Davydenko Dmitry

Party-appointed co-arbitrator: 1. An ICC case (seat in Sweden, Russian substantive law, amount of claim about 500 000 USD): Russian and Italian companies entered into the Agreement on Design, Supply, Installation, Maintenance and Dismantling services necessary for the construction works. Claimant requested compensation for maintenance services performed during a specified period. Respondent disputed that the alleged maintenance was performed. Moreover, Respondent alleged that the parties did not agree on any maintenance after the date specified in the Agreement and that Claimant did not perform any maintenance thereafter. 2. An ICAC case (seat in Russia, Russian substantive law, amount of claim about 4 mln USD): The parties entered into a contract in accordance with which the English respondent (seller) undertook to supply the Russian buyer with concrete mixtures for the repair of structural elements of the glass furnace. After the repair an accident occurred, which forced the claimant to the unscheduled pouring of the molten glass and stopping the furnace. The claimant demanded damages from the respondent. The respondent denied his responsibility. The award of the arbitrators was rendered in part in favor of the claimant. The respondent tried to challenge the award in Russian courts but to no avail. The claimant has then obtained enforcement of the award in England. 3. A maritime case (seat in Russia, Russian substantive law, amount of claim about 600 000 USD): a Hong Kong shipping company and a Russian insurance company entered into a marine vessel insurance contract. Under the terms of the insurance contract, the hull, machinery, mechanisms and equipment of the vessel were insured. Subsequently, during the voyage in the Sea of Japan, the ship was heavily heeled. Therefore, the insured instructed the captain to enter the port-shelter. The claimant reported a general average and informed the respondent about it. Since the respondent did not pay the insurance indemnity, the Claimant filed a claim with the Maritime Arbitration Commission.

The case of the ICAC at the RF Chamber of Commerce and Industry No. 233/2010 (Russian substantive law): the award published in the journal "Commercial Arbitration". Subcontracting agreement, construction works. One of the significant issues considered in the case related to the consequences of the failure of the contractor to provide a bank guarantee under the contract for his subsequent demand for payment of the work. Namely, whether the client has the right to demand a reduction in the price of work by the amount of such a guarantee. The arbitral tribunal proceeded from the fact that the provision of a bank guarantee does not constitute the principal, but an accessory obligation of a party to the contract – a way to ensure the principal obligation. Non-fulfillment by a party of an accessory obligation does not release the other party from fulfillment of its obligation under the contract. Consequently, the failure of the contractor to provide the client with a bank guarantee does not relieve the client of the obligation to pay for the work in the amount of such a guarantee. In addition, the arbitral tribunal took into account the purpose of providing the bank guarantee by the contractor agreed upon by the parties: it was to guarantee the protection of the client from losses caused by improper performance of the relevant work by the contractor, that is, to ensure that the contractor fulfills its obligation for timely and high-quality work performance for the relevant period. Since the client did not dispute that the work for this period was completed and did not specify the cost of eliminating its deficiencies, there was no reason to deduct the full amount of the bank guarantee from the price of the work. Accordingly, the client’s refusal to pay because of non-provision of a bank guarantee by the contractor was rejected. The case of the Maritime Arbitration Commission at the Chamber of Commerce and Industry of the Russian Federation No. 1/2015 (Russian substantive law): the award was published in the journal "Commercial Arbitration". Transportation of cargo in tow. The award is an example of a situation where the arbitral tribunal may disagree with how the parties (or one of them) qualify the legal relationship between them as well as the claims filed, and, accordingly, give their own qualifications (principle “Jura novit arbiter”). The award demonstrates the approach of the arbitral tribunal to replenish incomplete or unclearly worded terms of the contract: taking into account the subsequent behavior of the parties, including their conduct during the arbitration. In interpreting the contractual terms regarding the nature of the laytime agreed upon in the contract (the contract did not expressly indicate whether such time is reverse), the arbitrators accepted the common position of the parties. Also of interest is the analysis by the arbitral tribunal of a causal relationship between the losses of the claimant and the behavior of the respondent, in particular, whether the demurrage of the vessel was caused by the shipowner.

Case re services related to an oil platform in Arctic region: US contractor v Russian client, quality of the services and payment, Stockholm seat, Russian law, UNCITRAL Rules with SCC assistance, approx. USD 6 mln); SCC case: representing an Italian manufacturer against an indirectly state-owned Russian company. A tribunal under the Rules of the SCC. A contract for the supply of equipment, where SPIG was the supplier and Promkontroller was the purchaser. The equipment was intended for a state power plant. Dispute amount was about 3,5 mln. Euro. In 2016, an arbitral tribunal issued its award against the respondent, terminating the contract between the parties and ordering the payment of damages.

I am author of over 100 scholarly publications on international commercial arbitration, ADR, private international law and related matters. Including a book Amicable Dispute Resolution in the European Legal Tradition - Примирительные процедуры в европейской правовой традиции / Д.Л. Давыденко. М.: Инфотропик Медиа. 2013. 232 с. ISBN 978-5-9998-0175-3; and Kryvoi, Yaraslau and Davydenko, Dmitry, Consent Awards in International Arbitration: From Settlement to Enforcement (November 7, 2015). Brooklyn Journal of International Law, Volume 40, pp. 827-868, 2015. Available at SSRN: http://ssrn.com/abstract=2580572 Director and a co-editor of the CIS Arbitration Forum. https://cisarbitration.com/ I have experience as an arbitrator in the ICC (https://iccwbo.org/dispute-resolution-services/arbitration/icc-arbitral-tribunals/davydenko-dmitry/).