Commercial Arbitration

Ukraine

Yuliya Chernykh

Arbitrade Attorneys at Law

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?

    Yes, Ukraine is a party to the New York Convention.

    The New York Convention entered into force for Ukraine on 8 January 1961 (Ukraine as a country of the former USSR has affirmed its obligations under the international treaties concluded by the Ukrainian SSR before Ukraine proclaimed independence).

    There is a reservation on reciprocity, namely that Ukraine will apply the Convention in respect of arbitral awards made in the territories of non-contracting states only to the extent to which they grant reciprocal treatment.

  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?

    Ukraine is a party to:

    • The European Convention on International Commercial Arbitration (the European Convention) dated 21 April 1961 (entered into force for Ukraine on 7 January 1964).

    Ukraine is also a party to some regional treaties within CIS, such as:

    • Treaty on Settlement of Commercial Disputes (the Kiev Treaty) dated 20 March 1992 (entered into force for Ukraine on 19 December 1992).

  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?

    International commercial arbitration is governed by the Law of Ukraine on International Commercial Arbitration dated 24 February 1994 (the ICAL), which is based on the UNCITRAL Model Law 1985. There are, however, some minor deviations, namely Article 1 (3) (b) and Article 1 (3) (c) of the UNCITRAL Model Law are not incorporated into the ICAL.

  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?

    There are two international arbitration institutes in Ukraine: the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry (ICAC) and the Maritime Arbitration Commission at the Ukrainian Chamber of Commerce and Industry (MAC).

    With respect to disputes pending before the ICAC and the MAC, the appointment procedure is governed by their own rules under which the president of the Ukrainian Chamber of Commerce and Industry serves as the appointing authority in some circumstances.

  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?

    The activity of foreign arbitral providers in the territory of Ukraine is not prohibited by Ukrainian legislature. Although, the fact that the statutes of the two international arbitration institutes operating in Ukraine (ICAC at the UCCIA and MAC at the UCCI) were approved by the ICAL raises some concerns.

  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?

    There are no specialist arbitration courts in Ukraine. The courts of general jurisdiction have jurisdiction over the setting aside of international arbitral awards issued in the territory of Ukraine as well over the recognition and enforcement of international arbitration awards. The courts are generally familiar with the law and practice of international arbitration.

    7. Agreement to arbitrate

  7. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?

    There are no specific statutory requirements regarding the content of an arbitration agreement. However, an arbitration agreement is generally expected to contain:

    • inclusion of an explicit statement that disputes should be submitted to arbitration;

    • definition of the legal relationships and disputes that should be submitted to arbitration;

    • specification of the arbitration institution or ad hoc arbitration that should resolve the disputes.

    An arbitration agreement shall be sufficiently precise in relation to the arbitration institution. Therefore, the indication of a correct name of the relevant arbitration institution or explicit reference to ad hoc arbitration is highly advisable, as some minor typo or mistake may cause unnecessary problems in Ukrainian courts.

    An arbitration agreement must be in writing. Future disputes may be covered by an arbitration agreement.

  8. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?

    The Commercial Procedural Code of Ukraine contains restrictions on arbitrability of the following types of disputes (article 12):

    • disputes on invalidation of acts;

    • disputes arising out of conclusion, amendment, termination and performance of public procurement contracts;

    • disputes arising out of corporate relations between a company and its participant (founder, shareholder), including a former participant, and between the participants (founders, shareholders) related to the establishment, activity, management and termination of the company. Disputes relating to buy-sell of shares are excluded from the notion of corporate disputes.

    Noteworthy, article 1 of the ICAL contains provisions permitting the arbitration of disputes arising between enterprises with foreign investment, international associations and organisations established on the territory of Ukraine; disputes between the participants of such entities; as well as disputes between such entities and other subjects of the law of Ukraine. Thus, there is still an articulated view that provision of the ICAL shall prevail over the Commercial Procedural Code. The Ukrainian courts, however, would be likely to apply the restrictions of the Commercial Procedural Code of Ukraine.

  9. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?

