Abstract
This chapter overviews the inception of modern concepts of arbitration law in Lithuania and their development over the 30 years of state independence. It presents the general analysis of the evolution of the statutory legal framework of arbitration in Lithuania by introducing the Law on Commercial Arbitration and reviewing the main concepts enshrined therein.
Further, by analyzing the current statutory regulation and its interpretation in the case law of the Supreme Court of the Republic of Lithuania, the chapter explores three core doctrines in arbitration, namely the doctrine of arbitrability, the competence-competence doctrine, and the notion of public policy. The analysis of these concepts aims to review the status quo of these doctrines in arbitration theory and practice in Lithuania, as well as to suggest a direction for the rectification of the identified shortcomings of their interpretation in the case law of Lithuanian courts.
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Notes
- 1.
Latvia and Estonia adopted their national laws on arbitration in 1998 and 2005 respectively. Chapter D of the Civil Procedure Law of the Republic of Latvia regulating arbitration was adopted in 1998 and came into force in 1999. See Udris and Kačevska (2004), pp. 211–220; Part 14 of the Code of Civil Procedure of the Republic of Estonia was adopted in 2005 and came into force in 2006. See Pohla (2008), pp. 17–29. It must be mentioned that in 1991 the Law on the Arbitration Court of the Estonian Chamber of Commerce and Industry was adopted in Estonia. It provided for the establishment of the Arbitration Court of the Estonian Chamber of Commerce and Industry (ECCI) and set basic principles and standards of the arbitration proceedings at the ECCI and for the assistance of national courts. For this reason, it is sometimes indicated that the said law was the first national arbitration law in Estonia. E.g. see Krūminš (2017), p. 305.
- 2.
The VCCA was established in 2003 by merging two permanent arbitration institutions, namely the Arbitration Court at the Association International Chamber of Commerce Lithuania and the Vilnius International Commercial Arbitration. See the official site of Vilnius Court of Commercial Arbitration.
- 3.
It must be mentioned that after efforts were made to decrease the number of permanent arbitral institutions in Latvia, including the adoption of the new Law on Arbitration in 2015, the number of institutions decreased twice.
- 4.
For instance, see LCA 1996, Art. 25, which ruled that the language of national arbitration is Lithuanian, but allowed the parties to choose the language of international proceedings.
- 5.
This deviation from the Model Law was remedied by the LCA 2012.
- 6.
Note of the Secretariat of the Competition Committee of the Directorate for Financial and Enterprise Affairs of the Organisation for Economic Co-operation and Development (2011).
- 7.
Restrictions related to State and municipal bodies are discussed under the heading of subjective arbitrability, however, it should be admitted that there is no consensus on whether such restrictions should be treated as the question of arbitrability, capacity or simply mandatory legal norms affecting the validity of the arbitration agreement. See Born (2014), p. 729; Gaillard and Savage (Eds.) (1999), pp. 312–313; Lew et al. (2003), pp. 186–187.
- 8.
European Convention on International Commercial Arbitration 1964. United Nations, Treaty Series, 1965, vol. 484, p. 349. See Article II(1): In cases referred to in Article I, paragraph 1, of the convention, legal persons considered by the law which is applicable to them as ‘legal persons of public law’ have the right to conclude valid arbitration agreements; Swiss Private International Law Act 1987. FF, 1988, I 5. See Article 177(2): A state, or an enterprise held by, or an organization controlled by a state, which is party to an arbitration agreement, cannot invoke its own law in order to contest its capacity to arbitrate or the arbitrability of a dispute covered by the arbitration agreement. Resolution on arbitration between States, State Enterprises, or State Entities, and Foreign Enterprises of the Institute of International Law, adopted at Santiago de Compostela Session on 12 September 1989. See Article 5: A State, a state enterprise, or a state entity cannot invoke incapacity to arbitrate in order to resist arbitration to which it has agreed. See also Gaillard and Savage (Eds.) (1999), pp. 322–329; Mantilla-Serrano (2013), p. 431; Hanotiau (1999), pp. 149–153; Born (2014), pp. 727–733.
- 9.
Art. 16(3) of the Model Law explicitly allows to challenge the tribunal’s decision in which ‘the arbitral tribunal rules as a preliminary question that it has jurisdiction’. Article 19(3) of the LCA 1996 (which is no longer in force) mirrored the wording of Article 16(3) of the Model Law.
- 10.
As referred to in Article II(3) of the New York Convention and Article 8(1) of the Model Law 2006.
- 11.
In the latter case, however, the Supreme Court at all wrongly engaged into the analysis of the parties’ will regarding the chosen arbitral institution and failed to consider that parties might have agreed on ad hoc arbitration.
