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25 September 2018

Freedom to choose the rules of the game: do not lose your right to arbitration

Summing up Regional Presentations

From February to May 2018, the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry (ICAC), with expert support from Sayenko Kharenko Law Firm, held a series of events aimed at presenting the updated Rules of the ICAC and the Maritime Arbitration Commission at the Ukrainian Chamber of Commerce and Industry (UMAC) and related court procedures. These presentations took place in seven Ukrainian cities and gathered more than 300 participants.

A short summary on all regional presentations is available here (in Ukrainian).

On 20 September 2018, a summing-up of regional presentations took place in order to discuss the awareness of regional entrepreneurs, business leaders, arbitrators, judges, and scholars of the state’s pro-arbitration policy, updated Rules, and alternative dispute resolution methods.

Key speakers were:

  • Mykola Selivon, Chairman of the ICAC and UMAC
  • Tetiana Zakharchenko, ICAC and UMAC Deputy Chairman
  • Olha Kostyshyna, Advisor to the Chairman of the ICAC and UMAC
  • Volodymyr Nahnybida, ICAC Arbitrator
  • Olexander Droug, Partner at Sayenko Kharenko
  • Volodymyr Yaremko, Counsel at Sayenko Kharenko

Mykola Selivon, Chairman of the ICAC and UMAC, and Tatyana Slipachuk, partner and head of international trade and international arbitration practices at Sayenko Kharenko Law Firm, first came up with the idea of holding a series of regional presentations.

According to Mykola Selivon, “The reform of procedural legislation, in particular, with regard to international commercial arbitration, and the new ICAC and UMAC Rules convincingly confirm the fact that Ukraine is a pro-arbitration state, both in terms of legal regulation of this sphere of legal relations and the functioning of international commercial arbitration institutions in Ukraine that operate in line with modern global standards. I am happy to note that many years of effective activities of the ICAC and UMAC and their experience have allowed them to play an active role in this reform and to be the subject rather than the object of change. All these novelties in the legal regulation of international arbitration and the new possibilities of Ukrainian arbitration institutions had to be brought to business and the legal community. For this purpose, the organizational, material and technical capabilities of the chambers of commerce and industry and the intellectual potential of the ICAC and UMAC professionals and Sayenko Kharenko Law Firm were engaged.

When, at the beginning of 2018, important novelties emerged within the arbitration practice and related legislation in Ukraine, they brought along new opportunities. These changes are extremely useful for Ukrainian business. Therefore, Sayenko Kharenko, together with the ICAC, decided to hold a series of professional events in Kyiv and various regions of Ukraine devoted to the discussion of the new ICAC Rules and related court procedures. These eight months were very busy and fruitful, and we are happy to have joined the initiative to raise awareness among the legal community about the new rules of the game in the market and in the practice of international arbitration in Ukraine. I am convinced that this benefited both business representatives and practicing lawyers and Ukraine as a whole,” commented Tatyana Slipachuk.

During the final event of the series, a number of important issues were discussed. In particular, Tetiana Zakharchenko, ICAC and UMAC Deputy Chairman, emphasized the most important novelties of the updated ICAC Rules: “When developing the Rules, the Presidium of the UCCI focused on the modernization of arbitration proceedings and efforts to make them faster, more efficient, and more cost-effective. The fourth edition of the Rules has a refined procedure for arbitration, which above all is very important during the consideration of complex cases. It has further developed provisions on interim measures; detailed provisions on the standards of evidence; the date of decision pronouncement is re-established, being no longer the date of the oral hearing of the case as before, but rather the date determined by taking into account the last signature of an arbitrator on the arbitral decision. A mandatory inspection of draft arbitral decisions by the Secretary-General of the ICAC for compliance with the provisions of the ICAC Rules is also introduced.”

Olexander Droug, Partner at Sayenko Kharenko, and Volodymyr Yaremko, Counsel at Sayenko Kharenko, commented on changes to the procedural legislation important for popularizing arbitration in Ukraine. According to Olexander Droug, “The most progressive novelties in procedural legislation include the concentration of consideration of all cases on the recognition and enforcement of first-instance arbitral decisions in the Kyiv Court of Appeal, which both simplifies and speeds up the procedure for examining the relevant petitions. Strengthening the protection of the interests of a recoverer under the arbitral decision: in case an arbitral decision provides for a foreign currency, the sum of recovery may be determined in the national currency based on the application of a recoverer only. The court is now authorized to calculate the final sum of recovery of interest and penalties under the terms of the arbitral decision.” Volodymyr Yaremko believes that “the most progressive change is the introduction of mechanisms for judicial assistance in arbitration. Previously, such remedies as legal assistance in obtaining evidence, as well as providing evidence or claim, in support of the arbitration process were not at all available. Now, representatives of the parties to a dispute have the opportunity to ‘be armed’ with virtually the same tools to protect the rights of their clients that operate in foreign pro-arbitration jurisdictions.”

Olha Kostyshyna, Advisor to the Chairman of the ICAC and UMAC, explained why ICAC was the best choice among alternative methods to resolve foreign economic disputes: “The reform of Ukrainian procedural legislation and the new ICAC and UMAC Rules provide significant benefits to Ukrainian jurisdiction, and the ICAC is becoming the best alternative to protect business interests. Among the main factors that the users of ICAC services distinguish are the low cost of arbitration proceedings, which is on average 3–4 times more competitive than at arbitration institutions of Central and Western Europe. They also note the speed of arbitration, the enforceability of arbitral decisions, and the list of arbitrators from thirty-three countries that are recommended for arbitration by internationally recognized rankings Chambers and Partners and The Legal 500, and that are able to handle disputes of any complexity, as well as the high level of support of the parties to proceedings and arbitrators on the part of the ICAC Secretariat.”

Volodymyr Nahnybida, an ICAC Arbitrator, shared his general impressions of the events and emphasized the need for similar educational activities. “Experience had shown that the legal community has demand for such regional events. The organizers have received many suggestions for similar workshops for corporate lawyers and representatives of the local legal business.”

Promotion of domestic arbitration institutions should become one of the vectors of state policy. We have to communicate, both to the business community and to the international community, that our arbitration legislation is currently one of the most up-to-date. In this regard, Ukraine has become on a par with leading global pro-arbitration jurisdictions. It now depends on the joint actions of the arbitration community, judiciary establishment, and the state authorities as to how effectively we will implement it.

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