The International Commercial Arbitration Court at the Chamber of Commerce and Industry of Ukraine held its 10th Anniversary International Arbitration Readings, dedicated to the 100th birthday anniversary of Academician Igor Pobirchenko

The International Commercial Arbitration Court at the Chamber of Commerce and Industry of Ukraine held its 10th Anniversary International Arbitration Readings, dedicated to the 100th birthday anniversary of Academician Igor Pobirchenko

On November 15, 2023, the ICAC for the tenth time welcomed practicing, businesses, scholars and the international arbitration community at the most anticipated event of the year in the field of international arbitration in Ukraine – the International Arbitration Readings. The event was held live with a parallel broadcast online and brought together about 100 participants at the event site and over 400 viewers online.

Opening the Readings, Mykola Selivon, the President of the ICAC and IAC, noted: “Sadly, we are in the state of war. We are grateful to the defenders, to the Armed Forces of Ukraine, for having this opportunity to continue our work and to welcome you at the International Arbitration Readings, organized with unprecedented security measures”.

In his welcoming speech, which Mr. Selivon continued after honoring fallen Ukrainian heroes with a minute of silence, the President of the ICAC and the UMAC praised the Opinion of the Grand Chamber of the Supreme Court of Ukraine dated 01 November, 2023, which, for the first time in the history of Ukraine, firmly confirmed the pro-arbitration approach of the practice of Ukrainian courts in the application of the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards as of 1958, and the acknowledgement and enforcement of foreign arbitral awards and  arbitration agreements on submitting disputes to foreign arbitration, even if such agreements are concluded between Ukrainian residents. Congratulating the Supreme Court on this Opinion, Mr. Selivon encouraged the arbitration community to check  the ICAC’s legal opinion on the case, available following the link

Mr. Selivon greeted the participants on the occasion of the 100th birthday anniversary of the founder and ideological leader of Ukrainian arbitration, Academician Igor Pobirchenko. In his opinion, the fundamental principles that Mr. Pobirchenko laid down in the ICAC’s activities allow the institution to continue being one of the busiest in Eastern Europe. The ICAC registers an average of over  350 cases per year, and has already registered about 600 cases in 2023.

Taking the floor from the ICAC’s President, Roman Babiy, the Chairman of the Parliamentary Subcommittee on the Enforcement of Judgments of the European Court of Human Rights and Alternative Dispute Resolution under the Committee on Legal Policy, addressed the participants of the Readings with the following remarks: “International arbitration offers businesses the speed they need. The ICAC, which in the year of a full-fledged war, in 2022,  considered more cases than in previous years, shows extraordinary institutional resilience and commitment to its mission, having resumed dispute resolution services in just  a few weeks after the start of the invasion.”

Arbitrator, arbitrator, arbitrator

The first session, moderated by Dr. Tatyana Slipachuk, Special Counsel at Sayenko Kharenko, brought together international and Ukrainian speakers, including Prof. Patricia Shaughnessy, Commercial Dispute Resolution Expert, USAID Justice for All Activity, Pavlo Byelousov,Partner at Aequo law firm, Dr Daniel Busse, Founding Partner of Busse Disputes Rechtsanwaltsgesellschaft mbH.

Reflecting on Mr. Pobirchenko’s invaluable contribution into the development of Ukrainian arbitration,  arbitration lawyers, arbitrators and scholars, Ms. Slipachuk invited the audience to discuss the criteria for selecting an effective arbitral tribunal. “If we are talking about arbitration and want to identify a triad of basic principles that are crucial for the effectiveness of the process, I would say the following: arbitrator, arbitrator and arbitrator again,” said Ms. Slipachuk, opening the first session.

Patricia Shaughnessy emphasized that the following three factors should be ensured for the arbitral tribunal to be effective: the arbitrator must be independent and impartial throughout the arbitration proceedings; the parties must trust the arbitrator; the arbitrator must be suitable for the particular circumstances of the case.

Ms. Shaughnessy also focused on various international approaches to the selection of arbitrators used by arbitration institutions. The first one is an open pool of arbitrators who are not verified in any way, their CVs are available in internal or external databases. The second one is a list of verified arbitrators offered by the institution. The third is a closed list of arbitrators, when the arbitral institution forms a recommendatory list of verified arbitrators, and the parties may select arbitrators only from this list. It is important to remember that regardless of the approach chosen, the impartiality and independence of the arbitrators must always be ensured, as this is critical to the integrity of the arbitration.

Pavlo Belousov structured his speech by outlining the Top 5 tips for the parties to the dispute to effectively select arbitrators. The first tip: know your case, analyze all the factual aspects: what procedure is applied, what rules are applied, whether the lists of arbitrators are closed or open, what is the appointment procedure, what is the applicable law, etc. The second tip: best is the enemy of good. A party should focus not on engaging the brightest arbitration star, but rather on selecting an arbitrator who is able to deal with the issues of the case in a professional and expert manner, taking into account time or other considerations, if any. The third tip: entrust the selection of an arbitrator to a legal advisor. The advisor, based on experience, will be able to select the arbitrator who is best suited to resolve a particular dispute, taking into account all the circumstances. The fourth tip: calibrate the arbitrator’s candidacy to the particular case evaluating those factors that are relevant. These factors are mainly expertise, experience, communication skills, proficiency in the language of arbitration, digital literacy, reputation, etc. The fifth tip: “Plato is my friend, but the truth is more important”. Clients usually have friendly relations with someone who could be appointed as an arbitrator in a case, but this is a major mistake in choosing an arbitrator, which leads to a conflict of interest and the destruction of the arbitration process.

