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Arbitration
Ukraine
It is standard practice for parties to international contracts to agree on the particular law that will apply to the contract. However, as two recent arbitrations show, parties occasionally make a mistake in properly naming the applicable law or include too many conflicting clauses in their contract, which may stymie an arbitral tribunal in deciding which substantive law should be applied.
The New York Convention provides that recognition and enforcement of a foreign arbitral award may be refused at the request of the party against which it is invoked only if that party furnishes proof that it was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings. However simple at first glance, the question of what constitutes 'proper notice' turns out to be less than clear in practice.
Creditors seeking enforcement of arbitral awards for claims against Ukrainian bankrupt companies face difficulties if the award has not been recognised by the courts of general jurisdiction. Such an award is not enforceable in Ukraine and the claim may be denied in bankruptcy proceedings. The courts have suggested their own solution to this problem – unfortunately, not a pro-arbitration one.
Article 52 of the Rules of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry governs the procedure for forwarding an arbitral award to the parties to arbitration proceedings. Recent changes have allowed arbitrators extra time to forward awards to parties; however, there are concerns that extension of the time limits might result in unreasonable delays in the rendering of awards.
The mitigation of damages is a well-known principle in international legal practice. Ukrainian case law and arbitration practice may lack a generally applied approach on the issue, but previous decisions of the International Commercial Arbitration Court at the Chamber of Commerce and Industry provide an indication of how the mitigation rules have been applied.
President Yanukovych has signed state budget legislation which provides for significant compensation payments to foreign investors in relation to arbitral awards rendered under the auspices of the International Centre for Settlement of Investment Disputes (ICSID). The move confirms Ukraine's willingness to honour its commitments under the ICSID Convention.
Competition
Ukraine
Overview
Including: Regulatory Framework; Concentrations; Abuse of a Dominant Position; Concerted Practices; Discrimination by State and Local Government Authorities; Remedies; Unfair Competition
A proposal has been submitted to Parliament that would significantly amend the Law on Protection of Economic Competition. Among other things, it would simplify the criteria for a presumption of dominant position, redefine the threshold for concentrations and raise the thresholds for merger clearance.
The Anti-monopoly Committee has strengthened its cooperation with the Ministry of Internal Affairs in anti-cartel operations. A new agreement will enhance ongoing consultations and exchange of information during investigations. However, a better option would be to entrust the committee with greater powers, such as those exercised by the US Antitrust Commission in the Department of Justice.
Parliament has approved two draft laws on first reading. The first includes provisions to increase minimum penalties for anti-monopoly infringements. The second addresses jurisdictional issues between the administrative and commercial courts in cases involving the Anti-monopoly Committee; it may help entities that compete fairly to obtain immediate enforcement of commercial court decisions.
In recent months the Anti-monopoly Committee has kept an increasingly close watch on competition-related information from Ukrainian and foreign news sources and other antitrust regulators. The approach is in line with a new draft law, which also sets out the committee's right to request information - including data covered by bank secrecy - from legal entities or private individuals.
The Law on Public Procurement has come into force, introducing new rules to make public procurement procedures non-discriminatory and more transparent. It sets out new duties for the Anti-monopoly Committee, which is vested with the authority to review disputes arising out of public procurement procedures.
The plans of Telenor ASA and Altimo Holdings & Investments Ltd to merge the mobile phone operations of their assets Kievstar and Russian company Vimpelcom have been frustrated by the new approach taken by the Anti-monopoly Committee. The committee recently stayed its decision to approve the concentration of Telenor and Altimo's assets, and began proceedings to reconsider that decision.
