The International Arbitration Review: Ukraine
As is characteristic for civil law jurisdictions, Ukrainian law consists of legislative acts enacted by the Parliament of Ukraine and the international treaties that Ukraine is a party to, which upon ratification become part of the national legislation. According to the Constitution of Ukraine, if a conflict arises between provisions of an international treaty and national law, provisions of the former shall prevail. The only exception to this rule is a conflict with the Constitution, as the Constitution always takes precedence over provisions contained either in international treaties or national legislation.2
The Ukrainian legislation applicable to international arbitration consists of the International Commercial Arbitration Act (ICA Act),3 the Code of Civil Procedure of Ukraine (CCPU),4 and the Commercial Procedural Code of Ukraine (CPCU).5 Where the ICA Act is a key source of regulation, the CCPU applies to the setting aside procedure,6 recognition and enforcement of foreign awards,7 and court-ordered measures in support of international arbitration.8 In addition, the CPCU sets forth a list of non-arbitrable disputes,9 and envisages a presumption of validity and enforceability of an arbitration agreement. According to the presumption, any inaccuracies in the text of an arbitration agreement shall be interpreted by court in favour of the agreement's validity and enforceability.10
Subject to minor deviations, the ICA Act is a verbatim adoption of the UNCITRAL Model Law on International Arbitration (1985) (Model Law), as amended in 2006, and applies to international commercial arbitration proceedings seated in Ukraine. Certain provisions of the ICA Act equally apply to arbitration proceedings and arbitral awards made abroad, such as the authority of the state courts to refer parties to arbitration unless an arbitration agreement is null and void, inoperative or incapable of being performed; and judicial measures in support of arbitration, as well as the recognition and enforcement of arbitral awards and the grounds for refusing the same.11
Major international arbitration instruments to which Ukraine is a signatory, such as the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention 1958), the European Convention on International Commercial Arbitration (Geneva Convention 1961) and the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID Convention 1965), also constitute part of the legal framework applicable to international arbitration in Ukraine. Additionally, investment arbitration issues may fall within the scope of the Energy Charter Treaty (1994) and bilateral investment treaties, the number of which Ukraine was party to exceeded 65 in 2018.
Ukrainian legislation regulates international and domestic arbitration differently.
Consistent with the Model Law, the ICA Act provides that contractual and non-contractual civil disputes arising in the course of foreign trade and other forms of international business relations, provided that the place of business of at least one of the parties to the dispute is located outside of Ukraine, may be referred to international arbitration.
In addition to the place of business criteria, the ICA Act clarifies that disputes involving Ukrainian entities with foreign investment, or international associations and organisations established in the territory of Ukraine, whether in agreement among themselves or their participants, as well as Ukrainian legal entities and individuals, may be referred to international commercial arbitration.12 This provides a legal ground to resolve in international arbitration disputes that otherwise would qualify as domestic.
In turn, disputes between Ukrainian parties, whether legal entities or individuals (i.e., domestic arbitration cases), fall within the scope of the Law of Ukraine on Arbitration Tribunals (Domestic Arbitration Act). The provisions of the Domestic Arbitration Act do not follow the Model Law, and there are many examples evidencing distinctions between the regulation of international and domestic arbitrations. For instance, and unlike the ICA Act, the Domestic Arbitration Act expressly sets forth restrictions as to who is prohibited from acting as an arbitrator (e.g., judges of the general courts and the Constitutional Court), clarifies requirements as to the impartiality and independence of arbitrators, and provides for the liability of arbitrators in accordance with the applicable law or the parties' agreement. There is also a separate list of non-arbitrable disputes within the domestic arbitration legislation.
Similarly, where the CCPU and CPCU provide for the setting aside of awards in domestic arbitrations, the issuing of enforcement orders and the taking of judicial measures in support of domestic arbitration, these respective procedures differ from the ones envisaged for international arbitrations. By way of example, grounds for setting a domestic arbitral award aside or for its enforcement under the CCPU are different from those for international arbitration awards.13
A major overhaul of the judiciary in Ukraine took place in 2016 when a number of amendments were introduced to the legislative regime, in particular the Constitution, the Law of Ukraine 'On the Judicial System and the Status of Judges' and the Law of Ukraine 'On Bodies and Individuals Carrying out Enforcement of Judgments and Decisions of Other Bodies'.
