Russian Arbitration Agreements

Definition and Form Requirements

Under Russian law, an arbitration agreement (arbitrazhnoe soglashenie) is defined by the Federal Law on International Commercial Arbitration (No. 5338-1 of 7 July 1993) and the Federal Law on Arbitration in the Russian Federation (No. 382-FZ of 29 December 2015) as an agreement by the parties to submit to arbitration all or certain disputes that have arisen or may arise between them in respect of a defined legal relationship, whether contractual or not.

Article 7 of Law No. 5338-1 (international arbitration) and Article 7 of Law No. 382-FZ (domestic arbitration) establish the form requirements. The arbitration agreement must be in writing. The written form requirement is satisfied if: the agreement is contained in a document signed by the parties; it is concluded through the exchange of letters, telegrams, telexes, or other telecommunications providing a record of the agreement; or it is concluded by exchanging statements of claim and defence in which the existence of an arbitration agreement is alleged and not denied.

The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement, provided the contract is in writing and the reference is such as to make that clause part of the contract. The requirements are consistent with Article II(2) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Article 7(2) of the UNCITRAL Model Law.

The Arbitration Clause

The arbitration clause (arbitrazhnaya ogovorka) is the most common form of arbitration agreement. Typically included as a standard clause in commercial contracts, the arbitration clause refers all disputes arising from or in connection with the contract to a specified arbitration institution. The recommended clauses of Russian arbitration institutions — particularly the International Commercial Arbitration Court at the RF CCI (ICAC) — are widely used in Russian commercial practice.

The standard ICAC arbitration clause provides: All disputes arising from or in connection with this contract shall be finally settled by the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation in accordance with its Rules. The clause may specify the number of arbitrators, the place of arbitration, the language of the proceedings, and the applicable law. Non-standard clauses — including clauses providing for ad hoc arbitration, arbitration in a foreign seat, or arbitration administered by a non-Russian institution — are valid but may raise issues of enforcement and public policy.

Scope of Disputes

The arbitration agreement determines the scope of disputes subject to arbitration. The principle of party autonomy permits the parties to define the scope of the arbitration agreement broadly or narrowly. Broad clauses covering all disputes arising from or in connection with the contract are presumed to encompass contractual, pre-contractual, and extra-contractual claims, including claims in tort, unjust enrichment, and statutory claims relating to the parties’ relationship.

Certain categories of disputes are non-arbitrable under Russian law. Article 33 of the Arbitration Procedure Code (APK RF) establishes that disputes involving public law relationships, tax disputes, bankruptcy cases, and disputes concerning the registration of rights to immovable property may not be arbitrated. The 2015 reform introduced the arbitrability of corporate disputes under specific conditions, but disputes involving the rights of third parties not party to the arbitration agreement, disputes concerning the invalidity of contracts affecting the rights of third parties, and disputes concerning the registration of legal entities remain outside the scope of arbitrable disputes.

Validity Requirements

The validity of an arbitration agreement under Russian law is governed by the principles of party autonomy, legal capacity, and procedural fairness. The arbitration agreement must be concluded by parties possessing the legal capacity to enter into arbitration agreements. For legal entities, the capacity to conclude arbitration agreements is presumed unless the company’s charter or the law restricts such capacity.

The substantive validity of the arbitration agreement is determined by reference to the law chosen by the parties or, in the absence of choice, by the law of the seat of arbitration. The Lex arbitri — the law of the seat — governs the formal validity, the arbitrability of the subject matter, and the mandatory procedural requirements. The New York Convention requires courts of Contracting States to recognise written arbitration agreements unless they are null and void, inoperative, or incapable of being performed.

Separability

The doctrine of separability (avtonomnost arbitrazhnogo soglasheniya) is expressly recognised by Russian law. Article 16 of Law No. 5338-1 and Article 16 of Law No. 382-FZ provide that the arbitration agreement is independent of the other terms of the contract. The invalidity of the contract does not automatically invalidate the arbitration agreement contained in it. The arbitration agreement is treated as a separate agreement between the parties, the validity of which must be assessed independently.

The separability doctrine has important practical consequences. A party challenging the validity of the underlying contract is not precluded from relying on the arbitration agreement. The arbitral tribunal has jurisdiction to determine the validity of the contract, including the validity of the arbitration agreement itself. Even where the contract is alleged to be void ab initio, the arbitration agreement may survive if it satisfies the requirements for a valid arbitration agreement under the applicable law.

Kompetenz-Kompetenz

The principle of kompetenz-kompetenz — the power of the arbitral tribunal to rule on its own jurisdiction — is recognised by Article 16 of Law No. 5338-1 and Article 16 of Law No. 382-FZ. The arbitral tribunal may rule on objections to its jurisdiction, including objections with respect to the existence, validity, or scope of the arbitration agreement. The jurisdictional ruling may be made as a preliminary question or in the award on the merits.

The kompetenz-kompetenz principle is subject to the supervisory jurisdiction of the state courts. A party may challenge the tribunal’s jurisdictional ruling before the state courts within one month of the ruling. The court’s review is de novo: the court is not bound by the tribunal’s findings on jurisdiction. However, the court will decline to review jurisdictional objections raised before the tribunal where the party participated in the arbitration without raising the jurisdictional objection.

Where a party commences court proceedings in breach of an arbitration agreement, the state court must decline jurisdiction on the application of the other party. The Anti-suit injunction (zapret na obrashchenie v sud) is not available as a remedy under Russian law, but the Arbitration Procedure Code provides that the court must stay proceedings and refer the parties to arbitration where the validity of the arbitration agreement is established prima facie.

Public Policy Limit

The arbitration agreement is subject to the public policy (publichny poryadok) limit. Under Article 244 of the APK RF, an arbitral award may be set aside or refused enforcement if the recognition or enforcement of the award would be contrary to the public policy of the Russian Federation. The public policy exception extends to the arbitration agreement itself: an agreement to arbitrate a dispute that involves mandatory norms of Russian law — including competition law, securities regulation, and corporate governance — may be held unenforceable on public policy grounds.

The Russian courts have historically applied the public policy exception more broadly than courts in Western Europe. The Supreme Court has sought to narrow the exception, holding in Resolution No. 53 of 22 December 2015 that public policy encompasses only the fundamental principles of the Russian legal system, including constitutional guarantees, basic principles of civil law (good faith, equality of parties, and fairness), and state security interests. The narrowing of the public policy exception has brought Russian arbitration practice closer to international standards and reduced the risk of awards being set aside on public policy grounds.