1. Multilateral conventions

Is your country a contracting state to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards? Since when has the Convention been in force? Were any declarations or notifications made under articles I, X and XI of the Convention? What other multilateral conventions relating to international commercial and investment arbitration is your country a party to?

Ukraine has been a party to the New York Convention since 1960. Ukraine shall only apply the Convention to the recognition and enforcement of arbitral awards rendered in non-member states on a reciprocal basis.

Ukraine is a party to the European Convention on International Commercial Arbitration and the Commonwealth of Independent States (CIS) Treaty on Settling of Disputes Related to Commercial Activity, Kiev, 20 March 1992. The latter treaty is open to CIS member states only and has been ratified by Armenia, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan, Turkmenistan, Ukraine and Uzbekistan.

The 1965 Washington Convention on the Settlement of Investment Disputes was ratified by Ukraine in 2000.

2. Bilateral treaties

Do bilateral investment treaties exist with other countries?

As of December 2010, Ukraine has concluded 63 bilateral treaties (BITs) for the reciprocal promotion and protection of investments and 1 multilateral investment protection instrument (the 1994 Energy Charter Treaty), according to the website of the United Nations Conference on Trade and Development (UNCTAD). BITs with Tajikistan and Turkmenistan were ratified by Ukraine. However, the UNCTAD BITs database does not contain any indication as to their entry into force. Therefore, the possibility exists that the said agreements have not been ratified by the other respective parties, and accordingly have not come into effect. As regards agreement with Kyrgyzstan, official Ukrainian legislation databases show that it entered into force on 23 February 1993 (the date of signature). However, the agreement itself provides that it shall enter into force only after the expiry of 30 days from the date when the parties inform each other of the completion of necessary domestic procedures. According to available information, the law on ratification of the said agreement has never been adopted. The UNCTAD database also does not contain any indication as to the entry into force of this agreement.

Similar to agreements with Tajikistan and Turkmenistan, BITs with Jordan, Singapore, Syria and Yemen were ratified by Ukraine, however, the UNCTAD BITs database does not contain any indication as to their entry into force. Therefore, it is possible the said agreements have not been ratified by the other parties, and accordingly have not come into effect. The UNCTAD database and some Romanian resources also mention Agreement between Ukraine and Romania on reciprocal protection and promotion of investments (the UNCTAD database, however, does not contain any indication as to its entry into force). However there is no information regarding such agreement or the law on ratification thereof in Ukrainian legislation databases.

3. Domestic arbitration law

What are the primary domestic sources of law relating to domestic and foreign arbitral proceedings, and recognition and enforcement of awards?

International commercial arbitration is governed by the Law on International Commercial Arbitration (LICA) of 24 February 1994. (Information on the LICA is available at en/icac.html).

In 2004, the parliament of Ukraine adopted the separate law on domestic third-party arbitration (the Law on Arbitration Courts), which does not apply to international commercial arbitration.

The procedures of recognition and enforcement of foreign awards are governed by the Civil Procedure Code (chapter VIII).

Arbitrability of commercial and corporate disputes is partially governed by the Commercial Procedure Code of Ukraine, No.1798- XII, of 6 November 1991 (article 12) (Commercial Procedure Code of Ukraine).

The Law of Ukraine on International Private Law (IPL Law), No. 2709-IV, of 23 June 2005, also regulates some issues related to arbitration (applicable law, enforcement, etc)

4. Domestic arbitration and UNCITRAL

Is your domestic arbitration law based on the UNCITRAL Model Law? What are the major differences between your domestic arbitration law and the UNCITRAL Model Law?

The LICA is based on the UNCITRAL Model Law with very few deviations: first, regarding the determination of the international character of the disputes in article 1, and second in providing that the president of the Ukrainian Chamber of Commerce and Industry (UCCI) shall perform the functions of the appointment authority referred to in articles 11(3), 11(4), 13(3) and 14.

The following disputes can be referred for consideration under the LICA:

  • disputes resulting from contractual and other civil law relationships 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 situated abroad; and
  • disputes arising between enterprises with foreign investment in international organisations established in the territory of Ukraine; disputes between the participants of such entities; and disputes between such entities and other subjects of the law of Ukraine.

5. Mandatory provisions

What are the mandatory domestic arbitration law provisions on procedure from which parties may not deviate?

Parties may not deviate from the following procedural rules set forth in the LICA:

  • an award must be in writing and be signed by at least the majority of the arbitrators;
  • an award should contain the reasons and the allocation of the arbitration costs;
  • parties may not exclude the applicability of the provisions on the setting aside of awards (article 34); and
  • parties must be treated equally and must be given an opportunity to present their cases.

6. Substantive law

Is there any rule in your domestic arbitration law that provides the arbitral tribunal with guidance as to which substantive law to apply to the merits of the dispute?

Article 28 of the LICA contains the same wording as article 28 of the UNCITRAL Model Law.

Law for domestic arbitration does not directly provide for agreement on the application of foreign law as such agreement can be entered into only within relationships with a foreign element. The forms of foreign element are provided by article 1 of the IPL Act.

7. Arbitral institutions

What are the most prominent arbitral institutions situated in your country?