Ukraine's judicial system is organised according to the principles of territoriality, specialisation and instance differentiation. Following the judiciary reform, the court system consists of local courts (circuit general, commercial and administrative courts), courts of appeal (circuit general, commercial and administrative courts) and the Supreme Court. As the highest court in the court system of Ukraine, the Supreme Court consists of the Grand Chamber of the Supreme Court, the Cassation Administrative Court, the Cassation Commercial Court, the Cassation Criminal Court and the Cassation Civil Court.14
Also resulting from the judiciary reform, two specialised courts were established to deal with IP matters and corruption cases: the High Court on Intellectual Property and the High Anticorruption Court.
In the arbitration context, a number of significant amendments to the procedural laws that became effective on 15 December 2017 introduced major changes in support of international arbitration. One of them was a simplification of the procedure for setting awards aside: according to the amended CCPU, an application for the annulment of an award shall be filed to the court of appeal at the seat of arbitration. The court of appeal is acting as the court of first instance and the Supreme Court is acting as a court of appellate instance in the case of further challenges. Similarly, a two-tier system is envisaged for the recognition and enforcement of foreign arbitral awards where an application for the recognition and enforcement shall be brought before the Kiev Court of Appeal.15
Judicial measures in support of international arbitration, although available under the ICA Act even before the 2017 amendments to the legislation, were in practice rarely sought because of the absence of relevant procedural rules to grant such measures. After the reform, judicial measures in support of arbitration – for example, interim measures aimed at preserving evidence or assets – may be sought before a respective court of appeal at the debtor's location or location of the evidence or the assets, or the place of arbitration.16 In addition, the court of appeal at the location of the evidence may order production of such evidence upon a request of the arbitral tribunal or a party to the arbitral proceedings, subject to the approval of the tribunal.
Under the law, it is prohibited to establish extraordinary or special courts.17
The two permanent arbitral institutions functioning on the territory of Ukraine are the International Commercial Arbitration Court (ICAC) and the Maritime Arbitration Commission, both at the Ukrainian Chamber of Commerce and Industry (UCCI) and established in accordance with the ICA Act.
2017 saw the 25th anniversary of the establishment of the ICAC, marking a quarter of a century of administering over 11,000 cases and building a reputation in the dispute resolution market.18 In 2019, the ICAC administered 243 cases.19 The majority of disputes administrated by the ICAC arise from international sale and purchase agreements, and about the delivery of goods (88.2 per cent of the caseload), followed by services agreements (5.4 per cent of its caseload).20 One of the benefits offered by the ICAC is time-efficient proceedings: it is reported that more than 60 per cent of cases are considered in less than three months.
In line with efforts to support diversity and equal representation in international arbitration, the ICAC reported that female arbitrators were involved in 36.5 per cent of the cases administered by it in 2019: 37 per cent of female arbitrators were appointed by the President of the UCCI, 45.6 per cent by the parties and 22.5 per cent by the two appointed arbitrators. Female arbitrators comprise 26 per cent of the ICAC's recommended list of arbitrators from which potential candidates for appointment as an arbitrator should be selected.21
Following the legislation reform in December 2017, throughout 2019 court practice continued to developed with a general theme of a pro-arbitration approach. However, court practice may still appear to be somewhat diverse, especially with respect to novel provisions. Certainly, as international arbitration gains greater popularity and the trust of Ukrainian users, having national legislation in support of arbitration in place and making it an effective dispute resolution mechanism are advantages that all stakeholders recognise.
