Principle of Proportionality of Contractual Penalty in Arbitral Awards in Russia

• 영문명: Principle of Proportionality of Contractual Penalty in Arbitral Awards in Russia
• 발행기관: 한국무역학회
• 저자명: 박은옥 Liliia Andreevskikh
• 간행물 정보: 『Journal of Korea Trade (JKT)』Vol.27 No.1, 176~191쪽, 전체 16쪽
• 주제분류: 경제경영 > 무역학
• 파일형태: PDF
• 발행일자: 2023.02.28

영문 초록

Purpose - When recovered through arbitration a contractual penalty that is disproportionately high can become grounds for challenging an arbitral award or an obstacle to its enforcement within Russian jurisdiction. This article investigates how violation of the principle of proportionality can affect the enforcement and challenging of arbitral awards in Russia. Based on the examination of the current legislation, along with the analysis of recent court cases on the subject, the ultimate object of this article is to discern practical recommendations for Korean practitioners who are looking to challenge and/or enforce arbitral awards in Russian courts. Design/methodology - The research process included the reviewing of current Russian legislation conducted in concurrence with academic literature review, searching and analyzing recent court cases where the relevant legal provisions and concepts were applied, and formulating practical implications of the research at its final stage. Findings - Through its relation to the principle of fairness/justice the authors establish the connection between the principle of proportionality and the public policy of Russia. Analysis of recent court cases showed two conflicting trends of whether a disproportionate penalty can be considered a public policy violation. The authors offer practical recommendations on how to substantiate a relevant claim regarding contractual penalty reduction by the court, depending on the desired outcome. Originality/value - The article contains an up-to-date summary of the legal provisions on the principle of proportionality of civil liability in Russia and identifies the most recent trends in court practice on the issue that is not covered by existing studies.

목차

1. Introduction

2. Principle of Proportionality in Russian Legislation and Literature

3. Court Cases Analysis

4. Implications and Recommendations for Practitioners in South Korea

5. Conclusion

References

키워드

Arbitral Awards Contractual Penalty Public Policy Defense Russian Law