Stepanova I.A. The Arbitration Agreement Concluded within the International Commercial Arbitration: Basis for the Choice and Issues of the Applicable Law

DOI: https://doi.org/10.15688/lc.jvolsu.2019.1.3

Irina A. Stepanova, Notary of Volgograd, Marshala Eremenko St., 19, 400123 Volgograd, Russian Federation; Candidate for a Degree of the Department of Civil Law and Process and International Private Law, Peoples’ Friendship University of Russia, Miklukho-Maklaya St., 6, 117198 Moscow, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it. https://orcid.org/0000-0003-2296-9368

Introduction: nowadays in the conditions of increase in number of civil conflicts complicated by a foreign element the problem of searching an appropriate way to resolve them is of great urgency. The practice analysis shows that conflicting parties wishing to keep privacy and “healthy” partnership increasingly refer the disputes arising between them to the International Commercial Arbitration and conclude the relevant agreements on it. In spite of the fact that a strict and harmonized system of legal sources is developing in the sphere under consideration in Russia, the presence of a foreign element in the arbitration agreement concluded within the international commercial arbitration predetermines the emergence of a conflict issue, which is not solved obviously. In this regard the main aim of this research is defining the specificity of the arbitration agreement concluded within the International Commercial Arbitration predetermining the emergence of the conflict issue, which requires a special solution. Methods: the methodological framework for the research is general scientific methods (the analysis, synthesis, induction, deduction, generalization, etc.) and specific scientific methods (technical legal method, a method of interpretation of law, etc.). Results: the author reveals the specificity of the arbitration agreement within the International Commercial Arbitration, proposes the solution of the conflict issue arising in case when parties do not include the conditions on applicable law in the text of such an agreement. Conclusions: the author concludes that the agreement on referring a dispute to the International Commercial Arbitration serves as a precondition of its trial in a similar arbitration, its contents depend on the will of the parties, and its specificity is caused by the existence of a foreign element in legal relationships. In order to exclude the problems connected with the impossibility to define the applicable law to the relations of the parties following from the agreement on referring the disputes to ICA, the author offers to add a provision to cl. 1211 of the Civil Code of the Russian Federation stating that in case of lack of the direct instruction in the international contract, law or the agreement of the parties to the arbitration agreement (clause) the law of the state of the arbitration place shall apply.

Key words: agreement, dispute, arbitration agreement, international commercial arbitration, foreign element, applicable law.

Citation. Stepanova I.A. The Arbitration Agreement Concluded within the International Commercial Arbitration: Basis for the Choice and Issues of the Applicable Law. Legal Concept, 2019, vol. 18, no. 1, pp. 23-29. (in Russian). DOI: https://doi.org/10.15688/lc.jvolsu.2019.1.3

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