Международният елемент при арбитражните споразумения с уговорка за арбитраж в чужбина
The International Element in Arbitration Agreements Stipulating for Arbitration Abroad

Summary/Abstract: Those agreements stipulating for arbitration abroad on the grounds of which a foreign arbitral award can be rendered fall within the scope of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Any domestic law norms such as the one of Art. 19, para. 2 of the Code of Civil Procedure which forbid parties of Bulgarian nationality to enter into agreements for arbitration abroad should be interpreted and applied in light of the priority of the international treaty over those provisions of domestic law which contravene it. This is valid both for the stage of recognition and enforcement of a foreign arbitral award under the Convention and for deciding on the recusation grounded on the incompetence of a court regarding a dispute where the said recusation is based on an existing agreement for arbitration abroad that falls within the scope of the Convention.The matters regarding the international element as a prerequisite for applying international treaties and those regarding the nature of the said international element – the parties’ nationality or another international element – are differently regulated by the law of different states. The modern trends in the development of international arbitration reject the need for the existence of a difference in the parties’ nationality as a mandatory prerequisite to stipulating for arbitration abroad (the so-called „subjective criterion“). From a comparative law perspective, it is getting increasingly popular to apply the so-called „combined criterion“ whereby it is assumed that the existence of only one of the two types of criteria – a subjective or an objective one – is sufficient for an international element to exist. In other words, it is not only the parties’ nationality that may substantiate the international nature of arbitration. Ultimately, this tendency culminates in the possibility of the international element being expressed in having the agreed place of arbitration located abroad. In this respect, the nature of the international element in an arbitration agreement is different from that of an international element in a choice of court agreement under the Brussels Ia Regulation and the Hague Convention on Choice of Court Agreements.

• Details
• Contents