В статье рассматриваются вопросы, связанные с толкованием и применением украинскими судами правил, свойственных дружественной арбитражу юрисдикции, в частности, законодательство, регулирующее отношения по поводу международного (иностранного) арбитража, причем авторы отмечают, что, украинское законодательство, вообще-то, соответствует критериям дружественной арбитражу юрисдикции, но его толкование и применение украинскими судами в некоторых случаях является довольно сомнительным. Особое внимание посвящается судебной практике в следующих отношениях: 1) рассмотрение заявлений об отсутствии юрисдикции у арбитражного трибунала; 2) признание и приведение в исполнение арбитражного решения; 3) отмена арбитражного решения, вынесенного в Украине; 4) применение обеспечительных мер в поддержку арбитражного процесса; 5) помощь в обеспечении доказательств; 6) исполнение арбитражного соглашения, когда одна из сторон спора передала его на рассмотрение государственного суда.
“…Just as no man or woman is an island, so no system of dispute resolution can exist in a vacuum”, —
Julian D M. Lew1
Arbitration is perceived to be the fast and efficient method of disputes resolution. Since it is based on the consent of parties, this method also gives more autonomy and flexibility to the parties during the course of proceedings. Due to its advantages, arbitration has gained wide acceptance as the preferred method of dispute resolution, especially in international transactions where none of the parties wants to be subject to the other party’s national court system.
Given the above recognition of arbitration, almost all civilized jurisdictions expend all reasonable endeavors to encourage international arbitration by adopting the so-called “arbitration-friendly” rules, providing for the support of international arbitration proceedings by national courts, on one hand, and limiting their involvement in said proceedings, on the other.
Ukraine is no exception to the above general rule, but it has its own features in understanding and applying arbitration principles and rules by national courts.
Ukrainian legislation on international arbitration
The main rules governing international arbitration are provided in the 1994 On International Commercial Arbitration Act of Ukraine (ICA Act). Some other rules concerning international arbitration are also found in the Civil Procedural Code of Ukraine, the Enforcement Proceedings Act and the Private International Law Act.
Furthermore, as regards foreign arbitral awards, they can be enforced in Ukraine pursuant to international treaties, such as the 1958 UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NY Convention) and the 1961 European Convention on International Commercial Arbitration (European Convention).
Having adopted the ICA Act2 and having joined to the NY Convention and European Convention, Ukraine brought its legislation governing international arbitration in line with international standards and guarantees recognized and implemented by major European states.
However, notwithstanding the above legislative guarantees, the parties in arbitration matters may find it rather difficult to obtain any assistance from Ukrainian courts prior, during or after the arbitration proceedings. And to the contrary, the involvement of Ukrainian national courts in arbitration matters may, in practice, go far beyond the limits as they may appear. The reason for this lies in the interpretation and application of the generally arbitration-friendly legislation by national courts, which in some cases are rather controversial.
Ukrainian jurisprudence on arbitration-related matters
Having adopted most of the principles of the 1985 UNCITRAL Model Law, Ukrainian legislation provides for the following limited number of cases of the courts involvement in arbitration-related matters: (1) consideration of application on lack of jurisdiction of the arbitral tribunal, (2) recognition and enforcement of arbitral award in Ukraine, (3) setting aside the arbitral award rendered in Ukraine, (4) granting interim measures in support of arbitration proceedings, (5) assistance in taking evidence, and (6) enforcement of arbitration agreement when one of the parties has referred a dispute to a state court.
The prominent London-based arbitrator and barrister Mr. Julian D M. Lew QC compared international legal systems to forage for legitimacy, support, recognition, and effectiveness”4.
The proper role of national courts during the above “meetings” is to ensure “certainty of the parties and the arbitrators about the instances in which court supervision is to be expected seems beneficial to international commercial arbitration”5. As was stated above, it is not always the case in Ukraine.
