AGA Partners successfully represented a Dubai trading company in a dispute with a Kazakhstan company resolved in arbitration. The dispute arose based on a contract for the supply of barley on the basis of the FOB ("Free On Board") amounting to a total value of almost USD2 million.
The seller was obliged to load the goods on a vessel in the port of Aktau, Kazakhstan, but was unable to deliver the goods to the port due to force majeure arisen from congestion of wagons at the railway caused by adverse weather conditions.
The key issue in the dispute was whether the circumstances in which the seller failed to perform the contract were force majeure under English law applicable to the contract.
The arbitrator did not qualify the circumstances the seller referred to as force majeure, since the seller was able to deliver the goods to the port by road.
In order for certain circumstances to be recognised as force majeure and release from the obligation to perform the contract, the party must prove the absence of an alternative way to fulfil its obligations. We demonstrated that the seller had the opportunity to deliver the goods by means of transport other than rail and perform the contract.
AGA Partners team secured full satisfaction of the client’s claims of over USD100,000.
AGA Partners successfully represented an English trading company in a dispute with a Georgian manufacturing company resolved in arbitration. The dispute arose based on a contract for the supply of flour to the port of Batumi, Georgia amounting to a total of over USD700,000.
The buyer refused to comply with the contract as he believed that the latter was not concluded. As a result, the client suffered significant losses and resorted to London arbitration.
The buyer signed the contract and sent it to the client, but subsequently changed his mind and revoked the signed contract. Despite the revocation, the client signed the contract and sent it to the buyer in response.
The arbitrator found that the contract was concluded given that both parties did not establish any time limits for its signing.
The decision in the case shows that a contract can be concluded even if it was not signed by both parties. When deciding in favour of the existence of the contract, arbitrators take into account, in particular, the absence of time limits established by the parties for its signing and the time interval between the withdrawal and acceptance of the proposal.
AGA Partners team proved that the parties did conclude the contract and secured full satisfaction of the client’s claims of over USD100,000.
AGA Partners successfully represented a Ukrainian state-owned company in a dispute with a Swiss company in arbitration. The dispute arose based on USD2 million contracts for the supply of commodities.
For several months, our client had been shipping goods to various countries, including Tunisia, Morocco, Egypt, Philippines, and Bangladesh, in accordance with the buyer’s instructions. The buyer received all the goods but did not pay the full price for the goods shipped.
The case was quite complicated since the Swiss buyer was not the ultimate recipient. Accordingly, all the goods delivered under the contracts to the Swiss company were actually delivered to other companies specified as ultimate recipients in the shipping documents.
When establishing whether the goods were actually delivered under a particular contract, arbitrators pay particular attention to the wording of shipping documents. Through numerous evidence, we were able to prove in arbitration that despite the wording of the shipping documents, the goods were actually delivered under contracts concluded with a Swiss buyer, who is obliged to pay the full price.
After several months of proceedings, the arbitrator fully satisfied our client’s claim covering a total of more than USD1.7 million.
AGA Partners successfully represented the honoured coach of Ukraine in dispute with Ministry of Youth and Sports. The court upheld AGA Partners claims in full and cancelled the Ministry's wrongful decisions, thereby upholding the decision to support Iryna Zubko's candidacy.
As a result of a long dispute, the final goal was achieved: the Ministry of Youth and Sports of Ukraine (the “Ministry”) gave Iryna Zubko a sports title for training a high-class athlete. Iryna is the first coach of Danyil Boldyrev, a Ukrainian climber, Honored Master of Sports, champion and world record holder, winner of numerous international competitions.
Back in October 2017, the commission of the Ministry supported the candidacy of a coach for awarding her the title of Honored Coach of Ukraine. However, after the intervention of the Mountaineering and Climbing Federation of Ukraine (the “Federation”), the commission of the Ministry cancelled its previous decision and refused to assign Irina a sports title.
AGA Partners requested the court demanding to admit the decisions of the Ministry unlawful and cancel it.
