BETWEEN PUBLIC AND PRIVATE- STATE ENTITY AS A PARTY TO INTERNATIONAL COMMERCIAL ARBITRATION: LESSONS FOR THE REPUBLIC OF UZBEKISTAN
DOI:
https://doi.org/10.61841/nf6q0v60Keywords:
State, state entity, international commercial arbitration, incapacity, , , law applicable,, arbitration clause,, legal capacity.Abstract
International commercial arbitration has become an effective mechanism in resolving international commercial disputes owing to the massive increase of commercial interactions between private entities in business world. This article discovered that when States and State entities have different legal personalities, the arbitral tribunals should not expand the arbitral clause to the State itself with respect to the disputes before commercial arbitration. It analyzes the nature of State entities, including important roles of State entities in Uzbekistan and some strategic elements of State entities in international commercial arbitration practice. Furthermore, the article proposes potential solutions on the participation of State entities in international commercial arbitration and provides significant recommendations for further development of international commercial arbitration practice in Uzbekistan.
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1. “Uzbekistan - State Owned Enterprises”, The U.S. Department of Commerce’s International Trade Administration, accessed October 10, 2017, https://www.export.gov/article?id=Uzbekistan-7-State-Owned- Enterprises.
2. “Uzbekistan” U.S. Department of State, accessed October 10, 2017, https://www.state.gov/e/eb/rls/othr/ics/2012/191261.htm.
3. Antonio Capobianco and Hans Christiansen, “Competitive Neutrality and State-owned Enterprises:Challenges and Policy Option”, OECD Corporate Governance Working Paper No. 1 (2011): 7.
4. Butler, William, ed. Civil Code of the Republic Uzbekistan. Kluwer Law International, 1999, 41-42
5. Civil Code of the Republic of Uzbekistan, [O’zbekiston Respublikasi Fuqarolik Kodeksi]
6. Civil Procedural Code of the Republic of Uzbekistan, [O’zbekiston Respublikasi Fuqarolik Protsessual Kodeksi]
7. Commentary on the Law of the Republic of Uzbekistan On Arbitration Courts, [Комментарий к Закону Республики Узбекистан “О третейских судах”], The Project is funded by the European Union, SIPCA III project is implemented by GTZ-KLC Consortium, publ. “KONSAUDITINFORM-NASHR”, Tashkent, 2007, 257
8. Czarnikow v. Rolimpex. [1978] Vol. 2 Lloyd’s Rep. 305. Cf. ICC Case No. 3093.
9. Dallah Estate and Tourism Holding Co. v. The Ministry of Religious Affairs, Government of Pakistan, [2009] EWCA Civ 755.
10. Daniel Sokol, “Competition Policy and Comparative Corporate Governance of State-owned Enterprises”, Brigham Young University Law Review 6 (2009): 1713.
11. Economic Procedural Code of the Republic of Uzbekistan, [ O’zbekiston Respublikasi Iqtisodiy Protsessual Kodeksi]
12. Gary Born, “Enforcement of International Arbitral A wards in England and the New York Convention”, Kluwer Arbitration Blog (2009).
13. Heiskanen, Veijo. “Forbidding Dépeçage:Law Governing Investment Treaty Arbitration,” SUFFOLK TRANSNAT’L L. REV. 372-374, (2009).
14. Heiskanen, Veijo. “State As A Private: The Participation of States in International Commercial Arbitration” Transnational Dispute Management (TDM) 7, no. 1 (2010).
15. Horacio Grigera Naón, “Choice of Law Problems in International Commercial Arbitration”, RECUEIL DES COURS 152 (2002): 132.
16. Ines Willemyns, “Disciplines on State-Owned Enterprises in International Economic Law: Are We Moving in the Right Direction?” Journal of International Economic Law 19 (2016): 659-660.
17. Law No. 425-XII of 19 November 1991 on Denationalization and Privatization.
18. Richard P. Nielsen, “Competitive Advantages of State Owned and Controlled Businesses”, Management International Review, Vol. 21, 3 (1981), 56.
19. Southern Pacific Properties (Middle East) Ltd v. Egypt, 16 Feb 1983, 3 ICSID REP. 79, 87.
20. Svenska Petroleum v. Lithuania, [2006] APP.L.R. 11/13, p. 1.
21. the Decree of the President of the Republic of Uzbekistan “On additional measures to ensure the further development of entrepreneurship, the full protection of private property and a qualitative improvement of business climate”
22. the Decree of the President of the Republic of Uzbekistan “On measures to further reform the judicial and legal system and to strengthen guarantees for the protection of citizens' rights and freedom.
23. the Decree of the President of the Republic of Uzbekistan “On measures to further improve the system of State protection of legitimate business interests and further development of entrepreneurship”
24. the Decree of the President of the Republic of Uzbekistan “On the creation of the Tashkent International Arbitration Center (TIAC) at the Chamber of Commerce and Industry of the Republic of Uzbekistan”
25. the Law of the Republic of Uzbekistan On Arbitration Courts, [O’zbekiston Respubikasi “Hakamlik sudlari to’g’risida”gi Qonuni]
26. the Law On the Chamber of Commerce and Industry of the Republic of Uzbekistan, [“O’zbekiston Respublikasi Savdo Sanoat Palatasi to’g’risida”gi Qonun.
27. the Law On the Contractual Legal Basis of Activities of Economic Entities, [“Xo’jalik yurituvchi subyektlar faoliyatining shartnomaviy-huquqiy bazasi to’g’risida”gi Qonun]
28. the Law On the Execution of Judicial Acts and Acts of Other Bodies, [“Sud hujjatlari va boshqa organ hujjatlarining ijrosi to’g’risida”gi Qonun ]
29. The No 215 Regulation of the Cabinet of Ministers of the Republic of Uzbekistan On State entities, [O’zbekiston Respublikasi Vazirlar Mahkamasining “Davlat korxonalari to’g’risida”gi №215-sonli qarori]
30. The Regulation No 2263 of the Ministry of Justice of the Republic of Uzbekistan “On Statute on remuneration for services of state asset management and state trustees on special participation right in governance of joint- stock companies”
31. the UNICTRAL Model Law on International Commercial Arbitration (1985) with amendments in 2006.
32. There is extensive commentary on the issue. Jan Paulsson, “May a State Invoke Its Internal Law to Repudiate Consent to International Commercial Arbitration”, 2 ARB. INT’L 90, 98 (1986). Art. 17 of the United Nations Convention on Jurisdictional Immunities of States and their Property, adopted on 2 Dec. 2004, opened for signature on 17 Jan. 2005 (If a State cannot invoke immunity from jurisdiction before a court of another State in a proceeding relating to an arbitration agreement, arbitration proceedings or proceedings for annulment of an arbitral award in case it has concluded a commercial arbitral clause).The Convention is not yet in force.
33. Rules Governing the Proceedings, Art. 18(2) provides that “In all cases, the Arbitral Tribunal shall act fairly and impartially and ensure that each party has a reasonable opportunity to present its case.”
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