The Guidelines contain general guiding principles for the Parties, arbitrators, and assistants to the Arbitral Tribunals on various aspects of the proceedings, and also reflect the world’s best practices in arbitration.
The Guidelines apply in the following cases:
As a general rule, the Guidelines are not binding, but the Parties and arbitrators are encouraged to consider them as best practices in arbitration. The Parties, by their agreement, are also entitled to make the Guidelines binding in relation to a specific dispute.
For the purposes of the Guidelines, terms are defined in accordance with the Arbitration Rules.
The Guidelines are provided in the version dated 01 February 2022. They apply to disputes administered by the RAC, regardless of the version of the RAC Rules.
The Guidelines are provided in two versions in Russian and English, having equal legal effect. In case of conflicts, the Russian version takes precedence.
Before considering the case on the merits, the Arbitral Tribunal must resolve whether it has jurisdiction, that is, establish the existence and the scope of its mandate with respect to the specific dispute.
A valid and enforceable arbitration agreement shall serve as the main source of jurisdiction.
The arbitration agreement is autonomous. The autonomy of the arbitration agreement may be seen in two main aspects – its autonomy from the main contract and the national law. By virtue of the principle of autonomy of the arbitration agreement, the Parties may stipulate that the law applicable to the arbitration agreement may be different from the law applicable to the main contract and the law applicable to the procedure of arbitration.
If the Arbitral Tribunal declares the contract containing the arbitration agreement invalid, that circumstance in itself shall not entail the recognition of invalidity of that arbitration agreement.
The validity and enforceability of the arbitration agreement shall be determined according to the law agreed upon by the Parties as applicable to the arbitration agreement. In the absence of the Parties’ agreement, as a general rule, the Arbitral Tribunal is guided by the law of the seat of arbitration.1
Possibility of Referring a Dispute to Arbitration (Arbitrability)
The arbitration agreement shall produce legal effects (shall be valid) only when it is concluded with respect to disputes that may be referred to arbitration and between those Parties that are entitled to refer their disputes to arbitration in accordance with the law of the seat of arbitration (arbitrable disputes).
Non-arbitrable disputes are often the disputes arising from public law relations, disputes involving bankrupt debtor, patent disputes, etc.2
The Arbitral Tribunal shall verify the arbitrability of the dispute, irrespective of whether the Parties object against its jurisdiction.
Scope of Claims Referred to Arbitration
The Arbitral Tribunal’s mandate shall directly depend on the scope of the arbitration agreement; thus, the award made on matters falling beyond the scope of the arbitration agreement shall not produce any legal effects.
The Arbitral Tribunal is advised to interpret the arbitration agreement broadly, unless as otherwise provided by the arbitration agreement itself or by the applicable law.
The Parties may agree to refer to arbitration only certain categories of disputes, for instance, exclude tort disputes or confine disputes to those connected to the performance of the contract.
Pre-Trial Dispute Settlement
In the arbitration agreement, the Parties may agree on a mandatory pre-trial procedure (complaint procedure, negotiations, mediation, etc.), which may become an integral part of the arbitration agreement.
It is advised to set out in detail the manner of conduct of any and all pre-trial dispute settlement procedures.
To conclude whether it has jurisdiction, the Arbitral Tribunal shall analyze whether the Parties have agreed on a pre-trial procedure, whether the Parties have used the opportunities to settle the dispute out of arbitration, and whether the Respondent has objected against the failure to comply with the mandatory pre-trial procedure. That said, arbitrators may have different opinions with regard to the impact that the compliance or failure to comply with the pre-trial dispute settlement procedure has had on their jurisdiction, depending on the law of the seat of arbitration.
Signing of the Arbitration Agreement by an Authorized Person
Depending on the applicable law, the signing of a separate arbitration agreement or an arbitration clause contained in the text of the main contract by an unauthorized person may result in termination of the arbitration due to the Arbitral Tribunal’s refusal to recognize its jurisdiction to resolve the dispute.3
Accordingly, if the Arbitral Tribunal has doubts, it shall ascertain that the arbitration agreement is signed by an authorized person.
Objections against Jurisdiction of the Arbitral Tribunal
The Parties are entitled to object against the jurisdiction of the Arbitral Tribunal to resolve the dispute.
The Arbitral Tribunal may, irrespective of a request by any Party, conclude that it does not have jurisdiction to resolve the dispute in certain cases, for instance, if liquidation proceedings have been initiated against the Respondent.
As a general rule, a Party is entitled to object against the jurisdiction of the Arbitral Tribunal no later than it files its submission containing its position on the merits of the dispute. The subsequent participation of such a Party in the arbitration in itself does not amount to recognition of the jurisdiction of the Arbitral Tribunal.
A Party may argue that the Arbitral Tribunal has exceeded the scope of its jurisdiction as soon as possible after the issue which the Party believes to be outside the jurisdiction of the Arbitral Tribunal is raised. For instance, it is important to bear in mind that, having consented to the jurisdiction of the Arbitral Tribunal with respect to the claims initially made by the Claimant, the Respondent may nevertheless argue that the Arbitral Tribunal does not have jurisdiction with respect to the claims that the Claimant may additionally make during the proceeding.
With a view to minimizing costs, the Arbitral Tribunal shall decide on its jurisdiction at the earliest stage of the proceedings to relieve the Parties from the need to prove their claims on the merits of the dispute if the Arbitral Tribunal lacks jurisdiction.
The Arbitral Tribunal may conduct separate oral hearings to resolve whether it has jurisdiction, as a preliminary matter. The Arbitral Tribunal may also invite the Parties, when agreeing upon the Procedural Schedule, to make bifurcation (that is, split the proceedings into two to resolve the procedural and substantive issues separately) to establish whether the Arbitral Tribunal has jurisdiction to resolve the dispute. If the Procedural Schedule has been agreed upon or the dispute is being considered under the expedited procedure, the Arbitral Tribunal may invite the Parties to have a separate discussion on the issue on jurisdiction to resolve the dispute.
