Probably the issue of validity and effectiveness of arbitration clause is one of greatest practical importance for international arbitral process, giving rise to arbitration as such.
Clear intention to contract out of the national court system is needed as this is where most disputes are usually resolved. This can also be done by referring to a standard form contract in the agreement which incorporates an arbitration provision.
It is important first to distinguish the validity of arbitration clause from its effectiveness. Whereas the validity issue answers the question whether there is a legally acceptable and enforceable arbitration clause, the effectiveness deals more with its construction, efficiency and performance. Although an arbitration clause can be valid it does not necessarily should be effective.
Below we should refer to issues of validity and effectiveness separately.
With reference to the validity the difference should be drawn between the formal and substantive validity where both plays a fundamental role on applicability of arbitration clause for pro-arbitration regime. Also, below we outline other important characteristics of parties’ agreement to arbitrate.
And at the end we will deal with issues of effectiveness.
- “Written form” accompanied with “signature” and/or “exchange” of communication;
The key sources of regulation to the formal requirement of a written form is given in a number of international and national rules. The first place to look is Art. 2(II) New York Convention (the NYC) and Art. 7(2) UNCITRAL Model Law 1985 with its further modernization and liberalization in 2006. (the Law). 
The idea behind adopting requirements for written form at the time it was made is an indication of the parties’ consent and record of it to establish jurisdiction. Nevertheless, I fully support the criticism of the outmoded requirements of NYC as to the written form which clearly falls behind the changes which were made in Law amendments in 2006 and number of national legislations worldwide, allowing for the arbitration clause to be made in oral or tacit. If the multi-billion agreements can be made orally, why arbitration agreements can’t?
it is worth noting that in certain circumstances the behavior of party may replace the compliance with formal written requirements.
Globally the issues of substantive validity are vital, bringing many challenges of arbitration agreement on applicable contract law grounds.
- Compliance with international conventions
All major Conventions treat arbitration agreements as presumably valid and enforceable, subject to limited cases of invalidity on where the relevant clause may be “null and void,” “inoperative,” or “incapable of being performed.” European and Inter-American conventions also refer to “nonexistence” of arbitration clause where there has been no consent.
- Compliance with national law
The majority of national legislation does not have special regulation as to the invalidity of arbitration agreements (except as provided in International Conventions) and is commonly governed by applicable contract law (either the law of the arbitral seat or the underlying contract). The burden of proof in such cases is usually on the contesting party. As an example of the application of these criteria, an arbitration agreement may become ‘inoperative’ for the purposes of section 9(4) through the actions of a party amounting to a repudiatory breach. [see Downing v Al Tameer Establishment & Anor.  EWCA Civ 721.
- Reference to standard terms.
It is common that an arbitration clause can be included in standard or general terms, whether it is in same document (on reverse side) or a separate document. In such case parties should either have availability of document or made a specific reference to it - incorporation by reference Also the arbitration clause may be valid if incorporated by the third parties, like in B/L which incorporates the terms of Charterparty.
- Capacity to enter agreement. Consent. Assignment.
The capacity of the parties originates from the law applicable to the parties, since neither convention prescribes rules governing the capacity. NYC and European Convention addresses this issue indirectly and in very general terms.
Despite some economies (e.g. controlled) may have certain limitations within national legislation, it has become common that tribunals in most circumstances taking pro-arbitration approach. In majority of cases the tribunals uphold validity of agreements by application of principles of estoppel, ratification and good faith.
Some Tribunals even extend the arbitration clause to the parent and subsidiary companies, despite lack of formal signature. Worth noting also that assignment of arbitration clause is possible automatically if not excluded by the parties or during pending arbitration.
Other essential characteristics of valid arbitration clause.
Non-arbitrability doctrine has a different nature from substantive validity, limiting specifically the right of the parties to arbitrate certain types of disputes
As a matter of general rule, the consent given by the parties to the contract does not necessarily mean consent to the arbitration clause. The critical issue is whether parties made a valid consent to the agreement to arbitrate itself.
Agreement to arbitrate.
