The list includes 115 arbitrators from 39 countries who are the leading practitioners and most respected academicians recommended in arbitration by reputable international legal rankings, including Chambers and Partners, The Legal 500 and Who's Who Legal.

The Claimant filed a lawsuit against a Chinese corporation, claiming that the agreement for a bank guarantee was invalid and any disputes arising out of the guarantee are to be settled under Ukrainian law at Ukrainian courts. However, such a position was contradicted by the fact that the bank had signed an arbitration agreement, which provided that English law applies and disputes should be resolved under ICC Arbitration Rules.

As a result, the first instant court remained the claim without consideration, because the parties had agreed to settle any disputes through arbitration instead of going to court.

Nevertheless, the appeal court overturned the previous court's decision, stating that one of the defendants was in bankruptcy proceedings, therefore the dispute is non-arbitrable and shall be considered by the Ukrainian court.

Disagreeing with this outcome, AGA Partners filed a cassation to the Supreme Court, drawing attention to the fact that the appeal court wrongly ignored the binding arbitration clause, under which arbitration proceedings had already been initiated. This violated the Law of Ukraine "On International Commercial Arbitration" and the Commercial Procedure Code of Ukraine (hereinafter referred to as the "CPCU"). The appeal court also made a mistake in concluding that the dispute under the guarantee in non-arbitrable.

The Supreme Court upheld our client's position and completely overturned the appeal court's decision, leaving the first-instance court's ruling in force. The Supreme Court noted that:

"...the appeal court erroneously prioritized individual provisions of national law over the provisions of valid international treaties of Ukraine in the disputed legal relations, and unjustifiably interpreted the absence of special provisions regarding the implementation of an arbitration agreement by the debtor in a bankruptcy case as a basis for applying analogies of law instead of applying the mandatory provision of Article 226, Part 1, Section 7 of the CPCU".

It is an important decision, demonstrating the court’s support for arbitration dispute resolution in Ukraine. The decision of the Supreme Court can be found at the following link.

The AGA Partners team was represented by partner Iryna Moroz and senior associate Olena Sibirtseva.

To start the new year with good news - our colleagues have been elected to the councils of the Ukrainian Bar Association's committees:
 
Olena Sibirtseva - Head of the UBA Committee on Civil, Family and Inheritance Law
Oleksandr Gubin - Member of the UBA Committee on Civil, Family and Inheritance Law
Iryna Moroz - Member of the UBA Committee on Alternative Dispute Resolution
Ivan Kasynyuk - Member of the UBA Committee on International Trade Law
Pavlo Lebedev - Member of the UBA Committee on Agrarian Law
Viktor Pasichnyk  - Member of the UBA Committee on Agrarian Law
Anastasia Shevchuk - Member of the UBA Committee on Agrarian Law
 
Thank you for your support!

Aminat Suleimanova, Managing Partner of AGA Partners, was recognized among the TOP-100 best lawyers in Ukraine.

AGA Partners lawyers were also recognized in four practices:

• International Arbitration - Managing Partner Aminat Suleimanova and Partner Iryna Moroz;
• International trade - Partner Ivan Kasynyuk;
• Family law - Managing Partner Aminat Suleimanova and senior associate Olena Sibirtseva;
• Sportsl Law - Senior Associate Dmytro Koval.

We are grateful to Yurydychna Hazeta for the research and our colleagues for the recognition!
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Based on the research conducted by Yurydychna Hazeta, Ukrainian Women in Law 2023, Managing Partner Aminat Suleymanova has been recognized as one of the top 5 women leaders who have significantly influenced the development of the legal community. Additionally, Partner Iryna Moroz has been included in the list of women leaders in the legal market.

AGA Partners and Managing Partner Aminat Suleymanova are recognized among the leaders in International Arbitration and International Trade Law according to the results of the research conducted by the Ukrainian Advocates' Association (UAA)

AGA Partners' Partner Iryna Moroz has been included in the list of TOP-10 Ukrainian lawyers in Dispute Resolution in 2023 according to the online business news platform Business Today

The platform provides its readers with the latest updates and information on a wide range of topics related to the business world.

In this case, the seller undertook to supply 25,000 mt of Ukrainian corn and wheat in October 2022 under two CIF contracts.

From 29 October to 2 November 2022, russia suspended its participation in the Grain Deal. Because of this situation, the seller referred to the blockade of the grain corridor and requested a free extension for the later performance of the contract. The buyer did not accept that request and the goods were not eventually shipped within the agreed period.

In these circumstances, the buyer declared the seller in default for the failure to perform the contract and initiated arbitration to recover damages. 

The seller’s main defence was that force majeure excused it from liability for the breach. The arbitral tribunal held that there was no force majeure for the following reasons:

• The contracts were concluded more than six montns after the russian invasion. The seller assumed the possibility of delays and should have planned for this in advance of the shipment period.
• To take advantage of a force majeure clause, the seller had to make a clear reference to the force majeure event. Instead, it merely requested a free extension in its letter.
• The seller did not prove that there were issues with the cargo and difficulties with vessels.

On this basis, the arbitrators awarded our Turkish client ~USD 1,300,000 in damages.

This case vividly illustrates that obstacles to contract performance might be treated as force majeure only if they directly prevent the shipment of the goods. Mere difficulties (even grave ones) will not suffice. 

The client was represented by partners Ivan Kasynyuk and Iryna Moroz as well as by senior associate Pavlo Lebediev.

And the waiting is over! But… whether the government’s decision resolves the existing issues? 