Imposition of Arbitration Fee in Cases Where the Arbitral Tribunal Issues an Order on the Lack of Jurisdiction
The arbitration fee shall not be refunded in cases where the Arbitral Tribunal issues an order on the lack of jurisdiction according to the Rules on Arbitration Fees and Arbitration Costs of the Arbitration Rules.
Notwithstanding that, the Arbitration Rules vest the Arbitral Tribunal with the discretion to rule on a different allocation of the arbitration fee and costs among the Parties (taking into account procedural conduct of the Parties, the circumstances of the specific dispute, etc.).
 G. Born, International Commercial Arbitration. 3rd ed. (2021), p. 534; Resolution of the Plenary Session of the Supreme Court of the Russian Federation No. 53 dated 10 December 2019 “On Performance of Functions of Support and Control in regard of Arbitral Proceedings, International Commercial Arbitration by Courts of the Russian Federation”, para. 27.
 In Russia, the categories of disputes that may not be referred to arbitration are listed in Art. 33(2) of the Commercial Procedure Code of the Russian Federation (hereinafter, “the Russian Commercial Procedure Code”) and Art. 22.1(2) of the Civil Procedure Code of the Russian Federation (hereinafter, “the Russian Civil Procedure Code”). The non-arbitrability of disputes may also be expressly stipulated by the federal law (Art. 33(2)(8) of the Russian Commercial Procedure Code, Art. 22.1(2)(10) of the Russian Civil Procedure Code).
The Arbitral Tribunal shall, taking into account the opinion of the Parties, decide on the procedure for the oral hearing, using the means and methods that it considers suitable, necessary, and sufficient. At the same time, the RAC recommends that the Arbitral Tribunal take account of the following:
the Parties must be provided with equal opportunities to present their positions. Motions, applications, and other issues arising at the oral hearing shall be considered with taking into account the opinion of both Parties;
the Arbitral Tribunal shall seek to conduct the oral hearing efficiently, without allowing any bad faith conduct of the representatives, delays, as well as open conflicts between the representatives;
the Panel of arbitrators shall agree on its position on all issues to be resolved in the course of the hearing and the presiding arbitrator shall not prevent co-arbitrators from posing any questions to the Parties with an aim of clarifying the position of the Parties and the facts of the case.
Model Plan of the Oral Hearing
The Arbitral Tribunal shall, after the arbitrators have introduced themselves, declare the oral hearing open by announcing:
the current time and time zone;
the case number;
the names of the Parties and other participants, if any;
the subject matter and the amount of claims;
the RAC as the institution administering the dispute.
The Arbitral Tribunal shall ascertain the identity and verify the authority of the oral hearing’s participants. Taking into account the positions of the Parties, the Arbitral Tribunal may allow the employees of the Administrative Office and other persons to attend the oral hearing.
If both Parties notified the Arbitral Tribunal within a reasonable time of their lack of intention to participate in the oral hearing, the oral hearing shall not be conducted and the arbitration shall be performed on the basis of the documents submitted by the Parties. If the Parties have not appeared at the oral hearing and, at the same time, have not notified the Arbitral Tribunal within a reasonable time of their lack of intention to participate in the oral hearing, the oral hearing shall be deemed conducted for the purposes of calculating the arbitration fee.
If one Party has not appeared at the hearing, the Arbitral Tribunal shall examine whether proof of its proper notification is available and, taking into consideration the circumstances of the case and the opinion of the Party appearing at the hearing, shall either postpone the hearing or conduct the hearing without that Party.
The Arbitral Tribunal shall, in examining the circumstances preventing the oral hearing from being held:
clarify with the Parties whether they have been properly notified of the date, time, and venue of the oral hearing;
examine whether there are any applications that must be considered before the positions on the merits of the dispute are discussed (for instance, an application to postpone the oral hearing);
consider the respective applications, giving each Party the opportunity to make its case with respect to the application in question.
The Arbitral Tribunal shall clarify whether the Parties have motions for a challenge. A motion for challenge shall not, in any event, prevent the oral hearing from being conducted and the arbitration proceeding from continuing.
The order of presentations and the plan of the oral hearing, as a rule, shall be determined at the beginning of the oral hearing. At the same time, taking into account the circumstances and the complexity of the specific dispute, the plan of the oral hearing may be agreed upon in a preliminary oral hearing.
Example of the order of presentations:
discussion of the possibility of amicable settlement of the dispute;
consideration of the issue of jurisdiction of the Arbitral Tribunal;1
Claimant’s position on the merits of the dispute;2
Respondent’s position on the merits of the dispute;
Parties’ questions to one another;
Arbitral Tribunal’s questions to the Parties;
Parties’ positions on the issue of allocation of the arbitration costs.
If witnesses or experts participate in the hearing, the order of presentations shall be determined bearing their participation in mind. Witnesses and experts shall, as a rule, attend the oral hearing only for the time of their presentations (or testimony).
The Arbitral Tribunal shall warn both witnesses and experts of the confidentiality of the dispute and the prohibition of disclosure of any information about it. The procedure for the provision of information by a witness or expert may be regulated by the applicable law, legal traditions, the agreement between the Parties, the Procedural Schedule, etc.
The Parties shall be provided with equal opportunities to examine witnesses or experts. The expert may be asked questions in connection with the expert’s examination and the expert’s report submitted.
The Arbitral Tribunal may declare the oral hearing adjourned by announcing the current time at the beginning and the end of the adjournment.
If the Arbitral Tribunal deems it impossible to issue a reasoned arbitral award on the basis of the positions submitted by the Parties, the Arbitral Tribunal is entitled to postpone the oral hearing or set a time limit for the Parties to file additional written submissions or evidence on the particular issues that are relevant to the resolution of the dispute or to take other procedural steps.
