Arbitral proceedings in the Ukraine

16 Авг

В статье рассматривается украинская юрисдикция с точки зрения арбитража (третейского суда). Приводится украинское право, содержащее нормы, регулирующие арбитражный процесс, причем особое внимание уделяется авторами международному коммерческому арбитражу. Значительное внимание авторы уделяют также арбитражному соглашению, трибуналу, арбитражному производству, издержкам, арбитражному решению.

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Legal framework

National arbitration laws
What legislation applies to arbitration in your jurisdiction?

Separate legal regimes govern international and domestic arbitration. The Law on International Commercial Arbitration applies to international commercial proceedings where the seat of arbitration is in Ukraine. However, the law’s provisions on the arbitration agreement, substantive claims before the court, interim measures awarded by the court and the recognition and enforcement of arbitration awards have mandatory application, irrespective of the seat of arbitration. International treaties which Ukraine has ratified also govern international arbitration and prevail over domestic legislation.

Domestic arbitration is governed by the Law on Courts of Arbitration, which aims to facilitate the resolution of commercial and civil disputes between Ukrainian residents.

Mandatory laws
Are there any mandatory laws?

The Law on International Commercial Arbitration and the Law on Courts of Arbitration are mandatory in Ukraine. They are complemented by the Civil Procedure Code, which regulates, among other things, the procedure for recognition and enforcement of foreign court decisions (including foreign arbitral awards), and the Law on Private International Law.

International treaties are subject to ratification through the adoption of respective laws, which are also mandatory.

New York Convention
Is your country a signatory to the New York Convention? If so, what is the date of entry into force?

Ukraine is a party to the New York Convention, which entered into force on January 8 1961.

Are there any reservations to the general obligations of the convention?

Reservation on the basis of reciprocity is effective for Ukraine. Thus, Ukraine is obliged to recognise and enforce only awards made in countries that have also ratified the New York Convention.

Treaties and conventions
What other treaties and conventions in relation to arbitration is your jurisdiction party to?

Other international treaties to which Ukraine is a party include the European Convention on International Commercial Arbitration (April 21 1961) and the Treaty on Settlement of Commercial Disputes (March 20 1992).

Ukraine is also a signatory to 68 bilateral investment treaties for the promotion and reciprocal protection of investments. It is further a signatory to the following multilateral investment treaties:

  • the Convention on the Settlement of Investment Disputes between States and Nationals of Other States 1965 (Washington Convention), ratified on March 16 2000; and
  • the Energy Charter Treaty 1994, ratified on January 27 1999.

UNCITRAL
Has your jurisdiction adopted the UNCITRAL Model Law?

Yes — the Law on International Commercial Arbitration is based on the UNCITRAL Model Law.

Reform
Are there any impending plans to reform the arbitration laws in your jurisdiction?

Ukraine has not implemented the 2006 amendments to the UNCITRAL Model Law. However, there have been several attempts at reform, led by the Ukrainian professional community. These have targeted issues such as interim measures and court assistance in the collection of evidence. For instance, Draft Law 3366 on Amending Certain Legislative Acts (Regarding Interim Measures In Support Of Arbitration) provides for revisions to the Civil Procedure Code that would allow the Ukrainian courts to grant interim measures in support of arbitration.

Arbitration agreements

Validity
What are the validity requirements for an arbitration agreement?

Generally, an arbitration agreement should satisfy the validity requirements set out in the Law on International Commercial Arbitration and the requirements stipulated in the Civil Code. It is essential that the arbitration agreement be in writing and include the parties’ express consent to submit specific disputes to arbitration.

The general requirements for the validity of agreements set out in the Civil Code include the following:

  • The agreement must not contradict provisions of Ukrainian law;
  • The parties to the agreement must be legally capable of entering into the agreement; and
  • The agreement must result from the free exercise of the parties’ choice.

Court practice indicates that the arbitration agreement should also specify the full name of arbitration institution and the range of disputes that the parties have agreed to submit to arbitration. Parties should take care to comply precisely with these requirements, since in some cases the Ukrainian courts have invalidated arbitration agreements merely on the basis of a misspelling in the name of the arbitration institution. Parties should also indicate in the arbitration agreement the law governing the dispute, the procedure for appointing the arbitrator(s) and the seat and language of the arbitration.

Enforcement of agreements
How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements?

The court must stay proceedings upon the request of a party where the latter can demonstrate the existence of a binding valid arbitration agreement.

In the past, the Ukrainian courts’ treatment of arbitration agreements has proved controversial. However, recent developments at the country’s higher judicial institutions indicate that where the court is satisfied that the arbitration agreement is valid and covers the relevant dispute, it will terminate court proceedings at the request of a party.

