Congratulations to our Managing Partner Aminat Suleymanova on her election as Head of the International Arbitration Committee of the Ukrainian Bar Association.
AGA Partners, together with the partners of the Georgian law firm BLC Law Office, successfully enforced the award of London commercial arbitration in Georgia, the region of Guria. The Supreme Court of Georgia satisfied the application for the recognition and enforcement of the award. AGA Partners recovered the full amount of the damages awarded to the client.
The team also managed to obtain security in support of the foreign arbitral award and seize the bank account, as well as other property of the debtor located in Georgia. This step secured the client execution of the award from the property seized.
The peculiarity of the case was that the parties entered into an arbitration agreement by exchanging emails without using the signatures and seals of the companies. In many jurisdictions, this may result in a refusal to recognize an arbitral award due to the formal approach of local courts, requiring the original arbitration agreement signed by both parties.
However, during oral hearings, the team of lawyers was able to prove in court the validity of the arbitration agreement under applicable English law and the compliance with the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
Partner, Iryna Moroz, commented on the execution of the award:
“The successful outcome of this case demonstrates that Georgia is a favorable jurisdiction for the enforcement of arbitral awards. The application for enforcement is considered directly by the Supreme Court of Georgia, which decision is final and cannot be appealed. Judges adhere to a pro-arbitration approach and consider cases quite promptly, particularly in imposing interim measures. Actually, the seizure of assets, as a preliminary security of the arbitral award, played a decisive role in the successful execution.”
Managing partner Aminat Suleymanova spoke at the session "Attracting and retaining customers" with the theme "The crisis is a time to appeal to the best" at the VIII International Forum for the Promotion of Legal Services.
AGA Partners successfully represented the Client, a major agricultural company, in a dispute with a Swiss company in London arbitration. The dispute arose over unpaid goods worth USD300 thousand delivered under the sale contract.
As too often happens on CPT/DAP delivery basis, our Client, being unpaid seller, lost control over the first lot of the goods delivered and the original shipping documents for it. Such circumstances deprived them of exercising effective remedies available under English law, such as withholding delivery of the goods. Therefore, our Client had no other choice but to bring an action for the price in arbitration.
After several months of proceedings, AGA Partners team has successfully proved that our Client was entitled to the full price of the delivered lot of the goods. Importantly, our team also managed to defend the Client from a buyer’s counterclaim of damages for failure to deliver further lots of the goods under the sale contract.
The arbitral tribunal satisfied our Client’s claim covering a total price of the unpaid goods, and further awarded our Client compensation of arbitration costs.
Partner Iryna Moroz commented the case:
“CPT contracts often involve complex performance. After the seller passes possession and title the goods could be freely exported outside Ukraine and the only remedy left is an action for the price in the arbitration. It is important to note, that if delivery is made by instalments, generally the seller has no right to withhold delivery of further lots pending settlement of payment for the previous instalments. However, our Client decided not to perform the remaining part of the sale contract facing risk of a counterclaim from their buyer. Nevertheless, our team managed to prove absence of any damages caused by such Client’ s decision thus making buyer’s counterclaim futile.”
According to the "Client Choice 2020" research, our team has been recognized in 4 practices: international arbitration, sports law, private client practice and family law practice.
Managing partner Aminat Suleymanova was recognized among the leaders of the practices of international arbitration and private clients. Partner Ivan Kasynyuk - in the practice of international arbitration. Partner Iryna Moroz - in the practice of family law. Senior associate Dmytro Koval - in the practice of sports law.
Our managing partner Aminat Suleymanova and leading Ukrainian family mediator Olga Khmaruk discussed the most important issues of divorce, ways to mitigate its "hard blow" and the adaptation of ex-spouses and children to new circumstances.
AGA Partners jointly with AVELLUM successfully represented a major CEE-based mining machinery producer in four disputes with a Hong Kong company before the ICAC at the Ukrainian Chamber of Commerce and Industry. The disputes arose under four separate contracts for the supply of mining machinery and equipment to Ukraine amounting to a total of almost EUR6 million.
Our client has duly fulfilled its contractual obligations under the contracts, but the respondent did not pay the full price for the delivered goods. The total amount of debt owed to our Client was over EUR4 million.
Mykola Stetsenko, managing partner of AVELLUM, commented:
“This case was challenging. First of all, our team managed four separate arbitral proceedings, including two sets of simultaneous hearings. Secondly, the respondent alleged that our client’s claims are time-barred and should be dismissed. The seamless interaction within our joint team and the right set of skills and expertise added to resolving this matter successfully.
“Following the respondent’s allegations, we have provided the arbitral tribunals with various evidence demonstrating that the respondent, in fact, had acknowledged the debt under the contracts several times.
Our lawyers convinced the tribunal in admissibility and relevance of the evidence and proved that this evidence indicated the interruption of the limitation period under Ukrainian law and, accordingly, the claims of our client can be considered in arbitration.”
After more than one year of proceedings, the arbitral tribunals in each of the cases took into account the presented evidence and satisfied our Client’s claim covering a total of more than EUR4 million, including interest (3% per annum), arbitration fees, and legal costs.
Our team in this arbitration was led by partner Ivan Kasynyuk (AGA) with significant support from senior associates Iurii Gulevatyi (AGA) and Oleksii Maslov (AVELLUM), and associate Dmytro Izotov (AGA).
How to organize teamwork on quarantine? What challenges does he throw a business and how to handle them effectively? These and other questions have been discussed during the session "Legal function on quarantine" under the moderation of our Managing partner Aminat Suleymanova within the VIII Annual Forum of Legal Counsels.
AGA Partners successfully represented three Cypriot agri-trading companies in a dispute with Swiss global trading company before the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry (“ICAC”).
The dispute concerned the buyer’s wrongful refusal to accept the cargo supplied under three sale contracts. The Clients founded their claim on the Vienna Convention on Contracts for the International Sale of Goods (the “CISG”), seeking recovery of market price damages as well as additional storage and logistics costs.
AGA Partners initially succeeded to consolidate the dispute under three sale contracts into one arbitration proceedings, which allowed to minimize the Clients’ arbitration expenses.
Further, the buyer based his cargo rejection on the deficiency of quality inspection at the loading. The Arbitral Court supported our Clients’ position that the final quality was to be established on discharge, so that rejection of the cargo was premature and wrongful.
The buyer has also objected against the applicability of CISG. However, AGA Partners managed to convince the Arbitral Court that it is applicable and, consequently, the Clients are entitled to the compensation of damages claimed under the CISG.
This case has raised rather uncommon problems of applicability of CISG to international sale contracts when the parties conduct business and operate in different states. It may also have a landmark impact on the formation and amendment of international sale contracts according to the requirements of CISG.
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."
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.
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.