International arbitration News, analytics and practice

8Nov/100

Sollen die Schiedsklauseln neu verfasst werden?

Ist es rechtm??ig, in der Schiedsklausel die Staatsangeh?rigkeit oder die Nationalit?t des Schiedsrichters zu fixieren? Die Praxis zeigt, dass dies m?glich ist. Und wenn es um religi?se ?berzeugungen handelt? Englisch Gericht feststellt, dass eine solche Beschr?nkung diskriminierend ist. Die Frage ?ber Diskriminierungsverbote bei der Auswahl der Schiedsrichter wurde wieder aktuell.

28Oct/100

Dear arbitration practitioners, be precise in specifying the name of an arbitral institution in a contract

With this post we continue the Ukraine – arbitration-friendly jurisdiction set of comments. In our previous posts we already warned arbitration practitioners, attorneys and solicitors who are dealing with drafting arbitration agreements so that they should be precise in specifying the name of an arbitral institution in a contract if the dispute somehow is connected to the Ukrainian jurisdiction. The reason why is that Ukrainian state courts are not trained in favor of arbitration and in many cases do not consider seriously the doctrine of competence-competence in international commercial arbitration.

On October 13, 2010 the Supreme Court of Ukraine ruled in case upon the petition of VKT ARDO LLC against the award of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of Ukraine issued in favor of Аrсеlоrmittal Аmbalaj Сеligі Sanауі ve Тісаrеt Аnоnіm Sіrkеtі against VKT ARDO LLC for app. USD 3 mln. Since I have no interest in that case I believe that I can share my opinion.

14Oct/100

LCIA is banned by the Ukrainian court

Recently, Ukrainian economic courts have established a new practice, which hardly contributes to the attempts of Ukraine to become more friendly to arbitration. In the case Signus LLC vs SLAV Handel, Vertretung und Beteiligung AG and others the court of first instance forbade the defendants to apply to the London Court of International Arbitration.

10Aug/101

A court is not obliged to read an arbitration clause

This is another post in the Ukraine – arbitration-friendly jurisdiction set of comments. The Highest Economic Court of Ukraine being a body that is responsible for elaboration of the unified court practice of resolution of commercial disputes in Ukraine, adopted the ruling that answers the question: “Is a court obliged to terminate proceedings if a dispute is based on a contract that contains valid arbitration clause?”

6Apr/10Off

“Naftohas Ukrajiny” muss “RosUkrEnergo” 197 Mio. Dollar zahlen

Wie dem “Dserkalo Tyshnja“ bekannt wurde, hat das Stockholmer Schiedsgericht in einem Zwischenurteil, bez?glich der Forderungen von “RosUkrEnergo” an “Naftohas Ukrajiny”, “Naftohas” verpflichtet, dem Kl?ger 197 Mio. Dollar zu zahlen.

5Apr/10Off

Prove that arbitration does exist!

Probably there is no guide on how to draft an arbitration clause properly that does not recommend to specify the arbitral institution or administering body correctly.

Naming an institution to administer the arbitration proceeding or to appoint the arbitrators if the institution never existed, is misnamed in the clause or refuses to act, is one of the examples of pathological arbitration clauses. It is so in doctrine and in international practice. But how do Ukrainian courts decide if there are any doubts concerning the name of the institution?exists Prove that arbitration does exist!

16Mar/10Off

Olympic v. Ukraine

“A State may not expropriate or otherwise

take in whole or in part a foreign private

investment in its territory, or take measures

which have similar effects, except …”

1992 World Bank Guidelines

on the Treatment of Foreign Direct Investment

Recently the Olympic Entertainment Group (OEG) – a Baltic group of company operating casinos in many countries – announced its intention to institute arbitration proceedings against Ukraine (http://www.kommersant.ua/). The ground for filing the claim may be the measures of the state resulted in prohibition of gambling in Ukraine. Respective law was adopted on 15 May 2009 and introduced on 25 June 2009. The above announcement was made on 10 March 2010, and already caused different comments regarding the possible outcomes of the case. Some of my colleagues  believe that the Group has no chance to win because the measure were introduced by law, and that law was not challenged before the Constitutional Court of Ukraine. However, there is an alternative opinion, that the mentioned circumstance (no case against the above law in the Constitutional Court) may not be treated as decisive for the tribunal.

casino arbitration Olympic v. Ukraine

22Feb/10Off

There are 49 ICSID claims lodged against Argentina and only 10 against Ukraine. Who is talking about inappropriate investment climate?

An overview of the investment disputes settlement mechanism under ICSID Convention

One of the chief impediments to foreign investment in Ukraine as well as in other developing countries has been the investor’s perception that, in the event of disputes with the host state, they would find themselves without an effective legal remedy. Investors may no longer realistically rely on their own governments to espouse their claims, at least promptly and successfully, under traditional avenues of diplomatic protection. Investors who proceeded alone against host states, feared discrimination in the local courts. Legal disputes between individuals or corporations were normally settled before domestic courts. States may settle their legal disputes before the International Court of Justice. However, in mixed disputes, especially arising from international investment relationships, no appropriate forum was seen to exist.

studentenkredit2 There are 49 ICSID claims lodged against Argentina and only 10 against Ukraine. Who is talking about inappropriate investment climate?