    Third parties may be joined to arbitration only on their express consent as well as consent of the original parties to the dispute. The invitation of a third party may only be requested prior to the deadline for submitting the Statement of Defence.

  10. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?

    The ICAL does not contain express provisions for consolidation of claims or proceedings. At the same time Arbitration Rules of ICAC at the UCCI and MAC at the UCCI (article 19 (2) contain some limited provision permitting for the claimant to consolidate the claims in one Statement of Claim arising out of several contracts under conditions that:

    • an arbitration agreement covers all such demands;

    • fulfillment of obligations under these contracts cannot be separated under several claims.

    In practice, consolidation in any of the form rarely takes place.

  11. 11.Groups of companies
    Is the “group of companies doctrine” (or any other method of piercing the corporate veil) recognised in your jurisdiction?

    There is no ‘group of companies doctrine’, or other method of piercing the corporate veil in Ukraine in the context of international arbitration.

  12. 12.Separability
    Are arbitration clauses considered separable from the main contract?

    Yes, according to article 16 of the ICAL, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

  13. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?

    Yes, Ukraine does recognise the principle of kompetenz-kompetenz. Pursuant to Article 16 of the ICAL the arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. Only an arbitral tribunal may rule that it does not have jurisdiction either as a preliminary question in a partial award or in the final award.

    If a decision on jurisdiction is taken by the arbitral tribunal in a separate ruling, such ruling may be challenged by a party to the Ukrainian court within thirty days following its receipt (Article 16(3) of the ICAL).

  14. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?

    It is advisable to indicate with reasonable precision the arbitration institution and its rules or reference to the ad hoc arbitration; applicable substantive law; number of arbitrators; language of the proceedings; place of arbitration.

  15. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?

    Institutional arbitration is more common as per public available information. ICAC at the UCCI has heavy caseload each year with the record number of cases in 2009 (651 cases). For rare ad hoc arbitrations taken place in Ukraine, UNCITRAL Arbitration Rules shall be obviously be a common choice.

  16. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.

    Multi-party arbitrations are allowed in Ukraine. For drafting multi-party arbitration agreement the parties shall bear in mind default provisions.

    Default provisions of the Arbitration Rules (article 27(3) of both arbitral institutes in Ukraine sets that where the Arbitral Tribunal is to be composed of three arbitrators to arbitrate between multiple claimants and multiple respondents, the multiple claimants and the multiple respondents shall each choose one arbitrator. Where the claimant or respondents have not reached an agreement within 30 days after receipt of a notice from the ICAC at the UCCI or MAC at the UCCI, an arbitrator shall be appointed by the president of the Ukrainian Chamber of Commerce and Industry.

    17. Commencing the arbitration

  17. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?

    Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent (article 21 of the ICAL).

    According to the article 17 of the Arbitration Rules of ICAC at the UCCI and MAC at the UCCI, the proceedings in the case shall be initiated by the order of the ICAC or MAC president upon duly filing of a Statement of Claim.

    Period of limitation belongs to substantive Ukrainian law. The general period of limitation is three years (the Civil Code of Ukraine) starting from the day on which a person becomes aware of or ought to have become aware of the violation of his rights.

    18. Choice of Law

  18. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?

    An arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given state shall be construed as directly referring to the substantive law of that state and not to its conflict of laws rules.

    If the parties fail to determine the applicable law, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable. Usually, Ukrainian conflict of laws rules are deemed applicable.

    The ICAL and the Arbitration Rules of ICAC at the UCCI and MAC at the UCCI contain provision on ex aequo et bono or amiacable compositeur ,which can be applicable if the parties have expressly authorised the tribunal to apply those principles.

    19. Appointing the tribunal

  19. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?

    There are not any limitations in respect of a party’s choice of arbitrator. Both arbitration institutes operating in Ukraine have the list of recommended arbitrators. Although, the list is predominantly frequently used, the parties are not technically bound to appoint an arbitrator from it.

  20. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?

    There are no any restrictions of this kind. Article 13 (paragraph 1) of the ICAL stipulates that no person shall be precluded by reason of his nationality from acting as an arbitrator, unless otherwise agreed by the parties.

