In 2009, the 9th Appellate Court in Moscow issued three interesting decisions on the validity of "hybrid" dispute resolution clauses (see Legal update, Hybrid dispute resolution clauses: green light?). The rulings were issued in separate cases against the same defendant and arose out of the same loan agreement which provided for LCIA arbitration. However, it also gave the financial parties the option to issue proceedings in any other competent court.

In Frontpoint Global Emerging Markets Fund LP v Eurokommerz, the court held that the arbitration clause did not prevent the claimant from commencing proceedings in a Moscow court because it had jurisdiction over the dispute, as a court in the claimant's place of residence. The agreement gave the claimant the right to opt for any competent court. The court also considered the failure of the claimant to notify the defendant about its choice of forum and held that such failure does not prevent the claimant from applying to the court because the agreement provides for the right to notify but not for an obligation to do so. In ING Bank NV v Eurokommerz, the court took a similar view with regard to claimant's right to start litigation, but differed in holding that the fact that the claimant had sent a copy of the claim to the defendant could serve as notification that the claimant had opted for litigation. However, in Max Participations II Sarl v Eurocommerz, the court decided to decline jurisdiction but did not find the hybrid clause to be void or inoperative. Rather, it declined on the ground that the notification required by the loan agreement was not sent until a month after the claimant had filed the claim with the court.

These decisions are a good sign for creditors exercising their right to choose whether to arbitrate or litigate at the time of the dispute. However, the decisions could be subject to further appeal, and some commentators, judges and practitioners in Russia still consider that hybrid clauses should be deemed void or inoperative because they violate the principle of procedural equality of the parties and do not serve as an express choice of forum.

In June 2009, the Moscow Arbitration Court enforced an SCC arbitral award regarding a copyright infringement in Erick van Egeraat Associated Architects B.V. (Netherlands) v Capital Group LLC (Russia), No V 087/2006 (see Legal update, Arbitrability of copyright infringement disputes). The case is particularly noteworthy as it is the first time a Russian court judgment has reflected on the issue of the arbitrability of copyright infringement disputes. In this case, the arbitral tribunal had ordered the respondents to pay the claimant fees and damages caused by unlawful termination of the contract. The tribunal also ordered them to stop further infringement of the relevant copyright and to compensate the claimant for losses due to such infringement.

In the past, commentators have argued that certain IP enforcement disputes cannot be subject to arbitration due to the public nature of IP rights. However, the court adopted a different view, noting that it is not mandatory to register copyrights in Russia, and that the Russian Federation Arbitration Procedural Code does not list copyright disputes among non-arbitrable matters.

In 2008, shareholders in Yukos (a Russian oil company) commenced arbitration against Russia in the Permanent Court of Arbitration, alleging breaches of Part III of the Energy Charter Treaty (ECT) and arguing that their investment in Yukos was expropriated. Part III of the ECT confers substantive protections on investors in the energy sector. Russia signed the ECT in 1994, but never ratified it. As a result, Russia was required to "provisionally apply" the terms of the ECT to the extent that such terms were consistent with its constitution, laws and regulations (Article 45, ECT).

On November 30, 2009, the tribunal in the Yukos arbitration decided that, even though the ECT has only provisional application, Russia is bound by its terms, and that the claimant investors are entitled to invoke its protection. The decision (which has not been published and may well remain confidential) is significant because it clarifies the scope of protection open to investors in the Russian energy sector. The arbitration will now proceed to the merits phase.