| Abstract [eng] |
Fictitious disputes in international commercial arbitration This thesis is concerned with analysing the phenomenon of fictitious disputes in the area of international commercial arbitration, and the question whether the arbitration is capable to combat this form of manipulation of the arbitral process. This subject has never been investigated in Lithuanian legal doctrine before. In the first part of the thesis the author defines the notion of fictitious disputes, analyses the main reasons why unscrupulous parties choose arbitration to resolve fictitious disputes. However, the main focus is on the legal basis on which the arbitrators have the right not to deal with a fictitious dispute and terminate procedure without final award, but at the same time preventing the parties from referring to the same fictitious dispute to different arbitration panel. In the second part there is an examination of the rights and duties of the arbitrator when he has suspicions that the arbitration is used for further criminal purpose. It is examined whether the arbitral tribunal has a power to investigate factual issues which have not been submitted to the tribunal, and whether the arbitrators have a duty to report suspicions to the competent authorities. The author suggests that the international community should establish a uniform list of red flags to help arbitrators notice the important circumstances of the illegality. The third part is devoted to the stage when the arbitrators fail to recognize the fraud of the parties and render an award in the fictitious dispute. Consequently, interests of society or third parties may be harmed due to the limited judicial control. Therefore, in a very exceptional circumstances when there are no possibilities to ignore fictitious award, the author suggests interpret the norms of the CCP and the Law on the Prosecutor's Office of the Republic of Lithuania in a manner that grants the right for the public prosecutor to apply for the annulment of the arbitration award to the Court of Appeal of Lithuania. |
