Challenges of legal guarantees for the enforcement of arbitral awards in international commercial cases

Compared to participants in private legal relations, these defects of public authority make it slow, incompetent, clumsy and/or amorphous. Court decisions and their implementation through the resources of this kind of public power are counterproductive. The commercial dimension of private legal relations is exclusively focused on the goal and the proper solution of the assigned tasks; that is, every day, it acts as best as possible and as quickly as possible. Simultaneously, the public authorities of any country are significantly inferior in this respect to representatives of businesses operating in conditions of fair economic competition. As we can see, the emergence and development of international commercial arbitration can be traced back to the historical and legal logic of building relationships between people in the public and private spheres, understanding the objective correlations between them, and recognising the relationships inherent in each of them separately.

CONCLUSIONS

Thus, arbitration as a method of settling disputes arising in international commercial relations requires legal guarantees of its acceptability and ultimate effectiveness. Arbitration proceedings to resolve an international commercial dispute are very interesting for lawyers. It is profitable for them. Simultaneously, the plaintiff in this dispute is only interested in the final result, representing the execution of the arbitral awards. In this regard, it is important to correctly assess the balance of risks that exclude the execution of a decision and legal guarantees that make such a decision inevitable.

Formal-legal guarantees of execution of international arbitration decisions are requirements for procedural and actual actions of persons (bodies) authorised by the state, which ultimately lead to such execution. The basis of such guarantees is the adequacy of the subject to which the method is applied. Firstly, the decisions must be made by the arbitrators, whether international or national. Secondly, it concerns commercial disputes. Thirdly, the enforcement of arbitral decisions pertains to those carried out in a state different from the one where recognition and enforcement of such decisions are sought. Fourthly, the enforcement of an arbitration award arises as a result of the unwillingness of the defendant (individual and/or legal entity) to comply with this award voluntarily. Fifth, these awards are final. These criteria emanate from the corresponding specific acts of private international law. It is noteworthy that the titles of existing conventions on international arbitration may explicitly use the term `execution' since, according to the logic of the term and the content of these legal acts, execution is inherently impossible without recognition, provision of the text of the decision and all other relevant logical operations.

The enforceability of an arbitral award depends on the timely and appropriate actions of the parties to the contract. Even when concluding a foreign economic agreement, the result of an audit of the business partner's reliability in terms of its ability to fulfil its financial and/or other obligations properly should be obtained. Penalties for contract violations represent a guarantee to prevent such breaches. The stage of the grounds for filing a claim in international arbitration emerges to protect one's right violated by the other party (parties) to the contract, signalling the need to use the institution of securing a claim. Seizure of the defendant's property in the amount of the claims and similar measures guarantee the reality of an international arbitration award enforcement. Institutions of liability insurance of the other party under the contract and the possibility of sale and assignment of the debt also become effective means of guaranteeing the fulfilment of the obligations specified in the arbitration decision.

The circumstances of the specific case and the legal reality of each jurisdiction where the decision on this case is planned to be made require an assessment of the absence of distortions of the enforcement proceedings subject. If the degree of such distortions precludes the execution of an international arbitration decision on the territory of a specific state, this method is counterproductive. Legal reality distortions are defined according to the parameters of indices of freedom from corruption, rule of law, freedom of doing business, anthropocentric and/or legally impartial results of judicial practice, etc. Accordingly, it is necessary to find a legal instrument for its neutralisation for each challenge for the actual international arbitration awards enforcement. In a specific region of the state or the state itself, its regional associations (e.g., the EU), quality legislation, and practices of its application serve as such tools. However, at the global level associations of states do not show reliability in the matter of the inevitable execution of arbitral awards. The assessment of the risks of non-implementation of these decisions requires that lawyers take into account the natural asynchrony of the legislative framework formation of each state and the disproportionality of saturation with the content of effective connections between various branches of law (civil and economic, criminal procedural and administrative, etc.), the degree of unification of practices for the implementation of legislative requirements, as well as the level of responsibility for one's actions and other features of the participants in legal relations culture, attitudes towards citizens of other countries, and the like. Relying only on the fact that a state has ratified international arbitration conventions is clearly not sufficient to guarantee the enforcement of such an arbitration award.

