Jump to Content Jump to Main Navigation
Max Planck Encyclopedia of International Procedural Law [MPEiPro]

International Commercial Arbitration Court: Ukrainian Chamber of Commerce and Industry

Yuliya Chernykh

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 31 January 2023

Subject(s):
Applicable law — Arbitral tribunals — Appointment of arbitrator — Awards — Consolidation of claims — Joinder of cases and proceedings — Confidentiality — Due process — Interim and provisional measures

Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.

A.  Disclaimer

1  The author previously served as Vice President and as a member of the Board of the International Commercial Arbitration Court of the Ukrainian Chamber of Commerce and Industry. At the time of writing, the author does not hold any position with the institution.

B.  Introduction

2  The International Commercial Arbitration Court (‘ICAC’) at the Ukrainian Chamber of Commerce and Industry (‘UCCI’) is the leading international arbitral institution in Ukraine. Between its creation in 1992 and the end of 2020, it administered more than 11,000 international disputes (ICAC website, 2022).

3  Like many other international arbitration institutions worldwide, the ICAC was created at the local chamber of commerce—the UCCI (Non-Governmental Organizations). The chamber unites 25 regional chambers from various parts of Ukraine and operates on the basis of the Law on Chambers of Commerce and Industry (Ukraine), 2 December 1997. In addition to the ICAC, the UCCI has also created two other arbitral institutions since then: the Maritime Arbitration Commission (‘MAC’) and the Permanent Arbitration Court. While the MAC administers both domestic and international maritime disputes and the Permanent Arbitration Court is responsible for domestic disputes, the ICAC deals only with international disputes.

4  The ICAC administers disputes under the ICAC Arbitration Rules, the latest edition of which took effect on 1 November 2020. The ICAC also provides assistance to ad hoc proceedings under the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, 2010 (Arbitration Rules: United Nations Commission on International Trade Law (UNCITRAL)), for which it has a special set of rules—the Rules of Assistance in Arbitration under the UNCITRAL Arbitration Rules, in force since 2011.

5  Apart from services in dispute resolution, the ICAC plays a significant role in the development of international arbitration in Ukraine. It actively participated in the preparation and adoption in 1994 of the Law on International Commercial Arbitration (Ukraine) (‘ICA Law’) (Commercial Arbitration, International). Largely following the UNCITRAL Model Law on International Commercial Arbitration, 1985, the ICA Law provided a foundation for a legal framework compliant with international standards in Ukraine. Save for some amendments, it continues to govern international arbitration in Ukraine and applies to proceedings conducted under the ICAC Arbitration Rules. The ICAC also regularly organizes arbitration-related events and arranges publication of its own practice and other analytical materials in international arbitration.

C.  Legal Status

6  Rather uniquely for international arbitration, the legal status of the ICAC is stipulated in statutory provisions. The ICA Law approves the ICAC Statute as Annex 1 and also approves the MAC Statute. Both arbitral institutions are effectively the only permanent arbitral institutions in Ukraine whose legal status is governed by law.

7  In its six short provisions, the ICAC Statute lays down the fundamental principles of the ICAC’s operation:

  • •  Article 1 defines the ICAC as an independent permanent arbitral institution operating under the ICA Law. The provision also specifies the assisting role of the UCCI.

  • •  Article 2 determines the types of disputes that can be referred to the ICAC.

  • •  Article 3 envisages the possibility for the ICAC to arbitrate disputes pursuant to international agreements.

  • •  Article 4 determines the binding force of arbitral awards.

  • •  Article 5 defines a possibility for the President of the ICAC to determine the amount and form of security for the claim.

  • •  Article 6 describes the seal which the ICAC uses.

8  Alongside the statutory approval of the ICAC foundational document, the somewhat privileged status of the ICAC is further secured by other provisions of the ICA Law. In particular, Article 6 (1) ICA Law expressly entrusts the functions of assistance to arbitration in the appointment, challenge, or termination of the arbitrator’s mandate to the President of the UCCI. The President appoints arbitrators if parties disagree on the candidacy of a sole arbitrator, fail to appoint an arbitrator to a three-member tribunal, or if the two arbitrators cannot agree on the appointment of a presiding arbitrator (Art 11 ICA Law). The President of the UCCI also decides on challenge if an application on the challenge is not granted (Art 13 ICA Law), and termination of the arbitrator’s mandate in case of disagreement between the parties as to the grounds for termination (Art 14 ICA Law).

9  The role played by the President of the UCCI is not entirely unknown in the arbitration world. Its origin can be traced back to the European Convention on International Commercial Arbitration (1961). Article IV European Convention on International Commercial Arbitration determined the presidents of the respective chambers of commerce as being competent for a broad range of default appointments and determinations. The European Convention on International Commercial Arbitration became binding for Ukraine in 1964. On 4 January 1994 Ukraine declared that because of the dissolution of the All-Union Soviet Chamber of Commerce, the UCCI would perform the functions identified in Article IV European Convention on International Commercial Arbitration. Recent attempts to amend the ICA Law and enable the state courts to exercise functions of support to arbitration similar to those of the President of the UCCI have provoked serious criticism within the arbitration community.