On 31 October 2023, the Cabinet of Ministers of Ukraine issued Resolution No. 1132 "On the Implementation of an Experimental Project on the Verification of Subjects of the Agro-Industrial Complex under Martial Law" (“Resolution”). This act fundamentally changed the procedure for the export of agricultural goods from Ukraine.  

In plain words, the Resolution provides that only legal entities that are included in the verification list of Ukrainian exporters and meet the established criteria are entitled to export agricultural products. All procedure of verification is carried out by Ukrainian authorities. 

But, delving deeper, the established rules apply to the export of agricultural products under UKTZED codes 1001, 1002, 1003, 1004, 1005, 1201, 1205, 1206 00, 1507, 1512, 1514, and 2306. 

Thus, an exporter of the goods under the said codes must meet the following requirements: 

1. an exporter must be a VAT payer at the time of submitting an export application and as of 23 February 2022; 

2. an exporter has no tax debt for the payment “Penalty for Violation of Settlement Deadlines in Foreign Economic Activity, Non-Performance of Obligations, and Penalties for Violating Currency Legislation” (payment code - 21081000); 

3. an exporter has documentary confirmation from the bank that from 23 February 2022 to 27 October 2023, an exporter conducted at least one successful export operation with a return of foreign currency revenue; 

4. an exporter has not been subjected to a tax authority decision regarding the absence of a registered location; 

5. an exporter is not subject to the bankruptcy proceedings and is not in the liquidation. 

As an alternative to the verification procedure, the Ukrainian Government provides a licensing procedure for the export of agricultural products. 

So now, a new bureaucratic stage has been added to the export process (which is unlikely to please any of the traders) – the formation of a list of verified agricultural entities. Each of the entities that now wish to export Ukrainian agricultural products without hindrance must undergo this verification procedure. 

But whether existing restrictions and established rules can be treated as a prohibition of export or other event that exempt sellers from liability for non-delivery of agricultural products. The question is still open. 

It is not yet entirely clear how this innovation will work in practice and how realistic the requirements of Ukrainian legislation are. Hopefully, the market will return to normal, traders will adapt, and the goods will be delivered to buyers! 

For additional information, please contact Mr. Ivan Kasynyuk, Partner at AGA Partners, kasynyuk@agalawyers.org; Mr. Oleksandr Zub, Associate at AGA Partners, zub@agalawyers.org; or Mr. Viktor Romaniv, Associate at AGA Partners, romaniv@agalawyers.org.  

AGA Partners team constituted of the partners Iryna Moroz and Ivan Kasynyuk, senior associates Yurii Bedenko and Pavlo Lebediev, associates Anastasiia Shevchuk and Vasyl Radetskyi have successfully cancelled the arrest nine days after the interim measures were imposed. Eventually, AGA Partners law firm have returned the amounts paid on the deposit account of the court to the shipowners.

Senior associate Yurii Bedenko comments: “Imposing an arrest on the sea vessel considered in ex parte court proceedings may cause huge damages for the shipowners. The courts of Ukraine may impose an arrest even in the situations where the maritime claim is not clearly visible. That is why is important to act fast to reduce shipowner’s losses caused by arrest”.

Senior Associate Ievgen Boiarskyi will be a guest lecturer on "Drafting Arbitration Agreements and Arbitration Clauses" within the course "International Law and Arbitration" organized by the Business Consulting Academy (BCA).

AGA Partners' Partner Ivan Kasynyuk, Senior Associate Pavlo Lebediev and Associate Anastasiia Shevchuk delivered a seminar on the latest challenges in commodity trade in the Black Sea region. Active interaction with the audience resulted in a great discussion. Pavlo Lebediev also spoke at the panel "Price Assessment, Contracts and Insurance in International Trade" together with other speakers of the conference.

After the CIF sale contract between the parties had been performed, the dispute emerged with respect to demurrage due from the buyer to the seller, accrued due to a delay in discharging operations.

The crux of the dispute was the weather at the port of discharge. Under fundamental rules of the laytime calculation, time does not count for the period of bad weather (rain, snow, storm, etc.). The position of the buyer was that most of the relevant time at the port of discharge there had been raining, that prevented conduct of discharging operations. Accordingly, the final demurrage amount was rather insignificant. At the same time, the sellers’ position was the opposite. They alleged that there had been almost no rain during the relevant time period, so that all this time should be counted as laytime, increasing the amount of demurrage.

In support of their positions both parties provided various pieces of evidence, including, from witness statements of the port workers, meteorological reports, statements of facts regarding other vessels in the relevant period of time and weather expert reports.

After a long-lasting exchange of written submissions between the parties, the tribunal dismissed the seller’s claim in its entirety, confirming the calculations submitted by the buyer. As a result, the buyer had to pay only one-seventh of the sum initially requested by the seller.

The AGA Partners’ team was represented by partners Ivan Kasynyuk and Iryna Moroz, as well as senior associates Ievgen Boiarskyi and Dmytro Izotov.

The Order of St Sophia is awarded to women who, through their professional, charitable and social activities, contribute to the development of all spheres of modern life in Ukraine, are informal leaders in various fields and have a positive impact on the country's public life. 

Aminat Suleymanova, Managing Partner of AGA Partners, spoke at the session "Strategies for managing price volatility and risks", dedicated to the following topics:

• Managing market volatility in grain markets
• Exchange traded contracts for grain derivatives after the Black Sea conflict
• The role of OTC instruments

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