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A Comparative Analysis of the Legal Regulation of International Commercial Arbitration in Russia and Mainland China

https://doi.org/10.21684/2412-2343-2022-9-3-4-38

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Abstract

This article examines international commercial arbitration, one of the most popular methods for the resolution of disputes that arise in the context of international commercial relations. The volume of trade between Russia and China has been gradually increasing in recent years, which testifies to the fact that the study of international commercial arbitration legal regulation in both nations is extremely relevant. The authors examine the concept of international commercial arbitration entities, as well as the sources of legal regulation that govern their establishment and operation in Russia and Mainland China. In addition, the procedures for case consideration, the elaboration of arbitration agreements, the rules for the creation of an arbitration commission, the requirements for arbitral awards and other aspects are investigated. The authors come to the conclusion that the regulations governing international commercial arbitration are similar in the two countries and are based on international law and national legal acts. Both Russia and China have adopted the norms outlined in the United Nations Commission on International Trade Law (UNCITRAL) Model Law into their legal systems although to different degrees. Both countries provide similar arbitration agreement norms and support the arbitration clause autonomy principle. The difference lies in the fact that China does not follow the competence-competence principle (the arbitrators’ power to determine their own competence to consider a certain dispute). Instead, the issue is referred either to the arbitration commission or to the state court for resolution. On the other hand, arbitrators in Russia have the right to determine their competence by themselves. According to Chinese law, a party requires arbitration court mediation in order to be able to submit a request for provisional protection measures to the state court, while under Russian law adirect request is allowed. In China, the norms for the recognition and enforcement of aforeign arbitration award by the court do not provide for the court’s ruling to be challenged; the refusal of the recognition and enforcement shall be possible only after the award has been considered by the Supreme People’s Court of the People’s Republic of China. In Russia, the legislation allows for both challenging and refusing the decision to recognize and enforce the award.

About the Authors

O. Berzin
National Research University Higher School of Economics
Russian Federation

Olga Berzin (Nizhny Novgorod, Russia) – Professor, Department of Criminal Law and Criminal Procedure

25/12 Bolshaya Pecherskaya St., Nizhny Novgorod, 603155



E. Shliagina
National Research University Higher School of Economics
Russian Federation

Evgeniia Shliagina – Senior Lecturer, Department of
Civil Law and Civil Procedure 

25/12 Bolshaya Pecherskaya St., Nizhny Novgorod, 603155



L. Ying
Southwest University of Political Science and Law China
China

Liu Ying (Chongqing, China) – Associate Professor, Administrative Law Institute

301 Baosheng Ave., Yubei District, Chongqing Municipality, People’s Republic of China



References

1. Born G.B. International Commercial Arbitration (2nd ed. 2014).

2. Caron D.D. & Caplan L.M. The UNCITRAL Arbitration Rules: A Commentary (2nd ed. 2013). https://doi.org/10.1093/law/9780199696307.001.0001

3. Moses M.L. The Principles and Practice of International Commercial Arbitration (2008). https://doi.org/10.1017/cbo9780511819216

4. Sanders P. New Trends in the Development of International Commercial Arbitration and the Role of Arbitral and Other Institutions (1983).


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For citations:


Berzin O., Shliagina E., Ying L. A Comparative Analysis of the Legal Regulation of International Commercial Arbitration in Russia and Mainland China. BRICS Law Journal. 2022;9(3):4-38. https://doi.org/10.21684/2412-2343-2022-9-3-4-38

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ISSN 2409-9058 (Print)
ISSN 2412-2343 (Online)
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