Having ascertained that the Parties have been provided with the opportunity to present their position on all issues relevant to the resolution of the dispute, the Arbitral Tribunal shall declare the oral hearing closed by announcing the current time. Additionally, the Arbitral Tribunal shall explain to the Parties that:
the operative part of the award will not be announced and the arbitral award will be issued within the time limit prescribed by the Arbitration Rules and sent to the Parties;
the Parties are entitled to file a request for reimbursement of arbitration costs that they incurred within 7 days from the end of the oral hearing.
The oral hearing shall be recorded in audio. The record and the audio recording of the oral hearing shall be provided to the Parties only upon request.
Oral Hearings via Videoconferencing
The oral hearing may be conducted via videoconferencing (as well as in hybrid format):
by agreement with the Parties, including in accordance with the Procedural Schedule;
in the absence of such an agreement with the Parties, based on the decision of the Arbitral Tribunal taking into account the specific circumstances of the case.
A representative participating in the oral hearing via videoconferencing shall send by e-mail the documents certifying his/her identity and authority to the RAC and the Arbitral Tribunal in advance. To verify his/her authority and ascertain his/her identity, the Arbitral Tribunal may ask the representative to demonstrate the documents confirming his/her identity and authority as sent earlier live on camera.
The evidence and documents containing the position of the Parties must be submitted in full prior to the oral hearing. In case the necessity arises to submit documents during the oral hearing, the Parties are advised to use the Online Arbitration System of the RAC (OAS) for these purposes to ensure simultaneous and timely access to such documents by the Parties and the Arbitral Tribunal.
To avoid possible delays caused by technical malfunctions at the oral hearing, the Administrative Office shall be advised to do a test call with the participants of the oral hearing in advance. In any event, a test call with the Arbitral Tribunal shall be carried out separately from the Parties.
Physical premises occupied by the participants of the oral hearing must be well-lit, visible, as well as free from any third parties not allowed by the Arbitral Tribunal to participate in the oral hearing.
Headsets are recommended to enhance the confidentiality and audibility of the participants, as well as to reduce outside noise. Moreover, it is advised to switch microphones off when other participants of the hearing are speaking.
 If the Arbitral Tribunal recognizes that it lacks jurisdiction, the hearing shall be concluded and the Arbitral Tribunal shall issue an order on the lack of jurisdiction.
 When considering a complex dispute comprising several independent sets of claims, the Arbitral Tribunal may invite the Parties to present their positions sequentially with regard to each of them (in that case, the Claimant shall not submit its whole position at once but shall present its position alternating with the Respondent on each set of claims).
Requirements for an arbitral award are provided by Chapter 6 of the Arbitration Rules and the relevant law of the seat of arbitration. The Arbitral Tribunal shall make every effort to ensure that the arbitral award is enforceable.
The Arbitral Tribunal must render the award within the time limit set for the arbitration.
The arbitral award shall be drafted by the arbitrators. The arbitral award must be structured logically and the decision taken shall be set out clearly, concisely, and unambiguously.
Form, Structure, and Contents of the Arbitral Award
The arbitral award shall be made in writing, as a single document, including the word “Award” in the heading. If the Parties have not agreed otherwise, the following must be indicated in the arbitral award:
the name of the RAC;
the case number;
the date of adoption of the arbitral award;
the seat of arbitration;
the Arbitral Tribunal and the procedure for its constitution;
the names (surnames, names, and patronymics) and the locations (domiciles) of the Parties;
the Claimant’s claims and the Respondent’s objections, applications, and motions of the Parties;
the grounds for the jurisdiction of the Arbitral Tribunal;
the circumstances of the case established by the Arbitral Tribunal, the evidence underlying the conclusions of the Arbitral Tribunal regarding those circumstances, legal provisions that the Arbitral Tribunal relied upon in rendering the arbitral award;
the operative part of the arbitral award that contains the conclusions of the Arbitral Tribunal to satisfy or reject each claim made. The amount of the arbitration fee, arbitration costs and the Parties’ costs, the allocation of said costs among the Parties, and, if necessary, the time limit and the procedure for the execution of the arbitral award rendered shall be indicated in the operative part.
The Administrative Office has developed recommendations on the structure of the arbitral award that comprises of the following sections:
title page (attached to these Guidelines);
table of contents;
summary of the case;
commencement of the arbitration and constitution of the Arbitral Tribunal;
course (conduct) of arbitral proceedings;
reasons for the award: a) concerning the jurisdiction of the Arbitral Tribunal; b) concerning the conclusions on the merits of the claims.
allocation of arbitration fees and costs;
operative part and signatures of the arbitrators.
It is advised to number the pages and have sequential numbering throughout the entire award by numbering each paragraph, for ease of internal references.
When the documents submitted by the Parties and their positions on the circumstances of the dispute are described in the Section “Course of the Arbitral Proceedings”, it is advised to indicate, for instance, that: “In the Claim, the Claimant relies on the following (paras. … – … of the Award)” before describing the Party’s position, so that the opinion of the Party and the conclusions of the arbitrators are not confused with one another in the award.
Preparation and Technical Review of the Arbitral Award (the Final Order)
The assistant to the Arbitral Tribunal may assist in the preparation of a part of the award that contains general information about the dispute and the course of the arbitral proceedings. At the same time, neither the assistant to the Arbitral Tribunal, nor the Administrative Office is entitled to take any part in the preparation of the part of the arbitral award that concerns the jurisdiction of the Arbitral Tribunal, the resolution of the case on the merits, and the allocation of the arbitration fees and costs.
Guided by the world’s best practices, the Administrative Office undertakes a technical review of the draft award, including its compliance with the requirements of the Arbitration Rules, before the approved and signed award is sent to the Parties.
For these purposes, the draft award shall be sent to the internal assistant to the Arbitral Tribunal or, if such an assistant has not been appointed, to the Administrative Office, at least two weeks before the time limit for the arbitration expires.
