International arbitration News, analytics and practice

23Oct/160

Arbitrability of Commercial Disputes in Ukraine

(extract from paper "Arbitrability of Commercial Disputes in Ukraine" by Konstantin N. Pilkov, Cai & Lenard, Ukraine)

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.

I.                   SUMMARY

  1. Ukrainian courts usually consider arbitrability in the context of validity of an arbitration agreement.
  2. 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.
  3. 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.
21Jan/160

McGill Journal of Dispute Resolution. Call for papers!

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: coordinatingeditor.mjdr@mcgill.ca

McGill Journal of Dispute Resolution MJDR McGill Journal of Dispute Resolution. Call for papers!

4Feb/152

LCIA Arbitration International Journal’s archive is opened

Oxford University Press made Arbitration International Journal's archive temporarily available for free reading and downloading full pdf articles.

Arbitration International Journal LCIA Arbitration International Journals archive is opened

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.

Tagged as: 2 Comments
4Aug/141

Enforcement of Worldwide Freezing Orders in Ukraine

By Cai & Lenard
From http://kluwerarbitrationblog.com

(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.

8Jul/140

Evidence in International Arbitration: Evaluation Criteria

(extract from Konstantin Pilkov. Evidence in International Arbitration: Criteria for Admission and Evaluation. Arbitration. – 2014. – Vol. 80. – Issue 2 2014)

It is commonly recognised that the admissibility of evidence does not automatically guarantee that the evidence will be considered as having probative value. There are more or less explicit relevance, admissibility and materiality criteria for determining whether a piece of evidence is admissible, whereas the methods for weighing evidence and determining the sufficient level of proof are subjective and somewhat inexplicable.[1] The weight of the evidence usually refers to its persuasive effect on the arbitrator’s mind. It is within the discretion of the tribunal to evaluate the evidence submitted by the parties, though the parties can agree on the sufficiency, as will be discussed later.

The weight of the evidence includes questions of credibility (reliability) and the evaluation of inferences which can be made from the evidence.

5May/140

Evidence in International Arbitration: Criteria for Admission

(extract from Konstantin Pilkov. Evidence in International Arbitration: Criteria for Admission and Evaluation. Arbitration. – 2014. – Vol. 80. – Issue 2 2014)

Arbitration rules give broad authority to arbitrators regarding the consideration of evidence.[1] They usually do not set any formal procedure of admission and evaluation of evidence and say little if anything about the criteria for such admission and evaluation. The UNCITRAL Arbitration Rules (as revised in 2010) art.27(4) provide that once a party offers evidence to prove the facts it relies on, the tribunal is required to “determine the admissibility, relevance, materiality, and weight of the evidence offered”.

13Jan/10Off

Stock exchange arbitration

Arbitration as an alternate method of dispute settlement has long been recognized as convenient, efficient and less expensive than the traditional lawsuit in court. These benefits have always been a significant reason for the success of securities industry arbitration. In the USA and many European countries the arbitration is the primary means of resolving disputes in the securities market. The arbitration won that status because the public perception of its fairness was of paramount importance. The amendments to the Ukrainian legislation introduced in 2009 might help the Ukrainian local arbitration to find its niche as an alternative mechanism of dispute resolution in the industries where the benefits of the arbitration are of the essence, in particular, on the stock market.

35460 4995 300x225 Stock exchange arbitration