otherwise established by an international treaty, shall be accompanied by: 1) a duly certified genuine foreign arbitral award or its duly certified copy; 2) a genuine agreement on arbitration or a duly certified copy thereof; 3) a duly certified translation of the foreign arbitral award and the arbitration agreement; 4) a document confirming the payment of the state fee. 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 the recognition and enforcement of a foreign arbitral award is considered in a court session by the judge alone within a period not exceeding three months from the date of receipt by the arbitration court according to the rules of Ch. 31 of the APC RF, unless otherwise provided by an international treaty of the RF.

In accordance with Part 3 of Art. 245 of the Arbitration Procedure Code of the Russian Federation, a ruling of an arbitration court in a case on the recognition and enforcement of a foreign arbitral award may be appealed to an 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 of Art. 246) provides that the enforcement of a foreign arbitral award is carried out on the basis of a writ of execution issued by an arbitration court, which issued a ruling on the recognition and enforcement of a foreign arbitral award in the manner prescribed by the Arbitration Procedure Code of the Russian Federation and Federal Law " About enforcement proceedings". A foreign arbitral award may be submitted for compulsory execution within a period not exceeding three years from the date of entry into force of the award. If the claimant missed this deadline, it can be restored by the arbitration court in accordance with the rules of Chapter 10 of the Arbitration Procedure Code of the Russian Federation.

The rules of § 2 chap. 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 compulsory execution of decisions of international commercial arbitrations adopted in 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 compulsory execution of the arbitral tribunal's decision but the 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 of December 22, 2005, No. 96 (clause 14), it is noted: In the arbitration proceedings, an application was submitted to challenge the decision of the arbitral tribunal, and the other party in the arbitration proceedings submitted an application for the issue of a writ of execution for the enforcement of the said decision. "

The judge shall consider the application alone within a period not exceeding three months from the date of its receipt by the arbitration court, including the time 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 compulsory execution of an international commercial arbitration award on the grounds provided for by an international treaty of the Russian Federation and the RF Law "On International Commercial Arbitration".

A refusal to issue a writ of execution for compulsory execution by an arbitration court is not an obstacle to repeated appeal to the arbitration court, if such an opportunity has not been lost, or to the 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 compulsory 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 ATP "ConsultantPlus".
Cm.: Ignatenko G.V., Fedorov I.V. Arbitration Procedure Code in the international legal dimension // Journal of Russian Law. 2003. No. 7. S. 27. The opinion was also expressed that the specified paragraph does not apply (see: B.R. Karabelnikov Enforcement of decisions of international commercial arbitration. 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., Statut, 2008.S. 127).

The 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 arbitral awards) are recognized and enforced in the Russian Federation by arbitration courts, if confession and the enforcement of such decisions is provided for by an 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 on International Commercial Arbitration (Art. 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 filed with a competent court. Thus, foreign arbitral awards are enforced in Russia regardless of whether the Russian Federation has an international agreement in this area with the relevant state.

The recognition and enforcement of foreign arbitral awards is governed by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958. This Convention is universal, since more than 120 states (Austria, Great Britain, Germany, India, China , Russian Federation, Belarus, Georgia, Moldova, Kyrgyzstan, Uzbekistan, Ukraine, etc.).

The New York Convention applies to foreign arbitral awards made both by permanent bodies of international commercial arbitration and by ad hoc arbitration.

The Convention 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 an award is sought. In addition, it applies to arbitral awards that are not considered domestic “national” awards in the State where recognition is sought. For example, in some countries (Germany), if an arbitral award was made in accordance with the procedural rules of a foreign (i.e. other than the court's state) state, it is not considered a national one. The New York Convention also applies to such arbitral awards.

Clause 3 of Art. I of the New York Convention gives each state the right, upon ratification, signature, accession, to make a declaration that it will apply its provisions only to decisions made in the territory of another state party. More than two thirds of states have made such statements. 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 on the territory of states that are not parties to the Convention, only on conditions of de facto reciprocity." It follows from this statement that in Russia (the state - successor of the USSR) foreign arbitral awards are enforced if they are made: a) in a country party to the New York Convention, b) in other countries - in the presence of actual reciprocity.

The New York Convention (Art. IV) stipulates that in order to enforce a foreign arbitral award, a party that requests such enforcement must submit: a) a duly certified original award or a duly certified copy of it; b) a genuine arbitration agreement or a duly certified copy of it. If the foreign award or arbitration agreement is executed in a foreign language, then the enforcing party must provide a translation of these documents into the official language of the country of execution. The New York Convention provides that the translation is certified by an official jury, translator or diplomatic representative or consular office.

Seven grounds have been established for refusing to recognize and enforce foreign arbitral awards. One of such grounds is that the parties to the arbitration agreement were, in accordance with the applicable law to them, in any way incapacitated or this agreement is invalid under the law to which the parties subordinated this agreement, and in the absence of such a law - under the law of the country where the decision was made.

For example, according to Art. 51 of the Civil Code of the Russian Federation, a legal entity is considered to be created from the moment of its registration. If the legal entity has not passed state registration, which means it was incapacitated. Therefore, foreign courts, when permitting the execution of a foreign arbitral award, sometimes request documents confirming the legal capacity of a party. Issues of validity of the arbitration clause are also significant. If by virtue of Art. 1211 of the Civil Code of the Russian Federation, the parties have chosen the law applicable to the contract, this does not mean that they have chosen the law applicable to the arbitration clause. If the parties want to choose the law applicable to the arbitration clause, then the contract should state this special condition... In its absence, the arbitral tribunal always applies the law of its country. In other words, the arbitration tribunal always determines the validity of the arbitration clause in accordance with the law of its country. If the dispute cannot be the subject of arbitration under the law of the country where the award was made, then this is the basis for refusing to enforce such an award.

