The dissertation research is a qualification scientific work, in which for the first time in the Ukrainian doctrine the issues of law enforcement and law enforcement mechanism in resolving disputes by way of international commercial arbitration are studied. The dissertation is characterized by complexity and addresses the analysis of different systems of law and approaches to law enforcement, which are established and used by the arbitration in the consideration and resolution of international commercial disputes. Attention is paid to theoretical and practical problems of law enforcement in international commercial arbitration, the establishment and application of substantive and procedural law, the impact on the arbitration process of the classical categories of public policy and mandatory rules.
The paper determines that the principle of party autonomy in the substantive aspect is implemented by the parties to international commercial relations at the stage of concluding a contract and signing an arbitration agreement by giving them the right to: 1) choose (agree on) any significant and other terms of the contract (price, currency, terms) performance of the contract (for example, delivery of goods, procedure for confirmation of services provided, deadlines, etc.), measures of responsibility, determine the information that constitutes a trade secret, etc.; 2) choose the law that will apply to the substance of contractual obligations (it can be a law that applies to the whole contract or to parts of it, a law that is related to both the nationality of the parties and a law that is not related to either party, or a non-national regulator, for example, the UNIDROIT Principles of International Commercial Contracts, etc.); 3) choose the law under which the dispute will be resolved in the event of its occurrence or any other differences or requirements of the parties, including the law under which the contract is interpreted; 4) choose arbitration as a tool to resolve all disputes, differences and claims under the contract and agree, specifying: a) the type of arbitration (ad hoc or institutional); b) the regulations on the basis of which the dispute will be resolved; c) the number of arbitrators; d) the law applied by the arbitration tribunal (if there are no provisions on such law in the contract); e) the language of the arbitration proceedings; f) the place of arbitration and the venue of arbitration; 5) agree on the procedure for signing and entry into force of the contract, its termination and cancellation, as well as the procedure for amending it, the priority of a version of the contract, depending on the language of the contract, validity of scanned copies of the contract in time, or application of electronic document management (EDM), the procedure for notifying the Parties of all changes, including their contact details, etc.
In this case, such an award must comply with the requirements established by the law of the place of arbitration (lex arbitri) and the rules applicable to the settlement of the dispute. Namely, the requirements for: 1) the content of the decision (motivation); 2) formal requirements to the award (written form, presence of signatures of arbitrators, and also instructions on date and place of arbitration); 3) the procedure for making a decision (majority decision, referral to the parties). In this regard, the definition of the term “purpose of arbitration” is formulated, which should be considered as a fair and effective consideration and resolution of an international commercial dispute by arbitration in order to protect violated, unrecognized or disputed rights, freedoms or interests of the parties to the arbitration agreement by issuing a valid arbitral award, which in accordance with the requirements of applicable law, may be presented for execution.
It is proved that among the principal approaches to the establishment by the arbitral tribunal of the law applicable to the substance of the dispute should be distinguished: 1) the application by arbitrators of the principle of the closest connection; 2) recourse to conflict-of-law rules that the arbitral tribunal considers applicable (indirect approach, voie indirecte, indirect approach); 3) granting arbitrators the right to directly establish and apply substantive law rules without recourse to any conflict of laws or rules (the so-called voie directe or direct approach method).
In this regard, the law applicable to this issue will always be the lex fori, which reflects the unity of the public goal and the legal means to achieve it. Because the principles of public policy are integrated into the law of the place of execution of the arbitral award, both in accordance with national law and through the prism of established law enforcement practice.
