Article 15 of the Code of Civil Procedure provides that applications for recognition and enforcement of awards issued in international commercial arbitration are considered by the courts of general jurisdiction following the procedure set out in the code.
Until recently, applicants in such proceedings were unable to use the interim measures under the code to secure their claims. However, the amendments to Articles 394 and 395 of the code, in force since October 19 2011, make this remedy available to applicants in award recognition proceedings.
The following provision was added to Article 394(1) of the code:
"[T]he court at the motion of the person seeking the recognition of a foreign judgment may apply the measures for the securing of claims, as provided for in this Code. The securing of the claim may be carried out at any stage of the consideration of the application, if the failure to apply such measures might impede or render impossible the enforcement of the court judgment."
The legislature has also added a new Article 395(9), providing that motions for security measures filed in the course of recognition proceedings are to be considered by the court in accordance with the general procedure for the application of such measures, as set forth in Articles 151 to 155 of the code.
Applicants in award recognition cases are entitled to seek the application of any measures for which the code provides, namely:
- attachment of property (except perishable commodities) or moneys belonging to the defendant;
- prohibitions against certain actions;
- obligations to perform certain actions;
- prohibitions on third parties, restricting their ability to make payments or transfer property to the defendant or to execute other obligations in relation to the defendant;
- suspension of sale of an attached property (if there is a claim for recognition of title to such property);
- suspension of the enforcement of a challenged writ of execution; and
- deposition of disputed property to be held by third parties.
Although the code gives the court discretion to impose other measures, in practice it is virtually unheard of for a judge to be persuaded to order a measure for which there is no direct provision in law. For example, it is deemed to be impossible to appoint a receiver to manage the affairs of a company pending a corporate dispute. This position is based in particular on the Supreme Court's guidelines on security measures,(1) which state that a court may not order measures that interfere with the internal activities of commercial companies (eg, by prohibiting general meetings of shareholders).
Security measures should be aimed exclusively at ensuring the enforcement of a judgment in respect of the arbitral award; as such, they cannot be used to secure evidence.
The law aims to balance the rights of claimants and defendants in respect of security measures. In particular, the measures should be proportionate to the plaintiff's claims. The court cannot order the attachment of salaries, scholarships, alimony payments, old-age pensions or other social benefits, or require measures that interrupt the temporary administration or liquidation of a bank as ordered by the National Bank of Ukraine.
The court may order a claimant to deposit a sum in the court's account as security. Until recently, the courts were reluctant to order such guarantees, but the position is evolving. If a security measure is cancelled - or if the claim is rejected or the case is either terminated or abandoned without a determination - the defendant is entitled to damages.
A security measure may be imposed at any stage of proceedings. Ukrainian civil procedure consists of three instances: first instance, appeal and cassation. In practice, a motion for security measures may be lodged with the court at any point from the filing of the application for recognition of the award until the end of the appeal hearing. However, if the motion is filed at the cassation stage, the court will generally not consider it, as the relevant chapter of the code does not provide for security measures to be issued at the cassation stage.
In general, an application for security measures cannot be made before the commencement of civil proceedings. The only exception relates to measures for the protection of a claimant's IP rights. Whether an application for recognition of an award granted in an IP dispute may give rise to preliminary measures remains to be seen.
Motions for security measures are heard in camera. A decision to impose measures is effective from the date of adoption. The decision may be appealed and defendants often use this as a tactic to delay proceedings, although the filing of an appeal does not suspend the measure. The court may order several types of measure simultaneously; these will remain in effect until the court's judgment on the merits comes into force.
Overall, the amendments to the code represent a significant step forward in the establishment of Ukraine as an arbitration-friendly jurisdiction. They allow applicants for recognition of international arbitral awards to seek recourse to security measures in respect of award debtors. However, the changes also emphasise the fact that an applicant in an award recognition procedure, when seeking an order for security measures against a debtor in Ukraine, faces the same shortfalls and inconsistencies in Ukrainian legal procedure as parties in ordinary civil proceedings.
The next stage in the development of arbitration law in Ukraine should ensure that parties are given the right to order security measures in support of an ongoing or imminent arbitration. The lack of such a mechanism significantly impedes the enforcement of arbitral awards in Ukraine. All too often, by the time the arbitral award is issued, the respondent Ukrainian entity has been stripped of its valuable assets, rendering the arbitral procedure a futile exercise.
For further information on this topic please contact Andrey Astapov or Ivan Lishchyna at Astapov Lawyers International Law Group by (+38 044 490 7001), fax (+38 044 490 7002) or email ([email protected] or [email protected]).