In Memoriam. Сборник воспоминаний, статей, иных материалов. Сергей Лебедев
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in Moscow, which I graduated. And I worked for two years in the foreign trade organization here in Moscow. And I was a young lawyer. And of course it was important how certain disputes were to be decided. That is natural for a lawyer, if you are a lawyer you are always interested, how disputes, which can arise from the contracts with which you are concerned and involved, should be resolved. And you know, I had two old Professors, first of them was my Professor Aleksandr Keilin, who was my teacher in the institute, and then in my practical work. And then there was Professor Usenko, who was a famous lawyer in the Ministry of Foreign Trade. And I had contacts with them. And they decided to invite me to go with them to Stockholm, to be an assistant of Russian parties involved in arbitration in Stockholm. It was my first experience about arbitration in Stockholm.
M.B.: Which year was this?
S.L.: Well, with year, it is difficult to tell exactly which years it was. It was ’60s, about my first appearance in Stockholm. Not as an arbitrator but as an expert to Russian parties involved in that arbitration.
M.B.: So arbitration, Stockholm already then played an important role for arbitration for Russia?
S.L.: Yeah, I believe so. And for me it was important that these two persons whom I respected very much, they told that, perhaps, Stockholm was a good place to have arbitration between Soviet parties, at that time, and the parties from other countries. Not with Swedish companies, but other companies. So providing in contracts that arbitration should be held in Stockholm, such a provision. And they told me that it was a good decision. In spite of the fact that, of course, contracts provided for arbitration in other countries, including London, Paris, yes, but…
M.B.: Why Sweden?
S.L.: Why Sweden? Later, when I became more educated, so to say, the reason was that it was important that different systems to which parties belong, political, economic systems, it was an important factor, were to be taken into account, in the sense that arbitrators were to take that into account, and nevertheless provide an objective, impartial settlement of disputes between Soviet parties, at that time, and parties from other countries with whom arbitration was provided in the contract. So how to do this? That is a very difficult question. Indeed, later I became an arbitrator, and myself participated in various arbitration, and I know how difficult it is to take into account special provisions in Russian laws and special provisions in the laws of the country of the other party. How to take that into account? And so they make an award, which is good for reasonable appreciation. It does not mean, of course, that both parties are always satisfied with the award, of course. There are dissatisfaction to one of the parties, or even to both parties, and so on, but for arbitrators, nevertheless, it is important to make an award which is reasonably judged, which should be considered as impartial and good, appropriate award. I remember, of course, one of my first arbitrations in Stockholm. It was a dispute between a Soviet company and an American company, and it was very interesting case to be remembered by me, for all my years’ life. I was appointed by the Soviet company, and American party appointed Professor John Hazard, and John Hazard was a famous American expert in Soviet law. Very educated, excellent Professor. And the chairman was Mr. Mangård, which was a famous Swedish lawyer, and later, I believe he was the chairman of a meeting between Soviet lawyers and American lawyers about development of optional clause [Речь идет о Факультативной арбитражной оговорке для использования в контрактах в советско-американской торговле, подготовленной ТПП СССР и Американской арбитражной ассоциацией в 1977 г. применительно к арбитражу в Стокгольме – Примеч. сост.].
But it happened later. But at that time it was a dispute, a very difficult case had to be resolved by these three arbitrators. And Professor Hazard was very informed about Russian regulations. It was state monopoly of foreign trade in Soviet Union at that time, and free market in the United States, and how to take all these aspects in our specific case, and it was for Professor Mangård, who was sitting with closed eyes, I remember, I remember him with closed eyes, and listening to Hazard, and listening to me, what we are thinking, and then it was up to him to make an award. To make a final decision. It was really a very difficult case. But for me it was very good example.
M.B.: Is it possible to tell what the case was about or is it still confidential?
S.L.: No, it is not so much confidential. But it happened long ago, and for me to recall exactly what were the exact aspects of that dispute is very difficult. I should not try this. I could try recall, to look into my notes, but not at this time.
M.B.: Do you recall the Russian view of Sweden? What was the Russian view of Sweden back then?
S.L.: You know, when we were discussing about optional clause for Soviet and American parties’ contracts, and we finally came to agreement with American side, and Howard Holtzmann in particular, who was an excellent American lawyer, who represented the American party, we came to agreement that Sweden was a good place for arbitration for such contracts. And this optional clause should have been recommended to Soviet and American parties, when they make contracts. I remember Howard Holtzmann was smiling and said: “Okay, this is a concession from our side, from American side.” And I ask him: “Why?” “Well”, he said, “because Sweden is a socialist country. And you are a socialist country.” It was a joke, of course, and we did understand that Sweden was not a socialist country, like our own country, like Soviet Union. No, of course. But from our side we expected that we can knew almost for sure that arbitration in Stockholm would be impartial. In spite of the fact that parties to the contract, to the dispute, are from socialist country, Soviet Union, and from American country, capitalist country. Nevertheless we expected that arbitration should be appropriate in spite of the differences which existed. Why so? I cannot tell you why so. For me, very important were recommendations of Professor Keilin and Professor Usenko, who had experience in that field, and who educated me, that that was the situation, and you can expect, because of their own personal experience. That was very important for me. Otherwise, I’m not an expert about Sweden, except history, of course, and history was not always good for Russian and Swedish relations, many centuries ago. No, it was Sweden today. So that was our solution. Then, what was important for me also, that I met many Swedish lawyers in arbitration, also in international conferences and so forth. There was a feeling, for me, that we can rely on those people, when they act, and usually, they act as presiding arbitrators. There is, for instance, American arbitrator and Soviet arbitrator, and the presiding arbitrator, who knows the Swedish law, and we can expect that it would be so. But of course, you know, it is so, as a general approach, and in my experience, in my practice, as arbitrator in Sweden, I realized that this is true. But it does not exclude certain case, where the situation may be different. Except, from my point of view, maybe I’m not true in my appreciation, but it appears to me that there may be not appropriate award made in that or another case. There is always such a possibility, that is unavoidable, and if it is arbitration here in Moscow, I know for sure that certain awards are not appropriate from the standpoint of foreign arbitrator who participate here in Moscow as arbitrator. So such disputes arise. What is important then, and again, from my recent practice in Sweden: what is the position of the Swedish court? Because there is a possibility to appeal against the award before the Swedish Court of Appeal. Yes, Swedish Court of Appeal, how that court will act with regard to such a complaint against the award, that is very important thing. I’ll tell you… I hope I don’t speak to long?
M.B.: No. But could I ask, just before we leave the choice of Sweden. I just wonder whether the Soviet Union, did you approach other countries for the same purpose? Were there alternatives to Stockholm that were discussed from the Russian point of view?
S.L.: Well, of course, now the situation is such that contracts concluded by Russian companies provide for arbitration in different countries. And now the situation has changed as compared with the situation during the Soviet period. Why? During the Soviet period there was principle of state monopoly of foreign trade. It