Статья:

Theoretical and practical aspects of applicable law in the field of international commercial arbitration

Журнал: Научный журнал «Студенческий форум» выпуск №11(62)

Рубрика: Юриспруденция

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Тургунбай А.А. Theoretical and practical aspects of applicable law in the field of international commercial arbitration // Студенческий форум: электрон. научн. журн. 2019. № 11(62). URL: https://nauchforum.ru/journal/stud/62/48925 (дата обращения: 23.04.2021).
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Theoretical and practical aspects of applicable law in the field of international commercial arbitration

Тургунбай Аяна Алмаскызы
Master International law of ENU named after L.N. Gumilyov, Kazakhstan, Astana

 

The arbitration agreement may include a notice of applicable law. The arbitral tribunal shall consider the dispute in accordance with the rights chosen by the parties. Any proposed law of a particular state should be interpreted as referring to the non-collusive, materialistic right of that State. There are four different questions arising from the law applicable to international arbitration:

- determination of material rights applicable to the subject matter of the dispute;

- to determine the material rights applicable to the arbitration agreement;

- to determine the procedural law applicable to the arbitral proceedings;

- сonflicts of rights used to identify each of the above laws.

In determining the dispute relating to the dispute, the arbitrators shall, in accordance with the agreement of the parties. If the parties can not agree, the arbitral tribunal shall choose the applicable law depending on the circumstances of the case.

The parties to the arbitration agreement may agree to the terms of the arbitration agreement, whereas the parties to the arbitration agreement are often considered to be the seat of the arbitration if the parties are unable to agree on the applicable law.

In many cases, procedural law is the arbitration law of the arbitral area. This law covers all matters relating to arbitration, such as appointment of arbitrators, procedural charts and rules, etc. adjusts. In addition, the arbitral tribunal may decide on a collective bargaining right applicable to each applicable law [1]. Now, let's analyze international legal norms and foreign experience. The 1961 European Convention on International Commercial Arbitration approved a contradictory hierarchy of laws that would be aimed at selecting competent material rights. Depending on the nature of the dispute, the parties to the dispute may choose the applicable law applicable to the arbitrators. In the event that the parties are unable to agree on the applicable law, the arbitrators choose the applicable law, which is established in accordance with the conflict rules and is deemed appropriate (viii, p. Basically, the place of arbitration is used in the place of conflict of interest [2].

Article 1496 of the French Code of Civil Procedure of 1975 states that if the right to use the parties is not chosen, the arbitrators may choose the applicable law, which, in turn, indicates that arbitrators are not in need of a collective law. The analogy is contained in Article 18 of the Civil Procedure Code of the Netherlands, Article 18 (1054.2) [3].

In contrast to the Supreme Court, international commercial arbitration shall be governed by the right of collective exercise as it deems appropriate to seek the right applicable to the treaty. Thus, in accordance with the provisions of the Arbitration Institute of the Stockholm Chamber of Commerce in 1999, in accordance with the provisions of the 1998 Arbitration Court of the International Chamber of Commerce, the applicable arbitration rules apply to arbitration. The 1994 Inter-American Convention uses the most closely linked criterion as a common and unique criterion for obtaining a right to an international commercial agreement. According to Article 9 of this document, such right is defined by the right of the State to which the most closely related contract is found, unless there is a right which the parties have to deal with with any foreign matter. In the absence of consensus by the parties to the laws of most foreign states and to some international conventions, the definition of the right to be applied to contractual obligations shall be settled on the basis of a joint arrangement whereby a foreign element approved for any contract can be aggravated, namely, Article 186 of the Yemeni 1928 International Private Law Act). This criterion should be applied in the CIS Conventions, in particular, in Article 11, paragraph "e» of the Kyiv Agreement, in the regulation of international commercial agreements referred to in Article 41 of the Minsk Convention and concluded between Russian and other parties to these conventions. The criteria for the implementation of the treaty as a key element in the legislation of other countries (Article 834 of the Civil Code of 1995, Article 17 of the Cuban Civil Code of 1987, etc.). In a number of states, for example, in Turkey and in Peru, there are a number of additional links that are the basis for contractual obligations (instead of concluding a contract, the law governing the exercise of the class, the law closely related to the contract, etc.). Other common links that apply to the agreements envisaged by the laws of foreign states may be divided by the location of the venue (paragraph 2 of Article 9 of the Brazilian Civil Code of 1942) [6]. In the Civil Code of the Russian Federation, the Law of "Close Relation" was broadly established by the adoption of specific collusion agreements for certain types of contracts (paragraphs 2-8 of Article 1211 of the Civil Code of the Russian Federation). With the help of these links, the law of the state where the seller's place of sale or the principal place of sale (seller's law) is located; lease agreement - the law of the lessor; the contract of carriage - the carrier's law; the contract of freight forwarding - forwarding law; Financing agreement on money claim - the law of a financial agent and so on. the law applicable to the sale contract can be determined [7]. Article 44 of the Law on Arbitration of the Republic of Kazakhstan concerns the applicable law and is criticized. When dealing with the applicable law, it is important to distinguish: 1) the right to apply for arbitration; 2) the right used to consider the subject matter of the dispute.

