Reforming the Legislation on the International Commercial Arbitration of Ukraine: Realities or Myths
Summary: 1. Introduction. – 2. The Possibility of the Consideration of Investment Disputes by International Commercial Arbitration. – 3. The Correlation of the ‘Place of Dispute’ ICA with the Theory of Delocalisation. – 4. The Procedure for Establishing Institutional Arbitration Courts. – 5. Changing the Procedure for Appointing Arbitrators. – 6. Conclusions.
Abstract
International commercial arbitration (ICA) is an alternative way to resolve foreign economic disputes. Initially, arbitration itself was seen as a neutral court in which the parties to the dispute were independent of national courts. Arbitration agreements and decisions must be recognised by national courts without any
complications or review procedures.
Although granting commercial parties some independence to agree that their dispute will be considered by independent arbitrators is a key principle in ICA, the struggle for supremacy between national laws and national courts on the one hand and the autonomy of the parties and the independence of the international arbitration system on the other continue. Over the years, national laws have sought to control, regulate, interfere with, or support ICA in various ways. To counter attempts to ‘localise’ ICA and promote equality in this area, private, professional institutions and international and intergovernmental organisations have developed a significant body of law designed to ensure self-government and dispute settlement procedures in ICA.
Nevertheless, international commercial arbitration cannot exist independently of national jurisdictions. Examining the activities of ICA, it can be seen that the importance and impact of national arbitration laws and national judicial supervision are significantly reduced, but the lex fori still plays an important role in arbitration. Thus, the reform of the normative regulation of international arbitration also affected Ukraine. The note analyses the radical changes proposed by the legislator regarding the procedure for establishing institutional arbitrations, expanding the arbitrability of disputes
About Authors
Prytyka Yuriy
Dr. Sc (Law), Head of Department of Civil Procedure,
Law School of the Taras Shevchenko National University of Kyiv, Ukraine prytykau@knu.ua
https://orcid.org/0000-0001-5992-1144
Komarov Vyacheslav
Professor, Member of the National Academy of Legal Sciences of Ukraine,
Yaroslav Mudryi National Law University, Ukraine
v.v.komarov@nlu.edu.ua
https://orcid.org/0000-0002-4378-9772
Kravtsov Serhij
PhD (Law), Associate Professor, Department of Civil Procedure,
Yaroslav the Wise National Law University, Ukraine
s.o.kravtsov@nlu.edu.ua
https://orcid.org/0000-0002-8270-193X
CONFLICTS OF INTEREST
The authors declare no conflict of interest of relevance to this topic. Prof. Prytyka serves as a Member of the Advisory Board of the journal; thus, he was not involved in decision making, and this note underwent the full process of peer review and editing. Although two authors serve in AJEE, which may cause a potential conflict or the perception of bias, the final decisions for the publication of this note was handled by other editors, including choice of peer reviewers.
DISCLAIMER
The authors declare that they were not involved in any state body’s activities related to the discussed Draft law. Prof. Prytyka serves as a Member of the International Commercial Arbitration Court in Ukraine but does not represent any views of this body in this research, nor is he bound by that body in his opinion.
ACKNOWLEDGEMENTS
References
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Yu Prytyka, V Komarov, S Kravtsov, ‘Reforming the Legislation on the International Commercial Arbitration of Ukraine: Realities or Myths’ 2021 3(11) Access to Justice in Eastern Europe 117–128. DOI: 10.33327/AJEE-18-4.3-n000074
