THE ARBITRATION AGREEMENT AND THE AGREEMENT ON THE APPLICABLE LAW IN FOREIGN TRADE OBLIGATIONS: THE RATIO OF THE CATEGORIES

Author
, associate professor, Kharkiv, Pushinska, 77

In heading

 Law;

Signed print

 25.11.2016

Issues number

 2016 - № 4 (27)

Page

 129-144

Type of articles

 Scientific article

Code UDK

 346.58

ISSN print

 2411-5584

Abstract

 Problem setting. Currently, the arrangement on the applicable law is often viewed as a condition of the arbitration agreement. In the practice of drawing up foreign trade contracts the indication on the applicable law taken to include in the text of the arbitration clause. The questions about the legal nature of arrangement on applicable law, on the legal consequences of recognition of the invalid or unenforceable arbitration agreement arise in this regard.
Recent research and publications analysis. The issue of arbitration agreements paid attention to such well-known Soviet and then Russian scientists as S. N. Lebedev, A. I. Minakov, M. G. Rosenberg, and Ukrainian scientists G. A. Tsirat, T. V. Slipachuk, M. M. Malskyy, etc. The issues of election of the law applicable to the contract were addressed in works, in particular, A. V. Asoskov, S. M. Zadorozhna, A. B. Pokrovskaya, V. L. Tolstykh, A. V. Troyanovsky.
Paper objective. The article purpose is to analyse the correlation of the arbitration agreement and applicable law, to determine the legal nature of the agreement on the applicable law, to give a theoretical evaluation of thethe practice of inclusion the applicable law in the text of the arbitration agreement and to identify the possible legal consequences of such enterprises.
Paper main body. Represented in legal science views on the the ratio of arbitration agreements and agreements on choice of law can be divided into three groups: 1) the applicable law is an additional condition to the arbitration agreement; 2) it is an essential condition of the arbitration agreement; 3) agreement on choice of law is a special agreement. The article explains that the applicable law is neither an additional nor an essential condition of the arbitration agreement. The author advocates an independent legal nature of the agreement on the applicable law, its autonomy from external economic contract and the arbitration agreement, the text of which it is often included. The author concludes that the agreement on the applicable law isn’t the foreign trade contract, and therefore isn’t
subject to the legislation requirements of written form. The wording of part 2 of article 5 of the Law of Ukraine «On international private law» allows concluding this agreement in any form.
The author analyzes the Guidelines of the international Association of lawyers for drafting international arbitration clauses from October 7, 2010 that recommending to indicate to the parties the law applicable to the contract and the ensuing disputes.
This document recommends to provide the position of the selected law or in a separate paragraph of the foreign trade agreement, or (in the case of an Association of the arbitration clause and applicable law in a single paragraph) in its name to clearly reflect that it regulates how issues of arbitration and the applicable law.
Conclusions of the research. The arbitration agreement and the agreement on the applicable law act in foreign trade as two separate agreements with a particular subject, independently of a foreign economic contract and from each other.
Short Abstract for an article
Abstract. The article is devoted to the problem of the ratio arbitration agreements and agreements on the applicable law, which is often considered as a condition of the arbitration agreement. The author advocates an independent legal nature of the agreement on the applicable law, its autonomy from external economic contract and the arbitration agreement, in which it can be included, the possibility of concluding in any form.

Keywords

 Аrbitration agreement, applicable law, agreement on applicable law, autonomy, foreign economic agreement.

Reviewer

External reviewer

Article in PDF

 4 129-144

Bibliography

 none

Code DOI

This post is also available in: Ukrainian

07.10.2016