In this paper, arbitrability of disputes and respective Ukrainian laws and jurisprudence will be analyzed. As Ukrainian laws distinguish international commercial arbitration (foreign arbitration and commercial arbitration having the seat of arbitration in Ukraine) and domestic arbitration (arbitration between Ukrainian entities and individuals), in this paper only the matters related to enforcement of international commercial arbitration will be considered. This paper contains the results of the research conducted as a part of the comparative study of the concept of ‘arbitrability’, carried out under auspices of the International Bar Association Subcommittee on Recognition and Enforcement of Arbitral Awards.
- Ukrainian courts usually consider arbitrability in the context of validity of an arbitration agreement.
- Ukrainian law defines persons capable of being a party to an arbitration (‘subjective arbitrability’) and specifies disputes which are not capable of being resolved by arbitration (‘objective arbitrability’). Rules related to subjective arbitrability are part of lex arbitri. The specific restrictions of objective arbitrability are part of lex fori, they are applied by the competent court irrespective of the seat of arbitration or the law governing the arbitration agreement.
- After 2011 legislative amendments, Ukrainian courts still have not adopted a clear approach to the matter of arbitrability of corporate disputes and disputes out of public procurement contracts. Courts still mostly consider corporate disputes and disputes out of public procurement contracts non-arbitrable. Controversial jurisprudence only allows to come to a conclusion that disputes out of or in connection with agreements of alienation of participation interests might be considered not corporate and thus arbitrable.
The Annual Report provides an overview of the activities during the past ICSID fiscal year, including information on developments in the ICSID membership and caseload, designations to the Panels of Arbitrators and of Conciliators, resolutions adopted by the Council, publications, and financial statements on the income and expenditures of the Centre.
New books for arbitration practitioners, 'Evidence and Proof in International Commercial Arbitration : Scientific and Practical Guide' (in Russian - Download link) and 'Theory and Practice of Proof in International Commercial Arbitration: Monograph' (in Ukrainian - Download link) have been recently published by Konstantin Pilkov PhD, Associate Professor of the Department of International Private Law of Kyiv National Trade and Economics University, partner of Cai & Lenard, arbitrator of the ICAC at the UCCI.
The books offer an integrated approach to evidence which includes comprehensive doctrinal analysis. Practical recommendation given in the books are meant to facilitate arbitration proceedings that are fair, accurate, and efficient.
Several chapters of each book are currently available on Cai & Lenard website.
Complete downloadable versions will be available after arbitration conferences in November.
The AAA-ICDR Foundation is now accepting proposals for its second funding cycle. Interested organizations or individuals should submit a 1-2 page Initial Description of Grant Request no later than October 14, 2016 to: firstname.lastname@example.org.
The McGill Journal of Dispute Resolution (MJDR) invites submissions of articles. The editorial board accepts submissions in both English and French. The next deadline is 15 February 2016. Please submit your articles or contact the editor if you have any questions at: email@example.com
Hague arbitration court to consider case brought by oligarch Igor Kolomoisky against Russia - TOL.org.
The Permanent Court of Arbitration in The Hague has said it will consider a case against Russia by Ukrainian businessman and sometime politician Igor Kolomoisky who claims he was deprived of his right to operate a passenger terminal at a Crimean airport after Russia annexed the peninsula.
The Secretariat of the ICC International Court of Arbitration is currently recruiting a Deputy Counsel for a team dealing principally with common law jurisdictions.
Applicants should be recently qualified lawyers ( i.e. Bar exam or equivalent) with professional experience in a legal environment. However, a formal legal qualification is not essential if a candidate can demonstrate sufficient legal training and experience in international arbitration, international and/or commercial law.
Closing date for applications: 17 December 2015
For more please visit ICC webpage
The Subcommittee on Recognition and Enforcement of Arbitral Awards conducted over 2014/2015 a comparative study on 'public policy' as a defence to the recognition and enforcement of arbitral awards under the New York Convention. For such purpose, the Subcommittee has solicited and received reports from Arbitration Committee members reporting jurisdiction by jurisdiction on the treatment of public policy by the domestic courts in the context of enforcement of foreign arbitral awards.