References
Books and Articles
Born, G. B. (2014). International commercial arbitration. Volume I. International arbitration agreements (2nd ed.). Kluwer Law International.
Dominas, G., & Mikelėnas, V. (1995). Tarptautinis komercinis arbitražas. Vilnius: Justitia.
Gaillard, E., & Savage, J. (Eds.). (1999). Fouchard, Gaillard, Goldman on international commercial arbitration. The Hague: Kluwer Law International.
Hanotiau, B. (1999). The law applicable to arbitrability. In A. J. van den Berg (Ed.), Improving efficiency of arbitration agreements and awards: 40 years of application of the New York Convention (pp. 149–153). ICCA Congress Series No. 9.
Krūminš, T. (2017). Arbitration in Latvia: A cautionary tale? Journal of International Arbitration, 34(2), 305.
Lew, J. D. M., Mistelis, L. A., Kröll, S. (2003). Comparative international arbitration. The Hague: Kluwer Law International.
Mantilla-Serrano, F. (2013). Colombia enacts a new international arbitration law. Journal of International Arbitration, 30(4), 431.
Mikelėnas, V. (2016). Lietuvos Respublikos komercinio arbitražo įstatymo dvidešimtmetis: ištakos, taikymo patirtis ir perspektyvos. Arbitražas: Teorija ir praktika, 2, 6.
Mikelėnas, V., Nekrošius V., Zemlytė E. (2016). Lietuvos Respublikos komercinio arbitražo įstatymo komentaras. Vilnius: Registrų centras.
Pohla, A. (2008). New arbitration legislation in Estonia: The role of state courts in arbitral proceedings. Baltic Yearbook of International Law, 8, 17–29.
Poudret, J. F., & Besson, S. (2007). Comparative law of international arbitration (2nd ed.). Sweet & Maxwell.
Udris, Z., & Kačevska, I. (2004). Arbitration in Latvia: Urgent need for statutory reform. Journal of International Arbitration, 21(2), 211–220.
International Legal Acts
United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958). New York: United Nations.
European Convention on International Commercial Arbitration (1964). United Nations, Treaty Series, 1965, vol. 484, p. 349.
UNCITRAL Model Law on International Commercial Arbitration (1985). Vienna: United Nations, 1985.
Swiss Private International Law Act 1987. FF, 1988.
Resolution on arbitration between States, State Enterprises, or State Entities, and Foreign Enterprises of the Institute of International Law (1989). Adopted at Santiago de Compostela Session on 12 September 1989. http://www.idi-iil.org/app/uploads/2017/06/1989_comp_01_en.pdf.
UNCITRAL Model Law on International Commercial Arbitration (2006). Vienna: United Nations, 2006.
Note of the Secretariat of the Competition Committee of the Directorate for Financial and Enterprise Affairs of the Organisation for Economic Co-operation and Development. Arbitration and Competition. DAF/COMP(2010)40 (of 13 December 2011). http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=DAF/COMP(2010)40&docLanguage=En.
National Legal Acts
The Parliament of the Republic of Lithuania (1996). Law on Commercial Arbitration of the Republic of Lithuania. Official Gazette Valstybės žinios, 1996, No. 39-961.
The Parliament of the Republic of Lithuania (2001). Law on Commercial Arbitration of the Republic of Lithuania. Official Gazette Valstybės žinios, 2001, No. 28-894.
The Parliament of the Republic of Lithuania (2008a). Law on Conciliatory Mediation of Civil Disputes of the Republic of Lithuania. Official Gazette Valstybės žinios, 2008, No. 87-3462.
The Parliament of the Republic of Lithuania (2008b). Law on Commercial Arbitration of the Republic of Lithuania. Official Gazette Valstybės žinios, 2008, No. 87-3463.
The Parliament of the Republic of Lithuania (2010). Explanatory note to the draft Law on Commercial Arbitration of the Republic of Lithuania and the draft Code of Civil Procedure of the Republic of Lithuania of 14 April 2010, No. 10-807-02.
The Parliament of the Republic of Lithuania (2012). Law on Commercial Arbitration of the Republic of Lithuania. Official Gazette Valstybės žinios, 2012, No. 76-3932.
The Parliament of the Republic of Lithuania (2016). Law on Commercial Arbitration of the Republic of Lithuania. Register of Legal Acts, 2016-11-17, No. 26957.
The Parliament of the Republic of Lithuania (2017). Law on Mediation of the Republic of Lithuania. Register of Legal Acts, 2017-07-12, No. 2017-12053.
Case Law
The Constitutional Court of the Republic of Lithuania (2012). Ruling of 24 October 2012, No. 15/2010-40/2010
The Supreme Court of the Republic of Lithuania (2000). Overview of the jurisprudence on the application of the rules of private international law of 21 December 2000, No. A2-14.
