Case number: 148
Article number: model arbitration law / 16(2)(3); 34(2)
Thessaurs issue:
Country of decision: Russian Federation
Year of decision: 1995
Type of decision: Arbitral award

Case 148: MAL 16(2)(3), 34(2)
Russian Federation: Moscow City Court
Decision on the application to set aside the award made by the Court of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry in case No. 214/1993 10 February 1995
Original in Russian
Unpublished

The plaintiff filed an application to set aside an arbitral award made against it, citing as grounds for doing so the fact that as no arbitration agreement existed between the plaintiff and the defendant, the arbitral tribunal had no jurisdiction to examine the dispute in question. The plaintiff argued that the party signing the contract with the defendant had gone into liquidation as a commercial entity and that the plaintiff was not its legal successor and, hence, not a party to the contract concluded with the defendant which contained the respective arbitration clause. In addition, the plaintiff argued that the contract included an arbitration clause providing for the examination of disputes by the Tribunal of Arbitration at the USSR Chamber of Commerce and Industry, whereas the claim had been brought before the Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry (TICA), which was not competent to examine the dispute in question.

The court noted that article 16(2) and (3) of the Act of the Russian Federation on "international commercial arbitration" (art. 16 MAL) provided that a plea on the grounds that an arbitral tribunal did not have jurisdiction should be raised not later than the submission of the statement of defence. The court held that the plaintiff (respondent in the arbitral proceedings) had presented to the arbitral tribunal its defence against the claim in which it had stated that it was not the legal successor to the party to the contract which had given rise to the claim and could not be a defendant in the action in question. However, the plaintiff made no reference to the lack of jurisdiction of the arbitral tribunal either in its statement of defence or in the subsequent correspondence with the arbitral tribunal, and had not raised any plea regarding the jurisdiction of the arbitral tribunal during the hearing of the case. The court did not concur with the plaintiff's position that its submission in its statement of de
fence before the arbitral tribunal that it was not the legal successor and did not recognize itself as a party to the contract should be considered an objection to the jurisdiction of the arbitral tribunal. The court found that those references related exclusively to legal succession in respect of disputed legal relationships and to the validity of claims brought by the plaintiff.

The court did not concur with the plaintiff regarding the lack of jurisdiction of the TICA to examine the dispute in question. In that regard, the court noted that under paragraph 4 of the Statutes on the TICA, which was an annex to the Act of the Russian Federation on "international commercial arbitration", the TICA was the successor to the Tribunal of Arbitration at the USSR Chamber of Commerce and Industry and, in particular, was entitled to settle disputes on the basis of agreement by the parties to refer their disputes to the Tribunal of Arbitration at the USSR Chamber of Commerce and Industry.

The court dismissed the plaintiff's application to set aside the arbitral award.