10  The UCCI plays an important role in enabling the ICAC’s operation well beyond the above-mentioned responsibilities of its President in relation to appointment, challenge, and termination of an arbitrator’s mandate (Art 6 (1) ICA Law). The Presidium of the UCCI approves the ICAC Arbitration Rules and amendments to them (Art 1 ICAC Statute; Art 2 (1) ICAC Arbitration Rules), the schedule of arbitration costs and arbitrator’s fees (Art 1 ICAC Statute), as well as the recommended list of arbitrators (Art 6 (2) ICAC Arbitration Rules). The Presidium of the UCCI also appoints the ICAC President and Vice Presidents (Art 7 (1) ICAC Arbitration Rules). It also makes the respective approvals and appointments upon suggestion/nomination by the ICAC Presidium and, where relevant, the ICAC President.

11  Although this role of the UCCI is rather significant, it does not impede the ICAC from remaining procedurally independent. The administrative bodies of the UCCI cannot intervene in the actual administration of cases by the Secretariat or their resolution by the arbitrators.

D.  Competence

12  The ICAC administers only international disputes on the basis of arbitration agreements concluded between the parties in dispute. This distinguishes it from other arbitral institutions that administer both international and domestic cases, such as the Arbitration Institute of the Stockholm Chamber of Commerce.

13  The categories of disputes which can be submitted to ICAC are defined by Article 2 ICAC Statute (Dispute). These include (1) traditional disputes arising out of contractual or other civil law relationships connected with international trade and other kinds of international business where the place of business of at least one of the parties is located abroad; and (2) disputes between enterprises with foreign investment, international associations and organizations established in the territory of Ukraine or between members thereof, or disputes between them and other subjects of the law of Ukraine. The ICAC Statute also covers other disputes that fall within its competence as those arising out of civil law relationships concerning purchase and sale (delivery) of goods, labour and other services, exchange of goods and/or services, carriage of goods and passengers, commercial representation and agency, leasing, scientific and technological exchange, exchange of other intellectual products, construction of industrial and other objects, licensing operations, investment, crediting and settlement operations, insurance, joint ventures, and other forms of industrial and business cooperation.

14  Since 2020, the ICAC has introduced a presumption in favour of arbitration agreements. According to Article 4 (1) ICAC Arbitration Rules, any inaccuracies in the text of an arbitration agreement and/or doubts as to its validity, effect, and operability shall be interpreted in favour of its validity, effect, and operability. The presumption mirrors statutory regulation in Article 22 (3) Commercial Procedure Code (Ukraine) introduced in 2017.

15  In addition to the traditional trigger of the ICAC jurisdiction being arbitration agreements, the ICAC may also have jurisdiction over disputes subjected to its jurisdiction by virtue of international treaties (Art 3 ICAC Statute). The jurisdiction on the basis of a treaty might take place, for example, if a future international investment agreement defined the ICAC as a competent body for administering resolution of investor-State disputes. As of June 2021, no treaty specifically addresses the ICAC’s jurisdiction in investor-State or other types of disputes.

E.  Organizational Structure

16  While the ICAC Statute outlines the organizational structure, the detailed regulations are contained in the ICAC Arbitration Rules. This organizational structure has remained relatively stable throughout all the editions of the ICAC Arbitration Rules of 1994, 2001, 2007, 2018, and 2020. The occasional changes in the arbitration rules indicate some adjustments to the formation and composition of the ICAC constituting bodies but change neither the overall organization of the arbitral institution nor the distribution of the functions between its structural parts. For clarity, the description of the organizational structure below is based on the ICAC Arbitration Rules, 2020.

17  The ICAC consists of the ICAC President, Vice Presidents, the ICAC Presidium, and the Secretariat (Section II ICAC Arbitration Rules).

18  The ICAC President organizes the activities of the ICAC, acts on its behalf, and represents it in Ukraine and abroad (Art 8 ICAC Arbitration Rules). The President also exercises some specific procedural functions in the proceedings administered under the ICAC Arbitration Rules. Some of these may only be exercised prior to the formation of an arbitral tribunal whereas others may be performed only after an arbitral tribunal has been duly formed.

19  Among the functions that can be exercised only prior to the formation of an arbitral tribunal are:

  • •  Initiation of the proceedings by an order of the ICAC President (Art 18 (1) ICAC Arbitration Rules).

  • •  Determination that a dispute is to be resolved by a sole arbitrator in the absence of the parties’ agreement and as an exception to the default rule of three arbitrators (Art 31 (1) ICAC Arbitration Rules).

  • •  Determination that no expedited proceedings will take place provided that there are overriding circumstances that impede resolution of the dispute through such expedited proceedings (Art 45 (8) ICAC Arbitration Rules).

  • •  Decision-making on interim measures (Section 5 ICAC Arbitration Rules) similar to the comparable function of emergency arbitrators under the arbitration rules of the Arbitration Institute of the Stockholm Chamber of Commerce, the International Court of Arbitration of the International Chamber of Commerce, and the London Court of International Arbitration (LCIA).

