La procedura di composizione delle controversie innanzi ai tribunali arbitrali nella legislazione della repubblica del tajikistan
Vladimir Gavrilenko, Valerius Grigonis
L’articolo concerne la regolamentazione della procedura di composizione delle controversie innanzi ai tribunali arbitrali della Repubblica del Tajikistan. Gli autori commentano le disposizioni della legge n. 344 del 5 gennaio 2008 della Repubblica del Tajikistan, sui tribunali arbitrali. Le principali istituzioni della società civile sono operanti nella Repubblica, che è uno Stato democratico, e consentono agli attori economici di tutelare i loro diritti e libertà senza ricorrere alle Autorità giudiziarie dello Stato. I tribunali arbitrali sono un’importante istituzione nell’ambito della giustizia non governativa, che consente alle persone fisiche ed alle entità giuridiche di tutelare i propri diritti efficacemente, nel settore dei rapporti economici.
Nell’articolo, gli autori presentano un’analisi dettagliata, articolo per articolo, delle previsioni della suddetta legge, che regola il processo di composizione delle controversie innanzi al tribunale arbitrale. Tra i temi affrontati figurano lo status giuridico dei tribunali arbitrali, le questioni relative alla loro competenza, i profili procedurali correlati alla loro composizione ed ai mezzi di prova, il sistema dei principi dell’arbitrato. Le disposizioni esaminate nell’articolo sono di notevole rilevanza al fine di comprendere i profili teorici e operativi del moderno arbitrato.
The article is devoted to the regulation of the procedure of disputes by the arbitral tribunals of the Republic of Tajikistan. The authors comment on the provisions of the law of the Republic of Tajikistan No.344 dated January 5, 2008 “On Arbitral tribunals”. The main institutions of the civil society function in the Republic of Tajikistan, that is a democratic state, they allow economic actors to protect their rights and freedoms without the assistance of the State Justice agencies. Arbitral tribunals are an important institution in the sphere of non-government justice that allows people and legal entities to protect their rights and legitimate interests effectively in the sphere of economic relations.
In this article the authors present a detailed article-by-article commentary on provisions of the abovementioned law that regulates the process of dispute resolution by the arbitral tribunal. Legal status of the arbitral tribunals, issues of their competence, procedure of the arbitral tribunal formation, procedure for the providing of the evidence, system of principles of the arbitration, etc. are explored. Provisions discussed in this article are of great importance for the understanding of the theory and practice of modern arbitration.
Keywords: Republic of Tajikistan, Arbitration, Arbitral tribunal, Arbitration trial, Competence, Statement of claim, Evidence
The Universal Declaration of human rights and freedoms, adopted December 10, 1948 by UN in the article 7 states that all are equal before the law and are entitled without any discrimination to equal protection of the law, and article 8 of the same Declaration specifies that each person has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. On December 16, 1966 the UN General Assembly had adopted the International Covenant on economic, social and cultural rights and the International Covenant on Civil and political rights, both of them were signed by the USSR on March 18, 1968 and ratified on September 18, 1973 . These international documents, which are often referred to as the “International Bill of rights”, became the basis for the adoption of other instruments on the protection of the rights and freedoms, one of which is the Civil procedure Convention (the Hague, March 1, 1954). The Convention was ratified and came into force of the USSR on July 26, 1967 . Rules on the protection of the rights and freedoms of a person and citizen specified in the international statutory instruments are reflected directly or indirectly in the constitutions of foreign countries, if these acts ratified and have come into legal force in the country. «15 independent national States were formed after the collapse of the Soviet Union in 1991: The Republic Of Azerbaijan, The Republic Of Armenia, The Republic Of Belarus, Georgia, The Republic Of Kazakhstan, The Kyrgyz Republic, The Republic Of Latvia, The Republic Of Lithuania, The Republic Of Moldova, Russian Federation, Tajikistan, Turkmenistan, The Republic of Uzbekistan, Ukraine, the Republic of Estonia» . In many republics of the former USSR international legal standards that were adopted during the Soviet period, have kept (were again ratified) their effect in the legislation and the constitutions of these countries. On the other hand, characteristics of the former USSR states that is usually contained in the fundamentals of the constitutional system have changed radically in the post-Soviet constitutions comparing to the Soviet period. They all became sovereign, democratic, etc. «The fundamentals of the constitutional system, usually begin with the constitutional characteristics of the state, where the form of Government (monarchy or republic), the form of state [continua ..]
1.1. Problem statement
The article is devoted to the regulation of the procedure of consideration of disputes by the arbitral tribunals. Nowadays in the modern world, the arbitral tribunals are widely represented in the sphere of economic dispute resolution. Arbitration is an alternative to public justice. Arbitration is an independent non-government independent organization. Arbitral tribunals are not judicial authorities and therefore are not included in the judicial system of the Republic of Tajikistan. The main purpose of arbitration is to resolve legal conflicts in the area of economic activity and the voluntary execution of obligations. The abovementioned objective is expressed in that arbitration is initiated by the parties to the dispute who voluntarily rely on a certain arbitration institution to make a decision on their case and undertake in advance to comply with this decision. The power of the arbitral tribunal is not based on common law but on the contractual principle and on the will of individuals. It is reasonable that arbitration and international commercial arbitration are called «private justice» . Arbitration is such a form of jurisdiction that is most relevant to the Institute of market economy because this form complies with the individual approach to each specific dispute and its participants. Possibility of influence of the of State Justice authorities on the dispute resolution process is minimal. Accordingly, the arbitration procedure should be regulated by a separate law the quality and completeness of which is of great importance for its existence and further development. Arbitration in the Republic of Tajikistan is regulated by law No.344 dated January, 5 2008 “On arbitral tribunals” (hereinafter the Law), entered into force on April 1, 2008. In the process of drafting this law extensively used experience and best practices of the Russian legislation and law enforcement. Legal regulation of a number of issues of arbitration by the Law is similar with Russian law. The law regulates the arrangement of arbitral tribunals and the procedure of their action. The arbitral tribunal may be transferred to disputes arising from civil and other economic legal relations within the country. These disputes can be regarded by arbitral tribunals under the agreement of parties. It is needed to specify that subjects of these disputes can be both Tajik subjects of legal relations and foreign entities carrying out their activity in [continua ..]