Currently in Ukraine there is still only the one permanent international arbitration court – the International Commercial Arbitration Court (ICAC) at the Ukrainian Chamber of Industry. This institution is one of the leading international arbitration centres in Europe. Its rules – based on the LICA provisions – permit parties to appoint any person of any nationality as arbitrator from the recommended list of ICAC arbitrators, which is considered to be closed. The parties are free to agree on the place of arbitration, the language to be used in the proceedings and applicable substantive law. Arbitration fees (consisting of the fees of the arbitrators and the ICAC costs) are calculated on the basis of the amount in dispute. In the appointment of a sole arbitrator the amount of the arbitration fee shall be reduced to 20 per cent. The first version of the ICAC Rules was adopted in 1994 and was modernised in July 2007 (ICAC Rules 2007). ICAC Rules 2007 intend to adjust ICAC arbitration to new developments in the sphere of international commercial arbitration. Further information on the ICAC can be found at


8. Arbitrability

Are there any types of disputes that are not arbitrable?

Ukrainian legislation does not contain either the notion of arbitrability, nor a principal exhaustive list of arbitrable or non-arbitrable disputes.

The LICA is not an exception, as it contains only general provision in respect of the disputes which can be referred for consideration under article 1(2) of the LICA Law as provided above.

Pursuant to article 1 of the LICA the following may be referred to international commercial arbitration:

  • disputes resulting from contractual and other civil law relationships 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 situated abroad; and
  • disputes arising between enterprises with foreign investment, international associations and organisations established in the territory of Ukraine, disputes between the participants of such entities and disputes between such entities and other subjects of the law of Ukraine.

Pursuant to the Commercial Code of Ukraine (article 116), a legal entity has a status of an enterprise with foreign investment when foreign investment constitutes at least 10 per cent of its authorised capital. Thus, such entities may choose between domestic and international arbitration when entering into contracts with other Ukrainian entities or individuals.

However, the Commercial Procedure Code (CPC), which regulates proceedings in state commercial courts in article 12(2), contains restrictions and prohibits submitting to arbitration (both domestic and international) the following disputes falling within the jurisdiction of the commercial courts of Ukraine:

  • disputes on the invalidation of acts;
  • disputes arising out of the conclusion, amendment, termination and performance of public procurement contracts; and
  • disputes arising out of corporate relations between a company and its participants (founders, shareholders), including former participants, and between the participants (founders, shareholders) related to the establishment, activity, management and termination of the company.

One may note that provisions of the LICA and of the CPC on the arbitrability of the disputes between the participants of Ukrainian companies (with foreign investment) are opposites. When evaluating the risks of referring such a dispute to international arbitration one should bear in mind that even if the arbitral tribunal finds such disputes arbitrable and renders an award thereon, the award will probably be submitted to a local Ukrainian court for obtaining an enforcement permit and writ of execution, and therefore Ukrainian court practice should also be taken into account.

The latter has taken a definite 'non-arbitrable' approach in corporate disputes in recent years and even before the amendment of the CPC. At first, on 28 December 2007, the Presidium of the Higher Commercial Court of Ukraine issued Recommendations on Practice of Legislation Application in the Disputes arising out of Corporate Relations (Recommendations), quite broadly prohibiting the resolution of corporate disputes with regard to Ukrainian company through arbitration. Then, on 24 October 2008, the Supreme Court of Ukraine issued the Resolution on Court Practice of the Corporate Disputes Consideration, specifying that only corporate disputes related to the activity of companies registered in Ukraine, and in particular, arising out of corporate management, are not arbitrable regardless of the shareholding structure. On 18 June 2009, however, the Recommendations were amended and now specifically set forth that share turnover relations, except for relations concerning the realisation of a pre-emptive right to acquire shares, shall not be deemed as relations concerning the activity of the company and its corporate management. Thus, disputes arising out of share purchase agreements are still arbitrable.

IP disputes, including the validity of registered trademarks, patents and establishment of the IP owner, are not arbitrable.

Bankruptcy issues are subject to the jurisdiction of commercial courts pursuant to a special rule contained in article 6 of the Law on Restoration of Solvency of a Debtor or Adjudicating Him a Bankrupt, passed on 14 May 1992.

Antitrust or competition issues can be considered arbitrable in relation to their effect on the civil law relationship of the parties. Under article 27 of the Law on Defence Against Unfair Competition, disputes concerning unfair competition are settled by the Antimonopoly Committee of Ukraine and its territorial branches.

At the same time, current Ukrainian legislation (article 77 of the IPL Act) provides for the following non-exhaustive list of disputes that come under the exclusive jurisdiction of the Ukrainian state court:

  • if disputed immoveable property is located in Ukraine;
  • in cases concerning the legal relationship between children and parents, where all parties reside in Ukraine;
  • if the testator in a probate case was a citizen of Ukraine and resided in Ukraine;
  • if the dispute arises from registration of IP rights that are secured by Ukrainian registration or patent certification;
  • if the dispute relates to the registration of or dissolution of foreign companies, non-governmental organisations, charitable foundations or other associations, or individual business in Ukraine;
  • if the dispute relates to validity of records in one of the Ukrainian state registers or cadastres of Ukraine;
  • if in a bankruptcy case the debtor was established under Ukrainian legislation;
  • if the dispute involves the issuance or destruction of securities officially registered in Ukraine;
  • in cases in which adoption took place or is taking place in Ukraine; and
  • in other cases so determined by Ukrainian law.