  • •  Prior termination of the proceedings if: (1) the claimant withdraws their claim; (2) the parties agree on the termination of the arbitral proceedings; (3) the claimant violates the procedure and terms of payment of the arbitration fee; (4) the claimant fails to rectify the defects of the statement of claim within a set period of time; (5) the claimant fails to submit to ICAC the information or documents which are necessary for continuation of the proceedings; and (6) continuation of the arbitral proceedings has for any other reason become unnecessary or impossible (Art 67 ICAC Arbitration Rules).

  • •  Decision-making on procedural legal succession (Art 23 ICAC Arbitration Rules).

20  Among the functions that the ICAC President may carry out after the formation of an arbitral tribunal are:

  • •  Appointment of reporters upon application by the presiding arbitrator or a sole arbitrator (Art 10 ICAC Arbitration Rules).

  • •  Granting of extensions to an arbitral tribunal for rendering an award beyond the 30-day rule after the oral hearing in the case is completed (Art 60 (3) ICAC Arbitration Rules).

21  In the absence of the ICAC President, his duties are to be performed by one of the Vice Presidents as specified by the ICAC President (Art 8 (3) ICAC Arbitration Rules).

22  The ICAC Presidium is a collective body which comprises the ICAC President together with Vice Presidents ex officio as well as seven other members (Art 7 ICAC Arbitration Rules). The ICAC Presidium may delegate some of its duties directly to the ICAC President, who chairs the ICAC Presidium (Art 7 (2) ICAC Arbitration Rules).

23  The ICAC Presidium studies the arbitration practices, including the application of the ICAC arbitration rules, and is empowered to submit a proposal on their approval or amendments to the Presidium of the UCCI. The ICAC Presidium is also empowered to propose approvals or amendments to the Recommendatory List of Arbitrators to the Presidium of the UCCI. Furthermore, the ICAC Presidium also performs some other functions related to the development of ICAC as an arbitral institute.

24  In terms of concrete procedural functions, the ICAC Presidium decides questions when arbitrators are challenged if the challenged arbitrator does not withdraw voluntarily, or the other party does not agree the challenge (Art 33 (3) ICAC Arbitration Rules). The decision of the ICAC Presidium is not final and the ultimate decision in regard to challenges may be made by the President of the UCCI upon application of one of the parties.

25  The daily administration of cases is run by the ICAC Secretariat (Art 9 ICAC Arbitration Rules). The ICAC Secretariat consists of the Secretary General, two deputies, and other employees of the Secretariat. The Secretary General reports directly to the ICAC President.

26  The ICAC Secretariat arranges the flow of documents between the parties and arbitral tribunal and ensures that notification on the date, time, and place of a hearing, as well as the composition of an arbitral tribunal is received no less than 15 days prior to the day of such hearing. The ICAC Secretariat plays an active role within the arbitral proceedings. In particular, the Secretariat may extend time periods specified by the ICAC Arbitration Rules (Art 12 (4) ICAC Arbitration Rules); suggest that a claimant rectify certain omissions in the submitted claim or documents (Art 17 (1) ICAC Arbitration Rules); propose that a claimant separate or divide requests arising from separate contracts if they can be separated (Art 17 (2) ICAC Arbitration Rules); return the submitted documents if it is evident that the claim falls outside the ICAC’s competence (Art 18 (4) ICAC Arbitration Rules); request some additional information and documents from the parties (Art 24 ICAC Arbitration Rules); order that any statements and documentary evidence shall be accompanied with a translation into the language or languages agreed upon by the parties or determined according to the ICAC arbitration rules (Art 40 (3) ICAC Arbitration Rules).

F.  History

27  The ICAC was created in the aftermath of the dissolution of the Soviet Union, which was followed by a break of commercial ties and an increased need for new institutions competent to resolve emerging cross-border disputes (Selivon, 2017).

28  On 16 April 1991, the Parliament of the Ukrainian Soviet Socialist Republic recommended the creation of an international arbitration court (Resolution on Implementation of the Law of the Ukrainian Soviet Socialist Republic on Foreign Economic Activity (Ukraine), 1991, para 7) to the Chamber of Commerce and Industry of the Ukrainian Soviet Socialist Republic. This was an important decision which removed obstacles to the creation of international arbitration institutions in Ukraine. Obstacles had existed because of the monopoly on foreign trade and existence of international arbitration institutes at an all-union level only.

29  On 24 August 1991, the Parliament declared Ukraine an independent State separate from the Soviet Union (Declaration of Independence of Ukraine, 1991).

30  On 10 June 1992, the UCCI successor to the Chamber of Commerce of the Ukrainian Soviet Socialist Republic created the ICAC (Selivon, 2017).