The court reached the conclusion that the first decision of the Ministry’s commission, adopted in October 2017, was not a subject to review due to the absence of a procedure legally prescribed for this and, accordingly, is final. The court also confirmed that the absence of a Federation opinion is not a legitimate reason for refusing to award the sports title Honored Coach of Ukraine.
As a result, the court fully satisfied the claims of AGA Partners and cancelled the disputed decisions of the Ministry, thus keeping in force the first decision of the commission. Today, the court decision has already been executed by the Ministry - on the basis of the commission’s first decision, Iryna Zubko was awarded the sports title Honored Coach of Ukraine.
This court decision is clearly not stereotyped and ordinary. This case demonstrates that not only the decision of the state body, but also its structural units can be final, and therefore can be changed or cancelled in the manner prescribed by law. We hope that this decision will be used as a precedent to consolidate the principle of legal certainty.
AGA Partners successfully represents English trading company in GAFTA arbitration. AGA Partners secured a favourable award to the client in a dispute at the GAFTA arbitration for a total amount of more than EUR1,500,000.
As agreed by the parties under the contract of sale, our client delivered the goods to one of Iranian ports on C&F (cost and freight) basis and should have been paid within 10 days after delivery of goods to port warehouse.
However, upon delivery, final receiver posessed the goods without original B/Ls and seller’s approval. Buyers informed that no goods were in fact delivered and the port warehouse was empty. The buyers refused to pay for the goods and demanded back 50% pre-payment and damages, reaching EUR3,000,000 in total.
Given the complexity of the situation, our client was forced to initiate criminal proceedings in Iran against buyers holding them liable for fraud and, at the same time claimed the balance price of the goods in GAFTA arbitration.
Particular difficulty was that buyers argued that our client was obliged to deliver the goods to the port warehouse and secure its receipt by buyers Nevertheless, our team successfully proved that the client’s obligation and risk of loss terminated when goods passed the ship’s rail. Thus, the Tribunal dismissed the buyer’s counterclaim and awarded our client full contract price together with damages.
Unquestionably, C&F contracts may be modified in accordance with the parties’ consent. Such modifications, however, do not change the essence of the obligations and, most importantly, do not influence the risk allocation.
The GAFTA Board of Appeal satisfied in full the Client’s claim of approximately USD150,000 seeking compensation for damages specified in a washout agreement that were caused by the failure to comply with the contract.
A washout agreement is a settlement agreement by which a party seeks to terminate the contract, without declaring a default, with compensation paid by the party who refuses to fulfil the contract. Typically, the compensation is the difference between the contractual price of the goods and the market price of the goods on the day of such a refusal.
The question of whether the parties concluded a washout agreement arises more and more often in trade disputes and has become the “cornerstone” of the case.
Our biggest challenge was that the parties discussed the agreement verbally through brokers. In addition, there were no formal labour or contractual relations between the representative of the counterparty and the company represented by him. These circumstances served as a ground for the counterparty to challenge the conclusion of the contract.
However, English law is flexible as to the form of a contract, which can be concluded either verbally or in writing using all possible means of communication. The authority of the company’s representatives is presumed in English law. That is why the existence of formal labour relations or other corporate restrictions in no way affects the possibility of concluding a contract.”
The AGA Partners team successfully proved that the parties had actually agreed the washout agreement verbally through the broker. Furthermore, arbitrators confirmed the general position of English law that any person who represents a company may enter into a contract, regardless of his or her position in the company and the existence of formal labour relations.
AGA Partners secured a favourable award for the client in the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry (“ICAC”) for a total amount of almost USD200,000.
AGA Partners represented a major international inspection company (“Surveyor”) in a dispute against a global oil trading company, which refused to pay for the Surveyor’s services. The claim concerned a debt collection for the provided services. However, it was further complicated by the counterclaim on the scope of the Surveyor’s obligations and the proper provision of its services.
In particular, the respondent raised arguments on improper sampling and the Surveyor’s liability for unsatisfactory cargo quality, claiming around USD200,000.