Sometimes this list is referred to by Ukrainian courts as a list of non-arbitrable cases although it was set in order to identify the exclusive jurisdiction of Ukrainian state courts if choice of court is to be exercised. However some of the disputes mentioned in this list are indeed non-arbitrable as they are connected with the public interest. In such cases their non-arbitrability is established by other legal acts (see above).

The Law on Arbitration Courts refers to disputes that are excluded from the jurisdiction of the domestic arbitration courts. These include:

  • disputes on the annulment of normative acts;
  • disputes arising from contracts concluded to the satisfaction of state needs or related to state secrets;
  • disputes arising from family relationships, except cases related to marital agreements (contracts);
  • disputes on bankruptcy;
  • disputes with participation of state entities, local administration and their officials;
  • disputes regarding immoveable property, including land plots;
  • disputes regarding establishment of legal facts;
  • labour disputes;
  • disputes arising out of corporate relations between a company and its participants (founders, shareholders), including a former participant, and between the participants (founders, shareholders) related to the establishment, activity, management and termination of the company;
  • disputes with the participation of a foreign party;
  • other disputes that in accordance with the law are to be exclusively settled by common courts or by the Constitutional Court of Ukraine (the latter ground applies, eg, to petitions regarding the unconstitutionality of legal acts).

Among the excluded categories are also disputes in which the decision taken by the domestic arbitration court may entail certain action from state bodies, the local administration and its officials.

9. Requirements

What formal and other requirements exist for an arbitration agreement?

The following requirements are required for a valid arbitration agreement:

  • the parties must have legal capacity to conclude the arbitration agreement;
  • the parties' representatives must be duly authorised to sign any agreements on behalf of the respective party;
  • the matter referred to arbitration must be arbitrable; and
  • the arbitration agreement must be in writing in the main agreement or in a document that the latter refers to or in an exchange of letters, faxes, telegrams, etc.

10. Enforceability

In what circumstances is an arbitration agreement no longer enforceable?

Under Ukrainian law, the arbitration agreement is separate and autonomous. Therefore avoidance, rescission or termination of the main contract as well as statute of limitations and novation do not affect the arbitration agreement. It can be terminated either upon the agreement of the parties or if it is found to be defective (and therefore void). As bankruptcy disputes are not arbitrable under Ukrainian law, it is important for creditors to secure the possibility to join bankruptcy proceedings in the state commercial court that is empowered to deal with the substance of the claims. However, if so, the arbitration agreement could be considered terminated.

11. Third parties – bound by arbitration agreement

In which instances can third parties or non-signatories be bound by an arbitration agreement?

Generally, only signatories are bound by the agreement. Third parties may be or become bound through universal succession (such as bankruptcy or mergers). Third parties may also become bound through singular succession, such as assignment, subrogation or agency of an agreement containing the arbitration clause, but only where there exists a clear intention to assign the arbitration clause.

12. Third parties – participation

Does your domestic arbitration law make any provisions with respect to third-party participation in arbitration, such as joinder or third-party notice?

The ICAC Rules 2007 in article 43 establish the possibility for a third party to join the arbitral proceedings if both parties to the arbitration agree thereto in writing. Such third party must also agree in writing to join the arbitral proceedings. The application to allow the third party's participation cannot be brought later than the time limit for presentation of the defence. There is no publicly available practice regarding implementation of this provision. The ICAC, however, has quite a conservative and formal approach in interpreting the rules of third-party participation. As per today there is not any publicly available information about the application of the said article.

Another approach is set forth in the Law on Arbitration Courts which provides in article 34 that participation of third parties should be decided by the tribunal according to the applicable rules of the permanent arbitration court or ad hoc agreement between the parties. In general, article 34 only states that the participation of the third party should be voluntary.

13. Groups of companies

Do courts and arbitral tribunals in your jurisdiction extend an arbitration agreement to non-signatory parent or subsidiary companies of a signatory company, provided that the non-signatory was somehow involved in the conclusion, performance or termination of the contract in dispute, under the 'group of companies' doctrine?

The 'group of companies' doctrine has not been embraced by Ukrainian law.

14. Multiparty arbitration agreements

What are the requirements for a valid multiparty arbitration agreement?

The LICA contains no provisions on multiparty arbitration. The requirements for a valid multiparty arbitration are the same as those for a two-party arbitration. Difficulties may occur regarding joint appointment of an arbitrator. In practice, when the claimants or respondents fail to agree on a sole arbitrator or panel, the latter shall be appointed by the relevant authority or institution.

The ICAC Rules 2007 provide for an appointment procedure in multiparty arbitration, according to which claimants or respondents have to jointly appoint one arbitrator from each side. If multiple claimants or respondents fail to agree jointly on the arbitrator, the arbitrator will be appointed by the UCCI president.


15. Appointment of arbitrators

Are there any restrictions as to who may act as an arbitrator?

Generally, any person who has full legal capacity can act as arbitrator. No person shall be precluded by reason of nationality from acting as an arbitrator, unless otherwise agreed by the parties. There are no direct requirements regarding domicile, nationality or education of the arbitrators. Judges or other civil servants act as arbitrators in international arbitration under the ICAC Rules 2007. However, certain categories of civil servants (such as the prime minister, ministers, acting judges) and deputies of the parliament of Ukraine cannot act as arbitrators in view of specific legislation regarding their particular status.