31  On 11 August 1992, the UCCI appointed Ihor Havrylovych Pobirchenko (1924–2012) as the first ICAC President. This date is frequently referred to as the date of creation of the ICAC. Professor Pobirchenko remained the ICAC President for 18 years and played a significant role in its development and growth. Prior to becoming the ICAC President, Ihor Havrylovych Pobirchenko worked as a professor in law at the Kyiv National University named after Taras Shevchenko. His scholarship revolved around commercial law and international arbitration (Scherbyna, 2014, 18).

32  Professor Mykola Fedosovych Selivon (1946–) succeeded Professor Pobirchenko as the ICAC President in 2010 and continues to lead the arbitral institution in 2022. Prior to joining the ICAC, Professor Selivon was the Ukrainian Ambassador to Kazakhstan, a judge, and later the Head of the Constitutional Court of Ukraine.

33  The very first claim was submitted to the ICAC on 23 October 1992. The caseload grew rapidly. In 1992 the ICAC registered five cases, with 56 cases in 1993, 64 cases in 1994, 140 cases in 1995, and 252 cases in 1996. In the subsequent years, the caseload was not less than 243 cases (2019) and occasionally reaching peaks of 922 cases (2015). The growth of the caseload and the geography of the parties has required increases in the number of arbitrators on the recommended list. It was extended from 14 arbitrators in 1992 to 60 in 2006 and 122 in 2020 (Selivon, 2017).

34  Since its inception, the ICAC has actively engaged in building international connections. On 9 December 1992, it entered into a cooperation agreement with the Swiss Arbitration Association (Swiss Arbitration Centre). Subsequently, similar agreements were concluded with national arbitration associations and arbitral institutions in South Korea (1997), Bulgaria (1998 and 2017), North Macedonia (1998), Slovenia (1999), the Russian Federation (Russia) (1999), Slovakia (2000), Mongolia, Czech Republic (2001), Poland (2007), Romania (2003), Latvia (2006), Azerbaijan (2008), Hungary (2011), Belgium (2012), Austria (2015), China (2017), and Kyrgyzstan (2017). The ICAC has also actively cooperated with the Arbitration Institute at the Stockholm Chamber of Commerce and organized joint events involving arbitration practitioners and judges from the courts of both countries. In 1994, the ICAC became a member of the Central and Eastern European Arbitration Group (‘CEEAG’) of the International Chamber of Commerce (ICC). In 1999, it became a member of the International Federation of Commercial Arbitration Institutions (IFCAI). In 2015, ICAC received the status of an observer at the UNCITRAL Working Group II (‘About the ICAC’, News and Publications section, 2022).

G.  Procedure

1.  General Overview

35  The ICAC Arbitration Rules set out general principles for the conduct of arbitral proceedings. The proceedings shall be conducted on an adversarial basis. Parties shall be treated equally, and each party shall be provided full opportunity to present its case. The parties and their representatives shall refrain from misusing/abusing their procedural rights. A party shall object to any violations of arbitral rules, arbitration agreement, or applicable regulation in the proceedings or otherwise will be deemed to have waived its right to object (Arts 36 and 44 ICAC Arbitration Rules).

36  The overall scheme of the procedure under the ICAC arbitration rules is relatively straightforward.

37  The proceedings are triggered by a claimant who submits a statement of claim. While there is some room for subsequent amendment, as a general rule a statement of claim is supposed to be a complete one (Art 13 ICAC Arbitration Rules). This means that a claimant submits a full-scale claim, and it is not sufficient to submit merely a notice or a request for arbitration as it might be possible to do so in some other arbitration institutes such as the International Court of Arbitration of the ICC, the LCIA, or the Arbitration Institute of the Stockholm Chamber of Commerce. Submission of a statement of claim shall be accompanied with payment of the registration fee. Within 30 days of the order of the ICAC President to initiate the proceedings, the claimant shall also pay an arbitration fee, which is calculated based on the amount in dispute (Art 16 ICAC Arbitration Rules).

38  The ICAC does not divide the burden to pay the arbitration fee between the parties and follows a model which is largely practised in state courts. The claimant is bound to cover all arbitration fees in respect to its statement of claim and a respondent is accordingly expected to cover arbitration fees only in the case of submission of a counterclaim or claim on set-off (Counterclaim: Investment Arbitration). In other words, each party bears responsibility for payment of the arbitration fees relating to its own claims at the outset. If a claimant fails to pay the arbitration fees, the proceedings in relation to their claim shall be terminated. Accordingly, if a respondent fails to pay its arbitration fees in relation to a counterclaim or set-off, the proceedings in relation to such claims will be terminated (Art 16 (4) ICAC Arbitration Rules).

39  The arbitration fees are determined on the basis of the amount in dispute, similar to the approach exercised by some other arbitral institutions such as the International Court of Arbitration of the ICC, the German Arbitration Institute (DIS), or the China International Economic and Trade Arbitration Commission (‘CIETAC’). This approach contrasts the ICAC from those arbitral institutions such as the LCIA where fees depend on hourly rates.

40  Following full payment, the Secretariat sends the statement of claim to the respondent, who has 30 days to provide a statement of defence including a counterclaim or a set-off. This period may be extended (Arts 19–21 ICAC Arbitration Rules).

