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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.