The effectiveness of Commercial Arbitration in Ukraine: A practical insight on institutional and ad hoc arbitral proceedings

CIArb joined CMS Cameron McKenna Nabarro Olswang (Ukraine) on Thursday 16 May 2019 in putting on an event in Ukraine’s capital city, Kyiv, dedicated to topical issues of international arbitration in Ukraine and in the United Kingdom (UK). A panel of distinguished arbitration practitioners delivered presentations related to the recognition and enforcement of arbitral awards in Ukraine, ad hoc arbitration in the English market with particular reference to the CIArb Rules 2015, Tribunal secretaries’ mission in commercial arbitration, and the role of counsel in arbitral proceedings. The experts shared practical insights and discussed current trends in ad hoc and institutional arbitration based on their extensive experience in this field.

The audience included arbitration and dispute resolution practitioners, arbitrators, corporate counsel, in-house counsel, academics and professionals with an interest in institutional and ad hoc arbitral proceedings in the Ukrainian and English markets.

Following welcome remarks from Olexander Martinenko, Senior Partner, CMS Cameron McKenna Nabarro Olswang (Ukraine), the first session was moderated by Sergiy Gryshko, Partner, Redcliffe Partners.  Olga Shenk, Senior Associate, CMS Cameron McKenna Nabarro Olswang (Ukraine) spoke on recognition and enforcement of arbitral awards in Ukraine.  On 6 February 2019, the Supreme Court had resolved that the provisions of the New York Convention took priority over domestic legislation, other than the Constitution of Ukraine.  The enforcement court was now the Kyiv Appellate Court, with possible appeal only to the Supreme Court.  The Court had to interpret arbitration agreements in favour of their validity, operability and ability to be performed.  The procedures to get an award recognised and enforced were set out.  Grounds for refusal were set out as well: the burden rested on the losing party to prove that refusal to recognise or enforce was appropriate.  Finally, the cases of Everest Estate et al v Russian Federation and BSF Swiss photo A.G. v State Committee of Land resources of Ukraine were used to illustrate points previously made in the abstract.

Thereafter, Olena Gulyanytska FCIArb, Head of Dispute Appointment Service at the CIArb spoke about ad hoc arbitration in the English market, from a practical and institutional point of view, with particular reference to the CIArb Rules 2015.  She noted that ad hoc arbitration is by far the most popular form of international commercial arbitration in London.  For example, in 2016 the London Maritime Arbitrators Association saw more than six times as many new ad hoc arbitrations submitted to its members (an estimated 1,720) as the London Court of International Arbitration saw new Requests for Arbitration (253) under its institutional scheme.

In the second session, again moderated by Sergiy Gryshko, Dr Amel Makhlouf MCIArb, French Qualified Lawyer, Université Paris 1 Panthéon-Sorbonne / Chartered Institute of Arbitrators (CIArb), presented on "Tribunal secretaries’ mission in commercial arbitration: practical ways to promote efficiency in institutional and ad hoc arbitral proceedings”. Dr Makhlouf described the evolving mission of tribunal secretaries before explaining their modalities of appointment, their scope of work and their remuneration (which may be allowed or forbidden by some institutional rules and/or guidelines, or discretionary). As regards the tribunal secretary’s remuneration, Dr Makhlouf specified that there may be more flexibility in ad hoc arbitral proceedings since Parties may agree to pay additional fees if they so wish. In addition, Parties may specifically define the secretary's scope of work whilst such scope is usually described in some institutional rules and/or guidelines.

Thereafter, Dr Affef Ben Mansour, Independent Counsel and Arbitrator, Paris (France), spoke about the role of counsel in international arbitral proceedings.  She noted that a counsel could be a lawyer, either externally retained or in-house and could be also an expert in an area relevant to the case.  She emphasised the benefit of expert and experienced external counsel.  Normally, jurisdictions do not limit who could act as counsel in international arbitration proceedings. A few demanded that they be locally qualified.  Counsel could play an important role at the outset in advising whether or not to proceed to arbitration, taking into account costs, the likelihood of success, whether an important relationship might be jeopardised, difficulties of enforcement, and confidentiality.  Counsel equally help to choose an arbitrator.  Counsel can then play a role in case management, consistent with the overall strategy for the arbitration.  Once an award is made, counsel has a role in implementation, which if the losing party is reluctant, might be long and complicated.