The ICAC Recommended List of arbitrators, approved by the UCCI presidium, includes Ukrainian nationals and persons of other nationalities. The ICAC Rules 2007 do not directly address the previous existing uncertainty as to whether it is permissible to nominate arbitrators that are not on the list. However, as practice and position of the ICAC testify, the list is still considered by ICAC itself as a closed one.

Section 5 of article 8 of ICAC Rules 2007 provides for the appointment by the ICAC president, if appropriate, and at the request of the arbitral tribunal, of a case reporter (dokladchik) from among the employees of the ICAC Secretariat. Regarding the reporter's function, it is only said that the reporter will take part in the meetings of the arbitral tribunal, but in many cases it will be the reporter that organises the records of the facts and the law of a case and makes drafts and other contributions to the progress of a dispute up to the final award.

In domestic arbitration the sole arbitrator or the presiding arbitrator must have a higher judicial education.

16. Appointment of arbitrators

Failing prior agreement of the parties, what is the default mechanism for the appointment of arbitrators?

Article 10 of the LICA provides that parties are free to decide on the number of arbitrators: thus a panel consisting of an even number (eg, two) is permissible. Three arbitrators shall be appointed should the parties fail to determine a number. The parties in international arbitration are free to agree on the procedure for appointing the arbitrators. Failing such an agreement, each party shall appoint one arbitrator, and these two arbitrators shall appoint the third arbitrator. If a party fails to appoint an arbitrator within 30 days of receipt of a notification to do so or if the two arbitrators fail to agree on the third arbitrator within 30 days of their appointment, the third arbitrator shall be appointed by the president of the UCCI. The president also has powers to appoint a sole arbitrator where the parties fail to agree. Where, under an appointment procedure agreed upon by the parties, a party fails to act as required, or the parties, or two arbitrators, are unable to reach an agreement expected of them under such procedure; or where a third party, including an institution, fails to perform any function entrusted to it by agreement, any party may request the president of the UCCI to take necessary measures, unless the agreement on the appointment procedure provides other means for securing an appointment.

The UCCI president, in appointing an arbitrator, shall have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and, in the case of a sole arbitrator or president of the arbitral tribunal, shall take into account the advisability of appointing an arbitrator of a nationality other than that of the parties.

These decrees of the president are not subject to appeal.

17. Challenge and replacement of arbitrators

On what grounds and how can an arbitrator be challenged and replaced? Please discuss in particular the grounds for challenge and replacement and the procedure, including challenge in court.

Before accepting the appointment, an arbitrator shall disclose any circumstances that may give rise to justifiable doubts as to his or her impartiality or independence. The LICA and the ICAC Rules 2007 do not contain the list of such circumstances. As a rule they include any professional contacts with either party, such as the past performance of any tasks or duties for them; financial or private interests of the arbitrator in the outcome of the case; or any kind of relative or other relations in or with either party. According to the ICAC Rules 2007 the arbitrator has to fill in and sign a special statement regarding his or her acceptance to act as an arbitrator.

An arbitrator may be challenged where there exist circumstances that give rise to justifiable doubts as to his or her impartiality or independence, or if the arbitrator does not possess the qualifications required by the parties' agreement. A party may challenge an arbitrator it has appointed, should any issues or information arise subsequent to the appointment. Under the LICA the parties are free to agree on procedure for challenges, but under the constitution of the arbitral tribunal any challenge must be lodged in writing with the arbitral tribunal within 15 days of becoming aware of the circumstance that gives rise to the challenge. Unless the challenged arbitrator withdraws from his or her office or the other party agrees to the challenge, the arbitral tribunal itself shall decide on the challenge. If the challenge is dismissed, the challenging party may request the UCCI president to make a final decision on the challenge. While such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue with the arbitral proceedings and make an award.

Unlike LICA, under the ICAC Rules 2007 it is not the arbitral tribunal but the ICAC presidium that is empowered to decide on the challenge if the challenged arbitrator does not withdraw from office or if the other party does not agree to the challenge. The ICAC presidium can also decide on its own on the challenge if circumstances exist that may give rise to justifiable doubts as to the arbitrator's impartiality or independence. The ICAC presidium is not obliged to give reasons for its decision on the challenge. The final decision is taken as provided in the LICA (ie, by the UCCI president). The ICAC Rules 2007 consider the matter of a challenge as an official function pertaining to the ICAC itself and do not provide for any possibility for the parties to agree on a procedure for challenging an arbitrator. The ICAC Rules 2007 provide that the ICAC Secretariat must give the other party an opportunity to comment on the challenge. This was not normally the case under the previous rules.

According to the ICAC Rules 2007, the parties can agree on the termination of the arbitrator's mandate if the arbitrator legally or practically becomes incapable of fulfilling his or her duties or does not fulfil them for a significant time. The ICAC presidium can terminate the arbitrator's mandate because of the said reasons of its own accord. The final decision is taken by the UCCI president.

18. Relationship between parties and arbitrators

What is the relationship between parties and arbitrators? Please elaborate on the contractual relationship between parties and arbitrators, neutrality of party-appointed arbitrators, remuneration, and expenses and liability of arbitrators.

Arbitrators must be neutral as they are not representatives of the parties. Impartiality thus applies equally to all arbitrators. The LICA is silent on the contractual relationship between parties and arbitrators. The amount of fees is usually set in the arbitrator's terms of appointment (in ad hoc arbitration) or in the applicable arbitration rules (ICAC Rules). The LICA does not contain rules on the liability of the arbitrators for their decision-making.

