On 17 November 2020 Kyiv hosted VII International Arbitration Readings in memory of academician Igor Pobirchenko.
What kind of arbitration does Ukraine need?
This year the Readings is dedicated to the open dialogue of public authorities, business and the legal community on the development of international arbitration in Ukraine: Arbitration for business, or reforms for reforms sake?
The first session of the Readings, moderated by Dr. Tetyana Slipachuk, gathered insights into the future of international arbitration in Ukraine from Inna Yemelianova, ICAC Vice President, Ivan Lishchyna, Deputy Minister of Justice of Ukraine – Commissioner for European Court of Human Rights, Julia Chernyak, Judge of the Civil Cassation Court
The opening remarks by Mykola Selivon, ICAC’s President, summarized that this year’s Readings aim at matching the anticipated next steps of the state to further promote and support arbitration in Ukraine with the expectations of business. Mr. Selivon referred to continuous reformation of arbitration-related legislation and unpredictable regulatory framework as the worst-case scenario for business and investment protection in Ukraine. Whilst technical legislative improvements, which make arbitration a more comfortable and accessible service are always welcome, major institutional changes as well as the setup of additional or new arbitration institutions or special purpose courts will lead to the lack of trust in arbitration as a whole.
The Reading’s Takeaway: “International arbitration institutions need to adjust to new global challenges fast”.
Dr. Tetyana Slipachuk emphasized that at times of the pandemic and after the legislation should duly regulate and guarantee additional communications instruments in arbitration empowering a smarter, better and simpler arbitrating, e.g. online hearings, online witness testimonies, online document exchange. Ukraine remains one of the most progressive arbitration jurisdictions in the Eastern Europe, and the faster the ICAC adopts to post-covid arbitration realia, the more often business will choose to arbitrate in Ukraine.
The Reading’s Takeaway: “The State Concept of the Judicial Reform contains further pro-arbitration initiatives”.
Inna Yemelianova supports the expansion of the types of disputes that can be resolved in arbitration. Ms. Yemelianova stressed the importance of integrating legislative clauses that would disable the parties to abuse their procedural rights. The speaker also updated the Readings delegates on the progress of the intergovernmental efforts to develop the Concept of the Judicial Reform in Ukraine. The ICAC is the contributor to the Concept and advocates for more pro-arbitration initiatives to be incorporated and further implemented at the state level.
The Reading’s Takeaway: “The demand for efficient resolution of investment disputes is growing”.
Ivan Lishchyna does not expect the expansion of international arbitration institutions to Ukraine. He stated that there was an ongoing discussion about the creation of a specialized investment state court in Ukraine. However, the barriers to effectively launching a national investment court are multiple – from the lack of multilingual judges experienced in hearing disputes governed by foreign laws, to the lack of investors’ trust to a newly created court.
At the same time Ukraine enters into numerous bilateral investment treaties and feels the growing demand for arbitrating investment disputes in Ukraine which can be ensured via established trustworthy Ukrainian arbitration institutions.
The Reading’s Takeaway: “State courts support arbitration”
Julia Chernyak reassured that the state courts at all time respect the choice of a party to resort to arbitration and support the development of arbitration in Ukraine. The largest number of arbitration-related requests to state courts seek the acknowledgement and enforcement of arbitral awards in Ukraine. According to Ms. Chernyak in 2019 the Cassation Civil Court issued a summary of the court practice relating to the acknowledgement and enforcement of arbitral awards in Ukraine.
State courts do from time to time have to deal with the attempts of losing parties to abuse their procedural rights. However, state courts do not typically deny the acknowledgement and enforcement of an arbitral award on these grounds. This position of state courts is important to the arbitration community. Ms. Chernyak reassured that the state court judges understand that parties are not interested in the procedures, they are interested in the opportunity to effectively enforce the arbitral awards. The judge also stated that she did not anticipate further digitalization of dispute resolution to lead to a more intensive challenging of court decisions.
What are the expectations of business from arbitration?
The second session moderated by the ICAC’s arbitrator and partner at Aequo law firm Pavlo Byelousov gathered the opinions of top businesses in various industries on their expectations from arbitration. The speakers included Nataliia Pylypceva, Deputy Director of the Legal Department BUNGE, GAFTA arbitrator, Iaroslav Gregirchak, Deputy Business Ombudsman, Iegor Sierov, Legal Counsel at PJSC Ukrnafta, Victoriya Shebueva, judge of the Kyiv Court of Appeal.
The Reading’s Takeaway: “Transparency and time efficiency make arbitration appealing for business”
Business people, in particular Nataliia Pylypceva, emphasize the positive developments of the ICAC and the UMAC Rules relating to the digitalization and simplification of arbitration proceedings. Business is interested to receive and enforce an arbitral award while the disputable assets are still intact.
Iaroslav Gregirchak talked about the role the Business Ombudsman Council in protecting national and international investors in Ukraine. He shared the Business Ombudsman Council success stories of amicable settlement of disputes involving international investors, which could otherwise had landed in international investment arbitration institutions.
Iegor Sierov shared the experience of a major oil & gas company in arbitrating in the ICAC. Mr. Sierov has also stated that the future of arbitration institutions lies in specialization.
Victoriya Shebueva highlighted the recent positive statistics of the state courts on issuing of enforcement permits on arbitral awards, including arbitral awards granted by the ICAC. The judge stated that the cooperation of state courts and arbitration institutions would enable to respond to the demand of business for the fast and efficient dispute resolution.
Summarizing the key takeaways of VII International Arbitration Readings Mr. Mykola Selivon highlighted the following:
- The ICAC is moving towards the specialization of arbitrators
- State courts employ a more progressive and modern approach towards international arbitration
- The State of Ukraine supports further steps to enhance pro-arbitration regulatory environment in Ukraine
- The ICAC is prepared to expand and develop its services to fulfill the demand of business for efficient and timely dispute resolution in Ukraine.
About VII International Arbitration Readings 2020
New hybrid conference format
While the majority of international, national and regional professional gatherings in the area of international arbitration has been cancelled due to the pandemic, the ICAC, which traditionally hosts Ukraine’s top-notch international arbitration event – the International Arbitration Readings – organized the 2020 Readings in an innovative hybrid format, merging high quality live broadcasting with a series of off-line dialogues.
Record breaking attendance
The Readings were viewed live by over 120 delegates, while the recorded broadcast was viewed by over one thousand people, which is a record-breaking number of delegates at an on-line professional event. In 2020 the Readings were accredited for the first time by the National Association of Defense Attorneys of Ukraine.