Another ground for refusing to recognize and enforce a foreign award is that the party against which the award was made was not duly notified of the appointment of an arbitrator or of the arbitration. In the course of the arbitration, the parties must be served with the notice of the date and place of the proceedings. Evidence of this must be available in the case. The absence of evidence that the parties have served summons on the date and place of the proceedings serves as a ground for refusing to enforce the foreign arbitral award.

Refusal may also result from the fact that the decision was made on a dispute that is not provided for or does not fall under the arbitration agreement, arbitration clause or goes beyond its limits. For example, in the practice of the BTAK, there was a case when the arbitration clause provided that all disputes regarding quality should be resolved in the London Arbitration Court, and disputes over quantity - in the BTAK. VTAK received a statement of claim concerning a dispute regarding quality. The WTAK admitted itself incompetent to consider it. Otherwise, the recognition and execution of the decision of the VTAC abroad would be refused on the grounds that the VTAC went beyond the limits of the arbitration agreement.

Refusal may also be based on the fact that the arbitration process and the arbitral tribunal did not comply with the agreement of the parties. For example, the respondent sent a letter to the ICAC to appoint an arbitrator rather late. The ICAS mail is received by a special subdivision of the Chamber of Commerce and Industry, where the letter was delayed. In the meantime, the 30-day period for the appointment of an arbitrator, provided for by the ICAC Rules, has expired. Therefore, the President of the ICAC appointed an arbitrator for the respondent. Having received a notice from the court about the appointment of an arbitrator as chairman, the defendant informed the court that he had appointed the arbitrator on time. As a result, the arbitrator chosen by the respondent, and not appointed by the President of the ICAC, took part in the arbitration. If the arbitrator, who was appointed by the chairman, took part in the consideration of the dispute, the execution of such a decision by the ICAC abroad would have been refused.

The grounds for refusal to enforce a foreign arbitral award is the fact that the award did not become final for the parties, was canceled or suspended by the competent authority of the country in which it was made. In Russia, as already noted, it is possible to challenge arbitral awards in the form of filing an application for cancellation of the arbitral award. The application must be filed within three months from the date of receipt of the award. Upon submission of such an application, the award will not become final. Its action is suspended. Accordingly, this is the basis for refusal to enforce the arbitral award.

The 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 of the dispute cannot be the subject of arbitration under the laws of that country. For example, in Russia, disputes related to the granting of patents are attributed to the competence of the Federal Service for Intellectual Property, Patents and Trademarks. Therefore, the decision of the body of international commercial arbitration, rendered on such a dispute in Russia, cannot be enforced abroad.

Finally, the refusal to recognize and enforce an arbitral award may be due to the fact that the award is contrary to public policy.

The public order of the Russian Federation is understood as the foundations of the social system of the Russian state. A public order clause is possible only in cases where the application of a foreign law could give rise to a result that is unacceptable from the point of view of Russian legal consciousness.

A violation of public order can be stated only if the application of foreign law leads to a result that is inadmissible from the standpoint of Russian law.

The grounds for refusal to recognize and enforce foreign arbitral awards, similar to those established by the New York Convention, are also contained in the Law on International Commercial Arbitration (Article 36). This is due to the fact that the latter was developed on the basis of the Model Law on Arbitration, adopted in 1985 by the UN Commission on International Trade Law. In addition, the provisions of the New York Convention were taken into account in the preparation of this Law.

The New York Convention placed the burden of proof on the party against which the judgment was made. In other words, a party that refuses to enforce a foreign arbitral award must prove that there is a legal basis for doing so.

According to Art. 3 of the Federal Law of July 24, 2002 "On the Enactment of the Arbitration Procedure Code of the Russian Federation" Decree of the Presidium of the Supreme Soviet of the USSR dated July 21, 1988 "On the recognition and enforcement in the USSR of decisions of foreign courts and arbitration" (hereinafter - the Decree of 1988 .) since the entry into force of the Arbitration Procedure Code of the Russian Federation, it is applied in the part that does not contradict it.

Paragraph 10 of the 1988 Ordinance provides that non-enforceable foreign arbitral awards will be recognized without any further proceeding, unless an objection is received from the person concerned. In essence, Art. 35 of the Law on International Commercial Arbitration, according to which the arbitral award, regardless of the country in which it was made, is recognized as binding.

On the basis of a court ruling that has entered into legal force on the authorization of compulsory execution, a writ of execution is issued, which is sent to the place of execution of the foreign arbitral award. Foreign arbitral award in accordance with paragraph 2 of Art. 246 of the Arbitration Procedure Code of the Russian Federation can be submitted for compulsory execution within three years from the date of its entry into force. If a party has missed this deadline, then at the request of the claimant, the arbitration court has the right to restore it.

As for the procedure for the recognition and enforcement of foreign arbitral awards, in accordance with paragraph 1 of Art. 241 of the Code of Civil Procedure of the Russian Federation, an application for recognition and enforcement of the decision 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. The application is submitted in writing and must be signed by the claimant or his representative. The requisites of the application are defined in clause 2 of Art. 242 APC RF. The application, unless otherwise established by an international treaty, shall be accompanied by: 1) a duly certified genuine foreign arbitral award or its duly certified copy; 2) a genuine agreement on arbitration or a duly certified copy thereof; 3) a duly certified translation of the foreign arbitral award and the arbitration agreement; 4) a document confirming the payment of the state fee. Documents issued, drawn up or certified in accordance with the established form by the competent authorities of foreign states outside of Russia in accordance with the norms of foreign law in relation to Russian organizations, citizens and foreign persons are accepted in Russia by arbitration courts if they are legalized or apostilled, unless otherwise provided by international treaties RF (Article 255 of the APC RF). 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 paragraph 1 of Art. 243 of the Arbitration Procedure Code of the Russian Federation, an application for the recognition and enforcement of a foreign arbitral award is considered in a court session by the judge alone within a period not exceeding one month from the date of receipt by the arbitration court according to the rules of Ch. 31 of the APC RF, unless otherwise provided by an international treaty of the RF. The arbitration court shall notify the persons participating in the case about the time and place of the court session. The failure to appear of these persons, duly notified of the time to the place of the court session, is not an obstacle to the consideration of the case (clause 3 of article 243 of the APC RF). When considering a case, an arbitration court in a court session establishes the presence or absence of grounds for recognizing and enforcing a foreign arbitral award by examining the evidence presented to the court, substantiating the stated claims and objections.

