Hostname: page-component-848d4c4894-2xdlg Total loading time: 0 Render date: 2024-06-27T02:44:28.724Z Has data issue: false hasContentIssue false
  • English
  • Français

Execution of Foreign Commercial Awards in Post-War Soviet Bilateral Treaty Practice

Published online by Cambridge University Press:  09 March 2016

George Ginsburgs
George Ginsburgs*
Affiliation:
Department of Political Science, New School for Social Research, New York
Get access

Extract

In 1945, H. J. Hilton, Jr., published an excellent article in the Department of State Bulletin entitled “Commercial Arbitration in the Treaties and Agreements of the U.S.S.R.” which assessed the Soviet record in this area up to the end of the Second World War. The purpose of the present study is to carry the inquiry forward to the present, concentrating, however, exclusively on the problem of execution of foreign commercial arbitral awards in Soviet bilateral treaty practice during this period.

Before proceeding though, a quick review of the salient points of Mr. Hilton’s survey will furnish useful background information.

First, in analyzing the corpus of Soviet treaties and agreements that feature statements concerning arbitration of commercial disputes, the author found that, while the relevant provisions ranged in detail from a single phrase to comprehensive conventions containing as many as 15 articles, the data did not reveal a pattern of historic evolution in the type of formulas regarding arbitration. In other words, although the Soviet regime passed through several phases of development between 1921, when such a reference initially appeared in a treaty signed by the R.S.F.S.R., and 1945, this did not entail technical changes reflecting specific policy shifts; the various approaches used recur throughout the span of observation without any determinable regularity and no correlation could be fixed between the choice of a particular solution and the prevailing conditions at home or abroad at a given juncture. The conclusion here, then, was that “the provisions referring to arbitration included in the treaties and agreements of the U.S.S.R. vary considerably in content; however, these variations cannot be established precisely by periods of time.”

Type
Articles
Information
Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 9 , 1971 , pp. 59 - 101
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1971

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 12 Dept. State Bull. 890–97, 904 (1945).

2 Benjamin, P., in “Soviet Treaty Practice on Commercial Arbitration since 1940,” 53 Am. J. Int’l L. 882–89 (1959),CrossRefGoogle Scholar uses a similar classification, distinguishing three varieties: declarations of principle on the right to settle commercial disputes by arbitration; provisions on the recognition and/or enforcement of awards; and rules of procedure.

3 Text in: Vedomosti Verkhovnogo Soveta SSSR, 1947, No. 11; 12 Sbornik deistvuyushchikh dogovorov, soglashenii i konventsii, zaklyuchennykh SSSR s inostrannymi gosudarstvami 87–95 (1956), (hereafter abbr. as SDD); 8 UNTS 201–33. The provisional regulations have since lapsed.

So far, the special arbitration agreement envisaged by the trade treaty has not been concluded. See Korolenko, A. S., Torgovye dogovory i soglasheniya SSSR s inostrannymi gosudarstvami 150 (Moscow, 1953).Google Scholar

4 Text in: 3 SDD 114–29 (1927); Sbornik torgovykh dogovorov, torgovykh i platezhnykh soglashenii i dolgosrochnykh torgovykh soglashenii SSSR s inostrannymi gosudarstvami (na i yanvarya 1961 goda) 345–59 (Moscow, 1961), (hereafter abbr. as Sbornik); 47 LNTS 9–37. Vedomosti Verkhovnogo Soveta SSSR, 1940, No. 23; 10 SDD 94–104 (1955) ; 144 British and Foreign State Papers 529–37. Sbornik 557–66.

