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.
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.
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?”
Arbitrators usually are sensitive to arguments about their jurisdiction. Though under the competence-competence doctrine even issues of the existence and validity of the arbitration agreement may go initially to the arbitrators, the authority of an arbitrator arises from a contract between the parties.
If you have sufficient arguments against the jurisdiction of a tribunal present them immediately. Do not be afraid to antagonize the arbitrators. It is much better to resolve the issues of jurisdiction at the beginning of the process, than to face the restrictions on challenging an arbitrator's award on substantive jurisdiction after it is issued.
Arbitration DO’S and DON’T’S
There are checklists of do's and don'ts while drafting arbitration agreement. Probably later we will discuss those very interesting issues. However, in this series we would like to pay your attention to what the counsels may (and in some cases what they must) do after the arbitration process is initiated. In some cases we will illustrate our comments with the practice of particular arbitration institutions and arbitration rules. We will focus not only on the issues related to the strategy and tactics in international arbitration, but also on ethical rules and codes of conduct, since there are a lot of rules for arbitrators, but few for parties and their counsels.