Arbitration (Arbitral Tribunal): History and Legal Nature

Since the ancient times, arbitration has been considered as an institution of peace and justice. Rene David noted that the essence of arbitration was not to maintain the rule of law, but to ensure harmony between people. Arbitration is a society-oriented institution of dispute resolution. However, the history of this institution shows that the legal regulation of its activities always depended on the state. Currently, there is no generally accepted definition of arbitration, although some legal acts both international and national nature reflect attempts to give a legal notion of this institution. At the doctrinal level, there are four established approaches to arbitration: contractual, procedural, mixed and autonomous. The author of this article examines the legal nature of arbitration in a historical aspect, starting with the countries of the Ancient World and Medieval Europe. An attempt has been made to compare the history, legislative, organizational and legal bases of arbitration in Russia and Switzerland. Despite the differences in the traditions of arbitral tribunals in these countries, this comparison is quite correct for the author. In Switzerland, arbitration (the arbitral tribunal) has a fairly long history, and the legislative regulation of its activities is devoid of internal contradictions. In addition, the Swiss legislator promptly makes changes in regulatory legal acts to provide more favorable conditions for arbitration proceedings to the disputing parties in order to attract to Switzerland commercial organizations seeking to resolve their conflicts in this country. Since 2012 some changes in the law on arbitration have come into force in Switzerland, and new Rules of arbitration have been adopted by the Swiss Chambers of Commerce. In contrast to Switzerland, in Russia the first legal acts in the field of private commercial arbitration were enacted only after 1990. The Russian legal concept of commercial disputes resolution today partially reflects the concept of Soviet arbitration, where it means state arbitration. In the Russian Federation till now, there are arbitration state courts. However, the subject of this study will be a different arbitration, the creation of which is provided by Federal Law No. 382 of December 29, 2015 "On Arbitration (arbitration proceeding) in the Russian Federation". In accordance with this law, the term "arbitration" may have at least two meanings. This term, on the one hand, refers to a procedure or method of dispute resolution, on the other - an authority or institution that resolves a dispute and makes a decision on it. The new law on arbitration provides definitions of arbitration, arbitral tribunal and arbitration institution, but at the same time contains many contradictions with the current legislation. The author makes a well-founded conclusion that arbitration is a private legal method of dispute resolution, whose decision is mandatory for the parties that apply to it, and by regulating its activities, the Russian legislator is trying to create a favorable environment for the resolution of such disputes. At the same time, the Federal law of December 29, 2015 provides for the dependence of arbitration (arbitral tribunal) on the state.