By Konstantin Pilkov, Cai & Lenard
Ukraine has a reputation of a country with an imperfect justice system. No wonder that the country is also pictured by many arbitration practitioners as one unfriendly to arbitration, though refusals to grant the leave for enforcement of arbitral awards in Ukraine are relatively rare – 10% and 18% of all requests considered in 2013 and 2014 respectively, according to the Statistical Report “Ukraine. Arbitration-friendly jurisdiction: 2013-2014” prepared by Cai & Lenard.
IT’S ALL FOOLS’ DAY TODAY! DO ARBITRATION PRACTITIONERS EVER SMILE? RESULTS OF THE “MOST SERIOUS” SURVEY
Recently the “most serious” survey dedicated to All Fools' Day 2013 has been conducted in Ukraine. Profiles of 333 partners of 100 best law firms were carefully analyzed by the researchers with the only aim to find the answer to the question “How do the lawyers smile?”
The results are incredible. Here we share only some of them related to arbitration practitioners
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.
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”.
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?
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?
You may also download it here.
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.
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
With this post we continue the Ukraine – arbitration-friendly jurisdiction set of comments. We already discussed how Ukrainian courts treat ad hoc arbitration and what is their perception of the Arbitration Institute of the Stockholm Chamber of Commerce. This time the arbitration under the Swiss Rules is in our focus.
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.
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.
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.
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?”
Arbitration Institute of the Stockholm Chamber of Commerce
There are not many cases in public domain which may help us to determine all significant issues of recognition and enforcement of the awards of this world-renowned arbitration institution.
In case No. 22/200 the economic court of Donetsk Region adopted decision on 13.01.2010 on termination of the consideration of case since the parties agreed to arbitrate in “Arbitration Court of Stockholm” (not the Arbitration Institute of the Stockholm Chamber of Commerce (SCC)). Thus, you may think that Ukrainian courts are liberal in their attitude to such details as the name of an arbitration institution.