Our managing partner Aminat Suleymanova spoke at Law&Trade A2B Forum on September 11 with the topic ′′English law for Ukrainian exporters′′ and told how to put up a profitable export contract for the supply of grain and oil.

AGA Partners has successfully represented the client, one of the biggest retail companies in Ukraine, in the arbitration against UAE trading company in a complicated dispute arising under the trade contract governed by English law.

The buyer failed to pay for the cargo, alleging that the cargo was not delivered and custom cleared according to their instructions. The important aspect of the case was that the parties were the intermediate seller and buyer in the long chain of CPT contracts, passing instructions down the string, while the cargo was physically delivered to the final receiver and custom cleared according to its instructions.

AGA Partners provided comprehensive explanations and evidence that the client fully performed its CPT delivery and customs clearance obligations.

Being convinced by AGA Partners’ arguments, arbitrators found the buyer liable to pay the full contract price, liquidated damages, interest and all arbitration costs. As a result, the tribunal satisfied in full the client’s claim of approximately USD550,000.00.

Partner Iryna Moroz gave the following comments on this matter:

"The case concerns complicated issues as to the delivery of the cargo, the retention of title and export formalities in the chain of transactions under English law, when the majority of parties within the chain are simply exchanging documents rather than actually being involved in the physical handling of the goods contracted."

The AGA Partners team was led by partners Iryna Moroz and Ivan Kasynyuk, with support from senior associate Iurii Gulevatyi and associate Viktoriia Tolochko.

AGA Partners successfully represented a major oil extraction plant in a dispute with a Turkish company in London arbitration. The dispute arose under USD4 million contract for the supply of sunflower oil to Egypt.

Our client has duly fulfilled his contractual obligations, but the respondent did not pay the full price for the delivered goods.

The case was complicated by the fact that the client had no control over the original documents as they were presented to third party and the goods were discharged by that time. Our client was simply unable to return the unpaid goods and had no other choice but to bring an action for the price in arbitration.

Usually, in the above circumstances a seller is simply unable to resell the goods on the market or to implement any other actions to return the unpaid goods. Accordingly, our client had no other choice but to bring an action for the price before the arbitration. Within this arbitration process, our team of lawyers has managed to provide the arbitral tribunal with all necessary evidence, proving that the client fulfilled all its contractual obligation and was entitled to the full price for the delivered goods.

After several months of proceedings, the arbitral tribunal fully satisfied our client’s claim covering a total of more than USD1 million plus arbitration fees and expenses as well as legal costs.

The AGA Partners’ team was led by partners Iryna Moroz and Ivan Kasynyuk, senior associate Iurii Gulevatyi, and associate Dmytro Izotov.

This dispute arose under a sale contract due to a cargo quality claim with value of over USD2,000,000.00. Complication of the proceedings was caused by guarantee obligations contained in a contract that gave rise to three separate arbitrations: under the sale contract, guarantee obligations and sub-sale contract.

The Buyer purported to deny the finality of quality certificates issued at the loading port, based on an alleged fraud taken together with the following arguments: non-compliance of the goods with contractual description, non-satisfactory quality of the goods and non-fitness of the goods for an intended purpose under the Sale of Goods Act 1979.

It took several years for a first-tier tribunal and, subsequently, for an appeal board to consider the dispute due to its complexity, caused by concurrent arbitration proceedings against the final receiver, significant amount of evidence, involvement of numerous experts and witnesses to determine the quality of the goods delivered.

After complex and protracted arbitration proceedings, the appeal board ultimately rendered a final award fully in favour of the Client of AGA Partners, upholding the first-tier award. In particular, the appeal board dismissed all buyer’s claims and confirmed finality of quality certificates, issued at loading.

The arbitrators’ reasoning has an important impact on stability of international trade of commodities. The awards of both tribunals are clearly based on English law approach favouring finality and binding force of quality certificates, unless they were procured due to fraud or manifest error, putting on a challenging party a respective burden of proof.

The AGA Partners team was led by partner Iryna Moroz, with support from senior associates Ievgen Boiarskyi and Iurii Gulevatyi, and associates Viktoriia Tolochko and Iryna Ivanova.

Our managing partner Aminat Suleymanova will give a lecture on "Civilized separation" the main role of a lawyer in successful negotiations between business partners" as a part of the course "Speechmaking guide for a lawyer" organized by Legal High School.

Dear Friends, join us, it will be interesting!

Details here: https://lhs.net.ua/ua-speechmaking-hid-dlia-advokata/?fbclid=IwAR26zrbQqtMm6zyt-g_4XnMSAWuoxyEenXRI6mHaJNn9ktAy2pucr0qFlTY

According to the results of the annual legal rating "Ukrainian Law Firms. A Handbook for Foreign Clients 2020" our team together with colleagues from Avellum was recognized in 5 practices: Agribusiness, International Trade: Commodities, International Arbitration, Family Law and Maritime&Shipping.

