CLASSIFICATION AND TYPES OF ARBITRATION COURTS Текст научной статьи по специальности «Экономика и бизнес»

JURISPRUDENCE

CLASSIFICATION AND TYPES OF ARBITRATION COURTS

Stefanik L.,

Advokat/advocate at advokatska kancelaria/Law Office Head of litigation and arbitration, Bratislava

Khakberdiev A., Doctor of Philosophy (PhD), Associate Professor at the civil procedural and Economic procedural law department of Tashkent State Law University, Tashkent

Davronov D.

Lecturer at the civil procedural and Economic procedural law department of Tashkent State Law University, Tashkent

Abstract

In the context of modernization and reform in the world, the ongoing reforms in the field of law enforcement and the judiciary is primarily aimed at the full protection of human rights, freedoms and legitimate interests. These include giving the state the role of chief reformer, ensuring the rule of law, implementing a strong social policy, and carrying out gradual reforms. This article analyzes the classification and types of arbitration courts.

Keywords: Alternative dispute resolution, Arbitrability, Arbitral institution, Arbitral tribunal, Arbitrator, Arbitration Classification, Arbitration Court, Arbitration, Types, Law, Code.

Alternative methods of dispute resolution are procedures established by law or by agreement of the parties or local documents, and procedures for the out-of-court settlement of disputes between the parties to a legal relationship [1]. It means, not only the judiciary can resolve disputes but also by alternative dispute resolution (arbitration courts, mediation, international commercial arbitration courts).

Alternative methods of dispute resolution are widely used in foreign countries as an effective method and a necessary condition for protecting the violated rights and legitimate interests of citizens and legal entities. The form of dispute resolution is the out-of-court settlement of disputes. The dispute is resolved by one or more persons (judges of the arbitral tribunal), who make the decision of the arbitral tribunal. The decision of the arbitral tribunal is legally binding on both parties and may be enforced in the courts. In particular, arbitration is often used to resolve commercial disputes, especially in the context of international trade agreements. In some countries, such as the United States, arbitration is often used in consumer and employment matters, where arbitration may be compulsory under employment or commercial agreements and may exclude the right to sue. Arbitration may also be voluntary or compulsory (although compulsory arbitration may arise only from a law or a contract imposed by one party on the other, in which case all parties may submit a dispute to the arbitral tribunal). Non-compulsory arbitration is like mediation, as the parties can decide whether to appeal or not[2].

There are many alternative types of conflict resolution in the world operation, among which the following procedures can be distinguished: ^ expert definition (conclusion); ^ negotiations; ^ negotiations with a mediator; ^ reconciliation;

^ mediation; ^ arbitration proceedings; ^ making decision independently ^ short-term process; ^ establishment of situations; ^ dispute resolution commissions; ^ private court; ^ pre-assessment; ^ pre-trial settlement of disputes; ^ Simplified panel trial [3]. The most popular types of conflict resolution in the Republic of Uzbekistan: & arbitration proceedings; & Proceedings in the International Commercial Arbitration Court; & mediation; & negotiations; & Agreement.

In this study, we will focus on the classification of arbitration tribunals and types of alternative dispute resolution. In particular, after the adoption of the Law on Arbitration Courts, there were two main arbitration courts in Uzbekistan - Arbitration Court under the Chamber of Commerce and Industry of Uzbekistan and the Association of Arbitration Courts of Uzbekistan.

The recent decree of the President of the Republic of Uzbekistan No. DP-4754 of June 17, 2020 "On measures to further improve the mechanisms of alternative dispute resolution" in our country has led to further development of the institute of arbitration. Various arbitration courts have emerged and this process is still going on today. As a result, the issue of classifying arbitration courts not only theoretically but also practically is becoming a topical issue.

The need for classification is determined by scientific research in this area, and it has both scientific and fundamental practical significance. Usually, certain disputed legal relations arise due to the jurisdiction of

the arbitral tribunals, as well as practical issues related to the resolution of issues related to its jurisdiction. Most importantly, the classification of arbitration tribunals helps to define the scope of authority and activity, as well as to resolve disputes quickly and correctly.

