VIII International Arbitration readings in memory of Academician Igor Pobirchenko were held in Kyiv on 7 October, 2021. The event was a hybrid of an offline conference for a limited number of delegates in line with the current covid restrictions and a live broadcasting to YouTube. The topic of this year’s Readings was “The evolution of arbitration in the turbulent world,” which was explored during the two sessions moderated by Aminat Suleymanova and Markian Malskyy.
The Readings 2021 were first to unveil the interim results of the historic comprehensive Study of the Quality and Development Stage of Arbitration in Ukraine, conducted by the Yuridicheskaya Praktika Publishing House.
100% digitalization in arbitration and the right to a physical hearing
Mykola Selivon, President of the ICAC, said that the pandemic had changed international arbitration dramatically. However, long before the pandemic outbreak, the ICAC had been working towards the digitalization of arbitration proceedings. COVID restrictions have accelerated the transformations which were already under way. It is noteworthy that in 2020-2021 the ICAC has dealt with parties insisting on a physical hearing of their case. The ICAC addressed such demands by amending the Rules accordingly, however the international arbitration community is still debating if there is the right to a physical hearing in arbitration. The issue will most probably be regulated by the national legislation and the court practice.
Technologies and innovations in arbitration
At the beginning of Session I, Aminat Suleymanova, the moderator, referring to the interim results of the Study of the Quality and Development Stage of Arbitration in Ukraine underlined that most respondents agreed that the ICAC should continue to expand electronic document management and complete the transition to 100% digitalization. The session featured Dmytro Koba, head of business development at Jus Mundi, Yasmine Lahlou, partner at Chaffetz Lindsey, Oleksii Maslov, a senior lawyer at Avellum, and Ksenia Koriukalova, a senior lawyer at AEQUO.
There is no single point of access to arbitration awards globally. Arbitration institutions are naturally interested to apply new technologies to improve such access. Dmytro Koba noted that global data on arbitral awards were not easily accessible due to several reasons: national legislations, language barriers, etc. At the same time he stated that there were attempts to develop a legaltech solution to the issue, in particular, Jus Mundi launched a unique collaboration with the ICC on the publication of international arbitral awards.
“This cooperation of an arbitration institute and a technology company is revolutionary. Jus Mundi website publishes arbitral awards preserving the confidentiality of selected details “, – said Dmytro Koba.
Oleksiy Maslov, Avellum’s senior lawyer, in his presentation outlined the fact that confidentiality was at times compromised when using new technologies. When developing databases, it is necessary to work on cybersecurity protocols and the prevention of information leakage. In Oleksii Maslov’s opinion, the parties can agree on the rules of data exchange, for example, not to use the emails of third-party services (like Google). Cybersecurity measures could be determined based on the level of the dispute and the parties of the dispute.
Yasmine Lahlou, partner at Chaffetz Lindsey, presented the study “Is There a Right to Physical Hearing in International Arbitration? The study covers 86 countries and proves that different countries have different approaches to the issue of physical hearings, and the International Arbitration community has not yet reached a unified opinion in this regard.
Ksenia Koriukalova, senior associate at AEQUO, explored the issues of evidence and proof in a virtual hearing. 2020-2021 was a wave of amends to the rules of arbitration institutions in the world. According to Ksenia, the party which requested a virtual hearing should bear the responsibility for any technical or other issues during the virtual hearing. All practicalities relating to online communication during the arbitration hearings should be agreed between the parties, the witnesses and experts should follow the arrangements agreed by the parties.
Vectors of development of the arbitration
The second session, moderated by Markiyan Malskyy, partner at Arzinger, featured Sergiy Gryshko, partner at Redcliffe Partners, Artem Dudko, partner at Osborne Clarke, Julia Atamanova, partner at LCF, Christopher Campbell-Holt, a member of the Legal Advisory Board of AIFC and Sergiy Voitovych, partner at Grishchenko & Partners. The speakers discussed the vectors of arbitration development and prospects in Ukraine.
Sergiy Gryshko shared practical insights into arbitrating a dispute involving an insolvent party. “The earlier a client starts proceedings against the debtor at the edge of bankruptcy, the better,” – comments Sergiy Gryshko.
Artem Dudko, partner at Osborne Clarke, noted that the English law contained no representations relating to the arbitrability of disputes, including corporate disputes. The parties are free to decide how to resolve their dispute, with the sole exception of disputes involving public interest. This is the basis for the decision on arbitrability.
Julia Atamanova, partner at LCF, continued exploring the topic of arbitrability of corporate disputes, dwelling on what disputes could be arbitrated, and how they should be considered.
Christopher Campbell-Holt, a member of the Legal Advisory Board of AIFC, shared his experience of the arbitral tribunal in Kazakhstan. This is an Arbitration Court at the Astana International Financial Center, integrated into the legal system of Kazakhstan to settle disputes under the English law by English arbitrators. Christopher Campbell-Holt also noted that he actively uses online tools for conducting hearings in his practice. AIFC actively uses the practice of mediation.
Starting his presentation “Ukraine as a Place of Investment Arbitration” Sergiy Voitovych, partner at Grishchenko and Partners, said that he had not come across Ukraine’s mention as a seat of an investment arbitration. This could be attributed to the confidentiality of investment arbitrations. Sergiy Voitovych believes that it is worth trying to expand the number of arbitration cases by hearing investment disputes. From the practical point of view, the settlement of investment disputes in Ukraine is advantageous and cost efficient. It is, however, necessary to create a specialized center for hearing investment disputes.
The quality of arbitration in Ukraine
Study of the Quality and Development Stage of Arbitration in Ukraine among law firms and businesses shows that the quality of arbitration services in Ukraine is high and growing. Such indicators as the qualification of arbitrators, secretariat support, the comfort of arbitration services, material and technical support of the ICAC were assessed by respondents with a range from 4 to 5 points, where 5 being the highest score.
68% of respondents identified electronic document management and digitalization as a priority development area for the ICAC.
According to the evaluation of the users of arbitration services over the past three years, the ICAC has improved the expertise of its arbitrators, the Rules, the infrastructure, the reputation among the international arbitration community, access to arbitration, level of support for the secretariat, and public communications with stakeholders.
60% of respondents do not support the creation of a specialized state investment court in Ukraine.
Readings 2021 traditionally summarized the practice of international arbitration in Ukraine during the past 12 months and reconfirmed its reputation as the most anticipated professional arbitration event in Ukraine. Nearly 100 participants viewed the Readings live, and over 400 people watched the footage on YoutTube.
You can watch the video recording of the Readings 2021 by the link
To view reflections of Readings 2021 and earlier events, please follow this link