September 27, 2018 in the Radisson Royal Hotel in Moscow hosted the X Annual Conference of the ABA, bringing together leading lawyers and experts in the field of arbitration, as well as representatives of international arbitration institutions and legal advisers of the largest companies. The conference was devoted to the resolution of commercial disputes involving parties from the CIS countries.
The topic of the first session was the Rules of Procedure for the Procurement of Evidence in International Arbitration (the “Prague Rules”).
The session was moderated by Kevin Nash, Deputy Secretary of the Singapore International Arbitration Center (SIAC).
Alexandre Khrapoutski, partner of the law firm Sysouev, Bondar, Khrapoutski SBH (Minsk), spoke about the emergence of the idea of creating the Prague Rules, noting that the widespread IBA rules for obtaining evidence in international arbitration are not applied in some countries, for example, in Belarus, making the subject of the “Prague Rules” extremely relevant.
Bruce Collins, QC, representative of Australia at the International Court of Arbitration at the International Chamber of Commerce (ICC) in Paris, noted that most of the Prague Rules clauses are based on the already established practice in this area. He paid special attention to the relationship between the Prague Rules and IBA rules.
Peter Pettibone, Pettibone International ADR (New York), agreed that the “Prague Rules” are more relevant in small arbitrations, in which the parties are interested in a speedy process, and therefore the rules should meet the goals of reducing time and costs of the process.
Vladimir Khvalei, Partner at Baker McKenzie Moscow office, spoke about the key features of the Prague Rules: the active role of the tribunal in establishing facts and determining applicable law (iura novit curia).
During the second session, Rupert D’Cruz, Littleton Chambers (London), proposed an interactive discussion with the audience on the art of persuasion and management skills, and in particular, communication with the tribunal and the opposite side, teamwork and tactics for building successful strategies in relation to the arbitral tribunal.
Ilya Nikiforov, Managing partner of Egorov, Puginsky, Afanasyev & Partners (St. Petersburg), offered to discuss the topic of interaction with the tribunal and procedural opponents, pointing out the importance of attracting the attention of the arbitrators to studying the case materials at an early stage of the process. Nikiforov also noted that it is necessary to pay attention to cultural differences, which may be an important factor for a foreign arbitration institution when choosing arbitrators.
Anna Grishchenkova, Partner at KIAP Law Firm (Moscow), also touched upon the topic of cultural differences in the presentation of a case in arbitration. Frequently, as practice shows, foreign lawyers are more focused on legal argumentation, while the attention of the Russian representatives of the parties focuses on procedural documents due to the well-established judgment that these documents form the opinion of the arbitrators on the case.
In the third session, moderator Alexey Dudko, partner at Hogan Lovells (Moscow), drew the attention of the audience to the question of innovations for the parties to the dispute in the Russian courts, having considered it through the prism of international judicial norms.
Sergey Petrachkov, partner of ALRUD in Moscow, noted that in Russia, despite the existence of an arbitration clause, the parties are often prone to filing suits in state courts, which leads, in his opinion, to abuse of procedural rights.
The report of Sergey Morozov, lawyer from the Moscow office of Beiten Burkhardt, was devoted to the new positions of the Supreme Court of Russia regarding standards of proof in bankruptcy proceedings, which is important for foreign companies doing business with Russian counterparties. Sergey also shared updates on mediation reform, which is designed to make this method of alternative dispute resolution more popular and effective in Russia.
The fourth session was devoted to the new and established uses of artificial intelligence and data analysis in the resolution of disputes. The session was moderated by Paulius Docka, Advisor to the law firm Primus (Vilnius), and Artem Doudko, Partner of Osborne Clarke (London), Mikhail Lastovsky, Head of the Financial Investigation Practice in Russia and the CIS, Kroll, and Natalia Gulyaeva,Partner, Head of Intellectual Property, Media and Healthcare Technologies and Practices of the International Law Firm Hogan Lovells (Moscow).
The fifth session with the saying title “You play by your rules, I’ll play by mine? Regulating (or not…) counsel conduct in international arbitration” was moderated by Steven Richman, representative of the law firm Clark Hill (Princeton), who focused the discussion on the scope of application of the rules of professional conduct of the parties in arbitration.
Olga Boltenko, partner of the law firm Fangda Partners (Hong Kong), spoke about the rules of professional behavior in Hong Kong that apply to Hong Kong and foreign lawyers admitted to practice in this arbitration center, drawing attention to the fact that even practice outside Hong Kong requires adherence to the rules of professional conduct adopted in Hong Kong. The old version of the IBA Code of Conduct for the international legal profession will apply to Hong Kong lawyers and registered foreign lawyers practicing in Hong Kong.
Alexander Muranov, Managing Partner of the Muranov, Chernyakov and Partners Bar Association (Moscow), noted that Russia does not have a single legal profession, as well as ethical principles that would apply to all legal representatives as a whole. Such requirements exist only for Russian attorneys-at-law. In addition, Alexander noted that foreign lawyers practicing in Russia or representing the interests of the parties to arbitration in accordance with the Law on the Bar should register in a special roster.
Timur Aitkulov, partner of Clifford Chance (Moscow), agreed with Alexander Muranov regarding the existence of the dualism of legal ethics rules: such rules apply to all the activities of a lawyer, including his practice abroad. Even despite the fact that most of the lawyers often do not have an attorney status, when representing the interests of the client in court, such representatives must act in good faith. Aitkulov also spoke about the legal consequences for attorneys in case of violation of the rules of professional ethics.