Indisputably, surveyors cannot be held liable for the quality of the cargo. The scope of the surveyor’s obligations is limited to the inspection of the cargo’s quality at loading in accordance with the client’s instructions and the issuance of corresponding quality certificates. Should the tribunal favour the respondent’s position, it would set up a dangerous precedent for surveyors companies and the inspection services market. We are certain that the success of the counterclaim would leave the agricultural market in uncertainty as to the limits of liability of inspection companies.
Nevertheless, during the written submissions exchange stage and oral hearings our team proved that the Surveyor cannot be held liable for the inappropriate quality of the cargo delivered by the shipper, if the Surveyor’s obligations were duly performed. As a result, the tribunal dismissed the counterclaim and satisfied our client’s demands.
AGA Partners successfully represented the client's interests in GAFTA arbitration in the dispute with a Swiss trading company.
As the result of 8 months long arbitral proceedings, the tribunal satisfied demands of our client in full, for a total amount of over USD200,000.
The decision is extremely interesting for understanding current trends in international agricultural commodities trade. In particular, it covers a detailed model for calculating compensation of damages resulting from the refusal to execute the contract.
The key complexity of this case lied in proving the tribunal’s approach towards calculating the amount of damages. This had a direct influence on the commercial component and compensation, which fluctuated between USD50,000 and 200,000.
The worst case scenario favours the defendant and could result in a minimum amount awarded to our client. This would happen if the arbitrator calculated the damages according to the general rule – on the day after expiration of the delivery period under the contract.
The defendant also provided alternative calculation models, which were dissatisfactory to our client.
Fortunately, our team was able to persuade the tribunal that an on-going negotiations between the parties, despite the formal expiration of the contract, allow to deviate from the general calculations rule and extend the term, which directly affects the increase of damages.
Eventually, the arbitrator satisfied the maximum possible amount in our client's favour by considering all the special aspects of the case.
AGA Partners represented a Swiss Company (“Claimant”) in GAFTA arbitration dispute under CIF sale contract with an Egyptian company (“Respondent”) regarding compensation of damages in the form of demurrage and interest for the late payment for the goods.
Through these proceedings, AGA Partners established a new practice of representing clients in GAFTA arbitration disputes, which are resolved by a sole arbitrator.
The dispute concerned correct calculation of laytime and responsibility for demurrage. The calculation of the incurred demurrage depended on who is responsible for the suspension of discharge of the goods.
While deciding upon this case, the decisive factors were specific acts and instructions of each party, since the party who gave direct instructions to suspend the discharge will be held liable. It should be noted that in the present case, the Claimant had not instructed to suspend the discharge, but did warn the Respondent about such consequences, which may incur if the Respondent fails to provide the payment.
After analysing all factual circumstances of the case, the arbitrator held that the discharge was suspended by the instructions of the Respondent, which misunderstood the situation, and, consequently, is liable for damages, which incurred thereafter.
This case once again demonstrates that in contracts governed by the English law, each word from the correspondence between the parties is important. Liability of the parties is established after overall examination of negotiations, correspondence, and acts of each party.
In his award, the arbitrator highlighted that despite the information provided in Statement of Facts (SOF), it was suspended by the Respondent and not the Claimant. Therefore, the arbitrator held the Respondent liable for demurrage incurred due to suspending the discharge. Additionally, the arbitrator obliged the Respondent to pay the Claimant the statutory interest for the late payment for the goods.
As a result, the arbitrator has awarded to satisfy the Claimant’s demand for the compensation of damages.
AGA Partners team was led by Senior associate Dmytro Koval and associate Leila Kazimi, under the supervision of Partners Ivan Kasynyuk and Iryna Moroz.
The judgment of the Supreme Court will bring a new approach to dispute resolution related to international child abduction and will become a judicial precedent in Ukraine. The Supreme Court provided the first-ever clarification on the procedure for dispute resolution related to international child abduction, application of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“1980 Convention”), and interpretation of criteria for refusal to return a child to the state of permanent residence.
The Ministry of Justice of Ukraine filed a claim in early 2013. Over the last years, this case was repeatedly reviewed by Ukrainian courts of all instances, including the Supreme Court.