Upon receipt of the draft award, the Administrative Office shall check the arbitral award for its compliance with the Arbitration Rules, as well as for the absence of mistakes, typos, and stylistic errors, which in any event cannot affect the resolution of the dispute on the merits. The arbitrators may reject the suggested recommendations and amendments.
Once the draft arbitral award is finalized, the Arbitral Tribunal shall sign and deliver to the RAC as many copies of the award as there are Parties and one additional copy, to be stored at the RAC. The RAC shall bind the award together (the binding shall be sealed and signed by the Executive Administrator), scan the award, and send the award to the Parties via Russian Post and e-mail used in the case.
Preparation and technical review of the final orders of the Arbitral Tribunal shall be carried out in the same manner.
Rendering the Arbitral Award by the Panel of Arbitrators
The Panel of Arbitrators may render the award by the majority of the arbitrators; that said, if there is a tie, the presiding arbitrator shall have a casting vote. In that case, the operative part of the award shall indicate the reasons for the absence of other signatures.
The arbitral award shall be signed, inter alia, by the arbitrator with a dissenting opinion. The dissenting opinion shall be enclosed to the arbitral award if the arbitrator does not agree with the operative part of and/or the reasoning for the award and if that is not prohibited by the arbitration agreement, the rules of arbitration, and the law applicable to the arbitration.
The same rules apply to the rendering of final orders by the Panel of Arbitrators.
Arbitral Award on Agreed Terms
If in the course of the arbitration, the Parties reach a settlement agreement, the Arbitral Tribunal shall render the award on agreed terms upon the respective request made by both Parties. Such a request may be contained in the settlement agreement itself, a separate request, or any other written submission. When the Arbitral Tribunal renders the arbitral award on agreed terms, it shall confirm the terms of the settlement agreement.
If the Parties inform the arbitrator of having reached a settlement agreement and, at the same time, they do not request an award on agreed terms, it is advised to approach the Parties for the second time. If the Parties refuse to have the award on agreed terms rendered and, at the same time, do not send an agreement to terminate the arbitration, as well as if the Parties have already provided the confirmation of execution of the settlement agreement, the Arbitral Tribunal shall issue an order to terminate arbitration, given that the continuation of the arbitration is no longer necessary or possible. In that case, termination of the arbitration is not possible, if there are any unresolved issues left between the Parties, for instance, concerning the allocation of arbitration fees and costs.
Before rendering the arbitral award on agreed terms, the arbitrator shall verify the terms of the settlement agreement in terms of their validity, including whether the agreement between the Parties is not unlawful or otherwise not inconsistent with public policy. If some of the provisions are void, the Arbitral Tribunal shall inform the Parties of that fact. If the Parties do not agree to make amendments, in the award, the arbitrators shall provide the reasons for why those terms are void and shall not include them in the operative part of the award.
The structure of the arbitral award on agreed terms shall follow the structure of the ordinary arbitral award. The only difference is that the subsection “Conclusions on the Merits of the Claims” in the award shall be replaced with the subsection “Settlement of the Dispute by Way of a Settlement Agreement”. That subsection shall include a description of how the Parties reached the settlement agreement, as well as the full text of the agreement.
The operative part of such an award shall comprise of the terms of the settlement agreement, for instance: “to deem terminated obligations to pay a forfeit in the amount of …”, “to recover from … in favor of … the costs associated with the payment of the arbitration fee”, “to oblige … to conclude … a supply agreement with … within …”, etc. All terms of the settlement agreement related to the resolution of the dispute on the merits must be featured in the operative part of the arbitral award.
Termination of the Arbitration without an Arbitral Award
The arbitration shall terminate with an arbitral award or an order for termination of the arbitration without an arbitral award (for instance, when the Claimant withdraws the Claim or the Arbitral Tribunal does not have jurisdiction to resolve the dispute).
The same requirements as the ones applicable to arbitral awards shall apply to orders for termination of arbitration. In order for termination of arbitration, the subsection on conclusions on the merits of the claims shall not be included and the subsection “Grounds for Termination of the Arbitration without an Arbitral Award” shall be included instead. If the lack of jurisdiction of the Arbitral Tribunal has served as a ground for termination, this shall be indicated in the section “Jurisdiction of the Arbitral Tribunal” instead of the section “Reasoning for the Award”.
Other differences include: the different title of the document (for instance, “ORDER on the Lack of Jurisdiction”); indication in the operative part “ORDERS” instead of “AWARDS”. For instance: “… the Arbitral Tribunal ORDERS to terminate the arbitration due to the withdrawal… of the Claim against …”
Correction and Interpretation of the Arbitral Award. Additional and Separate Arbitral Awards
If a Party requests to correct or interpret the arbitral award, the Arbitral Tribunal shall decide whether to satisfy the Party’s request or reject it. The arbitrator may also correct mistakes and typos in the award at his/her own initiative.
In that case, the arbitrator’s mandate shall be renewed to a limited extent and, therefore, under no circumstances may the arbitrator change the reasoning of the award. Only typos, spelling, punctuation, or arithmetic mistakes (for instance, a mistake in the amount of the claims to be recovered in the operative part, where a different amount follows from the calculations contained in the award) may be corrected.
The arbitrator may refuse to correct or interpret the award, for instance, if he/she does not agree that the mistake has in fact been made. The refusal to give an interpretation shall be reasoned.
The additional arbitral award shall be rendered by the arbitrator at the request of the Party if any of the claims have not been featured in the arbitral award at all. The arbitrator may not render an additional award at his/her own initiative.
An oral hearing may be conducted only concerning a claim that was made before, but has not been featured in the award. The arbitrator may not admit and examine new evidence.
The additional arbitral award shall be prepared in the same manner as the ordinary arbitral award, have the same structure, and contain the same elements.
The separate arbitral award shall be rendered if it has been impossible to allocate the costs of the Parties before rendering the award. To render a separate arbitral award, the Arbitral Tribunal must ensure that:
prior to rendering the arbitral award, the Party has made a request to reimburse the costs of the Party in a separate arbitral award;
it has been impossible to provide full information about the amount of costs incurred by the Party prior to rendering the arbitral award;
the final information about the amount of costs incurred has been provided no later than 30 days from the date of the termination of the arbitration.
