Sarina Salima

Ph.D., associate professor of the department of private law disciplines

Caspian social university. Republic of Kazakhstan

International arbitration in CIS countries and in the EU

In the circumstances of the increasing world economy the international dispute resolution is being to be rather a current problem not only for the practicing lawyers but for the legal science too. In some cases it is preferred to settle disputes in the international arbitration courts acting at the present time in vast majority of EU and CIS countries.

This process is caused by some groups of factors. The increase of the dependence of the industrial countries of the Western Europe on the energy supplies from outside will lead to the significant increase of oil, gas, derived products delivery as well as delivery of electricity from the Republic of Kazakhstan, the Russian Federation and other CIS countries. In its turn for the more dynamic development of the economy of the CIS countries it will be required more volume delivery of the high-tech solutions, mechanical productions and delivery of investment assets from the EU. The development of the international cargo transportation and logistics in the transit states, laying of new communication lines between the East and West, extreme increase of the part of the electronic trade and international building industry – there are the directions which need the secure legal defense nowadays.

It was chosen solely some EU and CIS countries for the unified overview which are the essential economic leaders in their super national formations and where are absent their own traditions of dispute resolution in the scope of the international commercial arbitration:

European Union-

· Germany

· Great Britain

· Sweden

· France

Germany itself accumulates nowadays more than 40% of all economic potential of the European Union. Geographically it is situated in the middle of the EU after its extension due to the states of the East Europe which took place on the 01. May 2004. Besides the enterprises of this state took the first place in the Republic Kazakhstan in the sphere of investment to the national economy. In spite of rather primitive in comparison with other European state tradition to settle commercial disputes in the international commercial arbitration in Germany, it can be underlined the Arbitration Court by the Trade Chamber in Hamburg (Schiedsgericht der Handelskammer Hamburg) [1].

Great Britain and London Court of International Arbitration (LCIA) by the CCI London situated on its territory are of great interest because of the volume of certain cases. It is also worth to mention that the company of this state play significant role on the process of investment to the economy of the CIS countries – from the oil to the high technology sector [2].

Sweden is first of all interesting as a place of arbitration dispute resolution. Nowadays the Arbitration Institute of Stockholm Chamber of Commerce has a wide range of legal cases with the participation of european and kazakh parties. Besides that the big scandinavian building and trade companies stand in recent years as investors of the biggest industrial projects not only in the Republic of Kazakhstan but also in the Russian Federation [3].

France is a second member-county of the EU as for the economic significance. Besides that the International Chamber of Commerce and ICC International Court of Arbitration are situated on its territory where the latest is a worldwide known [4].

Commonwealth of Independent States-

· Russian Federation

· Republic of Kazakhstan

· White Russia

· Republic of Ukraine.

Republic of Kazakhstan as well as Russian Federation are among the CIS countries the main economic leaders with dynamic and steady developing sectors of mining and processing industry. The diversification of the economy of these states is successfully which depends less from the export of the raw materials and in its turn begins to tap the market of good with the high degree of refining. At the same time the trade promotion of the inexhaustible resource – electricity to the West makes its sector of economy more attractive for the local and foreign investment and increases the economic and strategic potential of the states.

As for the development of legislation in this sphere the Russian Federation has among the CIS countries the most developed system of market laws. First of all the tradition of dispute resolution in the International Commercial Arbitration Court by the CCI of the Russian Federation in Moscow existing more than 70 years should be analyzed in this scientific research [5].

Republic of Kazakhstan. The development of the business activity and liberalization of the foreign trade in the Republic of Kazakhstan gave the opportunity for the local entrepreneurs to come into the foreign market. Namely this is making its own business and establishing the contacts with the foreign partners. Concluding the international contracts the parties define by the mutual agreement the contract’s provisions, the rights and obligations of the parties as well as the way of resolution of potential disputes that allows to avoid the legal uncertainty in case of any disputes or disagreements between the contracting parties.

