• Markian MALSKYY | Arzinger

    2017 turned out to be a fruitful year for Ukraine in terms of arbitration — both investment and commercial.

    2017 began for Ukraine with the major investor-state dispute settlement with Gilead Sciences Inc in which the State showed its readiness to negotiate and concede with foreign investors.

    Furthermore, the tendency shows more and more Ukrainian investors availing themselves of ISDS mechanisms (in particular the recent Kuzmin v Latvia case).

    With preventive considerations in mind, Ukraine dedicated 2017 to judicial reform procedures that finally brought around some major and long-awaited changes in dispute resolution mechanisms, and international arbitration inter alia, at the end of the year.

    Through adoption of new procedural codes Ukraine is expected to offer a new and more flexible approach towards alternative dispute resolution by, among others, finally extending arbitrability, introducing domestic courts with powers to impose security measures in support of arbitration; providing for judicial support to arbitration in fact finding, witness questioning; resolving the long-running issue of calculating interest under awards, etc.

    In terms of arbitral awards enforcement under the new procedures, consideration of applications for recognition and enforcement will now be vested with the Kyiv Court of Appeal irrespective of the location of the debtor or its assets. Promotion of Kyiv-seated arbitration is further fostered by the possibility to join the proceedings to set aside and enforce its awards into single proceedings.

    The invitation for business to settle its disputes inside Ukraine was also embodied in adoption of new Rules by International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry. The Rules, which came into force on 1 January 2018, are expected to make arbitral proceedings even faster and more efficient. Introduction of expedited arbitral proceedings with a final award to be given in just 2 months, admissibility of electronic evidence are primarily aimed at achieving this goal.

    Much has been done in 2017 and much more needs to be done in 2018. With the groundwork laid, implementation of changes is awaited. In the coming year business will be looking at judicial reform in action, at the work of new judges and the appearance of new court practice. It will definitely be the year of new possibilities and opportunities for Ukraine to show progress, competitiveness and to earn trust.

     

The highly-reputed team at Sayenko Kharenko is a strong practice acting as counsel to an impressive roster of Ukrainian and international clientele. This past year the firm acted as counsel and Ukrainian law adviser in over 15 cross-border disputes and arbitral proceedings under a variety of institutional rules, including those of the ICC, LCIA, SCC, the Netherlands Arbitration Institute and UNCITRAL Arbitration Rules, for a total amount in excess of USD 7 billion. The firm was boosted with investment arbitration work representing the State of Ukraine. Selected project highlights include acting for the State of Ukraine, alongside an international counsel, in an Energy Charter investment arbitration initiated by the minority shareholders of Public Joint-Stock Company Ukrnafta under the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce with the amount of claim at around USD 5.4 billion. The team acts as Ukrainian counsel of the State of Ukraine, alongside an international counsel Latham & Watkins (London office), in an ICSID investment arbitration initiated by a shareholder of PJSC Aerosvit under ICSID Arbitration Rules with the sum of the claim at around USD 700 million. It is noteworthy that team members served as party-appointed and institution-appointed arbitrators as well as presiding arbitrators in over 20 arbitrations seated in Kyiv, Minsk and Vienna. The team is led by the regularly acclaimed as a market authority partner Tatyana Slipachuk, FCIArb, C.Arb, and promoted to partner in March 2018 Olexander Droug. Senior associate Volodymyr Yaremko, who joined the team in 2017, also receives the approval of peers.

INTEGRITES has a sizeable international arbitration team and notable expertise in cross-border litigation. In 2017 the firm received several multimillion arbitration awards in favor of its clients and rapidly acquires new project wins. It is noteworthy that the team showcases impressive portfolio of arbitration cases including investment-treaty arbitrations and commercial arbitrations in different venues and under different rules (LCIA, SCC, ICC, ICAC (Ukraine), ICAC (Russia), GAFTA etc). In a recent highlight, the team won two inter-related ICAC (Ukraine) arbitrations with over USD 30 million at stake; represents the interests of a major global ammonia transiter in two further related arbitral proceedings against a Russian chemical giant with over USD 34 million at stake. Another highlight is victory in a USD 8 million LCIA arbitration, where the firm acted as lead counsel for the UK-based Jereh’s exclusive official dealer for Ukraine in LCIA arbitration in a dispute against the largest gas production company in Ukraine. The experienced and impressively active partner Olena Perepelynska is head of the CIS arbitration practice, and President of the Ukrainian Arbitration Association. Vsevolod Volkov, partner, is head of practice in Ukraine. The arrival In January 2018 of cross-border disputes partner Dmytro Marchukov, and Serhii Uvarov, counsel, both from AVELLUM, strengthened the firm.