The Russian procedural literature has focused on some aspects of this issue. Russian scientists O.V. Bar-onov, E.A. Vinogradova, M.I. Kalendrov, A.V. Timo-feev, Y.F. Farkhtdinov and others have made efforts in this direction. However, the views of scholars on the classification of arbitration courts are different because they are based on different classification criteria. We can often see the contradictory proposals in the classification on certain grounds, for instance, the duration of the arbitration tribunals, the subject matter of disputes, the method of arbitration. This consistent and unanimous system of arbitration courts and their general classification has also led to terminological confusion.

In international practice, arbitration courts are divided into types according to the period of validity and area of activity. The following types according to the period of validity:

• ad hoc or one-time arbitration (temporary arbitration) courts;

• institutional or permanent arbitration tribunals set up by the parties to resolve a particular dispute[4] and by field of activity;

• Arbitration courts are divided into "internal" for the settlement of internal disputes within the state;

• and "external" for the settlement of external disputes[5].

Commonly, there is no generally accepted classification today. However, such a much-abbreviated classification is usually difficult to accept, as temporary arbitral tribunals are called "isolated" by some authors for some reasons that are completely incomprehensible, and institutional courts use the word "broad" (non-scientific). But there is no legal basis and it is not advisable to accept these classification due to the fact that for the last ten years there are widely recognized tariffs recognized by the United Nations [6,7], the Supreme Court of the Republic of Uzbekistan and other authoritative organizations and officially used in scientific and educational literature. While dividing arbitration courts into temporary and institutional courts, based on the terminology commonly accepted by the scientific and international community, it should be borne in mind that this is not complete for Uzbekistan and requires some additions.

Corresponding Member of the Russian Academy of Sciences, Doctor of Law, Professor, Honored Lawyer of the Russian Federation, Judge of the Constitutional Court of the Russian Federation M.I. Kleandrov argues that arbitration courts are divided into legal and illegal, as recognized by law. He classifies the latter as criminal arbitration courts, which deal not with "raids" or "criminal gangs" of criminal groups, but with the jurisdiction of the parties to the dispute (legal entities or reputable citizens), the judiciary, the judiciary, and the judiciary. In other words, the person conducting the trial is talking about cases in which he has a criminal reputation and prefers to be heard by local citizens. The need to separate the illegal arbitration tribunals into

separate groups is clearly defined in practice, even among professional lawyers.

In our opinion, it is enough to record the fact of existing courts and determine their place in the general classification without going into detail about their specific features and comparative analysis with illegal arbitration courts.

If we look at foreign countries, especially in India, there are the following types of arbitration:

1. Institutional arbitration;

2. ad hoc (temporary) arbitration;

3. Short-term arbitration;

Institutional Arbitration.

An institutional arbitration is one that is administered by an institution agreed upon by the parties and conducted in accordance with that institution's arbitration rules. Institutional arbitration may be referred to as administered arbitration. The parties have the right to indicate in the arbitration agreement the settlement of disputes in accordance with the rules of the elected arbitral tribunal. The governing body of the organization from a pre-selected panel may appoint one or more arbitrators, or the parties may choose their own panel, but it must be limited.

Ad hoc (temporary) arbitration

If the parties agree and form an arbitration, it is called ad-hoc (temporary) arbitration. This can be local, international or foreign arbitration. An agreement to review existing disputes or to supervise the process of future disputes or at least to provide procedural rules for arbitration shall be submitted to arbitration without the appointment of an arbitral tribunal. This second meaning is more common in international arbitration. Ad hoc (temporary) arbitration means that the trial cannot be conducted in accordance with the established rules. Because the parties are not obliged to submit their dispute in accordance with the rules of the arbitral tribunal, they are free to express their rules of procedure. The geographical jurisdiction of the ad hoc arbitral tribunal is very important, as most matters relating to the arbitral tribunal are decided in accordance with the national law of the place where the arbitral tribunal is located.

