Waiver of Annulment Action in Arbitration: Progressive Development Globally, Realities in and Perspectives for the Russian Federation (Different Beds - Similar Dreams?)
pages 81 - 105
ABSTRACT:

The article is devoted to a discussion of waivers of annulment – an “extreme” form of party autonomy in international arbitration, allowing parties to oust the review of the award made in arbitration between them by the national court of the seat of arbitration. This type of waiver, eventually gaining popularity lately, is assessed in two different contexts. First – as a phenomenon belonging to the international arbitration setting, largely following the model reflected in Art. 192 (1) of the Swiss Private International Law Act of 1989, and, second – as a domestic arbitration notion, specific to the Russian Federation. The two approaches, having developed independently, share enough common features, such as, for instance, their place in the relevant procedural framework – as an issue of admissibility, the formal prerequisites with which the parties have to comply to make the renunciation of the annulment valid, the main substantive requirement for their validity – intent. The interpretational paradigms applicable in Switzerland and in the Russian Federation, the only two states, the courts of which have a publicly known record in handling renunciations, however, vary. While the Swiss courts normally resort to a restrictive interpretation in search of the will of the parties to waive, the Russian courts are substantially more flexible, allowing in even a general reference to the arbitration rules containing “finality” wording.

keywords
Arbitration
Domestic Arbitration
Award
Arbitration Clause
Annulment
Waiver of Annulment
Renunciation of Annulment
Swiss Private International Law Act
Russian Federation
New York Convention
about the authors

Leonila Guglya is a Research Associate in the Multidisciplinary International Investment Arbitration Project, conducted by the Department of International Private Law of the University of Geneva Law School. She holds an S.J.D. (Doctor of Juridical Science) degree from Central European University (Budapest, Hungary); a MIS degree in International Dispute Settlement from the Geneve Master in International Dispute Settlement Program (Geneva, Switzerland); an LL.M. degree in International Business Law from Central European University; as well as degrees of Specialist in Law and Bachelor in Law from the University of “Kyiv-Mohyla Academy” (Kyiv, Ukraine).

e-mail: leonila.guglya.alumni@mids.ch