Contract and liability are established for domestic arbitration in article 22 of the Law on Arbitration Courts, which provides that:

in the case of non-fulfilment or improper fulfilment by the arbitrator of the functions without due reasons, he incurs liability, foreseen by the rules of the arbitration court or Statute on the permanent arbitration court or the contract concluded pursuant to the article 24 of this Law, with exception when actions of the arbitrators bear the elements of offences, for accomplishing of which administrative or criminal responsibility is statutory.


19. Court proceedings contrary to arbitration agreements

What is the procedure for disputes over jurisdiction if court proceedings are initiated despite an existing arbitration agreement, and what time limits exist for jurisdictional objections?

According to the LICA, a valid arbitration agreement excludes the jurisdiction of the state courts. Article 8 stipulates that:

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

Thus the court is obliged to take the existence of the arbitration agreement into consideration only if one of the parties requests arbitration. Here the court must establish that the agreement is valid and operative. The parties and the arbitration court are bound by any court decision deeming the arbitration agreement null or void. Nevertheless, 'the arbitral proceedings may be commenced or continued, and an award may be made, while the issue of jurisdiction is pending before the court' (LICA, article 8, part 2).

20. Jurisdiction of arbitral tribunal

What is the procedure for disputes over jurisdiction of the arbitral tribunal once arbitral proceedings have been initiated and what time limits exist for jurisdictional objections?

The arbitrators can rule on their own jurisdiction. According to article 16 of the LICA, a plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. A party is not precluded from raising such a plea by the fact that he or she has appointed, or participated in the appointment of, an arbitrator. Challenges to the jurisdiction of the arbitral tribunal must be raised as soon as the matter alleged to be beyond the scope of its authority arises. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.

The arbitral tribunal may rule on the above-mentioned plea either as a preliminary question or in an award on the merits. If the tribunal rules as a preliminary question that it has jurisdiction, any party may request the state court at the place of arbitration (competent first instance court) to decide the matter within 30 days of receiving notice of that ruling; such a decision shall not be subject to appeal. While such request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award.


21. Place and language of arbitration

Failing prior agreement of the parties, what is the default mechanism for the place of arbitration and the language of the arbitral proceedings?

If the parties have not agreed on the place of arbitration or the language to be used in the proceedings, the arbitrators shall decide the place and language having regard to the circumstances of the case, including the convenience of the parties.

The ICAC Rules 2007 provide that, if not agreed initially by the parties, the place of arbitration shall be Kiev and the language of arbitration shall be Ukrainian or Russian. The parties are free to agree to use different languages.

The ICAC Rules 2007 do not require arbitrators to consult with the parties before determination of the language; however, it may be assumed that such consultations may take place, at least if the issue is raised by one of the parties at an early stage.

22. Commencement of arbitration

How are arbitral proceedings initiated?

In ad hoc arbitrations under LICA a claimant can initiate arbitral proceedings by sending written notice of arbitration to the respondent and, thus, the arbitration proceedings commence on the date of receipt (article 21 of the LICA). The LICA does not provide any mandatory form requirements regarding the notice of arbitration.

The ICAC Rules 2007 do not provide for any notice of arbitration. It is important to note that under the ICAC Rules 2007 the arbitral procedure (ie, formal confirmation of the claimant's application for arbitration) is set forth by the decree of the ICAC president after the receipt by the ICAC Secretariat of the statement of claim and registration fee (US$600). If it is obvious that the ICAC has no jurisdiction over the dispute, the claim is returned to the claimant without consideration of the merits. However, if, the claimant insists on the initiation of arbitral proceedings (ICAC Rules 2007, article 17 section 4) and the claim is forwarded to the respondent, then without pre-judging the issue of the existence, validity or scope of the arbitration agreement, the ICAC president may accept the case for consideration by the ICAC. In such a case, the question of jurisdiction shall be decided finally by the arbitral tribunal subject to the respondent's comments. The ICAC practice in this respect is rather controversial.

Until the full payment of the arbitration fee, the claim remains in limbo within the ICAC Secretariat. The statement of claim when filled shall contain:

  • the name of the ICAC;
  • the names and postal addresses of the parties, their fax and telephone numbers and the banking details of the claimant;
  • the amount of the claim;
  • substantiation of the jurisdiction of the ICAC;
  • claim demands;
  • a factual and legal summary of the dispute;
  • the list of evidence attached and claim or counterclaim calculations; and
  • the claimant's signature.

The ICAC Rules 2007 make a distinction between the initiation of the arbitration as just described and the actual commencement of the arbitration, which occurs upon receipt of the full arbitration fee. The arbitral proceedings (actual movement of the case, including sending of the claim to the respondent) under the ICAC Rules 2007 shall commence only after the receipt of the full payment of the arbitration fee. The statement of claim with all attached documents shall be submitted in no fewer than three copies (with additional copies in the case of multiparty arbitration).

23. Hearing

Is a hearing required and what rules apply?

Both the LICA and the ICAC Rules 2007 provide that subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials. However, unless the parties have agreed that no hearings shall be held, the arbitral tribunal may hold such hearings at an appropriate stage of the proceedings if so requested by a party.

24. Evidence

By what rules is the arbitral tribunal bound in establishing the facts of the case? What types of evidence are admitted and how is the taking of evidence conducted?

