RECEIPT OF ELECTRONIC COMMUNICATIONS IN THE PRACTICE OF INTERNATIONAL COMMERCIAL ARBITRATION

Abstract

The article is dedicated to the study of legal and soft law approaches, and case law on the issue of what and by which means constitutes proper notice of a party via electronic communications, i.e. receipt of such, in the practice of international commercial arbitration. The relevance of the chosen issue directly stems from the widespread use of electronic means of communication and information exchange in the arbitration dispute resolution system, and the importance of proper notification of the parties about the fact and progress of the arbitration process as a key procedural requirement for the recognition and enforcement of arbitral awards. The stated goals were achieved by the author through the use of methods of analysis and synthesis, formal logic methodology, methods of legal hermeneutics and comparative law. The author substantiates that, although 1985 UNCITRAL Model Law on International Commercial Arbitration and other international legal sources are more concerned with broadening the interpretation of the “written” form of the arbitration agreement by including to its scope numerous electronic means, the same approach can and should be applied to any “written communication” between the parties and arbitral tribunal. Thus, the main requirements here are such characteristics of an information (data) transmission via electronic communication for the purposes of arbitration proceedings as the possibility of repeated reading, identification and authentication of the sender/receiver and the fact of delivery or attempt of it. These requirements through the facts of their compliance or breach directly influence the outcome of the issue of proper notice and receipt of electronic communication by the parties. It is also formulated that the official character of an e-mail address of the party is determined: 1) directly by the party in the contract, request for arbitration, statement of claim, registration documents, etc.; 2) indirectly by the party by designating an e-mail address in its official documents or website as a mean of communication “which the addressee holds out to the world”; 3) by the arbitral tribunal or administrative body of an arbitration institution if there is a sufficient legal connection between such e-mail address and the party, e.g., it was used by the latter in previous communications concerning the contract and/or arbitration proceedings.