Rules of Art. 244 of the Arbitration Procedure Code of the Russian Federation regarding the grounds for refusal to recognize and enforce foreign arbitral awards shall be applied, unless an international treaty of the Russian Federation establishes otherwise. Among these grounds are those established by the New York Convention and, accordingly, the International Commercial Arbitration Law.

Based on the results of considering an application for the recognition and enforcement of a foreign arbitral award, the arbitration court issues a ruling according to the rules of Ch. 20 of the Arbitration Procedure Code of the Russian Federation (clause 1 of Article 245 of the Arbitration Procedure Code of the Russian Federation). Clause 2 of Art. 245 of the APC RF establishes that recognition and enforcement ruling a foreign arbitral award must contain: 1) the name and location of the international commercial arbitration; 2) the name of the claimant and the debtor; 3) information about the foreign arbitral award, the recognition and enforcement of which was requested by the claimant; 4) an indication of the recognition and enforcement of a foreign arbitral award or a refusal to recognize and enforce it. The ruling can be appealed to the arbitration court of the cassation instance within one month from the date of its issuance.

Enforcement of a foreign arbitral award is made on the basis of a writ of execution issued by an arbitration court that issued a ruling on the recognition and enforcement of a foreign arbitral award in the manner prescribed by the Arbitration Procedure Code of the Russian Federation and the Federal Law “On Enforcement Proceedings”. A foreign arbitral award may be submitted for compulsory execution within a period not exceeding three years from the date of entry into force of the award. If the claimant missed this deadline, he can be reinstated by the arbitration court according to the rules of Ch. 10 APC RF.

Paragraph 2, chap. 30 of the Arbitration Procedure Code of the Russian Federation regulates the proceedings for the issuance of a writ of execution for the compulsory execution of an arbitral tribunal's decision. The rules established in this paragraph are also applied when an arbitration court considers applications for the issuance of writs of execution for the compulsory execution of decisions of international commercial arbitrations adopted in Russia (clause 1 of article 236 of the Arbitration Procedure Code of the Russian Federation).

The Arbitration Court is considering the issue of issuing a writ of execution for the compulsory execution of the decision of the international commercial arbitration (arbitration tribunal) on a dispute arising from civil relations in the implementation of entrepreneurial and other economic activities, at the request of the party in whose favor the decision was made. The claimant submits an application to the arbitration court of the constituent entity of the Russian Federation at the location or the place of residence of the debtor, and if they are unknown, then at the location of his property (clause 3 of article 236 of the APC RF). Article 237 of the APC RF determines the details of the application. Attached to it: 1) a duly certified original decision of the arbitral tribunal or its duly certified copy; 2) a genuine agreement on arbitration or a duly certified copy thereof; 3) a document confirming the payment of the state duty in the amount of five times the minimum wage; 4) a notice of service or other document confirming the sending of a copy of the application for the issue of a writ of execution for the compulsory execution of the arbitral tribunal's decision to the other party in the arbitration; 5) a power of attorney or other document confirming the powers of the person who signed the application. An application for the issue of a writ of execution for the enforcement of an arbitral award filed in violation of the requirements provided for in Art. 236, 237 of the Arbitration Procedure Code of the Russian Federation, remains motionless or returned to the person who submitted it.

The application is considered by the judge alone within a period not exceeding one month from the date of its receipt by the arbitration court. When preparing the case for trial at the request of the persons participating in the case, the judge may request from the arbitral tribunal the materials of the case for which the writ of execution is requested (clause 2 of article 238 of the APC RF). The arbitration court shall notify the parties to the arbitration proceedings about the time and place of the court session. The failure to appear of the parties, duly notified of the time and place of the court session, is not an obstacle to the consideration of the case. When considering a case, the arbitration court in the court session shall establish whether there are grounds for issuing a writ of execution for the compulsory execution of the arbitral tribunal's decision by examining the evidence presented in support of the stated claims and objections. 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 a compulsory decision of international commercial arbitration on the grounds provided for by an international treaty of the Russian Federation and the Law on International Commercial Arbitration.

According to paragraph 1 of Art. 240 of the Arbitration Procedure Code of the Russian Federation, based on the results of considering an application for the issuance of a writ of execution for the compulsory execution of an arbitral tribunal's decision adopted on the territory of Russia, the arbitration court issues a ruling. Refusal to issue a writ of execution is not an obstacle to re-applying to an arbitration court, if such an opportunity has not been lost, or to an arbitration court (clause 4 of article 240 of the Arbitration Procedure Code of the Russian Federation). In accordance with paragraph 5 of Art. 240 of the Arbitration Procedure Code of the Russian Federation, a ruling of an arbitration court in a case on the issuance of a writ of execution for the compulsory execution of a decision of an arbitral tribunal, including an international commercial arbitration tribunal, may be appealed to an arbitration court of the cassation instance within a month from the date of the ruling.

Conclusions on the fifth question

The terms "arbitration court" and "arbitration tribunal" have the same meaning.