Daniel Busse drew the participants’ attention to the importance of the right mix of arbitrators in an arbitral tribunal. The arbitral tribunal is to make a decision unanimously. Therefore, when forming the tribunal, one should take into account the compatibility of the members. The arbitrators belonging to different discussion traditions, different age generations, and different professional fields may not mix well. He also noted that it is important not only to choose the right arbitrator, but also to predict which arbitrator will be appointed by the  other party or the arbitral institution, and who will be elected as the chairman of the arbitral tribunal.

The knight of justice

At the end of the first session, Liudmyla Vynokurova, Vice President of the ICAC,  Dr Alexandar Ćirić, Professor of the Faculty of Law of the University in Nis (Serbia) and Tetiana Zakharchenko, a Member of the ICAC Presidium delivered a special report on the occasion of the 100th birthday anniversary of Academician Igor Pobirchenko “The Knight of Justice”. The speakers recalled the most valuable life and professional words of wisdom they had the honor to hear from Igor Pobirchenko, and shared little-known facts from the academician’s life. All the speakers emphasized Mr. Pobirchenko’s foresight, wisdom, pursuit for justice and dedication to the cause, ideas and concepts that he developed were many years ahead of his time. Mr. Pobirchenko was also remembered as a military man during the Second World War and as the founder of the first chair of a commercial law department in the history of the country.

Trends in international arbitration

The second session, moderated by Dr. Yuliya Atamanova, Partner at LCF, was a lively discussion of approaches to adapting the Rules of arbitration institutions to the requirements of the modern world among Sergii Melnyk, the Deputy Counsel at the International Court of Arbitration of ICC, Prof. Marcin Asłanowicz, President of Court of Arbitration at the Confederation of Lewiatan, James Freeman, Partner at Allen & Overy, the Member of the LCIA Board, Natalia Petrik, the Deputy Secretary at the Stockholm Court of Arbitration (SCC).

Ms. Atamanova noted that the motivation of arbitration institutions in adjusting their processes to the requirements of time and expectations of users, as well as the extreme competition between institutions, gives international arbitration a unique and powerful impetus for development.

Sergiy Melnyk shared with the audience his experience of handling cases at the ICC under the expedited procedure. The main differences between the ordinary and expedited procedures are as follows: in the ordinary procedure, both the parties and the arbitral tribunal have freedom to determine the timeframe for the consideration of the case. Under the expedited procedure, the time limit for consideration of the case is limited to 6 months. In the standard procedure, the parties have complete freedom as to how the arbitration proceeds. Under the expedited procedure, the court limits such freedoms to make the procedure faster. The expedited procedure is in demand by all industries, the most dedicated users of the procedure are the construction and energy sectors. The main advantage of using the expedited procedure is the predictability of the cost of arbitration and its timing for the parties.

Prof. Marcin Asłanowicz in his report assessed the use of mediation procedures. In particular, the speaker noted that arbitration and mediation were not mutually exclusive processes, and practicing lawyers cooperating with the Leviatan Court of Arbitration equally supported both mediation and arbitration procedures. The speaker expressed a positive assessment of the effectiveness of the combined procedures. Predicting future trends, the speaker noted that neither mediation, nor arbitration would prevail. These procedures will develop in parallel.

James Freeman discussed the crucial impact of technology on the development of international arbitration. According to the speaker, arbitration has seen revolutionary changes in the field of technology in recent years. Online arbitration is a normal practice in all arbitration institutions, which was hard to imagine just 5 years ago. Special online platforms for case administration and review have been implemented and continue to be improved in most arbitration institutions. The speaker expects even more revolutionary changes in connection with the spread of AI. According to him, this will become a new challenge for the international arbitration community.

Concluding the second session, Natalia Petrik shared with the audience the additional services arbitration institutions had started to provide to their users to simplify and improve the comfort of the arbitration process. Natalia noted that the institutions were preparing more policies and procedures, offering practical documents summarizing best practices, explaining to users the latest sanctions policies in connection with the rapid increase in the number of sanctioned companies and individuals due to russia’s war in Ukraine. Arbitration institutions also implement and develop educational programs for arbitrators. Thus, international arbitration courts are becoming increasingly useful for users of arbitration services, seeking not only to resolve disputes but also to form and develop a professional arbitration community.

In conclusion, Mykola Selivon traditionally thanked all those present and the online viewers for their time and dedication  to the International Arbitration Readings and expressed his hope that next year the Readings would be held in a peaceful and free Ukraine.

To view photos from the event, please follow the link.

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On November 15, 2023, the ICAC for the tenth time welcomed practicing, businesses, scholars and the international arbitration community at the most ...

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International Commercial Arbitration Court
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