Rather straightforward requirement providing the express parties’ intention to arbitrate rather than litigate. Arbitration should be the only forum where the disputes should be resolved.
Scope of arbitration.
Fundamental issue when considering the effectiveness of the clause is weather the parties’ language of agreement extends to all contractual (or noncontractual, e.g. tort, delict) claims making it a subject of arbitration or only to a limited ones. Presently, the most of jurisdictions holds a pro-arbitration approach in this respect.
Broad wording of clause is of the essence providing “all” or “any” claims to be covered by arbitration. The narrower wording may lead to consequences where tort and other non-contractual claims were recognized as giving no rise to arbitration. However the recent findings of the House of Lords in Premium Nafta v Fili make it less relevant. If there is nothing in[syntax unclear here?] contrary it illogical to assume that parties had intention to “split” jurisdiction.
Basically there was a move away from the overly formalistic approach. Lord Hoffmann in that case first reviewed the terms of the standard ‘Shelltime 4 Form’ arbitration clause as only “the agreement can tell you what kind of disputes they intended to submit to arbitration.” The starting position in the construction of an arbitration clause should be that rational businessmen intend that all disputes arising out of that agreement will be decided by the same tribunal. This presumption should be applied unless there is express language to the contrary. Lord Hoffmann declined to consider in detail the extensive case law on the scope of specific wordings used in arbitration clauses – ‘arising under’ or ‘arising out of’ - as he agreed with the Court of Appeal that “the time had come to draw a line under the authorities to date and make a fresh start.” Lord Hope of Craighead in his separate assenting opinion confirmed this approach in particular in the context of international commerce. 'This view is consistent with the approach adopted in other jurisdictions. Lord Hoffmann cited a German Bundesgerichtshof Decision of 1970 and Lord Hope of Craighead referred to decisions from the courts of the United States and Australia to conclude that arbitration provisions should be construed as broadly as possible and to prevent different proceedings in alternative fora.'
Finality of the award.
Providing in writing a “one stop” forum is essential for fast and efficient arbitration process. Still respective attention should be made to national laws which in majority of cases allows limited rights to appeal. For example Arbitration Act 1996 gives parties a right to appeal either on issues of serious irregularity (art. 68) or on a point of law (art. 69). This latter is not possible if institutional rules confirm award is final and binding e.g. LCIA or ICC. section 68 is a mandatory provision - that is the parties can not contract out of the possibility of a challenge for procedural irregularity.
Other relevant considerations.
Many practitioners and law associations provide generally similar recommendations to this effect. I shall outline the fundamental ones:
- Decide between ad hoc or institutional arbitration;
Institutional provide usually all necessary assistance, rules and procedures, facilities, etc for a certain fee, unlike ad hoc arbitrations where parties all liable for running arbitration, which sometimes leads to many disputes on the procedure.
- Seat of arbitration;
It may influence on the law that is applicable to arbitration and courts of which jurisdiction should make assistance and/or support of process. Friendly to arbitration jurisdictions is highly recommended.
Usually one or three arbitrators. Thus, the cost may vary greatly since parties pay for their services. Appointment much depends on parties’ agreement or applicable rules.
- Language, procedure, timetable, cost, confidentiality.
Also worth to be agreed at the initial stage. Usually depends on the arbitration rules that is to apply or agreement between parties made before or during the proceedings. Especially if dealing with parties with different languages.
In case of joint-venture, consortium or similar agreements where more than two parties involved the arbitration clause should anticipate possibility of multiparty arbitration. The key challenge is the managing of procedure (e.g. submissions exchange or oral hearings). and arguably the appointment of the tribunal?
There is a distinction between the formal validity of an arbitration agreement and the criteria that make it an effective clause. Most courts will interpret the clause in a pro arbitration manner. Once consent to arbitration is found, a lot of time and money could be spent in trying to determine the specific details of the arbitration.
If the parties could agree to specific terms this would be the best outcome but experience shows that once a dispute has arisen that there is very little chance of the parties reaching any consensus on the details. The courts will try to be as helpful as possible but can do little to prevent delay in the face of a reluctant party.
