UKRAINE Law and Practice Contributed by: Olena Perepelynska, Krystyna Khripkova, Nadiya Mykiyevych and Anna Kozyrieva, IMPACTA LAW
ties, disputes arising from contractual and other civil law relationships in the context of foreign trade and other forms of international economic activity may be referred to international commercial arbitration. The ICA Law imposes the criteria determining when such disputes are deemed “international” and may be referred to international arbitration, if: • disputes involving the parties where the place of business of at least one of them is situated abroad; • disputes involving enterprises with foreign invest - ment and international associations and organisa - tions and • disputes involving a bond issue administrator. The new law No. 4856-IX amended the criteria of the first category: now disputes between two Ukrainian parties are arbitrable if one of the following places is situated outside the State in which the parties have their places of business: • the place of arbitration, if determined in or pursuant to the arbitration agreement, or • any place where a substantial part of the obliga - tions arising from the contractual or other civil-law relationship is to be performed, or • the place with which the subject matter of the dis - pute is most closely connected. The new law No. 4856-IX has also introduced pro - visions relating to investor-State arbitration (see 2.1 Governing Law ), as well as a differentiated approach to the appointment authority responsible for providing judicial assistance to arbitral proceedings, depending on whether the arbitration is conducted on an ad hoc or institutional basis.
form requirement would be considered satisfied if the arbitration agreement is: • either in a document signed by the parties; or • in a bond issuance document, which provides for appointment of an administrator; or • concluded via exchange of letters, emails, provided that the information contained therein is acces - sible for subsequent reference, or by an exchange of telex, telegrams, or other means of electronic communication that provide a record of the agree - ment, or through an exchange of a statement of claim and a statement of defence, where one party asserts the existence of an arbitration agreement and the other does not object. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agree - ment, provided that the contract is in writing and the reference is sufficient to make that clause part of the contract. 3.2 Arbitrability Ukrainian law does not provide an exhaustive list of arbitrable disputes but establishes categories of non- arbitrable matters. Generally, a dispute is arbitrable if it satisfies the criteria set out in Article 1 (2) of the ICA Law (see 2.2 Changes to National Law ) and does not fall within a category reserved for the exclusive juris - diction of the state courts. Article 20 of the ComPCU establishes the categories of disputes falling within the jurisdiction of the commercial courts. Article 22 of the ComPCU builds upon this by providing that disputes falling within the jurisdiction of the commercial courts are, in principle, capable of being submitted to arbi - tration, unless they fall within one of the exceptions, which include invalidation of acts of state authorities, disputes relating to the state registration of immovable property, intellectual property rights, rights to financial instruments, certain disputes arising from the con - clusion, amendment, termination, or performance of public procurement contracts, bankruptcy proceed - ings, certain corporate disputes, disputes relating to the protection of economic competition etc. 3.3 National Courts’ Approach Ukrainian courts have not yet developed a clear and unified doctrine for determining the law governing the
3. The Arbitration Agreement 3.1 Enforceability
Formal requirements for an enforceable arbitration agreement are set out in the ICA Law. Pursuant to Article 7 (1) of the ICA Law, an arbitration agreement may take the form of an arbitration clause in a contract or a separate agreement. Article 7 (2) provides that the arbitration agreement must be in writing. The written
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