5 In addition, two of the post-war Soviet treaties sanction the execution of non-commercial arbitral awards. Thus, Article 5 of the Agreement concerning transit questions between the USSR and Afghanistan, of June 28, 1955, provides, inter alia, that disputed questions which may arise in the course of execution of appropriate agreements concluded between the interested Soviet economic organizations and the transport organizations and institutions of Afghanistan shall be subject to resolution in accordance with the procedure defined in Article 12 of the Soviet-Afghan Agreement on trade and payments of July 17, 1950, that is, through mandatory arbitration, the ensuing awards being enforceable. Article 2 of the Agreement between the USSR and Afghanistan on air service, of March 24, 1956, specifies that all disputes arising between their respective air-transport enterprises in the course of performance of the present agreement, unless settled by the parties themselves, shall be resolved by arbitration with exclusion of resort to state courts: “The designated enterprises are obliged to execute the arbitral decisions on disputed questions.” For these agreements, see respectively Vedomosti Verkhovnogo Soveta SSSR, 1955, No. 17, Item 346; 240 UNTS 253–65. Vedomosti Verkhovnogo Soveta SSSR, 1956, No. 18, Item 390; 18 SDD 561–65 (1960).

6 (1) 12 SDD 97–103; (2) 13 SDD 336–44 (1956), and 226 UNTS 79–107; (3) 13 SDD 324–33, and 216 UNTS 247–83; (4) Sbornik 480–88, and 217 UNTS 3–33; (5) 13 SDD 352–62, and 217 UNTS 35–71; (6) 13 SDD 363–67, and 217 UNTS 73–85; (7) 13 SDD 314–23, and 217 UNTS 97–133; (8) 15 SDD 65–75 (1957), and 217 UNTS 181–221; (9) Sbornik 57–60; (10) Sbornik 17–21, and 240 UNTS 289–315; (11) Vedomosti Verkhovnogo Soveta SSSR, 1958, No. 4, Item 86; (12) ibid., No. 10, Item 216; (13) ibid., No. 9, Item 206; (14) Sbornik 36–41; (15) Sbornik 120–25; (16) Sbornik 287–92; (17) Sbornik 461–64; (18) Sbornik 295–300.

By virtue of its Article 12, the provisions of the trade treaty between the USSR and Switzerland (item (6) above) also extend to the Duchy of Liechtenstein as long as the latter is linked to the Swiss Confederation by a customs union.

7 Lebedev, S.N., Mezhdunarodnyi torgovyi arbitrazh 179 (Moscow, 1965). In the same vein, ibid., 173.Google Scholar

The author further notes (p. 168) that the great significance of Article 10 of the treaty between the USSR and Norway of December 15, 1925 (still in force) lay in that “it established the principle of executability of arbitral decisions on disputes between citizens and organizations of the two countries irrespective of the fact on the territory of which country the decision was rendered.” For that matter, this agreement already set the tone by endorsing the rule of “nationality” only by tacit presumption instead of explicit recognition.

8 Ibid., 179. In similar vein, Lebedev, S. N., in Pozdnyakov, V. S. (ed.), Eksportno-importnye operatsii, pravovoe regulirovanie 311 (Moscow 1970);Google Scholar Lunts, L. A., Mezhdunarodnyi grazhdanskii protsess 173 (Moscow, 1966).Google Scholar

9 Rozenberg, M. G., in Vaganov, B. S. (ed.), Organizatsiya i tekhnika vneshnei torgovli SSSR i drugikh sotsialisticheskikh stran 92 (Moscow, 1963).Google Scholar

As of November 25, 1953, the following network of agreements (protocols) on general conditions of deliveries linked the Soviet Union to each of the “people’s democracies” then in existence: North Korea, October 5, 1950; East Germany, March 16, 1951; Mongolia, December 29, 1951; Poland, February 29, 1952; Communist China, March 29, 1952; Czechoslovakia, April 5, 1952; Albania, April 19, 1952; Bulgaria, June 16, 1952; Romania, June 25, 1952; Hungary, June 30, 1952.

