International arbitration News, analytics and practice

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.

2Jun/140

Assignment of Benefits of Arbitral Awards: Problematic Enforcement in Ukraine

By Cai & Lenard
From Kluwer Arbitration Blog
arbitration lawyer Assignment of Benefits of Arbitral Awards: Problematic Enforcement in Ukraine

Assignment of benefits of arbitral awards is a standard business practice worldwide, undertaken by companies involved in international trade and supported by credit insurers. However, this practice may face some obstacles in Ukraine considering contradictory and poorly developed court practice of granting leave for enforcement upon an application submitted by any person other than a person who was the party to arbitration. Courts are rather formalistic in deciding on that matter as Ukrainian laws do not directly envisage the possibility to an application for leave to enforce an international arbitration award to be submitted by any person other than a creditor (the meaning of this term is sometimes narrow, so that it is understood as a synonym to a party to arbitration). Actually, until recently there are not so many court cases, if any at all, in which the matter of assignment of benefits of arbitral award was clearly addressed.

20Nov/120

Enforcement of SCC awards in Ukraine

SCC is one of the most frequently referred arbitration institutes among Ukrainian parties, after the International Commercial Arbitration Court (ICAC) at the Ukrainian Chamber of Commerce and Industry (UCCI). This trend is consistent with the general East-West footprint in the SCC case load. In the last decade parties from Ukraine have appeared in 45 disputes before the SCC. 12 of these disputes have been administered by the SCC in the period 2011-2012.

15Oct/121

ICAC at the UCCI holds leadership position in terms of enforcement of arbitral awards in Ukraine

According to  “Ukraine. Arbitration-friendly jurisdiction: 2011-2012 statistical report” the International Commercial Arbitration Court  at the Ukrainian Chamber of Commerce and Industry (ICAC at the UCCI) holds the leadership position in terms of enforcement of arbitral awards in Ukraine.

Arbitration in Ukraine

24Sep/120

What are the reasons for refusing the enforcement of arbitral awards in Ukraine?

Ukrainian local common courts rarely refuse to grant the leave for enforcement of arbitral award (about 10% of the requests in 2011 and 6% of the requests in 2012). This statistics was presented in the research paper “Ukraine. Arbitration-friendly jurisdiction: 2011-2012 statistical report”.

18Sep/120

Recognition of international arbitration in Ukraine: 2011-2012 statistical report

Arbitration practitioners often put Ukraine below the average ranking of countries in terms of recognition of arbitration. Ukraine’s image of a not entirely arbitration-friendly jurisdiction is “promoted” with common thought about problematic enforcement of arbitral awards in Ukraine.

However, in recent years Ukrainian legal system demonstrated significant progress in adherence to the arbitration-friendly approach. That progress had been measured during the study resulted in the research paper “Ukraine. Arbitration-friendly jurisdiction: 2011-2012statistical report”.
What is the statistics of setting aside and recognition and enforcement of arbitral awards in Ukraine?

Enforcement of arbitral awards in Ukraine

How often do Ukrainian courts grant the leave for enforcement of arbitral awards?

What are the reasons for refusing the enforcement of arbitral awards?

Do Ukrainian economic courts recognize arbitration agreements?

Are the courts inclined to "restore" arbitration agreements?

Is there any connection between international commercial arbitration and administrative court proceedings?

The research paper is available for preview: in English, Ukrainian, Czech and Russian.

You may also download it here.

16Mar/110

New rules of the protection of Ukraine’s state interests in international jurisdictional bodies

On March 15, 2011 the new version of the Order of protecting the rights and interests of Ukraine during the disputes, before the foreign jurisdictional authorities in cases involving a foreign entity and Ukraine came in force. The Order was approved by the Decree of the President of Ukraine.

14Mar/110

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.

4Feb/113

NO CONSUMER ARBITRATION IN UKRAINE – 2

On February 3 2011 the Verkhovna Rada of Ukraine passed the Law amending the Law “On Arbitration Courts” which excludes the consumers’ disputes (including those related to consumers of  services of banks and credit unions) out of the competence of arbitration courts. In our previous articles we commented that initiative and discussed the main “pro” and “cons” of arbitration in consumer cases.

Posted by International Arbitration Team

logo Final point in RosUkrEnergo v. Naftogaz Ukrainy case

30Jan/112

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.

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.

20Oct/100

NO CONSUMER ARBITRATION IN UKRAINE

Let me start by stating that formally consumers’ rights in Ukraine are protected and even overprotected. They even may file claims which are free of court fees. However, recently new initiative appeared that was aimed at protection of consumers from “deprivation of rights to be protected by the state court system”. Today, October 20, the core committee of the Ukrainian Parliament gave its positive opinion to the bill that excludes the consumers’ disputes out of the competence of arbitration courts. The bill was registered with the Verkhovna Rada of Ukraine on September 9, 2010.

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?”

19Apr/10Off

Enforcement of Arbitration Awards in Russia and Ukraine: Dream or Reality?

Recently we have reached one interesting publication “Enforcement of Arbitration Awards in Russia and Ukraine: Dream or Reality?”, prepared under the auspices of the American Bar Association, Section of International Law and the Center for Continuing Legal Education.

Though I do not completely agree with certain opinions of the authors (in some cases they sound too critically, I think) I recommend to read that material. Not only because some of the authors are my colleagues and acquaintances. The publication is full of practical situations illustrated by cases.