Short-term arbitration

Even other arbitration processes can be long and tedious, and therefore this arbitration process acts as a means of resolving the issue of time. Short-term arbitration is a time-dependent method of arbitration and conciliation. His procedure was established in such a way that he renounced all time-consuming methods and promoted simplicity, which was the primary goal of such arbitration [9].

However, in other European countries, the autonomy of the parties to the arbitration may be decided in the first instance, whether to go to ad hoc (temporary) arbitration or to choose institutional arbitration [11]. Therefore, it is not surprising that these two traditional methods of arbitration are often discussed from a selective point of view [12] and, on the one hand, ad hoc (temporary) arbitration and, on the other hand, institutional arbitration, which usually have little or no advantage over them[13].

In this case, institutional arbitration is classified as arbitration governed by a specialized arbitration institution in accordance with its arbitration rules [14]. According to another classification, institutional arbitration is conducted in accordance with the rules of institutional arbitration and is always supervised by a judge. The arbitral tribunal is an administrative body responsible for various matters related to the establishment, remuneration of arbitration judges and the resolution of similar issues. In another classification, institutional arbitration is considered to be a sponsorship of an existing institution or a controlled arbitration process.

In the United Kingdom, in particular, the London Maritime Arbitration Association (LMAA) appoints only arbitrators as a designating body, without providing other services, but is still classified as an "institution" of arbitration [16]. Regardless of its institutional classification, arbitration under LMAA conditions is primarily ad hoc (temporary) arbitration [17].

In Germany, "the Gamburger Freunds Chaftliche Arbitrage" does not offer any administrative services, although the Hamburg Chamber of Commerce acts as a potential appointing authority. Due to the lack of administration, the Hamburg Friendly Arbitration is mainly classified as ad hoc (temporary) arbitration. In contrast, the German Federal Supreme Court has qualified "Gamburger Freundschaftliche" Arbitration as a permanent arbitration institute [19]. "The Gamburger Freundschaftliche" Arbitration Court considered the use of its arbitration rules to be a decisive point[20].

These examples and others show that it is difficult to classify existing approaches to case management and how difficult it is to classify the subjective classifications that come from such classifications. It should be noted that ad hoc (temporary) arbitration is classified primarily as the opposite side of institutional arbitration, for instance, as a category that includes all non-institutional arbitrations [21]. Negative classifications of this type classify ad hoc (temporary) arbitration as arbitration without participation. The institution of arbitration is independent of all institutions [22] and is defined as an institutional arbitration that is carried out without the benefit of the appointing and administrative body or (in general) without the prior rules of arbitration or is not governed by an arbitration tribunal [23].

For example, the ease with which an arbitral award can be enforced does not depend on whether the arbitration is "institutional" but on the reputation of a particular institution in the field. The same is true of the practical advantage of institutional arbitration, which is sometimes referred to as the element of "consolation" in the existence of an arbitral tribunal [24]. The parties derive such convenience from the experience and reputation of a particular institution, that is, from participating in the arbitration proceedings of this institution. In view of the above, the most common types of arbitration in many foreign countries are institutional arbitration and ad hoc (temporary) arbitration, using the rules of UNCITRAL arbitration [25].

From 2002 to 2016, more than 130 arbitration courts were established in the Republic of Slovakia from European countries. Among these courts, there has been an increase in "pocket" courts, their attractive

names, poor quality decisions, violations of the rights of the parties, and other cases. As a result, in the Slovak Republic, there is a negative attitude towards the arbitral tribunals among businesspersons and citizens. At that time, the current legal order in the country was not adapted to the arbitral tribunal. These cases have undermined the reputation of arbitration, which needs to be addressed in the future. In 2016, according to Article 12 of the Law of the Slovak Republic on Arbitration, the Slovak Olympic Committee, the National Sports Association and the Chamber established by law (for example, the Slovak Bar Association or the Slovak Chamber of Commerce of the Slovak Chamber of Commerce) [27].

