Legislation in question: The provisions of Article 18 of the Federal law “On Arbitration Courts in the Russian Federation”, paragraph 2 of part 3 of Article 239 of the Commercial Procedure Code and paragraph 3 of Article 10 of the Federal law “On Non-Commercial Organisations”

Legal issue: Whether the party, in whose favour an arbitration court issued an award, may be among the founders of an autonomous non-commercial organisation, to which that arbitration court is attached.

Ratio decidendi:  The Constitutional Court refused to deem the contested rules to be unconstitutional, but at the same time it opined that they do not prohibit the submission of a civil law dispute to an arbitration court created within an autonomous non-commercial organisation which was founded by one of the parties to the dispute. In saying this, the Constitutional Court diverged with the Supreme Commercial Court, in whose opinion the consideration of a dispute by an arbitration court which is affiliated in this way with a party to it would amount to the violation of guarantees of objective impartiality of the arbitration court.

In the view of the Constitutional Court, even though the arbitration court is not an institution of the State, but that of the civil society, merely endowed with certain functions of public importance, the requirements to independence and impartiality of arbitrators are derivative from the requirements which judges of State courts are expected to meet; the approaches to fundamental guarantees of their activity ensuring the realisation by citizens and organisations of their right to just consideration of the case by an independent and impartial court are analogous as well. The independence of an arbitrator from a founding organisation of his arbitration court is ensured by the prohibition against interference by bodies, officials and employees of such organisation in his activities related to the consideration of the dispute.

Thus, the Constitutional Court believes it to be correct to ascertain the impartiality of judges not before consideration of the case, but in the course of it and with regard to particular composition of the panel of arbitrators. In so doing, the objective factors, such as connection between a judge and a party to the dispute, may also be taken into account. It is, however, the bias of particular arbitrators and not that of the court as an institution that is to be determined.