08 Aug 2018
The Chartered Institute of Arbitrators (CIArb) is delighted to announce the Young Members’ Group (YMG) Essay Competition 2017/18 has been won by student member Andrii Zharikov for his submission on the topic of ‘Conflicts and Ethics in International Arbitration’.
The competition, generously sponsored by financial services and consultancy firm Deloitte, was open to all those aged 40 years and under with the entries judged by Maria Chedid, Partner at Arnold & Porter LLP.
Amanda Lee, Global Chair of the YMG, commented as follows:
“Our judge, Maria Chedid, had the difficult task of selecting a winner from entries of significant quality submitted by students and young practitioners from around the world. Andrii Zharikov’s impressive entry stood out. He is a truly deserving winner. The YMG congratulates him on his success and thanks him and all those who took the time to enter for their thoughtful entries.”
Andrii receives the main prize of £250 for his winning submission along with a place at the Mediation Symposium 2018.
His article will be published in CIArb’s Arbitration Journal in due course.
CIArb sat down with Andrii to learn more about him, how he has benefitted from Student Membership and for a comparison of the legal profession in the Ukraine to the UK.
Afternoon Andrii, firstly, congratulations from all of us at CIArb. How does it feel to have won the competition and could you tell us a little about your submission?
I am delighted to win the competition! I spent significant time preparing my essay and am really glad that my efforts have been rewarded. In the essay I focused on the regulatory framework for ethical behaviour of counsel: I analysed existing proposed approaches and shared my thoughts on the possible effective model towards the efficient regulation of counsel’s ethics taking into account both academic and practical perspectives.
We’re approaching your two-year anniversary as a student member of CIArb. What prompted you to join and how do you believe your membership has helped you thus far?
As soon as I acquired the status of a student in the UK, I applied for student membership of the CIArb. It is beneficial that such membership is free. It allows me to keep up to date with the most recent developments in alternative dispute resolution as well as with the specific events organised by the CIArb (this is how I learned of the essay competition). Following completion of my thesis, I plan to apply for associate membership and above of the CIArb. Even though my main aim is to stay within academia, I feel that academic knowledge should always be supported by practice and vice versa.
Let’s talk about your life the in the Ukraine and the route you took within the legal sector.
Law has been an inseparable part of my life for the last ten years. I cannot say that after finishing school I knew exactly what I wanted to do in my life; rather, I knew exactly what areas I was not interested in. However, unlike in most Western countries, in Ukraine there is no such option as a gap year after school, so the standard route is to enter a university right after achieving the required external exam grades. Well, in fact, at the time there was an unattractive gap year for males, anyone not involved in a higher educational institution at the age of 18 was conscripted for one-year’s army service (now this requirement is applicable to those who are 20 years old).
Army service was one of those areas I had no particular fascination for, so after a great deal of hard study and a strong performance in the external tests my results enabled me to secure a scholarship place at arguably the best law school in Ukraine. I was so thrilled to have an opportunity to join such a prestigious profession and become the first ever lawyer in my family.
During my undergraduate studies I developed a strong interest in commercial law. I participated in various commercial law conferences and study groups and took several short-term internships with law firms. All these activities helped me to develop a clearer understanding about my legal interests and future career. In addition, I believe that they also helped me, in combination with my bachelor diploma with honours, to secure a scholarship for my LLM in International Trade Law at the University of Essex, which provided for full tuition fee waiver.
I finished my postgraduate studies with distinction, which was certainly beneficial for my career. Even before officially graduating I received a couple of very good offers from the top ranked law firms in Ukraine. Eventually, I joined the banking and finance department at one of the strongest legal players in the country.
At the same time, just a few months following my employment, Ukraine was shaken by protest movements against the political regime which then resulted in bloodshed, conflict with Russia and the subsequent annexation of Crimea and military actions in Eastern Ukraine. These events resulted in my country experiencing huge economic decline, which had a direct impact on my professional work: in my field of expertise there were only a handful of banking and M&A projects, which resulted in our department diversifying into a variety of projects dealing with other areas of law, such as employment, intellectual property, company and corporate law and even such niche areas as aerospace and dietary products regulation. I was becoming a generalist rather than a specialist in a particular area, which was quite unsettling, because I felt that over time I might simply forget all those skills acquired during my specific training.
Your academic profile is certainly very impressive. Achieving 585/600 in your externals at Taras Shevchenko National University of Kyivand the Tinson Scholarship at the University of Essex represent ‘strong performance’ indeed, Andrii.