In particular, the law now clearly sets out a pro-arbitration approach to interpreting arbitration agreements where the courts can rely on the express CPCU provision to interpret any inaccuracies in the text of an arbitration agreement in favour of the agreement's validity and enforceability. In practice, this has not eliminated completely the issue of the depth of examination by the state courts of the validity and enforceability of arbitration agreements if such an issue has been raised before it.22 However, more certainty that an arbitration agreement will be honoured and enforced is now ensured under the law.
Similarly, the CPCU has been amended to mirror in principle provisions of the ICA Act regarding the authority of a state court to leave a claim without consideration if one of the parties has chosen to resort to litigation despite a valid and enforceable arbitration agreement.23
Further, amendments to legislation providing for a defined mechanism of judicial support for international arbitration, irrespective of the seat of arbitration, by means of interim measures and measures aimed at securing and obtaining evidence, offer users an enhanced possibility to effectively pursue their claim.
International arbitration is now also available in Ukraine for an expanded scope of disputes, as the list of non-arbitrable disputes set forth in the CPCU has been amended to exclude the civil law aspects of competition, privatisation and public procurement contract disputes and corporate disputes provided there is an arbitration agreement between a legal entity and all its participants.
The trend of simplification has also found its way into international arbitration in Ukraine as, inter alia, the procedure for setting an award aside and the recognition and enforcement of an award have been amended to allow a joint consideration of both applications to increase efficiency.24
Finally, in the same spirit of promoting efficiency and the era of digitalisation, the 2017 reform introduced provisions on an electronic court system: a single judicial information and telecommunication system that would allow the conduction of court communications electronically and provide for a greater transparency and automation of proceedings. Throughout 2019, the system was being tested, and in the third quarter of the year it became available to users. To resolve uncertainties arising in regard to the use of the electronic court system, in September 2019, the Counsel of Judges of Ukraine issued recommendations to judges to accept procedural documents submitted through the system. The covid-19 pandemic has been testing the electronic court system, as it has other systems and institutions around the world.
The year in review
i Developments affecting international arbitration
In terms of reforms, 2019 saw another positive development for international arbitration with respect to disputes arising from public–private partnership contracts. As of October 2019, the Law of Ukraine 'On Concessions' has introduced an option of international arbitration, mirrored in the Law of Ukraine 'On the Public-Private Partnership', for public–private partnership contracts. Furthermore, cases where a private party is a Ukrainian entity founded by a company with foreign investment may be referred to arbitration with a seat outside of Ukraine.
Also in 2019, Ukraine continued to frequently take the spotlight for international arbitration matters and harvest the fruits of the 2017 legislative reform. Notably, the Supreme Court of Ukraine strived to develop a more uniform approach when dealing with international arbitration issues, and has been regularly publishing updated reviews of its practice. At the same time, however, a degree of uncertainty remains with respect to the interpretation of certain provisions of the law.
While some of the high-profile investment arbitration cases related to Crimea-based assets have been resolved, a number remain outstanding and are awaiting a meaningful resolution.
ii Arbitration developments in local courts
The 2017 reform of legislation affected, inter alia, provisions on international arbitration. The most notable legal changes particularly relevant for international arbitration relate to establishing the validity and interpretation of arbitration agreements, the arbitrability of disputes, and the powers of the national court to grant interim measures in support of international arbitration, calculate and grant the enforcement of post-award interest.
On the issue of the validity of arbitration agreements, the Supreme Court reaffirmed in its practice fundamental principles of separability of the arbitration agreement from the underlying contract, Kompetenz-Kompetenz and the presumption of the validity of an agreement to arbitrate. For instance, in the case of Norbert Schaller Gesellschaft mbH v. First Investment Bank PJSC,25 the court rejected the arguments of the defendant objecting against the recognition and enforcement of an award on the basis that arbitration agreement was invalid due to the invalidity of the guarantee in which the arbitration clause was contained. The court also went beyond the merely formalistic approach traditionally adopted by Ukrainian courts in the past and found that the requirement of the arbitration agreement to be in writing had been satisfied by way of the transmission of the underlying agreement containing the arbitration clause to the other party.
