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Dr Oleksiy Kot
Partner, ANTIKA Law Firm
Ph.D. (Law), Partner, ANTIKA Law Firm
12 Khreschatyk Street, 2nd Floor,
Kyiv, 01001, Ukraine
Tel./Fax: +380 44 390 0920/21
ANTIKA was established in 2010. Since formation, the Firm has built a strong reputation as an independent law firm and continues to grow on the Ukrainian legal services market. It is in the TOP-25 leading law firms in Ukraine.
According to the results of research of the legal services market, as carried out by reputable international and Ukrainian guides to legal profession like The Legal 500 EMEA, Chambers Europe, IFLR1000 Energy and Infrastructure, Best Lawyers, Ukrainian Law Firms. A Handbook for Foreign Clients, 50 Top Law Firms of Ukraine, Client Choice. The Top-100 Best Lawyers in Ukraine, the Firm has been recommended in the areas of competition and antitrust, dispute resolution, arbitration and mediation, corporate/M&A, real estate, land, energy, subsoil use, criminal defense.
The Firm received the Legal Award 2012 in the nomination Law Firm — Breakthrough of the Year. The Firm is also a Finalist of the Legal Award 2013 in the field of Antitrust, Litigation and Real Estate, in 2014-2016 — in the field of Energy. Partner, Doctor of Law Oleksiy Kot, holds the title of Lawyer of the Year in the field of litigation according to The Best Lawyers in Ukraine 2020. Oleksiy Kot was named the Best Lawyer in Competition according to the Legal Awards 2015 and received The best Scientific Principal Award within the auspices of the Competition Lawyer of the Year — 2017. Partner Maksym Korchahin was named Next Generation Lawyer and Next Generation Partner in Dispute Resolution Practice according to the results of international research The Legal 500 Europe, Middle East & Africa (2019-2021) and was recognized by international rating research Best Lawyers (2022).
The Firm provides a full range of legal services to national and international companies that do business in Ukraine and abroad. The partners of the Firm possess more than 20 years experience in providing business law advice.
ANTIKA’s team includes lawyers who have significant experience of various legal practices and provide a full range of legal services to national and international companies that do business in Ukraine as well as abroad in the following fields: telecommunications, heavy machinery, chemical and food industries, automotive, complex development, construction and real estate, subsoil use, wholesale and retail, media and sports, banks and financial services market, energy efficiency and energy conservation. The Firm’s key practices include litigation and arbitration, corporate, construction and real estate, subsoil use and energy, legal expertise, competition and antitrust.
The Firm’s main principles are provision of high quality and timely legal services, strict confidentiality and a bespoke approach to every client’s project.
Representative clients include the following: AWT Bavaria, Association of International Automobile Carriers of Ukraine (AsMAP), ArcelorMittal Kriviy Rih, Cadogan Petroleum, Enesa a.s., Esan Eczacıbaşı Industrial Raw Materials, Henkel Ukraine, Henkel Bautechnik Ukraine, Ibis Group of Companies, Imperial Tobacco, International Resources Group, Nadra Ukrayiny, ViDi Group, Ukrnafta. The Firm also advises the World Bank, EBRD, USAID, TACIS, UNDP, KfW, NEFCO on energy efficiency, utility and the implementation of other projects in Ukraine. The Firm also advises a number of large companies regarding compensation of damages caused by military aggression against Ukraine.
Antika is a member of the Ukrainian Chamber of Commerce and Industry, the American Chamber of Commerce in Ukraine, the European Business Association, and the Alternative Energy Club.
Partners of the Firm are members of: the Judicial Reform Council, the Working Group on the updating of Ukrainian civil law, the Scientific and Advisory Council of the Supreme Court, the International Bar Association; the Ukrainian Bar Association.
Legal Expert in International Arbitration
The involvement of experts in international arbitration is common practice, and using them is, to a significant extent, caused by the complexity of cases that are considered in international arbitration. A request for special knowledge in a particular field or branch of law arises in many circumstances.
The expert is the one of the participants of arbitration who is meant to solve those issues which, by their nature, are not within the competence of an arbitrator and demand restricted professional consideration. The qualified expert’s study of factual circumstances or matters of law may be decisive for support or, vice versa, for rejection of the position held by the disputing party, which are necessarily reflected in the decision. Therefore, the participation of an expert in arbitration often becomes the indispensable factor for ensuring the effectiveness of arbitration proceedings. There is a common view about the division of experts into party-appointed experts and tribunal-appointed experts in both the theory and practice of international arbitration.
The active participation of experts in the evidentiary process as the essential component of arbitral proceeding determines the importance of the issue as to the requirements which apply to such participants of proceedings. There are the requirements of qualification, independence and impartiality, which are prescribed by arbitration rules and soft law instruments for experts.
In particular, under Article 29 (2) of UNCITRAL Arbitration Rules (hereinafter – the UAR), the tribunal-appointed expert shall, in principle before accepting his/her appointment, submit to the arbitral tribunal and to the parties a description of his or her qualifications and a statement of his or her impartiality and independence. Within the time ordered by the arbitral tribunal, the parties shall inform the arbitral tribunal as to whether they have any objections as to the expert’s qualifications, impartiality or independence. Such objections may be considered by an arbitral tribunal. After an expert has been appointed, a party may object to the expert’s qualifications, impartiality or independence only if the objection is for reasons of which the party becomes aware after the appointment has been made. In such scenario the arbitral tribunal shall decide promptly what, if any, action to take. The same rule regarding tribunal-appointed experts is provided in Article 6 (2) of the IBA Rules.