The 2015 International Arbitration Survey (download) conducted by Queen Mary University of London (QMUL) is the third survey carried out in partnership with White & Case. The theme of this year's survey is improvements and innovations in international arbitration. The survey examined the effectiveness of past innovations and what could be improved in the future.
- 90% of respondents surveyed prefer international arbitration to resolve cross border commercial disputes.
- London and Paris are the most preferred venues for international arbitration. Hong Kong and Singapore are gaining momentum and are now ranked third and fourth.
- Initiatives to further improve the efficiency of the arbitral process are welcomed. Arbitrators and arbitration counsel need to be more proactive in promoting efficiency, not just arbitral institutions.
- 70% of respondents think there is an adequate amount of regulation although specific areas require further 'micro-regulation'.
Download White & Case infographic summary:
Retrieved from White & Case
Misen Energy AB (publ) (“Misen”) has submitted an investment dispute notice to the Government of Ukraine under the Ukrainian Swedish Bilateral Investment Treaty (“BIT”). Misen notified Ukraine that a dispute has arisen between it and Ukraine concerning Misen’s investment in Ukraine, and invited Ukraine to resolve the dispute by consultation and negotiation.
Eastern Europe-focused junior energy firm JKX Oil & Gas announced Monday that it has launched arbitration proceedings against the Ukrainian government under the Energy Charter Treaty – a bilateral investment treaty between the UK and Ukraine. JKX is looking to recover more than $180 million in rental fees that its Ukrainian subsidiary has paid on production of oil and gas in Ukraine since 2011. JKX said it is seeking compensation for "losses it has suffered from Ukraine's treaty violations", including "Ukraine's failure to treat JKX's investments in a 'fair and equitable' manner and failing to comply with commitments made by Ukraine in respect of JKX's investments."
Oxford University Press made Arbitration International Journal's archive temporarily available for free reading and downloading full pdf articles.
Launched in 1985, Arbitration International provides quarterly coverage for national and international developments in the world of arbitration. The journal aims to maintain balance between academic debate and practical contributions to the field, providing both topical material on current developments and analytic scholarship of permanent interest. Arbitrators, counsel, judges, scholars and government officials will find the journal enhances their understanding of a broad range of topics in commercial and investment arbitration.Launched in 1985, Arbitration International provides quarterly coverage for national and international developments in the world of arbitration. The journal aims to maintain balance between academic debate and practical contributions to the field, providing both topical material on current developments and analytic scholarship of permanent interest. Arbitrators, counsel, judges, scholars and government officials will find the journal enhances their understanding of a broad range of topics in commercial and investment arbitration.
Ukraine is awaiting the ruling of the Stockholm arbitration court concerning the temporary gas price in the gas dispute with Russia to appear late in November 2014, Ukrainian Prime Minister Arseniy Yatsenyuk has said.
Ukrainian state-run energy firm Naftogaz and Russian state-controlled gas firm Gazprom have both lodged cases with the Stockholm arbitration tribunal to review their gas transit contracts. All debt payments, on which Russia has been insisting, will be made only after a verdict from the International Court of Arbitration in Stockholm - (Reuters).
By Konstantin Pilkov, Cai & Lenard
Ukraine has a reputation of a country with an imperfect justice system. No wonder that the country is also pictured by many arbitration practitioners as one unfriendly to arbitration, though refusals to grant the leave for enforcement of arbitral awards in Ukraine are relatively rare – 10% and 18% of all requests considered in 2013 and 2014 respectively, according to the Statistical Report “Ukraine. Arbitration-friendly jurisdiction: 2013-2014” prepared by Cai & Lenard.
(Full article available at Publications).
I. General Aspects of Enforceability
English Worldwide Freezing Order (“WFO”) being called by Matthias Scherer and Simone Nadelhofer one of the “nuclear weapons” of commercial litigation and arbitration, is a preliminary injunction preventing a defendant from disposing of assets pending the resolution of the underlying substantive (arbitration or court) proceedings. Its issue in support of an arbitration proceeding significantly impacts further enforcement of an award. However, as WFOs are often sought without prior notice to the defendant, their recognition and enforcement may become problematic. Ukrainian courts only recently were addressed issues related to enforceability of WFOs.