41  The arbitral tribunal verifies the readiness of the case for consideration and may request production of additional documents, clarification, or information. It may also conduct organizational meetings (Art 37 ICAC Arbitration Rules).

42  If the parties have chosen applicable law, the arbitral tribunal has to apply it. In the absence of the parties’ choice, the arbitral tribunal determines the conflict of laws rules to be relied upon for determination of the applicable law (Art 41 (1) and (2) ICAC Arbitration Rules). The arbitral tribunal may decide on ex aequo et bono only if both parties authorize it (Art 41 (3) ICAC Arbitration Rules).

43  As a matter of practice, hearings are normally conducted in the proceedings under the ICAC arbitration rules. Both parties may, however, agree not to hold a hearing. In this case the proceedings will be conducted on the basis of documents only. Proceedings on the basis of documents may also take place in the absence of the parties’ agreement if a tribunal decides so in the absence of a request from either of the parties to hold an oral hearing. Regarding the format of the oral hearing, the 2020 edition of the ICAC Arbitration Rules expressly bestows power on an arbitral tribunal to determine whether the hearing is offline, online, or a hybrid of the two (Art 43 ICAC Arbitration Rules).

44  In general, the period of consideration of a case shall not exceed six months after the formation of the arbitral tribunal but the ICAC Presidium may extend this period. The ICAC Arbitration Rules expressly stipulate criteria for the postponement and suspension of arbitral proceedings (Art 38 ICAC Arbitration Rules).

45  The arbitral proceedings terminate either by an arbitral award or an order of termination.

2.  Constitution of an Arbitral Tribunal

46  The parties are free to determine the number of arbitrators—either one or three. If they fail to do so or cannot agree, three arbitrators shall resolve the dispute. This is similar to the default rule at the German Arbitration Institute or the CIETAC. By contrast, Arbitration Rules of the International Court of Arbitration of the ICC, the LCIA, or the Singapore International Arbitration Centre (SIAC) foresee a sole arbitrator as the default.

47  Importantly, the presumption in favour of three arbitrators under the ICAC Arbitration Rules is rebuttable. Depending on the complexity of the case, the price of the claim, and other relevant considerations, the ICAC President may decide that a sole arbitrator shall resolve a dispute (Art 31 ICAC Arbitration Rules).

48  Only those arbitrators listed in the Recommended List of Arbitrators may be appointed.

49  Inclusion in the list requires that an arbitrator possess the specialized knowledge in the fields of dispute settlement within the jurisdiction of ICAC and meet high moral and ethical requirements. There are no limitations in terms of the nationality of the potential arbitrators: nationals of Ukraine, nationals of other states, or persons of no nationality all may be listed. As of March 2022, the list includes 116 arbitrators from 33 countries.

50  The parties are free to agree on the procedure for the appointment of arbitrators subject to compliance with mandatory provisions of the ICAC Arbitration Rules. In the absence of an agreement, for tribunals comprising three arbitrators, each party shall appoint an arbitrator and both appointed arbitrators shall agree on the presiding arbitrator. If either party fails to appoint an arbitrator or the appointed arbitrators fail to determine the presiding arbitrator, the President of the UCCI shall appoint one. Similarly, for a tribunal with a sole arbitrator, if the parties fail to agree on the candidate, the President of the UCCI shall appoint one.

51  For cases where there are several claimants or respondents, each party shall appoint an arbitrator. If they fail to agree between themselves on the candidates for appointment on behalf of the claimant or the respondent, the President of the UCCI shall appoint them.

52  The ICAC Arbitration Rules expressly regulate situations when appointed arbitrators do not respond within 10 days after receiving their notice of appointment (Art 31 (4) ICAC Arbitration Rules). The party who has appointed this arbitrator is granted an opportunity to appoint a substitute within five days. If the party fails to do so or the newly appointed arbitrator fails to accept their appointment within the established time limit, appointment of a substitute shall be made by the President of the UCCI.

53  Members of an arbitral tribunal shall be impartial and independent (Art 32 ICAC Arbitration Rules). They are under a continuous duty to inform the institution of any circumstances that may undermine their independence or impartiality.

3.  Joinder of a Third-party

54  A provision on joinder does not grant any additional powers to the institution or tribunal. It merely confirms consent as the primary and sole basis for the jurisdiction of the arbitral tribunals under the ICAC Arbitration Rules. A third party may join arbitration proceedings under the ICAC Arbitration Rules only in two alternative circumstances (Art 22 ICAC Arbitration Rules):

  • •  When all parties and a third party are bound by the arbitration agreement.

  • •  When all parties and a third party have agreed to conduct the arbitral proceedings with the participation of such third party within the established procedure.

55  As a general rule, a joinder may be requested no later than the statement of defence. At a later stage, a request on joinder of a third party may also be granted provided that the Secretary General or an arbitral tribunal extends the time limit.