Based on foreign experience, there are two types of arbitration courts in Uzbekistan, which are temporary and permanent arbitration courts. In particular, most permanent arbitration tribunals are formed by voluntary orders of the heads of the founding organizations and are on their balance sheets [28]. According to Article 6 of the Law on Arbitration Courts, permanent arbitration courts are formed by legal entities or their associations and operate under these organizations [29]. A permanent arbitration court is established when a legal entity decides to establish a permanent arbitration court and approves the rules of the permanent arbitration court and the list of arbitrators. A legal entity that has established a permanent arbitration tribunal shall send copies of the documents on its establishment to the judicial authority where the arbitration tribunal is located. Public authorities and administration may not form arbitration courts or be parties to an arbitration agreement. The current domestic legislation does not provide for any other restrictions on the procedure for establishing permanent arbitration courts. Thus, permanent arbitration courts cannot be established and registered as independent legal entities in accordance with the current legislation [30].

Despite the fact that SH.M. Asyanov's interpretation of the Law "On Arbitration Courts" does not contain the relevant instructions of the legislator, the activities of arbitration courts can not be considered as commercial activity [31]. This is especially important for tax purposes. In the operation of the tax authorities, there have been attempts to see the activities of arbitration courts as a service activity for profit. In this case, the tax authorities concluded that in order to handle property disputes, it is necessary to tax the profits and to add value added tax to the payments, considering that entrepreneurial activity is a service to profit. However, the judicial and arbitration practice of Germany, France, Kazakhstan, Russia and other countries, as well as the legislation and experience of the tax authorities of these countries, show that they did not apply such an approach to arbitration. In particular, arbitration proceedings in this category of disputes may be conducted for commercial purposes, including for profit, as defined in Chapter 38 of the Civil Code of the Republic of Uzbekistan. He noted that the money received by the arbitration court (or the legal entity that formed the arbitration tribunal) as an arbitration fee could not be taxed [32].

However, in accordance with Article 7 of the Law, they to resolve a dispute between the parties to the arbitration agreement shall establish the interim arbitral tribunal and the interim arbitral tribunal shall cease to exist after the dispute has been considered. A copy of the arbitration agreement between the presiding judge of the arbitral tribunal (when the panel considers the dispute) or the arbitrator (when the dispute is considered individually) and the notification of the establishment of the interim arbitral tribunal shall be issued at the same place where the court is located. The procedure for establishing an interim arbitration court shall be set up by the parties to the arbitration agreement in accordance with this Law.

According to the register of the Ministry of Justice of the Republic of Uzbekistan in January 2022, more than 255 permanent arbitration courts (international arbitration) have been registered in Uzbekistan. More than 80 permanent arbitrators (international arbitration courts) and about 1,200 arbitrators have been registered. According to foreign experience, the existing arbitration courts in our country today are "pocket" courts, their attractive names, poor quality decisions, violations of the rights of the parties and others.

According to Doctor of Law, Professor Ota-khonov, the introduction of the following provisions in the Laws "On Arbitration Courts" and "On State Duties" will further increase the attractiveness of arbitration courts.

And it serves to increase the number of disputes

a) "Permanent arbitration courts shall be established by non-governmental non-profit organizations and shall operate under them";

b) "If there are at least seven arbitrators on the list of permanent arbitral tribunals, they shall be deregis-tered by the judiciary" [33].

Given that the proposals put forward by F.H. Ota-khonov are still valid today, we can say that arbitration is a non-governmental body and does not have the status of an individual. For this reason, the arbitration tribunal is not engaged in business activities, and for this purpose, we consider it expedient to support the establishment of it in the presence of non-governmental nonprofit organizations. In addition, the modern scientific literature on arbitration and arbitration suggests that "arbitration courts exist as non-governmental organizations in the form of non-governmental non-profit organizations" [34].