As you mention, it hasn’t just been about your education; you also have some reputable practical experience under you belt. What have you identified as the key differences in legal practice within the Ukraine in comparison to the UK?
Reflecting on my experience, there are several key differences. Firstly, a Ukrainian lawyer rarely has the opportunity to specialise in one distinct area, except in the family and criminal law fields. This is because the Ukrainian economy and market are much smaller than in the UK. As a result, unless you can provide legal advice in multiple specialistareas simultaneously, the opportunities to establish a relatively stable client base are virtually non-existent. Consequently, for lawyers, especially those beginning their career, this means that for every new project you need to spend a substantial amount of extra non-billable time to acquaint yourself with regulations in the area. This could be quite a challenge given that the Ukrainian parliament usually prefers to measure its work on the basis of quantity and not quality, so the amount of laws and changes to them enacted every year is significant. In turn, this results in many gaps and conflicting legislative provisions, constantly changing practice and court interpretation of the same issues.
Secondly, until relatively recently, Ukrainian lawyers did not have to join the bar in order to represent clients in courts, except for criminal cases. Moreover, even a person without a law degree could possibly represent a party in court on the basis of a power of attorney (although such cases were extremely rare). The reform requiring all party representatives in courts to be members of the bar should be fully implemented by 2019.
Thirdly, unlike the UK, confidence in the court system is very low. Corruption in Ukraine is one of the country’s biggest problems and according to various social polls, Ukrainians view the judiciary to be at the core of it. As a result, nearly all commercial agreements contain an arbitration clause in order to escape litigation in Ukraine. For small and medium amounts, Stockholm and Vienna are the most commonly used centres, for larger sums, London and Paris are the preferred options.
In addition, it is worth mentioning that English law is often used to govern transactions in Ukraine as it is more flexible and sophisticated than Ukrainian law. This is especially relevant for corporate restructuring and M&A transactions which are often structured through a foreign subsidiary/company in order to escape Ukrainian law. Thus, a good Ukrainian lawyer should know at least the basics of English commercial law.
So you are currently living in Birmingham, why a PhD and why Aston?
I have always had the highest regard for my postgraduate education experience in the UK. It is very different from the educational framework in Ukraine as it is heavily concentrated on research, which I find very appealing. During my practical experience as a commercial lawyer I often found myself in situations wherein senior partners regarded my approaches as quite innovative, but at the same time previously untested in practice and therefore risky for clients. Thus, I was looking for the opportunity to have sufficient time and resources to develop my ideas and it seems that the research environment of the English educational system is the perfect place to do it.
I had several good offers from UK universities, but chose Aston University due to the generous scholarship arrangements covering both my tuition fees and living expenses for three years, and the profile of the potential supervisor of my project, who was Dean of Aston Law School and a renowned specialist in alternative dispute resolution, banking and finance. Unfortunately, she unexpectedly died just two weeks after I accepted Aston’s offer, which resulted in some period of uncertainty for me. Nevertheless, the university showed its support and within a few months I got a new supervisor specialised in the field of my research, with whom I have perfectly balanced relations of freedom and subordination.
Could you tell us about your PhD thesis?
I have been a PhD researcher at Aston Law School since October 2016 and over this relatively short period of time the scope of my research project has changed several times from the initial proposal submitted by me. I believe that this is quite a natural process which every PhD student faces during elaboration of his/her ideas. At present, my main focus is on the modern theory of lex mercatoria and its divergence into different branches. In my thesis I examine the branches which already are more or less theoretically established and argue for a new branch in the area of trade finance. To support my argument, I am referring to the importance of specialised alternative dispute resolution for the modern lex mercatoria. In the field of trade finance that service is provided by the Documentary Instruments Dispute Resolution Expertise administered by the International Chamber of Commerce. I envisage completing my thesis no later than September 2019.
Thank you for your thought-provoking insights, Andrii. To finish things off, do you think you could offer our young members and the aspiring professionals reading some advice?
Well, my main piece of advice would be never to lose motivation for self-development and keep yourself up-to-date with various developments in legal and other areas. Law is an extremely dynamic discipline which is influenced very much by external factors, such as politics, economics, technical progress, etc. In a sense, this is both a blessing and a curse of the legal profession, which demands that successful legal specialists, irrespective of their field of practice, be thoroughly analytical, sufficiently adaptive and extraordinarily passionate about their work.
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