4.  Consolidation

56  The ICAC Arbitration Rules do not contain express rules on the merger of two or more arbitration proceedings. Other than stating that in case of consolidation arbitration, fees in each proceeding shall be summed up (ICAC Schedule of Arbitration Fees, 2020), the ICAC Arbitration Rules do not provide any further express details on consolidation.

57  The ICAC Arbitration Rules are also silent on ‘deconsolidation’ of the proceedings, though they specify that the Secretary General may propose to the claimant to separate requests in the statement of claim arising out of several contracts (Art 17 ICAC Arbitration Rules). The Secretary General’s proposal may arise if the submitted requests under several contracts are not covered by an arbitration agreement, or the fulfilment of obligations under these contracts can be separated (Art 17 ICAC Arbitration Rules). A claimant’s failure to comply with a proposal to divide requests into separate claims falls under the category of a failure to rectify the imperfections of the statement of claim and may result in termination of the arbitral proceedings by the ICAC President.

5.  Procedural Legal Succession

58  Rather uniquely for arbitration rules, the ICAC Arbitration Rules expressly address procedural legal succession (Art 23 ICAC Arbitration Rules). The decision on succession is made either by the ICAC President or by an arbitral tribunal. The person who makes the decision depends on the stage of the proceedings. Whereas the ICAC President decides prior to the formation of an arbitral tribunal, an arbitral tribunal decides after it has been formed. Procedural legal succession may take place in the case of termination of the activity of a legal entity, change of a creditor or a debtor under a legal obligation, death of an individual, or declaration of a natural person as deceased or missing.

6.  Interim Measures

59  Both the ICAC President and an arbitral tribunal may decide on interim measures (Section V ICAC Arbitration Rules). The ICAC President decides prior to the formation of an arbitral tribunal, whereas an arbitral tribunal decides after it has been formed.

60  A party in whose favour interim measures are issued may be required to provide a cross-undertaking which will serve as the source for compensation in case of damage caused by interim measures.

61  The order on interim measures is binding upon the parties until the issuance of an arbitral award, unless modified or terminated earlier.

62  The ICA Law (Art 17) and the Civil Procedure Code (Ukraine), 2004 (Arts 116–18, 149, 151–59) also provide for an opportunity for the state courts to grant interim measures in support of arbitration. These measures are subject to enforcement by a bailiff.

7.  Expedited Procedure

63  In general, the proceedings conducted under the ICAC Arbitration Rules are rather quick. The ICAC reports that more than 90% of disputes are resolved within six months after formation of an arbitral tribunal (ICAC Statistics and Practice, 2022). Nevertheless, in 2018 the ICAC decided to introduce the expedited procedure to accelerate the management of those disputes which are capable of being resolved in a more expeditious fashion. As a matter of legal technique, the ICAC chooses not to have a separate set of expedited rules but rather to introduce the relevant provisions in the same set of general arbitration rules (Art 45 ICAC Arbitration Rules). In 2020, ICAC reported that two cases were conducted under the expedited procedure (ICAC Report of the Activities, 2020).

64  An expedited procedure can take place if the parties have agreed to it in the arbitration agreement or subsequently in the course of the proceedings, but no later than the filing of the response to the statement of claim.

65  The expedited procedure does not change the rules of procedure apart from streamlining some of them. The modification relates to:

  • •  A shortened timeline for payment of arbitration fees.

  • •  A shortened timeline for the exchanges between the parties.

  • •  Conduct of the proceedings on the basis of the documents only, or in the case of an oral hearing, a shortened timeline for the notification of its date, time, and place.

  • •  Conduct of the proceedings, as a rule, by a sole arbitrator.

  • •  A shortened timeline for rendering an arbitral award.

8.  Reporters

66  The procedure under the ICAC Arbitration Rules provides for the opportunity for the presiding arbitrators or sole arbitrators to apply to the ICAC President for the appointment of case reporters. A reporter is appointed from the List of Reporters which is approved by the ICAC Presidium (Art 10 ICAC Arbitration Rules).

67  The function of the reporter is similar to those of a secretary to an arbitral tribunal. The reporter attends hearings and shall carry out the instructions of a presiding arbitrator or a sole arbitrator. The reporter shall not be involved in the arbitral tribunal decision-making.

9.  Confidentiality

68  Similar to many arbitral institutions, the ICAC expressly provides for the duty of confidentiality in its arbitration rules (Art 68 ICAC Arbitration Rules). Both the parties and the arbitral tribunal are under a duty of confidentiality and shall not disclose any document submitted by a party which is not in the public domain. The rules also expressly provide that the arbitrators, reporters, and experts appointed by the arbitral tribunal, the ICAC and its employees, as well as the UCCI are obliged not to disclose any information that became known to them in the cases considered under the ICAC arbitration rules.

H.  Recognition and Enforcement

69  Awards rendered under the ICAC Arbitration Rules can be enforced on the basis of the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (‘New York Convention’) in force for Ukraine since 1961 (Recognition and Enforcement of Foreign Arbitral Awards). The same regime set by the New York Convention applies to the recognition and enforcement of the awards rendered under the ICAC Arbitration Rules also in the territory of Ukraine. If a recognition and enforcement is to be exercised in a country that has not ratified the New York Convention, recognition and enforcement of the ICAC awards may be exercised on the basis of another treaty or, if applicable, a principle of reciprocity.