In our view, this suggest is not only worthy of the right to exist, but also requires the unification of legislation, because only in this way (by granting the status of a legal entity to a permanent arbitration tribunal) is it possible for them to be organized in a timely manner. It would not be an exaggeration to say that it would be expedient for a legal entity registered with the Ministry of Justice of the Republic of Uzbekistan as a non-governmental-non-profit organization to establish a permanent arbitration tribunal. It also serves as a basis for the abolition of today's "pocket" arbitration tribunals, based on foreign experience [35].

This aspect should also be taken into account in the development of issues related to the classification

of arbitration courts, and according to the method of organization are divided into: the founding organization is formed as a structural unit; was created by independent legal entities and the state as an integral part of the organization. Given that currently there are only arbitral tribunals and international commercial arbitration tribunals, they differ significantly from each other, representing different subtypes of the same class [36]. The point is that the International Commercial Arbitration Court, regardless of the subject matter of the dispute, is a foreign organization or an organization with foreign capital, and the arbitral tribunal, regardless of the composition of the parties, can only be governed by its powers [37]. In particular, the Law of the Republic of Uzbekistan "On International Commercial Arbitration" of February 16, 2021 stipulates that international commercial arbitration is free from all possible relations, both contractual and non-contractual, which are of a commercial nature by agreement of the parties [38]. Also, arbitration is considered international if the parties have directly agreed that the subject of the arbitration agreement is related to more than one country [39].

As mentioned above, international commercial arbitration courts are usually divided into "international" and "domestic" according to their area of activity. The Law of the Republic of Uzbekistan "On International Commercial Arbitration" (for example, a non-governmental non-profit organization of the Ministry of Justice of the Republic of Uzbekistan No. 992 of June 22, 2021, "Association of International Arbitration Courts of Uzbekistan"). The internal courts now operate under the Law on Arbitration Courts, which deals with disputes arising out of civil law relations in the Republic of Uzbekistan, including economic disputes between business entities, including the Chamber of Commerce and Industry.

However, such a classification is incomplete and does not correspond to the existing facts. In our opinion, given the fact that some courts are available and well-organized in international countries (for example, the United Nations International Court of Justice in The Hague, the European Court of Justice in Luxembourg, the CIS Economic Court in Minsk, etc.). Resolving the issue of establishing and operating courts in the presence of a non-governmental non-profit organization is a requirement of today's advanced economic era. They represent a completely separate group of arbitration tribunals designed to resolve disputes in interstate economic relations, and therefore cannot be classified as "domestic" or "international" arbitration courts. Speaking at the Eleventh Session of the Supreme Soviet of the USSR in 1990 during the discussion of the draft law "On Property in the USSR", the Chairman of the Committee on Legislation, Law and Order of the Supreme Soviet of the USSR Yu.Kh. Kalmykov said: "disputes are not an exception, so we have established a general rule that all of these disputes should be considered in arbitration"[40].

On August 1, 2014, the Association of Arbitration Courts in cooperation with the Friedrich Ebert International Foundation of the Federal Republic of Germany Dr. Wolf Friedrich Rover, Deputy Chief Justice of the Supreme Administrative Court of the Federal Republic

of Saxony, Germany, said: "I have witnessed the same in Uzbekistan. Judicial and legal reforms are in full swing in the country"[41].

In addition, on September 25, 2019, the UN envoy Diego Garcia-Sayan visited the International Press Club in Uzbekistan and met with representatives of the media. Diego Garcia-Sayan said in his report, "Serious threats to the independence and rule of law remain. At present, the government must act swiftly to support and complete the reform process, as well as to limit actions that threaten the independence of the judiciary and affect its ability to achieve justice. Corruption and related criminal structures in the state pose a serious threat to state institutions, including the judiciary"[42].

The specifics and structure of permanent international and "international" arbitration courts are not the subject of a detailed study in this study, and in the future, we will speak only of the classification of "internal" arbitration courts. The most developed arbitration literature in the procedural literature was considered to be classified according to the subject matter of the disputes to be settled. However, there is no unity and trust in this issue.

Some authors divide them into arbitration courts of general jurisdiction, corporate arbitration courts and specialized arbitration courts [43].