International arbitration practice knows two types of arbitration: ad hoc arbitration (one-time arbitration) and institutional arbitration.

One of the fundamental principles of international commercial arbitration is the principle of voluntary recourse to arbitration.

There are three types of arbitration agreements: an arbitration clause, an arbitration record, and an arbitration agreement.

One of the advantages of international commercial arbitration is the existence of a developed system of recognition and enforcement of arbitral awards made on the territory of a foreign state, usually called foreign arbitral awards.

The main centers for resolving international commercial disputes in Russia are the International Commercial Arbitration Court (ICAC) and the Maritime Arbitration Commission (IAC) at the RF Chamber of Commerce and Industry (RF CCI). They operate on the basis of the Law on International Commercial Arbitration of July 7, 1993. Also, the legal status of the RF CCI is determined by the RF Law of 07.07.1993 No. 5340-1 (as amended on 23.07.2008) “On Chambers of Commerce and Industry in the Russian Federation ".

Conclusion on the topic

International civil procedure is a set of procedural rules related to the protection of the rights of foreigners and foreign legal entities in court and arbitration.

There are three well-known systems for determining jurisdiction: the Romanesque, or Latin, Germanic and the common law system.

In Russia, the procedural position of foreigners is enshrined, first of all, in the Constitution (part 1 of Art. 46, Part 3 of Art. 62), in the Federal Law “On legal status foreign citizens in the Russian Federation ”dated July 25, 2002 (Article 4). Civil procedural rights of foreign citizens, foreign enterprises and organizations are established by both general norms (Art. 36) and special provisions (Art. 398) of the Code of Civil Procedure, as well as Art. 254 APC RF.

Exceptions from the principle of national treatment can be established only in the form of reciprocal restrictions (retortions).

Legal assistance in modern international relations means the performance of individual procedural actions.

Most of the procedural actions included in the scope of legal aid are executed in the form of letters rogatory.

In the Russian Federation, notarial acts are carried out by notaries working in public notary offices or in private practice, as well as, in certain cases, by other bodies. Abroad, the execution of notarial acts is entrusted to the consular offices of the Russian Federation.

The term "international commercial arbitration" is used, firstly, to refer to the general mechanism for the settlement of commercial disputes; secondly, to designate the body (organization) created to consider such disputes; thirdly, to designate a specific panel of arbitrators (or a sole arbitrator) considering a specific dispute.

Boguslavsky M.M. Private international law: Textbook. - 5th ed., Rev. and add. - M .: Jurist, 2004 .-- P.493.

recognition and reduction problems

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

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

Shchukin Andrey Igorevich, Leading Researcher, Department of Private International Law, Institute of Legislation and Comparative Law under the Government of the Russian Federation, Ph.D.

On November 14, 2018, at the Institute of Legislation and Comparative Law under the Government of the Russian Federation (hereinafter - the Institute), a round table was held on the topic "Problems of Recognition and Enforcement of Foreign Judgments and Arbitral Awards", timed to coincide with the 60th anniversary of the adoption of the United Nations Convention on recognition and enforcement of foreign arbitral awards dated June 10, 1958 (hereinafter - the New York Convention 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 arbitral (arbitration) awards in the territory of the contracting countries.

Head of the Department of Private International Law of the All-Russian Academy of Foreign Trade, Doctor of Law, Professor A.S. Komarov noted the importance of the event held at the Institute and directly touched upon a number of issues: the purpose of adopting the 1958 New York Convention, its main provisions and further prospects of this document, which is the heart of international commercial arbitration. As the speaker emphasized, if it were not for the Convention, it would be impossible to talk about the level that arbitration has reached as a means of settling international commercial disputes.

Today, 159 countries are parties to the 1958 New York Convention, which is almost 80% of all states existing on the globe. This document, containing only 16 articles (5 pages of text), has played an important role in making arbitration the uncontested means of resolving international commercial disputes. Conducted in recent years empirical research, in particular, the 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

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

The 1958 New York Convention, which came into being 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 very procedure of arbitration (arbitration) proceedings.

Further, the speaker drew attention to the problem related to the correct and uniform application of the 1958 New York Convention. Several years ago, the International Council on Commercial Arbitration issued a special guide for judges, prepared by the most authoritative experts, which discusses in detail the issues related to the application of the Convention. In turn, UNCITRAL has developed a guide to the application of the Convention, which is 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 learn about many aspects of the Convention and the practice of its application.

One of the main tasks that must be solved in practice is to teach Russian judges to correctly apply the 1958 New York Convention. Moscow, that is, the decisions 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 the application of the Convention?). Rarely are 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 objectives of the Convention and decide the case in such a way that can confuse any person who knows this document.

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

The speaker told in what direction a possible amendment to the New York Convention of 1958 is being discussed.In particular, the most authoritative specialist in the area under consideration, Professor A. Ya. arbitration (arbitration) decisions made abroad, but also on arbitration (arbitration) decisions that are made domestically.

In conclusion, A.S. Komarov expressed confidence that through joint efforts with the active participation of the young generation of lawyers participating in arbitration and litigation, it is possible to achieve correct and uniform application of the Convention, so that, as before, Russia is considered a country where they have a rather 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 Center of the World Intellectual Property Organization for Arbitration and Mediation (hereinafter - the WIPO Center) of disputes in the field of intellectual property between powerless entities and the enforcement of decisions of this institutions. The peculiarity of this specialized arbitration is that it was created under an intergovernmental organization that enjoys immunity from the application of national legislation. The WIPO Center is not subject to any national law on international commercial arbitration.