I.  Statistics

70  As mentioned above, in the course of its existence the ICAC has administered more than 11,000 disputes. For 2010–2020, the ICAC’s statistical reports are publicly available in their entirety (ICAC Reports of the Activities, 2010–2020). During these last 10 years, the ICAC registered 4,891 cases. The lowest number of 243 cases was registered in 2019 and the highest number of 922 cases in 2015. In 2020, 341 cases were registered. This caseload puts the ICAC among the busiest arbitral institutes in Europe.

71  In regard to geographical coverage, the statistics for 2020 show that parties from 59 countries have chosen the ICAC for resolution of disputes arising out of their contracts. This is comparable to the number of parties before the Arbitration Institute of the Stockholm Chamber of Commerce (SCC Releases Statistics, 2020).

72  While the Russian language continues to be predominantly chosen by the parties in the proceedings under the ICAC Arbitration Rules, the portion of the proceedings in Ukrainian and English is steadily growing. In 2020, 62.4% of proceedings were conducted in Russian, 31.4% in Ukrainian, and 9.2% in English (ICAC Report of the Activities, 2020). In comparison, in 2015, 86% of proceedings were conducted in Russian, 13% in Ukrainian, and 1% in English (ICAC Report of the Activities, 2015).

73  The ICAC statistics also demonstrate impressive results for gender diversity. In 2020, ICAC reported having improved this by 6%, with 42.4% of representation by female arbitrators (ICAC Report of the Activities, 2020).

74  The ICAC also keeps statistics on the setting aside of its awards. The statistics for the last five years show that less than 1% of awards have been set aside (ICAC Report of the Activities, 2015–2020).

J.  Publications

75  The ICAC regularly publishes collections with anonymized arbitral awards accompanied with short annotations (Selivon, 2013). As of June 2021, the published practice covers jurisprudence until 2015. Numerous anonymized arbitral awards are also available on its site.

76  According to the ICAC Arbitration Rules, the ICAC Presidium may make a decision on publication of the anonymized arbitral awards and orders. So far, none of the parties have objected to publication within 30 days of receipt of an arbitral award or order (Art 71 ICAC Arbitration Rules).

K.  Recent Developments

77  As discussed earlier, in 2020 the ICAC amended its arbitration rules to improve the efficiency of the proceedings.

78  Of particular importance is an express recognition of the power of arbitral tribunals to determine the format for arbitral hearings as being virtual, hybrid, or offline. The change was primarily necessitated by the COVID-19 pandemic and limitations on the opportunity to conduct online hearings (Art 43 ICAC Arbitration Rules).

79  Further, the ICAC Arbitration Rules introduced a provision authorizing the Secretary General to check the draft arbitral award and to draw the attention of the arbitral tribunal to any non-compliance of the draft arbitral award with requirements of the ICAC Arbitration Rules, including form, errors, omissions, or typographical errors (Art 60 (7) ICAC Arbitration Rules). While this power is without prejudice to the independence of the arbitral tribunal, the tribunal is bound to consider the recommendations of the Secretary General within 10 days from the date of their receipt. Failure to eliminate inconsistencies triggers a right for the ICAC Secretary General to inform the ICAC Presidium. The ICAC Arbitration Rules specify that a final award cannot be issued until the ICAC Presidium considers the recommendations of the Secretary General.

80  While bearing unique features, the ICAC procedure for scrutiny of arbitral awards can be distantly compared with scrutiny procedures of some other arbitration institutions such as the International Court of Arbitration of the ICC, the SIAC, or the CIETAC.

81  The ICAC has several ongoing working groups on specialized rules and a format for arbitral awards.

82  In 2021 the ICAC was first listed in the whitelist of the Global Arbitration Review’s Guide to Regional Arbitration as an arbitral institution worth having a closer look at. It noted that the ICAC ‘possesses a greater hunger to improve—and be taken seriously on the global stage’ (Global Arbitration Review, 2021).

83  Following the military aggression of the Russian Federation against Ukraine that started on 24 February 2022 and the introduction of martial law in Ukraine, ICAC temporarily suspended its work (ICAC website, 2022). On 18 March 2022, ICAC renewed its activity.

Yuliya Chernykh International Commercial Arbitration Court: Ukrainian Chamber of Commerce and Industry

Cited Bibliography

  • IG Pobirchenko (ed), Practice of International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry: Foreign Economic Disputes (Praksis 2006) [Игорь Гаврилович Побирченко (ред‎.), Практика МКАС при ТПП Украины. Внешнеэкономические споры‎ (Праксіс‎ 2006) 864с‎].

  • MF Selivon (ed), Practice of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry on the Consideration of Foreign Economic Disputes during 2006–2010 (ICAC 2013) [Николай Федосович Селивон‎ (ред‎.) Практика Международного коммерческого арбитражного суда при ТПП Украины по рассмотрению внешнеэкономических споров за 2006–2010 годы‎ (MKAC при ТПП Украины‎ 2013) 535с‎].

