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Commercial Arbitration

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Ukraine

Dmytro Marchukov , Serhii Uvarov and Iryna Vlasiuk
Avellum Partners (Kiev)

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
  2. Yes, Ukraine is a party to the New York Convention. It made a reciprocity reservation. With regard to awards made in the territory of non-contracting states, Ukraine will apply the Convention only to the extent to which those states grant reciprocal treatment.

    On 20 October 2015, the government of Ukraine made a communication to the depositary of the Convention stating that implementation by Ukraine of the obligations under the Convention, as applied to the occupied and uncontrolled territory of Ukraine (Crimean peninsula and certain districts of Luhansk and Donetsk regions), is limited and is not guaranteed.

  3. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
  4. Ukraine is a party to (i) the ICSID Convention; (ii) the European Convention on International Commercial Arbitration, 1961; (ii) the Moscow Convention on the Settlement by Arbitration of Civil Law Disputes Arising from Relations of Economic, Scientific and Technical Cooperation, 1972; and (iv) a number of bilateral treaties on mutual legal assistance also providing for enforcement of arbitral awards (eg, agreements with China and the Czech Republic).

    In addition, Ukraine is a party to several regional treaties on mutual legal assistance. Though their scope is limited to enforcement of court decisions, Ukrainian courts quite often apply them erroneously to recognition and enforcement of arbitral awards.

  5. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
  6. Ukrainian arbitration legislation is dual: (i) disputes involving a foreign party or Ukrainian entity with foreign investments may be resolved through international commercial arbitration under the Law of Ukraine on International Commercial Arbitration (the ICA Law); (ii) domestic arbitration is governed by the Law of Ukraine on Courts of Arbitration.

    The ICA Law is, basically, a verbatim translation of the UNCITRAL Model Law. It is applicable to all international commercial arbitration proceedings having seat in Ukraine. The Law of Ukraine on Courts of Arbitration is not based on the UNCITRAL Model Law.

  7. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
  8. There are two arbitration institutions in Ukraine: (ii) the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry (the ICAC); and (ii) the Maritime Arbitration Commission at the Ukrainian Chamber of Commerce and Industry (the MAC). Both institutions are permanent and administer arbitral proceedings under their respective rules.

    Under the Rules of Assistance of the ICAC it may act as an appointing authority in accordance with UNCITRAL Arbitration Rules. In addition to ICAC, Ukrainian Arbitration Association may act as an appointing authority for ad hoc arbitral proceedings in accordance with its rules.

  9. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
  10. Yes, Ukrainian legislation does not provide for any limitations in this regard. 

  11. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
  12. In Ukraine, there are neither specialist arbitration courts, nor judges in the general courts assigned to deal specifically with arbitration. Ukrainian judiciary is generally familiar with arbitration legislation, though it is still widely criticised for its formalism. 

    Agreement to arbitrate

  13. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
  14. Under Ukrainian law, an arbitration agreement must be in writing and must refer to specifically defined legal relations. Future disputes may be subject to an arbitration agreement. In case of institutional arbitration, it is important to specify full and correct name of the institution. Even insignificant mistake may lead the court to conclude that arbitration agreement is incapable of being performed and thus unenforceable.

  15. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
  16. The ICA Law does not provide for the list of non-arbitrable matters. The Commercial Procedure Code of Ukraine prohibits reference to arbitration of corporate disputes (apart from disputes on sale/purchase of shares and participatory interest) and disputes arising from contracts on satisfaction of state needs. There is a certain debate among Ukrainian practitioners as to whether this provision applies only to domestic arbitration or to international arbitration as well. The prevailing practice, however, is that this prohibition does extend to international commercial arbitration. It is also generally recognised that bankruptcy-related matters are not arbitrable.

  17. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
  18. Arbitration agreement binds only its parties. Third party may be joined to the arbitration proceedings only subject to express consent of such third party and other parties to arbitration agreement. Under the ICAC Rules, the parties may apply for joinder of a third party no later than the statement of defence is submitted.

