Смешанный международный арбитраж и его правовая природа

Abstract

The concept of international arbitration has being evolving for centuries from pre-classical antiquity to present time. As a result of this long historical process, we can indicate three types of arbitration: public international arbitration on the matters of public international law; private (commercial) arbitration for settling commercial disputes with the participation of nationals of different states; and arbitration between states and private parties. In traditional sense, there are no problems with determining the legal nature of public or private arbitration and outlining their distinguishing features. The problems arise when we deal with arbitration between states and private parties (individuals or legal persons). It is difficult to define its legal nature, as it is beyond the established scheme of interstate and private arbitration. Meanwhile, it borrows properties from both public and private arbitration. Hence, this type of arbitration is often defined as mixed international arbitration. The distinctive peculiarity of mixed arbitration is granting to private parties direct access to international arbitration process. This peculiarity stipulated the resolution of international disputes with the participation of private parties with respect to national law, public and private international law. The modern arbitration practice knows two forms of mixed arbitration: pre-established (institutional) mixed arbitration and ad hoc mixed arbitration. First of all, provisions about pre-established mixed arbitration are contained in the Convention on the Settlement of Investment Disputes between States and Nationals of other States, 1965. The unique pattern of using ad hoc mixed arbitration is the Iran-United States Claims Tribunal, established in 1981 pursuant to the Algiers Accords. To clarify the real role and status of modern mixed arbitration the above arbitration models are included in the scope of the present article. Close attention is paid to the regime of the enforcement of arbitral awards rendered by this arbitrations. The awards of mixed arbitration are implemented on the territories of States parties as if it were a final judgment of national courts. If States do not comply with the awards, these awards may be enforced by means of public international law (diplomatic protection, recourse to International Court of Justice and others). The subject of mixed international arbitration is not properly investigated in the national and foreign science of international law. In this context, the article and the view on the problem proposed by the author may be conducive to its study.