On 4 September 2014 in the premises of the Kyiv Regional Center of the Ukrainian National Academy of Law Sciences the International Commercial Arbitration Court and the Maritime Arbitration Commission at the Ukrainian Chamber of Commerce and Industry jointly with the Scientific-Research Institute of Private Law and Entrepreneurship of the Ukrainian National Academy of Law Sciences and the Ukrainian Civilist Association held a round table: “Limits of court intervention in international commercial arbitration”.
The topic of the round table was determined by the necessity to discuss some of the tendencies that have emerged in the practice of general and economic courts with respect to international arbitration. The topic’s actuality as a consequence attracted a lot of interest to the round table among the legal community. 72 participants took part in the work of the round table, among them:
- representatives of the judicial authorities (Maryna CHERVYNSKA,Vice President of the High Specialized Court of Ukraine for Civil and Criminal Cases, Gennadiy KRAVCHUK, Vice President of the Supreme Economic Court of Ukraine, Liliya GRYGORIEVA, the judge of the Supreme Court of Ukraine, as well as judges of the High Specialized Court of Ukraine for Civil and Criminal Cases, the Supreme Economic Court of Ukraine, the Economic Court of Kyiv and the Shevchenko District Court of Kyiv);
- representatives of foreign and Ukrainian law firms;
- legal practitioners in the field of foreign trade and arbitration;
- arbitrators of the ICAC and MAC at the UCCI;
- representatives of the academic and institutional science;
- students and graduates of higher education institutions.
The round table was opened by Mykola SELIVON, Academician of the Ukrainian National Academy of Law Sciences, Professor, President of the ICAC and MAC of the Ukrainian CCI, who has explained that the reason for holding the roundtable is the need for further improvement and development of cooperation of the judiciary and the International Commercial Arbitration Court, especially in the field of assistance to arbitration.
The participants of the round table, in particular the representatives of the judicial authorities, have unanimously supported the need to improve the procedural legislation, which establishes the procedure for challenging, recognition and enforcement of arbitral awards, particularly with regard to withdrawal of these cases from the jurisdiction of the courts of first instance and refer them for the consideration of the courts of appeal. In addition, manifestly unjust have been deemed the provisions of the Code of Civil Procedure, which oblige the court, while recognizing the award, to convert the foreign currency specified in the arbitral award in the Ukrainian hryvnya. They have also noted that, by virtue of international law and the Law of Ukraine «On International Commercial Arbitration» one of the important functions of the state courts is to provide support and assistance to the arbitration proceedings. However, there are no procedural rules in the legislation of Ukraine that enable courts to ensure the implementation of this function, that almost makes it impossible for the courts to provide such a support or assistance to arbitration. The most acute problem for the courts is to take interim measures in support of arbitration, the possibility of which is provided by Article 9 of the Law of Ukraine «On International Commercial Arbitration».
The issue of setting aside the arbitral awards of the ICAC and MAC at the Ukrainian CCI is also a sore subject on the ground that the Arbitral Tribunal «interpreted the arbitration agreement» when the parties have not asked about it. In particular, such practices occurred when the parties specified inaccurate name of the ICAC at the Ukrainian CCI in the arbitration agreement (for example, instead of «the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry» it was stated «the International Trade Arbitration Court at the Ukrainian Chamber of Commerce and Industry». This is a testament to that judges who considered those disputes, did not take into consideration one of the basic principles of international commercial arbitration – the «competence – competence» principle, obliging arbitrators, proceeding to settle the dispute, to consider the matter whether they have or have no jurisdiction. The Arbitral Tribunal can not implement this obligation without analyzing, judging and interpreting the provisions of the arbitration agreement.
The issue of arbitrability of certain categories of disputes is also topical. Specifically, unresolved is the question of whether the limitation of jurisdiction set for the arbitration tribunals (third-party tribunals) in Article 12 of the Code of Economic Procedure of Ukraine and the exclusion of jurisdiction for their consideration of disputes arising out of the conclusion, amendment, termination and execution of commercial contracts related to the satisfaction of state needs shall be applied to arbitration. Likewise, there is no single answer to the question of the arbitrability of corporate disputes.
The round table also discussed other important issues of cooperation between state courts and international commercial arbitration.