Arbitration and the ICAC at the RF Chamber of Commerce

What is happening

A contract with a foreign supplier refers disputes to the ICAC. The delivery has fallen through, the prepayment has not been returned, and the company needs to bring a claim under rules that differ from the familiar commercial court procedure.

A contract between two Russian companies contains an arbitration clause, but it is poorly worded: the institution's name is wrong, or a neighbouring clause sends disputes to the state courts. Before filing a claim you need to know where it can be filed at all.

An award has already been made. The winning party wants a writ of execution, and the losing party wonders whether the award can be set aside. Both are matters for the state courts, on a narrow set of grounds.

What the law says

• Domestic arbitration is governed by Federal Law No. 382-FZ of 29 December 2015 "On Arbitration (Arbitral Proceedings) in the Russian Federation", and international commercial arbitration by Law of the Russian Federation No. 5338-1 of 7 July 1993 "On International Commercial Arbitration". The Regulations on the ICAC are an annex to the International Commercial Arbitration Law.
• A dispute goes to arbitration only if there is an arbitration agreement in writing, either a clause in the contract or a separate agreement. Imprecise or contradictory wording is a frequent cause of jurisdictional disputes that drag the case out.
• Arbitration may be administered by permanent arbitral institutions that have obtained the right to do so in the prescribed manner. Ad hoc arbitration is allowed, but with restrictions: in particular, it cannot hear corporate disputes.
• Not every dispute is arbitrable. Insolvency cases and disputes under contracts governed by Federal Law No. 44-FZ of 5 April 2013 "On the Contract System for Procurement of Goods, Works and Services for State and Municipal Needs", for example, are heard only by the state courts.
• An award is not reviewed on the merits. It may be set aside, or enforcement refused, only on the grounds listed in the law and the Commercial Procedure Code (APK); an application to set aside is filed within three months of receipt of the award, unless the parties have expressly agreed that the award is final.
• Compulsory enforcement requires a writ of execution issued by a state court. Foreign arbitral awards are recognised and enforced in Russia on the basis of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the APK.

What we do

• We analyse the arbitration clause: whether it is valid, which institution and rules apply, and whether the dispute is arbitrable.
• We prepare the statement of claim or defence under the rules of the arbitral institution, including the ICAC.
• We help choose an arbitrator where the rules give the parties that right, and make sure the appointment procedure is followed.
• We prepare written submissions, witness statements and expert reports, and represent the company at hearings.
• We apply for a writ of execution, or for recognition and enforcement of a foreign arbitral award.
• We challenge awards in the state courts or defend them against challenge.
• We draft arbitration clauses for new contracts so that a future dispute does not begin with an argument about jurisdiction.

What we will need from you

• The contract containing the arbitration clause, with all annexes and translations if it is in a foreign language.
• Documents on performance: invoices, specifications, transport and customs documents, payments.
• Correspondence with the counterparty, including in foreign languages.
• Information on the counterparty: country of registration and assets in Russia and abroad.
• If an award has been made: the award, proof of its receipt and the materials of the arbitration.
• A power of attorney to represent the company.