ICC or the ICAC in Kyiv: Which Arbitration Rules to Name in a Contract with a Ukrainian Company

Cross-border disputes | JVS Law

The arbitration clause is written in the last ten minutes of a negotiation, usually by someone who has stopped reading. It then decides how much the dispute costs, how long it takes and whether the award is worth anything — and for a contract with a Ukrainian counterparty there are realistically two forums to name.

This page sets out what each one is today, because the ICC Rules that a Ukrainian audience was shown in 2017 are two editions out of date, and the number everybody remembers from them — a US$2 million threshold — has since moved twice. Most recently on 1 June 2026.

The current text is the 2021 ICC Arbitration Rules, in force since 1 January 2021. The expedited procedure introduced in 2017 is still the most consequential thing in them, and the threshold at which it applies automatically has three tiers:

• US$2,000,000 — arbitration agreements concluded from 1 March 2017 to 31 December 2020;
• US$3,000,000 — from 1 January 2021 to 31 May 2026;
• US$4,000,000 — from 1 June 2026 onwards.

The tier is fixed by the date of the clause, not the date of the dispute. This is the part that catches people. A framework agreement signed in 2019 carries the US$2 million threshold for as long as it lives, however large the claim under it turns out to be, and a clause signed this summer carries US$4 million. If you are amending a long-running contract, the arbitration clause is worth re-executing on purpose rather than leaving it to inherit its original date.

What the expedited procedure does, under Article 30 of the Rules and the Expedited Procedure Provisions: the case management conference is held within 15 days of the file reaching the tribunal, and the award is due within six months of that conference. The Court may appoint a sole arbitrator notwithstanding a clause that says three. Parties can opt out in the clause or later, and can opt in whatever the amount or the date.

That override is the reason to think about the number of arbitrators at drafting stage rather than treating it as boilerplate. A three-member tribunal written into a contract worth less than the threshold is not a promise; it is a preference the Court can decline.

Terms of Reference (Article 23). Early in the case the tribunal and the parties sign a document fixing the claims and the issues to be determined. After it is signed or approved by the Court, no new claim outside its limits may be made without the tribunal’s authorisation. Counsel used to open-ended pleading amendment should read this as a hard gate, and plan the case theory before it closes rather than after.

Scrutiny of the draft award (Article 34). Before it is signed, every award goes to the Court, which may require changes as to form and may draw the tribunal’s attention to points of substance without touching the decision itself. No award is issued until the Court has approved its form.

Two things this is not. It is not an appeal — the tribunal decides, and the Court does not. And for readers from common-law practice: neither feature is discovery, and neither forum discussed here has anything resembling depositions. Scrutiny in particular has no counterpart in US or English institutional practice, and it is the single strongest argument for the ICC when the concern is that a defect in the award will surface later, at the enforcement stage, in a jurisdiction the parties have never seen.

The International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry — the ICAC — operates under the Law of Ukraine on International Commercial Arbitration of 24 February 1994; its statute is an annex to that Law rather than a private set of by-laws. Its Rules are in force in the version amended with effect from 18 February 2025; that amendment was narrow, concerning Article 60 — the number of original copies of the award, and the affixing of the Secretary General’s signature and the ICAC seal to each of them.

On its own figures the ICAC accepted 1,499 cases over six years and 298 cross-border cases in 2021, and cites parties from 56 countries. Treat those as the institution’s own numbers, which is what they are; the useful point is that this is a working caseload rather than a nominal institution, and that a Ukrainian respondent will not be able to present the forum as exotic.

Where the ICAC genuinely wins is cost and proximity: its fee schedule is a fraction of the ICC’s ad valorem scale for mid-sized claims, the seat is where the assets are, and the hearing does not require the Ukrainian party to fund travel it will later litigate about. Where it loses is the scrutiny mechanism above, and the comfort a foreign board takes from a Paris-administered case.

One asymmetry worth naming: the ICC published its Rules in Ukrainian, which was unprecedented when it happened and is a fair signal of where it expects its cases to come from. The page that hosted that version has since gone; it survives only in the Internet Archive, which is its own small lesson about relying on an institution’s website for the text you will one day need to prove.

This is the part of the choice that is usually skipped, and it is the part that decides whether the exercise was worth anything.

Ukraine has been a party to the New York Convention since 1960, so an ICC award made in Paris, Vienna or Stockholm is recognised in Ukraine on the Convention’s terms. But the application is not heard by whichever court is nearest the debtor. Under Article 23 of the Civil Procedure Code, as rewritten by the 2017 procedural reform, applications concerning awards of international commercial arbitration go to an appellate court sitting as a court of first instance — and where the seat is outside Ukraine, to the appellate court whose jurisdiction covers Kyiv. Nearly every such case in the country lands on one bench that sees them constantly.

An ICAC award ends up in front of the same court, by a different route: the seat being in Ukraine, what is sought is a writ of execution rather than recognition of a foreign award. The practical consequence is the same. The forum you name changes the procedure that gets you there; it does not change who decides whether you are paid.

Two things do change with the choice, and both are worth pricing in advance. Grounds for refusal are narrow and exhaustive under the Convention, but they are argued, and the most common attack in Ukrainian practice is on the arbitration agreement itself — we have set out how arbitration clauses are challenged in Ukrainian courts separately. And the reform that concentrated these cases did not touch the enforcement of foreign court judgments, which still start in a local court at the debtor’s address — what the 2017 reform did and did not deliver.

• Name the institution exactly. “Arbitration in Kyiv” names nothing. Article 22(3) of the Commercial Procedure Code requires a Ukrainian court to read doubt in favour of the arbitration agreement, but a rule of construction rescues an ambiguous clause, not an empty one.
• State the seat and the language. The seat determines which courts supervise the arbitration; the language determines what your translation budget will be for every document in the case.
• Decide the number of arbitrators knowing the override. Below the ICC threshold the Court may appoint a sole arbitrator regardless of what you wrote. If three matters to you, say so and opt out of the expedited procedure explicitly.
• Check which threshold your clause inherits. US$2m, US$3m or US$4m depends on the date the arbitration agreement was concluded, not on the date the dispute arises.
• Ask where the assets are before you ask where the hearing is. If everything the debtor owns is in Ukraine, the award will be litigated in Kyiv whatever your clause says.

Originally published on 6 November 2017 as a report of the ICC Ukraine presentation of the 2017 Rules. Rewritten in August 2026 against the current texts; the ICC figures are taken from the ICC’s own Expedited Procedure page and the ICAC figures from the ICAC, on the dates shown. Thresholds and rules change — check both sources before relying on anything here in a live negotiation.

The author has practised in international commercial arbitration since 1991 and teaches it at the Institute of International Relations of Taras Shevchenko National University of Kyiv; his textbook International Commercial Arbitration is written from the enforcement end, which is the end this page is about.