SOME ISSUES OF THE JUDICIAL DISCRETION OF THE COMMERCIAL COURT IN THE INTERPRETATION OF THE LEGISLATION ON APPEALS AGAINST THE DECISIONS OF THE ARBITRATION COURT

Abstract

This article is devoted to the analysis of the place of judicial discretion in the scheme of possible resolution of the conflict between principles of law and norms of international law, on the one side, and the Law of Ukraine on Domestic Arbitration Court – on the other. The Law of Ukraine on Domestic Arbitration Courts restricts the right to challenge a domestic arbitral award. The right is vested in cases directly named in the Law. Civil Procedure Code of Ukraine and Economic Procedure Code of Ukraine contain the same restriction. The law does not confer the right to vacate an award in the circumstances where the party was not given a proper notice about proceedings. There are grounds to think that the denial of opportunity to present one’s case does not comply with the European Convention on Human Rights, principles of law. Nevertheless, the Law of Ukraine on Domestic Arbitration Courts and the procedure codes do not confer an effective remedy to the interested party. This article proposes to address the problem by using judicial discretion in the interpretation of the Law. One of the ways is that there exists the concept of interpretation “contra legem”. Under this point of view, the court enjoys the right not to apply a legal norm which is incompatible with the principles of law. Another way to resolve the problem consists in interpretation of the Law of Ukraine on Domestic Arbitration Courts. The language of the Article 51 of the Law of Ukraine on Domestic Arbitration Courts is vague and can be understood twofold. From the terminological point of view, the phrase “the person that did not take part in the proceeding” (the Article 51 of the Law) covers both the person which did not become a party and the person which could not take part in the proceeding de facto. Other words of the Article are also controversial and can be interpreted twofold. So, that courts are not obliged to adhere only one way of interpretation. Such vagueness can be understood as a legal ground for judicial discretion. As a result of the controversy the court is vested the right to use judicial discretion in the interpretation of the vague norm. Within the possible meaning of legal text the court can choose such interpretation which is consistent with the European Convention on Human Rights and the principles of law.