Arbitration courts of general jurisdiction are courts of jurisdiction formed by organizations or associations whose powers are not limited to any specific type of civil-legal relations and the territorial jurisdiction of the parties to a legal dispute. In these arbitration courts, the inclusion of the terms of arbitration in the contracts is not controlled by the founding organization and does not affect the economic activities of the plaintiffs and defendants in the dispute. The authors of this classification refer to this type of arbitration courts, for example, to the arbitration courts adjacent to the Chamber of Commerce and Industry of the founding entities of the Republic of Uzbekistan.

Corporate arbitration courts, in their opinion, are courts set up to resolve economic disputes limited by the scope or type of corporate activity (banking, insurance, valuation) or the composition of the participants (for example, only between members of the company -firms). The establishment of such an arbitral tribunal ensures the organizational, methodological, managerial and other influence of the participants in the activities of the regulated legal relationship. The purpose of establishing such arbitration tribunals is to provide more qualified protection of the rights of participants in corporate contractual relations. An example of a corporate arbitration court is the arbitration court, which operates permanently under the auspices of the private enterprise Asaka Vasatiya.

Specialized arbitration tribunals are established only to resolve disputes in any sector of the economy, the social sphere, and so on. As an example of this type of arbitration courts, the authors of the review are arbitration courts, which are organized to assist in the implementation of land reform and to protect the interests, goals and objectives of the rural population in the acquisition of land.

It is possible to agree with such a classification, but in our opinion, it is not logical. The authors of this category have identified two subtypes in defining and presenting the content of corporate arbitration courts: first, it is limited to the scope or type of corporate activity and secondly, it is limited to the composition of the participants. However, in the future, such a classification will no longer be considered, and the assessment of these sub-species will not be carried out and they will not be included in the classification.

O.V. Baronov, N.R. Rubina, G.V. Sevastyanov, V.N. Tarasov and and other scholars [44] have taken a slightly different approach, arguing that the permanent arbitration tribunals should be "a method of reaching an agreement on the transfer of disputes to open and closed courts; Open arbitration courts, in turn, are divided into general and special courts by jurisdiction.

According to these scholars, open arbitration courts are arbitral tribunals (for example, arbitration courts under the Chamber of Commerce and Industry) that resolve any disputes that may be the subject of arbitration proceedings in accordance with applicable law. Arbitration courts, which have special special powers, have the right to consider disputes only by the founder. Closed arbitration courts (for example, a permanent arbitration tribunal at the private enterprise Asaka Vasatiya) hear only disputes between a predetermined circle of legal entities and individuals.

The criteria and structural components of the above classification do not match. The types of arbitration courts presented by the authors do not differ in the methods by which the parties enter into arbitration agreements. In addition, it should be noted that the classification of arbitration courts by the method of concluding arbitration agreements is very wide, as the provisions of Article 12 (1) of the Law "On Arbitration Courts" stipulate that the arbitration agreement. It is clearly stated that it can be formalized in a separate agreement. Both of the above classifications (both on the subject matter of disputes that need to be resolved and on the method of arbitration) suffer from a certain incompleteness, and their differences are more terminological than fundamental.

It appears that the arbitral tribunals are subject to the jurisdiction of the courts of general jurisdiction (any disputes that fall within the jurisdiction of the arbitral tribunal by law), and are subject to special and corporate jurisdiction. The second, in turn, is divided into open corporate arbitration courts, depending on the subjective composition of the disputes to be resolved (any person may settle disputes in disputes arising from the establishment of an arbitration court and its activities among the members of the founding corporation of the court).

Arbitration courts of general jurisdiction may include arbitration courts under the Chamber of Commerce and Industry and others. Typically, an open corporate arbitration court can be called an arbitration court under an insurance company, which deals with disputes arising in connection with or arising from insurance activities, the insurers themselves and other credit institutions, such as insurance companies and

other clients. According to the rules of a closed corporate arbitration court, in accordance with the rules, only disputes between this organization or the organizations that are part of the ministry are resolved.

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