DETERMINING OF THE LAW APPLICABLE TO THE ABILITY OF THE PARTIES TO CONCLUDE THE ARBITRATION AGREEMENT

For the first time in the domestic legal literature, the article systematically examines the issues of determining the law applicable to the ability of parties to international commercial relations to conclude an arbitration agreement. Author analyzes the current norms of international acts that govern the procedure for determining the law applicable to establishing the ability of parties to a dispute to conclude an arbitration agreement, as well as legislative provisions, in particular, the rules of the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards of 1958, European Convention on International Commercial Arbitration of 1961, Laws of Ukraine «On Foreign Economic Activity» and «On International Private Law». Based on this, it was concluded that the term «capacity», which is translated in the understanding of the above acts as the ability to conclude an arbitration agreement, refers to both the physical and legal ability of a person to conclude an arbitration agreement to resolve international commercial disputes, and the subsequent possibility of the parties to such a transaction to be parties of the arbitration proceedings with relevant procedural rights and obligations. It has been established that parties to arbitration agreements can be both individuals and legal entities, as well as public entities (states and their bodies, other territorial entities with the right to make transactions on their own behalf). It has been established that a person's ability to conclude an arbitration agreement is determined on the basis of the law applicable to the parties (under the law applicable to them), which is the personal law. Depending on whether the arbitration agreement is concluded by individuals or legal entities, the conflict criteria for determining the applicable law vary quite a lot. Based on the analysis of law enforcement practice, it was established that today the establishment of the law applicable to the ability of a party to be a party to a contract, including an arbitration agreement, and considered to be bound by its provisions, can be determined in two ways: 1) on the basis of a direct method by applying conflict of law rules, applied to the party; 2) on the basis of an indirect method, by establishing the intention of such a party to the transaction to consider itself obligated in the context of the application of the law chosen by the parties (or determined by the court or the arbitral tribunal) as the law applicable to the contract.