Formal validity including the requirement that the arbitration agreement be in writing is critical. The remainder of the criteria make the arbitration agreement effective for example, the seat, language and applicable law.
Most international arbitration institutions have Model arbitration clauses that deal in brief with the main issues. An arbitration clause does not have to be long and detailed so long as it is clear and precise so as to ascertain the parties’ intention.
 See for some examples of cases where incorporation by reference was accepted Stretford v Football Association Ltd and another  EWCA Civ 238 and Sumukan Ltd v The Commonwealth Secretariat  All ER (D) 341
 Julian Lew, “The Law Applicable to the Form and Substance of the Arbitration Clause»
 Gary B. Born, “International Commercial Arbitration” (Second Edition), par. 5-02, p. 657
 Ibid p. 656
 Lew, Mistelis, Kroll, “Comparative International Commercial Arbitration”, par. 7-6, p. 131
 The NYC provides very narrow definition failing to foresee the development of communication tools. The Law instead made a step forward with broader definition allowing modern means of communication and record of agreement evidence and finally in 2006 Law allows practically oral form agreement.
 Kaplan, “Is the Need for Writing as Expressed in the New York Convention and the Model Law Out of Step with the Commercial Practice?”;
We have to recognize the problems involving changes in any part of NYC and put attention and efforts to promote the changes to national legislations and more liberal approach while treating NYC requirements during award enforcement procedure as to the written form.
 States that allows arbitration agreement to be made orally either formally or in effect: France, New Zealand, Sweden, Scotland, Singapore, Hong Kong. Germany allows tacit agreement when no objection is submitted. Swiss provides a unique regulation specifically addressing the validity issue requiring evidencing agreement by a text. English Arbitration Act 1996 allows certain categories of oral agreements.
 In Compagnie de Navigation et Transport SA v Mediterranean Shipping, Tribunal Fédéral 1995 the Swiss Tribunal resorted to doctrine of estoppel and good faith where consent was confirmed by parties’ conduct in the past.
 For example fraud, mistake, frustration, impossibility, waiver;
 Art.II of the NYC, art. 1 of the Inter-American Convention and less clearly Art. II(1), IV and V of the European Convention;
 Cases in which an arbitration agreement was defective or invalid from the outset - fraudulent inducement, unconscionability, illegality and mistake;
 Cases where agreements were at one time valid, but which thereafter ceased to have effect;
 Cases where the parties have agreed upon a procedure that is physically or legally impossible to follow;
 New York Convention, Arts. II(1), (3); UNCITRAL Model Law, Arts. 7, 8(1);
 Worth noting that UNCITRAL Model law contains no provisions of substantive validity;
 National courts, dealing with issues of validity generally examining arbitration agreement as to the cases of fraud, mistake, duress, lack of consideration, unconscionability, impossibility and frustration to the substantive validity of international arbitration agreements.
 Gary B. Born, “International Commercial Arbitration” (Second Edition), par. 4.04, p. 472
 Ibid, p. § 5.06 (2) p. 844-845
 Lew, Mistelis, Kroll, “Comparative International Commercial Arbitration”, par. 7-37, 7-43 p. 144-145
 Either the place of domicile of the party or law applicable to arbitration agreement
 Lew, Mistelis, Kroll, “Comparative International Commercial Arbitration”, par. 7-33, p. 140
 Gary B. Born, “International Commercial Arbitration” (Second Edition), par. 5-023, p. 721
 NYC by implication to capacity provides non-recognition of arbitration agreements only if they are “null and void, inoperative or incapable of being performed.”. European Convention provides that courts shall examine the capacity of the parties under the law applicable to them.
 Where license is required, limitation in POA, no proper authorization by person who signed agreement, etc.