Managing partner Aminat Suleymanova and partner Iryna Moroz have been included in the list of the best lawyers at Family Law. Also partners Ivan Kasynyuk and Iryna Moroz took 1st and 2nd places respectively in the practice of International Trade: Commodities and were noted among the leading lawyers in the areas of International Arbitration and Maritime&Shipping.

Ukrainian Arbitration Association (UAA) launched the Database of Arbitrators suitable to sit in Ukraine-related international arbitrations effective 8 July 2020. Our partners Aminat Suleuymanova, Iryna Moroz and Ivan Kasynyuk through their longstanding and unique experience in dispute resolution were included in the Arbitrators list. Congratulations! ✅

Link to the Database of Arbitrators: http://bit.do/fGz8j

According to a study conducted by Yurydychna Gazeta "Ukrainian Women in Law 2020", AGA Partners have traditionally been ranked among the most successful female lawyers. Managing partner Aminat Suleymanova was included in the TOP - 3 women who influenced the development of the legal business in Ukraine, partner Iryna Moroz - in the list of the most successful lawyers of Ukraine. 

Thanks to our colleagues and Yurydychna Gazeta for their appreciation - this recognition is extremely important!

Ivan Kasynyuk, Partner at AGA Partners, was recognized as a “Lawyer of the Year” in the field of arbitration according to the Legal Award 2020, organized by the "Yuridicheskaya Praktika".

The dispute arose out of the contract for the delivery of agricultural products on FOB terms, the port of Aktau, Kazakhstan, with a total value of almost 3 million US dollars. The goods were to be delivered in several lots.

The buyer did not make full payment for the two delivered lots of goods. At the same time, the buyer  counterclaimed damages, accusing the seller of non-delivery of the rest of the goods. The buyer claimed that the seller, allegedly not having the goods ready for loading at the agreed port, prevented the buyer from nominating and presenting the vessels for the remaining lots.

The arbitrators reached the conclusion that the FOB seller’s obligation to deliver the goods on board of the vessel is only activated once the FOB buyer presents the vessel. So, the Seller was not required to confirm the availability of goods before the arrival of the vessel, as long as he is able to deliver the goods upon arrival of the vessel at the port.

The decision in the case clearly demonstrates the usual rule in the grain trade: the FOB buyer should be the first to begin the execution of the contract, in particular, he must nominate the vessel and present it to the loading port of. The FOB seller, as a rule, is not obliged to confirm the nomination and the availability of the goods until the moment of arrival of the vessel.

The AGA Partners team has proven the client’s position in arbitration. As a result, the claim for debt collection was fully satisfied. The buyer's counterclaim for damages was rejected.

AGA Partners team was led by partner Ivan Kasynyuk with the support of senior associate Iurii Gulevatyi and associate Yelyzaveta Holovan.

We are pleased to welcome the partner of AGA Partners Ivan Kasynyuk with the title "Lawyer of the year" in the field of commercial law according to the Best Lawyers rating. Ivan also was included in the list of the best in the practice of arbitration and mediation and international arbitration.

AGA Partners successfully represented a Swiss agri-trading company (“Buyer”) in a London-based commodity arbitration initiated by one of major Ukrainian agricultural holdings (“Seller”). The dispute arose based on an Ex Works sale contract and concerned an alleged failure of the Buyer to make a payment.

The contract incorporated a hybrid arbitration clause, which provided for dispute settlement in a major world arbitration forum in London in accordance with the rules of a different arbitration forum.

The parties took opposite views on which arbitration forum was more appropriate to hear the dispute. The Seller claimed that the choice of arbitration rules was decisive, whereas the Buyer insisted on the priority of choice of an arbitration forum.

The Tribunal considered the parties’ submissions and found that the arbitration clause was defective. It contained mutually exclusive terms that could not be enforced in full. The Tribunal decided to give force to the terms of the arbitration clause, which expressed the parties’ choice of an arbitration forum. The reference to rules of the commodity arbitration, where the proceedings took place, was ambiguous compared to the reference to an arbitration forum. Consequently, the Tribunal found that the ambiguous reference to arbitration rules did not confer it with jurisdiction to consider the dispute on its merits.

This case has proven that defective arbitration clauses create serious risks. A hybrid arbitration clause, being one of them, provides a defendant with an opportunity to defend his case by way of challenging the jurisdiction of a particular arbitration tribunal and/or validity of an arbitration award, once rendered on merits. We strongly advise our clients to avoid such risks and use model arbitration clauses, offered by most institutional arbitrations in the world.

AGA Partners team was led by Ievgen Boiarskyi, senior associate, under the supervision of partners, Ivan Kasynyuk and Iryna Moroz.