  19. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
  20. The law is silent on this question. Consolidation is permissible where the parties so agree (including by incorporating arbitration rules containing respective provisions into their agreement). The ICAC Rules provide that claimant may include claims arising out of different contracts into its statement of claim if there is an arbitration agreement covering all disputes and if performance of obligations under those contracts cannot be separated. The ICAC Rules do not provide for consolidation of the pending proceedings.

  21. 11.

    Groups of companies
    Is the 'group of companies doctrine' (or any other basis for piercing the corporate veil) recognised in your jurisdiction?

  22. No, Ukrainian law does not allow piercing the corporate veil. 

  23. 12.Separability
    Are arbitration clauses considered separable from the main contract?
  24. Yes, the separability doctrine is specifically envisaged in article 16 (1) of the ICA Law.

  25. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
  26. Yes, the competence-competence principle is recognised in Ukraine. Following the Model Law, the ICA law provides that the arbitral tribunal may rule on jurisdictional objections either as a preliminary question or in an award on the merits. The ruling of the tribunal that it has jurisdiction, if decided as a preliminary question, may be challenged by any party in court within 30 days of receiving notice of that ruling.

  27. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
  28. It is advisable to use standard arbitration agreements recommended by the respective institutions. It is also advisable to specifically mention the name of the institution that is going to administer the proceeding, in addition to the name of the arbitration rules. This requirement has no basis in legislation, however, it is set forth in quite outdated, but still effective, clarifications of the High Commercial Court.

  29. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
  30. Institutional international arbitration is much more common than ad hoc arbitration. Ad hoc arbitration is very rarely used in Ukraine, however when the parties agree to it, UNCITRAL Rules are usually chosen. 

  31. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
  32. The ICA Law does not regulate multi-party agreements and multi-party proceedings. Therefore, it is advisable to agree in advance on the procedure of appointment of arbitrators and conduct of the proceedings involving more than two parties.

    The question is regulated in the ICAC Rules. They provide that in case of multiple claimants or multiple respondents, both claimants and respondents must jointly appoint one arbitrator from each side. If they fail to make such joint appointment within thirty days after receipt of respective notice, the arbitrator must be appointed by the President of the Ukrainian Chamber of Commerce and Industry.

    Commencing the arbitration

  33. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
  34. Under the ICA Law arbitration proceedings are commenced with a request for arbitration. Unless otherwise agreed by the parties, proceedings are deemed to be commenced on the date on which such request is received by the respondent.

    The ICAC, however, follows a litigation-style approach to commencement of arbitration. In order to initiate arbitral proceeding under the ICAC Rules, the claimant must file a full-blown statement of claim.

    Choice of law

  35. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
  36. The parties are free to agree on the law applicable to their dispute. Any such designation must be construed as referring to the substantive law of the state, rather than its conflict of laws rules. If the parties failed to determine the applicable law the arbitral tribunal will determine it under the conflict of laws rules which it considers applicable.

    Appointing the tribunal

  37. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
  38. Ukrainian legislation does not impose any limitation on the parties’ choice of arbitrators. In any case an arbitrator shall always be independent and impartial. The parties may specify in their agreement any requirements an arbitrator must meet, as well as the procedure for its appointment. In the arbitration proceedings under the ICAC Rules, the parties may only appoint the arbitrators included into the ICAC list.

  39. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
  40. Ukrainian legislation does not preclude foreign nationals from acting as arbitrators in proceedings having seat in Ukraine. The parties, however, may agree otherwise. In practice, foreign arbitrators frequently participate in the ICAC arbitration proceedings. Ordinary visa and travel requirements apply.

