#10 October 2014

In focus – International Arbitration

International arbitration has definitely become an industry that functions according to market rules. Arbitration institutions compete for potential users and adopt new rules to become more attractive. These entail development of appropriate arbitration infrastructure and arbitration centers have got used to benefiting from being so-called hubs. Arbitration-friendly jurisdictions usually enjoy a high level of rule of law...

With the support of Tax Regulation

Legislation on transfer pricing came into effect on 1 September, one year ago. In general, the legislation was accepted by the community with understanding, especially as the outflow of capital to low tax jurisdictions has continued in recent years. However, there was much discussion and bitter criticism in respect of some provisions on high penalties and control over transactions of related persons residents of Ukraine. The legislation was approved within a very short period of time. There was almost no time to get used to it. And understanding of the practical application of the legislation by both taxpayers and the tax agency was gained as it was applied throughout the first year, Yaroslav Romanchuk, managing partner of the International legal center EUCON, says...

Expert Opinion

Recognition and Enforcement of Awards in Ukraine: some Practical Aspects

Kseniia V. Pogruzhalska

The issue of recognition and enforcement of international arbitral awards is not new for Ukrainian courts. The procedure is established in chapter VIII of the Civil Procedural Code of Ukraine (hereinafter the Code), and in several places makes references to the provisions of international treaties to which Ukraine is a party. The main problem in application of the Code arises in practice when local courts (and sometimes appellate and cassation courts as well), which are authorized to consider applications for the recognition and enforcement of arbitral awards, disregard the obligatory rules of the international agreements and groundlessly apply irrelevant provisions of the Code. As a result, the courts de facto prevent Ukraine from being recognized as an arbitration friendly jurisdiction

In Re

Challenge of Arbitration Awards on Merits

Yaroslav A. Petrov

It is generally recognized that an arbitral award shall be final and binding, but notwithstanding this it may be challenged in the courts of the country where it was rendered. National arbitration laws of different countries set out grounds for challenging (setting aside) of arbitration awards. As regards Ukraine, Article 34 of the International Commercial Arbitration Act (which mirrors the UNCITRAL Model Law on the International Commercial Arbitration of 21 June 1985 (the Model Law) contains the following exhaustive list of grounds for setting aside of arbitral awards, namely: incapacity of a party that executed the arbitration agreement at the time of its execution

Challenge of the Arbitrator on the Grounds of Nationality: Shift in the ICAC Approach Needed

Daniyil E. Fedorchuk

International arbitration is based on the fundamental idea of independence and impartiality of the arbitrators settling disputes between companies originating from different states in a neutral forum. For this purpose, the parties are free to appoint arbitrators among specialists of any nationality (of course, subject to the requirement of proficiency in a language of arbitral proceedings). At the same time, arbitrators are expected to be free from any conflict of interests and remain independent of the parties, their counsels and not be reasonably engaged in the dispute in any way beyond their role as arbitrators...

Wrong Arbitration Clause can Bring in Winning Award Lie Waste

Nikolay V. Melnykov, Alexander V. Chebotarenko

As we know, foreign economic activity is governed by international law and national laws of states involved in such relationships. Sometimes in international trade contentious situations occur which require prompt and impartial resolution. Thus, international arbitral tribunals have become basic and universal mechanism for resolving such conflicts. One of the main difficulties of settling international trade disputes is that even after the actual decision by the court in favor of the plaintiff: there is no firm guarantee of compulsory recognition and enforcement of the decision. Once an international commercial arbitration award has been completed, it is necessary to recognize and execute the same in due course in the appropriate court of the State where the respondent is located...

Case Law

Yukos Arbitrations: a Cautionary Tale for Governments

Sergiy Y. Gryshko

On 18 July 2014 the arbitral tribunal (Judge Stephen M. Schwebel, Dr. Charles Poncet, chaired by The Hon. L. Yves Fortier) constituted under 1976 UNCITRAL arbitration rules simultaneously issued final awards based on the 1994 Energy Charter Treaty (ECT) in three Yukos cases: Hulley Enterprises Limited v. the Russian Federation, Yukos Universal Limited v. Russian Federation, Veteran Petroleum Limited v. Russian Federation. Three claimants collectively held 70.5% in OJSC Yukos Oil Company, the largest Russian oil and gas company at one time, which was forced into bankruptcy in 2007 following the collection of a USD 24 billion tax bill by the Russian authorities

Cover Story

Sharpen the Vision

Since the Ukrainian legal market is a mirror of the declining economy, lawyers have to retain austerity, at the same time responding to the problems of clients and reviewing their own business strategies. On the eve of the 10th anniversary of Lavrynovych & Partners, one of the most dynamic Ukrainian law firms, we discussed the situation on the market, the sharpen vision of the marketplace, lessons and opportunities on the ground with Maksym Lavrynovych, the firms founding partner...