Due to its complexity and the variation of fact patterns, notwithstanding a clear pro-arbitration approach under the law, the interpretation of arbitration agreements remains among the controversial aspects of court practice. For instance, the invalidity of an arbitration agreement containing discrepancies in the name of an arbitral institution remains open at the lower court instances. The Supreme Court, however, reaffirmed the pro-arbitration approach.26
Aiming to offer court assistance to parties in international arbitration and ensure the efficiency of the arbitration mechanism, the 2017 legislative reform introduced provisions on interim measures that can be requested before a state court in support of arbitration. Since this was a novelty, court practice on the granting of interim measures developed throughout 2018 and 2019. What transpires from practice is that the courts strive to strike a balance between the interests of the parties when considering requests for interim measures. For instance, in a ruling dated 28 March 2019,27 the Supreme Court held that the absence of details as to the value of a debtor's assets makes it impossible for the court to consider and resolve on the criterion of proportionality.28 This, in turn, is a ground to deny a claim to arrest all of a debtor's assets.
In contrast, in a ruling of 24 September 2018 in SoftCommodities Trading Company SA v. Elan Soft LLP, the Supreme Court upheld the security of the claim and a countersecurity in relation to Grain and Feed Trade Association arbitration proceedings seated in London.29
With respect to the enforcement of post-award interest set forth in an arbitral award, until the 2017 reform the issue remained unsettled in the legislation, and in practice courts refused to enforce post-award interest for the reason that such exercise of their powers would interfere with the content of an award. On 15 May 2018 the Supreme Court made a ruling that ended the saga of the Nibulon SA v. Rise PJSC case,30 and seemed to have resolved the issue. In essence, the Supreme Court resolved the debate as to the enforcement of post-award interest, notwithstanding that provisions of the CPCU expressly regulating this issue were to enter into force only as of 1 January 2019, because from the perspective of the Supreme Court, the legislator had already expressed how the respective legal matter was to be regulated, and a gap could be filled in principle before a specific procedural provision came into force. Still, court practice on this issue remains controversial. As an example, the Supreme Court in Norbert Schaller Gesellschaft mbH v. First Investment Bank PJSC31 refused to establish the 8.38 per cent of interest on an award of above €2 million for the reason that the resolutive part of its decision must correspond to the resolutive part of the award. Accordingly, the calculation of interest and reflecting the final amount in the decision on the recognition and enforcement of the award would result in the Court acting beyond what has been decided by the arbitral tribunal and, in effect, would supplement the award. According to the new procedural law provisions in effect as of January 2019, enforcement officers are authorised to conduct the necessary computations of the interest accrued.
The practice of the Ukrainian courts often evidences the attempts of debtors under an arbitral award to avoid compliance with the award by initiating court proceedings for the invalidation of a contract, including an arbitration agreement contained therein. However, the Supreme Court has clarified that legal proceedings for the recognition and enforcement of an arbitral award in Ukraine may not be suspended due to a litigation proceeding for the invalidation of the contract on the basis of and in relation to which an award was made.32 The reasoning of the Court is based on qualifying recognition and enforcement proceedings as a non-contentious civil matter that could be suspended only due to the consideration of a setting aside procedure of the award being considered.
iii Investor–state disputes
2019 was another year of high-stakes investment arbitration proceedings involving Ukraine and Ukrainian investors fighting battles in courtrooms. There is still a number of investment arbitration proceedings pending with regard to Ukrainian investments in Crimea.33 In addition, a new case was brought by NEK Ukrenergo against Russia for alleged expropriation of assets.
The beginning of 2019 was marked by further developments in Crimea-related investment arbitrations: awards in favour of Ukrainian investors in Crimea were issued in Everest Estate LLC et al v. The Russian Federation,34 Oschadbank v. Russian Federation,35 PJSC CB PrivatBank and Finance Company Finilon LLC v. Russia, Aeroport Belbek LLC and Mr Igor Kolomoisky v. Russia,36 Stabil et al v. Russia37 and PJSC Ukrnafta v. Russia.38 It also saw a radical change in Russia's stance as it started participating in proceedings fighting admissibility and jurisdiction. Ukrainian investors Stabhil and Ukrnafta have successfully fought challenges brought by Russia before the Swiss court. In addition, DTEK announced that Russia was participating in its arbitration proceedings, but a decision in these proceedings is still pending.
