A. LEGISLATION AND RULES
International arbitration in Belarus continues to be governed by the Law on the International Arbitration Court (“International Arbitration Law“), which was enacted on 9 July 1999.
This law is based on the UNCITRAL Model Law and, since its enactment; no significant amendments have been made.
In addition, the Economic Procedural Code, adopted on 15 December 1998, contains provisions relating to challenging and enforcing local and foreign arbitral awards.
Belarus is a party to a number of international and regional treaties that relate to arbitration proceedings, including the New York Convention, the European Convention on International Commercial Arbitration 1961 and several CIS treaties.
Over the past year, the Belarusian Government has taken further steps to develop ADR.
In particular, under the amendments to the Law on Advocacy and Advocacy Activity in the Republic of Belarus adopted in July 2017, it was clarified that local advocates, as well as mediators, are allowed to act as arbitrators in international and domestic arbitrations.
In addition to that, in January 2018, the Belarusian Parliament adopted amendments to the Civil Procedural Code, which, among other things, provide for the settlement of cases via mediation in appellate court proceedings.
Therefore, the Belarusian Government has taken significant steps for promoting ADR for the settlement of disputes between parties.
However, from the other side, the government is considering amendments to the local laws that are supposed to increase state control over domestic arbitration courts. In particular, these amendments should, among other things, prohibit the use of so-called “pocket arbitration institutions” for the settlement of disputes by affiliated parties.
A.2 Institutions, rules and infrastructure
After the adoption of the Law on Domestic Arbitration Courts in July 2011 and the relevant sub-laws regulating the procedure of the establishment and registration of arbitration institutions, the number of arbitration institutions registered in Belarus significantly increased. There are currently more than 30 arbitration institutions, the oldest and most popular of which is the International Arbitration Court at the Belarusian Chamber of Commerce and Industry (IAC), which was established in 1994.
The IAC handles all types of commercial disputes between local and foreign companies, except disputes that are non-arbitrable under Belarusian law (e.g., disputes relating to rights over immovable property located in Belarus, privatization contracts, IP rights, etc.). The IAC also reviews commercial disputes between local companies.
In addition to that, another international arbitration institution – the Chamber of Arbitrators at the Belarusian Union of Lawyers – renewed its activity in 2020 and adopted its new arbitration rules, which are based on UNCITRAL Arbitration Rules.
It has the same broad jurisdiction as the IAC and is supposed to be its main competitor.
Belarusian court decisions are usually not publicly disclosed. Generally, Belarusian courts take an arbitration-friendly approach, although they have relatively limited experience in dealing with arbitration-related cases, which may lead to controversial court practices.
B 1. Recent investment arbitration cases.
In January 2021 a Lithuanian investor brought an ICSID claim against Belarus seeking compensation for its losses relating to the cancelation of the hotel construction project in Belarus.
This is the fourth pending investment case against Belarus, which confirms the recent trend of the Belarusian authorities acting aggressively in connection with foreign investors.
B 2. Supreme Court confirms very conservative approach in connection with defective arbitration clauses
In two cases considered by the Supreme Court in 2020, it confirmed its previous position that the uncertainty in the name of arbitration institution in the arbitration agreement should lead to non-enforceability of the relevant arbitral award.
In particular, in one case the court refused to enforce the arbitral award issued in Kazakhstan because the relevant arbitration clause contains only general reference to “arbitration court located at the place of the claimant”. Moreover, the court considered that the award contradicts Belarusian public policy, as the Kazakhstani arbitral tribunal does not apply the Belarusian law, as it should do under the conflict-of-law provisions of the Belarusian Civil Code.
In the second case, the court invalidated the arbitration agreement because it refers to a non-existent arbitration institution: “Central Arbitration at Federal Economic Chamber, Vienna”.
The above position of the Belarusian court is disputable as it contradicts provisions of the European Convention, which allow parties to determine the arbitration institution even if the arbitration agreement is ambiguous.
 Law of the Republic of Belarus No. 279-Z on the International Arbitration Court dated 9 July 1999 (as amended).
 Law of the Republic of Belarus No. 301-Z on Domestic Arbitration Courts dated 18 July 2011.