Ukraine should remain a gas transit country, President of the European Commission Ursula von der Leyen said at a press conference in Kyiv.
“It is clear and constant for the European Commission Ukraine is and must remain reliable gas transit country,” the European Commission’s president said.
A diagnostic and treatment center with an ambulance substation was opened in Kyiv by the Adonis medical group.
According to a press release from Adonis, the new clinic will receive both adult patients and children around the clock, in the 24/7 mode. It will also have a center for children and adults, a diagnostic department (CT, MRI, X-ray, dental computer-aided tomography, ultrasound), a laboratory, a women’s consultation, a surgical department for adults and children, dentistry for children and adults, a department of oncology with oncosurgery, and a department of orthopedics and traumatology.
As reported, the Adonis medical group launched its own ambulance service in 2021.
Adonis is a network of private full-cycle medical centers for adults and children.
The private clinic Adonis was established over 20 years ago. Its network includes ten branches in Kyiv and the region, including two of its own maternity hospitals and a stem cell laboratory. In the branches of the clinic, doctors conduct appointments in 60 medical directions.
Head of the State Agency for Tourism Development Maryana Oleskiv believes that tourist facilities of state importance should be transferred to local communities and state subventions should be allocated for their development. “The most important thing is that today every community leader, developing a strategy for a long-term period of seven years, understands the significance of a historical monument, understands the importance of any objects located on their territory, that this is primarily an opportunity for their development,” Director General of the Regional Policy Directorate at the Ministry for Communities and Territories Development Viktor Podorozhniy said at a press briefing on Tuesday in Kyiv.
According to him, communities do not need large investments for such a process, at the same time, coordination of local authorities, business and central authorities is needed.
“When we talk about territorial communities, then, indeed, some objects are state-owned with different subordination, there are municipal facilities, and there are also state-owned, but regional ones,” Oleskiv said.
According to her, this leads to a number of problems, as all these objects are part of the tourist route, and there is no interest for a tourist to come there and these objects to earn money.
“Therefore, the issue of decentralization and development of communities, if we are talking about such objects that have state subordination, must still be transferred to communities, if they are not strategic state objects, and we should think about some subventions for their development,” Oleskiv said.
According to her, it is necessary in each individual case to stimulate development and attract tourists, without harming such objects.
Ukrainian banks’ cash exchange rates on 12/10/21
Source: Interfax-Ukraine
International arbitration proved to be thorough, efficient, trustworthy, and, thus, attractive mechanism of dispute resolution. The story, however, rarely happy-ends with obtaining an arbitral award in favour of either party. Quite often the succeeded party needs to go through recognition and enforcement proceedings in the national courts to restitute its violated rights. Such recognition and enforcement proceedings frequently become even more interesting battle terrain and create preclusive case-law in this sphere.
State’s Immunity
The decision of the Ukrainian Supreme Court issued on 25 January 2019 in case Everest Estate LLC and others v Russian Federation[1] was widely covered and discussed both in Ukrainian and foreign arbitration communities. And it is no surprise since in the said decision the Supreme Court for the first time dealt with the issue of the state immunity and enforcement of investment arbitral awards against foreign state’s assets located in Ukraine.
As a general rule a state has an immunity from a) a lawsuit against it, b) interim relief, c) enforcement of a court decision against it. This “absolute” state immunity, however, was shattered by the Supreme Court in its decision in Everest Estate LLC case.
Everest Estate LLC and others applied for recognition and enforcement of the UNCITRAL arbitral award rendered with respect to the expropriation of their property and real estate in the Crimea by the Russian Federation. The recognition and enforcement of the award was sought in Ukraine where the assets of the Russian Federation were allocated against which the enforcement could be levied. The court of the first instance granted the enforcement of the arbitral award but left out the issue of state immunity of the Russian Federation.
Having reconsidered the case the Supreme Court dealt with the state immunity of the Russian Federation and found that consenting for the arbitration under Ukraine-Russia bilateral investment treaty (BIT) which provides for contracting states’ obligations to recognize the finality and binding effect of an arbitral award rendered in any dispute arising from the BIT, the Russian Federation ipso facto waived all its jurisdictional immunities.
