LAW FIRM DIRECTORY

International Arbitration

Friendly contribution

With adoption of new procedural legislation, Ukraine, de jure, became friendlier to arbitration institutions. The adoption of a new version of the Rules of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of Ukraine also contributed to promoting arbitrability. In view of the global trend of rising demand for alternative dispute resolution, the forecast for the Ukrainian arbitration community is a quite optimistic one

VITALY DUDIN

This year, Ukraine was one of the most active newsmakers on the international arbitration stage. The issue here is both high-profile processes in commercial and investment arbitrations, and legislative changes aimed at improving the situation with the promotion of international arbitration by state courts.

Changes made to the Commercial Procedural Code and the Civil Procedure Code (CPC) of Ukraine remove barriers to the implementation of arbitration awards. Experts enthusiastically accepted those provisions enabling obtaining a court ruling on the security measures in support of arbitration proceedings and assistance in collecting evidence. Previously, there were gaps in these issues. The complexity of the process of voluntary execution by the debtors of an arbitration award in virtue of currency regulation was not conductive to the achievement of positive results. The legislation is now slightly inferior to international standards.

In general, reformers set the task of "reconciling" arbitration with state courts, because it was believed that domestic judges were very much inclined to formalism. Cases when the highest judicial instances were strict in writing the names of arbitration centers became the talk of the town. Now, lawyers can focus on more substantive nuances than the spelling features of foreign words.

Practice in this area become more predictable, and unnecessary barriers in the execution of foreign arbitrations rulings are disappearing. The International Commercial Arbitration Court at the Chamber of Commerce and Industry of Ukraine (ICAC at the CCI of Ukraine), which is a domestic arbitration institution, is  not standing on the sidelines. Experts noted recently that this institution has become friendlier to parties to proceedings both in the process and in communication in general. Efforts to enlist users of arbitration to use the best marketing approaches are also notable.

Amendment to the Rules of ICAC at the CCI of Ukraine had a positive effect on the development of arbitration practice in 2018. The developers of new rules did not set themselves the task of significantly simplifying the arbitration proceeding, since in order to objectively resolve a dispute, it is necessary to thoroughly and fully investigate all circumstances of the case, and provide the parties with equal opportunities for them to confirm their position. This was stated in comments by Zoya Litvinenko, Secretary General of the ICAC at the CCI of Ukraine. "New ICAC Rules, which came into force on January 1, 2018, provide a faster and more efficient resolution of disputes, in particular, by introducing the compact arbitration procedure, providing opportunities for oral hearings and hearing of witnesses or experts using conference call systems, holding organizational meetings and approving the procedural timetable of a case. In this case, submission of documents in electronic form became the norm. Also, in the Rules, the issue of procedural succession in arbitration was resolved, which was perceived positively by arbitrators and parties", Zoya Litvinenko said. If the parties fail to agree on the number of arbitrators, the chairman of the ICAC at the CCI of Ukraine has the right to decide that the dispute shall be resolved by the sole arbitrator, on the basis of the complexity of the case, price of the claim and other circumstances. This innovation helps to reduce arbitration costs by 20 % and consider the dispute more quickly, because it reduces the time for forming the composition of arbitration, agreeing the date of oral hearing of the case and the period of delivery of the arbitration award. Describing other advantages, Zoya Litvinenko drew attention to the introduction of a new stage of proceedings — verification of the draft arbitration award by the Secretary General. This should increase the level of enforceability of arbitration awards.

Zoya Litvinenko is positive about the legislative innovations tested in practice. "Introduction to the new CPC of Ukraine of efficient mechanisms for fulfillment of supervisory functions by the courts and, most importantly, for promoting international commercial arbitration, is the main tool of pro-arbitration state policy", she said. In turn, the composition of the arbitration tribunal was able to consider disputes related to Ukraine even more fully and efficiently due to the introduction of a clear and predictable procedure for obtaining assistance from state courts. Today, a party to the arbitration proceedings may apply for measures to secure a claim. At the request of the ICAC or a party to the arbitration, the court may request or examine the evidence, interrogate a witness, etc."

What are the most landmark awards in the area of arbitration in 2018? According to Zoya Litvinenko, it is the award in the "Everest Estate LLC et al. v. the Russian Federation" case, dated May 2, 2018. This is the first award of international arbitration relating to the expropriation of property due to the annexation of Crimea. "The award has already become a precedent, since the tribunal recognized the possibility of protecting investments in the occupied territories and also interpreted the term 'territory' contained in the Agreement between the Government of the Russian Federation and the Cabinet of Ministers of Ukraine on the Promotion and Mutual Protection of Investments, taking into consideration that it also covers the territory under efficient state control, even if that state controls it in violation of international law. On September 25, 2018, the Kyiv Court of Appeal recognized and gave permission to execute this arbitration award", the representative of the ICAC at the CCI of Ukraine said.

Consideration of a large number of arbitration disputes involving Ukraine and Ukrainian companies will continue in 2019, so we are heading for a very interesting year.

 

PRACTICE LEADERS. INTERNATIONAL ARBITRATION

LEADING FIRMS

1

 

Sayenko Kharenko

 

2

 

Integrites

 

3

 

Arzinger

 

4

 

Aequo

 

5

 

Eterna Law

 

LEADING INDIVIDUALS

1

 

Olena Perepelynska (INTEGRITES)

 

2

 

Markian Malskyy (Arzinger)

 

3

 

Irina Nazarova (ENGARDE)

 

4

 

Eugene Blinov (Eterna Law)

 

5

 

Pavlo Byelousov (AEQUO)

 

OTHER ESTABLISHED PRACTICES

AGA Partners

 

ARBITRADE

 

Asters

 

CMS Cameron McKenna Nabarro Olswang

 

ENGARDE

 

Kinstellar

 

Lexwell & Partners

 

Marchenko Danevych

 

Vasil Kisil & Partners

 

Ilyashev & Partners

 

AUTHORITIES

Tatyana Slipachuk (Sayenko Kharenko)

 

Sergei Voitovich (Grischenko & Partners)

 

OTHER NOTABLE PRACTITIONERS

Oleg Alyoshin (Vasil Kisil & Partners)

 

Oleh Beketov (Eterna Law)

 

Yulia Chernykh (ARBITRADE)

 

Olexander Droug (Sayenko Kharenko)

 

Sergiy Gryshko (Redcliffe Partners)

 

Oksana Karel (Arzinger)

 

Ivan Kasynyuk (AGA Partners)

 

Kostiantyn Likarchuk (Kinstellar)

 

Oleh Marchenko (Marchenko Danevych)

 

Roman Marchenko (Ilyashev & Partners)

 

Dmytro Marchukov (INTEGRITES)

 

Olexander Martinenko (CMS Cameron McKenna Nabarro Olswang)

 

Yaroslav Petrov (Asters)

 

Aminat Suleymanova (AGA Partners)

 

Serhii Uvarov (INTEGRITES)