Arbitrators are empowered to determine the admissibility of taking evidence, take evidence and freely assess evidence filed. The system provided by the LICA is quite adversarial. Witnesses, experts, documents and site or product inspections are admissible as evidence. Third persons as well as the party or the party's representative can testify.

At that neither the LICA nor the ICAC Rules 2007 contain any provision regarding the examination of witnesses, whose testimony does not take place under oath. Witness testimony is not usual in ICAC arbitrations and there is no cross-examination of the witnesses. Actually Ukrainian parties seldom ask the tribunal to hear witnesses. The reason for this lies in Ukrainian legal traditions.

Both the parties and the arbitral tribunal may appoint experts.

In practice the preferred source of evidence is documents, and arbitrators usually follow a civil law approach in examining evidence. The arbitral tribunal can suspend the consideration of the case and order a party to produce documents or objects. Article 25 of the ICAC Rules 2007 under the heading 'Discovery of additional documents and explanations' establishes that the secretary-general of the ICAC may request additional documents or information from the parties concerning any written statements submitted by them. If requested information (in particular the respondent's correct postal address, or any requested documents) is not presented, the ICAC president may terminate the arbitral proceedings. In view of the contents of article 25, it is clear that the use of the English word 'discovery' in the translation of the heading does not cover the full breadth of international arbitration in general.

There is no available information regarding application of IBA Rules on Taking evidence in International Arbitration in ICAC. According to the ICAC Rules 2007 the parties are allowed to agree on the procedures in arbitration, however it is not clear how the ICAC will administer such arbitration in view of existing specific approaches to evidential procedures (for instance, regarding witnesses).

25. Court involvement

In what instances can the arbitral tribunal request assistance from a court and in what instances may courts intervene?

In general, a Ukrainian court may not intervene in the arbitral proceedings, except in the following matters: deciding on an arbitral tribunal's jurisdiction; granting of interim relief; and assistance in taking evidence. The arbitral tribunal, or a party with the approval of the arbitral tribunal, may request a competent Ukrainian court to assist in taking evidence. However, in view of the relevant regulations in Ukrainian procedural legislation, the enforceability of this possibility is disputable.

26. Confidentiality

Is confidentiality ensured?

Although there are no direct provisions regarding confidentiality in the LICA, the arbitral proceedings are held in camera unless otherwise agreed.

Under the ICAC Rules 2007 (article 12), the ICAC presidium, arbitrators and the ICAC Secretariat are bound by confidentiality. The principle of confidentiality applies to all aspects of arbitration: the dispute, the proceedings, the evidence submitted, information disclosed and the award.

Under Ukrainian legislation the advocates are obliged to observe professional confidentiality in their dealings with clients, however no duty of confidentiality exists between the parties unless otherwise agreed in the arbitration agreement. Witnesses and experts are not bound by any confidentiality clause in the parties' agreement.

Setting aside procedures and enforcement procedures in state courts are public unless the court makes a special exception.


27. Interim measures by the courts

What interim measures may be ordered by courts before and after arbitration proceedings have been initiated?

Like the Model Law, the LICA states that it is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, a court to order interim protection measures and for a court to grant such measures.

The Ukrainian procedural legislation, however, still does not contain procedural norms to enforce this possibility. Thus they are practically unenforceable.

The only exception is the Merchant Shipping Code of Ukraine, which directly provides that the arrest of a vessel in a Ukrainian port can be executed under the decision of the president of the Maritime Arbitration Commission attached to the UCCI. The powers of the latter are also set in the Statute of the Maritime Arbitration Commission.

28. Interim measures by the arbitral tribunal

What interim measures may the arbitral tribunal order after it is constituted? In which instances can security for costs be ordered by an arbitral tribunal?

Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order the other party to take such interim measures of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute. The arbitral tribunal may require a party to provide appropriate security in connection with such a measure.

According to article 5 of the ICAC Statute, the ICAC president may, at the request of a party, determine the amount and the form of the security for the claim in matters subject to its jurisdiction. Article 4 of the ICAC Rules 2007 also specifies that the president of the ICAC may, at the request of a party, if it considers the request to be justified, determine the amount and the form of the security to be provided for the claim. This decision may be taken ex parte prior to the communication of the claim to the respondent and the formation of the arbitral tribunal. This provision may be adopted for rendering ex parte interim measures directly by the president. The only compulsory condition for the application of the said ex parte interim measures of protection is the payment of the arbitration fee and the claimant's substantiation of its request. Any ensuing order will, of course, be communicated to the respondent, and it may be revised by the arbitral tribunal upon the application of the respondent, failing which it will remain in force until the final arbitral award is given. There are no provisions in the ICAC Rules 2007 regarding the claimant's responsibility to provide security for any damage suffered by the respondent due to the interim protection granted. The rules of Ukrainian civil procedure do not provide any legal framework for the enforcement of the granted measure of interim protection. Actually they can be treated only as declaratory.


29. Decisions by the arbitral tribunal

Failing party agreement, is it sufficient if decisions by the arbitral tribunal are made by a majority of all its members or is a unanimous vote required? What are the consequences for the award if an arbitrator dissents?

The presiding arbitrator may be authorised to decide solely only on procedural matters. Unless otherwise agreed by the parties, the arbitral award shall be made by a majority. The LICA contains no provision concerning dissenting opinions. Under the ICAC Rules 2007, the arbitral award has to be signed by the majority subject to indications of the reasons for each omitted signature.