10 S. N. Lebedev, op. cit. supra note 7, at 187; Boguslavskii, M. M., “Arbitrazhnoe rassmotrenie sporov vo vneshnei torgovle SSSR s evropeiskimi stranami narodnoi demokratii,” in Genkin, D. M. (ed.), Pravovye voprosy vneshnei torgovli SSSR s evropeiskimi stranami narodnoi demokratii 243 (Moscow, 1955).Google Scholar

11 M. M. Boguslavskii, op. cit., 243.

12 A. S. Korolenko, op. cit. supra note 3, at 194–95, assigns Albania, Bulgaria, Hungary, East Germany, North Korea, Mongolia and Romania to the latter group on grounds that in these countries arbitral organizations had not yet been formed. At the time the monograph was published (1953), however, Hungary had already acquired such an institution and Bulgaria, East Germany and Romania soon followed suit (though perhaps too late for the author to incorporate the information into the manuscript).

If past practice is a guide, this would leave Albania, North Korea and Mongolia as the only ones who, lacking their own permanent arbitral tribunal, thereafter continued to refer any commercial disputes arising between Soviet trade organizations and their local counterparts to the Foreign Trade Arbitration Commission in Moscow. Albania has since switched to the 1958 COMECON General conditions, Mongolia made the transition in 1968, and both now have the additional option of an arbitration forum in another member of the Council. North Korea alone presumably as hitherto relied in this context on the services of the Foreign Trade Arbitration Commission of the USSR in its dealings with the Soviet Union.

13 M. M. Boguslavskii, op. cit. supra note 10, at 243.

14 Obshchie usloviya postavok tovarov mezhdu vneshnetorgovymi organizatsiyami stran — uchastnits Soveta Ekonomicheskoi Vzaimopomoshchi (Moscow, 1958); excerpted in Mnogostoronnee ekonomicheskoe sotrudnichestvo sotsialisticheskikh gosudarstv (sbornik dokumentov) 121–39 (Moscow, 1967).

15 M. G. Rozenberg, op. cit. supra note 9, at 99.

16 Text in I Sbornik normativnykh materialov po voprosam vneshnei torgovli SSSR 216–60 (Moscow, 1970).

17 Article 65 of the 1958 COMECON General Conditions; replaced by Articles 90–91 of the 1968 COMECON General Conditions, which incorporate some new instructions concerning the procedure to be followed in arbitral hearings involving the foreign trade associations of the contracting parties.

18 M. G. Rozenberg, op. cit. supra note 9, at 131.

19 S. N. Lebedev, op. cit. supra note 7, at 187. In similar vein, M. G. Rozenberg, op. cit. supra note 9, at 98.

20 M. G. Rozenberg, op. cit. supra note 9, at 135. North Vietnam, which has not yet acquired a permanent foreign trade arbitration board, apparently follows the old practice (just as North Korea) of submitting all commercial and related disputes between its foreign trade organizations and those of the USSR to the Foreign Trade Arbitration Commission in Moscow.

21 Cited in L. A. Lunts, op. cit. supra note 8, at 162.

22 S. N. Lebedev, op. cit. supra note 7, at 183.

23 L. A. Lunts op. cit. supra note 8, at 155–56; Ramzaitsev, D. F., Vneshnetorgovyi arbitrazh v SSSR 16 (2nd ed.; Moscow, 1957).Google Scholar

24 M. M. Boguslavskii, op. cit. supra note 10, at 344.

25 Cf., ibid., 260: “…in all the European countries of people’s democracy, with the exception of Albania, permanently functioning arbitral organizations have been created.”

26 S. N. Lebedev, op. cit. supra note 7, at 173.

27 Ramzaitsev, D. F., Vneshnetorgovyi arbitrazh v SSSR 21, 22 (Moscow, 1952).Google Scholar Repeated virtually verbatim by M. M. Boguslavskii, op. cit. supra note 10, at 262.

28 A. S. Korolenko, op. cit. supra note 3, at 153.

29 S. N. Lebedev, op. cit. supra note 7, at 185. Elsewhere (p. 182), the author maintains that, since the sense of the treaties bars the review of arbitral awards on the merits, “a contracting state cannot refuse to recognize or execute an arbitral decision on the grounds that it was rendered pursuant to an agreement (for example, an arbitral reservation) not recognized by the domestic law of the state where the arbitration took place or the state where the decision has been filed for execution,” unless, of course, an analogous provision of the parent treaty has simultaneously been violated.