Consolidation
Can an arbitral tribunal with its seat in your jurisdiction consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?

The consolidation of proceedings is not addressed in either the Law on International Commercial Arbitration or the Rules of the International Commercial Arbitration Court (ICAC). With regard to multi-claim arbitration, the ICAC Rules set forth that where a statement of claim contains demands arising from several contracts, it will be accepted for arbitration, provided that there are arbitration agreements covering all respective claims and enforcement of the arbitral award under separate claims would be impossible or unreasonable. Otherwise, the ICAC will propose that the claimant separate its claims.

Choice of law
How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?

The Law on Private International Law allows the parties to a contract with a foreign element to choose the law applicable to the contract or its parts. If an international treaty stipulates the substantive law governing the parties’ relationship, the parties should not determine the substantive law by themselves. The substantive law chosen excludes the conflict of laws provisions of the relevant jurisdiction.

In the absence of an agreement on the applicable law, the tribunal will apply the law that is most closely connected to the parties’ relationship, based on conflict of law provisions, among other things.

Separability
Are there any provisions on the separability of arbitration agreements?

The Law on International Commercial Arbitration provides that an arbitration clause which forms part of a contract shall be treated as independent from the other terms of the contract. Invalidation of the contract will not in itself invalidate the arbitration clause stipulated therein.

Multiparty agreements
Are multiparty agreements recognised?

Ukrainian law has no express prohibitions against multi-party arbitration and the Law on International Commercial Arbitration has no provisions that particularly address multi-party agreements. Therefore, the general requirements for bilateral arbitration agreements should apply to multi-party arbitration agreements.

Arbitral tribunal

Criteria for arbitrators
Are there any restrictions?

Ukrainian legislation imposes no express restrictions on who can act as an arbitrator, save to provide that arbitrators must be independent and impartial. In other words, no one will be precluded from acting as an arbitrator due to his or her nationality or expertise, unless the parties have agreed otherwise. The parties may further agree on requirements regarding the arbitrators’ qualifications.

Contractual stipulations
What can be stipulated about the tribunal in the agreement?

The parties to the agreement are free to agree on the number of arbitrators, the specific qualifications of the arbitrators and the procedure for appointing and replacing the arbitrators.

Default requirements
Are there any default legal requirements as to the selection of a tribunal — for example, concerning the number of arbitrators or their characteristics?

The default rules of the arbitration institution chosen by the parties shall apply. The Rules of the International Commercial Arbitration Court provide that if the parties fail to appoint the arbitrators, the arbitrators can be appointed by the president of the Chamber of Commerce and Industry, with due regard to the requirements of independence and impartiality, as well as any requirements on the qualifications of the arbitrators that have been agreed by the parties.

Challenging the appointment of an arbitrator
Can the appointment of an arbitrator be challenged? Can an arbitrator be disqualified? What is the procedure for this?

If an arbitrator does not satisfy the criteria for the appointment of an arbitrator (including any required qualifications), the appointment can be challenged. The appointment of an arbitrator may further be challenged based on the existence of justifiable doubts as to his impartiality or independence.

Either party may challenge the appointment of an arbitrator(s) within 15 days of being notified of the constitution of the tribunal or becoming aware of the circumstances that allegedly give rise to doubts as to his impartiality or independence. If the tribunal rejects the challenge, the challenging party has 30 days from receipt of this decision to request the president of the Chamber of Commerce and Industry to rule on the challenge. The president’s decision is final.

Jurisdictional objections
How should an objection to jurisdiction be raised?

A plea that the tribunal does not have jurisdiction must be raised by no later than submission of the statement of defence. The possibility to make such a plea does not depend on whether the relevant party participated in the arbitrators’ appointment. Similarly, any objection based on an allegation that the tribunal acted in excess of its jurisdiction should be raised as soon as the facts underpinning such an objection arise in the course of the proceedings. The tribunal may rule on the challenge to its jurisdiction either as a preliminary issue (through an interim order on jurisdiction) or as part of its final award.

Replacement of an arbitrator
Why and how can an arbitrator be replaced?

The parties are free to decide on the procedure for the replacement of an arbitrator; otherwise, the rules of the arbitration institution chosen will apply. Where the arbitrator’s mandate is terminated on the grounds of legal or physical inability to perform his functions, the arbitrator will be replaced using the same procedure as for his appointment.

Powers and obligations
What powers and obligations do arbitrators have?