Global Legal Update

Arbitration in Switzerland High-Quality and Efficient Resolution of Business Disputes

James Menz, Anna V. Kozmenko

Switzerland has long been associated with neutrality, stability, and high standards of quality. Located in the heart of Europe, Switzerland is a multilingual and multicultural country and hosts numerous international organizations. Building on a long tradition dating back to 1872, Switzerland continues to be one of the leading venues for international commercial arbitration, attracting parties from all over the world, including Ukraine. According to International Chamber of Commerce (ICC) data, since 2000 Switzerland has consistently been ranked first or second among the venues for ICC arbitration proceedings worldwide. A survey of the CIS legal market revealed that Switzerland and Swiss law are among the top choices of CIS and Ukrainian parties for the seat of arbitration and applicable law, respectively

Venue

Association in Practice

On 24 September Kiev hosted the EU-Ukraine International Legal Forum held by Yuridicheskaya Practika Publishing. The preeminent practical dedication of the recently ratified Association Agreement drew the attention of the heads of central state authorities, partners of leading law firms, in-house counsels of large enterprises in Ukraine, representatives of international and Ukrainian business associations, scientists. The sessions covered a wide spectrum of issues, like reform of the legal system, free trade area, European future of Ukrainian business (agribusiness and food industry, IT, telecommunications, E-commerce, banking and finance), regulatory integration (intellectual property, harmonization of regulation environment, competition and public procurement), dispute settlement

Crux

Sensitive Energy

The policy of improving energy security is still being worked on. The Ukrainian government is once again facing the problem of energy dependence on the eve of the growing cold and coming heating season. The scale of problems appeared to be enormous and sector reforms absolutely critical. Essentially, energy is considered engine behind its integration with the EU. This months expert panel offers an opportunity to get a legal review on selected sensitive energy matters...

Deals

CMS advised lenders on pre-export financing for Kernel Group

CMS Cameron McKenna has advised ING and UniCredit as coordinators, and lenders Citibank, BNP Paribas, Natixis, Rabobank, Arab Bank and Banque de Commerce et de Placements (BCP) on a sunflower oil based pre-export financing of up to USD 400 million for Kernel Group.

The lenders provided a secured revolving facility of up to USD 400 million which is secured by the assignment of export receivables and pledge of commodities and guarantees from Kernels key trading and operational companies.

Cases

Cases

-Court refuses to collect in favor of bank Forum depositors-

-ZhL violated the competition legislation-

-Court increased claims of the prosecutors office against IAU-

-Regional Council has appealed a court judgment on the Metalist arena-

Draft

Draft

-Tax agreement-

-Public procurement-

-Provision of material resources-

Law Digest

Law Digest

-Requirements to confirm payments for transportation services-

-Currency stability-

Chamber News

Chamber News

-Food & Beverage Committee Meeting-

-Banking & Financial Services Committee Meeting-

-Agricultural Committee Meeting-

UBA News

III UBA Tax Forum

On 26 September the Tax Forum was held in Kiev. It has already become the third high profile event of the Ukrainian Bar Association. The chairman of the State Fiscal Service of Ukraine, Igor Bilous, attended the venue and participated in an open dialog with leading tax specialists. Alexander Minin, senior partner of WTS Consulting (former KM Partners), provided a presentation on necessary changes that, in his opinion, should be made in tax legislation. Tax reform is needed to move Ukraine up in the world tax rating and stay competitive in comparing with other countries...

Biznews

Biznews

-President Poroshenko approves legislation to reform national gas transportation system-

-Oil and gas Kuwait Energy sells its assets in Ukraine-

-Ukraine moves 8 steps higher in the Global Competitiveness Index-

-AMCU fined Lvivoblenergo-

-Authorities of Crimea nationalize oil storages and some gas stations of Privat-

-Rules to enter Crimea change for Ukrainians-

-European Parliament ratified EU-Ukraine Association Agreement-

-Only five major banks passed IMF stress test-

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