In accordance with Article 44 (2) of the Law of the Republic of Kazakhstan on Arbitration, in the absence of consent of the parties to applicable law, the arbitration shall be determined in accordance with the legislation of the Republic of Kazakhstan. This subparagraph of the Arbitration Act contradicts Article VII, paragraph 1, of the European Convention for the Suppression of Commercial Arbitrage. The European Convention on Foreign Trade Arbitration grants the jurisdiction to determine the applicable law to be used by the arbitral tribunal in accordance with the conflict rules and does not link arbitration with the jurisdiction of the land, ie the right of the Republic of Kazakhstan. The European Convention grants the arbitrators the right to determine the applicable conflict of law, if the parties do not agree. In choosing the right to be used, the arbitral tribunal was deemed to be guided by the arbitration rules of the arbitration, which was regarded as analogous to what the judge of a public court should do to resolve an international dispute. Granting the arbitrators the right to choose a collision norm was made to arbitrate in a national system to limit the effect of the system. To that end, the European Convention has ratified its provisions [8]. Paragraph 3 of Article 44 of the Arbitration Act of the Republic of Kazakhstan, in the absence of the rule of law governing specific relations, shall settle the arbitration in accordance with the business practice applicable to the transaction. This provision of the Arbitration Act limits the practice to the extent of transactions. Experts also deal with civil law relations complicated by foreign elements. Paragraph 2 of Article 10 of the Arbitration Tribunal states that business practice is widely used in the application of civil law provisions. Definition of the practice of business circulation is not provided in the civil legislation of the Republic of Kazakhstan, the Civil Code. The introduction of this definition into the arbitration law has led to a narrowing of the concept of business circulation. Arbitration should decide on the practice of business circulation and should not be subject to the circumstances. Many national legislations adhere to the principle of independence of arbitration, recognizes the arbitration agreement as an independent agreement. For this reason, the parties have the right to choose the right to exercise arbitration agreement. This can be the case with the right chosen by law, but in practice it is a rare case. In many cases, the parties do not reflect the rights applicable to arbitration. The law enforcement law applicable to the arbitration agreement shall be considered only when the issue of validity of the arbitration agreement is raised. The validity of the arbitration agreement shall be governed by the law of the subcontinental, and in the absence of such indication, the decision shall be governed by the law of the country where it is adopted. This provision is contained in Article V (1) (a) of the New York Convention, in Article 34 (2) (a) (i) of the UNCITRAL Model Law [9]. Article IX (1) (a) of the European Convention regulates the question of the law applicable to the arbitration agreement, which states that the arbitration agreement is the law that the parties have chosen, and the law of the country to which the decision should be taken. If the parties do not indicate the right to be applied to arbitration, the difficulty in determining the country to which the arbitral award should be issued, should therefore be based on the collective rules of the country in which the proceedings were initiated. Validity of the arbitration agreement shall be determined by the Law of the Republic of Kazakhstan as specified in subparagraph 1 of Article 57, paragraph 1, and article 255, paragraph 1, paragraph 1 of the Civil Procedure Code. As the Arbitral Tribunal relates to the arbitration that has been established in the Republic of Kazakhstan, the decision-making place is the Republic of Kazakhstan. These standards are consistent with international practice in determining the validity of the arbitration agreement. Article V (1) (a) of the New York Convention is contrary to Article IX (1) (a) of the European Convention, where the parties have no instances of the enforcement of a foreign arbitral award in the territory of the Republic of Kazakhstan where there is no applicable law of arbitration . Article 57, paragraph 1, subparagraph 1 of the Arbitration Act and subparagraph 1 of paragraph 1 of Article 255 of the Civil Procedure Code refer to the law of the country where the conventions were passed, where the provisions of the law were adopted. In this case, the validity of the arbitration agreement must be determined by the law of the country where the foreign decision is made, and it is clear that the Conventions should be applied, not the Arbitration Act [10]. Finally, the problem of law enforcement is different in each state. The law of the Republic of Kazakhstan on arbitration also deals with the issue of law, which is criticized by positive aspects. This, in turn, creates difficulties in arbitrating a decision and contravenes international standards. This makes the arbitration law changes.

 

References:
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2. Европейская конвенция о внешнеторговом арбитраже 1961 года
3. Мосс Д.К. Автономия воли в практике международного коммерческого арбитража / под ред. А.А. Рубанова. — М., 1996. 25-25 с.
4. Journal officiel de l’Union europeenne L 177 du 4.7.2008 / пер. Ю.А. Четверикова, 9, 102с.
5. Межамериканская конвенция 1994 года, ст.9.
6. Чешир Дж., Норт П. Международное частное право / под ред. М.М. Богуславского. — М., 1982.
7. Современное международное частное право в России и Евросоюзе. Кн. первая: моногр. / под ред. М.М. Богуславского, А.Г. Лисицына-Светланова, А. Трунка. — М., 2013.
8. Международный коммерческий арбитраж. Учебник / Под ред.: В.А. Мусина, О.Ю. Скворцова. СПб.: АНО «Редакция журнала «Третейский суд»; М.: Инфотропик Медиа, 2012. С. 42-45.
9. Сулейменов М.К., Дуйсенова А.Е. Достоинства и недостатки нового Закона об арбитра-же // http://www.zakon.kz/4796696-dostoinstva-і-nedostatki-novogo-zakona.html