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PREJUDICE IN ARBITRATION COURTS AND ARBITRAL TRIBUNALS: THEORETIC AND APPLIED PROBLEMS IN LIGHT OF THE PROHIBITION TO ABUSE PROCEDURAL RIGHTS

PREJUDICE IN ARBITRATION COURTS AND ARBITRAL TRIBUNALS:

THEORETIC AND APPLIED PROBLEMS IN LIGHT OF THE PROHIBITION

TO ABUSE PROCEDURAL RIGHTS

О.А. BENEDSKAYA,

Attorney,

Counsel of Muranov, Chernyakov and Partners Law Firm

DOI: 10.24031/2226-0781-2019-9-4-216-235

Integrity is a prerequisite of judicial protection. The article focuses on the pressing issues of

prejudicialness of arbitration and arbitral awards in the context of the good faith principle

and the prohibition to abuse rights. The prejudice is disclosed as a compound legal category

and its regulatory content is determined. It is shown that this preference in the proving

process (in the form of prejudice) may be used in spite of good faith which is detrimental to

the protection of private rights and the interests of justice. Specifying the essential features of

the abuse of prejudice, the author describes possible types of such abuses and the means of

opposing them. Apart from review of an unlawful prejudicial court act, a notable method

of opposing is to insist (with the active participation of court) on the limited application

of the said institution which should not be broadly interpreted taking into consideration

its preferential nature.

Keywords: good faith; abuse of rights; prejudice; arbitration courts; arbitral proceeding.

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Information about the author

Benedskaya О.А. (Moscow, Russia) – Attorney, Counsel of Muranov, Chernyakov

and Partners Law Firm (23, Bldg. 6 Denisovsky Pereulok, Moscow, 105005, Russia;

e-mail: [email protected]).

Recommended citation

Benedskaya О.А. Prejudice in Arbitration Courts and Arbitral Tribunals: Theoretic and

Applied Problems in Light of the Prohibition to Abuse Procedural Rights. Herald of Civil

Procedure, 2019, vol. 9, no. 4, p. 216–235. (In Russian). https://doi.org/10.24031/2226-

0781-2019-9-4-216-235

О.А. BENEDSKAYA