Energy Charter Treaty: Remington Worldwide Limited vs Ukraine
On 28 April 2011 the Arbitral Tribunal of the Arbitration Institute of the Stockholm Chamber of Commerce rejected most of the claims filed by Remington Worldwide Limited against Ukraine. The company accused Ukraine in violating the Energy Charter Treaty ratified by the Ukrainian Parliament, Verkhovna Rada in 1998.
Piece! Ukraine is oriented to amicable settlement of arbitration cases
The Ministry of Justice of Ukraine that is authorized to defend state interests in foreign courts and arbitration tribunals, currently is in the negotiation process for a peaceful settlement of 7 disputes with foreign investors, stated the Minister of Justice Oleksandr Lavrynovych in an interview to "Investgazeta" (Monday, March 14, 2011).
The Minister explained that in the process of developing strategies of protection of Ukraine's interests in every case of a dispute with a foreign investor Ministry comes primarily from the possibility of a peaceful settlement.
A company’s charter may not contain an arbitration clause
Some years ago Ukrainian courts established the approach that the transfer of funds as a contribution of a participant to the statutory capital had to be considered as a kind of agreement, and the company’s charter reflected that agreement. Later that approach was changed.
The ruling of the Supreme Court of Ukraine in RosUkrEnergo v. Naftogaz Ukrainy JSC case
As we announced earlier the Supreme Court of Ukraine ruled on enforcement under the New York Convention of a Swedish arbitral award rendered in RosUkrEnergo v. Naftogaz Ukrainy JSC case. Recently the SCC published the unofficial translation of the Court’s ruling. For those who are interested it is available here.
Posted by International Arbitration Team
RosUkrEnergo investigation commission of the Verkhovna Rada assumes that Naftogaz Ukrainy JSC lost the SCC case because of change of its legal position
On November 17, 2010 RosUkrEnergo investigation commission of the Verkhovna Rada presented draft report regarding the award of the arbitral tribunal under the rules of the Arbitration Institute of the Stockholm Chamber of Commerce.
The draft is subject to consideration of the core committee, thus it is not the final version yet. However, the draft contains assumptions and conclusions that may be interesting for our readers who follow the RosUkrEnergo case. After the arbitral tribunal had issued its awards of March 3, 2010 and June 8, 2010, they were recognized and permitted to be enforced according to the ruling of August 13, 2010 adopted by the Shevchenko District court of Kyiv. The ruling was then appealed. However, the Court of Appeal dismissed the appeal. As we may say the state officials and bodies pay great attention to the outcomes of the case, which already lead to criminal proceedings instituted against former officials of customs authorities.
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.
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.
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?”
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?
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.
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