Arbitral Awards Enforcement
Enforcement of foreign arbitral awards
The recognition and enforcement of foreign arbitral awards in Ukraine is a particular judicial procedure to obtain permission to recognize and enforce an international arbitral award (exeqatur) and to issue an enforcement document with collecting funds from a debtor subsequently. As part of this practice, Jurvneshservice provides the following services:
- preparation of a package of documents for initiating a judicial procedure for the recognition and enforcement of an arbitral award (exeqatur) in a Ukrainian court;
- application for interim measures in respect of the debtor’s property;
- preparation of a counterposition to the debtor’s objections to the execution of the arbitral award;
- representation of a creditor in the court of first (the court of appeal of Kyiv) and the appeal (the Supreme court of Ukraine) instances;
- preparation and submission of evidence, statements, and motions in the lawsuit;
- preparation of documents to initiate enforcement proceedings;
- obtaining a writ of execution and accompanying the enforcement proceedings.
Jurvneshservice attorneys have experience representing both the creditor and the debtor.
Judicial Procedure on Recognition and Enforcement
The arbitral award made by an international commercial arbitration court against a Ukrainian company can be recognized and enforced in Ukraine based on the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, the Law of Ukraine on International Commercial Arbitration and the Civil Procedure Code of Ukraine.
If the Jurvneshservice represents the interests of the creditor at the stage of preparing the judicial procedure, a package of documents is prepared to initiate legal proceedings:
– the arbitral award is legalized in the country of issuance;
– the arbitral award and the arbitration agreement are translated into Ukrainian, including certification of made translation at Ukrainian notary;
– a request for recognition and enforcement of the arbitral award is drafted.
Submitting the package of documents to the Court of Appeal of Kyiv initiates the proceedings to recognize and enforce the foreign arbitral award. The law gives the debtor a right to object against the recognition and issuance of a permit to enforce the arbitral award. Each debtor usually objects the award issued against him. Part of the grounds for a refusal to recognize and enforce must be proved by the debtor (for example, the arbitration clause’s invalidity, violation of the dispute resolution procedure, arbitrators going beyond their competence). Two grounds for refusal, such as the arbitrability of the dispute and the enforcement of the arbitral award, will be contrary to the public order of Ukraine, may be applied by the court on its initiative even if the debtor does not refer to them. In preparatory meetings, Jurvneshservice lawyers familiarize themselves with the debtor’s objections and present their position to beat all the debtor’s objections.
At the close of the preparatory hearing, the consideration of the case is started. The subject of litigation is the debtor’s arguments that he puts forward against the recognition and enforcement of the arbitral award against him. At this stage, Jurvneshservice lawyers provide a professional, competent, and reasoned presentation to the court of the arguments and evidence against the debtor’s position. The main goal is to prevent the debtor and the court from finding and justifying the existence of at least one ground to refuse the recognition and enforcement of the award. The result of the efforts of Jurvneshservice lawyers is the court ruling on the recognition and issuance of permission to enforce the arbitral award against a debtor in Ukraine.
After the court institutes proceedings on the recognition and enforcement of the arbitral award, Jurvneshservice lawyers may take legal actions to secure the debtor’s assets to preserve them from erosion or concealment during the consideration of the case in court and to ensure the enforcement of the arbitral award in kind. The ruling on security measures is executed immediately. The interim measures may be introduced if the foreign creditor has valuable assets in Ukraine or has paid the money deposit to the court bank account.
Appeal on the ruling of the first instance court
Based on the results of the consideration of the case, the court can decide to recognize and enforce the arbitral award in Ukraine or to refuse to recognize and implement the said arbitral award in Ukraine. Such a decision is made in the form of a ruling. It may be appealed to the Supreme Court of Ukraine. The appeal is considered by a panel of 3 judges in an open meeting with the participation of representatives of the parties and according to the procedure provided by the Civil Procedure Code of Ukraine. Based on the results of the proceedings, the Supreme Court makes a decision that is final.
Obtaining a writ of execution and support of enforcement proceedings
After the court ruling on the recognition and enforcement of a foreign arbitral award takes effect, the court of the first instance issues a writ of execution.
In this procedure, Jurvneshservice lawyers:
- File a petition for the writ of execution to the court;
- Receive the writ of execution, prepare a package of documents to initiate enforcement proceedings;
- Select the candidacy of the executor (public or private) and coordinate it with the creditor.