The WIPO Center proceeds from the very broad arbitrariness of disputes referred to its competence: it examines, in particular, disputes arising from licensing and production contracts, agreements on scientific and technical cooperation. In one case, the WIPO Center dealt with a case between a North American company and an Asian manufacturer over 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 labor contracts related 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 the decisions of the WIPO Center, including

including within the framework of the regime provided for by the 1958 New York Convention. This is due, firstly, to the fact that the WIPO Center often considers disputes that, according to the legislation of the country where the execution of the award is requested, cannot be the subject of arbitration (arbitration) proceedings. Secondly, under the Convention, decisions in commercial matters are enforceable, while the WIPO Center undertakes to consider disputes, including those on copyright infringement.

According to V.P. Talimonchik, the activities of the WIPO Center deserve support, since there is an objective need to resolve cross-border intellectual disputes, their number is steadily growing, and the WIPO Center seeks to resolve these disputes not so much by resolving them on the merits, but by means of reconciliation of the parties, achieving them an amicable agreement. And in this aspect, UNCITRAL's work on the development of a draft Convention on the Recognition and Enforcement of Settlement Agreements concluded within the framework of the international conciliation procedure is of particular importance.

In the report of the counselor of the law firm Egorov Puginsky Afanasiev & Partners, Candidate of Legal Sciences D.V. Kaisin and the lawyer of this office M.O.Demina, the issue of the exequatur of international investment arbitration decisions against states and the role of the 1958 New York Convention was touched upon. 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 Individuals or legal entities other states dated March 18, 1965 (hereinafter - the Washington Convention 1965), the UNCITRAL rules, as well as the rules of such arbitration institutions 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 deals with the recognition and enforcement of foreign arbitral (arbitration) awards, modern practice is following the path of applying this document to the issuance of exequatur on investment arbitration decisions that are made under the UNCITRAL rules or under the rules of the aforementioned arbitration awards. institutions.

According to D.V. Kaisin, one of the significant advantages of the Washington Convention of 1965, in comparison with the same New York Convention of 1958, is that the arbitration (arbitration) award under the 1965 Convention is recognized as an internal decision of the national court, and it only goes through a simple registration at the place where its execution is requested.

Both Conventions do not address the issue of jurisdictional immunities of states, which are the main mechanism for protecting a state from the recognition and enforcement of foreign arbitral (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, since it did not receive the required number of votes.

M.O.Demina noted that at present international arbitration as a form of considering investment disputes is actively criticized, including in connection with the imperfection of the system for appointing arbitrators, the overestimated cost of arbitration, the lack of a precedent mechanism and uniformity in the practice of resolving such disputes. Also, there is no unambiguous consistent procedure for appealing decisions made.

With regard to the recognition and enforcement of foreign arbitral (arbitration) awards under the New York Convention of 1958, in this case there is a high risk that national courts will cite a violation of public order or the existence of immunity from a foreign state as grounds for taking negative decision.

In connection with the identified problems, a number of proposals were made to reform the system of international investment arbitration. One such proposal, developed by arbitrator Gabriel Kaufman-Kohler under the auspices of UNCITRAL, calls for the creation of 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, which will consider investment disputes between investors and the states of the European Union. In part, this decision was prompted by the judgment of the Court of Justice of the European Union in Slovak Republic v. Achmea B.V. (No. C-284/16). It concluded that investor-to-investor disputes arising from bilateral agreements between European states are not arbitrable. The indicated proposals, according to the speaker, are ambiguous and require additional discussion.

Lawyer S.V. Usoskin, Ph.D. in Law, identified a number of problems associated with the application in practice of the grounds provided for by the 1958 New York Convention for refusing to recognize and enforce foreign arbitral awards. One of these “love

The reasons given by the Russian courts, as the speaker noted, are the public policy clause, which has no clear boundaries. In the context of violation of public order, sometimes there is a reference to the principle of legality, which is used to review arbitration decisions on the merits. Sometimes the arbitrators' misinterpretation of a civil law contract is also considered by the courts as inconsistency of the arbitration (arbitration) decision made by them to public policy. A similar arbitrage 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 dispute by one of the parties to the arbitration (arbitration) agreement due to non-compliance with its written form (the case of the Korean National Insurance Corporation V. VTB Insurance, No. arbitration (case of the company "Cargo-Logistics" V. individual entrepreneur Kulikova, No. A38-2183 / 2017). This substitution by public policy for another special ground provided for by the Convention is what this document has 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 (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, to which they came under the 1958 New York Convention.

As the speaker emphasized, the correct application of the Convention by the national courts will ensure further compliance by Russia with its international obligations, and will also guarantee certainty and predictability in the issue of the enforcement of foreign arbitration (arbitration) decisions between participants in international commercial disputes.

Senior lawyer of the firm "Kulkov, Kolotilov and Partners" I. Martvel, citing in his report a detailed analysis of the statistical data of judicial practice, concluded that Russian courts increasingly began to refuse to recognize and enforce foreign arbitral (arbitration) awards, and very " convenient ”basis for this is the public policy clause. In this regard, the speaker noted two points: the first is a deliberately broad interpretation of the category of "public order", which has already been discussed by colleagues, and

the presence of its clear definition; second - the failure to bring in the judicial acts the reasons for the decision, why, under the given circumstances, the court referred to public order.

When considering cases on the recognition and enforcement of foreign arbitral (arbitration) awards, any unremovable doubts about the legal position should be interpreted in favor of the legitimacy of the arbitration (arbitration) proceedings and the decision made on its results.

The emerging jurisprudence in cases of recognition and enforcement of foreign arbitration (arbitration) decisions has negative consequences: in the practice of foreign courts (in particular, in the UK), one hundred percent coverage of the defendant's expenses is used if the plaintiff is in Russia. Thus, the difficulty of enforcing foreign arbitration (arbitration) decisions on the territory of the Russian Federation is recognized. However, this should not be so: to a certain extent, this is a loss of image within the international community, which is worth watching.

