Zenkovich, D.I. Asymmetrical arbitration agreements in Russia and abroad

Abstract: The article is devoted to the foreign experience of using asymmetric arbitration clauses, providing only one of the parties to an arbitration agreement the right to choose between arbitration and the state court. The goal of the study is to analyze the modern tendencies in the practice of application of such clauses. This issue is topical due to the Decision of the Presidium of the Supreme Arbitration Court of the Russian Federation of 2011 in the dispute between the ZAO “Russian Telephone Company” and the OOO “Sony-Ericsson Mobile Communications Rus”, where asymmetric arbitration clauses were struck down in Russia. The article is based upon the wide range of foreign arbitration practice, as well as topical foreign doctrinal sources. Special attention is paid to the legislative regulation and legal practice in the states, such as the USA, Bulgaria, Poland, etc., where in some situations or by direct legislative provision asymmetrical arbitration clauses may be recognized as invalid clauses. The article includes analysis of the typical bases for the courts in a number of states to recognize asymmetric arbitration clauses invalid. Based upon the study the author makes a conclusion that currently there is no unified approach towards this type of arbitration clauses in various jurisdictions.

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