International commercial arbitration and Russian-Argentine relations

On December 9, 2008, the Argentine Chamber of Commerce (CAC) and the Chamber of Commerce and Industry of the Russian Federation (ICAC) signed an agreement to make the resolution of disputes that might arise in bilateral commerce —and other economic relations, even investments, among individuals or legal entities domiciled in both countries— easier.

Under this agreement, both Chambers undertook to recommend parties in a commercial contract to include an arbitral clause in it, and that institutional arbitration of the Center of Mediation and Commercial arbitration (CEMARC) of the CAC and that of the ICAC be agreed, a choice that will be defined depending on whether the defendant’s domicile be in Argentina or in the Russian Federation.

Unlike our country, the Russian Federation has had an Arbitration Law since July 1993 that is taken primarily from Arbitration Model Law CNUDMI (1985). Furthermore, the ICAC Rules, released in 2006 are based, just like the CEMARC Rules, on the Rules of Arbitration of the International Court of the International Chamber of Commerce (CCI).[1]

When writing the arbitral clause, the following Law differences should be taken into account:

a) The scope of arbitrability of certain matters;

b) The consequences of the lack of choice, under ICAC Rules, of the seat of arbitration and language; namely for Moscow to be the seat of arbitration –with its consequent lex arbitri— and the Russian language that of the arbitration

Since the Russian Federation adopted in September 2002 its new Procedural Court “Arbitrazh”, whose rules are applicable to international arbitration, the Arbitrazh Court has exclusive jurisdiction to hear all processes related to international commercial arbitration.[2]

As regards recognition and enforcement of awards, although both countries are signatories of the New York Convention of 1958, legal opinion set forth certain trend of judges in both jurisdictions to revise the merits of the award, violating international conventions previously agreed by parties.

Finally, getting back to the signed agreement, both Chambers undertook to provide organizational assistance —including, premises and administrative support services— for ad-hoc arbitration in the territory of both countries;[3] as well as to coordinate meetings to discuss issues related to the development of the agreement, as with the Law of both countries, and activities of different institutional arbitration centers.