40. Levels of appeal
How many levels of appeal are there? How long does it generally take until a challenge is decided at each level? Approximately what costs are incurred at each level? How are costs apportioned among the parties?
The Ukrainian Civil Procedure Code does not contain any specific rules regarding the appeal of the first courts' rulings on the setting aside of arbitral awards rendered in Ukraine. According to the general rule, three levels of appeal exist. The initial application shall be brought to the first instance (district) court at the place of location of the ICAC or ad hoc arbitration. The rulings of the first instance court are subject to further appeal before the respective appellate court (the second instance court), the rulings of which can then be brought for cassation to the Civil Chamber of the Supreme Court of Ukraine. Taking into account the absence of any legislative regulations with regard to setting aside procedures and according to our experience, the hearings at the first and second instance courts can last from three to six months, each subject to the procedural tactics of the party. The cassation instance usually hears the case without the parties and it may take less time. Since there are no direct provisions in relevant procedural legislation, there has been some controversy about calculation of the state duties by different judges, which creates problems for the competent local court admitting the setting aside application. The costs incurred upon the party's application may be recovered from the defeated party.
41. Recognition and enforcement
What requirements exist for recognition and enforcement of domestic and foreign awards, what grounds exist for refusing recognition and enforcement, and what is the procedure?
Chapter VIII of the Civil Procedure Code of Ukraine sets forth unified enforcement procedures for all 'decisions of foreign courts', clarifying in article 390 that the latter term also includes awards of foreign and international arbitral tribunals.
Pursuant to article 390 of the Civil Procedure Code of Ukraine, Ukrainian courts shall grant enforcement of the foreign arbitral awards provided that: recognition and enforcement are permitted under an international treaty ratified by the Ukrainian parliament; or on the basis of a reciprocity principle. Regarding the latter, the Civil Procedure Code of Ukraine expressly provides that in case the recognition and enforcement of a foreign arbitral award depends on reciprocity principle, it shall be presumed that reciprocity exists unless it is proved otherwise.
Previous legislative regulations have stabilised the practice of enforcement of foreign arbitral awards, based on the New York Convention. The grounds for refusing recognition and enforcement of the said awards are also set out in the Convention. The first-instance courts are empowered to decide on the relevant application for enforcement. Their decisions, however, can be appealed.
Regarding enforcement of the arbitral awards rendered in CIS countries being a party to the Treaty on Settling of Disputes Related to Commercial Activity, Kiev, 20 March 1992 (please see question 1 above), the courts also apply the rules established in the said Treaty instead of the New York Convention, 1958.
42. Enforcement of foreign awards
What is the attitude of domestic courts to the enforcement of foreign awards set aside by the courts at the place of arbitration?
There is no available case law on this issue. It may be assumed, however, that the Ukrainian courts will be reluctant to enforce in Ukraine an arbitral award annulled at the place of its origin.
43. Cost of enforcement
What costs are incurred in enforcing awards?
There is no state duty except payment for informational support amounting to 60 hryvna. There are additional expenses associated with providing a legalised translation of the award and the arbitration clause into Ukrainian.
44. Judicial system influence
What dominant features of your judicial system might exert an influence on an arbitrator from your country?
The Ukrainian system is based on civil law. In arbitration documentary evidence prevails over witness statements. Ukrainian arbitrators as a rule conduct arbitral proceedings in an inquisitorial rather than adversarial manner. The latter is based on the traditionally active position of the judge in the judicial proceedings.
45. Regulation of activities
What particularities exist in your jurisdiction that a foreign practitioner should be aware of?
According to the Law on Advocacy, foreign attorneys can be admitted in Ukraine if they:
- have higher legal education, confirmed in accordance with the international agreements of Ukraine by the diploma of another country;
- have experience in industry providing legal services for not less than two years;
- speak Ukrainian; and
- have passed the qualifying exams in Ukraine, and have received the advocate certificate and taken the oath of a Ukrainian advocate.
Such requirements as visa and working permits must be observed by the counsel if the latter is going to provide permanent legal services in Ukraine or to represent its clients in state courts and other governmental entities.
For participation in international arbitration as an arbitrator or a counsel, there is no need to obtain a working permit or the Advocate Certificate. As a rule, an entry visa is required. In arbitration under the ICAC Rules the institution usually undertakes to provide the arbitrator with the necessary invitations for visa purposes and remuneration (from the special advance paid by the party to such appointed arbitrator) of relevant expenses.
Reproduced with permission from Law Business Research. This article was first published in Getting the Deal Through - Arbitration 2011, (published in February 2011; contributing editors Gerhard Wegen and Stephan Wilske of Gleiss Lutz). For further information please visit www.GettingTheDealThrough.com
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