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( Source of the document: ICC Digital Library )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
Explanatory note: In 1961, the (then) Ukrainian Soviet Socialist Republic acceded to the New York Convention simultaneously with the USSR, of which it then formed part. Ukraine continues to be a Contracting State to the New York Convention as a successor to the Ukrainian SSR.
Ukraine is now a unitary state. Pursuant to Art. 9 of the Ukrainian Constitution, treaties concluded by Ukraine are incorporated into the legal order of Ukraine upon ratification by the Ukrainian parliament and take precedence over any conflicting provisions in Ukrainian law.
On 11 Nov. 2015, the Secretary-General of the United Nations communicated a notification of the Ministry of Foreign Affairs of Ukraine, with respect to the territorial application and implementation of the New York Convention in Ukraine. The notification states that due to the aggression of the Russian Federation committed against Ukraine, the application and implementation by Ukraine of the obligations under the New York Convention in relation to the Autonomous Republic of Crimea and certain districts of the Donetsk and Luhansk oblasts of Ukraine is limited and is not guaranteed.
2. Date of entry into force of the New York Convention
8 Jan. 1961.
3. Has any reservation been made under Art. I (3) of the New York Convention regarding:
Yes. Ukraine has made a reservation to the effect that Ukraine will apply the New York Convention to arbitral awards made in non-Contracting States on the basis of reciprocity.
(b) commercial relationships?
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
Yes. For instance, arbitral awards issued under the Arbitration Rules of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry or under the Rules of the Maritime Arbitration Commission at the Ukrainian Chamber of Commerce and Industry are considered foreign awards and are subject to the same recognition and enforcement procedures as awards made abroad.
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
C. Limitation periods (time limits)
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
The CCPU provides for a limitation period of three years. It starts running from the date the award was rendered.
(Source: CCPU, Art. 475(3).)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
Applications for recognition and enforcement of foreign awards are considered by the Kyiv Court of Appeal (as the court of the first instance).
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
The award debtor must have its domicile in Ukraine or, if the award debtor is not domiciled in Ukraine or its whereabouts are unknown, it must have assets located in Ukraine.
(Source: CCPU, Art. 475(1-2).)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings
Inter partes proceeding, as the debtor must be duly notified of the application being filed and must be summoned to appear before the court. The absence of the parties or one of the parties duly notified of the date, time and place of the hearing shall not prevent the court from considering the application.
(Source: CCPU, Part 1 Art. 477.)
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
(b) How many levels of appeal or recourse are available against this decision?
The decision on granting or denying recognition and enforcement may be appealed only to the Supreme Court. The decision of the Supreme Court is final and subject to no further appeal.
(Source: CCPU, Arts. 351(2), 419(3).)
10. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
The earliest stage that an award creditor may obtain execution of a foreign award against assets is by initiating enforcement proceedings. The enforcement proceedings may be initiated upon affirmation of the order for leave to enforce by a Court of appeal or Supreme Court or, where an order granting leave to enforce has not been appealed, upon the expiry of the 15-day term for filing of an appeal.
(Source: CCPU, Arts. 351(2), 354(1), 479(8).)
E. Evidence required
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
An applicant must provide the following documents with its application:
(Source: CCPU, Art. 476(4); New York Convention, Art. IV (1).)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
Although there are no explicit requirements in this respect, Ukrainian courts tend to require the entire documents.
(c) Are originals or duly certified copies required?
An applicant may provide either the originals or duly certified (notarised) copies.
(d) How many originals or duly certified copies are required?
One original or a duly certified (notarised) copy of each document must be attached to the application.
(e) Does the authority or court keep the originals that are filed?
Yes, all documents filed with the court remain in the court's file.
(a) Is it necessary to provide a translation of the documents supplied?
(Source: CCPU, Art. 476(4); International Arbitration Law, Art. 35(2).)
(b) If yes, into what language?
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
Yes, the arbitration agreement and the arbitral award must be accompanied by a translation certified by either Ukrainian or a foreign notary.
(Source: Regulation 12, § 7(8).)
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
There are no express rules on this issue, but the normal practice is to submit the translation of the whole award and the contract containing the arbitration clause.
