Separability of Arbitration Agreement

21.12.2014

Источник: The Russian Arbitration Association (RAA)

The claimant challenged an arbitration clause alleging the following: the arbitration agreement (clause) is contrary to the concept of the impartiality and independence of arbitrators because the arbitration tribunal, which the parties had chosen as forum for dispute resolution arising from the contract, is affiliated with one of the parties of the contract. In Russian this concept is based on the previous decisions of the Supreme Commercial (Arbitrazh) Court that if an arbitral tribunal is affiliated with a party of the arbitration hence any arbitration proceedings between these parties before such arbitral tribunal is not comply with fair and equitable consideration of a case (for more information see: Mikhail Samoylov, ‘Impartiality and independence of party-affiliated arbitral institutions in Russia’. The court ruled in favor of the claimant (Judgment).

The Supreme Court of Russia upheld the ruling of the court. Moreover, the Higher court inter alia confirmed the separability presumption of an arbitration agreement, namely, both the main contract and the arbitration clause (agreement) are two independent civil contracts.

On 28 November 2014 The Constitutional Court of the Russian Federation has pronounced the judgement on constitutionality of certain requirements for the impartiality and independence of arbitrators. The judgement would have effect on mentioned above the practice the Supreme Commercial (Arbitrazh) Court. 

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