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Enforcement of Arbitral Awards and

Foreign Court Judgments in Ukraine

Oksana YeremeyevaSenior Counsel

Bar Council of England and Wales seminar and round table26 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).

▪ 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.

General Rules of 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”.

Grounds for Refusing Recognition and Enforcement

▪ 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.

Documents to be Filed with the Court

▪ 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.

Positive Legislative Developments

For further information concerning the above please contact:

Dr. Irina Paliashvili, President & Senior Counsel:

irinap@rulg.com

Oksana Yeremeyeva, Senior Counsel:

Oksana.Yeremeyeva@ulg.kiev.ua

Thank You!