International Commercial Arbitration in Ukraine

The basic act in the field of Commercial Arbitration in Ukraine is International Commercial Arbitration Act. This Act is based on the recognition of the value of arbitration (third-party tribunal) as a widely used method of settling disputes arising in international trade, as well as on the recognition of the need for comprehensive regulation of international commercial arbitration by means of legislation; it takes into account the provisions on such arbitration contained in international agreements to which Ukraine is a party as well as in the Model Law adopted in 1985 by the United Nations Commission on International Trade Law and approved by the United Nations General Assembly with a view to its possible use by states in their legislation. This Act does not affect any other act of Ukraine by virtue of which certain disputes may not be submitted to arbitration or may be submitted to arbitration only according to provisions other than those of this Act.

For the purposes of this Act:
"arbitration" means any arbitration (third-party tribunal) whether conducted by a tribunal set up specifically for a given case or administered by a permanent arbitral institution, in particular, the International Commercial Arbitration Court or the Maritime Arbitration Commission at the Ukrainian Chamber of Commerce and Industry;
"third-party tribunal" means a sole arbitrator or a panel of arbitrators;
"court" means a respective organ of the judicial system of a state;
the term "commercial" shall be interpreted broadly and encompasses matters arising from any relations of a commercial nature, both contractual and non-contractual. Commercial relations include, but are not limited to, the following contracts: any commercial contracts on the delivery of goods or provision of services, or on the exchange of goods and services; distribution contracts; commercial agency; factoring; leasing; engineering; construction of industrial facilities; consulting; licensing agreements; investment; financing; banking services; insurance; sharing or concession agreements; joint ventures and other forms of industrial and business cooperation; and shipment of goods and carrying passengers by air, sea, rail and road;


Pursuant to an agreement of the parties, the following may be subject to international commercial arbitration:
- disputes resulting from contractual and other civil law relations arising in the course of foreign trade and other forms of international trade relations, provided that the location of business of at least one of the parties is situated abroad; as well as
-disputes arising between enterprises with foreign investment, international associations and organizations established in the territory of Ukraine; disputes between the participants of such entities; as well as disputes between such entities and other subjects of the law of Ukraine.

Arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a definite legal relation, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

The arbitration agreement shall be in writing. An agreement is in writing if it is contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement, or in an exchange of statements of claim and rejoinder in which the existence of an agreement is alleged by one party and not denied by another. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract.

A court in which an action is brought in a matter which is the subject of an arbitration agreement shall, if any of the parties so requests not later than when submitting his first statement on the substance of the dispute, suspend the proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, lost its validity, or cannot be performed.

The parties are free to determine the number of arbitrators. If the parties have not determined such a number, three arbitrators shall be appointed. When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances which may give rise to justifiable doubts as to his impartiality or independence. An arbitrator may be challenged only if there are circumstances that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications required by the agreement of the parties. A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which the party becomes aware after the appointment has been made.

The arbitration tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitration tribunal that the contract is null and void shall not ipso jure entail the invalidity of the arbitration clause.

The parties are free to agree on the place of arbitration. If there is no such agreement, the place of arbitration shall be determined by the arbitration tribunal with regard to the circumstances of the case, including the convenience of the parties. Subject to the provisions of this Act, the parties are free to agree on the procedure to be followed by the arbitration tribunal as well as language in conducting the proceedings. The parties shall be treated equally and each party shall be given a full opportunity to present its case. The arbitration tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given State shall be construed as directly referring to the substantive law of that State and not to its rules on conflicts. If there are no instructions from the parties, the arbitration tribunal shall apply the law determined by the conflict rules, which it considers applicable.

The parties shall be given sufficient advance notification of any hearing and of any meeting of the arbitration tribunal for the purposes of inspection of goods, other property or documents. Arbitration proceedings are terminated by a final decision or by an order of the arbitration tribunal. The arbitration tribunal shall issue an order for the termination of the arbitration proceedings when:
- the claimant withdraws his claim, unless the respondent objects thereto and the arbitration tribunal recognizes a legitimate interest on his part in obtaining a final settlement of the dispute;
- the parties agree on the termination of the proceedings;
- the arbitration tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.

An arbitration decision may be cancelled by the court only if the party making the application for canceling provides proof that:
- a party to the arbitration agreement found itself in a state of incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, if there is no such indication thereon, under the law of Ukraine; or
- he was not given proper notice of the appointment of an arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or
- the decision was made regarding a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the decision which contains decisions on matters not submitted to arbitration may be set aside; or
- the composition of the arbitration tribunal or the arbitration procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of Act from which the parties cannot derogate, or, if there is no such agreement, the court finds that:
- the subject matter of the dispute is not capable of being settled by arbitration under the law of Ukraine; or
- the decision is in conflict with the public policy of Ukraine.

Recognition or enforcement of an arbitral decision, irrespective of the country in which it was made, may be denied only:
1) at the request of the party against whom it is invoked, if that party provides to the competent court where recognition or enforcement is sought, proof that:
a party to the arbitration was in a state of incapacity; or the said agreement is not valid under the law to which the parties have subjected it to or, if there is no indication thereon, under the law of the country where the decision was made; or
the party against whom the decision was made was not given proper notice of the appointment of an arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or
the decision was made regarding a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decision on matters submitted to arbitration can be separated from those not so submitted, that part of the decision which contains decisions on matters submitted to arbitration may be recognized and enforced; or
the composition of the arbitration tribunal or the arbitration procedure was not in accordance with the agreement of the parties or, if there is no such agreement, was not in accordance with the law of the country where the arbitration took place; or
- the decision has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that decision was made; or
if the court finds that:
the subject matter of the dispute cannot be settled by arbitration under the law of Ukraine; or
the recognition or enforcement of the decision would be contrary to the public policy of Ukraine.