1.2. Purpose of the study
The main objective of the present study is to analyze in a detailed way the provisions of the law No.344 of the Republic of Tajikistan “On arbitral tribunals” dated January 5, 2008 (hereinafter the Law) that regulates the arbitration institute in the state. In the terms of the foregoing, it is possible to define the following objectives of the study – examination of the characteristics and trends of development of legislative regulation of the institution of arbitration in the Republic of Tajikistan; – study of features of the legal status of arbitral tribunals in the Republic of Tajikistan; – research of the dispute resolution procedure directly from the stage of the statement of claim prior to the final decision of the arbitral tribunal; – analysis of the basic principles of arbitration in the Republic of Tajikistan; – research on the legal status and procedural provisions of the arbitrators; – research on the procedural status of the parties to the arbitration trial; – research on the legal properties of evidence and procedure of proof; – study of the legal properties of the arbitral award; – detailed commentary to the provisions of the Law that govern the above issues.
1.3. Research methods
Institute of the arbitration is a difficult, complex legal phenomenon. This legal institution is regulated both by the norms of procedural law and the norms of substantive law. Accordingly, the study takes a comprehensive approach to the consideration of legal relationships arising in the field of arbitration that consists of using the methods implemented by the science of private law and by the science of civil and arbitral process. Comparative-legal, analytical, formal and logical methods combined with a systematic approach to the analysis of problems in the sphere of legal regulation of arbitration by the legislation of the Republic of Tajikistan form the basis of this scientific work. Application of the analytical method has particular importance as the concept of this article includes an analysis of the legislation of the Republic of Tajikistan in the sphere of arbitration.
2. Results and discussion
The law provides two kinds of arbitral tribunals, such single-time (ad hoc) arbitration established for the consideration of a specific dispute and the permanent arbitral tribunal. Prior to the adoption of this Law “Regulations on the arbitral tribunal for the resolving of economic disputes in the Republic of Tajikistan” dated May 15, 1997 was valid and provided for the creation of an ad hoc arbitral tribunal for a particular dispute consideration after which the Court ceased to exist. This norm was uncomfortable because every time a dispute arises it had to repeat again entire process of the arbitral tribunal formation even if a dispute took place between the same entities. Accordingly, it should be noted that the inconsistency of the arbitration agreement of the parties took place not only when a specific dispute was transferred to the Arbitral tribunal but it also concerned certain categories of disputes or disputes which have arisen or may arise between them. There was a constant process of forming a single arbitral tribunal that did not contribute to the effective resolution of disputes between parties to the economic turnover. The Law also contains a provision that the arbitral tribunals are organized by non-profit organizations. Chambers of commerce, stock exchanges, associations of entrepreneurs, associations and unions can be these organizations. The legislator prohibits directly the formation of arbitration courts in the bodies of state power and local authority. The Arbitral tribunal is considered formed after the decision made by a legal entity on its establishment, approval of its Provisions on permanent arbitral tribunal and the list o arbitrators. One of the first arbitration courts in Tajikistan is the Arbitral tribunal at the Chamber of commerce and industry of the Republic of Tajikistan, which was formed on April 14, 2008 in a short time after the adoption of the law. The Bureau of the Chamber of commerce and industry of the Republic of Tajikistan adopted the Regulations of the Arbitral Tribunal and the list of arbitrators. Strengthen the position of arbitral tribunals provides interaction with the state courts. Article 3 of the Act specifies that the interaction begins at the stage of the arbitral tribunal formation, when a legal entity that established the permanent arbitral tribunal sent to inform the competent court copies of the documents attesting the establishment of the permanent arbitral tribunal Permanent Court [continua ..]
In conclusion, we note that the institute of the arbitration develops dynamically in the states of the near abroad particularly in the Republic of Tajikistan, which is reflected in the legislation. Economic development leads to the improvement of the legislation and the emergence of new legal institutions in business, economics and law, such as arbitral tribunals. In addition, international economic relations of the Republic of Tajikistan widely develop including cooperation with foreign legal entities and businessmen in various fields. All this points to the urgent need to enhance the practice of the arbitration trial of the commercial disputes both inside the country and abroad. It is obvious that «the use of the arbitration form of conflicts resolution by the entrepreneurs is justified by practice» . It should be noted that the majority of states support arbitration at the legislative and enforcement level contributing to the further distribution and growth in popularity of this method of conflict resolution. In the Republic of Tajikistan such support means that a separate law regulating the arbitration is adopted, it promotes the development of the economy and the business turnover. The abovementioned comment of this law shows its proper quality. The law regulates the institute of arbitration and the procedure for the examination of the disputes by the arbitral tribunals in the full measure taking into account all the necessary circumstances subject to legal regulation. Economic actors are able to protect their legitimate rights and interests through the arbitral tribunals. It should be noted that legislators of the Republic of Tajikistan used the Russian experience of lawmaking and legal science. Legal regulation of a number of issues of arbitration trial of disputes by the Law is similar to the Russian legislation.