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ARBITRABILITY OF CORPORATE DISPUTES IN UKRAINE Shareholder Disputes in Arbitration

7/2 StelmaKha str., office 77, 03040 Kiev, Ukraine chernykh@arbitrade.com.ua www.arbitrade.com.ua. ARBITRABILITY OF CORPORATE DISPUTES IN UKRAINE Shareholder Disputes in Arbitration Vilnius, Lithuania 21 October 2 010. No definition No unified exhaustive list

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ARBITRABILITY OF CORPORATE DISPUTES IN UKRAINE Shareholder Disputes in Arbitration

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  1. 7/2 StelmaKhastr., office 77, 03040 Kiev, Ukrainechernykh@arbitrade.com.ua www.arbitrade.com.ua

  2. ARBITRABILITY OF CORPORATE DISPUTES IN UKRAINE Shareholder Disputes in Arbitration Vilnius, Lithuania 21 October 2010

  3. No definition • No unified exhaustive list • Basic provisions are set by: - The Law of Ukraine “On International Commercial Arbitration” of 1994 - The Commercial Procedural Code of Ukraine of 1991 with amendments - [disputed!] The Law of Ukraine “On International Private Law” (Art. 77 on exclusive jurisdiction) General Concept of Arbitrability in Ukraine

  4. The Law of Ukraine “On International Commercial Arbitration” of 1994 (UNCITRAL Model Law): Article 1: “2. Pursuant to the agreement of the parties, the following may be referred to international commercial arbitration: - Disputes resulting from contractual and other civil law relationships arising in the course of foreign trade and other forms of international economic relations, provided that the place of business of at least one of the parties is situated abroad; as well as - Disputes arising between enterprises with foreign investment, international associations and organizations established in the territory of Ukraine; disputes between the participants of such entities; as well as disputes between such entities and other subjects of the law of Ukraine.” Positive arbitrability

  5. Commercial Procedural Code of Ukraine of 1991 (amended in March 2009) Article 12 (2) prohibits submitting to arbitration (domestic and international) the disputes falling within jurisdiction of commercial courts of Ukraine as follows: • Disputes on invalidation of acts • Disputes arising out of conclusion, amendment, termination and performance of public procurement contracts • Disputes arising out of corporate relations between a company and its participant (founder, shareholder), including a former participant, and between the participants (founders, shareholders) related to the establishment, activity, management and termination of the company Negative arbitrability

  6. Introduction into the Commercial Procedural Code of the prohibition of the arbitrability of corporate disputes in March 2009 formalized the court practice previously summarized by: • The Recommendations of the Presidium of the Supreme Commercial Court of Ukraine No.04-5/1 of 28 December 2007 “On Practice of Legislation Application in the Disputes Arising out of Corporate Relations” (a broad prohibition of the resolution of corporate disputes in arbitration relating to a Ukrainian company) • The Resolution of the Plenum of the Supreme Court of Ukraine No.13 of 24 October 2008 “On Court Practice of the Corporate Disputes Consideration” (specification that disputes arising out of corporate management of a company registered in Ukraine are non-arbitrable) Non-arbitrability as a tool against corporate raiders – a two-year war

  7. Since 18 June 2009, turnover of shares are [expressly] NOT deemed to be relations concerning the activity of the company and its corporate management Share purchase agreement is arbitrable ISthere still any room for arbitration ?

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