  41. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
  42. Unless otherwise agreed by the parties, if arbitrator is not appointed for any reason, such appointment must be made by the President of the Ukrainian Chamber of Commerce and Industry (the UCCI). Acting in that capacity the President of the UCCI must take into account any requirements to the arbitrators the parties agreed on, if any. The courts have no role in the appointment of the arbitrators.

  43. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
  44. Arbitrators are subject to general rules on civil liability, no special immunity is afforded to them. Arbitrators may be held criminally liable for corruption offences. 

  45. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
  46. The law provides for no limitation as regards securing payment of fees to arbitrators. The ICAC requires payment of relevant fees in advance. Thus, the case will not proceed until the claimant pays administrative and arbitration fees in full. In case of ad hoc arbitration, ICAC may provide fundholding services to the parties and arbitrators.

    Challenges to arbitrators

  47. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
  48. Following the Model Law approach, the ICA Law envisages three grounds for challenging an arbitrator: lack of impartiality, lack of independence and lack of qualifications agreed by the parties. The parties are free to agree on the procedure for challenging the arbitrators. Under the default procedure, such challenges must be considered by the arbitral tribunal. If challenge is rejected by the tribunal, the party may refer this matter to the President of the UCCI. His decision shall not be subject to any appeal. Under the ICAC rules, the challenge must first be considered by the ICAC Presidium and, if rejected, may be referred to the President of the UCCI.

    Neither the ICA Law, nor the ICAC Rules specifically mention the IBA Guidelines on Conflicts of Interest in International Arbitration. However, in practice they are frequently relied upon or at least taken into consideration by the parties and the ICAC Presidium. The parties may agree on obligatory application of the IBA Guidelines or other relevant guidelines.

    Interim relief

  49. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

  50. Interim relief is available from the arbitral tribunal. It has wide discretion in ordering the interim measure it considers necessary in respect of the subject matter of the dispute. In case of the ICAC arbitration, until the tribunal is constituted, a Chairman of the ICAC shall have competence to rule on interim relief. Such orders of the Chairman of the ICAC and orders of the tribunal concerning interim measures are binding upon the parties, however, are not subject to compulsory enforcement by the State Enforcement Service.

    The interim relief from Ukrainian courts (including anti-suit injunctions) in support of arbitration is not available so far. The recently proposed legislative amendments should fill this gap.

  51. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
  52. Ukrainian legislation does not specifically address this question. Given the wide discretion of the tribunal under the ICA Law, the orders to provide security for costs are possible. Though the court practice is quite scarce, recent decisions suggest that interim awards, including, arguably, security for costs orders, are enforceable in Ukraine.

    Procedure

  53. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?

  54. Following the Model Law, the ICA Law only requires that the parties should be granted equal treatment and afforded a full opportunity of presenting their case. Subject to this mandatory principles and unless the parties agreed otherwise, the tribunal is free to conduct arbitration in such a manner as it considers appropriate.

  55. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  56. Unless otherwise agreed by the parties, respondent’s failure to participate in an arbitration does not prevent the arbitral tribunal from considering the case and rendering an award. It is not uncommon for arbitral tribunals seating in Ukraine to render awards where a respondent fails to participate.

    Failure of a party to participate in arbitration shall not be considered as acknowledgment of the statements made by the claimant. As a matter of practice, the claimant should make sure that the respondent was duly notified of the proceeding, and that the evidence of such service of process exist. Otherwise, enforcement of the prospective award in Ukraine may turn out to be problematic.

  57. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?
  58. The ICA Law grants broad discretion to the tribunal in respect of the evidentiary matters, which includes the power to determine the admissibility, relevance, materiality and weight of any evidence.

    The general approach reflected in the ICAC Rules is that the parties must submit the evidence supporting their statements. However, the tribunal is also authorised to order production of evidence or expert examination. Within the ICAC proceedings, documents are the most frequently used type of evidence. Though witness/expert testimonies are possible, witnesses/experts are relatively rarely examined/cross-examined within the ICAC proceedings.