Arzinger law office renders full-scale service related to international arbitration and enjoys an experienced team handling disputes administered by the world’s leading arbitral institutions. In addition to a commercial arbitration caseload, the firm participates in international investment arbitration cases, including proceedings under the Rules of the International Center for Settlement of Investment Disputes (ICSID). In 2017 the team represented the State of Ukraine in an investment dispute under the ICSID rules on the lawsuit filed by Dutch investors seeking recognition of Ukraine’s breach of obligations under the bilateral investments treaty between Ukraine and the Netherlands for the protection of investments in the banking sector as well as obtaining the appropriate compensation (City State N.V. v. Ukraine). Lviv-based partner Markian Malskyy heads the arbitration practice, and is a recommended arbitrator at 11 domestic and international institutions and is sitting as an arbitrator. Oksana Karel, senior associate, is another key practitioner.

AEQUO maintain its internationally focused practice of arbitration growing, being especially highly regarded for expertise in large scale energy disputes. The team acts in proceedings according to arbitration rules of the SCC, LCIA, AAA, ICAC Ukraine, ICAC Russia. The firm continues to enhance its profile of investment arbitrations, and is regularly instructed by international law firms. Pavlo Byelousov, counsel, heads the practice and increased activities as an appointed arbitrator. Denis Lysenko, managing partner, leads the most challenging projects taken on by the team.

The international arbitration practice of Eterna Law is mostly visible in cross-border disputes taking place in the agribusiness, IT, banking, energy, transport spheres. The team is constantly instructed by notable international clients as well as by sound domestic corporates and private individuals. Significant recent cases include representation of UkrEnergy Trade’ interests in arbitration proceedings at the Vienna International Arbitration Center (VIAC), initiated as a result of violation by the defendants of export contracts for the supply of electricity from Burshtyn TPP (Ukraine) island to Slovakia, Romania and/or Hungary; representing Korlea Invest AS’ interests in  VIAC arbitration proceedings commenced due to the respondents’ breach of the export contract for supply of electricity from the so-called Burshtyn Island to Slovakia and/or Romania and/or Hungary. The international arbitration practice is traditionally led by partners Eugene Blinov and Oleh Beketov.

AGA Partners1 is traditionally among leading teams in commodities arbitration. The firm mainly acted in cases at GAFTA and FOSFA arbitration institutions. In 2017 the team won a precedent-setting case that involved a politically motivated ban on the export of Ukrainian goods to Russia, specifically regarding a USD 50 million contract. Another benchmark case was a FOSFA dispute between Agroprosperis (part of NCH Capital Inc.) and a Russian Federation-based company with respect to a contract on sale of soybeans. The firm has expertise in sports arbitration, in particular, it advised a Ukrainian-based leading basketball female club in a dispute with the Basketball Federation on the illegal transfer of the club’s players. All three partners are dedicated to practice — Aminat Suleymanova, Ivan Kasynyuk and Irina Moroz.

International arbitration is one of the core strengths of ARBTIRADE. The firm has maintained its diverse profile of arbitration cases, being involved in investment arbitration proceedings at the ICSID, actively undertaking commodities arbitration cases, and acting in a number of commercial arbitrations. In 2017, the firm continued to act as co-counsel in an investment arbitration case against Ukraine at the ICSID representing a Netherlands investor, City-State N.V. and its Ukrainian subsidiaries. The team customarily hands soft commodities arbitrations, and has obtained a favorable award for PJSC State Food and Grain Corporation of Ukraine in GAFTA appeal proceedings. Moreover, one of ARBITRADE’s traditional areas of specialization is arbitration cases related to the quality of industrial equipment. This year, the team initiated another equipment-related arbitration case before the ICC, claiming losses suffered by a client as a result of the purchase of faulty equipment for the extrusion of plastic film. Andriy Shulga is lead partner and practice head. Highly reputed Yuliya Chernykh, of counsel, was appointed as an arbitrator in more than 30 arbitration cases.

