The ІСАС cooperates with the Supreme Court, adhering to the promotion of pro-arbitration approach in the legal positions of the Grand Chamber of the Supreme Court

The ІСАС cooperates with the Supreme Court, adhering to the promotion of pro-arbitration approach in the legal positions of the Grand Chamber of the Supreme Court

On 18 October 2023 the ICAC released its Legal Opinion (Amici Curiae Brief) on the case being considered by the Grand Chamber of the Supreme Court No. 910/8318/16 under the claim of “Berezanskyi Processing Plant LLC” against “Grain Power LLC” for the recovery of outstanding funds. The ICAC stated as follows:

  • The UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards as of 1958 (the “Convention”) imposes on Ukraine, as one of the Member States, an international legal commitment (in accordance with the reservations made upon joining the Convention) to apply the Convention, in line with the international legal commitment of Ukraine as a Member State to: (i) arbitration awards, issued on territories other than Ukraine (whether or not such awards are recognized as international arbitral awards by national legislation, regardless of the nationality of the parties to the dispute, or the presence of international investments in the statutory capital of a legal entity ) and (ii) arbitral awards issued on the territory of Ukraine, which, according to the laws of Ukraine, for instance according to the Law “On International Commercial Arbitration”, are international arbitral awards;
  • The Convention imposes on Ukraine, as a Member State, an international legal commitment to recognize arbitration (third-party tribunal) agreements on submission a dispute to a foreign arbitration (third-party tribunal) with the seat of arbitration other than Ukraine;
  • an arbitral (third-party tribunal) award may not be recognized as such according to the national laws, but is subject to the Convention, shall be acknowledged and enforced in Ukraine in accordance with the procedure of recognition and providing permission for enforcement of international commercial arbitral awards, as set forth by Chapter ІХ of the Civil Procedural Code of Ukraine, and in line with the provisions of Articles ІІ-VI of the Convention, that have the primacy;
  • the nationality (the place of registration) of the parties to a dispute does not affect the recognition of arbitration as foreign as defined by Article 81 of the Law “On International Private Law”, and, that is why, according to the opinion of the ICAC, the concept of “foreign arbitration” as mentioned in Article 81(1) covers arbitration (third-party tribunal) outside Ukraine, that has considered a civil or commercial dispute between two Ukrainian legal entities, neither of which are businesses with foreign investment, provided the dispute arose out of civil or commercial legal relationships with a foreign element;
  • referring to the constitutional prescriptions and the current laws of Ukraine, the consent of Ukrainian legal entities, neither of which are businesses with foreign investment, to submitting a dispute between such parties to an foreign arbitration (third-party tribunal) provided the dispute arose out of civil or commercial legal relationships with a foreign element e.g. while conducting foreign economic activities, does not conflict with the national laws of Ukraine.

The full text of the opinion is available following the link (in Ukrainian)

Taking into account significant legal developments, in particular, the direct provision of the Commercial Procedural Code of Ukraine and the Civil Procedural Code of Ukraine that national courts shall apply a pro arbitration approach to considering on the effectiveness, validity and enforceability of arbitration agreements, on 01 November 2023 the Grand Chamber of the Supreme Court retreated from the Opinion of the Supreme Court of Ukraine, spelled out in the Ruling dated 18 October 2017 relating to case No. 910/8318/16 and noted as follows:

  • The Convention, taking into account the initial goals laid down in it, shall be interpreted in a pro-arbitration way, this means that in case of doubts courts shall decide in favor of recognition of arbitration agreements, recognition and enforcement of arbitral awards («pro-enforcement bias»);
  • the recognition and enforcement of all arbitral awards, that are not qualified as internal in Ukraine, is aligned with the commitments of Ukraine as a Member State;
  • according to the provisions of the Convention, the law of Ukraine “On International Private Law” and “On International Commercial Arbitration”, an arbitration shall be understood as “foreign”, if the dispute arose out of legal relationships with a foreign element and the seat of arbitration is located abroad, in a jurisdiction different from the jurisdiction of enforcement of the arbitral award. A dispute, arising out of private legal relationships with a foreign element between legal entities, registered in Ukraine, may be transferred for resolution to foreign arbitration according to the provisions of such acts, taking into account the reservations, set forth by national laws, in particular the provisions of procedural law on the exclusive jurisdiction of Ukrainian courts;
  • The Grand Chamber of the Supreme Court made the conclusion that the inclusion of an arbitration clause by the parties to an agreement leads to the application of the arbitration clause to legal relations under the same agreement with other entities, that entered into the legal relationships as a party, and thus accepted the rights and obligations of a party to an agreement, and the parties to the agreement have not terminated the arbitration clause, have not excluded certain types of disputes from the effect of the arbitration clause, have not lifted up the mandatory nature of the arbitration clause for such other entities, and the arbitration clause has not become invalid as a result of any other circumstances.

The ICAC welcomes the pro-arbitration position of the Grand Chamber of the Supreme Court, that has made a significant contribution into the enhancement of Ukraine’s positioning as a jurisdiction that is friendly to international and foreign arbitration, and expresses its gratitude for the opportunity to become part of joint efforts in the interests of Ukraine.

The ICAC will continue implementing its mission of promoting international arbitration and transforming Ukraine into a leading arbitration seat in Eastern Europe.



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On 18 October 2023 the ICAC released its Legal Opinion (Amici Curiae Brief) on the case being considered by the Grand Chamber of the Supreme Court ...

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