30 Ibid., 185.

31 For example, ibid., 202.

32 Ibid., 192–93.

33 Vedomosti Verkhovnogo Soveta SSSR, 1961, No. 50, Item 526; Soviet Civil Legislation and Procedure, Official Texts and Commentaries 146–75, tr. from the Russian by Yu. Sdobnikov (Moscow, n.d.).

34 L. A. Lunts, op. cit. supra note 8, at 103.

35 Under Soviet law, for example, “the decisions of the Foreign Trade Arbitration Commission on cases which it has heard are final and are not subject to appeal.” Article 11 of the Resolution of the Central Executive Committee and Council of People’s Commissars of the USSR of June 17, 1932, SZ SSSR, 1932, No. 48, Item 281.

On the other hand, pursuant to the Regulations on the Maritime Arbitration Commission attached to the All-Union Chamber of Commerce, confirmed by Resolution of the CEC and SNK of the USSR of December 13; 1930 (SZ SSSR, 1930, No. 60, Item 636), if the decision of the Maritime Arbitration Commission evinces a violation or incorrect application of the existing laws, the Supreme Court of the USSR may, on the complaint of the interested party as well as on the protest of the USSR Procuracy, vacate the decision and remand the case to the Maritime Arbitration Commission for new arbitration proceedings. If within a month from the day the Maritime Arbitration Commission issues its reasoned decision no complaint or procuratorial protest is filed, the decision acquires legal force.

36 The second paragraph of the same Article (16) noted that “each Contracting Party shall be prepared, at the request of the other Party, to enter into negotiations with a view to concluding an agreement regarding the best method of arbitration on uniform lines based on the principle of parity.” Such an agreement was never signed. A. S. Korolenko, op. cit. supra note 3, at 150.

37 Ibid., 149–50.

38 S. Ν. Lebedev, op. cit. supra note 7, at 196–202; L. A. Lunts, op. cit. supra note 8, at 150.

39 L. A. Lunts, op. cit. supra note 8, at 157.

40 M. M. Boguslavskii, op. cit. supra note 10, at 242.

It should also be pointed out that, in accordance with the “CMEA General conditions of 1958,” deadlines are established for the parties to file claims, the violation of which entails forfeiture by the purchaser of his right to appeal to arbitration. Claims involving the quantity of goods shipped must be submitted within 3 months of the date of delivery. Claims concerning quality where the goods bear a guarantee may be filed no later than 30 days after the date of expiration of the guarantee on the condition that the defect has been discovered during the guarantee period and where the articles are not covered by a guarantee within 6 months of the date of delivery. In contrast, the bilateral protocols on “general conditions of deliveries,” still in force today between the USSR, on the one hand, and Communist China, North Korea and North Vietnam, on the other, set a uniform six-month deadline for the submission of claims as regards both the quality and quantity of the export items. Furthermore, the agreements between the USSR and Communist China and North Vietnam (and also Mongolia prior to its adherence to the “CMEA General conditions of 1968”) contain no sanction for the untimely submission of claims, that is, even if the purchaser has missed the prescribed deadline, he retains the right to resort to arbitration to press his claim.