    As to immigration requirements, foreign arbitrators acting in Ukraine shall generally obtain a business visa. However, the list of countries whose nationals can travel to Ukraine without any visa is increasing (for instance, at the moment EU nationals are not requested to obtain any visa for a short duration, not exceeding 90 days).

  21. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?

    If parties fail to appoint a sole arbitrator or two arbitrators fail to appoint the chairman, the president of the Ukrainian Chamber of Commerce and Industry shall do so. Ukrainian courts are not authorised to intervene.

  22. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?

    The ICAL law does not contain rules on the immunity of arbitrators.

  23. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?

    The ICAL contains no provisions to this effect. However, according to the Arbitration Rules of both arbitral institutes in Ukraine, the proceedings shall not progress until the claimant (and respondent in regard of a counter-claim) fully pays the advance of arbitration fee.

    There are no any specific regulation on possibility to provide fundholding services by ICAC at the UCCI and MAC at the UCCI.

    24. Challenges to arbitrators

  24. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?

    Article 12(2) of the ICAL generally specifies that an arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications required by the agreement of the parties. An arbitrator is under continuous duty to disclose any circumstances that may give rise to justifiable doubts as to his impartiality or independence.

    The IBA Guidelines on Conflicts of Interest in International Arbitration are not widely referred to in international arbitration in Ukraine.

    25. Interim relief

  25. 25.Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

    The ICAL (article 17) provides that unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such interim measures of protection as the arbitral tribunal may consider necessary in respect of the subject-matter of the dispute.

    In addition, the Arbitration Rules permit to the president of the ICAC at the UCCI and MAC at the UCCI prior to the formation of the arbitration tribunal to determine the amount and the form of the security for the claim. Usually, such determination takes the form of an order and shall be binding upon the parties until a final award is made.

    The Arbitration Rules of ICAC at the UCCI and MAC at the UCCI contain provisions on separate awards which could be issued at the request of a party on certain issues or a part of the claims.

    At the moment, Ukrainian courts are not authorised to issue any interim relief in support of international arbitration taken place in Ukraine or abroad. Since 19 October 2011 there is, however, a possibility to obtain interim measures before the competent Ukrainian court in the course of recognition and enforcement of foreign arbitral awards in Ukraine.Ukrainian law does not provide for any anti-suit injunction.

  26. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?

    There no provisions in relevant procedural codes of Ukraine authorising Ukrainian courts to grant security for costs in international arbitration.

    The general rule is that the proceedings shall not progress until the claimant fully pays the arbitration costs (similarly, the proceedings shall not progress in regard of the counter-claim until the respondent fully pays arbitration costs covering the counter-claim). Each party shall bear its own expenses. However, pursuant to section VII (paragraph 1) of the Annex to the Arbitration Rules of both arbitration institutes, the ICAC at the UCCI and MAC at the UCCI may require the parties or either of them to deposit an advance for the additional costs of the arbitral proceedings. The advance for the additional costs may be required from the party requesting an additional act likely to lead to additional costs to be incurred in the course of the proceedings, if such request is deemed justified. Further, if a party appoints an arbitrator residing permanently out of the place of the hearings at the ICAC or MAC, that party shall be required to deposit an advance for the costs of the participation of such arbitrator.

    27. Procedure

  27. 27.Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (e.g. general duties of the tribunal and/or the parties)?

    Mandatory rules are not numerous. They generally relate to the principle of equal treatment of the parties, form and content of the award, grounds for setting aside and refusal of recognition and enforcement etc.

    Pursuant to the ICAL the parties are free to agree on the procedure to be followed by the arbitral tribunal. Failing such agreement, the arbitral tribunal may, subject to the provisions of the ICAL, conduct the arbitration in such manner as it considers appropriate. Article 18 provides for equal treatment of the parties and for giving full opportunity to each party to present its case.

    The duties of arbitrators provide the general obligation of disclosure of all circumstances giving rise to reasonable doubts as to their impartiality and independence.

    The Arbitration Rules (article 9 (3) of both arbitration tribunals provide the general duty of the parties and their representatives to make fair use of their procedural rights, refrain from abusing such rights, and observe the time limits designated for the exercise thereof.

