EUROPEAN HUMANITIES UNIVERSITY Academic Department of law Bachelor's program «International law» "ANALYSIS OF ARBITRATION LEGISLATION IN THE REPUBLIC OF BELARUS" PREPARED BY: KSENIYA HZHYBOUSKAYA Vilnius, 2016
CATEGORIES (TYPES) OF ARBITRATION COURTS According to the Law "About international arbitration (arbitration) court" on the territory of the Republic of Belarus there are two categories of arbitration courts: - the permanent court of international arbitration; - the international court of arbitration for a particular dispute (ad hoc).
PERMANENT (INSTITUTIONAL) ARBITRATION ADVANTAGES: DISADVANTAGES: • the presence of regulations, ensure timely commencement of trial; • fixed administrative fees for the services of the international court of arbitration, depending on the amount of the claim; • administrative support from the institution, representing the court of arbitration; • the availability of professional arbitrators and possibility of their choice; • the format of the proceedings. • bureaucratization of the court; • hardcoded terms, that is often inconvenient for one or both of the parties of the proceedings.
ARBITRATION FOR A PARTICULAR DISPUTE (AD HOC) ADVANTAGES: • the ability to stipulate a special regulation which is most favorable to the parties to the dispute; • no obligation to pay court fees. DISADVANTAGES: • no fixed rules and Protocol, about which the parties must reach agreement, often after a dispute has arisen; • the need for an independent search and selection of arbitrators; • the need for self-determination of the amount of payment for services of an arbitrator.
FEATURES OF ARBITRATION LAW IN THE REPUBLIC OF BELARUS Advantages: I. the independent choice of arbitrator; II. privacy (in comparison with the publicity of litigation); III. the absence of rigid procedural rules (even in institutional arbitrage with the consent of the parties); IV. the smaller the workload of arbitrators in comparison with judges (both arbitrator simultaneously dismantle only one case).
FEATURES OF ARBITRATION LAW IN THE REPUBLIC OF BELARUS Disadvantages: I. The Arbitral Court is not a court in fact II. Maintenance of the claim III. Obtaining and preservation of evidence IV. The referral of disputes to the arbitration court V. Proving VI. The prejudice decisions VII. Jurisdiction
I. THE ARBITRAL COURT IS NOT A COURT IN FACT - paragraph 1 of article 10 of the Civil Code: "Protection of violated or disputed civil rights shall be exercised by the court of general jurisdiction, arbitration court (hereinafter – court) in accordance with the jurisdiction established by the procedural legislation, and in the cases not provided by law – in accordance with the contract. " - article 5 of the Code on the judiciary and status of judges - paragraph 1 of article 109 of the Constitution: "The judicial power in Belarus belongs to the courts" - paragraph 3 of article 2 of the Code on the judiciary and status of judges "the Judicial power is exercised through constitutional, civil, criminal, commercial and administrative proceedings"
II. MAINTENANCE OF THE CLAIM - article 30 of the Law "About arbitration courts" - article 14 and 23 of the Law "About international arbitration (arbitration) court" - article 254 of the Civil procedural code of Belarus - article 113 of the Commercial procedural code of the Republic of Belarus
III. OBTAINING AND PRESERVATION OF EVIDENCE - article 179 of the Civil procedure code - article 101 of the Commercial procedural code of the Republic of Belarus - article 35 of the Law "About international arbitration (arbitration) court" states that: "the international arbitral Tribunal or a party with its consent may apply to the state court or the court of a foreign state with a request for assistance in obtaining evidence on the matter before the international court of arbitration. The state court, within its competence and in accordance with the procedure established by the procedural legislation of the Republic of Belarus, comply with such request. "
IV. THE REFERRAL OF DISPUTES TO THE ARBITRATION COURT - article 40 of the Economic procedural code of Belarus - article 39 of the Civil procedure code of the Republic of Belarus
V. PROVING • The Сriminal Code ofthe Republic of Belarus: - article 395; - article 401; - article 403.
VI. THE PREJUDICE DECISIONS - article 106 of the Commercial procedural code of Belarus; - article 182 of the Civil procedure code of the Republic of Belarus.
VII. JURISDICTION - article 19 of the Law "About arbitration courts" provides that "the Arbitral court resolves any disputes arising between the parties to the arbitration agreement <. . . > and disputes that cannot be subject to arbitration in accordance with the legislation of the Republic of Belarus or legislation of foreign state if the application of the legislation of a foreign state envisaged by the arbitral agreement or any other agreement between the parties ".
CONCLUSION • The system of arbitration courts in the Republic of Belarus is functioning properly, but its further development is under questions due to the presence of the problems described above
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