(a) Recognition and enforcement of arbitral awards in Ukraine
In Ukraine the list of the cases where the recognition and enforcement of foreign or international arbitral award shall be refused is limited to those provided in Article V of the NY Convention, and is considered to be exhaustive. Inmost instances, Ukrainian courts properly follow these requirements and abide the limits of the courts intervention in such matters. In a number of cases the courts have expressly stated that while determining the issue of recognition and enforcement of foreign arbitral awards the courts are not allowed to involve in the analysis of the award on merits of the dispute6.
The Ruling of the Supreme Court of Ukraine of 24 November 2010 (regarding the recognition and enforcement of the SCC award in the RosUkrEnergo AG vs Nafto-Gas Ukraine case) also shows that court practice providing for proper analysis and narrow application of the notion of public policy has developed rejecting this overused argument of the debtor. In particular, the court stated that the enforcement of the arbitral award may be refused only when such enforcement is against the rule of law of the state, its independence and unity as well as constitutional rights, liberties and guarantees7.
Furthermore, on 27 September 2012 the Superior Specialized Civil and Criminal Court of Ukraine (Superior Specialized Court) issued its letter No.10-1385 /0/4-12 providing clarifications to the lower courts on the issue of appeal to ruling on granting or refusing enforcement of the domestic arbitral awards. Pursuant to these clarifications, only the ruling on refusing enforcement of an arbitral award is subject to appeal, while the appeal to the ruling on granting the enforcement shall be returned by court of appeals.
At the same time, it should be noted that in order to apply most of the above referred exceptions to grounds for refusal the enforcement of an arbitral award (save for the arbitrability and public policy issues), they have to be invoked and proved by the party against whom the recognition of the award is sought.
As a matter of practice however, this is not always the case. Once one of the exceptions is invoked by the defendant, the burden of proof usually shifts to the party seeking the enforcement. So, in this case, an applicant will be required to prove the absence of these exceptions. For instance, the Superior Specialized Court reversed the judgments of the local court and the court of appeals and refused to grant the motion for recognition and enforcement of the arbitral award8 having reached the conclusion that no evidence was provided that the defendant was given notice of the proceedings. The court reached the above conclusion despite the fact that the defendant submitted his objections on the merits within the arbitration proceedings.
This position of Ukrainian courts may lead to unreasonable practice obliging the party seeking the arbitral award enforcement to present all available proof that none of the exceptions exist.
(b) Setting aside arbitral awards rendered in Ukraine
Notwithstanding that the grounds for setting aside an award are almost the same as the grounds for refusal in recognition and enforcement (as described above), Ukrainian jurisprudence in this matter appears to be more controversial and not uniform.
One of the recent examples is the case regarding setting aside of the award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry (ICAC) considered by the Superior Specialized Court9. The court upheld the judgments of the local and appellate courts on setting aside the award based on its findings that (1) Ukrainian version of the arbitration clause referred the parties to arbitration court at Chamber of Commerce and Industry of the city of Kiev (and not the Ukrainian Chamber of Commerce and Industry) which according to the court’s findings is a non-existent arbitral institution, and (2) the parties did not vest with the tribunal the authority to interpret the provisions of the contract, including the arbitration clause, and, thus, the award goes beyond the scope of the submission to arbitration. The court left unnoticed that the same objections of the debtor were analyzed and determined by the arbitral tribunal.
The above case illustrates the formalistic approach of Ukrainian courts and their failure to recognize such fundamental doctrine of international arbitration as the “competenz-competenz”. Under most developed national arbitration regimes, the power of an arbitral tribunal to determine its jurisdiction is presumed10.
In another case regarding setting aside of the arbitral award of the ICAC at the UCCI, the Shevchenkovskyi District Court of Kiev touched upon the evidence referred to in the arbitral award and reached the conclusion that the tribunal’s conclusions on the merits were incorrect. Proceeding from this conclusion, the court set aside the award on the basis of public policy exception11.
In this case, the local court was not only engaged in the analysis of the merits of the case considered by the arbitral tribunal, but also extended the possibility to apply public policy exception to virtually any possible disagreement with the tribunal’s findings, which according to the ICA Act shall not be permitted.
Problems similar to the above also concern cases upon applications on lack of jurisdiction of the arbitral tribunal.
(c) Interim measures in support of arbitration
As regards measures in support of international arbitration, Article 9 of the ICA Act provides that “it is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, a court to order interim measures of protection and for a court to take a decision granting such measures”. However, apart from the above provision, no procedural rules for granting interim measures in support of arbitration and no competent court are defined for such matters. Due to the absence of such a procedure as a matter of practice Ukrainian courts do not grant interim measures in support of arbitration.
However, it is now possible to obtain the interim measures at the stage of recognition and enforcement of a foreign/international arbitral award in Ukraine.
In 2012-2013 Ukrainian practitioners gave a trial of new amendments concerning interim measures as introduced by the Act of Ukraine of 22 September 2011 No. 3776-VI to Chapter VIII of the Civil Procedural Code providing for the court’s power to impose interim measures to secure enforcement of international arbitral awards. Current practice shows that Ukrainian courts are inclined to grant interim measures upon the creditors’ requests to secure enforcement of foreign and international arbitral awards12.
(d) Assistance in taking evidence
Under the ICA Act the arbitral tribunal or a party with the approval of the arbitral tribunal may request assistance in taking evidence from a competent court. However, this provision is currently unenforceable in practice due to the same reasons as with interim measures in support of arbitration13.
(e) Enforcement of arbitration agreements
According to Article 8 of the JCA Act, upon the request of the interested party the court is obliged to terminate the proceedings in the case and instruct the parties to refer the dispute to arbitration unless the arbitration agreement is invalid or cannot be enforced. Although some cases will still exist in which Ukrainian courts exercise jurisdiction over the disputes even where an agreement to arbitrate was concluded by the parties, the pro-arbitration jurisprudence (including the judgments of the highest instance courts) prevails. For example, in case No.15/130-10-3656 the Superior Commercial Court of Ukraine upheld the judgment of the court of appeals terminating the proceedings on the basis of Article 8 of the JCA Act.14
Proceeding from the above analysis of jurisprudence, the message is clear: it is not only legislation that makes a particular jurisdiction an arbitration-friendly one, but in most instances the pro-arbitration interpretation and application of such legislation by national courts. In other words, national legislation rules on arbitration are only as good as the judges considering the arbitration-related issues.
__________
Lew, Julian D M. “Does National Court Involvement Undermine the International Arbitration Processes?” American University International Law Review 24. No. 3 (2009): page 492.
Please note that the ICA Act is almost completely based on the 1985 UNCITRAL Model Law with only a few differences.
Ibid — page 493.
Ibid.
Analytical Commentary on the Draft Text of a Model Law on International Commercial Arbitration // Year Book of the UNCI-TRAL, Volume XVI. 1985. — 104, Art. 5.
Ruling of the Supreme Court of Ukraine of 21 October 2009 in case No. 6-11986cв09.
Ruling of the Supreme Court of Ukraine dated 24.11.2010 // An unofficial translation is available athttp://www.sccinstitute.com/fflearchive/3/38196/Ruling%20o№20the%20 Supreme%20Court%20of%20Ukraine%20 24%20November%202010_2.pdf
Ruling of the Superior Specialized Court of 7 December 2011 in case No. 6-34590CB11.
Ruling of the Superior Specialized Court of 13 October 2010 in case No. 6-5668cв10.
Gary B. Bom. International Commercial Arbitration. 2009, p. 865.
Ruling of the Shevchenkovskyi District Court of Kyiv of 5 October 2011 in case No. 6-196/11.
E.g, ruling of the Pecherskyi District Court of Kiev of 7 June 2013 in case No. 2-K-6/12.
Please see p. (c) above.
Ruling of the Superior Commercial Court of Ukraine of 2 February 2011 in case No. 15/130-10-3656.
Авторы:
Pavlo I. BYELOUSOV
is a senior associate I attorney at taw with Vasil Kisil & Partners
Myroslava Y. SAVCHUK
is an associate I attorney at taw with Vasil Kisil & Partners
Источник: Ukrainian Journal of Business Law. – 2013. – № 6. – Р. 18 – 20.