Enforcement of the Arbitration Award

for the Purposes of Exercise of Enforceability

Anna N. Petruneva

Volga-Vyatka Institute (Branch) of Kutafin Moscow State Law University (MSAL), Kirov, Russia

Keywords: judicial protection mechanism, arbitration (arbitral proceedings), compulsory enforcement, act of private legal

enforcement.

Abstract: Modern understanding of the compulsory enforcement of the arbitral award for the purposes of exercise of

enforceability is studied. In particular, the author analyzes the following: special aspects of exercise of

enforceability, legal nature of the arbitral proceedings, place of the arbitral award performance, including

compulsory, in the arbitration mechanism. The author believes that the civil rights protection mechanism

through arbitration (arbitral proceedings) is performed in terms of exercise of enforceability, provided by

Article 46 of the Constitution of the Russian Federation. Legal nature of the judicial protection mechanism

with regard of provisions of Article 11 of the Civil Code of the RF suggest the complex nature of civil rights

protection, which is expressed, on the one hand, in possibility of settlement of a dispute either in the state or

in the arbitration court; on the other hand, in the need to include the compulsory enforcement into the

mechanism specified. The analysis of legal events in consideration is performed through understanding the

unity of the mechanism of civil rights judicial protection within law-enforcement activity, consisting of basic

stages: adjudgment and law enforcement exercise. The conclusion generalizes that enforceability in its

modern sense embraces resort not only to justice, but also to arbitral proceedings. In this, the judicial

protection efficiency is directly related to securing the act of legal enforcement (judgment). The purpose of

this article is building the model of implementation of the mechanism of civil rights judicial protection, that

reflects connection between state and non-state courts, and the stage of compulsory enforcement of their acts.

The identification and substantiation of such interconnection correspond to the feature of scientific novelty.

Study materials and results may be used as theoretical background for further scientific development of the

subject area, related to arbitral proceedings development.

1 INTRODUCTION

Article 46 of the Constitution of the Russian

Federation establishes enforceability. The meaning of

this right establishes posibility of judicial protection

of violated rights to every person.

Customarily, legal doctrine in terms of

constitutional law has been considering

enforceability exclusively from the perspective of

identification only with judicature activity. This

position is also reflected in positions of the

Constitutional Court of the RF for separate cases.

Therein, definition of the arbitration courts' role in

explanations of higher judicial authorities is not

connected with exercise of enforceability. The basis

arbitral proceedings, from the perspective of this

https://orcid.org/0000-0002-6835-7087

approach, is application of provisions of Part 2 Article

45 of the Constitution of the Russian Federation, that

refers to freedom in selecting the means of protection.

Further, differences in the selection of constitutional

basis leads to divergence in interpretation in

transposition to industry-specific legislation. Therein,

considering arbitration (arbitral proceedings) from

the perspective of its legal nature as the law-

enforcement activity procedure requires system

interpretation of provisions of constitutional, civil and

procedural law collectively. Therefore, from the

perspective of constitutional law, we should critically

assess Part 2 of Article 45 of the Constitution of the

Russian Federation, where means of protection, but

not the procedure, are described as the basis for

arbitration use.

Petruneva, A.

Enforcement of the Arbitration Award for the Purposes of Exercise of Enforceability.

DOI: 10.5220/0010662400003224

In Proceedings of the 1st International Scientiﬁc Forum on Jurisprudence (WFLAW 2021), pages 89-92

ISBN: 978-989-758-598-2

From the perspective of civil rights, means of

protection are established by Article 12 of the Civil

Code of the RF and are directly related to the subject

of requirements, exercised, inter alia, in accordacne

with judicial protection. The latter is considered in

Article 11 of the Civil Code of the RF, that establishes

the list of competent state and non-state authorities –

courts that exercise judicial civil rights protection.

Therein, for procedural understanding of nature of

arbitral proceedings, in this case, it would be more

logical to discuss the application of Article 46 of the

Constitution of the Russian Federation, that

establishes enforceability. Therein, according to the

author, judicial protection, performed within law-

enforcement activity in exercise of the right under

consideration, is not identical to judicature activities.

In this sense, the enforceability is exercised not only

by a state authority, included into the judiciary

system, but also other institutions, that, under the lwa,

are entitled to carry out judicial protection activities.

However, from the perspective of the state,

judicial protection, exercised by judicial authorities,

is guaranteed, but judicial protection, exercised by

other institutions (in particular, by arbitration courts),

is not guaranteed. It is conditioned by the arbitration

private nature, where the selection of the procedure

specified is conditioned by individuals' will.

We would like to support the idea of a foreign

author, expressed rather recently, "judicial

protection" covers activities in protecting rights and

freedoms by any competent, independent, and

impartial court, both included and not included into

the judiciary system."

From the beginning, we should pay attention to

the complex inter-industry nature of the problem,

especially in context of a direct subject of this study:

a place of compulsory enforcement of the arbitral

award from the perspective of exercise of

enforceability.

Framework of the study consists of general

scientific methods of system analysis and

comparative study, and legalistic approach, methods

of literal, systemic and axiological interpretation of

legal norms, inherent to legal science.

2 EXERCISE OF THE RIGHT TO

TRIAL AS

LAW-ENFORCEMENT

ACTIVITY

The author defines exercise of the right to trial as, first

of all, law-enforcement activity which includes

several stages, such as enforcement, including

compulsory enforcement.

In cases when we establish that enforceability

shall be exercised within the single law-enforcement

activity mechanism, we have a coherent picture:

arbitral proceedings or arbitration stage, in case of

non-execution of judgment voluntarily, requires

compulsory enforcement. In this context, compulsory

enforcement becomes necessary in arbitral

proceedings mechanism implementation within the

exercise of enforceability.