Asters has a strong presence in international arbitration, acting in a wide range of arbitral bodies, and also assists in enforcing foreign arbitral awards and judgments in Ukraine. The recent practice is rich in arbitrations arising under bilateral investment treaties. The team acts as a local counsel for Quinn Emanuel Urquhart & Sullivan LLP, lead counsel acting for JSC Oschadbank, in connection with a claim by state-owned Oschadbank against the Russian Federation for recovery of over USD 1 billion in compensation as a result of the total loss of its investments in Russia-annexed Crimea. Another example of notable representation is support to KVV Group in an investment arbitration dispute with the Government of Latvia relating to a failed investment in a major Latvian steel plant. Core practitioner Yaroslav Petrov was promoted to partner in January 2018. Dmitry Shemelin, counsel, is one more bright team member, endorsed by peers for expertise in investment arbitration. Managing partner Oleksiy Didkovskiy supervises the arbitration practice.

CMS Cameron McKenna Nabarro Olswang possesses expertise in a wide variety of complicated disputes including investment and commercial arbitrations. The Kyiv team is particularly known for its strength in energy disputes, and is loaded with investment arbitrations of late. Amongst other things, the team has been acting as a Ukrainian law counsel of JKX Oil & Gas in investment arbitration under the Energy Charter Treaty (in a SCC arbitration proceeding brought against Ukraine, including obtaining the first ever emergency award against Ukraine). Olexander Martinenko, senior partner, often acts as an expert on Ukrainian law in various arbitration matters.

Reputable boutique firm ENGARDE is highly praised in the market for the expertise of its dedicated team. The firm acts as a counsel for the State of Ukraine (acting as a member of a law firm consortium led by the Paris office of Shearman & Sterling) in an ICSID arbitration initiated by Emergofin B.V. and Velbay Holdings Ltd. under the Ukraine — Netherlands bilateral investment treaty. The dispute relates to an aluminum and alumina production company. Managing partner Irina Nazarova is practice head, and is a highly sought after arbitrator. Other partners involved in arbitration matters are Andriy Vyshnevsky, Roman Ognevyuk and Dmytro Donenko.

Recognized in domestic and cross-border dispute resolution, Ilyashev & Partners is active in international commercial arbitration across major arbitration rules: UNCITRAL, LCIA, ICC, LMAA, SCC, VIAC, ICAC (Ukraine). The firm also accompanies the procedures for appealing arbitral awards, as well as recognizing and enforcing arbitral awards in Ukraine and abroad. In particular, the firm represents the interests of Ukrinterenergo SE in a case against Inter RAO UES regarding the collection of payment for electricity delivered from the territory of the Russian Federation to the territory of certain areas of Donetsk and Lugansk Regions controlled by separatists. Another case is the recognition and enforcement of the ad hoc international arbitration award in London under the UNCITRAL Arbitration Rules on the JKX Oil & Gas Plc v. Ukraine case about the payment of losses incurred by the company as a result of increased rental rates for oil and gas production. The practice is overseen by partners Mikhail Ilyashev and Roman Marchenko. Both partners are enlisted as experts for high-profile international arbitration proceedings, while Roman Marchenko also acts as an arbitrator, especially in the LMAA.

Cross-border dispute resolution and international arbitration has been one of the core practices of the Ukrainian office of Kinstellar since its establishment. The team is known for experience in shareholders and post-M&A disputes. The team represented a minority shareholder of a large Ukrainian agricultural company in ICC arbitral proceedings commenced by a sovereign wealth fund in a post-M&A dispute for breach of shareholders’ agreement and other transaction documentation and compensation of damages.Another renowned representation is for Stockman Interhold S.A. where the firm actsin LCIA arbitration proceedings in a shareholders’ dispute in relation to the right to exercise a call option by a minority shareholder over the shares owned by the client in the company. Kostiantyn Likarchuk, managing partner, heads the firm-wide dispute resolution practice. Mykyta Nota, counsel, is another key practice figure.