  • VS Scherbyna, ‘Academician IG Pobirchenko: Scholar and Pedagogue’ in ICAC at the UCCI, Materials of the First International Arbitration Readings in Memory of Academician Igor Pobirchenko: Collection of Reports (ICAC 2014) 18–20 [Валентин Степанович Щербина, ‘Академик И.Г.Побирченко – ученый и педагог’ в Международный Коммерческий Арбитражный Суд при Торгово-промышленной палате Украины, Материалы первых Международных арбитражных чтений памяти академика Побирченко И.Г. Сборник докладов‎ (МКАС при ТПП Украины‎ 2014) 18–20], <https://icac.org.ua/wp-content/uploads/Materials-of-the-I-International-Arbitration-Readings-in-memory-of-Academician-Igor-Pobirchenko-2013.pdf> (accessed 14 June 2021).

  • MF Selivon, ‘ICAC at the UCCI: 25 Years of Effective Activity in Accordance with International Standards’ in ICAC at the UCCI, International Commercial Arbitration: Challenges of Modern Times: Collection of Articles and Reports (ICAC 2017) 7–23 [Николай Федосович Селивон, ‘МКАС при ТПП Украины: 25 лет эффективной деятельности в соответствии с мировыми стандартами’ в Международный коммерческий арбитраж: вызовы современности. Сборник статей и докладов‎ (МКАС при ТПП Украины‎ 2017) 7–23], <https://icac.org.ua/wp-content/uploads/ICAC-Publications-dedicated-to-25-Anniversary.pdf> (accessed 14 June 2021).

  • Global Arbitration Review, ‘Guide to Regional Arbitration' vol 9 (2021), <https://globalarbitrationreview.com/survey/the-guide-regional-arbitration/2021> (accessed 14 June 2021).

Further Bibliography

  • ICAC at the UCCI, Materials of the II International Arbitration Readings in Memory of Academician Igor Pobirchenko: Collection of Reports (ICAC 2015) [Международный коммерческий арбитражный суд при Торгово-промышленной палате Украины, Материалы ІІ Международных арбитражных чтений памяти академика Побирченко И.Г. Сборник докладов. МКАС при ТПП Украины‎ (МКАС при ТПП Украины‎ 2015)], <https://icac.org.ua/wp-content/uploads/Materials-of-the-II-International-Arbitration-Readings-in-memory-of-Academician-Igor-Pobirchenko-2014.pdf> (accessed 14 June 2021).

  • ICAC at the UCCI, Applicable Law in the International Commercial Arbitration: Practice of Application of the Vienna Convention on Contracts for the International Sale of Goods. Materials of the III International Arbitration Readings in Memory of Academician Igor Pobirchenko: Collection of Reports (ICAC 2016) [Международный коммерческий арбитражный суд при Торгово-промышленной палате Украины, Материалы ІІІ Международных арбитражных чтений памяти академика Побирченко И. Г. «Применимое право в международном коммерческом арбитраже. Практика применения Венской конвенции о договорах международной купли-продажи товаров». Сборник докладов‎ (МКАС и МАК при ТПП Украины‎ 2016)], <https://icac.org.ua/wp-content/uploads/Materials-of-the-III-International-Arbitration-Readings-in-memory-of-Academician-Igor-Pobirchenko-2015.pdf> (accessed 14 June 2021).

  • ICAC at the UCCI, International Commercial Arbitration: The Challenges of Modern Times. Collection of Articles and Reports Dedicated to the 25th Anniversary of the Operation of ICAC at the UCCI and the Development of the International Commercial Arbitration in Ukraine (ICAC 2017) [Международный коммерческий арбитражный суд при Торгово-промышленной палате Украины, Международный коммерческий арбитраж: вызовы современности. Сборник статей и докладов. К 25-летию деятельности МКАС при ТПП Украины и развития международного коммерческого арбитража в Украине‎ (MКАС при ТПП Украины‎ 2017)], <https://icac.org.ua/wp-content/uploads/ICAC-Publications-dedicated-to-25-Anniversary.pdf> (accessed 14 June 2021).

  • ICAC at the UCCI, The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards—60-year Success Story: Collection of Reports and Articles Dedicated to the V International Arbitration Readings in Memory of Academician Igor Pobirchenko (ICAC 2019) [Международный коммерческий арбитражный суд при Торгово-промышленной палате Украины, Нью-Йоркська конвенція про визнання та виконання іноземних арбітражних рішень: 60-річна історія успіху. Збірник доповідей і статей до V Міжнародних арбітражних читань пам’яті академіка І. Г. Побірченка‎ (МКАС при ТПП Украины‎ 2019)], <https://icac.org.ua/wp-content/uploads/V-Mizhnarodni-arbitrazhni-chytannya-pam-yati-akademika-I.-G.-Pobirchenka.-Zbirnyk-dopovidej-i-statej.pdf> (accessed 14 June 2021).

Cited Documents