 Interim Award in ICC Case No. 5065, 114 J.D.I. (Clunet) 1039, 1043 (1987) (“in accordance with general principles of international commercial law, usages and…good faith,…the existing entity is personally bound.”); Balen v. Holland Am. Line Inc., 583 F.3d 647, 655 (9th Cir. 2009) (seaman bound by arbitration provision in collective bargaining agreement notwithstanding fact that agreement was signed by an employment agency on behalf of employer);;
 ICC case no 5721 (1990), 117 Clunet (1990)
 Lew, Mistelis, Kroll, “Comparative International Commercial Arbitration”, par. 7-52 - 7-57, p. 147
 Merkin, Arbitration Act, para. 2-33, 2-37;
 (e.g. arising from land, property, competition, etc.). The latest draft of Commercial Code in Ukraine is intended to treat the disputes arising from privatization of government property as non-arbitrable.
 In this respect the requirements for arbitration clause to be properly workable produced by Eisemann are also of essence:
(1) produce mandatory consequences; (2) exclude the intervention of state courts; (3) give power to arbitrators; and (4) put a procedure leading to enforceable award;
An arbitration clause may be considered as defective or pathological when it deviates from any one of the above four elements. The consequences vary greatly depending on the level of deviation. Mr. Eisemann coined the term “pathological clauses” in “La clause d’arbitrage pathologique” in Commercial Arbitration Essays in Memoriam Eugenio Minoli (Torino: Unione Tipografico-editrice Torinese, 1974)
 Lew, Mistelis, Kroll, “Comparative International Commercial Arbitration”, par. 8-9 p. 167
 In my practice I had a dispute where the arbitration clause provided resolution of dispute either in arbitration in Ukraine or litigation in Russia depending on which party shall be claimant (from Russia or Ukraine). Both parties applied to respective forum, one in Ukraine other in Russia. The Ukrainian arbitration refused on jurisdiction according to competenz-competenz principle sine the claimant from Russia submitted their claim first.
 The model clauses recommended by institutions vary significantly in terms of language of the clauses providing “all” or “any”; “disputes”, “differences” or “controversies”; “relating to” or “in connection with”; etc.
 Lew, Mistelis, Kroll, “Comparative International Commercial Arbitration”, par. 7-67, p. 153
 For example: Hoggan Lovels http://www.americanbar.org/content/dam/aba/events/international_law/2014/04/aba-nysba-international-boot-camp/CrossBorder11.authcheckdam.pdf; Clyde and Co. http://www.clydeco.com/insight/article/burning-the-boiler-plate-drafting-an-effective-arbitration-clause; Freshfields http://www.freshfields.com/uploadedFiles/SiteWide/News_Room/Insight/Asia_DR/Freshfields%20disputes%20academy%20workshop%20on%20drafting%20effective%20arbitration%20clause%206%20September%202016.pdf; IBA Guidelines for Drafting International Arbitration Clause - file:///C:/Users/Ivan/Downloads/Guidelines%20for%20Drafting%20Intl%20Arbitration%20Clauses%202010.pdf
 In contrast GAFTA and FOSFA rules provide appeal procedure to be conducted by 5 arbitrators;
Ivan Kasynyuk, Partner at AGA Partners
The analysis of Ukrainian court practice enables us to share our thoughts on trends regarding the recognition and enforcement of GAFTA/FOSFA awards in Ukraine, and to provide tips that may help to enforce this type of awards in the future.
Seven Trends on the Recognition and Enforcement of GAFTA/FOSFA Awards in Ukraine
1. Ukrainian courts adhere to the New York Convention.
But it takes time…
Statistically, an award is passed through seven court hearings at different instances before being recognized in Ukraine, despite Ukrainian legislation, which allows to recognize an award at the first instance hearing.
E-mail communication is acceptable.
2. Ukrainian courts tend not to interfere in the merits of awards.
Our research showed that only once a lower court’s decision analyzed the merits in an award. The decision was subsequently cancelled by a higher court, finding it to be in contradiction to the New York Convention and Ukrainian legislation.
3. The cases on recognition and enforcement of GAFTA/FOSFA awards are frequently revised by higher courts.
Out of about 80 court decisions in 11 cases on the recognition and enforcement analyzed in the research, 63% of them were revised by higher courts. In most cases, a decision was changed or the case was remitted to the first instance for revision.