30. Dissenting opinions

How does your domestic arbitration law deal with dissenting opinions?

In contrast to the former ICAC rules, the ICAC Rules 2007 provide that an arbitrator who does not agree with the majority is entitled to attach his or her written dissenting opinion to the award.

31. Form and content requirements

What form and content requirements exist for an award?

The award must be in writing and be signed by the arbitrators, stating the reasons upon which it is based, a resolution regarding satisfaction or rejection of the claim, the amount of the arbitration fee and costs, and their apportioning. It shall record the date and the place of arbitration, the names of the parties and the arbitrators. According to the ICAC Rules 2007, the award must also contain a reference to the subject matter and a brief description of the circumstances of the case. The latter appears somewhat confusing when one considers that no records are provided for in the ICAC Rules 2007 and in practice there is almost no way to ensure any type of recording of the hearing, including tape recording. Such a recording can probably only be provided if it is specifically agreed by both parties and at their additional cost.

The ICAC awards have certain common features in structure. It is not common to refer to precedents, other cases or to cite scholars' writings.

32. Time limit for award

Does the award have to be rendered within a certain time limit under your domestic arbitration law?

The award is not subject to any time limit under LICA provisions; however, the ICAC Rules 2007 provide that it shall not exceed six months from the date of constitution of the arbitral tribunal. Formerly the said term was counted from the receipt of the statement of claim and the arbitration fee. This period may be extended by the ICAC presidium on the basis of a reasoned application from either the arbitral tribunal or one of the parties.

33. Date of award

For what time limits is the date of the award decisive and for what time limits is the date of delivery of the award decisive?

According to the LICA, after the award is made a copy signed by the arbitrators shall be delivered to each party. Usually the award is dated according to the last meeting actually held even if it was rendered after such meeting.

The ICAC Rules 2007 provide that the written award shall be sent to the parties within 15 days of the award. The ICAC president can extend this term in exceptional cases, but only for 10 days. In complex cases the arbitral tribunal can decide to close the proceedings without announcement of their resolution, and send the latter to the parties within the increased term, but not later than within 20 days.

The date of the delivery of the award is decisive for calculation of the time limits for the application for correction or interpretation of the award, rendering of an additional award and challenging of the award.

The award is final, binding and enforceable when duly rendered.

A new rule was introduced in section 4 of article 52 of the ICAC Rules 2007, according to which the ICAC may withhold an award until all unpaid expenses connected with the arbitral proceedings have been settled. Unfortunately, the Rules do not specify whether the arbitrators must take any action in this regard. It is unclear what happens in the case of prolonged non-payment: whether another party can make the payment in place of the liable party and if so, how (and, indeed, if at all) expenses may be recovered.

34. Types of awards

What types of awards are possible and what types of relief may the arbitral tribunal grant?

The LICA does not name the types of awards. According to its wording the arbitral tribunal may render final awards, partial awards, awards on agreed terms and interim awards. The ICAC Rules, except for in the case of rendering awards on agreed terms, now directly provide for the possibility for an arbitral tribunal to also render a separate award (article 51 of the ICAC Rules 2007) on separate issues or parts of claims, including the granting of a claim in part, pending a full and final award. This is a new provision, and while it may be expected that it will operate in the same way as similar provisions in the rules of other arbitration institutions, there is as yet no available practice to report.

35. Termination of proceedings

By what other means than an award can proceedings be terminated?

The arbitration could be terminated through a final award or a termination order. The arbitral tribunal shall terminate the arbitral proceedings if:

  • it concludes on the absence of ICAC jurisdiction regarding the dispute;
  • the claimant withdraws his or her claim, unless the respondent objects thereto and the arbitral tribunal recognises a legitimate interest on his or her part in obtaining a final settlement of the dispute;
  • the parties agree on the termination of the proceedings; or
  • the continuation of the proceedings has for any other reason become unnecessary or impossible.

Besides the above, the arbitral proceedings can be terminated prior to constitution of the arbitral tribunal by the termination order of

the ICAC president if:

  • the claimant withdraws his or her claim;
  • the parties agree to terminate the proceedings;
  • the claimant violates the terms of payment of the arbitration fee;
  • the claimant does not fulfil a request to eliminate the defects in claim materials within the provided time limit;
  • the claimant does not provide additionally requested documents or information necessary for further arbitral proceedings (including the respondent's correct or new address, etc); or
  • the continuation of the proceedings has for any other reason become impossible.

36. Cost allocation and recovery

How are the costs of the arbitral proceedings allocated in awards? What costs are recoverable?

The LICA is silent in this respect. Allotment of the arbitration fee is established by the ICAC rules' schedule on arbitration fees and costs. In practice the decision taken by the arbitral tribunal sometimes has an opposing approach in allocation of the arbitration costs.

In general the arbitration fee shall be borne by the unsuccessful party, subject to any other rules. Where the claim is awarded partially the arbitration fee shall be borne by the parties in relevant proportions. Parties are free to agree on an allotment of the arbitration fee other than that provided in the schedule.

As to the other costs, the ICAC rules provide for costs of the arbitral procedure (ie, special expenses of the arbitral tribunal incurred in connection with the examination of a case, expenses of conducting expert examinations and preparing translations, sums to be paid to interpreters, experts and witnesses, travelling allowances connected with the case examination, etc) and expenses of the parties (ie, expenses incurred separately in defending their interest before the arbitral tribunal, their travelling allowance, lawyers' fees, etc).

