On August 25, 2020, for the first time in its history, Russian Arbitration Day 2020 was conducted fully online and became the most prominent arbitration related event of the year. The Conference gained more than 2000 views and the number of its authorized viewers exceeded 1800 from 40 countries across the globe, including users from Russia, the United Kingdom, France, Germany, Kazakhstan, Belarus, Switzerland, the USA, Cyprus, Turkey, Ukraine and other countries.
The Conference was organised by the Russian Arbitration Center at the Russian Institute of Modern Arbitration and the LF Academy educational project in partnership with the international law firm Bryan Cave Leighton Paisner LLP.
Traditionally, the three sessions within the Conference dedicated to investment arbitration, general issues in arbitration and procedural issues of international arbitration were moderated by Аnton Asoskov, Аleksey Zhiltsov and Roman Khodykin.
RAD 2020 speakers included Anton Shagalov, Dmitry Andreev, Dmitry Pentsov, David W. Rivkin, Elena Burova, Elena Fedorova, Nadya Darwazeh, Natalia Kisliakova, Sergey Ivanov, Scott Vesel, Stavros Brekoulakis, Stephane Bonifassi, Timur Abushakhmanov, Toby Landau, Stefan Kröll.
Toby Landau spoke on dysfunctional deliberations of the arbitrators and the art of advocacy. “Investment arbitration is no doubt under attack and is often criticized”, Toby Landau insists and refers to issues, which frequently go unnoticed by observers, although they are of paramount importance to both investment arbitration and any other types of arbitral proceedings.
Timur Abushakhmanov researched extinctive prescription in bringing claims within the system of resolving investment disputes. The speaker noted that lately multiple awards had been rendered related to the limitations period doctrine; however, there had been very few relevant theoretical studies on this subject. The speaker also looked into the question of whether the doctrine of laches is applicable to submission of claims in investment arbitration, considered its elements and explained how the burden of proving an extinctive prescription in bringing a claim is distributed between the investor and the host party.
Elena Burova explored the issue of counterclaims submitted by states to foreign investors in light of a recent practice and a new generation of international investment treaties. She emphasized that, to date, stereotype prevailed that within the context of investment arbitration claims may be brought exclusively by investors and the state has to be forever satisfied with the role of a respondent. How justified is such an approach? What are the major complications for states bringing counterclaims against investors and how can they be overcome? The researcher talked separately on changes in the practice of entering into international investment treaties.
Scott Vesel noted that one of the adverse consequences of investment arbitration awards is their annulment based on arbitral tribunal’s lame arguments. The speaker cited cases where arbitral awards were annulled and specifically paid attention to the nuances of appeal in investment arbitration.
Stavros Brekoulakis addressed transnational public policy in international arbitration. In his view, the doctrine of transnational public policy in international arbitration is extremely confusing and is potentially dangerous in terms of resolving international disputes. Besides, he doubted an opinion prevailing among the legal profession that transnational public order is a flexible concept granting arbitrators a wide leeway in issuing awards based on such non-legal notions as morality, value or the principle of universal justice.
In his report, Dmitry Pentsov attempted to foresee the future of trust arbitration in Russia since an increasing interest to trust institutions by Russian businesses was then driving the number of requests for trust dispute arbitration. The speaker also paid a special attention to key issues preventing the development of this phenomenon discovered abroad in the course of the evolution of trust arbitration.
Stephane Bonifassi, Nadya Darwazeh, Elena Fedorova addressed issues related to combating corruption and money laundering. Their report demonstrated the lack of progress and even a certain regress in anti-corruption activities in many jurisdictions regardless of all the legislative steps undertaken in this context.
Stefan Kröll analyzed how initiating bankruptcy proceedings against one of the member states within the European Union may affect the arbitral proceedings in general which was particularly topical due to the 2020 crisis.
Finally, in the course of the last session, David W. Rivkin reminded that arbitrators, parties’ counsels and the parties themselves do not necessarily pursue the same goals and interests within one single arbitration case and called them to an open dialogue at the very start of arbitral proceedings.
Sergey Ivanov and Anton Shagalov thoroughly studied the subject of cross-institutional consolidation of arbitral proceedings when multiple proceedings having various seats of arbitration are consolidated into a single one and raised questions as to whether partial consolidation is possible and what the specifics of certain procedural aspects of international consolidation are.
Dmitry Andreev explored theoretical and practical issues of remission (a procedure within which state courts and arbitral tribunals interact) in arbitration, since the arbitration reform breathed a new life into this institution.
Natalia Kisliakova, using the specifics of the Court of Arbitration for Sports (CAS) as an example, analyzed opportunities and implications of limiting the autonomy of the parties in arbitration and stressed that limitation of the will of the parties is typical for both sports and commercial arbitration.
Gary Born reported on the so called “pathological arbitration clauses”, i.e., clauses containing vague language. In his perspective, the role of arbitral tribunals and national courts, when faced with such badly-drafted contracts, is to assist in improving them and arbitrators should use them as an argument when rendering an award.
In 2020, RAD Award was awarded to Aleksey Zaitsev, PhD in Law, Associate Professor of the Civil Proceedings Department at the Saratov State Law Academy, member of the editorial board of the “Arbitration” journal and an arbitrator, for his treatise “The History of Arbitral Tribunals and Legal Proceedings in Russia (XIV — early XX century)”. The winner was granted the prize in the amount of RUB 150 000. In his acceptance speech, Aleksey Zaitsev noted that there are many blank spots remaining in the history of Russian arbitration and expressed a hope that the recognition given to his work would encourage his colleagues to continue research in this area.
Following the tradition, all the reports, including those, which were not presented at the Сonference, were published in a special digest «New Horizons of International Arbitration. Issue 6».
The video of the conference can be accessed on Legal Academy YouTube channel .