4. The standing of a party claiming enforcement is regularly assessed by courts.
Almost 20% of the claims for the recognition and enforcement of arbitral awards were rejected because they were filed by a claimant who did not have standing before an arbitral tribunal. For instance, recognition and enforcement was sought by a person that is not a party to an arbitration agreement (Budtechimport LLC vs Prodexim LLC) or to an assignment agreement (Euler Hermes Services Schweiz AG filed a claim against Odessa oil-fat combine PJSC).
5. The court enforces an award if the debtor is registered or has a property within the territory of Ukraine.
In the case Nibulon S.A. vs BSC CmbH, the defendant was not a registered entity in Ukraine, but an Austrian company. It did not have any property in Ukraine, and hence the Ukrainian court refused to decide the case. Interestingly, Nibulon S.A. provided the court with an alleged address of the debtor that appeared to be the office of Nova Capital LLC, registered in Ukraine. It arose that debtor had never been registered there (and in Ukraine as well) and did not have any connections with Nova Capital LLC. Therefore, since the claimant did not prove that the property belongs to the debtor, awards were not recognized.
6. The claimant may seek an interim relief in the proceedings for recognition and enforcement of an arbitral award.
Securing a claim is allowed at any stage of proceedings (even before filing a claim), if the failure to secure such a claim may complicate or prevent the enforcement of the award. As mentioned above, the creditor may seek enforcement in Ukraine provided that the debtor is registered, has assets, or cargo in Ukraine. However, it should be noted that when a claim is considered by the third instance court, i.e. Higher Court/Supreme Court, the court is not empowered to grant an interim relief.
7. The practice on compound interest enforcement is not uniform.
There is no uniform practice on whether a compound interest prescribed by an award must be compensated, although for already some time, Ukrainian courts have been enforcing arbitral decisions awarding compound interest.
Examples of decisions enforcing such awards are as follows:
a) a court decision in the case № 4с-410/2563/12 stated that it “[a]llow[s] to enforce the arbitration award of GAFTA dated July 21, 2011 №14-329”, without any details provided as to a particular sum of interest;
b) a court decision in the case № 127/4348/13-ц enforcing the original award, followed by the claimant asking the court to define a particular amount of interest. The court defined the amount then in an additional decision, rendered as an integral part of the recognition and enforcement decision;
c) a court decision in the case № 2521/930/2012 citing the resolution of an award with the following words added: “that constitutes [money equivalent of the compound interest at the date of the decision]”. In particular, the court inserted into its decision the precise sum of compound interest, calculated on the date of making the decision by applying the formula of compensation prescribed by the award.
However, the approach may be changed.
Notably, the Kyiv Court of Appeal held in the Order dated 23.02.2017., based on the recent decision of the Supreme Court dated 26 October 2016, stated that:
“[…] when a foreign arbitral award containing an obligation of the debtor to compensate compound interest, the precise amount of which is not defined, then there are no legal grounds to enforce the decision. Given that claimant requests such interest and in the absence of the court`s or other authority’s power to change the claimant`s request, there is no possibility for a partial enforcement of a decision. Otherwise, it would contradict subpara. b of para 2, Art. V of the New York Convention and paragraph. 6 of Article 396 of Civil Procedure Code of Ukraine.”
At this point of time, the decision is waiting for another revision of the higher court. Therefore, the issue of enforcement of GAFTA/FOSFA awards containing compound interest is currently left open.
Seven Tips: In What Way May Claimants Enhance Their Chances of Enforcement of GAFTA/FOSFA Awards?
The above outlined trends underline seven tips regarding how to avoid obstacles and successfully enforce arbitral decisions:
- A claim must be filed by a company mentioned in the recital of an award, or a company that obtained this right under an assignment agreement. Preferably, an assignment agreement would be concluded after the date of the arbitral award. Otherwise, the court may refuse the claimant in recognition since “the assignment agreement precedes the award”.
- Special attention should be paid to the evidence that the arbitral award came into force, i.e. that it is valid and final. In terms of such evidence, the extract from GAFTA/FOSFA arbitration rules or a letter from an arbitration institution that this particular award came into force would assist.