In addition, the schedule on arbitration fees and costs provides separate rules for the reimbursement for costs:

  • translation costs – if the parties agree that the arbitral proceedings shall be neither in Ukrainian nor in Russian, they shall share the expenses for the interpreter (if required); if upon the request of a party the translation of the commentaries and instructions of the arbitral tribunal is made in a language another than Ukrainian or Russian, the requesting party shall pay for translation. The same rule shall apply to translation of ICAC awards;
  • other additional costs – if the place of the hearing as agreed by the parties is other than the location of the ICAC (Kiev), the parties shall bear all additional costs connected with the conduct of such hearing jointly, and the ICAC can request one or both parties to provide it with a guarantee or advance payment for compensation of the said expenses; otherwise, the hearing shall take place at an ICAC location; and
  • arbitrators' costs – a party-appointed arbitrator whose habitual residence is not in the region or district where the meeting of the arbitral tribunal will take place shall receive advance payment for his or her participation in the arbitral proceedings (to cover travelling expenses, accommodation, etc). If a non-resident arbitrator is appointed by the ICAC president or as a presiding arbitrator, advance payment should be shared equally between the parties. If the respondent fails to pay the corresponding advance in the given time limit, the whole payment should be made by the claimant.

These costs are not recoverable in ICAC practice.

If the party fails to advance or to appoint another arbitrator whose participation does not require such additional expenses within the prescribed time limit, the party is deemed to refuse the appointment of the arbitrator, and the arbitrator will be appointed by the UCCI president.

The expenses for legal representation of the successful party (including travelling allowances, fees and expenses for legal assistance, etc) may be recovered from its opponent according to the judgment of the tribunal. Such judgment should be based on an evaluation of the basis and reasonableness of the expenses. ICAC practice in this respect is, however, controversial, including the use of different financial calculations based on different grounds. Until now, in the majority of cases arbitral tribunals, with reference to the ICAC Rules 2007, have rejected requests to compensate legal fees and expenses as they are not included in the claim or counterclaim and thus are not paid by the arbitration fee.

37. Interest

May interest be awarded for principal claims and for costs and at what rate?

Interest may be awarded for principal claims in accordance with the applicable substantive law. Interest may not be claimed for arbitration costs. Interest as a rule may only be awarded in a lump sum, being part of the monetary claim paid by the arbitration fee.


38. Interpretation and correction of awards

Does the arbitral tribunal have the power to correct or interpret an award on its own or at the parties' initiative? What time limits apply?

In international arbitration any party may request the arbitral tribunal to correct any errors in computation, any clerical or typographical errors or any errors of a similar nature in the award, or to give an interpretation of a part of the award or to make an additional award on the claims discussed in the course of the arbitral proceedings but omitted from the award. Such requests shall be made within 30 days of receipt of the award. The arbitral tribunal shall decide on an application for correction or interpretation within 30 days. According to article 54 of the ICAC Rules 2007, the arbitral tribunal shall make an additional award within 60 days if the omission can be rectified without an oral hearing and presentation of new documents. Both terms can be extended.

39. Challenge of awards

How and on what grounds can awards be challenged and set aside?

Pursuant to article 34(2) of the LICA, an arbitral award may be set aside by the competent court only if:

  • the party making the application for setting aside provides proof that:
    • a party to the arbitration agreement referred to in article 1.2 of the Rules was under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of Ukraine;
    • the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his or her case;
    • the award 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 award that contains decisions on matters not submitted to arbitration may be set aside; or
    • the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of the Law on International Commercial Arbitration from which the parties cannot derogate, or, failing such agreement, that the agreement was not in accordance with this law; or
  • the court finds that:
    • the subject matter of the dispute is not capable of settlement by arbitration under the law of Ukraine; or
    • the award is in conflict with the public policy of Ukraine.

An application for setting aside may not be made after three months have elapsed since receipt of the award or since the date of the award on correction, interpretation or an additional award.

As the Civil Procedure Code of Ukraine does not contain special provisions governing the setting aside proceedings, and the court apply provisions of chapter VIII (enforcement of foreign awards) of the said code by analogy and are guided by the Supreme Court Recommendations No. 12 (on Practice Of Consideration By The Courts Of Motions For Recognition And Enforcement Of Foreign Court Judgments And Arbitral Awards, And On Setting Aside The International Commercial Arbitration Awards Rendered Within The Territory Of Ukraine, of 24 December 1999) for this category of cases. The conditions of setting the awards aside are established in article 34 of the ICA Law and are identical to UNCITRAL Model Law ones.

Currently several drafts amending CPC are pending final consideration and approval by the Ukrainian parliament. These proposals also include provisions on setting aside and enforcement of international arbitral awards. The amount of the court fee payable at the filing or the setting aside award is determined rather ambiguously in the above said Supreme Court Recommendations No. 12. Depending on court practice and interpretation made by the judge, the amount to be paid by the applicant may vary from the maximum court fee applicable to the claims in litigation (ie, approximately e170) to half of the arbitration fee paid within the arbitral proceedings.

Reproduced with permission from Law Business Research. This article was first published in Getting the Deal ThroughArbitration 2011, (published in February 2011; contributing editors Gerhard Wegen and Stephan Wilske of Gleiss Lutz). For further information please visit

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