Arbitrability of Maritime Disputes with a Public Element

The article moves from general views to particular details. It starts with the analysis of arbitrability from various angles in a comparative perspective. The authors explore the division of the general concept of arbitrability into smaller concepts such as objective and subjective arbitrability, material arbitrability of the dispute, arbitrability in terms of arbitration agreement, and other aspects which are relevant to determine whether a dispute may be subject to arbitration. The authors then analyze the Russian state courts' approach to the arbitrability of disputes. Despite the existence of comprehensive rulings issued by the Constitutional Court of the Russian Federation as to the arbitrability of disputes, relevant presumptions and ways to establish it, there is still a serious discussion on the topic. The issue becomes complex for a number of reasons. Firstly, the courts often tend to confuse the issues of arbitrability of disputes involving a public element and the breach of public policy. Secondly, there are various types of arbitrability, and in each case the issue of arbitrability should be carefully considered with a view to these types. This is, however, not always followed by Russian courts. The third problem is that the courts tend to use the principle of "concentration of public element". The aim of the article is to define special criteria of the arbitrability of maritime disputes with a public element. The object of analysis are marine disputes containing one or more public elements. Marine arbitration has been chosen as recent Russian court practice demonstrates a growth of cases where enforcement of arbitral awards on maritime cases is unduly denied. If current trends pursue, a further growth may be supposed for the following grounds: many maritime disputes in Russia contain a public element; Russian courts tend to use too abstract a criterion of "concentration of public element". The authors make a number of conclusions. In particular, some maritime disputes are clearly non-arbitrable in the objective sense, and the lack of arbitrability is stipulated in the law. Such is, for example, the case with oil pollution claims. However, exclusion of arbitrability on subjective grounds is, according to the authors, improper as it is not provided by the law. Current court practice, based on the principle of concentration of public element, does not allow determining which tests the courts use in each particular case and which level of concentration is required to result in lack of arbitrability. Application of the said criterion is dangerous for maritime disputes as it creates unpredictability for certain types of such disputes which do involve a public element.

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