Associate Professor of the Department civil law and process and private international law of the Peoples' Friendship University of Russia, Candidate of Legal Sciences E. V. Sitkareva outlined the problem of enforcing a foreign arbitration (arbitration) decision in relation to a bankrupt debtor. The consideration by the court of the relevant application of the creditor outside the framework of the bankruptcy case, according to the speaker, may lead to unjustified 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.

MV Bezruchenkov, a junior lawyer at the Egorov, Putinsky, Afanasiev & Partners law firm, dwelled on the practice of application of the 1958 New York Convention by Russian courts and noted a number of difficulties they face. In particular, the courts sometimes do not distinguish between the concepts of "foreign judgment" and "foreign arbitral award", applying the Convention to these two law enforcement acts that are different in nature. Meanwhile, as you know, 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 the New York Convention of 1958 is such a document. The saddest thing is that not only the courts of first instance, but also the higher courts adhere to this position, leaving this error without due attention. This problem, as the speaker noted, is not only of the courts, but also of the participants in the proceedings, who in a number of cases refer to the Convention when it comes to recognizing judicial

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

The speaker also drew attention to another problem - the refusal of Russian courts to enforce foreign arbitration (arbitration) decisions on the grounds of improper notification of the party about the arbitration without taking into account the provisions of the Convention, which allow, in particular, such methods of notification as sending correspondence by courier service, if using facsimile messages or e-mail correspondence.

KS Stepanova, a lecturer at the Department of International Private and Civil Law of the Moscow State Institute of International Relations (University) of the Ministry of Foreign Affairs of Russia, focused on the problem of recognition and enforcement of foreign arbitration (arbitration) decisions made in disputes with a plurality of participants. The speaker noted that the party against whom the arbitration (arbitration) award was made in such a dispute can raise an objection to its execution, referring to the New York Convention of 1958. As a rule, the losing party refers to: 1) the absence of an arbitration (arbitration) an agreement that would bind all parties to the proceedings; 2) the fact that the arbitration (arbitration) decision contains conclusions on issues that go beyond the arbitration (arbitration) agreement, by virtue of which the proceedings were held between the parties to the dispute; 3) the fact that the composition of the arbitral 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 is to create 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 compulsory execution of foreign arbitration (arbitration) decisions against non-signatories, i.e., parties who have not actually signed the arbitration (arbitration) agreement. On this issue, in particular, it was noted: the written form of the arbitration (arbitration) agreement can be considered observed, even if the parties did not actually sign the agreement. In the comments to Art. II of the New York Convention of 1958 indicates the possibility of concluding an arbitration (arbitration) clause by

by 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 with it (in the absence of objections on his part).

Participation of an interested person in arbitration (arbitration) proceedings without objections to the competence of the panel of arbitrators presupposes his consent to this form of protection of rights. In addition, the signing of the so-called terms of reference is tantamount to the conclusion of a written agreement to refer the dispute to arbitration (arbitration).

The speaker also drew attention to the problem of meeting the formal requirement of sub. "B" clause 1 of Art. IV of the Convention, which consists in the obligation of the parties to submit the arbitration (arbitration) agreement or its duly certified copy in order to require the enforcement of the arbitration (arbitration) award.

Lecturer at the Department of Legal Modeling at the University. O. E. Kutafina (Moscow State Law Academy), Candidate of Legal Sciences, O. F. Zasemkova, analyzed the draft Hague Convention on the Recognition and Enforcement of Foreign Judgments ("Judicial Draft") (hereinafter referred to as the draft Hague Convention), indicating, in particular, that the issues related to the regulation of the very procedure for the recognition and enforcement of a foreign judgment, remain at the discretion of the national legislator. At the same time, the draft Hague Convention provides for separate requirements in relation to: 1) documents to be submitted by the interested party; 2) indirect jurisdiction; 3) exclusive jurisdiction; 4) grounds for refusal to recognize and enforce a foreign judgment.

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.

P. Bulatov, an adviser to the law firm "White & Case", continued his analysis of the draft of the Hague Convention and touched upon the issue of ratification and implementation of this document in relation to the Russian legal system. The speakers 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 the requirement for securing court costs in respect of 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 judicial decisions in cases in which the location of the parties and all elements of the disputed law-

relations, except for 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 with the participation of a foreign government; 6) on the priority of other international agreements.

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

A. A. Kostin, a lawyer at the Khrenov & Partners law firm, examined the issue of the relationship between the concepts of recognition of foreign court decisions and their execution. Based on the analysis of the current Russian procedural legislation, the speaker came to the conclusion that it is necessary to further improve it: to preserve 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 a foreign court decision requires enforcement or not).

Head of the Department of Civil Law and Procedure 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 the recognition and enforcement of foreign judgments in the Russian Federation and People's Republic. Despite the requirement formulated in the legislation on the need for a special international treaty of the Russian Federation for the recognition and enforcement of foreign judgments, Russian jurisprudence recent years formed an essentially different basis for the exequatur of such decisions based on the categories of "international courtesy", "reciprocity" and references to international agreements general... Although there is no uniformity in the application of these grounds, a similar situation is observed in the practice of the PRC courts.

EV Mokhova, Associate Professor of the Department of International Public and Private Law, National Research University Higher School of Economics, Candidate of Law, touched upon the issue of recognition and enforcement of foreign court decisions in bankruptcy cases in the light of UNCITRAL's work on the preparation of a new model law on this issue. The speaker drew particular attention to the extensive list of grounds for refusing to recognize and enforce these judicial acts, among which, in particular, are:

Receipt as a result of deception, non-compliance with the standards of judicial procedure. It was also noted that when preparing the model law Special attention paid to the mechanism for checking the competence of a foreign court, as well as the issue of providing the debtor's creditors with proper 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

other grounds for refusing to recognize and enforce foreign judgments that are not identical to public policy, 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 topical issues of recognition and enforcement of foreign arbitration (arbitration) awards and foreign court decisions.