The arbitrator’s powers at the time of rendering the separate arbitral award shall be renewed by virtue of provisions of the Arbitration Rules, to which the Parties have consented, to a limited extent. In the separate arbitral award, the arbitrator may not consider or resolve other matters, as well as make amendments to the arbitral award previously issued.
If a Party misses the deadline for sending the request to correct or interpret the arbitral award, render an additional or separate arbitral award, the Party’s arguments shall not be considered and the Arbitral Tribunal shall issue an order to reject the respective request.
Appointment of Arbitrators
The arbitrators shall be appointed according to the procedure established by the Arbitration Rules, taking into account the need for the RAC to ensure impartiality and independence at all stages of decision-making.
If a member of the Board or an employee of the Administrative Office administering the case discovers any circumstances that could raise doubts as to their impartiality or independence, that person must immediately notify the Board or the Executive Administrator of such circumstances, respectively. Additionally, such a person may not participate in the appointment of arbitrators for the particular arbitration where the respective circumstances were discovered.
The RAC shall consider as candidates for arbitrators both persons included in the united recommended list of arbitrators and databases of specialists of the RAC published on its official website, and other persons not included in such lists.
Appointment of the Arbitral Tribunal shall comply with the requirements established by the applicable laws, and the requirements for arbitrator agreed by the Parties should be observed as much as possible. For the purposes of the constitution of the Arbitral Tribunal, the following shall also be taken into account:
nature and complexity of the dispute;
qualifications and expertise of the candidates for arbitrators;
language of the arbitration and the documents submitted by the Parties;
ability of the candidate to de facto participate in the resolution of the dispute, including his/her availability;
seat of arbitration;
location of the Parties and the candidate for arbitrator;
whether the candidate is able to hold oral hearings in person or by videoconferencing;
value of the claim;
potential costs of the Arbitral Tribunal;
previous appointments as the arbitrator at the RAC and, if applicable, diversification of candidates for arbitrators;
past experience of dispute resolution;
citizenship and nationality of the Parties and the candidate for arbitrator;
national and cultural background of the Parties and the candidate for arbitrator;
gender, age, and geographic diversity;
balance of experience, qualifications, and seniority in the Arbitral Tribunal;
other factors relevant to the appointment of a competent, impartial, and independent arbitrator.
Members of the Board Acting as Arbitrators
Taking into account the circumstances of a particular dispute, the Arbitral Tribunal may resort to the aid of an assistant. Within the framework of arbitration, the assistant shall perform certain functions on behalf of the Arbitral Tribunal, unrelated to the resolution of the dispute on the merits.
An assistant to the Arbitral Tribunal may be one of the employees of the Administrative Office (hereinafter, the “internal assistant”) or another person selected at the initiative and discretion of the Arbitral Tribunal (hereinafter, the “external assistant”, and together, the “assistant”) subject to the provisions of these Guidelines.
Appointment of Assistant and Termination of his/her Appointment. Assistants’ Fees
An assistant may be appointed at the initiative of the Arbitral Tribunal at any stage of the arbitral proceedings (including after the last oral hearing).
A person may act as an assistant if he/she has enough time to perform the assistant’s functions and has confirmed the absence of a conflict of interest. For these purposes, the candidate shall present a signed copy of the Declaration of Assistant to the Arbitral Tribunal (attached to these Guidelines).
Case managers and legal counsels of the RAC may act as internal assistants (information is available on the official website of the RAC). The Executive Administrator chooses the candidate for an internal assistant on its initiative taking into account the requirements of paragraph 4 of these Guidelines and the suggestions of the Arbitral Tribunal (if any).
The Executive Administrator is not entitled to act as the assistant to the Arbitral Tribunal.
An internal assistant shall be appointed by the Executive Administrator at the request from the Arbitral Tribunal submitted in any format. The Parties and the Arbitral Tribunal shall be notified of the appointment of the internal assistant with his/her CV attached by an e-mail from the Administrative Office (email@example.com) and by virtue of the respective notice uploaded to the Online Arbitration System of the RAC (OAS), and if a Party does not have an e-mail address, the notice shall be sent to the postal address of the Party.
Other employees of the Administrative Office may perform certain administrative functions along with and on instructions from the internal assistant. Information about such employees must be disclosed to the Parties and the Arbitral Tribunal.
Taking into account the circumstances of a particular dispute, the Arbitral Tribunal may resort to the aid of an external assistant. The Arbitral Tribunal must immediately notify the Parties of such an intention, enclosing his/her CV and a signed copy of the Declaration of Assistant to the Arbitral Tribunal (and must indicate his/her full name (surname, name, and patronymic) and contact details).
The Arbitral Tribunal shall decide on the appointment of the external assistant taking into account the positions of the Parties.
The Arbitral Tribunal is entitled to resort to aid of both internal and external assistants to ensure the efficiency of the arbitral proceedings. In that case, the Arbitral Tribunal shall determine the manner in which the assistants are to perform their functions subject to the provisions of these Guidelines.
An assistant’s mandate shall commence on the date when the Parties are notified of his/her appointment. This provision shall not apply to the Parties that have joined the arbitration after that date.
Documents related to the arbitration of a particular dispute shall be sent to the assistant, including to his/her e-mail address.
When the arbitration fee is calculated at an ad valorem rate, the appointment of an assistant shall not result in any additional costs for the Parties.
When the arbitration fee is calculated at an hourly rate, the fee of the internal assistant shall be calculated according to the Rules on Arbitration Fees and Arbitration Costs.
The fee of the external assistant shall be agreed upon by the Arbitral Tribunal independently with such an assistant. In consultation with the Parties, the Arbitral Tribunal may impose the external assistant’s fee on the Parties.
In any event, the RAC shall not pay the fee or other costs to the external assistant.
