Answer ... (a) Procedure, including evidence?
The arbitrators have broad discretion to conduct the proceedings in the manner they deem appropriate, which includes the power to determine the admissibility, relevance, materiality and weight of any evidence (Article 19(2) of the ICA Law). An arbitrator has the following specific powers relating to evidentiary matters:
- to appoint experts to clarify certain matters and to oblige the parties to provide an expert with any relevant information, goods or property for inspection (Article 26 of the ICA Law); and
- to request assistance from the state court in the taking of evidence or (in case of institutional arbitration) to authorise the parties to resort to the state court for the taking of evidence (Article 27 of the ICA Law).
(b) Interim relief?
Unless the parties have agreed otherwise, the tribunal has the power to grant any interim measures that it deems appropriate at the request of a party, as well as to order security in connection with such interim measures (Article 17(1) of the ICA Law). By express agreement, the parties may also empower the arbitral institution to grant interim measures before the constitution of the tribunal (Article 17(2) of the ICA Law).
Under Russian law, interim measures are granted by the tribunal in the form of a procedural order and cannot be subject to challenge or enforcement proceedings in state courts.
(c) Parties which do not comply with its orders?
The Russian arbitration legislation is silent on this matter. However, the tribunal’s power to deal with any non-compliance falls within its discretion to conduct the proceedings as it sees fit.
Nevertheless, certain limitations to the tribunal’s discretion in this context can be found in case law. The Russian courts have consistently found that a tribunal does not have the power to impose a fine on a party for non-compliance with an order, even if the ability to impose such a fine was provided for in the arbitration agreement (eg, the ruling of the Russian Supreme Court in Case À40-131620/2015 of 14 June 2016).
(d) Issuing partial final awards?
The tribunal has the power to issue partial final awards. Currently, however, there is no clarity as to whether a partial final award can be enforced in Russia and court practice diverges on this question. In one case, the courts (including the Russian Supreme Court) decided that partial final awards cannot be enforced, as they do not fully decide on all issues in dispute (the ruling of the Russian Supreme Court in Case A40-223894/2018 of 10 June 2019). In another recent case, the courts (including the Russian Supreme Court) ruled that since a partial final award resolved part of the dispute in a final manner, it should be enforced in Russia (the ruling of the Russian Supreme Court in Case À40-61107/2019 of 13 January 2020).
(e) The remedies it can grant in a final award?
Russian arbitration legislation does not impose specific restrictions as to the remedies that may be granted by an arbitral tribunal.
The Russian Civil Code (Article 12) provides a non-exhaustive list of general remedies that a court and a tribunal can order in civil law disputes, which includes:
- the invalidation of a transaction;
- restitution; and
- termination of the legal relationship.
Russian civil law does not provide for punitive or liquidated damages; but according to court practice, if granted by an arbitral tribunal, these are generally enforceable if the amount awarded is not excessive.
The tribunal has the power to award interest.
Russian law provides for two types of interest:
- interest as a remedy for non-performance of financial obligations (Article 395 of the Civil Code); and
- statutory interest for using creditors’ funds (Article 317.1 of the Civil Code).
To calculate the rate of interest, a tribunal should use the base rate of the Bank of Russia for the relevant period, unless the parties have agreed otherwise.
As a general rule, compound interest is not permitted, unless the parties’ commercial agreement or law provides otherwise.