The Sources of the Regulation of the Conduct of the Proceedings of International Commercial Arbitration
The article is devoted to legal sources regulating the procedure of international commercial arbitration, which is widely recognized as the main method of resolution of disputes, arising in the international commercial contracts. The author notes that the contractual nature of international commercial arbitration determines the flexibility of arbitral proceeding, which allows to take into consideration the special features of a particular case. This advantage of the dispute resolution by international commercial arbitration is due to broad rights given to the parities and the arbitrators in the arbitration procedure, provided that the mandatory rules of the applicable law and the basic principles of the regulation of the arbitration, to which the dispute is submitted are observed. It is stated in the article, that the reform of the arbitration, which is being carried out in RF preserves the dualism in regulation of the arbitration. If the seat of arbitration is on the territory of RF the legislative basis of the regulation of the conduct of the proceeding, is the RF Law “On International commercial arbitration” of 1993 (version in force since 1 of September 2016). Analysis of this law shows that its imperative rules determine the basic principles of the dispute resolution, but most of its specific procedural rules are of dispositive nature and are applied unless the parties provided otherwise. The author notes that parties, who submit by the arbitration clause the dispute to a particular arbitration, agree to apply its rules that actually form the main source governing procedural aspects of arbitration establishing more full and detailed regulation than the law. The rules are to be applied taking into account the agreements of the parties. In the absence of the rules and the agreements of the parties the conduct of the procedure are determined by the arbitral tribunal subject to imperative rules of the applicable law. Due to the dominance of the discretionary nature of the regulation of the conduct of the proceeding the recommendatory documents of international organizations on the procedural issues of international commercial arbitration (such as UNCITRAL Notes on Organizing Arbitral Proceedings 1996, IBA Rules on taking the evidence by International Arbitration 2010, Recommendations on Ascertaining the Contents of the Applicable Law in International Commercial Arbitration 2008, IBA Guidelines on Party Representation in International Arbitration 2013) gain more and more importance, promoting the acceptance of uniform rules on the conduct of the procedure by the participants of the dispute resolution of different nationalities, belonging to different legal systems. Resulting from permanent increase in the number of advisory sources and the extension of their application the ideas of soft procedural law as the complex of rules, governing the procedure of resolving disputes by international commercial arbitration, get widespread.