The tribunal is entitled to conduct the arbitration proceedings in the manner it deems appropriate, unless the parties have determined the procedure, and as long as the principle of due process is observed.

Liability of arbitrators
Are arbitrators immune from liability?

The Law on International Commercial Arbitration is silent on arbitrators’ liability for breach of their duties.

Communicating with the tribunal
How do the parties communicate with the tribunal?

Ukrainian law contains no provisions in this regard; thus, the parties are free to agree on how they will communicate with the tribunal. The general rule is that notifications during arbitration should be communicated in writing with notification of all parties.

Reaching decisions
Is unanimous agreement of the tribunal required? If there is disagreement, does the will of the majority suffice? What are the implications of this?

Unanimous agreement is not required, unless the parties have agreed otherwise. The Law on International Commercial Arbitration provides that in arbitration proceedings with more than one arbitrator, any decision of the tribunal shall be made by a majority of all its members.

Arbitrability
Are there any disputes incapable of being referred to arbitration?

The Civil Procedure Code and the Commercial Procedure Code provide that the following disputes fall within the exclusive jurisdiction of the Ukrainian courts:

  • disputes involving real estate located in Ukraine;
  • disputes involving the registration of IP rights;
  • corporate disputes involving Ukrainian legal entities; and
  • disputes arising from public procurement contracts.

Some scholars and practitioners also consider that provisions of the Law on Private International Law on the exclusive jurisdiction of courts further restrict the arbitrability disputes. These additionally include disputes relating to:

  • the registration or liquidation of legal entities or individual entrepreneurs in Ukraine;
  • the bankruptcy of Ukrainian entities;
  • the issue or cancellation of securities in Ukraine; and
  • the validity of entries in the Ukrainian state registries.

However, there is no consensus on this matter.

Can the arbitrability of a dispute be challenged?

The arbitrability of a dispute may be successfully challenged if the court finds that the subject matter of the dispute is not arbitrable under Ukrainian law.

Jurisdiction and competence-competence
Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?

The tribunal is competent to rule on its own jurisdiction (including on issues relating to the existence or validity of the arbitration agreement). If the tribunal determines the issue of jurisdiction by way of an interim order, either party may challenge this order before the competent national court within 30 days of receipt.

Arbitral proceedings

Starting an arbitration proceeding
What is needed to commence arbitration?

According to the Rules of the International Commercial Arbitration Court (ICAC), the party seeking to commence the arbitration proceedings must file with the ICAC a duly prepared statement of claim, together with confirmation of payment of the registration fee.

Limitation periods
Are there any limitation periods for the commencement of arbitration?

The Law on International Commercial Arbitration does not address the issue of limitation periods. Under the Civil Code, the general limitation period is three years as from the date on which the party commencing the proceedings becomes aware of or ought to have become aware of the violation of its rights.

Procedural rules
Are there any procedural rules that arbitrators must follow?

The tribunal has a significant degree of discretion when it comes to procedure. The Law on International Commercial Arbitration provides that questions of procedure may be decided by the chairman if he is so authorised by the parties or by all members of the tribunal. However, in all cases the tribunal remains bound by due process requirements.

Dissenting arbitrators
Are dissenting opinions permitted under the law of your jurisdiction?

Dissenting opinions are admissible. Any arbitrator who disagrees with the award may express his dissenting opinion in writing, which shall be attached to the award.

Judicial assistance
Can local courts intervene in proceedings?

The Law on International Commercial Arbitration prohibits the courts from intervening in arbitration proceedings, except to rule on:

  • the jurisdiction of the tribunal; and
  • applications to set aside awards.

The Law on International Commercial Arbitration allows the tribunal or a party to the dispute to apply to the courts for assistance in the collection of evidence and the imposition of interim measures. However, the Civil Procedural Code and the Commercial Procedural Code include no procedures in this regard.

Can the local courts assist in choosing arbitrators?

The Law on International Commercial Arbitration does not empower the courts to assist in choosing arbitrators.

What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can they compel parties to arbitrate? Can they issue subpoenas to third parties?
Ukraine Asters

Court practice on the recognition and enforcement of arbitration awards confirms that a respondent’s failure to participate in the arbitration shall not affect the validity of the award, unless the respondent was not duly notified of the proceedings or was otherwise unable to defend its position before the tribunal.

The Rules of the International Commercial Arbitration Court allow third parties to join the proceedings, with the consent of all parties. The local courts cannot issue subpoenas.

Third parties
In what instances can third parties be bound by an arbitration agreement or award?

