(Русский) Алексей Александрович Костин (МКАС при ТПП РФ) и Александр Владимирович Гребельский (АЦ при РСПП) ответили на вопросы главного редактора журнала Цифровое право (Digital Law Journal) Максима Игоревича Иноземцева о цифровизации сферы третейского разбирательства.

(Русский) Публикация подготовлена по мотивам выступления в рамках круглого стола, проведенного 15 апреля 2021 г. Комиссией по третейскому разбирательству Ассоциации юристов России.

(Русский) В своей колонке для информационного портала "Сфера" Александр Гребельский обосновывает, что несмотря на наличие у современного инвестиционного арбитража существенных недостатков, ему нет реальной альтернативы. Возможно поэтому Россия в рамках своей работы в ЮНСИТРАЛ последовательно выступает за сохранение инвестарбитража в его современном виде.

(Русский) В декабре 2020 года в издательстве Edward Elgar Publishing вышел сборник статей, посвященный Гаагской конференции по международному частному праву, – The Elgar Companion to the Hague Conference on Private International Law.

(Русский) Во исполнение международно-правовых обязательств Российской Федерации перед Группой государств против коррупции (ГРЕКО) в ноябре 2020 года вступили в силу поправки к УК РФ, устанавливающие ответственность за подкуп арбитра.

As a result of restrictions caused by the COVID-19, the procedure of international arbitration has changed. In particular, oral hearings, which had been held in person previously, started to be conducted remotely using video conferencing platforms. Despite some advantages of this method, it raises several practical and legal concerns, including the risk of possible setting aside of the final award or its non-enforcement.

In October 2019, Oxford University Press published "A Guide to the IBA Rules on the Taking of Evidence in International Arbitration", one of the co-authors of which is Roman Khodykin, a renowned specialist in the field of International Arbitration. According to the reviewer, Alexander Grebelsky, the new publication, due to the deep level of elaboration of certain issues and a truly international approach that is not confined to a single legal system, will become the leading doctrinal source on evidence in international arbitration.

The Statut Publishing House has published a new Textbook on International Commercial Arbitration. The Textbook edited by Prof. Doctor of Law O. Skvortsov, Prof. M. Savransky, Ph.D., and Chief Editor of the “Arbitration court” journal G.V. Sevastyanov, Ph.D., was prepared by a team of famous Russian and foreign researchers and practitioners.

One of the issues raised by the reform of the professional legal services market is the form of activity of foreign law firms that is acceptable in the territory of the Russian Federation. Evaluation of the experience of the most important foreign jurisdictions on this issue has shown that many barriers still exist in most countries for international law firms. For example, in the BRICS countries, there are strict restrictions on foreign law firms' ownership of shares in local law firms, on foreign lawyers' practice of local law, and even on employment of national lawyers by foreign law firms. However, this does not prevent international law firms from engaging with closed markets and consolidating national offices in specific forms.

The Statut Publishing House published a collection in memoriam dedicated to two scientists, practitioners – professors Vitaliy Alekseevich Kabatov and Sergey Nikolaevich Lebedev. The collection includes an article by Alexander Grebelsky, written in memoriam of his scientific adviser, Professor Sergei Nikolaevich Lebedev.

As one of the possible sanctions on the party, whose conduct during the disclosure of evidence in the arbitration proceedings may be qualified as unfair, are the so-called adverse inferences (conséquences défavorables). One such conclusion may be the evidence-based presumption that the controversial fact is proven.

With the growth of electronic document management, electronic evidence has gained particular importance in international commercial arbitration. Parties of arbitration proceedings must take into account the specifics of electronic information, especially in relation to the procedure for its disclosure and research.

Despite a strong preference for documentary evidence to witness testimony of both in the continental civil process and in international arbitration, such a means of proof is quite common here and can often be decisive in establishing the facts of the case.

Documentary evidence is the most common and of the highest evidentiary value in international commercial arbitration. The procedure of its submission in arbitration is based on the continental civil procedure rules and the vast majority of the existing arbitration rules provides for a so-called limited disclosure. The article substantiates the conclusion that due to the natural limitations of the cross-border nature of the dispute the parties should be able to require the disclosure not only of specific documentary evidence but also the specific “narrow” category of documents. For a more comprehensive analysis of the problem the author does a comparative study of the civil procedure rules dealing with the production of documentary evidence in courts of England, USA, Germany and Russia.

The article is devoted to tribunal-appointed experts in International Commercial Arbitration. The author explores the features of expert evidence in relation to arbitral proceedings and its differences from the expertise in civil proceedings in Russia and abroad. The article lists the sources of regulation for appointing of expert, studied the power of arbitrators on expert appointment, the role of their own special knowledge, the ways to achieve an agreement between the parties on the issue of expert, the process of the appointment and transfer of materials to the expert, the form and content of his report.

The article tries to identify the criteria for determining the nationality of a legal entity making investments at the territory of the recipient State. Compliance with these criteria allows investors to receive protection against unlawful actions of the state getting the investment, based on bilateral and multilateral agreements on the protection of foreign investments.

The article describes the problem of interaction between international commercial arbitration and state courts in providing the latter with assistance to the parties and arbitral tribunals in prescribing interim measures, as well as in obtaining evidence.

The article describes the approach to the distribution of the burden of proof, emerging in international commercial arbitration, through the prism of universal categories of evidence, which have received wide international recognition and application in arbitration. In addition, an attempt is made to answer the question of how applicable substantive law can affect the distribution of the burden of proof.

The article studies the possibility of transferring corporate disputes to international commercial arbitrations. The author compares the regulatory framework and judicial practice regarding the classification of corporate disputes as arbitrable in the Russian Federation and foreign countries.

Holding a general meeting of shareholders, in addition to strict imperative rules, is also regulated by a large number of dispositive rules, which give participants of corporate relations the right to decide how to act in a given situation. Correct consolidation of the chosen model in the charter and other internal documents of the company allows you to "set up" the general meeting in accordance with the interests of the shareholders and the goals of the management.

Practice shows that in many joint-stock companies, shareholders have not received dividends for years, even though the company has profit. Why it happens? The reasons are in the approaches that are applied in Russian legislation to the issue of regulating the right to dividends.

The article distinguishes between the concepts of “confidential information”, “official information” and “insider information”, and also criticizes the methods developed by the legislator for protecting these categories.

The choice of a method for protecting the violated right of ownership of real estate must be justified, adopted taking into account the specific situation. The method of protection of the right determines the methods of proof and the evidence given by the plaintiff in support of his claims. The legal nature of the basis on which the property was disposed of from the joint stock company is the starting point in choosing a method of protecting the violated right.

The Civil Code of the Russian Federation uses two concepts: (1) “termination of che contract at the request of one of the parties” and (2) “refusal to execute the contract”. The first option involves a dispute resolved in court, but to achieve the desired result through the second option, the will of only one contracting party is sufficient.

Claims for the recovery of property from illegal possession occupy a huge niche in Russian case law. However, the lack of uniformity in the courts' approach to resolving disputes in this category forces the higher courts to turn to systematization and generalization of these issues again and again.