An assistant’s mandate may be terminated at any stage of the arbitral proceedings. Such mandate shall be terminated upon adoption of an arbitral award, an order for termination of arbitration, or an order on the lack of jurisdiction (except as provided in paragraph 3 of Article 16 of the Rules on Arbitration Fees and Arbitration Costs).
An assistant’s mandate may also be terminated:
in the event the assistant is de jure or de facto unable to perform his/her functions – by the Executive Administrator (for the internal assistant) or the Arbitral Tribunal (for the external assistant).
An assistant’s mandate may be renewed after an arbitral award has been issued in case of renewal of the Arbitral Tribunal’s mandate.
When performing any functions in the arbitration of a particular dispute, the assistants are not entitled to go beyond the scope of the Arbitral Tribunal’s assignment. The Arbitral Tribunal shall supervise the assistant’s performance of his/her functions.
The Arbitral Tribunal may not entrust to the assistant any functions directly or indirectly related to the resolution of the dispute on the merits or to the performance of the primary duties of the Arbitral Tribunal. Assistant must refrain from influencing the decisions of the Arbitral Tribunal in a particular dispute at all times.
Unless as specified otherwise by the Arbitral Tribunal, the assistant shall perform administrative and organizational functions, including the following:
interacting with the Parties, the Arbitral Tribunal, and the Administrative Office;
participating in compiling the case files, including those in electronic format by uploading the documents of the Arbitral Tribunal and the Parties at their request to the Online Arbitration System of the RAC (OAS);
assisting the Arbitral Tribunal with preparing the case for oral hearings, including by finding premises and necessary technical equipment for organizing videoconferencing;
keeping the record and other transcripts during oral hearings;
assisting the Arbitral Tribunal for the purposes of payment of its fee;
other functions as assigned by the Arbitral Tribunal subject to the provisions of paragraph 22 of these Guidelines.
Unless as agreed otherwise by the Parties or specified by the Arbitral Tribunal, the assistant may also perform certain functions within arbitral proceedings:
performing a technical review of draft arbitral awards and/or orders of the Arbitral Tribunal, as well as preparing and systemizing information about the dispute and the course of the arbitral proceeding, which in any case should not affect the resolution of the dispute on the merits in any way;
preparing draft letters of the Arbitral Tribunal;
summarizing the positions of the Parties and evidence in the case;
other functions as assigned by the Arbitral Tribunal subject to the provisions of paragraph 22 of these Guidelines.
An external assistant may not perform any functions that, according to the Arbitration Rules, belong exclusively to the Administrative Office. In any event, technical review of an arbitral award shall be performed by the internal assistant, and in the absence of one – by the Administrative Office, and this does not have to be agreed with the Parties.
For the purposes of a technical review, the Arbitral Tribunal shall provide the arbitral award to the internal assistant, and in the absence of one – to the Administrative Office, within a reasonable time, but no later than 14 days before the end of the arbitration.
To perform his/her functions, the external assistant shall receive full support from the Administrative Office. The external assistant shall be given access to the case files in the Online Arbitration System of the RAC (OAS) with the ability to upload documents independently.
When performing his/her functions, the assistant must remain impartial and independent and avoid any conflicts of interest at all times. Provisions of the IBA Guidelines on Conflicts of Interest in International Arbitration regarding the independence and impartiality shall apply to assistant mutatis mutandis.
The Arbitral Tribunal shall supervise the assistant’s compliance with the principle of independence and impartiality throughout the entire arbitral proceeding.
Assistant must immediately disclose any circumstances that could give rise to justifiable doubts as to his/her independence and impartiality to the Parties and the Arbitral Tribunal.
The Parties may submit a reasoned request for a challenge of the assistant. The provisions of Article 19 of the Arbitration Rules shall apply to the challenge of the assistant mutatis mutandis.
In the event of a failure to perform or improper performance of his/her functions, assistants shall not be liable to the Parties, the Arbitral Tribunal, and the RAC in the amount greater than that provided for in the applicable laws. The RAC shall not be liable to the Parties and the Arbitral Tribunal for damages caused by the actions (omissions) of the assistant.
Unless as agreed otherwise by the Parties, the assistant shall comply with the principle of confidentiality of arbitration according to Article 25 of the Arbitration Rules.
Assistant must avoid unilateral contacts with the Parties unless they are directly necessitated by the nature of the function performed by the assistant or of the assignment from the Arbitral Tribunal.
The Arbitral Tribunal shall conduct the arbitration according to the arbitration agreement, the Arbitration Rules, and the applicable laws, as well as taking into account the circumstances of the dispute. Such circumstances include the category, complexity, and value of the dispute, the wishes, and needs of the Parties, their legal traditions, and other circumstances.
If any matters related to the conduct of the arbitration are not governed by the arbitration agreement, the Arbitration Rules, or the applicable laws, the Arbitral Tribunal shall conduct the arbitration in such a manner as it deems appropriate, following the principles of arbitration and avoiding any undue delays and costs.
The Parties are free to present their positions in the case. During the arbitration, the Parties may submit procedural requests (including for the extension of the time limit for the submission of a counterclaim, for the postponement of an oral hearing) that shall be considered and resolved by the Arbitral Tribunal taking into account the position of the opposing Party. Such requests may be made in writing, as well as verbally during an oral hearing, which shall be reflected in the record of the oral hearing. The Arbitral Tribunal may grant or reject a request by sending an e-mail or by issuing the respective order, as well as by adopting the decision during the oral hearing (provided that the conclusion of the Arbitral Tribunal is reflected in the record of the oral hearing).
Procedural schedule of the arbitral proceeding (hereinafter, the “Procedural Schedule”) shall provide for the dates and time limits of procedural actions and events, as well as for stages of exchange of written submissions by the Parties; it is advisable that these be established taking into account the circumstances of a specific case, the principles of arbitration, and time limits determined by the Arbitration Rules (including the duration of the arbitration).
