Enforcement of an arbitration award
There is a different practice in the application and interpretation of subparagraph 2) of part 2 of Article 253 of the CPC, according to which the original or notarized copy of the arbitration agreement concluded in accordance with the established procedure is attached to the application for the issuance of a writ of execution.
When claimants apply to the courts with a request for compulsory enforcement of an arbitration award, individual courts refuse to perform these actions due to the failure to submit an arbitration agreement. However, the contract attached to the application contained a contractual clause. In this regard, it is necessary for judges to clarify what is meant by the concept of an arbitration agreement.
According to paragraph 1 of Article 8 of the Law, a dispute may be referred to arbitration if there is an arbitration agreement concluded between the parties.
By virtue of subparagraph 4) of article 2 of the Law, an arbitration agreement is a written agreement between the parties to submit to arbitration a dispute that has arisen or may arise from civil law relations.
According to part 1 of Article 9 of the Law, an arbitration agreement is considered concluded in writing if it is contained in the form of an arbitration clause in a document signed by the parties or concluded through the exchange of letters, telegrams, telephone messages, faxes, electronic documents or other documents defining the subjects and the content of their will.
The provisions of article 9 of the Law regulate the requirements for the form and content of the arbitration agreement. Thus, in accordance with paragraph 3 of article 9 of the Law, a reference in a contract to a document containing a condition for submitting a dispute to arbitration is an arbitration agreement, provided that the contract is concluded in writing, and the reference is such that it makes the arbitration agreement part of the contract.
Taking into account the above legal norms, to fulfill the requirements of paragraph 2) of Part 2 of Article 253 of the CPC, it is sufficient to attach an agreement containing an arbitration clause.
On the issue of the arbitration agreement. The first and important issue to be reviewed by the court is the issue of concluding an arbitration agreement. It is no coincidence that the legislator imposed the obligation to attach such a document to the application, since the arbitration agreement has legal consequences for the parties to the arbitration agreement and has legal significance for arbitration, confirming its authority to initiate arbitration proceedings.
The above legal norms on the concept of an arbitration agreement and the procedure and form of its conclusion allow us to draw the following conclusions, which is not difficult when the arbitration agreement is drawn up in a single document, signed by the parties and contains the intention of the parties to submit the dispute to arbitration, specifying the subject to be considered by arbitration, specifying a specific arbitration.
At the same time, it should be noted that the law allows for the conclusion of an arbitration agreement through the exchange of letters, telegrams, telephone messages, faxes, electronic and other documents defining the subjects and the content of their will. In judicial practice, there is arbitration of cases in which the defendant's consent to the arbitration is accepted as the conclusion of an arbitration agreement between the parties.The vast majority of such statements do not contain the obligatory conditions of the arbitration agreement: an indication of the subject to be considered by the arbitration and an indication of a specific arbitration, which should be regarded by the court as not concluding an arbitration agreement between the parties.
To fulfill the requirements of subparagraph 2) of part 2 of Article 253 of the CPC, it is sufficient to attach such an agreement, i.e. containing an arbitration clause.
Therefore, it is wrong to act those courts that, in the presence of an arbitration clause in the contract, refuse to issue an executive list.
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