- The debtor must be registered or have property within the jurisdiction of the court before which the enforcement claim is brought.
- If there is a strong indication that the claim will be successful and there is a risk of dissipating the assets on the debtor’s side, it makes sense to ask the court for interim measures. Ukrainian courts are not reluctant to grant such measures. However, it should be noted that shall the interim measure be found as exercised without sufficient legal grounds, the claimant must afterwards compensate for all damages to the other party caused by a granted measure. In such a case, the court decision on interim measures is to be cancelled by the higher court.
- A claimant should be prepared for long-lasting procedures since there is a risk that the case will pass through all instances. The whole process may last from one and a half up to two years depending on the number of hearings, appeals, and new trials.
- It is advisable to send an arbitral agreement and notices via the same e-mail.
- A claim for enforcement and an arbitral award are to be in compliance with the New York Convention.
Overall, the approach of Ukrainian courts may be characterized to be pro-arbitration and in accordance with the international practice.
At the same time, there are not so many cases for the recognition and enforcement of GAFTA/FOSFA awards in Ukrainian courts. The reasons for noted results may be different: GAFTA/FOSFA awards against Ukrainian companies are enforced voluntarily; debtors that have Ukrainian beneficiaries and staff are incorporated in other jurisdictions; creditors do not start the proceedings because they do not believe that they will be successful due to the dissipation of debtor`s assets, or corruption in Ukrainian courts.
Then again, statistics are speaking for themselves: 50% of arbitral awards were enforced by means of court procedures during the last seven years. One more case is still in progress (Nibulon vs Rise), which concerns the obligation to pay compound interest. At this point in time, it is hard to predict the outcome of the proceedings.
To sum up, if the trends in Ukrainian justice on recognition and enforcement were synonymous to the fashion ones, we would recommend claimants to: choose the classic style, but keep an eye on the new winds of changes.
Ivan Kasynyuk, Partner at AGA Partners
Olga Kuchmiienko, Associate at AGA Partners
Before you get behind the wheel of the law firm, you should think about whether you need to actually do it. After all, you can obtain the status of the head manager and full independence through partnership, managerial position or individual practice. In addition, prior to becoming Managing Partner, it is preferably to acquire the relevant experience. This will provide an understanding of youself and your aspirations. This will help to feel your own style of management and building relationships. It won’t let you forget how the company and profession is perceived at the different stages of career.
I got behind the wheel of AGA Partners in 2005, having experience of a law firm Intern, Paralegal in classical law offices, Senior Associate at one of the best and most well-known law firms at the time, self-employed lawyer – free hunter, and Department Director of a large national company. In addition, I had a chance to work as in-house lawyer for about a month, but after realizing that this is not really my thing I left before the end of the probationary period. Overall, my professional experience comprised 9 years. In 28 years, I established my own company.
The first thing to understand is that the company is exactly what you need. You need to understand that you are ready. This should be your lifework, your mission. And from that moment the firm becomes a part of your life. Everything that happens here (your relations with the staff, partners and customers), defines you as well as behavior with family and friends determines you. The responsibility that you take of the firm, should satisfy and shouldn’t not cause any doubts. It's like having a child – no matter how difficult it can be, dropping it is not an option. Without this all the way forward is just impossible. By the way, I believe that there is no difference, whether you establish a company or accept it. It all depends on you when the wheel is in your hands. After all, you are the only person responsible for everything.
The second thing that I suppose Managing Partner should always remember is a formula of " first people, then business." This is my personal approach to work. For me it is important with whom I work, how we do this, for whom we work. And I cannot imagine our company without healthy, friendly, warm atmosphere in the office. Honesty and transparency in relationships are very important. We have developed horizontal communication where everyone can freely communicate with anyone, there is no military hierarchy. Another point is that we will never work with a client who misbehave with any of our people.
