Arbitration analysis: The Russian Arbitration Association (RAA), a non-commercial organisation created in 2013, has adopted the RAA Online Arbitrations Rules (the Rules), which came into force on 1 October 2015. Mikhail Samoylov, LLM candidate in International Dispute Settlement (MIDS), discusses the development.
Russian disputes go online
What is RAA Online Arbitration?
Recognising the demand for efficient and fast mechanisms of dispute resolution, the RAA developed the RAA Online Arbitration System. The main feature of this system is the ability to arbitrate commercial disputes through electronic means.
RAA Online Arbitration consists of two elements:
- a web-portal (the RAA system)—which provides an interface for all communications between the parties to the arbitration and with the arbitrator. Parties must register here in order to use the RAA system. There is no registration fee for signing up to the web portal. Provided they are registered, when a dispute arises which the parties have agreed should be resolved by RAA Online Arbitration, the parties may then use the system. Note it is presumed that a valid arbitration clause providing for RAA Online Arbitration according to the Rules exists between the parties. Accordingly, there is no scrutiny of the parties’ arbitration clause before proceedings are commenced
- the Rules—the RAA administers the resolution of disputes by RAA Online Arbitration, in accordance with the Rules, but does not resolve the disputes itself. Note the Rules provide that an online arbitration is administered in accordance with both the Rules and the ‘Internal Rules’. The ‘Internal Rules’ could refer to the RAA Arbitration Rules or another set of rules. The point is not entirely clear
Do the Rules apply to domestic and/or international arbitration?
The Rules do not expressly state whether they apply to domestic or international arbitration. However, article 6.1 of the Rules provides for different scales of arbitration fees for domestic and international disputes.
If the case concerns domestic commercial dispute—ie domestic arbitration—the fee will be 5% of the amount in dispute, subject to a minimum of RUB 50,000. If the case concerns international commercial dispute, ie international arbitration, the fee will be $1,000.
Finally, if there is declaratory relief, the arbitration fee will be RUB 50,000 for each relief. The fee is the same both for domestic arbitration and for international arbitration.
Who decides the disputes?
In arbitration generally the autonomy of parties to choose an arbitrator is well established. However, under the Rules, parties do not have the option to choose an arbitrator. Instead, the Rules stipulate that a case shall be resolved by a sole arbitrator to be appointed by the RAA (art 2.1). In making the appointment, the RAA takes into account any qualifications required of an arbitrator, included in the parties’ arbitration agreement (art 22.214.171.124).
The RAA has an Arbitration Nomination Committee, which consist of seven specialists elected by RAA members. The RAA does not maintain a mandatory list of arbitrators—instead it has a database of persons who are willing to serve as arbitrators. It is highly likely that RAA Online arbitrators will be chosen from this database.
Although it is at odds with the traditional respect shown for party autonomy in arbitration, the control of the choice of arbitrator facilitates the main purpose of the RAA, which is to provide users with a quick dispute resolution mechanism.
Following a nomination, an arbitrator discloses the information regarding his or her independence and impartiality, though it should be noted that this disclosure is not mandatory. The arbitrator may be challenged on this basis (art 2.2).
Statement of claim
The statement of claim shall be submitted online. Indeed, all documents should be uploaded to the RAA system.
Articles 3.1.3–3.1.4 of the Rules provide that the statement of claim shall contain the following information:
- the name in full, description, address including e-mail address of the parties
- reference to the arbitration agreement
- a description of the nature and circumstances of the dispute giving rise to the claims and of the basis upon which the claims are made
- a statement of the relief sought
Together with the Statement of Claim, the claimant shall submit
- a copy of the arbitration agreement
- a copy of the payment of the arbitration fees
- a copy of the power of attorney
- copy of documents relating the dispute
If the statement of claim complies with arts 3.1.3–3.1.4 of the Rules, the RAA will send the notification of the beginning of the arbitral proceedings to the parties within five business days, both by email and registered mail.
If the claimant fails to comply with art 3.1 of the Rules, the RAA may fix a time limit within which the claimant must comply.
Statement of defense and counterclaims
In accordance with arts 3.3.1–3.3.3 of the Rules, the respondent shall communicate his statement of defense in writing within 30 days from the receipt of the notification. The respondent entitled to bring a counterclaim (art 3.3.5).
If the respondent fails to communicate the statement of defense within that timeframe, the arbitrator shall continue the proceedings without the defense.
Conduct of arbitral proceedings
The entire proceedings shall be conducted by the arbitrator within 15 days after the statement of defence has been received (art 4.4.1.). In general, no hearings are held and the proceedings are conducted on the basis of the received documents only. However, it may be necessary for the arbitrator to conduct hearings via videoconference. In exceptional cases, the arbitrator may hold hearings. The arbitrator has the right to make audio or video recordings during hearings (art 4.4.2–4.4.3, 4.4.5).
The arbitrator shall apply the law chosen by the parties. Where no choice is indicated by the parties, the arbitrator shall apply the law which it determines to be appropriate (art 4.1).
When the proceedings are completed, the arbitrator declares them to be closed. The arbitral award shall be made within 15 days after the closing of the arbitral proceeding (arts 4.4.7, 5.2.1). The final award shall be sent to the parties to arbitration both by email and by registered mail.
If during the arbitral proceedings the parties settle the dispute, the arbitrator shall terminate the proceedings and, if requested by the parties and not objected to by the arbitrator, record the settlement in the form of an arbitral award on agreed terms (art 4.5.1)
The RAA Online arbitration model clause is as follows:
‘Any dispute, controversy or claim arising out of or relating to this contract, including regarding the existence, execution, interpretation, performance, breach, termination thereof, shall be settled by arbitration administered by the Association for the Promotion of Arbitration, which is registered in Moscow, Russia (the “Russian Arbitration Association” or the “RAA”) in accordance with the Russian Arbitration Association Arbitration Rules Online and the Regulations for Arbitration Proceedings, which is considered to be fully incorporated into this Agreement.’
Moreover, in accordance with the recommended arbitration clause, the parties to arbitration agree:
- to receive all information upon arbitration through e-mail
- to provide the RAA with the name of representative and his e-mail, and
- to inform the RAA about all changes of e-mail(s)
There are no essential elements of the arbitration agreement.
The RAA Online Rules represent the first Russian attempt to provide users with a private online mechanism of dispute resolution. The Rules together with the RAA Arbitration Rules (based on the Model Law on International Commercial Arbitration Arbitrations Rules) are a joint effort of the RAA to promote arbitration in Russia as well as to attract users from the Commonwealth of Independent States.
The original source: