LAW FIRM DIRECTORY

International Arbitration

Appeal for moderation

The arbitration climate in our country can be described as moderate: pro-arbitration legislation is generally enforced in an ambiguous way. If we are to change the situation, we need to update laws and put an end to the formal approaches in the work of courts to assisting arbitration. International trends that affect the arbitration practice will consist of the specialization and strengthening of the role of "soft law"

VITALY DUDIN

International arbitration is one of the most dynamic legal domains, which makes the rights of Ukrainian and foreign lawyers equal. Although arbitration has been considered a more flexible instrument of dispute consideration, today public recognition is given to the principles of inadmissibility of conflict of interests and transparency procedures instead of confidentiality, especially in disputes between states and investors.

"Soft law", especially such sources of law as recommendations developed by international jurisdictions, is becoming more and more effective. Experts lack agreement in their assessment of the significance of these acts: some believe that these documents promote globalization of arbitration (the differences between the platforms are becoming less significant), while others see quite the opposite (unhealthy competition appears between arbitration institutions). The greatest efforts have been made by the International Bar Association (IBA). The Rules on the Taking of Evidence, Guidelines on Party Representation and Guidelines on Conflicts of Interests and others are among the most important acts by this organization.

 Quality and expectations

Today, legal firms specializing in arbitration make up a relatively narrow market segment. However, market representatives are sure that Ukrainian lawyers can represent clients in any circumstances with different arbitration rules just as well as their Western colleagues.

Clients claim that after receiving fees for winning cases, lawyers are no longer interested in the future of the decision. Therefore, companies providing "a full range of services" will be treated in a special way.

Third party funding, for example banks and shareholders, is becoming more and more part of international practices. A trend towards "buying lawsuits" is being observed. Appealing to this experience, our lawyers can persuade clients who do not have sufficient funds of the expediency of applying to arbitration.

State interest

State work is traditionally trendy. However, lawyers still face some problems, mainly of a  financial nature. State procurement processes bureaucratize this procedure. The fee being limited by the annual financial plan instead of payment for the entire project adds some unpredictability, and payment of costs for the examination in "one package" with the fee does not improve the quality of work.

The number of bilateral foreign investment protection agreements concluded is falling year on by year, while the number of arbitration disputes is growing throughout the world. Currently, Ukraine has concluded 72 foreign investment protection agreements. According to Maksim Kodunov, the Head of the Department for representation of state interests in foreign jurisdictional authorities of the Ministry of Justice, there is a tendency for investors to file more lawsuits against their own states. Foreign investors are generally understood as Ukrainian beneficiaries structuring business through other jurisdictions.

Courts and specialization

More active participation on the part of developing countries in international transactions has resulted in the transfer of disputes from traditional international arbitration centers, such as the London Court of International Arbitration (LCIA) and the Stockholm Arbitration Court, to the Middle East and Far East. More and more cases are now being  considered by the Singapore International Arbitration Center (SIAC), the Dubai International Arbitration Center (DIAC) and the China International Economic and Trade Arbitration Commission (CIETAC). The LCIA is unlikely to let its crown slip, but the competition, including against new courts, will escalate. Due to what are these arbitration centres competing at the present time? The number of arbitrators and legal advisors seeking specialization is on the rise. Clients require them to be knowledgeable about their own business, not merely general procedures. Arbitration centres specializing in considering cases related to energy development, natural resources, the financial sector, telecommunications and intellectual property (the number of recent disputes is still small, but it is growing) are  opening.

In the context of investment arbitration, the remarkable thing is that the International Centre for Settlement of Investment Disputes (ISCID) considered 52 cases in 2015, which is a record number in the 40 years of the institution’s history. Most cases are related to energy.

Countries of Eastern Europe and post-Soviet countries are thought to prefer their commercial disputes to be considered in Stockholm. A reminder that it is the Stockholm Arbitration Court which is considering the dispute between NJSC Naftogaz of Ukraine and PJSC Gazprom (experts say that the case may be decided in 2017).

The number of disputes considered by the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry is increasing. This is evidenced by the increased number of legal actions. The peak indicator over the entire history of the Ukrainian Chamber of Commerce and Industry was recorded in 2015. The remarkable thing is that two companies changed the arbitration clause and chose their cases to be considered not in London, but in the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry, the chairman of this arbitration centre in question, Mykola Selyvon, has said.

Overcoming formalism

The current Law of Ukraine “On International Commercial Arbitration” is based on the UNCITRAL typical law of 1985. Arbitration legislation has been reformed in many countries recently, which is not the case in Ukraine. Nevertheless, there is some law-drafting activity, as Parliament registered draft bill No. 4351 “On the Introduction of Amendments to Certain Legislative Acts of Ukraine on the Matters of Judicial Control and Support of the International Commercial Arbitration,” which was drafted with the participation of representatives of the arbitration community. The Council on the Matters of Judicial Reform presented its drafts for the purpose of renewal of procedural legislation. The most anticipated changes are that the courts should help arbitrators in the collection of evidence and settling  of "counter collateral".

 

International Arbitration

Leading FIRMS

 

1

 

Sayenko Kharenko

 

2

 

Arzinger

 

3

 

1.

Egorov Puginsky Afanasiev & Partners Ukraine

 

4

 

ARBITRADE

 

5

 

Integrites

 

Authorities

 

Sergei VOITOVICH

( Grischenko & Partners)

 

Serhii SVIRIBA

( Egorov Puginsky Afanasiev & Partners Ukraine)

 

Leading INDIVIDUALS

 

1

 

Tatyana SLIPACHUK

(Sayenko Kharenko)

 

2

 

Markian MALSKYY

(Arzinger)

 

3

 

Markiyan Kliuchkovskyi

( Egorov Puginsky Afanasiev & Partners Ukraine)

 

4

 

Yulia Chernykh

(ARBITRADE)

 

5

 

Oleh BEKETOV

(ETERNA LAW)

 

OTHER NOTABLE PRACTITIONERS

 

Oleg ALYOSHIN

( Vasil Kisil & Partners)

 

Eugene BLINOV

(ETERNA LAW)

 

Pavlo Byelousov

(AEQUO)

 

Vsevolod VOLKOV

(Integrites)

 

Sergiy GRYSHKO

(Redcliffe Partners)

 

Ivan KASYNYUK

(AGA Partners)

 

Roman MARCHENKO

( Ilyashev & Partners)

 

Dmytro MARCHUKOV

(Avellum)

 

Olexander MARTINENKO

(CMS Cameron McKenna)

 

Irina Nazarova

(ENGARDE)

 

Olena PEREPELYNSKA

(Integrites)

 

Yaroslav PETROV

(Asters)

 

Anton SOTIR

(GoldenGate)

 

Aminat SULEYMANOVA

(AGA Partners)

 

Ihor SIUSEL

(Baker & McKenzie)

 

Dmytro SHEMELIN