The case became notable since the Ukrainian court nearly stripped off the absolute immunity of the state and allowed recognition and enforcement of the arbitral award against Russia’s assets located in Ukraine.
Recognition and Enforcement of Emergency Arbitral Awards
Another investment arbitration case JKX Oil & Gas PLC & Others v Ukraine made quite a stir in arbitration community in Ukraine and abroad but not just because of the final award rendered in favour of the investors but in relation to the emergency arbitrator interim award. In fact, this was the first case where the Ukrainian Supreme Court considered the issue of enforceability of the emergency arbitral award in Ukraine.
In January 2015 the appointed emergency arbitrator rendered an interim award by which ordered Ukraine to refrain from collecting gas production royalties from the investors at the rate exceeding the previously applicable fee. JKX Oil & Gas PLC & others applied to the Ukrainian court for the enforcement of emergency arbitral award in Ukraine.
Despite the fact that the Ukrainian courts of first and appeal instances granted the recognition and enforcement of the emergency award, the Supreme Court’s position was the opposite. In particular, the Supreme Court found that enforcement of such interim award would have been contrary to the public policy of Ukraine and be considered as interference in the Ukrainian tax legislation and legislative activity.
Remarkable, that the issue of the finality of the emergency arbitral award was not considered by the Supreme Court at all. Under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the “New York Convention”) the recognition and enforcement of the award may be refused inter alia if the award has not yet become binding on the parties. Thus, by not inferring to the issue of the finality of the emergency arbitral award the Supreme Court indirectly construed that arbitral interim measures are enforceable in principle under the New York Convention.
Sanctions as Public Order
In 2014 the legal environment in Ukraine was highly affected by the illegal annexation of the Crimea and Russian hostilities in the East of Ukraine. A vast range of economic sanctions were introduced by Ukraine in response to the Russian aggression and, thus, lots of overseas contracts concluded by the Ukrainian companies with Russian sanctioned counterparties defaulted. This gave a rise to multiple arbitration claims brought by Russian companies against Ukrainian entities. As a result, Ukrainian courts faced the problematics of recognition and enforcement of arbitral awards amidst special economic sanctions. економічних санкцій
In cases PJSC “Avia-FED-Service” v State Joint-Stock Holding Company “Artem” two different approaches were taken by the Ukrainian court with respect to granting recognition and enforcement of the arbitral awards rendered in favour of sanctioned Russian companies.
In first case[2] the Ukrainian Supreme Court considered the issue of sanctions and public policy of Ukraine and granted recognition and enforcement of the Russian ICAC award in Ukraine. In particular, the Supreme Court found that sanctions are not part of public policy and thus did not preclude recognition and enforcement of the arbitral awards issued in favour of the sanctioned companies in Ukraine.
In the second case[3] the position of the Supreme Court was quite the opposite. During the cassation review of the case the Supreme Court overruled the decisions of the courts of lower instances and refused recognition and enforcement of the Russian ICAC arbitral award in Ukraine. In its considerations the Supreme Court took into account the legal nature of PJSC “Avia-FED-Service” (the claimant) being the entity directly related to the Russian military enterprises and the fact that further enforcement of the Russian ICAC award would be for the benefit of the aggressor-state enterprises.
In its deliberations the Supreme Court assessed also the issue of further enforcement of the arbitral award in Ukraine which in fact would have been impossible in the circumstances of the imposed sanctions. The Supreme Court inter alia found that “sanctions represent one of the new aspects of the public policy in Ukraine” and, that the recognition and enforcement of the arbitral awards is within the competence of the court, but not of the enforcement authority. The Supreme Court, however, noted that the restrictive measures (sanctions) taken by Ukraine against the Russian PJSC “Avia-FED-Service” do not terminate the debtor’s obligations, nor do they make it impossible for it to comply with the Russian ICAC arbitral award after the termination of the sanctions against PJSC “Avia-FED-Service”.
The further court practice proved that the Ukrainian courts tend to follow the second approach while considering applications for recognition and enforcement of the arbitral awards issued in favour of sanctioned companies. Hence, even if such company has a favourable arbitral award it has to wait until the sanctions are lifted (if lifted at all).
