REGARDING THE OFFSETTING OF UNIFORM DEMANDS IN THE ENFORCEMENT OF DECISIONS OF INTERNATIONAL COMMERCIAL ARBITRATION

Abstract

The article examines the conditions for the settlement of monetary claims during the enforcement of an international commercial arbitration decision.
It was concluded that the creditor’s claim confirmed by the decision of the international commercial arbitration acquires special public-legal features, which subordinates its satisfaction, including by way of set-off, to established procedural procedures. In particular, the monetary claim can be implemented in a compulsory manner at the initiative of the creditor (including by applying to the competent court with an application for the recognition and granting of permission to execute the decision of the international commercial arbitration) or voluntarily fulfilled by the debtor. In the absence of an exequatur procedure regarding an international commercial arbitration decision, a monetary claim cannot be considered identical to a claim confirmed by an international commercial arbitration decision, in respect of which the exequatur procedure was conducted.
However, the existence of an exequatur procedure in relation to an international commercial arbitration decision, but on the condition that such procedures are carried out in different countries, makes it impossible to recognize as homogeneous those requirements that are satisfied by decisions of international commercial arbitration, because the circumstances of different public legal orders in force in the respective countries must be taken into account.
The possibility of offsetting these requirements when the state court decides the issue of enforcement of an international
commercial arbitration decision is possible under certain circumstances, in particular, in the case when a homogeneous claim, the deadline for which has come due to another arbitration decision, is confirmed between the same parties with compliance with the exequatur procedure.
Ignoring exequatur procedures under the “cover” of another procedural form is justified in such a way that it can harm public order and create conditions for circumventing procedural requirements for judicial control of international arbitrations. In this regard, it has been proven that the sequence of procedural actions prescribed by law excludes the possibility of legalization of an international commercial arbitration decision bypassing the procedure of recognition and granting permission for the execution of an international commercial arbitration decision (exequatur).