Transcript Enforcement of Arbitral Awards and Foreign Court Judgments in

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Enforcement of Arbitral Awards
and
Foreign Court Judgments
in Ukraine
Oksana Yeremeyeva
Senior Counsel
Bar Council of England and Wales seminar and round table
26 January 2011
International Treaties
▪ Ukraine is a party to:
▪
New York Convention (UN Convention on Recognition and
Enforcement of Foreign Arbitral Awards, 1958);
▪
European Convention on International Commercial
Arbitration, 1961;
Kyiv Treaty on Settlement of Commercial Disputes, 1992;
Minsk Treaty on Legal Assistance in Civil, Family and
Criminal Cases, 1993;
ICSID Convention (Convention on Settlement of Investment
Disputes Between States and Nationals of Other States, 1965).
▪
▪
▪
General Rules of Enforcement
▪ Arbitral awards and foreign court judgments are
recognized and enforced in Ukraine if such recognition
and enforcement is envisaged by an international treaty
to which Ukraine is a party, or on the basis of reciprocity.
▪ Arbitration award (foreign court judgment) may not be
reviewed by the court on the merits.
▪ Competent courts: local district court at the location of
the debtor, or if the debtor does not have a location in
Ukraine or the location is unknown – at the location of
the debtor’s assets in Ukraine.
▪ Statute of limitation for applying for recognition and
enforcement – 3 years from the date the award
(judgment) entered into force.
Grounds for Refusing Recognition and Enforcement
▪ A Ukrainian court may refuse recognition and
enforcement only in cases stipulated by an
international treaty to which Ukraine is a party.
Therefore, if the New York Convention applies,
such grounds will be limited to those stated in
Article V of the Convention.
▪ In the absence of such treaty, the grounds for
refusal stipulated in the Code of Civil Procedure
will apply. Those grounds are similar to those
contained in the NY Convention; however, the
Code also provides for some additional grounds,
e.g. enforcement may be denied if it would
“endanger the interests of Ukraine”.
Documents to be Filed with the Court
▪ The list of documents is determined by the applicable international
treaty. Under the NY Convention, the party applying for recognition
and enforcement should supply the award and arbitration agreement
(either in the originals or duly certified copies) and duly certified
translation thereof into Ukrainian.
▪ If an award/judgment falls outside the NY Convention, the applicant
will be required to additionally file the following documents:
▪
official document stating that the award/judgment has entered
into force (unless already specified in the award/judgment itself);
▪
document evidencing that the non-prevailing party that did not
participate in the proceedings had been duly notified of the time and
place thereof;
▪
document determining what part of the award/judgment should
be enforced or starting from what time it should be enforced (in case
the award/judgment had been previously enforced);
▪
duly certified translation of the above documents.
Positive Legislative Developments
▪ Law of Ukraine “On Amendments to Certain Legislative Acts of
Ukraine Regarding Private International Law Issues” No. 1837-VI of
21 January 2010:
▪
applicable local procedural clarified: it is now clearly
stipulated that recognition and enforcement of foreign arbitral
awards is governed by the Code of Civil Procedure of Ukraine
(Chapter VIII). Although in practice those provisions of the Code
were applied to recognition and enforcement of foreign arbitral
awards before the amendments, there was no clarity in this regard;
▪
presumption of reciprocity introduced: in absence of a
respective international treaty a foreign arbitral award or court
judgment can be enforced in Ukraine on the basis of reciprocity.
According to the previous wording of the Civil Procedure Code, such
reciprocity was recognized based on an ad hoc agreement with the
respective foreign country, which basically made this principle
inoperative. Now there is a presumption that reciprocity exists
unless proven otherwise.
For further information concerning the above please contact:
Dr. Irina Paliashvili, President & Senior Counsel:
[email protected]
Oksana Yeremeyeva, Senior Counsel:
[email protected]
Thank You!