Compulsory Enforcement of Arbitrary Award as a «Public» Element of Procedural Form of Arbitration

Abstract

Over extended periods attempts are made to apply alternative dispute resolution methods in general and arbitration legal proceedings among other things in the Russian legal system. Despite of the legal norms that have existed in this sphere for a long time, there are complex problems preventing subjects that are in a legal relationship from using arbitration proceeding for the defense of rights to the full. This refers to the necessity of creating a proper remedy device by means of arbitration and the following enforcement of the judgment rendered by arbitration court. In the article we validate the conclusion that broad interpretation of a procedural form grants an opportunity of forming holistic comprehension of the remedy device in the framework of implementation of the alternative form (arbitration). The research is aimed at the activity approach (allows to focus the law, legal institutions and norms on achieving practical results) within which justice as well as arbitration is analyzed in view of administration of law. Functioning of a state court is defined as public administration of law, while arbitration is referred to as private process of law realized in a procedural form. The main criteria for separation of these two processes of considering and resolving civil disputes is the legal nature of the organ that deals with the case. The application of activity approach for the analysis of the essence of arbitration contributes to characteristics of arbitration in context of the remedy device for subjects’ civil rights. The remedy device in the framework of an alternative form is not limited exclusively to arbitration proceeding; thus the procedural form being private in its nature is supplemented by an optional «public» element. We demonstrate the legal nature of compulsory enforcement of arbitrary award as an integral part of a uniform system aimed at practical restoration of rights of the subjects in case the dispute between them was resolved by means of arbitration. In the content of the «public» element of the procedural form we distinguish stages that are realized by appropriate state organs. Specific character of the «public» element that provides an opportunity of compulsory enforcement of arbitration award is implementation of activity in civil procedural form.
For citation: Petruneva A.N. (2021) Compulsory Enforcement of Arbitrary Award as a "Public" Element of Procedural Form of Arbitration. Law. Journal of the Higher School of Economics, no. 5, pp. 77–98. DOI: 10.17323/2072-8166.2021.5.77.98.