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Frequently asked questions regarding the recognition and enforcement in Ukraine of an international commercial arbitration award

How is international commercial arbitration (ICA) award recognized and enforced in Ukraine?

The award of ICA is recognized and enforced in Ukraine if

  • its recognition and enforcement is provided for by an international treaty or
  • by the principle of reciprocity.

If the recognition and execution of an arbitration award depend on the principle of reciprocity, it is considered that it exists, since it has not been proven otherwise.

Ukraine is a party to some international treaties governing the recognition and enforcement of international commercial arbitration awards, and among them, the following should be noted:

  • Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958;
  • The European Convention on International Commercial Arbitration, 1961;
  • Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, 1998.

In what cases shall the question of recognition and granting permission to enforce an international commercial arbitration award be considered?

In one of two cases:

  1. if the debtor has a place of residence (stay) or location in the territory of Ukraine;
  2. if there is a property of the debtor on the territory of Ukraine.

Which court in Ukraine shall consider the issue of recognition and granting permission to enforce an award of international commercial arbitration?

The Court of Appeal, whose jurisdiction extends to the territory of Kyiv, namely, the Kyiv Court of Appeal, located at Ukraine, 02000, Kyiv, Solomenskaya street, 2a.

Website of the court: http://www.apcourtkiev.gov.ua/

How long can the claimant file an application to the court with the question of recognition and granting permission to enforce an award of international commercial arbitration?

It is possible to make during 3 (three) years from the date of the award of ICA.

Are there any requirements for the application to the court in this case?

Yes, such an application shall be submitted in writing and must contain, among other things, necessary information about the court to which such an application is submitted, the parties to the arbitration process and the award made on its result.

Also, the following primary documents are to be attached to such an application:

  1. arbitration award,
  2. arbitration agreement,
  3. proof of payment of court fee.

These documents shall be translated into Ukrainian or a language stipulated by an international agreement.

How long is the legal proceeding in the court?

The application shall be considered for 2 months from the date of its receipt in court.

Is it possible to secure a claim during a legal proceeding on recognition and enforcement an award of international commercial arbitration?

Yes, it is possible at any stage of consideration of the application, if not taking such measures can complicate or make impossible the execution of the award of international commercial arbitration in case of granting permission for its execution.

Does a court able to refuse to recognize and grant permission to enforce an award of international commercial arbitration in Ukraine?

Yes. The court shall refuse to recognize and execute the award of international commercial arbitration:

(1) at the request of the party against whom it is directed, if that party presents evidence to the court that:

a. one of the parties to the arbitration agreement was to some extent legally incompetent, or this agreement is invalid under the law applicable to it, and in the absence of such indication, according to the law of the country where the award was made; or

b. the party against whom the award was made was not duly notified of the appointment of the arbitrator or of the arbitral proceedings or for other reasons could not provide its explanations; or

c. The award is made on a dispute that is not provided for or not subject to the arbitration agreement, or contains rulings on matters beyond the scope of the arbitration agreement (however, if rulings on issues covered by the arbitration agreement can be separated from those not covered by such agreement, that part of the award that contains rulings on matters covered by the arbitration agreement can be recognized and executed); or

d. the international commercial arbitration panel or the arbitration procedure did not comply with the agreement of the parties or, in the absence thereof, did not comply with the law of the country where the arbitration took place; or

e. the award has not yet become obligatory for the parties, or was canceled, or its execution was suspended by the court of the country in which or in accordance with the law of which it was adopted; or

(2) if the court accepts that:

a. under the law, a dispute, considering its subject matter, cannot be submitted for the resolution of international commercial arbitration; or

b. recognition and enforcement of this award are contrary to the public order of Ukraine.

What should be done in case of voluntary execution of the award of international commercial arbitration?

In this case, it is possible to apply to the court for voluntary execution of the arbitration award. Such an application can be filed only in the case of the voluntary execution of such an award in full, or if the award is made against several debtors, to the extent that it concerns the debtor who applies.

The application shall be considered within 10 days from the moment of its receipt to the court and is subject to satisfaction, if there are no grounds on which the court can refuse to satisfy it, namely, if the court recognizes that

  • in accordance with the law, a dispute, considering its subject matter, cannot be submitted for the resolution of international commercial arbitration; or
  • recognition and enforcement of this award are contrary to the public order of Ukraine.

Such an award of the court may be appealed and shall enter into force upon the expiration of the term on the appeal or after consideration by the court of appeal.

Are there any distinctions of enforcement of the award of international commercial arbitration, which is located on the territory of Ukraine?

In general, the procedure for recognizing and granting permission to execute an award of international commercial arbitration, which is located in Ukraine, is the same as for award made outside Ukraine.

At the same time, there are some distinctions, which are as follows:

  • The court may stop the proceedings concerning recognition and granting permission to enforce an award of international commercial arbitration if there is an application to the court to cancel such an award. Such suspension shall be established until the moment when the court decision on the application for setting aside of the arbitral award enters into legal force.
  • Also, before deciding on an application for enforcement of an arbitration award, each party may apply to the court with an application for setting aside of such an arbitration award and ask the court to consider such an application along with an application for enforcement of such award in one legal proceeding.
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