Enforcement of decisions of foreign arbitration tribunals in Russia

In contrast to the execution of decisions of state courts, the execution of foreign arbitral awards is carried out uniformly due to the operation of the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (New York Convention). A wide range of parties to the Convention (more than 130 states participate in it, including Russia) and the long-term practice of its application make it possible to assert that foreign arbitral awards enjoy greater recognition than decisions of foreign state courts. In accordance with the Convention, the member states agreed to recognize foreign arbitral awards as binding and to enforce them on the same conditions as domestic arbitral awards (Article 3). In this case, it does not matter whether the decision was made on the territory of a state party to the Convention or a state not party to it. However, when acceding to the Convention, the state has the right to make a reservation on the application of the Convention only to arbitration awards made in the territories of the member states (such a reservation was made by the USSR, and it remains in effect for Russia).

According to the New York Convention, decisions of foreign international commercial arbitrations are subject to recognition and enforcement in Russia. They are usually performed on a voluntary basis. Otherwise, the claimant must apply to the competent court at the location of the debtor with a petition for the recognition and enforcement of the foreign arbitration award. Attached to the application are:

1) a certified original arbitral award or a copy thereof;

2) the arbitration agreement or its certified copy;

3) certified translation of these documents into Russian. The documents must be certified, that is, legalized or properly apostilled. Under the New York Convention, decisions are enforced in accordance with the procedural rules of the territory where they are requested to be enforced.

The execution of decisions of foreign arbitrations in Russia is devoted to Ch. 31 of the APC RF, art. 35-36 of the Russian Law "On International Commercial Arbitration" of 1993, as well as the Decree of the Presidium of the Supreme Court of the USSR "On the recognition and execution in the USSR of decisions of foreign courts and arbitration" dated 1988, and the provisions of the Law of 1993. and the Decree of 1988 are valid in the part that does not contradict the Arbitration Procedure Code of the Russian Federation. At the same time, Art. 416-417 of the Code of Civil Procedure of the Russian Federation also determine the conditions and procedure for the recognition and execution of decisions of foreign arbitration courts (arbitration tribunals). However, these articles of the Code of Civil Procedure of the Russian Federation do not cover those decisions of foreign arbitration tribunals, the execution of which is carried out by state arbitration courts, that is, decisions of arbitration courts adopted by them in the territories of foreign states in disputes and other cases arising in the implementation of entrepreneurial and other economic activities (cl. 1 article 241).

Thus, if the decision of a foreign arbitration court is of an entrepreneurial nature, then it is executed in accordance with the requirements of the Arbitration Procedure Code of the Russian Federation. If the dispute is not related to the implementation of entrepreneurial and other economic activities, then the execution of such decisions is the competence of the regional courts of general jurisdiction in accordance with the procedure provided for in Art. 416-417 Code of Civil Procedure of the Russian Federation. The procedure for the execution of such decisions is also regulated by the 1988 Decree No.

In accordance with Art. 242 of the Arbitration Procedure Code of the Russian Federation, the recoverer must apply for the recognition and enforcement of the foreign arbitral award to the arbitration court of the constituent entity of the Russian Federation at the location or place of residence of the debtor, and if it is unknown - at the location of the debtor's property. The application must indicate:

1) the name of the arbitration court to which the application is submitted;

2) the name and location of the foreign arbitration;

3) the name of the claimant and the debtor, their location (place of residence);

4) information about the decision of the foreign arbitration;

5) the claimant's petition for the recognition and enforcement of the foreign arbitral award;

6) a list of attached documents:

a) a certified genuine foreign arbitral award or a certified copy thereof;

b) a genuine arbitration agreement or a certified copy thereof;

c) a certified translation into Russian of the arbitral award and the arbitration agreement.

The procedure for considering an application under the Arbitration Procedure Code of the Russian Federation corresponds to that which is applied in the execution of a decision of a foreign court (see § 7 Chapter XIX): the application is considered in a court session with the notification of the parties, in which the judge establishes the presence or absence of grounds for the recognition and enforcement of the decision foreign arbitration by examining the evidence presented to the court, substantiating the stated claims and objections.

Article 244 of the Arbitration Procedure Code of the Russian Federation refers to the grounds for refusal to enforce a foreign arbitral award, firstly, the contradiction of the execution of a foreign arbitration award to the public order of the Russian Federation and, secondly, the grounds provided for by an international treaty of the Russian Federation and the Federal Law "On International Commercial Arbitration" ... Thus, the Code makes a reference to the Law of the Russian Federation "On International Commercial Arbitration" and the New York Convention.

The grounds for refusal set forth in the Law and the New York Convention coincide with those that are grounds for invalidating the arbitration award under Art. IX of the European Convention on Foreign Trade Arbitration of 1961 and Art. 35 of the Law "On International Commercial Arbitration":

1) the incapacity of the parties to the arbitration agreement or its invalidity;

2) failure to notify a party of the appointment of an arbitrator or the proceedings;

3) the decision goes beyond the limits of the arbitration agreement;

4) non-compliance of the arbitral tribunal or procedure with the arbitration agreement or legislation;

5) the impossibility of the object of the dispute to be the subject of arbitration under the law of the Russian Federation;

6) contradiction of the arbitral award to public policy. In addition, the New York Convention and Law contain one more

Grounds for refusal to recognize and enforce a foreign arbitration award:

7) the decision has not yet become final for the parties or has been canceled or suspended in the country where it was made.