In Ukraine, the Supreme Court ordered the enforcement of an arbitral award made in favour of Everest Estate and 18 other claimants in an amount of US$159 million to be paid by Russia to the Ukrainian investors in Crimea.39 The debate around the enforcement of the award captured the attention of legal minds both in Ukraine and abroad, as the Court dealt first with a freezing order covering shares of three Russian state-owned banks – Vnesheconombank, Sberbank and VTB Bank – and their Ukrainian subsidiaries, and the assets of their respective subsidiaries, and subsequently with the attachment of the assets against which the arbitral award may be enforced. The Supreme Court ruling dealt with a variety of issues, and in particular:
- establishing the presence of Russian assets in the territory of Ukraine, including in Crimea, for the purposes of establishing jurisdiction to consider the application for enforcement;
- waiver by the Russian Federation of its sovereign immunity by way of an agreement to be bound by the bilateral investment treaty and the award made in accordance thereto; and
- attachment of the assets of the Russian Federation only, and not of the separate legal entities: that is, the shareholders in the Ukrainian subsidiaries.
In its ruling, the Court held that by way of including an arbitration clause into the Agreement on the Encouragement and Mutual protection of Investments between the Russian Federation and Ukraine, the Russian Federation ipso facto agreed to waive the following types of sovereign immunity under the Law of Ukraine 'On Private International Law' and UN Convention on Jurisdictional Immunities of States and Their Property: immunity from suit, immunity from security of a claim and immunity from the enforcement of a court decision.40
In July 2019, the Kiev Court of Appeal granted the recognition and enforcement of Oshchadbank's award against Russia.
Separately, the Naftogaz v. Gazprom Stockholm arbitration saga was finally resolved in 2018 with the tribunal ruling in favour of Naftogaz.41 Naturally, Gazprom challenged the findings of the arbitral tribunal before the Swedish court, which rejected the Russia appeal.42
Towards the end of 2018, and after three years of litigation before the Ukrainian court seeking enforcement of an emergency award, the JKX Oil & Gas plc et al v. Ukraine case has been given final relief. Recognition and enforcement of the interim measures was refused on the basis of violation of the public policy of Ukraine and the absence of a proper notification of Ukraine of the arbitration proceedings,43 while an award on the merits was partially enforced. This case is of particular interest not only because of the consideration of the public policy exception regarding the recognition and enforcement of foreign arbitral awards, but also the enforceability of awards granting interim emergency relief under the New York Convention – that issue, unfortunately, is not being dealt with in much detail by the Supreme Court.
Finally, Gazprom brought a claim44 in October 2018 against Ukraine for alleged abuse by the Ukrainian Anti-Monopoly Committee.
Outlook and conclusions
The fact that Ukrainian legislation on international arbitration is a verbatim adoption of the Model Law, and that Ukraine aspires to its uniform application in accordance with best practices, allows the conclusion that the reasonable expectations of users of international arbitration in or with a link to Ukraine will most likely be met. In the past couple of years, Ukraine has been among the most active players on the arbitration market, and there is no sign of this trend declining considering the number of investment arbitration cases still pending, and the potential for the dispute resolution market to respond to the current political and business environment in Ukraine.