The Limits of the Enforcement
Case Ostchem Holding Limited v Odesa Portside Plant (OPP) became another notable case related to granting enforcement of foreign arbitral awards in Ukraine. Ostchem Holding Limited applied to the Ukrainian court for recognition and enforcement of arbitral award against the state-owned Odesa Portside Plant (OPP). OPP was ordered to pay to Ostchem Holding Limited approximately USD 251 million under a gas supply contract.
Following success in arbitration proceedings Ostchem Holding Limited filed its application for recognition and enforcement of the arbitral award in Ukraine. While Ostchem Holding Limited succeeded in the first instance court, the appeal proceedings in the Supreme Court, however, turned to be a backblow.
In its decision issued on 8 June 2021[4] the Supreme Court refused recognition and enforcement of the arbitral award on public policy grounds. In particular, in its decision the Supreme Court found that the enforcement of the recovery of the debt and the accrued penalty under the arbitral award would make it impossible to keep OPP in a condition safe for its proper operation and, as a consequence, may threaten man-made and environmental disasters in the Odessa region (Ukraine).
The decision of the Supreme Court, though doubtful on the legal grounds, evoke though the issue of reasonable limits of enforcement of the arbitral awards against strategic enterprises and the impact of such enforcement to public interests.
The above cases became remarkable and wildly discussed in arbitration community as they set the further trends to be followed by the Ukrainian courts while considering arbitration related matters.
[1] Case No. 796/165/2018 (https://reyestr.court.gov.ua/Review/79573187)
[2] Case No. 761/46285/16-ц (https://reyestr.court.gov.ua/Review/86903591)
[3] Case No. 824/100/19 (https://reyestr.court.gov.ua/Review/87760125)
[4] Case No. 824/241/2018 (https://reyestr.court.gov.ua/Review/97736188)
Ukrainian exporters in 2021 for the first time sent one sea container with frozen raspberries to the United States and Canada. This event is important for domestic producers, since this berry is traditionally more expensive in the markets of these countries than in other regions of the world.
As reported on the website of the Ukrainian Horticultural Association (UHA) on Monday, the importance of this event for the development of production and freezing of berries in Ukraine is explained by the high level of requirements for product quality and logistics, which were successfully overcome by Ukrainian suppliers this year.
“One shipment of raspberries was sent to Canada and the United States in the amount of one sea container. The logistics took about one and a half months, and the buyer was satisfied with the quality of the supplied products and is considering the possibility of continuing cooperation with Ukrainian suppliers on an ongoing basis,” the association said.
The association said that the higher import price for berries in the United States and Canada is due to high requirements for the quality of products, for the confirmation of which Ukrainian exporters have been certified by the FDA (The U.S. Food and Drug Administration).
“The United States and Canada account for about 80% of all global imports of frozen raspberries in value terms and about 65% in physical terms. However, Ukraine has traditionally exported frozen raspberries mainly to Poland, which makes good money on the re-export of Ukrainian raspberries to other countries of the world,” the organization said, citing Economist of the Investment Department of the Food and Agriculture Organization of the United Nations (FAO) Andriy Yarmak.
According to the UHA, the United States imports frozen raspberries from Chile, Mexico and Serbia, and Canada from Chile, Serbia, the United States and Mexico.
The approximate carrying capacity of a standard 40-foot sea container is 27 tonnes.
“Accordingly, for Ukraine, which is one of the five largest world exporters of frozen raspberries, it is very important to gain a foothold in these two most important sales markets. This is especially important amid the expected growth in production of all types of berries in 2022-2024. It remains to hope that not only the volume, but also the quality of the berries produced will grow,” the association said.
According to the data on the website of the Ukrainian Agribusiness Club, in 2020 Ukraine produced 35,000 tonnes of this berry, ranking seventh in the world in terms of its production. Some 89% of this berry was grown on household farms.
Last year, Ukraine exported 539 tonnes of raspberries, which is 2% of its total production. At the same time, Poland was practically the only consumer of Ukrainian fresh raspberries.