Ukrainian law does not specify whether the arbitration agreement can be extended to bind third parties. Generally, the arbitration agreement is considered binding only on the parties thereto. However, a third party may be bound by the tribunal’s decision if both the third party and the parties to the dispute consent in writing to it joining the proceedings.

Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?

Unless the parties have agreed otherwise, the place of arbitration shall be determined by the tribunal, taking into account the circumstances of the case and the interests of the parties.

Gathering evidence
How is evidence obtained by the tribunal?
third parties
The parties to the dispute bear the burden of providing evidence. The tribunal can also request either party to provide evidence. The tribunal or a party may further apply to the courts for assistance in gathering evidence. Otherwise, neither the Civil Procedure Code nor the Commercial Procedure Code sets out procedures on gathering evidence in arbitration proceedings.

What kinds of evidence are acceptable?

As a general rule, acceptable evidence is any evidence with evidentiary force that relates to the matter at dispute, including documents, witness testimony, expert conclusions, the results of inspections and so on. All documentation should be communicated to the tribunal in original or certified copy. The tribunal can request that a party provide a translation of any documents submitted.

Confidentiality
Is confidentiality ensured?

As a general rule, proceedings in the International Commercial Arbitration Court are confidential and awards should not be made public without the specific agreement of the parties.

Can information in arbitral proceedings be disclosed in subsequent proceedings?

There are no restrictions on the disclosure of information in subsequent proceedings.

Ethical codes
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

There are no specific standards or ethical codes for arbitrators or counsel participating in arbitration proceedings in Ukraine.

Costs

Estimation & allocation
How are the costs of arbitration proceedings estimated and allocated?

The Law on International Commercial Arbitration does not regulate the allocation of costs of arbitration proceedings.

The Rules of the International Commercial Arbitration Court stipulate that costs will be allocated to the party against which the award is made, unless the parties have agreed otherwise. If the claims are granted in part, the costs will be allocated to the respondent in proportion to the amount of claims granted, with the claimant paying the remainder.

The International Commercial Arbitration Court schedule on arbitration fees and costs provides for the payment of:

  • a registration fee, fixed at $600;
  • an arbitration fee (includes the arbitrators’ fees and an administration fee), the amount of which will depend on whether the claim is proprietary and, if so, the amount of the arbitration fee will depend on the value of the claim; and
  • additional costs of the proceedings (eg, expenses for expert examination, translations, arbitrators’ travel expenses).

Security for costs
Can the national court or tribunal order security for costs under the law in your jurisdiction?

Under Ukrainian law, the national courts are not allowed to order security for costs. As regards tribunals, the arbitration fees in International Commercial Arbitration Court proceedings must be paid in advance.

The award

Requirements
What legal requirements are there for recognition of an award? Must reasons be given for the award? Does the award need to be reviewed by any other body?

According to the Law on International Commercial Arbitration, the award shall be rendered in writing and be duly signed by the sole arbitrator or arbitrators. The signatures of the majority of members shall suffice, provided that the reason for any signature omitted is stated. The award must further state:

  • the reasons on which it is based;
  • the date and seat of arbitration;
  • the arbitrators’ conclusions on whether the claims will be granted or dismissed; and
  • the costs of the proceedings and their allocation between the parties.

Additionally, the Rules of the International Commercial Arbitration Court (ICAC) require that the award include:

  • the name of the ICAC;
  • the case registration number;
  • the full names of the arbitrators;
  • the names of the parties in dispute and other persons participating in the proceedings; and
  • the subject matter of the dispute.

Reasons must be given for the award.

The award need not be reviewed by any other body.

Timeframe for delivery
Are there any time limits on delivery of the award?

The Rules of the International Commercial Arbitration Court (ICAC) give the tribunal six months to reach its decision, which begins from the moment the tribunal is constituted. The president of the ICAC may extend this period upon reasoned request from the tribunal or one of the parties.

Remedies
Does the law impose limits on the available remedies? Are some remedies not enforceable by the court?

There are no limits on remedies, except that they should comply with the substantive law and public policy of Ukraine. The Ukrainian State Enforcement Service has limited possibilities to enforce awards that prescribe specific performance.

Since only final awards can be enforced, the courts consider that injunctions do not satisfy this requirement. For the same reason, awards containing formulae for calculating the final amount due cannot be enforced. Punitive damages may be treated as incompatible with public order by the Ukrainian courts and thus unenforceable.

What interim measures are available? Will local courts issue interim measures pending constitution of the tribunal?

The Law on International Commercial Arbitration provides for the possibility to apply to local courts for interim measures; however, the procedural codes contain no provisions on the respective procedures.

Interest
Can interest be awarded?

Interest may be awarded if the law applicable to the dispute so allows.