The third thing is – learn, Managing Partner, learn! There is plenty of information on business management, but not only this. You can use literature, consultants, trainings, any new knowledge, even art! You should be open to the world, feel it’s pulse. There will be no ideas, innovations, and breakthroughs without this. You should let these information flows pass through youself and rethink them. It is highly unlikely that someone will give you a magic recipe that will help immediately develop a company or just teach you everything and solve problems. However, if you reside in the information field, the brain becomes much faster and more inventive.
The fourth is that you should decide where and how you go. Choose the aims, strategy and tactics. Interestingly, it may all diametrically change over time. Life experience, Partners’ and lawyers’ willingness impose some imprint on the process. However, it should be fully controlled and extremely balanced. It is Managing Partner’s responsibility, because the wheel is in your hands and it’s you who turn it.
The fifth is that you should honestly answer the question of who you want to be (manager or leader). Who is a leader? That’s a good question. Leader is a jaded word that has become a banal cliche, but there is no more aptly word than that.
The leader’s philosophy differs from the philosophy of the head. The first difference is that the leadership must be proven. It is worth fighting for, and you can lose it by distancing yourself from those you work with, surrounding yourself with retinue, losing visual acuity. I can not tell which system is better – head or leader. But I can state that loss of movers and shakers is inevitable in “the head” system. However, such system is the part of our social and legal traditions. We know a lot of successful companies with this structure.
Overall, I can say by paraphrasing Lev Tolstoy that every happy company is happy in its own way. I saw completely different management models whereby legal business makes a profit, if we put profit a criterion of success, because another universal criterion is hard to reconcile. One thing that remains unchanged is the responsibility for everything.
If we have already used an analogy with the wheel, so it's like driving a car. You can both know the rules and don’t know. You can abide by the rules, and you can be easy-going about such a trifle. You can race and cut off everybody collecting sincere and not very good wishes or epithets from other drivers. At a certain distance such a driver can be ahead of others, but he risks both his license and vehicle. You can also ask godfather to give you flashers and loudspeaker, and demand to be given way. Most will do it, as all know who the godfather is. However, godfathers change. And the trouble is that they change suddenly. It is also possible to drive without regaining consciousness for years, and if the police catch you and take away the license you can just buy it again.
There are plenty of options. The main thing is to realize that you are not alone in your car. If everybody agrees, then drive the way you want. That's what is a team of associates.
Throughout the modern history of mankind, trade wars accompanied almost every military or political conflict between hostile states, ready to take the most radical actions for the sake of the victory. This is not surprising as trade directly affects the economy and, accordingly, the ability of the country to fight and resist successfully.
Unfortunately, in order to understand what “trade war” means, we do not have to look into the past, but we just need search in the latest news. As before, such actions nowadays constitute an integral part of any international conflict: trade blockades, sanctions, import duties, quotas and licenses, preferences and many other “weapons” are actively used by world players for their own purposes. Of course, the least “guilty” participants of the market – producers and trading companies of both countries – suffer the most from such conflicts. These players are blatantly forced to incur huge losses as a result of all sorts of restrictions and prohibitions, which often are fatal for their business.
The sphere of commodity trading is particularly at risk, as it is always likely that circumstances preventing contract execution will appear during a significant period of time between the moment of the conclusion of the contract and its execution. The probability of the ban can sometimes be foreseen, as in the cases with the adoption of mirroring sanctions. However, such events have the tendency to occur suddenly, especially given an ongoing armed conflict and the political situation. What can be done in this case?
To illustrate, it might happen that goods are sold in April and are to be delivered in September, but official authorities of a buyer’s country introduce additional duties for the import of goods. Who should bear such losses? Is it possible to refuse to supply or to take the goods?
Let us take as example the recent case of the introduction of import duties on the import of Russian products to Turkey and, in particular, the duty on corn and wheat which was established at 130%, and considering that the sale of corn of Russian origin took place in February with subsequent delivery in May.
