In early 2016 the High Specialised Court for Civil and Criminal Cases published an extensive overview of Ukrainian case law relating to the recognition, enforcement and challenge of international arbitration awards.(1) The overview has been welcomed by lawyers – especially as such an overview has not been published since 1999 – although certain interpretations and conclusions made by the court are far from controversial. This update highlights some of the key points of the overview.
At the outset of the overview (Sections 1 and 2), the High Specialised Court for Civil and Criminal Cases summarises the legislation that courts and parties should rely on when dealing with the recognition, enforcement and challenge of international arbitration awards, including:
- the Constitution;
- the Civil Procedure Code;(2)
- the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958);(3)
- the EU Convention on International Commercial Arbitration (Geneva, 1961);
- the UN Commission on International Trade Law Arbitration Rules (1976);
- the Commonwealth of Independent States Agreement on the Procedure for Dispute Resolution Connected with the Implementation of Economic Activities (Kiev, 1992);
- the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters;(4)
- the Law on International Commercial Arbitration;(5)
- the Law on Foreign Economic Activity;(6)
- the Law on International Private Law;(7)
- the Law on International Treaties;(8)
- the Law on Judicial Enforcement;(9) and
- the Instruction on the Implementation of International Treaties on Legal Assistance in Civil Matters for the Service of Documents, Obtaining Evidence and the Recognition and Enforcement of Judgments.(10)
The above list is not exhaustive, in relation to both Ukrainian legislation and international treaties to which Ukraine is a party. Among the other international treaties referred to in the overview are:
- a number of bilateral treaties on air transportation;(11)
- the Ukraine-US agreement on trade relations;(12) and
- other treaties which may limit parties' rights to refer certain disputes to arbitration or subject the dispute to a specific forum.
The High Specialised Court for Civil and Criminal Cases stresses that courts should verify whether there are any existing international treaties to which Ukraine is a party that will govern the arbitrability of certain disputes or the choice of forum, among other things, which they should do so ex officio (ie, even if no party has raised such argument before the court).(13) The High Specialised Court for Civil and Criminal Cases highlights the fact that – in accordance with the Constitution – in case of any controversy, international treaties to which Ukraine is a party will prevail over any national laws or private agreements. Consequently, the arbitration award may be set aside or its recognition and enforcement may be refused.
The second important point that the High Specialised Court for Civil and Criminal Cases makes in the overview (Section 2) is that when dealing with the recognition, enforcement and challenge of international arbitration awards, Ukrainian courts should rely on the following case law to the extent that it does not contradict the legislation in force:
- Supreme Court Plenum Resolution 12 on the Practice of Courts' Requests for Recognition and Enforcement of the Decisions of Foreign Courts and Arbitration Tribunals and the Setting Aside of the Awards Rendered within the Procedure of International Commercial Arbitration in the Territory of Ukraine;(14)
- High Specialised Court for Civil and Criminal Cases Plenum Resolution 13 on the Implementation by the Courts of the International Treaties of Ukraine in the Process of the Administration of Justice;(15)
- Constitutional Court Judgment 3-??/2004 – in cases of the official interpretation of Article 3, Item 10 of the Law on Judicial Enforcement;(16)
- Constitutional Court judgment 1p?/2008 – in cases of the conformity of Paragraph 7(11) of Article 2, Article 3, Item 9 of Article 4 and Chapter 8 ("Self-governance of domestic arbitration courts") of the Law on Domestic Arbitration Courts with the Constitution;(17) and
- other resolutions delivered by the Supreme Court when reviewing judicial decisions on civil matters in accordance with the Civil Procedure Code.
The Ukrainian legal system is based on the civil law framework. Thus, at least formally, legal precedents are not the source of law in Ukraine.(18) The purpose of publishing specific legal cases, collections and overviews is to provide guidance to the courts of lower instances and parties on the proper understanding and uniform application of the rules of substantive and procedural law in case of legislative gaps. It is understood that by listing certain previous judgments in the overview, the High Specialised Court for Civil and Criminal Cases had this same goal.
It is also understood that the list of court judgments to be taken into account when dealing with the recognition, enforcement and challenge of international arbitration awards is not exhaustive. Although not specified in the overview, some important earlier judgments can also be relied on by parties and the courts.(19)
For further information on this topic please contact Anna Kombikova at Eterna Law Group by phone (+38 044 490 7001) or email (firstname.lastname@example.org). The Eterna Law Group website can be accessed at www.eterna.law.
(1) High Specialised Court for Civil and Criminal Cases Plenum Resolution 11, December 11 2015, available in Ukrainian at www.sc.gov.ua/ua/postanovi_za_2015_rik.html.
(3) Information on reservations, declarations and communications made by Ukraine is available at www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html and www.newyorkconvention.org/news/ukraine+communication+to+the+secretary-general+of+the+united+nations+concerning+the+territorial+application+and+implementation+of+the+new+york+convention+in+ukraine.
(4) Information on reservations, declarations and notifications made by Ukraine is available at www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=426&disp=resdn.
(14) December 24 1999, available in Ukrainian at www.zakon2.rada.gov.ua/laws/show/v0012700-99.
(15) December 19 2014, available in Ukrainian at www.zakon5.rada.gov.ua/laws/show/v0013740-14.
(16) February 24 2004, available in Ukrainian at www.zakon2.rada.gov.ua/laws/show/v003p710-04.
(17) January 10 2008, available in Ukrainian at www.zakon2.rada.gov.ua/laws/show/v001p710-08.
(19) See, for example, the list of judgments available on the Ukrainian Arbitration Association website at www.arbitration.kiev.ua/en-US/Decisions/Guidelines-of-high-Ukrainian-courts.aspx?ID=191.
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