Арбитрабельность споров и полномочия арбитров: соотношение материального и процессуального права

Вестник экономического правосудия Российской Федерации. 2023. № 6. С. 86–113.

Kostsov V.

The article criticizes the tendency of Russian scholarship and practice to analyze the powers of arbitral tribunals based on general concepts such as public interest, justice or the erga omnes nature of the underlying substantive right. The author points out that this tendency is based on an improper comingling of the substantive and procedural issues and is ultimately caused by a distrust towards arbitration. From the procedural perspective, arbitration should be regarded as a full-fledged alternative to state court justice, which implies that the powers of arbitrators (including the power to award relief) should be presumed to be the same as those of state courts (the doctrine of synchronized competence). Exceptions should be based on statutory interpretation on the specific rules dealing with arbitrability of disputes rather than general principles. Rules on non-arbitrable disputes should further be construed in light of their procedural rather than substantive goals, meaning that disputes are to be deemed non-arbitrable because of inherent limitations of arbitral procedure rather than the risk of an improper substantive outcome. As a result, it should be presumed that any dispute dealing with civil remedies is arbitrable even if the underlying substantive right has an erga omnes nature and even if public law rules have to be applied to adjudicate the same. This is, inter alia, because arbitral awards normally have no procedural effect on third parties and because their compliance with the public interest can be verified at the enforcement stage under the public policy exception.

Keywords: арбитраж, способы правовой защиты, арбитрабельность, полномочия арбитров