In Memoriam. Сборник воспоминаний, статей, иных материалов

S.L.: Your question is very simple, and very difficult to answer. What is the essence of arbitration? Well, to tell legally, it is a procedure for settlement of disputes between the parties, and if it is a commercial arbitration it is a procedure for settlement of disputes between parties to commercial transactions, to contracts. And such disputes do arise, even if there are good relations between the parties. Nevertheless, many problems arise which cause differences, arise between the parties. If it is international relationship, then is a problem of cultural traditions in countries of each party. They all may be very important for the parties, which also must overcome themselves. And then the question is: how resolve these problems? How to resolve? And then to invite people who are called, nowadays, arbitrators, to settle this dispute, to help the parties to settle this dispute.

M.B.: Given your long experience with international arbitration, what would you say that the key obstacle to peaceful resolution is? What is the major obstacle that the arbitrators have to overcome in order to find a solution?

S.L.: There is a problem for the arbitrators in dealing with disputes in commercial fields: to take into account the situation in the country of each party to that transaction. Take, for example, a dispute between Russian and English companies: it is important to see what are the regulations of certain problems according to English law and according to Russian law? And there are differences in such regulations. How to overcome it? Of course, there is a possibility to determine which law is applicable, which should govern the relations between the parties. Yes, it is, let’s assume that the parties have agreed that English law would be applicable. But it does not mean that arbitrators should ignore what are the regulations in Russia? Even if English law is applicable. And the differences in regulations, in customs, trade customs and so on, are difficult. Of course, during globalization period which is existing right now, it is important to go to unification, and to try to adopt international conventions on certain problems of trade. And for me, I always recall with great sympathy the adoption of the Vienna Convention on the international contracts of sale. I had the chance to participate in preparation of that convention in UNCITRAL and I believe it is a great achievement, actually, for international trade, because contracts of sale are the most used form of relationship in foreign trade and international trade. And so it is a great achievement for international practice. But there are other aspects, other forms of intentional transactions, where there are no such unification, and then the problem of application of national laws remains. And it is very important to take into account these regulations existing in each country, even if the law of one country is formally applicable in this case.

M.B.: Professor, may I ask a personal question? You were born in 1938, I believe? Russia was a very different country back then. What role do you think that international trade have played in the development of Russia during your lifetime?