The Procedural Schedule shall provide for the time limits for filing a Claim and a Response, as well as establish additional stages for the exchange of documents and indicate the following:
information about the Parties, their representatives, and the Arbitral Tribunal;
applicable rules of arbitration;
seat of arbitration and the law governing the procedure of arbitration;
language of arbitration and language for administering the arbitration;
assistant to the Arbitral Tribunal;
outcome of the discussion regarding the possibility of an amicable settlement of the dispute, if such a discussion took place previously at the suggestion of the Arbitral Tribunal;
oral hearings (their date, venue, and format) or whether the arbitration shall be conducted on the basis of documents;
whether a case management conference shall be held;
whether separate oral hearings shall be held to consider procedural matters (for example, the jurisdiction of the Arbitral Tribunal) or matters related to the merits of the dispute (for example, liability for breach of obligation, quantum, etc.).
Generally, documents shall not be filed after the expiration of time limits prescribed by the Procedural Schedule. The Arbitral Tribunal may, however, allow the submission of documents beyond such time limits in exceptional cases, namely, if there were valid reasons for doing so and taking into account the following circumstances:
opinion and interests of the other Party (Parties);
the need to conduct the proceedings efficiently and without any undue delays;
relevance of the submitted documents to the fair and timely resolution of the dispute;
If the Arbitral Tribunal extends a previously fixed time limit for submission of the documents by one of the Parties or provides it with a new time limit, then, based on the principle of equal treatment of the Parties, it is advisable to also extend the time limit for the submission of the response document by the opposing Party or to provide it with a new time limit, having reflected this change in the Procedural Schedule.
Agreement on the Procedural Schedule
As part of a standard arbitration procedure, after the constitution of the Arbitral Tribunal, the Parties and the Arbitral Tribunal shall, as soon as possible, agree on the Procedural Schedule in any available or appropriate manner, including by e-mail or by holding a case management conference. Such a conference may be held in person or using tele- or videoconferencing.
Following a discussion with the Parties, the Arbitral Tribunal shall draw up the Procedural Schedule and adopt it by way of issuing an order, which shall then be sent to the Parties in the manner established by the Arbitration Rules. The Procedural Schedule is drawn up in free format. For convenience, the Administrative Office has developed a template Procedural Schedule that can be used by the arbitrators subject to the necessary amendments (attached to these Guidelines).
As part of an expedited procedure, the Arbitral Tribunal shall determine the Procedural Schedule unilaterally without seeking the Parties’ approval, but in certain cases, it may take into account the positions of the Parties.
When joining additional Parties, the arbitrators shall consider the expediency of such joinder, as well as ensure the procedural equality of all the Parties participating in the proceedings.
When drawing up the Procedural Schedule, the Arbitral Tribunal is advised to invite the Parties to settle the dispute amicably. The Arbitral Tribunal may provide for a time limit for the amicable settlement in the Procedural Schedule or provide for it to be run simultaneously with the arbitral proceeding. At the same time, regardless of whether such a time limit is provided in the Procedural Schedule or whether the Parties have reached an agreement during such a time limit, the Parties may settle the dispute amicably at any stage of the arbitral proceeding, including after the closure of oral hearings.
If both Parties at any stage of the arbitration decide to proceed with negotiations for the purposes of settling the dispute amicably, the Arbitral Tribunal is advised to suspend the arbitration. If one of the Parties requests suspension of the arbitration for the purposes of amicable settlement, the arbitrators are advised to request the other Party’s position on that matter and based on that, decide on the expediency of suspending the arbitration.
If the Parties conclude a settlement agreement as a result of an amicable settlement, they may file a motion for an arbitral award to be issued on agreed terms.
Mediation is a type of amicable settlement. To proceed with mediation, the Parties shall submit an agreement on mediation to the arbitrators. In that case, the Arbitral Tribunal shall issue an order to suspend the arbitration.
The RAC does not administer mediation. At the same time, if both Parties submit the relevant request, the RAC may provide organizational and technical support of mediation for a fee.
If the Parties settle the dispute and the Arbitral Tribunal issues the arbitral award on agreed terms, the arbitration fee shall be reduced by 50%. If the Parties have settled the dispute and the arbitration has been terminated by issuing an arbitral award on agreed terms, the fee shall be reduced by 50 (25) % depending on the stage of the proceedings. In practice, the Parties are advised to take account of the reduction of the arbitration fee when allocating the fee in the settlement agreement.
If, as a result of negotiations, the Parties failed to settle the dispute, the Arbitral Tribunal shall resume the arbitration and proceed to consider the dispute on the merits.
Arbitral Tribunal’s Powers to Request and Assess Evidence
The Arbitral Tribunal may, at its own discretion, determine the procedure for submission and assessment of evidence, including with respect to the admissibility, relevance, and weight of any evidence.
If the Arbitral Tribunal considers evidence available in the case to be insufficient, it may, at any time, invite the Parties to submit additional evidence and submissions in the case, having provided for the time limits for such submissions in the Procedural Schedule. Based on the principle of adversarial proceedings, the Arbitral Tribunal may also allow all the Parties to make submissions with respect to the requested documents.
Moreover, the Arbitral Tribunal may approach a court for assistance in obtaining evidence (including summoning a witness, obtaining evidence from third parties, etc.), if this is provided for by the applicable laws and the rules of arbitration.
Expert Appointed by the Arbitral Tribunal
An expert may be appointed by the Arbitral Tribunal unilaterally to present a written opinion on the questions posed by the Arbitral Tribunal and suggested by the Parties that require special expertise.
When deciding on the appointment of an expert, the Arbitral Tribunal shall proceed based on the expediency of conducting an expert examination in a particular case and the positions of the Parties. The Arbitral Tribunal shall also assess the expert’s ability to provide information that is lacking from the available evidence or supplements (clarifies) such information.