The sixth session was devoted to the search and seizure of assets abroad in the field of cross-border bankruptcies and enforcement proceedings. Grigory Marinichev, partner of Morgan Lewis (Moscow), acted as moderator of the session. Mr. Marinichev touched upon the enforcement of foreign court decisions, and the recognition of foreign insolvency procedures and the recovery of hidden assets.
Session speakers were Stepan Guzey, partner at Lidings law firm (Moscow), Thomas Sullivan, lawyer at Marks & Sokolov (Moscow), Kendall Coffey, partner of Coffey Burlington law firm (Miami), Craig Pollack, partner Covington & Burling (London).
The seventh session, “The New York Convention at 60 years: Is the promise of ready enforcement of arbitration agreements and decisions fulfilled?” was devoted to the anniversary of the Convention and the key issues of its application. Peter Ferrer, partner at Harneys (British Virgin Islands), moderated the session where the speakers discussed the enforcement of arbitral awards in different jurisdictions.
Roman Zykov, Partner at Mansors (Moscow), shared the results of a study by the Russian Arbitration Association on the recognition and enforcement of foreign arbitral awards in Russia in the past 10 years. Roman discussed the statistical data illustrating the grounds for refusal to execute foreign arbitral awards by the courts of the Russian Federation, made on the basis of an analysis of judicial practice over the past 10 years.
Christopher Löf, Partner at Mannheimer Swartling (Stockholm), discussed enforcement and problems in Swedish arbitration. Löf analyzed challenging the decisions rendered by the Swedish courts of the CIS countries, and pointed to statistical data, according to which enforcement was denied only in 6 cases, half of which concerned Russia. In his opinion, Sweden is a pro-arbitration jurisdiction in terms of challenging and enforcing arbitral awards.
According to the independent arbitrator and lawyer Boris Karabelnikov, every year there are about 80 cases involving parties from the CIS arbitrated in Europe. Boris shared his observations based on his academic research and practical examples.
The eighth session was devoted to different disclosure and discovery regimes in common law jurisdictions and the implications for the choice of litigation strategy and arbitration. The session was moderated by Ed Crosse, partner of Simmons & Simmons (London). Pamela Egan, CKR Law (Seattle) and Glenn Hendrix, chairman of Arnall Golden Gregory (Atlanta) took part in the discussion.
The ninth session, moderated by David Livshits (New York), was devoted to the topic of successfully navigatingcross-border aspects of tax disputes.Dmitry Pentsov, Partner of FRORIEP Legal SA (Geneva) and Dmitry Lysenko, lawyer of Baker McKenzie (Moscow), became the speakers. Dmitry Lysenko told about the international frameworks that affect tax exchanges and the informational basis for requesting information, and also spoke about the most popular jurisdictions for tax requests and gave examples from practical experience. Dmitry Pentsov raised the issue of protecting the rights of taxpayers in the process of international administrative assistance in tax matters, and also spoke about the latest trends regarding tax arbitration in the European Union.
Anna Crevon-Tarassova, Dentons Partner (Paris), Maxim Kulkov, Partner of the law firm Kulkov, Kolotilov and Partners (Moscow) and Kate Apostolova, Freshfields, Singapore, talked about recent developments in arbitration proceedings between investors and the state and enforcement of decisions against states. The tenth session was moderated by Gary Ranjeva(Paris). Maxim Kulkov appreciated the chances of investors to win investment disputes and considered the performance of decisions in Russia and the EU.
In the eleventh session, the speakers discussed the topic of sports arbitration. Anna Kozmenko, senior associate of Schellenberg (Zurich), moderated the section, Mikhail Prokopets, partner of SILA Lawyers (Moscow), Natalia Kislyakova, lawyer of KIAP (Moscow), Annette Rombach, Klinkert Rechtsanwälte PartGmbB (Frankfurt) acted as speakers. During the session, issues such as the IOC Anti-Doping Rules applicable to the Pyeongchang Winter Olympics 2018, the time and financial costs of legal proceedings, and the features of ad hoc arbitration were raised.
The twelfth session was devoted to sanctions, counter-sanctions and related measures.The session was moderated by GeneBurd, Arnall Golden Gregory (Washington).
Laura Brank, Dechert (Moscow, London), told the audience about the US sanctions against Russia. According to Laura, in 2017, the issue of imposing sanctions is not only decided by the president, he must now go through Congress. In addition, the sanctions concern not only the Crimea, but also cyber security, actions in Syria, as well as facts of corruption in Russia.
Ivan Urzhumov, partner of Foley Hoag (Paris), listed the stages of imposing sanctions. Step 1 - making a decision of the EU Council on Common Foreign and Security Policy. Step 2 - implementation of the measures provided for in the decision of the Council. Step 3 - Enforcement of these measures. EU sanctions do not have an extraterritorial effect, unlike US sanctions. Ivan added that EU sanctions usually have a specific goal. Since March 2014, the EU has gradually introduced sanctions against Russia in response to the crisis in Ukraine. They include several “layers”, such as restrictions on economic relations with the Crimea, and sectoral economic sanctions aimed at EU trade with Russia.
In the last session, English, German, Russian and Chinese approaches to the interpretation of treaties were presented. The session was moderated by Peter Wolrich, Curtis, Mallet-Prevost, Colt & Mosle LLP (Paris). The speakers were: Mark Brown, Bristows (London); Felix Prozorov-Bastians, Graf von Westfalen (Frankfurt), Andrey Panov from Norton Rose Fulbright (Moscow), Liu Jing, Hui Zhong (Shanghai).
Glenn Hendrix, Chairman of the Arnall Golden Gregory LLP (Atlanta), and Roman Zykov made closing remarks and thanking words.
The conference ended with a reception where participants shared their impressions of the past Conference in an informal setting.