Is friendship to arbitration just to be merely stated ?

It is not bad to prove to be a friend to arbitration by one’s own conduct, since it is too easy just to state it.

In the Dredging and Maritime Management SA v. Inzhtransstroy JSC case[1], the Moscow Arbitrazh Court, and on 26 September 2018 the Supreme Court of Russia have refused to enforce an ICC award.

These Courts have held that an arbitration agreement which provided that the dispute was to be resolved in accordance with the Rules of Arbitration of the International Chamber of Commerce was clearly not providing that the dispute had to be referred to the ICC International Arbitration Court.

Such a finding is very unsatisfactory indeed since it does not seem to convey – even if probably inadvertently – a feeling of friendship to arbitration.

It is true that in the abstract sense, there might be more than one International Chamber of Commerce, but it is well known that the Rules of Arbitration of the International Chamber of Commerce are those of the ICC. It is always also conceivable, in the abstract sense, that arbitration be governed by the ICC Arbitration Rules, but administered by another arbitration centre or that it be an ad hoc arbitration but, to borrow an expression frequently used by English Courts, such a hypothesis would have “little business sense” and their different construction of the intention of the parties is indeed not convincing.

If these Courts had other reasons not to enforce the award, it might then have been preferable to base their decision on such other grounds and to state it.

[1] A 40-176 466/2017) reported by Baker McKenzie, Moscow.

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This article has been published by Mauro Rubino-Sammartano on Lexology

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