If there are any doubts as to whether there may be a conflict of interest between the expert and one of the Parties and/or the Arbitral Tribunal, the Arbitral Tribunal shall consider such a request in the manner determined by the Arbitral Tribunal.
The Arbitral Tribunal shall, within the scope of its mandate, search for expert organizations to select the one that will be able to assess the issues raised most professionally, efficiently, and at the lowest cost.
The Arbitral Tribunal may interact with the expert organization(s) unilaterally or through the assistant to the Arbitral Tribunal, as well as through the Administrative Office, having notified the Parties thereof.
Upon the approval of the expert organization and payment of the advance for the expert examination in full, the Arbitral Tribunal shall issue an order providing for the procedure for conducting the expert examination, including the issues posed to the expert, procedure for submitting certain documents for the examination, methods of examination, time limits for the examination, and steps to be taken after the conclusion of the examination (for example, ability of the Parties to comment on the expert opinion, participation of the expert in an oral hearing) and other issues.
If the Parties fail to pay the advance for the expert examination in full prior to its commencement, then the examination shall not be performed.
If the results of the expert examination are crucial to the continuation of the proceeding, the Arbitral Tribunal may suspend the arbitration until the expert opinion is provided.
Expert Appointed by a Party
The Parties are free to submit expert opinions as part of the evidence supporting their position in the case, including if it is necessary to provide information on issues requiring special expertise.
A Party may select and appoint an expert unilaterally without the need for the Arbitral Tribunal’s or the other Party’s approval of such an expert.
If there are doubts as to whether there may be a conflict of interest between the expert appointed by a Party and one of the Parties and/or the Arbitral Tribunal, the Arbitral Tribunal shall take measures to ensure the fair resolution of the dispute, including by taking into account the respective circumstances when assessing the probative value of such an expert’s opinion.
Expert’s Participation in Arbitration
The expert may be appointed at any stage of the arbitral proceeding prior to the issuance of the arbitral award. At the same time, to improve the efficiency of the proceeding, the Parties and the Arbitral Tribunal are advised to consider the issues related to the appointment of an expert, including the need for his/her appointment at the early stages of the proceeding, for example, when agreeing on the Procedural Schedule.
The expert may be invited to participate in an oral hearing to answer the questions of the Arbitral Tribunal and the Parties regarding his/her opinion.
The Parties and the Arbitral Tribunal may agree on the procedure and the time limits for summoning a witness in the Procedural Schedule. In that case, a written witness statement shall be presented within the time limits fixed in the Procedural Schedule. The Arbitral Tribunal may also invite the witness to an oral hearing at the initiative of a Party to provide respective testimony.
Moreover, the Arbitral Tribunal may require any Party to file a written notice containing information on the identity of each witness this Party intends to summon, the subject matter of his/her testimony, its importance for the case, and its relevance to the merits of the dispute.
If the witness has presented his/her testimony during an oral hearing, the Parties may cross-examine such a witness. When choosing the format of the cross-examination, the Parties and the Arbitral Tribunal should account for the differences in the legal traditions of the Parties.
The Party at whose initiative the Arbitral Tribunal has summoned the witness shall unilaterally ensure all necessary conditions for such a witness to present their testimony at an oral hearing.
When summoning a witness, the Arbitral Tribunal is advised to clarify to this person that all information that has become known to his/her as part of the arbitration, as well as the very fact of the arbitration, are confidential. Witnesses may not disclose information about the arbitration without obtaining the consent of all the Parties according to the Arbitration Rules.
If the witness participates in an oral hearing using videoconferencing, for the purposes of complying with the principle of confidentiality, the Arbitral Tribunal is advised to clarify to this witness that there should be no other persons present in the room with him/her.
If there is any doubt as to whether there may be a conflict of interest between the witness and one of the Parties and/or the Arbitral Tribunal, this shall be taken into account in assessing the probative value of such a witness’s testimony.
Party’s Non-Participation in Arbitration
Non-participation of a Party in the arbitration (including the Party’s failure to submit its position within the prescribed time limits, failure to appear at an oral hearing, etc.), provided that the Party has been duly notified of the existence of the arbitration, shall not prevent the case from being considered, an oral hearing from being held, and the arbitral award from being issued based on the available documents and evidence.
However, to issue an enforceable arbitral award, in the event that the Party is evading the arbitration, the Arbitral Tribunal should take special care to follow the principle of equal treatment of the Parties and due process. In particular, every effort should be made to notify the Parties of the main procedural stages of the arbitration.
Even in the absence of objections from the Party, the Arbitral Tribunal, in making its award, shall evaluate the legal grounds of the claims and objections presented by the other Party.
Suspension of Arbitration
The Arbitral Tribunal may suspend the arbitration at its own initiative or at the request of one of the Parties; if both Parties have requested suspension of the arbitration, the Arbitral Tribunal must suspend the arbitration by issuing a respective order.
In that case, the Arbitral Tribunal should indicate the grounds and the period of the suspension (or the event upon the occurrence of which the arbitration shall resume). The period of suspension of the arbitration may be extended at the initiative of the arbitrators or the Parties. The arbitration shall be resumed at the end of the period of suspension (occurrence of the indicated event).
If the arbitration is suspended, the time limits set forth by the Arbitration Rules shall also be suspended, and the Procedural Schedule shall lose effect. Generally, during the suspension of the arbitration, the Arbitral Tribunal shall not issue any procedural documents and consider any requests and evidence from the Parties on the merits of the dispute (except for the requests and evidence relevant to the suspension and/or resuming of the arbitration).
The Arbitral Tribunal may extend the period of suspension. The Arbitral Tribunal shall also resume the arbitration if the grounds for its suspension cease to exist or one of the Parties requests for the arbitration to be resumed. In that case, the Arbitral Tribunal shall suggest to the Parties to agree on the new Procedural Schedule. It may not be necessary to agree on the new Procedural Schedule, if, for example, the Parties have managed to settle the dispute amicably, the Claimant has abandoned its claims, or the arbitration has become unnecessary or impossible.
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