Regulation on the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry

1. The International Commercial Arbitration Court is an independent, permanently functioning arbitration institution (third-party tribunal) that carries out its functions in conformity with the International Commercial Arbitration Act of Ukraine.
The Ukrainian Chamber of Commerce and Industry approves the Rules of the International Commercial Arbitration Court, the schedule of arbitration fees, rates of arbitrators' fees and other expenses of the Court, and assists the Court in its activities.
2. Pursuant to an agreement of the parties, the following may be referred to the International Commercial Arbitration Court:
disputes from contractual and other civil law relations arising in the course of foreign trade and other forms of international economic relations, provided that the place of business of at least one of the parties is located abroad; as well as
disputes arising between enterprises with foreign investments, international associations and organizations established in the territory of Ukraine, disputes between their participants, as well as their disputes with other legal entities in Ukraine.
Foreign trade relations, resulting in disputes that may be referred to the International Commercial Arbitration Court include, in particular, any transactions involving the sale/purchase/delivery of goods and works, provision of services, exchange of goods and/or services, carriage of goods or passengers, commercial representation and agency, leasing, scientific and technical exchange, exchange of other results of intellectual activity, construction of industrial and other facilities, licensing operations, investment, credit and settlement transactions, insurance, and joint ventures and other forms of industrial and business cooperation.
The International Commercial Arbitration Court shall also hear disputes subject to its jurisdiction by virtue of international agreements to which Ukraine is a party.
Decisions of the International Commercial Arbitration Court shall be executed by the parties voluntarily within the time limit indicated by the Court. If the decision does not indicate any time limit, it shall be carried out immediately. Decisions not executed within the applicable time limit shall be enforced in accordance with legislation and international agreements.
In matters subject to the jurisdiction of the International Commercial Arbitration Court, the Chairman of the Court may, at the request of a party, determine the amount and the form of the security for the claim.
The International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry has its own seal reproducing its name in the Ukrainian and English languages and displaying a sword and scales of justice.

Regulation on the Maritime Arbitration Commission at the Ukrainian Chamber of Commerce and Industry

1. The Maritime Arbitration Commission is an independent, permanently functioning arbitration institution (third party tribunal) that carries out its functions in settling disputes falling within its jurisdiction in accordance with Article 2 of this Regulation, in conformity with the Act of Ukraine On International Commercial Arbitration.
The Ukrainian Chamber of Commerce and Industry approves the Rules of the Maritime Arbitration Commission, the schedule of arbitration fees, the rates of arbitrators' fees and other expenses of the Commission, and assists the Commission in other ways to discharge its duties.
2. The Maritime Arbitration Commission shall settle disputes arising from contractual and other civil law relations in the area of merchant shipping, irrespective of whether the parties to relations include both Ukrainian and foreign entities, or whether the parties are only Ukrainian entities or only foreign entities. In particular, the Maritime Arbitration Commission shall settle disputes arising from relations concerning the following matters:
- affreightment of vessels, the carriage of goods by sea, and the carriage of goods in mixed navigation (river and sea);
- maritime towage of vessels or other floating objects;
- marine insurance and reinsurance;
- sale of seagoing vessels and other floating objects, their repair and maritime liens;
- piloting, conducting through ice, agency work or other servicing of seagoing vessels, as well as - vessels of inland navigation to the extent that the relevant operations are connected with the sailing of such vessels on sea routes;
- use of vessels for scientific research, production of minerals and hydro-technical or other works;
- salvage of seagoing vessels or of vessels of inland navigation by seagoing vessels, as well as the salvage in sea waters of vessels of inland navigation by other vessels of inland navigation;
- raising of vessels and other property sunken in sea waters;
- collisions between seagoing vessels, or between a seagoing vessel and vessel of inland navigation, or between vessels of inland navigation in sea waters, as well as damage to port installations, navigational aids and other objects by vessels;
- damage to fishing nets or other fishing gear, as well as other damage in conducting the maritime fishing trade.
The Maritime Arbitration Commission shall also consider disputes arising in connection with sailing of seagoing vessels and vessels of inland navigation on international rivers, in the instances specified in this Article, and also disputes arising in connection with vessels of inland navigation carrying out carriage abroad.
3. The Maritime Arbitration Commission shall hear the disputes that the parties have agreed to refer to it.
The Commission shall also hear disputes subject to its jurisdiction virtue of international agreements.
In matters subject to the jurisdiction of the Commission, the Chairman of the Commission may, at the request of a party, determine the amount and form of the security for a claim, in particular, may make a ruling to seize the other party's vessel or cargo in a Ukrainian port.
Decisions of the Commission shall be executed by the parties voluntarily. A decision not executed voluntarily by a party shall be enforced in accordance with the law and international agreements.
The procedure for implementing decisions regarding the security in accordance with Article 4 of this Regulation shall be established by the Chairman of the Maritime Arbitration Commission after the decision comes into effect.
The Maritime Arbitration Commission at the Ukrainian Chamber of Commerce and Industry has its own seal reproducing its name in the Ukrainian and English languages and displaying an anchor and the scales of justice.