  28. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?

    The law and the practice is that if the respondent fails to communicate his statement of defence within the set period of time, the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations. Accordingly, if the respondent fails to appear at the hearing, being duly notified on the time and place, the arbitral tribunal may decide the case on the basis of available evidences (article 25 of the ICAL).

  29. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?

    The powers conferred upon the arbitral tribunal include the power to determine the admissibility, relevance, materiality and weight of any evidence. As a matter of practice, documentary evidences are more expected in international arbitration in Ukraine.

    IBA Rules on the Taking of Evidence are not generally taken into account, although they could be taken through a reference of the parties to them in the arbitration clause.

  30. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?

    Although, article 27 of the ICAL and article 42 of the Arbitration Rules of the ICAC at the UCCI and MAC at the UCCI provide for the possibility of the arbitral tribunal or a party with the approval of the arbitral tribunal to seek from a competent court assistance in taking evidence, there are no relevant provisions in procedural codes of Ukraine permitting court assistance in this respect.

  31. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?

    Legislation of Ukraine does not contain specific rules on disclosure. The arbitral tribunal may order the party to produce certain documents; however such powers are limited to parties only and does not extent to third parties.

  32. 32.Hearings
    Is it mandatory to have a final hearing on the merits?

    There are no mandatory rules in the ICAL on having a final hearing on the merits. Pursuant to article 24 (1) of the ICAL, subject to any agreement of the parties to the contrary, an arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence of for oral argument or whether the proceedings shall be conducted on the basis of documents and other materials. However, unless the parties have agreed that no hearings shall be held, an arbitral tribunal shall hold such hearings at an appropriate state of the proceedings, if so requested by a party.

    The Arbitration Rules of both arbitration institutes provide for a hearing to be held to allow the parties to present their case on the basis of the evidence submitted by them and the oral debate to be held. A party may request the hearing of the case to be held in his absence (article 37). The parties may agree on arbitration of their dispute to be conducted on the basis of written materials only, without holding an oral hearing (article 39 (1).

  33. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

    Yes, if Ukraine is selected as the seat of arbitration, hearings and procedural meetings may be conducted at a different place. According to the article 20 (1) of the ICAL, the parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties. The arbitral tribunal may, unless otherwise agreed by the parties, meet at any place considered appropriate for consultation among its members, for hearing witnesses and experts of the parties, or for the inspection of goods, other property or documents.

    34. Award

  34. 34.Majority decisions
    Can the tribunal decide by majority?

    In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made, unless otherwise agreed by the parties, by a majority of all its members pursuant to article 29 of the ICAL. However, questions of procedure may be decided by a presiding arbitrator, if so authorised by the parties or all members of the arbitral tribunal.

    According to the article 49 (3) of the Arbitration Rules in arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the Arbitral Tribunal shall suffice, provided that the reason for any omitted signature is stated.

  35. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?

    Whereas there is no explicit limit on the types of remedies that an arbitral tribunal may grant, remedies must meet the requirements of arbitrability, i.e. only private law remedies can be sought.

  36. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?

    The ICAL does not contain any provision on dissenting opinion.

    In the meantime, article 49 (3) of the Arbitration Rules of both arbitration institutes provides that any arbitrator disagreeing with the award made may express in writing his dissenting opinion, which shall be attached to the award.

  37. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?

    Pursuant to the article 31 of the ICAL the legal and formal requirements for a valid and enforceable award are the following:

    • it shall be made in writing;
    • it shall be signed by the arbitrator or arbitrators;
    • it shall state the reasons upon which it is based;
    • it shall state a resolution regarding satisfaction or rejection of the claim, the amount of the arbitration fee and costs, and their apportioning;
    • it shall state its date and the place of arbitration.

    According to the Arbitration Rules (article 49, paragraph 4) the award shall contain, in particular:

    • the name of the ICAC;
    • case registration number;
    • place of arbitration;
    • date of the award;
    • full names of the arbitrators;
    • names of the parties in dispute and other persons participating in the arbitral proceedings;
    • subject matter of the dispute and a summary of the circumstances of the case;
    • reasons for the award;
    • conclusion on the granting or dismissal of the claim;
    • amounts of arbitration fees and costs of the case, and apportionment thereof between the parties; and
    • signatures of the arbitrators.

