Арбитрабильность корпоративных споров (The Arbitrability of Corporate Disputes)

Research output: Working paperResearch

Issues of arbitrability are highly debated in the academic literature; however, due to the country-specific requirements of arbitrability, the legal approaches vary significantly in different jurisdictions. Nevertheless, one may note the common regulatory trends and converging judicial practice. It is specifically important in the sphere of corporate disputes, where national rules on arbitrability have direct impact on the availability of effective dispute resolution mechanism for foreign and domestic shareholders and other parties to corporate disputes. Accordingly, in this sphere in addition to the general rules on arbitrability, arbitral institutions adopt specific rules, giving procedural guarantees to such parties and making certain jurisdictions more arbitration-friendly for them.

In the research paper, we developed a structural analysis of types of corporate disputes depending on their arbitrability status under Russian law in comparison to foreign jurisdictions. We analysed the recent Russian court practice (including such cases as NLMK v Maksimov, disputes over state procurement contracts and lease of forest land) in the light of contemporary foreign jurisprudence. We conducted a comparative analysis of foreign institutional rules and guidelines on class and corporate arbitration, including the American Arbitration Association Policy on Class Arbitrations and Supplementary Rules for Class Arbitrations; Judicial Arbitration and Mediation Services (JAMS) Class Action Procedures; Deutsche Institution für Schiedsgerichtsbarkeit (DIS) Supplementary Rules for Corporate Law Disputes; Informe sobre el Arbitraje Societario en España.

We critically assessed the new Russian Draft law on domestic commercial arbitration and concluded that it generally complies with the best international practices. Among the advantages of the Draft we identified the more flexible definition of arbitrability (tied to the parties´ free disposition of procedural rights and not limited to the right of settlement), the statutory list of non-arbitrable disputes and the detailed regulation of corporate dispute settlement. The disadvantages of the Draft include the lack of connection between the general criteria of arbitrability and those applicable specifically to the corporate disputes, and unreasonable expansion of intra-corporate disputes´ requirements on all other types of corporate disputes. We structured the thesis in five substantive chapters, each dealing with different aspects of arbitrability: general observations and historical development of the legal phenomenon; the distinction between subjective and objective arbitrability; the role of state courts and arbitral tribunals in the determination of arbitrability; the notion of corporate dispute in the Russian law and the classification of corporate disputes on the arbitrability criterion; problems connected with arbitrability in the corporate disputes and recent developments in the field of corporate arbitration.
Original languageRussian
Number of pages179
DOIs
Publication statusPublished - 2015

Bibliographical note

The paper represents my master student research in the Russian School of Private Law, Moscow (academic supervisor: Sergey Usoskin; peer-reviewer: Alexey Zhiltsov).

    Research areas

  • Faculty of Law - Arbitrability, Corporate Disputes, Shareholder Agreements, International Commercial Arbitration, Russian law

ID: 233799900