Inna Yemelianova and Volodymyr Nagnybida, the Vice Presidents of the ICAC, took part in the Roundtable “Justice of the Future: Judicial Network and Access to Justice” organized by Yurydychna Praktyka Publishing House with the support of the Supreme Court, the High Council of Justice and the Institute of Lawmaking, Academic and Legal Expertise of the National Academy of Sciences of Ukraine.
The roundtable focused on discussing key aspects of the development of the judiciary and constitutional justice. The role of alternative dispute resolution in the legal system was an important stand-alone topic on the event agenda.
Inna Yemelianova, the Vice President of the ICAC, noted that although the resolution of legal disputes is traditionally associated with in-court proceedings, the judicial format of protecting the rights and interests of the disputing parties does not always meet their best interests and does not always bring them closer to resolving the dispute. That is why, it is extremely important to develop and scale alternative dispute resolution, including arbitration.
The role of alternative dispute resolution is often narrowed to “lowering the pressure on the judicial system”. This is certainly true, especially in the context of an extremely large caseload pending and a huge deficit of judges in the system. But the key thing about alternative dispute resolution is its significant positive social impact. In free democratic states, one should have the freedom of choice as to how to protect one’s violated rights. The best way to resolve private law disputes is to resolve the conflict confidentially rather than escalate it through public process.
Inna Yemelianova suggested applying a helicopter view approach considering the role of arbitration in the justice system. Arbitration is a method of resolving both private law disputes and international disputes. International arbitration has long ago gone beyond private disputes. The number of cases involving the state and state-owned legal entities is growing. Public interests are often involved, as in the case of investment arbitration. Today, arbitration is an autonomous and largely self-regulated dispute resolution system with its own flexible procedural law, its own values, institutions, and its own community of lawyers and legal scholars. And in this form, arbitration plays a major role not only for regulating the global economy, but also for the functioning of society as a whole.
The global trend of legislative development is expanding the arbitrability of disputes. Ukraine should follow the trend. Arbitration is no longer just one of the available dispute resolution instruments, it has become the predominant, and sometimes the only method of dispute resolution for certain industries.
Volodymyr Nagnybida, the Vice President of the ICAC, focused on the issues of international investment dispute resolution by a contemplated specialized state investment court in Ukraine. In particular, Mr. Nagnybida underlined that the main criteria for selecting a dispute resolution institution for the parties to an investment dispute are reputation, international recognition, neutrality and independence. That is why the vast majority (more than 90%) of such disputes are resolved through arbitration under the rules of ICSID, PCA, SCC, ICC, LCIA, which allow the parties to participate in the formation of the arbitral tribunal by selecting the most authoritative and experienced arbitrators. Therefore, the realities of the international practice of resolving investment disputes for over 50 years, show that it is arbitration that best suits the interests of the parties to international investment disputes.
Volodymyr Nagnybida supported the opinion of the roundtable participants saying that it does not seem quite rational to create a specialized investment dispute resolution court in Ukraine. He noted that given the complex nature of investment projects, various categories of disputes may and often arise, some of which may be subject to the jurisdiction of commercial courts that successfully operate in Ukraine.
Investment disputes can also be considered by the ICAC at the Ukrainian CCI, which has 30 years of experience in resolving international commercial disputes and the appropriate material and technical base. Moreover, among the arbitrators of the ICAC at the UCCI there are many internationally recognized experts with significant experience in resolving investment disputes under the rules of various institutions (ICSID, PCA, ICC, SCC, LCIA, etc.). In order resolve investment disputes in the ICAC, it is necessary to introduce specific amendments to Article 1 of the Law of Ukraine “On International Commercial Arbitration” to enable the possibility of investment disputes resolution, as well as to include the ICAC at the Ukrainian CCI in the list of institutions that can resolve investment disputes provided for in agreements on the promotion and mutual protection of investments.
