Constitutional Grounds for Arbitration and Arbitrability of Disputes in Russia and Other CIS Countries
pages 123 - 146
ABSTRACT:

Limits of arbitrability are based on balance between constitutional right to protect civil rights by any means which are not directly prohibited by the law, which includes the right to submit a dispute to arbitration, and intention of a state to retain control over certain areas of civil and economic activities. Thus, a state could exclude certain type of disputes from arbitrable, which is understood as limits of objective arbitrability. A state also could limit an ability of certain entities to be a party to arbitration, thus limiting subjective arbitrability. The scope of arbitrable disputes defers from a country to country, depending on level of control the state wants to keep over arbitration. However, there are some features common to some CIS countries: Belarus, Kazakhstan, Russia and Ukraine exclude from arbitrable disputes related to immovable property. There is also a tendency to exclude corporate disputes as well.

keywords
Objective arbitrability
subjective arbitrability
Russia
arbitration
about the authors

Vladimir Khvalei, MCIArb, is a partner in the Moscow office of Baker & McKenzie and heads the firm’s CIS Dispute Resolution Practice Group. Mr. Khvalei is Vice-President of the ICC International Court of Arbitration, chairs the Arbitration Commission of ICC Russia and is also included on the list of arbitrators of the arbitration institutions in Austria, Russia, Belarus and Kazakhstan.

e-mail: vladimir.khvalei@bakermckenzie.com

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