At what rate?

The Civil Code provides for payment of interest at an annual rate of 3%, although the parties may agree on other applicable rates in a contract.

Finality
Is the award final and binding?

In accordance with the Rules of the International Commercial Arbitration Court (ICAC), an award rendered by the ICAC is final and binding on the parties from the date of issue.

What if there are any mistakes?

Having first notified the other party, a party may request the tribunal to correct any mistakes in the award or interpret its provisions. The tribunal also has the authority to do so at its own discretion.

Can the parties exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?

The Law on International Commercial Arbitration does not allow the parties to exclude the list of grounds for appeal by virtue of the arbitration agreement.

Appeal
On what grounds can parties appeal an award?

Article 34 of the Law on International Commercial Arbitration contains the following exhaustive list of grounds for setting aside an arbitral award, which mirrors that included in the UNCITRAL Model Law:

  • incapacity of a party to the arbitration agreement;
  • invalidity of the arbitration agreement;
  • inability of a party to present its case due to failure to notify it of the appointment of an arbitrator or the commencement of arbitration proceedings;
  • the dispute not falling within the scope of the arbitration agreement;
  • violation of a procedure that has been agreed by the parties or is prescribed by law;
  • violation of the parties’ agreement on the composition of the tribunal;
  • non-arbitrability of the dispute; and
  • conflict with Ukrainian public policy.

What is the procedure for challenging awards?

The party seeking to have the award vacated must file the respective application with the court of first instance within 30 days of receipt of the award. The procedural codes of Ukraine allow for appeal (and cassation appeal) of the first-instance decision.

Enforcement
What steps can be taken to enforce the award if there is a failure to comply?

Provided that there are no grounds to refuse recognition and enforcement, the arbitral award can undergo exequatur on the application of the interested party. This application should be made within three years of the award’s entry into force, unless an applicable international treaty specifies a different period. The applicant should provide the court with the original or a certified copy of the award and the arbitration agreement, and a certified translation into Ukrainian or Russian if the documents are in a foreign language.

Can awards be enforced in local courts?

The general courts are competent to hear applications for the recognition and enforcement of arbitral awards. The application should be submitted to the court of first instance of the place where the debtor under the award, or its property to be foreclosed, is located.

How enforceable is the award internationally?

The respective laws of the jurisdiction in which enforcement is attempted will govern this issue.

To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

If the parties have previously agreed to resolve their disputes through arbitration, a defence on the grounds of sovereign immunity cannot be successfully invoked. However, court practice confirms that where a dispute arises from a public procurement contract (and is thus non-arbitrable), the courts will refuse to enforce the award.

Are there any other bases on which an award may be challenged, and if so, by what?

Further to the opinion of the Supreme Court (which is binding on the lower courts), where there is an international treaty governing recognition and enforcement, only the requirements for refusal of recognition and enforcement stipulated in that treaty apply. The grounds for refusal stipulated in the Civil Procedural Code of Ukraine will apply in the absence of respective grounds for refusal in international treaties.

These grounds include the following:

  • A Ukrainian court decision has been issued in an identical dispute (or Ukrainian court proceedings regarding an identical dispute have commenced prior to the commencement of arbitration);
  • The subject matter of the dispute cannot be subject to court proceedings; or
  • Enforcement of the award would threaten the interests of Ukraine.

How enforceable are foreign arbitral awards in your jurisdiction?

Irrespective of the seat of arbitration, arbitral awards are enforceable in Ukraine provided that there are no grounds to refuse recognition and enforcement pursuant to the applicable law and international treaties.

Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?

No.

Third-party funding

Rules and restrictions
Are there rules or restrictions on third-party funders?

Ukrainian law does not regulate third-party funding; therefore, the general provisions of Ukrainian law will govern this matter.

Class-action or group arbitration

Concept
Is there a concept in your jurisdiction providing for class-action arbitration or group arbitration? If so, are there any limitations to the arbitrability of such claims or requirements that must be met before such claims may be arbitrated?

The concept of class-action arbitration is not recognised in Ukraine. There are no specific regulations or restrictions in this regard. The tribunal and domestic courts should apply general rules to determine the availability of such proceedings.

Hot topics

Emerging trends
Are there any hot topics or trends emerging in arbitration in your jurisdiction?

Ukraine is amending its legislation in order to afford effective mechanisms for the granting of interim measures by domestic courts.

Авторы: Yaroslav Petrov, Anna Tkachova

Источник: http://www.lexology.com/library/detail.aspx?g=04981391-c669-4f81-a3b8-8cb3f0c0eaf0