    IBA Rules on the Taking of Evidence in International Commercial Arbitration will be applied if the parties so agree. They are rarely applied by the ICAC tribunals without express agreement of the parties.

  59. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  60. No, the courts have no power to assist the tribunal in taking evidence. Recently proposed legislative amendments should fill this gap. 

  61. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  62. The ICA Law does not deal specifically with the documents production. Though under the ICAC Rules the tribunal has the power to order production of documents, such stage is quite uncommon for the ICAC proceedings.

  63. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  64. The hearing is not mandatory, however it is a standard practice. The parties are free to agree on whether to hold the hearing. In the absence of such agreement the arbitral tribunal must hold the hearing upon request of either party. 

  65. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
  66. Neither the ICA Law, nor the ICAC Rules impose any restriction in this regard.

    Award

  67. 34.Majority decisions
    Can the tribunal decide by majority?
  68. Yes, unless otherwise agreed by the parties an award shall be made by the majority of arbitrators. Procedural matters may be decided by the presiding arbitrator, if so authorised by the parties or other members of the tribunal.

  69. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
  70. The ICA Law does not impose any such restriction. In general, available remedies are deemed to be a substantive rather than procedural law matter, and should be determined under the law applicable to the merits of the dispute.

  71. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
  72. Yes, dissenting opinions are permitted. Still, they are relatively rare in the ICAC practice.

  73. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
  74. An arbitral award shall be made in writing and signed by an arbitrator or by majority of arbitrators. In case of majority decision, the reason for the omitted signature must be stated. Any award shall specify the date of the award and seat of arbitration. The arbitral award must always state the reasons upon which the arbitrators based their decision; the claims granted and rejected; the amount of arbitrators’ fees and expenses, as well as their allocation between the parties. 

  75. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
  76. The ICA Law does not set any particular deadline for rendering an award. The ICAC Rules require that the award must be rendered within six months after constitution of the tribunal. Such deadline may be – and frequently is – extended by the ICAC Presidium.

    The parties may apply for correction of the award within 30 days after receipt of the award. If the arbitral tribunal finds such request justified it must correct the awards within 30 days. A request for interpretation may only be submitted if the parties have agreed on such power of the tribunal. The same time frames as to the correction of the award apply.

    A 30-day deadline also applies to the party’s request to the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award.

    Costs and interest

  77. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the 'loser pays' rule generally apply in your jurisdiction?

  78. The award must specify allocation of arbitration costs and expenses between the parties. The ‘loser pays’ rule is generally applicable. Within the ICAC proceedings, the tribunal must order compensation of the arbitration fee paid by the claimant in proportion to the claims granted. In addition, the tribunal may order compensation of the costs incurred by the winning party, including its legal expenses, in the amount the tribunal considers justified and appropriate.

  79. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
  80. The ICA Law is silent on this question. Availability of the interest and its rate is deemed to be substantive, rather than a procedural matter and shall be determined in accordance with the law applicable to the merits.

    If Ukrainian substantive law applies, pre-award interest will be accrued if the parties so agree. In the absence of the parties’ agreement, the defaulting party must pay 3 per cent interest in case of breach of a monetary obligation. No statutory interest rate is established in respect of other types of obligations.

    Post-award interest is very uncommon for Ukraine and in particular for the ICAC practice. However, foreign arbitral awards ordering post-award interest are enforceable in Ukraine.

    Challenging awards

  81. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
  82. An exhaustive list of grounds for setting aside an arbitral award is set out in article 34 of the ICA Law. Those grounds are basically the same as envisaged in article V of the New York Convention. The courts are specifically prohibited from reconsidering the case on the merits.

  83. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
  84. No, the list in article 34 of the ICA Law is exhaustive. 

  85. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
  86. No, the parties may not contractually waive their right to apply for setting aside of the arbitral award. 