1 Oleg Alyoshin is a partner and Vasylyna Odnorih and Olha Nosenko are associates at Vasil Kisil & Partners.
2 Constitution of Ukraine, Law of Ukraine No. 245к/96-BP dated 28 June 1996, Article 9.
3 Law of Ukraine 'On International Commercial Arbitration' No. 4002-XII dated 24 February 1994.
4 Code of Civil Procedure of Ukraine, Law of Ukraine No. 1618-IV dated 18 March 2004.
5 Commercial Procedural Code of Ukraine, Law of Ukraine No. 1798-XII dated 6 November 1991.
6 Code of Civil Procedure of Ukraine, Law of Ukraine No. 1618-IV dated 18 March 2004, Section VIII.
7 Code of Civil Procedure of Ukraine, Law of Ukraine No. 1618-IV dated 18 March 2004, Section IX.
8 Code of Civil Procedure of Ukraine, Law of Ukraine No. 1618-IV dated 18 March 2004, Articles 84(11), 85(9), 94, 116(7), 152(6).
9 Commercial Procedure Code of Ukraine, Law of Ukraine No. 1798-XII dated 6 November 1991, Article 22(1).
10 Commercial Procedural Code of Ukraine, Law of Ukraine No. 1798-XII dated 6 November 1991, Article 22(3).
11 Law of Ukraine 'On International Commercial Arbitration' No. 4002-XII dated 24 February 1994, Article 1(1).
12 Law of Ukraine 'On International Commercial Arbitration' No. 4002-XII dated 24 February 1994, Article 1(2).
13 Code of Civil Procedure of Ukraine, Law of Ukraine No. 1618-IV dated 18 March 2004, Articles 458, 459, 478, and 486.
14 The Law of Ukraine on the Judicial System and Status of Judges No. 2509-VII dated 5 August 2018, Articles 17, 37.
15 Code of Civil Procedure of Ukraine, Law of Ukraine No. 1618-IV dated 18 March 2004, Article 23(3).
16 Code of Civil Procedure of Ukraine, Law of Ukraine No. 1618-IV dated 18 March 2004, Article 116(8).
17 Law of Ukraine 'On the Judicial System and the Status of Judges' No. 1402-VIII dated 2 June 2016, Article 3(2).
19 ICAC at the UCCI official website, Statistics and practice, available at https://icac.org.ua/en/statystyka-ta-praktyka/statystyka/.
22 Resolution of the Supreme Court in case No. 910/13366/18 dated 4 March 2019.
23 Code of Civil Procedure of Ukraine, Law of Ukraine No. 1618-IV dated 18 March 2004, Article 226.
24 Code of Civil Procedure of Ukraine, Law of Ukraine No. 1618-IV dated 18 March 2004, Article 457(8).
27 Case No. 824/239/2018.
33 NJSC Naftogaz of Ukraine et al v. Russia, UNCITRAL, PCA case No. 2017-16; Aeroport Belbek LLC and Mr Igor Valerievich Kolomoisky v. Russia, UNCITRAL, PCA case No. 2015-07; Privatbank and Finilon v. Russia, PCA case No. 2015-21; Lugzor and others v. Russia, PCA case No. 2015-29; DTEK Energy Holding v. Russia.
35 More case details available at https://investmentpolicyhubold.unctad.org/ISDS/Details/724.
37 Stabil et al v. Russia, UNCITRAL, PCA case No. 2015-35.
38 PJSC Ukrnafta v. Russia, PCA case No. 2015-34.
40 Supreme Court, Review of Practice of the Civil Court of Cassation within the Supreme Court in cases of recognition and enforcement of foreign arbitral awards and their challenge dated 10 June 2019, available at https://supreme.court.gov.ua/userfiles/media/Oglyad_Mkas.pdf.
41 Naftogaz website, Media tab, 'Historical Victory for Ukraine: Stockholm Arbitration', available at http://www.naftogaz.com/www/3/nakweben.nsf/0/E62D5C9B21795281C225834B00537D4E?OpenDocument&Expand=2&.
42 Naftogaz website, Media tab, 'First anniversary of Stockholm victory: Naftogaz has received USD 2.1 billion from Gazprom and seeks to further enforce award', available at http://www.naftogaz.com/www/3/nakweben.nsf/0/2D0990FE0A362290C22583AF00690767?OpenDocument&year=2019&month=03&nt=News.
44 PJSC Gazprom v. Ukraine, PCA Case No. 2019-10.