One of such bodies in Kazakhstan is turned to be the Arbitration Commission by the ICC of the Republic of Kazakhstan which was established on the 5-th of October 1993. Due to the adoption the law “About the international commercial arbitration” in 2004 the Arbitration Commission was renamed to the International arbitration court by the ICC of the Republic of Kazakhstan.

A set of international documents was concluded with intent to strengthen and develop the economic relations, to reach the agreement and cooperation as well as at the local and international level in the sphere of economic activity which is considered to be as a legal basis from which the economic cooperation comes of new age.

It was developed the certain legal base in the Republic of Kazakhstan which gives the opportunity to settle disputes in the international commercial arbitration. First of all it is worth to mention the Law of the Republic of Kazakhstan dated from the 28-th of December 2004 “About the international commercial arbitration” which defined the basic principles of dispute resolution by the international commercial arbitration. Besides that the Republic of Kazakhstan has ratified the set of international multilateral and regional conventions in this sphere. First of all it is worth to mention the New-York Convention about the recognition and enforcement of international arbitral awards dated from the 1958 which grants the unified provisions of recognition, enforcement and refusal of enforcement of the international arbitral awards in all member-states of this convention.

However despite of the availability of the specific legislation in this sphere a lot of matters are still not resolved. In particular it is required to examine further the definition of “international commercial arbitration”, “arbitration court”, “arbitration award”. The definitions contained in the legislation have certainly advantages but from the scientific point of view have some uncertainty that gives raise to define and offer the other more precisely reflecting the essence of these occurrences and corresponding to the modern requests of science of international private law [6].

White Russia has among the discussed CIS countries the law regulating the procedure of dispute resolution in the scope of international commercial arbitration (entered into force in 1999) as well as International Arbitration Court the CCI of the White Russia in Minsk established in 1994. Just after adoption of the specific Law in 1999 its activity (trials due to the received claims) and its results (rendering of decisions, conciliation of parties and conclusion of amicable agreements, completion of cases through proceeding) can be considered parallel and adequate with the activity and its results in the international arbitration courts in other CIS and EU countries.

A geographic place of the Republic White Russia, its role as a main transit corridor from the EU to the CIS countries as well as the diversification of spheres of its economy emphasizes this state from the total amount of the countries discussed in this scientific research [7].

The choice of four CIS countries is conditioned also by the future integration in the scope of the EurAsEC and Customs Union the agreements of establishment of whose’s were ratified by the parliaments of all member-state of these communities.

The rational of the topic of the scientific research is explained to the considerable degree through the role which plays an international commercial arbitration in dispute resolution in foreign trade. There are concluded daily a lot of different contracts that in its turn leads to the raise of amount, difficulty and immensity of international commercial disputes. A legal system is not able to grant a timely and proper resolution of such disputes. This and other causes make an international commercial arbitration day by day more significant. As one of the luminary of the science of international private law Mr. M.M. Boguslavskij truly notes: “The wide development of international economic relations specifically cooperation in the sphere of production, science and technic between the organizations of different countries make the problem of arbitration dispute resolution extremely of high priority” [9].

The specific of dispute resolution by the international commercial arbitration is in comparison with the competent court has led a lot of modern authors to the necessity of its detailed research. As Aristotle said: “An arbiter is attracted by the justice, a judge by the law; arbitration was set up in order to implement the justice.” This feature takes up today place in the basis of this legal institute.

List of references

1 Schiedsgerichtsordnung der Deutschen Institution fuer Schiedsgerichtsbarkeit, 1998 // www.dis-arb.de

2 Rules of the London Court of Arbitration, 1998 //www.lcia.org

3 Rules of the Arbitration Court of the Stockholm Chamber of Commerce, 1999 //www.chamber.se

4 Rules of Arbitration of the International Chamber of Commerce, 1998 // http://www.iccwbo.org

5 Law of the Russian Federation "On International Commercial Arbitration" 1993 // www.arbt.ru

6 Law of the Republic of Kazakhstan "On the International Arbitration Court" 1999 // http://www.zakon.kz

7 Rules of the International Arbitration Court of the Belarusian Chamber of Commerce, 2004 // www.cci.by