The subject of this work is conceptualised as a molecular and, accordingly, an indivisible quantity The functionality of this magnitude is determined by the necessary number of impulses of its atoms, namely legal (formal and factual), economic, political, spiritual- cultural and other social contexts, as well as the virtues of legal subjects. Their sufficient quantity translates into the desired quality of the ratios of these atoms. The molarity of the studied concept obtained in this way means its viability in each specific case when the party to the dispute seeks to fulfil the international arbitration decision. The lack of components in the concept and/or improper proportions of the ratio of their quantitative and, accordingly, qualitative features exclude the very fact of the existence of the concept - `international arbitration awards enforcement', denying its nature. The assessment by the parties of an international commercial dispute of only certain aspects, parts, and features of the legal institution and not of its entire system is counterproductive. In this regard, although the phenomenon of atomicity formally-legally assumes the feasibility and necessity of completing the transaction, it ignores the objectively existing external socio- legal connections and influences.

International arbitration is a quasi-judicial body that performs almost the function of justice, and a national court is the only body that can be designated by the term `court', and its primary function is justice. International commercial arbitration complements the function of justice of national courts in essence but does not acquire such functionality formally. The binding nature of arbitration decisions for implementation within the national legal space gives them legal significance. Simultaneously, failure to comply with these decisions and/or other violations during enforcement proceedings are decided exclusively by national courts, in particular on the territory of the state where such a tort occurs. In fact, arbitration at the stage of execution of its decisions is fully subject to the influence of the public power, both its bodies that enforce arbitration decisions and the courts that administer justice in the field of challenging the illegality of these bodies' actions.

If the level of importance of the social purpose and functionality of arbitration and courts is the same, then ceteris paribus, arbitration shows more advantages than a court. The advantages of national courts increase in those states that are free from corruption and ensure the dominance of the rule of law principle in society. Dynamic and/or large businesses are more interested in arbitration procedures, which, firstly, have the necessary financial and organisational resources for full participation and, secondly, do not have the opportunity to delay the resolution of the dispute, seek to save time to increase profits, rather than wasting it on the laziness of national courts.

The challenges of common law content for international commercial arbitration outlined above determine the prospects of our next scientific searches, namely: 1) resolution of disputes regarding the use of domains, digital technologies and the Internet; circulation of digital currencies; 2) unification of law enforcement practice; 3) fulfilment of environmental requirements of commercial agreements; 4) fulfilment of the requirements of economic contracts regarding energy efficiency.

REFERENCES

1. Balcerzak F, Renewable Energy Arbitration - Quo Vadis? Implications of the Spanish Saga for International Investment Law (Nijhoff International Investment Law Series 23, Brill Nijhoff 2023).

2. Behn D, Fauchald OK and Langford M (eds), The Legitimacy of Investment Arbitration: Empirical Perspectives (CUP 2022).

3. Bonell MJ and Meyer O (eds), The Impact of Corruption on International Commercial Contracts (Ius Comparatum - Global Studies in Comparative Law 11, Springer Cham 2015) doi:10.1007/978-3-319-19054-9.

4. Friedman LM, `Litigation and Society' (1989) 15 Annual Review of Sociology 17, doi:10.1146/annurev.so.15.080189.000313.

5. Giannakopoulos C, Manifestations of Coherence and Investor-State Arbitration (CUP 2023) doi:10.1017/9781009153874.

6. Goldratt EM, Critical Chain (North River Press 1997).

7. Gvozdevics A, `The Securing a Claim in the Context of Sustainable Development: An Evaluation of the Latvian Experience' (2021) 10(4) European Journal of Sustainable Development 281, doi:10.14207/ejsd.2021.v10n4p281.

8. Mesquita LV and Cebola CM, `European Small Claims Procedure: An Effective Process? A Proposal for an Online Platform' (2022) 5(2) Access to Justice in Eastern Europe 7, doi:10.33327/AJEE-18-5.2-a000206.

9. Tussupov A, Corruption and Fraud in Investment Arbitration: Procedural and Substantive Challenges (European Yearbook of International Economic Law 22, Springer Cham 2022) doi:10.1007/978-3-030-90606-1.

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