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How to deal with the unlawful decisions of arbitration in Ukraine

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Activities of arbitral tribunals in Ukraine raise even more question than activities of courts of general jurisdiction. If the latter can face liability through involvement of the High Qualification Commission and the High Council of Justice of Ukraine the arbitral tribunals are practically in no danger. As the result such courts are often used to make decisions which later are implemented through local courts and enforcement service.

Of course it is possible to deal with illegal decisions of arbitral tribunals and Chapter 1 of Section 7 that was recently included in the Code of Civil Procedure of Ukraine provides detailed regulation of the procedure of appeals against such decisions. But what should be done if a defendant found out about the decision of an arbitral tribunal only after a claimant had already applied to a local court in order to obtain an enforcement letter? How can one obtain original or notarized copy of arbitral tribunal decision if the very arbitral tribunal is already absent at the location where the case is heard?

If a case was heard in permanent arbitral tribunal it would not be much of a difficulty. Based on Section 2 of Article 389-9 of the Code of Civil Procedure of Ukraine it would be possible to file a petition about provision of case materials with further copying of received original (if the materials are provided) or demand denial of enforcement letter issuance based on Subsection 8 of Article 390-10 of the Code of Civil Procedure of Ukraine (if the materials are not provided). But in this particular case we are talking about arbitral tribunal created for settlement of a particular dispute (ad hoc arbitral tribunal).

Of course it is possible to file a petition about provision of the original directly by a local court that a claimant could file it along with petition about issuance of an enforcement letter. But what will one do if the claimant filed a notarized copy instead of original? Copy of a copy will not be suitable for appeal. It is also possible that the materials are not yet received by a local court since a court at the location where a case is heard must keep the case materials heard by arbitral tribunals created for a particular dispute settlement for which enforcement documents are issue.

It is possible to apply a little naive variant of filing of appeal against decision of arbitral tribunal with a petition about provision of an original and explanations of reasons due to which a defendant is not able to provide the original of arbitral tribunal decision.

Finally one may act in a little tricky and more complicated way which is to appeal not against decision of an arbitral tribunal but against stipulations of a contract which provide arbitration clause. At the same time based on the letter of the Supreme Court of Ukraine date 11.02.2009 one should make a petition not only about recognition of the arbitration clause as void but also demand revocation of arbitration decision. Even if there are no grounds for recognition of arbitration clause as void it will be possible to delay enforcement and try to obtain the original by means of petition about provision of arbitration materials including the decision which was made. But once more it is not for sure that a court will provide access to the original of decision and allow one to make a copy of it that will be possible to notarize.

But actually within this legal advice the most effective way will be a demand about denial of enforcement letter issuance based on Subsection 9 of Article 389-10 of the Code of Civil Procedure of Ukraine: arbitral tribunal made a decision about rights and obligations of persons that did not participate in a case. Thus, if a defendant did not receive notification about arbitration proceeding and the very arbitration decision, he is impossible to be recognized as such that was a party in a case.

 This material was prepared by legal experts of law firm “Pravova Dopomoga”. It is related to services of Legal advice and Legal representation.


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