    Enforcement in your jurisdiction

  87. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
  88. Although article V of the New York Convention provides the courts with certain discretion in deciding whether to refuse to enforce the award, Ukrainian courts usually interpret the grounds set out therein as requiring refusal. We are not aware of the instances where Ukrainian courts enforced an award that had been set aside in the country of the seat.

    It is worth noting that Ukraine is a party to the European Convention on International Commercial Arbitration. Taking into account article IX of said Convention, there may be awards that can be enforced in Ukraine notwithstanding setting aside in the country of the seat. 

  89. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
  90. General statistics shows that majority of the arbitral awards are enforced in Ukraine. The very recent case JKX Oil & Gas et al. v Ukraine confirmed that emergency arbitrator award and other interim orders are in principle enforceable in Ukraine (the first instance court allowed enforcement of the emergency arbitrator award, the appellate court reversed this order due to public policy concerns, the cassation court returned the case for reconsideration to the appellate court). At the same time, JKX Oil & Gas Case confirmed that Ukrainian courts tend to interpret public policy broadly.

    A full-blown arbitration reform has been proposed recently. The draft law has already been submitted to the Parliament. If adopted, it will introduce much awaited mechanism of judicial support to arbitration, including ordering interim measure and obtaining evidence.

  91. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
  92. Foreign states enjoy absolute immunity in Ukrainian courts. Without express consent of the foreign state’s competent authorities such state may not be sued and its property may not be attached/foreclosed in Ukraine. Therefore, it is highly likely that sovereign immunity defence will be successful. Foreign state entities enjoy immunity insofar as they are considered a state body under their national law. 

    Further considerations

  93. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  94. The ICA Law does not address this question and the parties are free to agree on it. Under the ICAC Rules the Chairman of the ICAC, its deputies, arbitrators and the secretariat shall ensure confidentiality of the information that became known to them on the disputes heard by the ICAC. No such obligation is imposed upon the parties.

  95. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  96. The ICA Law does not address this question. Unless the parties agreed otherwise, it will be problematic to effectively preclude the other party from using respective evidence and pleadings in other proceedings.

  97. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  98. There are no professional standards or ethical codes applicable to counsel or arbitrators. Law practitioners admitted to the Ukrainian bar should comply with the Rules of Advocate’s Ethics as well as provisions of the Law of Ukraine “On the Bar and Legal Practice”.

  99. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
  100. Arbitration in Ukraine is largely based on written evidence. Oral witness testimony is of much lower importance. Document production is used very rarely, and, if ordered, one should expect it to be quite narrow. 

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GAR know-how provides reliable cross-jurisdictional insight to help cement the building blocks of international practice. In this section, select experienced practitioners answer commonly-asked questions for key jurisdictions so allowing readers to be better-placed to solve the challenges of their working days.

Questions

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
  7. Agreement to arbitrate

  8. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
  9. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
  10. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
  11. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
  12. 11.

    Groups of companies
    Is the 'group of companies doctrine' (or any other basis for piercing the corporate veil) recognised in your jurisdiction?


  13. 12.Separability
    Are arbitration clauses considered separable from the main contract?
  14. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
  15. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
  16. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
  17. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
  18. Commencing the arbitration

  19. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
  20. Choice of law

  21. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
  22. Appointing the tribunal

  23. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
  24. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
  25. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
  26. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
  27. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
  28. Challenges to arbitrators

  29. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
  30. Interim relief

  31. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?


  32. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
  33. Procedure

  34. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?


  35. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  36. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?
  37. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  38. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  39. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  40. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
  41. Award

  42. 34.Majority decisions
    Can the tribunal decide by majority?
  43. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
  44. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
  45. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
  46. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
  47. Costs and interest

  48. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the 'loser pays' rule generally apply in your jurisdiction?


  49. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
  50. Challenging awards

  51. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
  52. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
  53. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
  54. Enforcement in your jurisdiction

  55. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
  56. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
  57. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
  58. Further considerations

  59. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  60. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  61. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  62. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?