F. Stay of enforcement
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
(Source: CCPU, Art 477(7); International Arbitration Law, Art. 36(2).)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
Regulation 12 provides that the enforcement proceedings are subject to the general provisions of the CCPU on entertaining lawsuits. These provisions include the duty of the court to stay proceedings where it is critical for another case brought before another court to be finally decided before the enforcement proceedings can continue.
Other likely grounds for staying proceedings for recognition and enforcement include the death of an individual who is a party to proceedings, the reorganization of the debtor (provided liability for the debt passes to a successor), and a request to a foreign competent court or institution for legal assistance.
(Source: CCPU, Art. 251(1)(1-6)).
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
No, but the International Arbitration Law provides that the court may, at the request of a party seeking enforcement, order the other party to provide sufficient security. Provision of security may be required but is not an essential condition for a stay.
(Source: International Arbitration Law, Art. 36(2).)
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
Currently the case files are not accessible to the public. The Law of Ukraine On Access to Public Information enacted in 2011 however contains a broad definition of 'public information' that suggests that case files can be considered 'public information'. The courts have expressly excluded court dockets from public information through their uniform internal regulations. Thus, currently most internal court regulations restrict the access to the court docket for persons not involved in the case.
According to such Law, confidential information cannot be disclosed without the consent of the persons who have made the information in question confidential. The confidentiality of documents may therefore be preserved by introducing a confidentiality clause into the documents in question as well as by requesting the court to hold hearings in camera.
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
No, hearings in recognition and enforcement proceedings are not confidential per se. However, parties may apply for a hearing in camera for the sake of maintaining trade or State secrets and other confidential information.
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
Yes, they are published like any other judgments and are available through a public online registry of court judgments. However, due to the nature of the case, names of the parties and other confidential information might be removed. If the judgment was made following a hearing in camera, it must not contain the sensitive information that was the reason for the hearing in camera.
H. Other issues
When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
There are no express rules on this issue. However, there is a consistent body of case law that interim or partial award are subject to enforcement pursuant to the New York Convention in the same manner as final arbitral awards.
Furthermore, even though it is not established by the law, interim or partial foreign awards are practically impossible to enforce in Ukraine. This is due to the fact that CCPU does not provide for an appropriate procedural framework that would enable courts to enforce interim or partial foreign awards. However, if an interim or partial award implies recognition, e.g. contain findings of liability or similar declaratory findings, such awards may be enforced as a final arbitral award.
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
Non-monetary awards are enforceable in Ukraine in the same manner as awards that contain monetary relief. There are no general restrictions on the non-monetary relief provided it is awarded in an arbitrable dispute.
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
Partial enforcement is possible in the circumstances foreseen by Art. V(1)(c) of the New York Convention, i.e. the partial enforcement may be granted where an award extends to matters falling outside the scope of the parties' submission.
Furthermore, in case the award has already been enforced, the court determines in what part, and as from when, the award is subject to enforcement.
(Source: CCPU, Art. 479(3).)
Regulation 12 provides that where a foreign award has been partially executed, the court shall grant enforcement only in relation to the part that has not been satisfied, in order to avoid double recovery.
(Source: Regulation 12, §12(8).)
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
There is no such possibility under Ukrainian law. Art. V(1)(e) of the New York Convention tends to be construed restrictively by Ukrainian courts.
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
An application for recognition and enforcement of an arbitral award should be accompanied by evidence of payment of a court fee. This court fee is currently 50% of the subsistence minimum (approx. 25 euros).
An application must be accompanied by a duly certified power-of-attorney. The requirement of 'due certification' of the power-of-attorney may imply that, if a power-of-attorney is issued overseas, it must be legalized by a consular authority of Ukraine or apostillized in accordance with the 1961 Hague Convention Abolishing the Requirement for Legalization for Foreign Public Documents.
The evidence confirming that the award has become effective may be required by the competent court for the purposes of recognition and enforcement.
Country Rapporteurs: Sergiy Gryshko, Olexander Martinenko
Other contributors: Yaroslav Petrenko, Yuriy Rybak