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.
First “result” of the Gazprom’s war against Ukraine
Slovak gas company Slovensky Plynarensky Priemysel (SPP) filed the request for arbitration before the International Court of Arbitration of the International Chamber of Commerce in Paris against Gazprom claiming for damages caused by short delivery of gas during the gas war against Ukraine. SPP calculated the amount of claim (approximately EUR 100 mln of direct damages) and presented it during the negotiations with Gazprom.
Intention to arbitrate or Pathological arbitration clause?
With this post we continue the Ukraine – arbitration-friendly jurisdiction set of comments. We already discussed the approach that was typical for Ukrainian courts concerning the validity and enforceability of ad hoc arbitration clauses till recent times. Ukrainian courts’ practice still is not a pro-arbitration one. However, there is the understanding of difference between a pathological arbitration clause and a poorly drafted clause which though may be rescued. 
An ICSID tribunal has found that Ukraine violated international law on tenders
An arbitration tribunal at the International Centre for Settlement of Investment Disputes (President: Juan Fernández-Armesto (Spanish), arbitrators: Jan Paulsson (French), Jürgen Voss (German)) is considering the case upon the request of Mr. Joseph Charles Lemire, a national of the United States of America, filed in respect of a case against Ukraine. The case was brought under the 1994 Bilateral Investment Treaty between Ukraine and the United States. The dispute concerned the issuance and operation of radio broadcasting licenses in the Ukraine.
An ICSID arbitration tribunal has found that Ukraine violated international law on tenders by awarding radio broadcasting licences in secret in 2004 – but rejected other claims brought against the state by a US radio investor.
Source: http://www.kommersant.ua
Centragas Holding AG arbitration against Ukraine
On 5 February 2010 Centragas Holding AG, a company incorporated in Austria in 2004 holding 50 % of shares in RosUkrEnergo, announced its intention to institute the arbitration proceedings against the Government of Ukraine according to the Energy Charter Treaty.
Map illustrates major natural gas pipelines in central and eastern Europe. Germany's gas imports from Russia pass either through Ukraine, Slovakia and the Czech Republic, or through Belarus and Poland. SOURCE: Inogate (EU oil and gas transport co-operation programme)
As it was announced, Ukrainian government did not answer the official request of Centragas filed in accordance with the Energy Charter Treaty. The announcement stated that the request was filed to initiate the negotiations concerning the expropriation of 11 billion cubic meters of gas, owned by RosUkrEnergo, a joint venture of Centragas and Gazprom
For more information please see UNIAN informational agency page.
If you are interested in information about Russia–Ukraine gas disputes please see the link.
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