The Supreme Court of the Republic of Lithuania (2002). Ruling of 21 January 2002, No. 3K-3-146.
The Supreme Court of the Republic of Lithuania (2004). Ruling of 17 November 2004, No. 3K-3-612/2004;
The Supreme Court of the Republic of Lithuania (2006a). Ruling of 7 March 2006, No. 3K-7-179/2006.
The Supreme Court of the Republic of Lithuania (2006b). Ruling of 19 July 2006, No. 3K-3-434/2006.
The Supreme Court of the Republic of Lithuania (2007a). Ruling of 12 February 2007, No. 3K-7-132/2007.
The Supreme Court of the Republic of Lithuania (2007b). Ruling of 5 March 2007, No. 3K-3-62/2007.
The Supreme Court of the Republic of Lithuania (2007c). Ruling of 6 April 2007, No. 3K-3-156/2007.
The Supreme Court of the Republic of Lithuania (2009). Ruling of 1 December 2009, No. 3K-3-545/2009.
The Supreme Court of the Republic of Lithuania (2010a). Ruling of 9 February 2010, No. 3K-3-64/2010.
The Supreme Court of the Republic of Lithuania (2010b). Ruling of 16 March 2010, No. 3K-3-116/2010.
The Supreme Court of the Republic of Lithuania (2010c). Ruling of 20 March 2010, No. 3K-3-128/2010.
The Supreme Court of the Republic of Lithuania (2010d). Ruling of 21 June 2010, No. 3K-3-266/2010.
The Supreme Court of the Republic of Lithuania (2011). Ruling of 17 October 2011, No. 3K-7-304/2011.
The Supreme Court of the Republic of Lithuania (2012a). Ruling of 2 May 2012, No. 3K-3-199/2012.
The Supreme Court of the Republic of Lithuania (2012b). Ruling of 26 June 2012, No. 3K-3-353/2012.
The Supreme Court of the Republic of Lithuania (2012c). Ruling of 13 July 2012, No. 3K-3-370/2012.
The Supreme Court of the Republic of Lithuania (2013a). Ruling of 20 November 2013, No. 3K-3-548/2013.
The Supreme Court of the Republic of Lithuania (2013b). Ruling of 22 November 2013, No. 3K-3-593/2013.
The Supreme Court of the Republic of Lithuania (2014). Ruling of 27 June 2014, No. 3K-3-363/2014.
The Supreme Court of the Republic of Lithuania (2015a). Ruling of 22 May 2015, No. 3K-3-320-611/2015.
The Supreme Court of the Republic of Lithuania (2015b). Ruling of 25 September 2015, No. e3K-3-483-421/2015.
The Supreme Court of the Republic of Lithuania (2015c). Ruling of 23 October 2015, No. 3K-7-458-701/2015.
The Supreme Court of the Republic of Lithuania (2016a). Ruling of 8 July 2016, No. e3K-3-365-969/2016.
The Supreme Court of the Republic of Lithuania (2016b). Ruling of 20 December 2016, No. e3K-3-471-916/2016.
The Supreme Court of the Republic of Lithuania (2017a). Ruling of 9 February 2017, No. e3K-3-34-219/2017.
The Supreme Court of the Republic of Lithuania (2017b). Ruling of 15 June 2017, No. 3K-3-267-611/2017.
The Supreme Court of the Republic of Lithuania (2018a). Ruling of 5 July 2018, No. e3K-3-298-687/2018.
The Supreme Court of the Republic of Lithuania (2018b). Ruling of 21 September 2018, No. e3K-3-330-969/2018.
The Supreme Court of the Republic of Lithuania (2018c). Ruling of 29 November 2018, No. e3K-3-278-313/2018.
The Supreme Court of the Republic of Lithuania (2019a). Ruling of 13 June 2019, No. e3K-3-182-969/2019.
The Supreme Court of the Republic of Lithuania (2019b). Ruling of 26 June 2019, No. e3K-3-216-916/2019.
The Court of Appeal of the Republic of Lithuania (2018). Ruling of 15 February 2018, No. e2A-101-370/2018.
Vilnius regional court (2019). Judgement of 30 April 2019, No. e2A-620-565/2019.
The official site of the Vilnius Court of Commercial Arbitration. http://www.arbitrazas.lt/apie-teisma.htm.
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Zemlytė, E., Driukaitė, G.A. (2021). Development of Arbitration Law in the Republic of Lithuania After the Restoration of Independence. In: Švedas, G., Murauskas, D. (eds) Legal Developments During 30 Years of Lithuanian Independence. Springer, Cham. https://doi.org/10.1007/978-3-030-54783-7_7
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