AGA Partners prepared a cassation appeal and a request seeking the renewal of the term of cassation appeal that were filed on behalf of the client with the High Specialised Court for Civil and Criminal Cases in early 2017. However, due to the judicial reform, it was late August 2018 when the new Supreme Court made its final decision.
Thus, the Supreme Court has rightfully held that the primary focus of the above 1980 Convention is that one parent or family member cannot independently decide to change the child’s place of permanent residence. The Court also noted that the child’s place of permanent residence is of major importance in restoring the status quo since the illegal removal or retention of the child violates the child’s rights and interests, as well as the right (custody right) of the parent without whose consent the child was taken from the country of habitual residence.
The Supreme Court also highlighted that when considering the issue on returning the child to the home state, the issue of defining a person who will have custody rights in the future is not resolved. The issue of custody rights to be granted to one or both parents falls within the jurisdiction of competent authorities of the child’s country of permanent residence before the relocation.
The Supreme Court also provided official interpretation as to the application of Articles 8, 12, and 13 of the 1980 Convention, thus, shaping a new perspective on this issue in Ukraine.
AGA Partners team was led by Senior associate Oleksandr Gubin under the supervision of Partner Iryna Moroz.
Announcing the results of an annual research of one of the most influential international ratings Best Lawyers became a pleasant news for the whole AGA Partners team.
Our partners were ranked in two practices!
Aminat Suleymanova, managing partner, entered the top-list of lawyers in Arbitration / Mediation and International Arbitration Practices, Ivan Kasynyuk, partner, - in Arbitration and Mediation, and Irina Moroz, partner, - in the practice of International Arbitration.
We are grateful for high appreciation and will move furher!
5-6 June in Kyiv AGA Partners jointly with Gafta: The Grain and Feed Trade Association held a two-day training course "Commodity dispute resolution".
During the course, the participants were able to deepen their knowledge of trade rules according to the English law, draw their attention to important aspects of drafting a contract and learn about the peculiarities of arbitration procedures in GAFTA.
"The mountain does not seem unapproachable, if you look from its top."
We are pleased to announce that AGA Partners have signed an agreement on legal assistance with the World Champion and record-holder in High-Speed Climbing Danyil Boldyrev within the framework of the project "Legal Aid to Sport in Ukraine"
We hope, our cooperation will contribute Denis to achieve new sports peaks, and will help us to achieve, of course, legal peaks.
After all, our emblem is in the shape of a mountain no by accident!
Trade with countries, which are under the sanctions, is one the most discussed topic among traders these days.
Today, at the meeting of the UBA Committee on International Law, the participants discussed ways of Ukraine's trade cooperation with Iran and ways to minimize risks in establishing legal relationships between Ukrainian and Iranian companies.
Aminat Suleymanova, Managing Partner of AGA Partners acted as a moderator of the event, and Olga Kuchmienko, lawyer of AGA Partners and representatives of State bodies that regulate trade relations between Ukraine and Iran acted as a speakers.
AGA Partners is the best law firm in the International Trade according to the results of the Legal Award 2018.
In addition, we entered the TOP-5 in three practices: Agribusiness, Arbitration and Family Law. Ivan Kasyunyuk entered the TOP-5 lawyers in the Arbitration practice.
At such moments of recognition, we spread our wings are ready to move on further, higher and faster!
Thanks to the Yurdychna Praktyka team for the high praise, and we continue to work
«From Volume to Value».
Ivan Kasynyuk, partner of AGA Partners, acted as speaker at the XV International Conference "Black Sea Grain 2018". Ivan told the guests about the legal aspects of profit protection in agribusiness and shared with the traders the secrets of successful trade according to GAFTA standards.
"Black Sea Grain" Conference – is an international platform aimed at discussion of topical issues and prospects of the global and Black Sea agri commodity markets. “Black Sea Grain” Conference offers participants an excellent environment to find out the latest drivers of agricultural market, adjust business strategies in a rapidly changing world and get new valuable contacts with global operators of agri business.