It is notable that the requirement of independence and impartiality is also set out for party-appointed experts. The IBA Rules define a statement of expert’s independence from the parties, their legal advisors and the arbitral tribunal among the essential elements of the expert report submitted by a party-appointed expert (Article 5(2) (с) of the IBA Rules). Considerable attention is paid to such requirements in the Chartered Institute of Arbitrators Protocol for the Use of Party-Appointed Expert Witnesses in International Arbitration (hereinafter – CIArb Protocol). Pursuant to Article 4 of the CIArb Protocol, an expert’s opinion shall be impartial, objective, unbiased and uninfluenced by pressures from the dispute resolution process or from any party. It also provides that payment by the appointing party of the expert’s reasonable professional fees for the work done in giving such evidence shall not, of itself, vitiate the expert’s impartiality. Article 8 of the CIArb Protocol which is devoted to the form of expert declaration stipulates, i.a, that the expert should confirm that his/her opinion is his/her own, impartial, objective, unbiased opinion which has not been influenced by the pressures of the dispute resolution process or by any party to the arbitration.
In conjuction with these rules of the CIArb Protocol, the Guideline on Party-appointed and Tribunal-appointed Experts prepared by CIArb provides a warning for arbitrators that they should be mindful of the dangers of private communications and/or private conversations and/or any form of deliberation with an expert, as they may all provide grounds for a challenge on the grounds of lack of due process and/or lack of independence and impartiality. Accordingly, it is considered best practice to conduct all communications in a transparent manner by copying to all of the parties all communications concerning the arbitration with the expert and to conduct all conversations with the expert in the presence of all parties.
The notable understanding of objectivity and independence as duties of experts is given in Code of Best Practices in Arbitration of the Spanish Arbitration Club of 2019. Under Articles 134-135 of this Code, the qualities of objectivity and independence require that experts possess the willingness and capability to perform their role, are guided by the truth and report, not only aspects that are favourable to the party that has appointed them, but also those adverse to it, and maintain an objective distance from the appointing party, the dispute, and other persons involved in the arbitration. Moreover, the duty of objectivity and independence requires that experts have no financial interest in the outcome of the arbitration.
In contrast to the establishment of the requirements to experts in UAR and the above instruments of soft law, regulation of this issue in the rules of particular arbitral institutions is not found often.
The one example is Article 21.2 of the Rules of the London Court of International Arbitration, according to which a tribunal-appointed expert’s impartiality and the independence of the parties is confirmed by a written declaration to such effect signed by the expert and delivered to the arbitral tribunal and copied to all parties.
Notwithstanding establishment of the requirements of impartiality and independence, concerns do exist about the fulfillment of such requirements in proceedings involving party-appointed experts. In particular, the Annual Arbitration Survey 2021 prepared by BCLP (hereinafter – the Survey) points out that party-appointed experts’ related duties to the tribunal and the party that instructed them create an inherent tension in their role and does not promote independence. There is a perception among the arbitration community that the opinions of party-appointed experts are not always objective. In this regard, the Survey shows that 51% of respondents agreed that party-appointed experts are “hired guns” or “advocates in disguise” but, of that 51%, 24% did not think that this was a problem. When considering alternative solutions to a party-appointed expert, the most favored (and least unpopular) alternative was a tribunal-appointed expert selected by the parties (58% / 19%), followed by a single joint expert selected and appointed by the parties (53% / 19%). A tribunal-appointed expert selected by the tribunal was a less favored (and more unpopular) option (41% / 32%).
One of the key directions in the development of international commercial arbitration is the introduction and application of expedited procedures at institutional level. The role of an expert is in the sphere of influence of the development of expedited procedures in international arbitration. Changes in the process of providing evidence and shortening the stages of proceedings inevitably affect this participant in the process. As you know, the most important form of expert assistance is his/her participation in the hearing during which, as a rule, cross-examination of experts is carried out on the basis of submitted written opinions.
In this regard, attention should be paid to the UNCITRAL Expedited Arbitration Rules which took effect on 19 September 2021 (hereinafter – the UEAR). In the process of drafting the UEAR the Working Group agreed that there would be no need to mention the possibility of limiting the cross-examination of fact and expert witnesses in the expedited arbitration proceedings (Note by the Secretariat A/CN.9/WG.II/WP.214). Finally, pursuant to Article 11 of the UEAR, the arbitral tribunal may, after inviting the parties to express their views and in the absence of a request to hold hearings, decide that hearings shall not be held. However, as explained in the Explanatory Note to the UEAR, a hearing may be useful when witness testimony and expert opinions are critical for the decision-making of the arbitral tribunal. At the same time, it is emphasized that the arbitral tribunal has broad discretion on how to conduct the hearings in a streamlined manner. Efforts should be made to limit the duration of the hearings, the number of witnesses as well as cross-examination and, at the same time, to maintain due process.
The approach developed by UNCITRAL follows in the wake of the previously formulated and enshrined rules of particular arbitral institutions. In particular, according to Article 33 (1) of the Rules for Expedited Arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce, a hearing shall be held only at the request of a party and if the Arbitrator considers the reasons for the request to be compelling. The rule of subpar. (d) of par. 2 of Article 42 of Swiss Rules of International Arbitration stipulates that unless the dispute is decided on the basis of documentary evidence only, a single hearing shall be held for the examination of witnesses and experts or for oral argument.
As evidenced by recent developments of expedited procedures in international arbitration, the specifics of expedited arbitration may significantly reduce the activity of an expert in the course of proceedings. This fact is explained by the possible absence of hearings during which expert testimony is heard during the general procedure. However, the role of an expert under expedited proceeding should not be diminished. Indeed, the UNCITRAL’s emphasis on the usefulness of a hearing when witness testimony and expert opinions are critical for the arbitral tribunal’s decision-making as well retaining the possibility of expert to provide an expert written opinion mean that the role of an expert under expedited procedures in international arbitration is still important.