41 Vneshnyaya torgovlya, 1963, No. 6, at 51–54.

42 S. N. Lebedev, op. cit. supra note 7, at 181 note 29.

43 Ibid., 181–82.

44 Cf. ibid., 189.

45 Ibid., 181–82.

46 Ibid., 184.

47 Ibid., 188.

48 M. M. Boguslavskii, op. cit. supra note 10, 261–62.

49 Ibid., 248.

50 S. N. Lebedev, in V. S. Pozdnyakov (ed.), op. cit. supra note 8, at 311; idem, op. cit., 182.

51 S. N. Lebedev, op. cit. supra note 7, at 168.

52 Ibid., 170.

53 Vneshnyaya torgovlya, 1940, No. 3, at 9–20; 144 British and Foreign State Papers 261–74.

54 H. J. Hilton, Jr., supra note I, at 895. For texts of the respective agreements: (1) Vedomosti Verkhovnogo Soveta SSSR, 1940, No. 23; 10 SDD 94–104; (2) Vneshnyaya torgovlya, 1940, No. 7, at 6–12; Vedomosti Verkhovnogo Soveta SSSR, 1940, No. 30; (3) Vedomosti Verkhovnogo Soveta SSSR, 1941, No. 17; (4) ibid., No. 25.

55 S. N. Lebedev, op. cit. supra note 7, at 165.

56 Ibid., 169; A. S. Korolenko, op. cit. supra note 3, at 153–55.

57 S. N. Lebedev, in V. S. Pozdnyakov (ed.), op. cit. supra note 8, at 311, daims that “more than 30 countries” fall into this category, but that seems to be an error. The following states are identified by L. A. Lunts, op. cit. supra note 8, at 173, as belonging to this group: Norway, Belgium, Turkey, Iran, Yugoslavia, Sweden, Poland, Denmark, Romania, Hungary, Finland, Czechoslovakia, Switzerland, Bulgaria, Italy, Afghanistan, France, Austria, Canada, Pakistan, East Germany, Japan, Mongolia, Albania, North Vietnam, West Germany, North Korea, Communist China. To these must be added Lebanon and the United Arab Republic.

58 A. S. Korolenko, op. cit. supra note 3, at 148, 151, points out that, as of 1953) “aM existing trade treaties between the USSR and other countries (with the exception of the trade treaties with the United Kingdom and Greece) contain stipulations in one way or another touching on these questions,” that is, of the 19 commercial treaties then in effect, 17 formally recognized arbitration as a method of settling possible disputes revolving around the implementation of related contracts. Of the latter number, 12 or 70% provided for the compulsory execution of arbitral awards, a somewhat higher ratio than the current one (Norway, Yugoslavia, Sweden, Poland, Romania, Hungary, Finland, Czechoslovakia, Switzerland, Bulgaria, Italy, and Afghanistan vs. Belgium, Turkey, Iran, Denmark and France).

59 Vneshnyaya torgovlya SSSR za 1969 god, statisticheskii obzor (Moscow, 1970).

60 Vedomosti Verkhovnogo Soveta SSSR, 1960, Item 421, and 1964, Item 485. The 1958 Convention was ratified by the Ukrainian and Byelorussian SSR’s with similar reservations, mutatis mutandis, deposited, respectively, on October 10, 1960, and November 15, 1960: see 376 UNTS 454, and 380 UNTS 473.

61 S. N. Lebedev, in V. Z. Pozdnyakov (ed.), op. cit. supra note 8, at 312, reports that a majority of the states which by 1970 had ratified or adhered to the Convention exercised the right to file a reservation to this item.

62 S. N. Lebedev, op. cit. supra note 7, at 191–92.

63 Ramzaitsev, D. F., in Genkin, D. M. (ed.), Pravovoe regulirovanie vneshnei torgovli SSSR 506 (Moscow, 1961). Google Scholar Also, Chervyakov, P. A., Organizatsiya i tekhnika vneshnei torgovli SSSR 348–49 (2nd ed.; Moscow, 1962).Google Scholar

64 A. S. Korolenko, op. cit. supra note 3, 148. For a standard form of sale contract used by Soviet export agencies and purchase contract used by Soviet import agencies, see Chervyakov, P. A., Organizatsiya i tekhnika vneshnei torgovli SSSR 265–76 (Moscow, 1958).Google Scholar Samples of the former refer all potential disputes to the Foreign Trade Arbitration Commission in Moscow; a specimen of the latter allows for a choice of arbitration in the country of the respondent or the Foreign Trade Arbitration Commission in Moscow.