Take the term "mechanism of rights judicial

protection." To amke it clear, the need for

implementing and operating the specified category

emerged in connection with enforceability

explanations, provided by the Constitutional Court of

the RF, namely, the need to identify the consolidated

complex, including both a stage of settlement of a

dispute in a court proceedings) and a stage of

enforcement, including compulsory enforcement.

Therefore, compulsory enforcement is considered as

an element of the judicial protection mechanism of

the rights that provides the efficiency of the latter. To

be noticed is that the issue of the efficiency of civil

rights protection both within the state judiciary

system, arbitration, and with the use of different

means of protection, is one of topical issues in

science.

In this case, when referring to the idea of step-by-

step implementation of the judicial protection

mechanism, two key stages may be identified

conditionally: a stage of case hearing (settlement of a

dispute) by a court and a stage of enforcement

(including compulsory enforcement). The author

believes that system interpretation of Article 46 of the

Constitution of the Russian Federation and Article 11

of the Civil Code of the RF allows discussing the case

settlement in the court of first instance, commercial

or arbitration court. In this, the applied case

consideration procedure is different, but law-

enforcement activity goals are shared.

3 ARBITRATION (ARBITRAL

PROCEEDINGS) AS A STAGE

OF THE MECHANISM OF

CIVIL RIGHTS JUDICIAL

PROTECTION

The possibility of judicial protection through

production before the arbitration court, provided for

by Article 11 of the Civil Code of the RF, actually

classifies arbitration as judicial protection, thereby

WFLAW 2021 - INTERNATIONAL SCIENTIFIC FORUM ON JURISPRUDENCE

defining its final stage within exercise, including

compulsory enforcement.

To be noticed is that classification of arbitration

as judicial procedure of protection does not depreciate

the private nature of the arbitration court activities for

dispute resolution. In other words, the exercise of

enforceability can be exercised by subjects concerned

both by resort to state judicial authorities and by

resort to arbitration courts. The mechanism specified,

as noted previously, provides for the presence of an

enforcement stage, including compulsory

enforcement. Presence of a stage of compulsory

enforcement of the arbitration judgment does not

depreciate the private nation of arbitration, but

suggests the presence of public elements in the single

judicial protection mechanism through non-state

arbitration courts.

Law-enforcement activity of courts for civil rights

protection is performed according to the specific

procedure, determined by civil procedural form. In

respect of the judicial protection mechanism, it means

in the context considered that the first stage

(settlement of a dispute) is performed by the state

court according to the regulations of the imperative

civil procedural form, determined by standards of the

Civil Procedural Code of the RF and the Commercial

Procedure Code of the RF and having public nature

with the certain features.

At this, the arbitration court activities within

settlement of a dispute is also set by the procedural

form, which is a sort of civil procedural form, and is

defined by combination of private and public legal

elements.

4 COMPULSORY

ENFORCEMENT OF THE

ARBITRAL AWARD AS THE

STAGE OF EXERCISE OF

ENFORCEABILITY

Law-enforcement activity for settlement of a

substantive dispute by the court is aimed at rendition

of a final act, known as judgment, that liquidates the

substantive law dispute, but the judicial protection

mechanism is not completed at this. The provision

specified shall apply to activities of both state and

arbitration court. This notion is partially reflected in

the positions of the Constitutional Court of the RF for

separate cases, and in scientific articles.

The stage of settlement of a civil case by judicial

authorities of civil jurisdiction (state and arbitration

courts) provides for execution of the resulting

enabling legislation (judgment) by the parties. In

terms of the public procedural form, the exercise is

conditioned by a valid property, generally binding

nature, and the arbitral award is exercised within the

arbitration agreement. As recorded in Article 38 FZ

"On Arbitration (Arbitral Proceedings) in the Russian

Federation", binding nature in terms of the arbitral

award acts as the fulfillment of terms and conditions

of the arbitration agreement, when the parties, after

signing it, undertook to voluntarily exercise the

arbitral award.

In case of non-execution of judgment within the

mechanism, there is a need to enable compulsory

enforcement, including that in relation to the arbitral

award. From the perspective of procedural arbitration

form, compulsory enforcement can be defined as an

element that is public by its nature, but optional from

the perspective of composition. In addition, referring

to the stage of compulsory enforcement within

procedural form of arbitration, is specific because it

is implemented sequentially and requires conformity

to the preliminary stage, implemented in public

procedural form – issuance of an enforcement order

to the arbitral award according to the procedure

determined by procedural codes.

5 CONCLUSION

The study conducted allows forming a coherent

picture in terms of exercise of judicial protection

through the shift of emphasis from the category "state

judicial protection" to the term "efficient judicial

protection", from the terms "state control" to

"interaction and assistance."

Consideration of arbitration from the perspective

of mechanism of judicial protection of subjects' rights

allows assessing the meaning and import of the

execution of judgment, including compulsory

enforcement, as the necessary guarantee, not

contradictory to private nature of the arbitration

element.

Therein, procedure, provided for by civil

procedural legislation and arbitration procedural

legislation, related to the issuance of an order of

enforcement to the arbitral award, should be

considered as a preliminary stage for exercise of

compulsory enforcement of the arbitral award, but not

the judicial control form.

The consolidated judicial protection mechanism,

established in the Russian Federation, is efficient

when all the required legal means and current

statutory procedures are used. The sphere of private

civil matters provides for the possibility of selecting

Enforcement of the Arbitration Award for the Purposes of Exercise of Enforceability

alternative judicial protection forms and mechanisms,

including those through arbitration.

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