Throughout the entire period of execution of the foreign arbitral award, Jurvneshservice lawyers closely cooperate with the executor, prepare the necessary procedural documents, including a settlement agreement, which the parties may conclude as part of the enforcement proceedings, and, if necessary, appeal the actions of the executor in Ukrainian courts.
Enforcement of arbitral awards rendered by the ICAC and the IAC at the Chamber of Commerce and Industry of Ukraine, other arbitration courts and ad hoc arbitrations in Ukraine
This judicial procedure as to recognition and enforcement of so-called Ukrainian arbitral awards has much in common with the recognition and enforcement of foreign arbitral awards.
The purpose of this procedure is to obtain permission to enforce in Ukraine the awards of international commercial arbitration courts adopted in Ukraine. The process applies, first of all, to the awards of the ICAC and the IAC at the Chamber of Commerce and Industry of Ukraine against the companies-resident of Ukraine or their properties or the property of a foreign debtor located in Ukraine. To be enforced, these awards are to go through the Ukraine courts to obtain permission to be executed.
This procedure’s peculiarity is the non-application of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. It is regulated by the provisions of Article 35-36 of the Law of Ukraine “On International Commercial Arbitration” and the Civil Procedure Code of Ukraine, with the features provided for by Art. 482.
Jurvneshservice lawyers provide the same services related to representing the creditor in the Ukraine courts as in the enforcement of the foreign arbitral awards
Enforcement of arbitral awards rendered by the ICAC and the IAC at the Chamber of Commerce and Industry of Ukraine, other arbitration courts and ad hoc arbitrations in foreign states
These procedures are used by Jurvneshservice lawyers in cases where the arbitration awards of the ICAC and the IAC at the CCIU, other arbitration courts, and ad hoc arbitrations located in Ukraine are made in favor of Ukrainian companies and to be executed in other states against foreign companies or their properties.
Due to Jurvneshservice specialization and membership in international professional organizations, Jurvneshservice has the necessary contacts with relevant specialists in all European countries and the USA. Jurvneshservice lawyers will select foreign lawyers, conclude an agreement with them on the provision of services in the enforcement procedure, agree on the work procedure, the fee, and its payment.
Foreign lawyers carry out the function of representing the interests of the Ukrainian creditor, and Jurvneshservice lawyers provide them with all the necessary materials, evidence, explanations, and advice on Ukrainian law, as well as communicate with the Ukrainian creditor.
If necessary, Jurvneshservice lawyers issue a legal opinion on Ukrainian law that may be present at the hearing and explain various issues.
Voluntary execution in Ukraine of arbitral awards (foreign and domestic) on the recovery of funds
If the debtor wants to voluntarily execute the arbitration award, regardless of its place of issuance, he cannot do this without going through the recognition procedure and obtaining permission for such voluntary execution in Ukraine’s courts.
In compulsory recognition and obtaining permission to execute an arbitral award, the creditor is the initiating party. The debtor acts as an initiating party in the voluntary execution procedure. He submits appropriate documents (petition, arbitral award, and arbitration agreement) necessary to initiate proceedings to the court. The debtor acts in a decisive role; he does not object to the execution but contributes to it. The court considers the case in the shortened time frame (10 days) and without notifying other participants.
The “obstacle” to the voluntary execution of an arbitral award can only be the court itself. It can refuse to execute the award if it determines that the arbitral award is made in a non-arbitrable dispute, or its execution is contrary to the public order of Ukraine.
Jurvneshservice lawyers accompany such procedures to speed voluntary execution of the arbitral awards.
Gennady Tsirat – Doctor of Law, specializes in the enforcement of arbitral awards in Ukraine. He represented the interests of many foreign companies in the recognition and enforcement of foreign arbitral awards in Ukraine. One of his recent cases is the case and the recognition and enforcement of the arbitration award of the International Arbitration Center at the Austrian Federal Chamber of Economics dated June 6, 2012, in case No. SCN-5039 in the lawsuit of Norbert Schaller Gesellschaft M.H.” (Austria) to the Public Joint-Stock Company First Investment Bank (Ukraine).
Gennady Tsirat also represented the interests of Ukrainian companies in the recognition and enforcement of the ICAC awards in Serbia, Belgium, Russia, Cyprus.