In 2017 Lexwell & Partners demonstrated a boosted portfolio of investment arbitration cases within the energy sector, where the firm acts for the State of Ukraine. The firm is the Ukrainian law counsel in the framework of international arbitration proceedings in a dispute between the State of Ukraine and a foreign investor in connection with the alleged plaintiff’s expropriation of investment. The firm also acted as a co-counsel on certain issues of Ukrainian law in international arbitration proceedings regarding a commercial dispute involving the State of Ukraine and minority shareholders of PJSC Ukrnafta. The firm represented VS Energy and its major shareholders in five interconnected arbitration under LCIA rules, initiated by RCB Bank in connection with  concluded loan agreements; advised ArcelorMittal in respect of an arbitration case in Stockholm regarding recovery of debt for supplied gas. Andrey Kolupaev, managing partner, is the main figure.

Over the last couple of years, the dispute resolutionpractice of Marchenko Danevych has been reinforced with a strong flow of investor-state disputes. The firm also often pursues parallel proceedings in national courts and international venues. For example, in the Morgan Furniture and Investors v. Ukraine case, the team acted for U.S.-French Investors in the first publicly-known investor-state dispute with Ukraine and parallel proceedings in national courts related to arbitrary tax charges. Another ongoing highlight is advising a U.S.-based Fortune Global 500 Company and its European and Ukrainian subsidiaries on the jurisdiction, merits and strategy of investment arbitration and investor-state negotiations with Ukraine and its Government to challenge arbitrary tax claims imposed by the State Fiscal Service in respect of inward processing operations carried out by a local subsidiary and related arbitrary and unreasonable tax evasion criminal proceedings pursued by the National Police. Partner Oleh Marchenko heads the dispute resolution team.

The long-standingfirm Vasil Kisil & Partners has developed expertise in handling complex matters and represented clients in international arbitrations under major arbitral rules. The team acted as Ukrainian law counsel and an expert in Ukrainian law for SCM Financial Overseas Limited (defendant) arising from the purchase of shares in a company exercising control over Ukrtelecom. Another sound case was representation of a well-known Ukrainian businessman, Mr. Gennady Bogoliubov, in a major dispute against Russian oil company Tatneft at the High Court of Justice in London regarding the alleged appropriation of funds for oil transferred to the Kremenchuk oil refinery. Oleg Alyoshin is an established name on the market.

Throughout the last few years AVELLUM has developed its internationally-centered dispute resolution practice. The firm represents Centrenergo, a leading Ukrainian state-owned power-generating company, in LCIA arbitration with an international trading company regarding the quality of shipped products. The firm’s partners are involved as Ukrainian law experts in a number of investment arbitrations. Dmytro Marchukov and Serhii Uvarov moved to INTEGRITES.

The dispute resolution team at Baker McKenzie, as led by partner Ihor Siusel, is involved in representing clients in international arbitration proceedings as well as in court proceedings on the recognition and enforcement of foreign arbitral awards in Ukraine.

Sergei Voitovich, partner at Grischenko & Partners, is known in the arbitration community for unrivalled expertise in investment arbitrations.

International commercial arbitration is one of the oldest practices of Jurvneshservice. In 2017 the team, as guided by Anna Tsirat represented Altum Air Inc. in a dispute with local company Windrose Airlines at the ICC Ukraine. Gennadii Tsirat and Dmytro Salatiuk represented Norbert Shaller GmbH (Austria) in the process of recognition and enforcement of a foreign award.

Antika Law Firm added several arbitration instructions to its profile, and also advised on application of Ukrainian legislation in certain arbitration cases. The team included managing partner Alexey Kot and partner Sergii Korniienko.

Dentons’ Kyiv office team represented clients in several arbitration matters and enforcement proceedings. Oleg Batyuk acts as lead partner.

EVERLEGAL has been involved in several arbitration and pre-arbitration proceeedings in commercial matters, including the LCIA, VIAC, Swiss Chambers’ Arbitration Institution (SCAI). Andriy Olenyuk is lead partner.

Attorneys’ Association Gestors acted as legal advisor to PJSC Chornomornaftogaz with regard to controversial issues on the return of Titan-2 crane vessel to its owner. Andriy Tsvyetkov acts as lead partner.

Sergiy Gryshko, partner at Redcliffe Partners, is known for his experience in the field of international arbitration field. Yuriy Katser, director and head of legal at KPMG Law Ukraine, took part in several arbitration hearings as an expert on certain matters of Ukrainian law.

1 As of July 2018, the firm has merged with AVELLUM.