Although Ukrainian law now allows for the recognition and enforcement of arbitral awards which grant interest of an undetermined amount with no fixed maturity date or clear method of calculation, in practice, challenges may still arise during execution proceedings. A good example of this is the high-profile case Nibulon v Rise, which proves that obtaining enforcement of an arbitral award in Ukraine is only part of the battle.
Although the Ukrainian courts have released little jurisprudence with respect to the application of sanctions, this practice is gaining traction in response to Russian aggression in Crimea and the Donbas region. In a recent case, a sanctioned Russian entity sought recognition and enforcement of an arbitral award against a Ukrainian company, which the latter argued would contravene Ukrainian public policy.
Following a recent Supreme Court decision, the outlook for recovery following the enforcement of the Everest Estate arbitral award against Russian assets in Ukraine does not look particularly optimistic. However, the chances of recovery may increase if the Ukraine Cabinet of Ministers exercises its powers under the International Private Law to allow enforcement against assets indirectly owned or controlled by Russia – and the grounds for exercising such power continue to mount.
Post-award interest usually accrues between the date on which an arbitral award is issued and the date on which payment of the awarded amount is made. Ukrainian legislation does not address the concept of post-award or post-judgment interest and difficulties can thus arise. While Ukrainian case law regarding the recovery of post-award interest is controversial, there are options that make the recovery of such interest possible.
In early 2016 the High Specialised Court for Civil and Criminal Cases published an extensive overview of Ukrainian case law relating to the recognition, enforcement and challenge of international arbitration awards. This update discusses the jurisdiction of Ukrainian courts to consider applications for the setting aside of arbitral awards delivered by the International Commercial Arbitration Court and the Maritime Arbitration Commission.
In early 2016 the High Specialised Court for Civil and Criminal Cases published an extensive overview of Ukrainian case law relating to the recognition, enforcement and challenge of international arbitration awards. The overview has been welcomed by lawyers, although certain interpretations and conclusions made by the court are far from radical.
In most circumstances, property acquired in the course of a marriage is jointly owned by both spouses. Joint spousal ownership of property has traditionally been automatically presumed by law in the absence of specific evidence to the contrary. However, recent Supreme Court rulings have abrogated this presumption, establishing certain criteria which must be met in order for joint spousal property rights to apply.
The High Specialised Court for Civil and Criminal Matters has issued a decision which confirms that an application for recognition and enforcement of an arbitral award can be served only by the original claimant that took part in the arbitration proceedings. This was the first case brought before the court regarding the specific right of an assignee to seek recognition and enforcement of an award in Ukraine.
The Anti-monopoly Committee of Ukraine (AMC) recently approved regulations providing for a merger control amnesty in Ukraine. This means that if an undertaking has previously failed to obtain merger control approval for a transaction – whether domestic or foreign – then for a one-year period, starting from September 15 2015, the undertaking may apply to the AMC to obtain approval and face a minimal fine.
In a recent case the Supreme Court found that a private entrepreneur's property jointly belonged to his spouse and could become subject to division if the couple were to divorce. However, there is no consistency in the courts on this matter, which creates a serious risk of challenges to contracts that are concluded by entrepreneurs or private enterprise owners without spousal consent.
The involvement of state bodies in international commercial arbitration remains a pressing issue worldwide. A recent case in which the state prosecutor's office attempted to bypass an arbitration agreement and challenge before the courts a commercial contract signed by a state-owned company provides guidance on preventing unreasonable attempts of the state to interfere with ordinary business activities.
The removal of obstacles to parallel imports has traditionally been the primary enforcement activity conducted by the EU authorities in the pharmaceutical sector. In light of the Ukrainian Anti-monopoly Committee's recent investigation of the pharmaceutical market, it is worth considering whether the same approach should be taken in Ukraine.
Ukraine has historically adhered to the classical absolute jurisdictional immunity doctrine. Thus, all foreign states are immune from the jurisdiction of Ukrainian courts, unless such states provide express consent to Ukrainian jurisdiction. However, a new legislative initiative – if passed – will shift the Ukrainian approach to jurisdictional immunity from absolute to restrictive.
The Kiev Commercial Court has held that use of the domain names 'vilpe.com.ua' and 'vilpe.net.ua' and the signs VILPE and VILPE INNOVATIVE AND EASY on the corresponding websites infringed the trademark rights of SK Tuote OY. The court ordered the local domain name registrar – a co-defendant in the matter – to reassign the domain names to the trademark owner, despite no explicit provision for this under Ukrainian law.
Despite the difficult economic situation in Ukraine, competition law enforcement has developed significantly over the past few years, with more cartel investigations, greater control over dominant undertakings and a significant increase in monetary penalties. However, certain further steps still need to be taken.
Since access to justice is a paramount right of individuals and entities, and should be ensured even within the Anti-terrorist Operation (ATO) Zone of eastern Ukraine, the government has issued legislative amendments in an attempt to secure the administration of justice by those courts within the ATO Zone which are physically precluded from operation.
Legal entities and individuals in Ukraine are legally protected from the jurisdiction of Russian-Crimean courts. However, defendants in Russian-Crimean court proceedings should consider the practical implications, especially if they own property in Crimea or Russia. This update considers the risks of ignorance of Russian-Crimean court proceedings and the legal status of Ukrainian court decisions in Russian Crimea.
Parliament recently introduced legislative amendments which establish a new procedure and grounds for inspections of business entities by regulatory authorities. The new procedure will undoubtedly reduce the number of illegal and groundless inspections of businesses and thus help to curb corruption among government authorities. However, the changes will bring few improvements to the country's economic climate.
A specific feature of Ukrainian agribusiness is the formation of major agricultural holdings comprising a significant amount of smaller companies incorporated both in Ukraine and abroad. These smaller companies are often the main holders of the business's assets. Before concluding an M&A contract, parties must be well informed as to the kind of assets with which they are entering into the deal.
In light of the ongoing Crimean conflict, the National Bank of Ukraine has issued a regulation which terminates relations between mainland Ukrainian banks and Ukrainian and foreign banks located in Crimea. Parliament has also passed a law establishing the Crimea Free Economic Zone, which imposes a number of conditions and restrictions on banking operations in Crimea.