65 D. F. Ramzaitsev, in D. M. Genkin (ed.), op. cit. supra note 63, at 496. Also, S. N. Lebedev, op. cit. supra note 7, at 169; A. S. Korolenko, op. cit. supra note 3, at 148.

66 S. N. Lebedev, op. cit. supra note 7, at 195; D. F. Ramzaitsev, op. cit. supra note 23, at 19; A. S. Korolenko, op. cit. supra note 3, at 153.

67 D. F. Ramzaitsev, op. cit. supra note 23, at 24; M. M. Boguslavskii, op. cit. supra note 10, at 260.

68 P. A. Chervyakov, op. cit. supra note 63, at 349.

69 M. G. Rozenberg, op. cit. supra note 9, at 130. Cf. M. M. Boguslavskii, op. cit. supra note 10, at 240: “In the process of relations between corresponding foreign trade organizations of these [the socialist] countries sundry disagreements, sundry disputes over concrete questions occur, but the overwhelming majority of these disputes are settled amicably by the parties, by medium of direct negotiations without resort to arbitration.” And ibid., 246:

“In the majority of cases, as has been indicated, the disputes between the foreign trade organizations of the USSR and the countries of people’s democracy after appeal to arbitration ended amicably. In these cases, the respondent, having clarified the demands of the claimant and established their validity, has generally satisfied the plaintiff’s claim, without waiting for the award of the arbitration board to be handed down.

In the course of the negotiations between the parties, the claims may be amended, partially satisfied and the dispute also ends amicably.

The Foreign Trade Arbitration commission encourages in every way the friendly settlement of disputes between the parties.”

70 M. M. Boguslavskii, op. cit. supra note 10, at 242. D. F. Ramzaitsev, op. cit. supra note 23, discusses two cases between Soviet and Polish organizations in which arbitral awards were issued, and then were voluntarily carried out by the losing side.

71 M. M. Boguslavskii, op. cit. supra note 10, at 246–47.

72 Vorms, A., “Treteiskie sudy po torgovym i drugim grazhdanskim delam v. sovetsko-germanskom torgovom dogovore,” Sovetskoe pravo, 1926, No. 4, at 8.Google Scholar

73 M. M. Boguslavskii, op. cit. supra note 10, at 340.

74 Ibid., 241; S. N. Lebedev, op. cit. supra note 7, at 188.

75 S. N. Lebedev, op. cit. supra note 7, at 190. Similarly, D. F. Ramzaitsev, op. cit. supra note 23, at 21; M. M. Boguslavskii, op. cit. supra note 10, at 260–61.

76 S. N. Lebedev, op. cit. supra note 7, at 190.

77 M. M. Boguslavskii, op. cit. supra note 10, at 262.

78 S. N. Lebedev, op. cit. supra note 7, at 190.

79 D. F. Ramzaitsev, op. cit. supra note 23, at 18–19.

80 S. N. Lebedev, op. cit. supra note 7, at 190–91.

81 Ibid., 195. Examples of such instances are given on pp. 196–202 of the same monograph and in D. F. Ramzaitsev, op. cit. supra note 23, at 29–30.

82 Cf. M. G. Rozenberg, op. cit. supra note 9, at 504–05.

83 L. A. Lunts, op. cit. supra note 8, at 166.

84 See the author’s “The Soviet Union and International Cooperation in Legal Matters : The Current Phase — Civil Law,” Iowa L. Rev. 1031 (1968, No. 5).

85 Ezhenedelnik sovetskoi yustitsii, 1926, No. 25, at 796. S. N. Lebedev, op. cit. supra note 7, at 193, note 40, reports that analogous instructions on the same subject were issued on September 15, 1926, by the Commisariat of Justice of the Ukrainian S.S.R. For text of the agreement, see S.Z., 1926, Part I, No. 28, Item 181; 53 LNTS 7–161.

86 S. N. Lebedev, op. cit. supra note 7, at 194.