The Scope of the Arbitral Award Binding Effect (Interests of «Third Parties» in International Arbitrationстатья
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Дата последнего поиска статьи во внешних источниках: 14 августа 2017 г.
Аннотация:DOI: 10.17589/2309-8678-2017-5-2-75-94
Modern business international transactions are multiparty and complicated. Such contracts
are usually composed of several contracts which can contain bilateral dispute resolution
arrangements. According to the principle of parties autonomy dispute arising between
two persons bound by an arbitration agreement in connection with a multiparty project
will be resolved by arbitration exclusively between these two parties. Other parties cannot
participate in the resolution of the dispute through arbitration, even if they have played
an active role in the actual project. Notwithstanding any legitimate interest, they might
have the outcome of the dispute; these parties will remain alien both to the arbitration
proceedings and an arbitral award. Their interests are not taken into consideration and left
unprotected. Arbitration proceedings, unlike litigation, usually do not bear any intervention
or joinder of parties, which is explained by the contractual nature of arbitration.
Thus, the binding power of an arbitral award extends only over parties of an arbitration
agreement. Meanwhile, an arbitral award can affect interests of third parties. How can
these parties defend their interests in arbitration proceedings and during recognition
and enforcement proceedings in national courts? There are two ways of resolving such
problem in state court litigation. The first one is the compulsory participation of any third
party with any legitimate interest in litigation through intervention, joinder of parties,
and consolidation of cases. A court ex officio has to gather all parties that can have any
legitimate interest in resolving the dispute. If judgment affects any interest of aparty that
was not involved in the proceedings judgment should be reversed in appellate court. The
second way is also the solution against parallel proceedings. This way is to harmonize
the outcome of parallel proceedings by the principle of lis pendens and res judicata.
The paper examines the binding and res judicata effects of the arbitral award towards
third parties through the Russian and international experience of defending of interests
of third parties in international arbitration and litigation.
RUSSIAN LAW JOURNAL Volume V (2017) Issue 2 76
Keywords: civil procedure; international commercial arbitration; intervention; arbitral
awards; res judicata; third parties.