The most frequent grounds for refusal, which the debtor resorts to, is the failure to notify him of the process, as well as the decision on a dispute not provided for by the arbitration agreement. This includes all situations where an arbitration tribunal claims to be competent in the vague wording of an arbitration clause. It should be borne in mind that challenging the execution of a decision on the basis of its contradiction to public policy cannot be based on the fact that the norms of foreign law that were used in making the decision are different from the norms of domestic law, or on the fact that foreign arbitration has incorrectly applied or interpreted the applicable foreign rule. rights.

Based on the results of consideration of the application, the arbitration court shall issue a ruling, which contains an indication of the recognition and enforcement of the foreign arbitration award or the refusal of such recognition and enforcement. Such a ruling can be appealed to the arbitration court of the cassation instance within one month. On the basis of a ruling on the recognition and enforcement of a foreign arbitration award, the claimant is issued a writ of execution, which may be presented for enforcement within three years from the date of entry into force of the foreign arbitral award.

The point of view is widespread that the decisions of foreign arbitration tribunals made in the member states of the 1992 Agreement. on the procedure for resolving disputes related to the implementation of economic activities are executed in the territories of other states parties to the Agreement in the same manner as decisions of state courts, that is, the mechanism provided for by the New York Convention is not applied. However, in the opinion of the Supreme Arbitration Court of the Russian Federation, the 1992 Agreement. and the 1993 CIS Convention, providing for the enforcement of court decisions in civil cases, mean state (and not arbitration) courts, that is, courts of general jurisdiction and arbitration (economic) courts.

Arbitral awards made under the 1972 CMEA Arbitration Convention are executed in accordance with the terms of this Convention: decisions are executed under the same conditions as decisions of state courts of the country on whose territory the enforcement is sought. The time limit for the execution of the judgment under the Convention is two years.

Execution of ICAC decisions abroad and in Russia

ICAC judgments against foreign companies are enforced abroad in accordance with the 1958 New York Convention in accordance with the procedural rules of a foreign state. The claimant must apply to the competent court with a request for the recognition and enforcement of the ICAC decision. The request must be accompanied by: 1) a certified original award or a copy of it; 2) the arbitration agreement or its certified copy; and 3) a certified translation of these documents into the language of the respective state where the performance is requested. A document confirming that the defendant was duly notified of the proceedings and the appointment of an arbitrator should also be attached. The documents must be certified by a Russian notary and legalized at the consulate of the foreign state located on the territory of Russia, or apostilled if the foreign state concerned participates in the 1961 Convention Abolishing the Requirement of Legalization of Foreign Official Documents, 1961. It is advisable to engage local lawyers to enforce the decision ...

The grounds for non-recognition of ICAC decisions abroad are set out in the New York Convention.

For example, when executing the ICAC judgment against an American company in the USA, the defendant - the American company, referring to public policy, asked the American court to refuse to enforce the ICAC judgment due to the “corruption” of the arbitration when making the award. The American court did not support the defendant, since he did not present serious evidence of the ICAC's bias in making the decision.

In the states parties to the 1992 Agreement. decisions of the ICAC are executed in accordance with the Agreement. If the decision is made within the framework of the 1972 CMEA Arbitration Convention, then it is executed in accordance with the terms of this Convention.

Decisions of the ICAC subject to execution in Russia, that is, issued primarily against Russian companies, are executed in accordance with Art. 236-240 of the Arbitration Procedure Code of the Russian Federation and the Law of the Russian Federation "On International Commercial Arbitration" (Articles 35, 36). The 1958 New York Convention does not apply, since it concerns only foreign arbitral awards, while the decisions of the ICAC on the territory of Russia are not foreign. The claimant submits to the arbitration court of a constituent entity of the Russian Federation at the location (place of residence) of the debtor, and if it is unknown, at the location of the debtor's property, an application for the issue of a writ of execution for the compulsory execution of the ICAC decision administered by the Moscow City Court). The application shall be accompanied, among other things, by: 1) a certified original decision of the ICAC or its certified copy; 2) the original arbitration agreement or its certified copy.

The application is considered by the judge alone within a month, with the notification of the parties. When preparing a case for trial, the judge may demand from the ICAC the materials of the case for which the writ of execution is requested.

Article 239 of the APC RF indicates the grounds for refusing to issue a writ of execution. These grounds coincide with those that are grounds for canceling the decision of the arbitral tribunal in accordance with Art. 233 APC RF:

1) invalidity of the arbitration agreement on the grounds provided for by federal law;

2) failure to notify a party about the election of arbitrators or about arbitration proceedings;

3) the adoption of a decision by the arbitral tribunal on a dispute not provided for by the arbitration agreement;

4) non-compliance with the agreement of the parties or the law of the arbitral tribunal or the procedure of the proceedings;

5) the dispute considered by the arbitral tribunal cannot be the subject of arbitration in accordance with federal law;

6) violation by the decision of arbitration of the fundamental principles of Russian law.

In addition, Art. 239 of the Arbitration Procedure Code of the Russian Federation contains one more reason: the decision has not yet become binding on the parties to the arbitration proceedings or has been canceled, or its execution was suspended by an arbitration court or another court in the Russian Federation, or by a court of another state on whose territory this decision was made, or a state, whose law applies.

In accordance with Art. 14 of the Federal Law "On Enforcement Proceedings", orders of execution issued by courts on the basis of decisions of the International Commercial Arbitration and other arbitration tribunals must be presented for execution within six months. Thus, a six-month deadline is set for the execution of decisions of the ICAC, while a period of three years is set for the execution of decisions of foreign commercial arbitrations (Article 80 of the Federal Law "On Enforcement Proceedings", Article 246 of the Arbitration Procedure Code of the Russian Federation).