  38. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?

    The ICAL does not contain any time limits for rendering an award. Under the Arbitration Rules of both arbitration institutes, the ICAC at the UCCI and the MAC at the UCCI shall take measures to secure completion of arbitral proceedings within 180 days of the date of the composition of the arbitral tribunal.

    Correction or interpretation of the award may be requested within 30 days after its receipt by a party. Whereas the decision on correction or interpretation shall be taken within 30 days after receipt of the party’s request. Both time periods may be modified by the agreement of both parties as per article 33 of the ICAL.

    39. Costs and interest

  39. 39.Costs
    Are parties able to recover fees paid and costs incurred? Does the “loser pays” rule generally apply in your jurisdiction?

    According to the general rule and the existing practice the losing party bear all the costs of the winning party. The tendency leads to the reduction of the amount of awarded legal costs.

  40. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?

    Ukrainian legislation does not contain interest on the award, although interest can be part of a substantive claim under Ukrainian substantive law.

    41. Challenging awards

  41. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?

    The award cannot be appealed on substance before the Ukrainian courts. According to the Civil Procedural Code of Ukraine as amended by Law No.2979-VI of 3 February 2011 (in force since 1 March 2011) challenging of the international arbitration award rendered in the territory of Ukraine (Article 3891), as well as setting-aside of international arbitral awards (Article 3895) can be made in accordance with the international treaty of Ukraine and/or the ICAL.

    There is list of limited grounds for setting awards aside as exceptional recourse pursuant Article 34 of the ICAL, if the party making the application for setting aside furnishes proof that:

    • a party to the arbitration agreement was under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of Ukraine; or
    • the party was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
    • the award was made regarding a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or
    • the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of the ICAL from which the parties cannot derogate, or, failing such agreement, was not in accordance with the ICAL, or the court finds that:
      • the subject-matter of the dispute is not capable of settlement by arbitration under the law of Ukraine; or
      • the award is in conflict with the public policy of Ukraine.

  42. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?

    No, there are no other grounds on which an award may be challenged.

  43. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?

    No, the parties cannot agree to exclude any right of setting award aside.

    44. Enforcement in your jurisdiction

  44. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?

    Under the New York Convention and the ICAL, the enforcement of an arbitral award may be refused at the request of a party, if the party furnishes to the competent court proof that the award has been set aside by a court of the country in which, or under the law of which, that award was made.

    However, under the European Convention, the enforcement of an arbitral award may be refused if the award was set aside in a contracting state only under the grounds set forth in the Article IX of the European Convention 1961.

  45. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?

    The prevailing approach of Ukrainian courts towards enforcement seems, overall, to be positive, although some occasional unfortunate examples may happen.

    There are a number of legislative initiatives before the Ukrainian parliament on interim measures in support of arbitration, which is becoming an issue for Ukraine. Arbitrability as well as interim measures in support of arbitration remain widely discussed topics.

  46. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

    There are no legal provisions on state or sovereign immunity at the enforcement stage. However, moratorium is still in force regarding realisation of property of companies where the state holds no less than 25 per cent (the Law of Ukraine 2864-III of 29 November 2001 ‘On Moratorium on Forced Realization of Property’).

    47. Further considerations

  47. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?

    The ICAL is silent on confidentiality. At the same time the Arbitration Rules (Article 12) provides a general duty of confidentiality addressed to the president and vice presidents of the ICAC at the UCCI and MAC at the UCCI, the arbitrators and the ICAC and MAC Secretariat.

  48. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?

    Information disclosed in arbitral proceedings may generally be relied on by the parties in other proceedings unless the parties have agreed on confidentiality.

  49. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

    There are no specific standards or codes for counsel or arbitrators in international arbitration taken place in Ukraine. The general attorney’s ethics may be applicable on general terms for those admitted to the Ukrainian Bar.

  50. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?

    There are no particular procedural expectations or assumptions of which counsel or arbitrators should be aware.

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