First of all, it is worth paying attention to the contract concluded between the parties. As a general rule, the parties explicitly determine the buyer to be the party responsible for the import of the goods and for all the formalities associated with the import, including the payment of taxes and duties in the country of import. If the contract is silent, majority of grain and oil commodities contracts incorporate standard contract forms developed by Grain and Feed Trade Association(“GAFTA”) and Federation of Oils, Seeds and Fats Associations (“FOSFA”), which expressly state that all import duties, taxes, levies, etc., present or future, in country of destination, shall be for buyers’ account. If the contract does not incorporate any standard contract form, the parties should refer to any specific rules regulating their obligations under the contract. Most of such transactions are carried out by sea on the basis of CIF or FOB in accordance with the international rules of Incoterms, according to which taxes, duties and other official fees, as well as customs formalities payable upon importation of goods, are paid by the buyer.
Moreover, such contracts tend to incorporate English Law by implication from a standard form or an express agreement. Under the general rule, English law consider such duties as business risks, which do not release the responsible party from performing contractual duties.
That is, under the conditions described above, payment of the import duty on Russian wheat introduced by Turkey will lie with the buyer and will not release it from the obligation to take and pay for the delivered goods.
And, what is the case if the authorities of the buyer’s country prohibit the import of goods completely? Is the buyer’s refusal to take the goods due to force majeure circumstances reasonable in this case? The answer is not so clear and it depends on many factors.
Let us take as example a case under the Rules of Arbitration of FOSFA concerning a ban on import of agricultural products in the country of destination. A large agro-holding company (“Seller”) concluded a contract with agro-industrial company (“Buyer”) for the delivery of goods for import and further processing on the territory of the Buyer. According to the contract, the Seller should have delivered the goods on the DAF terms (Incoterms 2000). The place of delivery was the border between the states of the parties and the governing law of contract was English law.
The contract had a force majeure clause that ambiguously interpreted the consequences of imposing import restrictions and the Buyer’s responsibility for not obtaining an import license and other official permits necessary for the import of goods into the territory of his country. Soon after the contract was concluded, the Buyer reported on the governmental restrictions on imports of goods from the Sellers’ country and referred to the force majeure circumstances, making the execution of the contract impossible. Despite the official prohibition, the Seller refused to accept the Buyer’s notification of force majeure and proceeded to fulfill its obligations. During the next several months, the Seller repeatedly notified the Buyer about its readiness to deliver the goods and asked the latter to provide documentary instructions, without which further execution of the contract by rail was impossible. The Buyer confirmed that it could not take the goods, justifying its position by the onset of force majeure circumstances. In the meantime, the price of goods had significantly decreased, making the contract extremely unfavorable for the Buyer. By the end of the delivery period stipulated in the contract, the Buyer had terminated the contract, under the force majeure clause. In response, the Seller considered the Buyer to be in default. As the price for the goods decreased, the Seller demanded compensation for the difference between the contract price and the market price, to which the Buyer objected, arguing the force majeure circumstances and referring to the frustration doctrine under the English law which provides for an exemption from liability. Eventually, the case was submitted to the FOSFA arbitration at the request of the Buyer.
The Seller’s position consisted of two key arguments. Firstly, according to DAF terms, the obligation to obtain a license to import goods in the territory of the Buyer’s country rested on the Buyer, while the Seller’s duty was limited to the delivery of the goods to the borders between the states and did not imply importation into the territory of the Buyer’s country. Secondly, any restrictions on the import of goods into the territory of the Buyer’s country are not force majeure circumstances either within the framework of the contract concluded, including under the DAF terms, or in accordance with English law. In particular, restrictions on import of goods do not fall under the frustration doctrine referred to by the Buyer, as this circumstance did not prevent the Buyer from lawfully performing its contractual obligations, namely, accepting the goods at the contracted place of delivery.
The Tribunal observed that the ban on import had no effect on the fulfillment of the contractual obligations by either the Seller or the Buyer: the Seller could deliver the goods and the Buyer could accept them at the border between the states. At the same time, the import of goods to the Buyer’s country was not the responsibility of the Seller, who was responsible only for export while the Buyer had the obligation to import the goods. Consequently, the ban on imports was not a force majeure circumstance either under the contract, or under English law. Finally, the Tribunal decided that the Buyer could not refer to the ban on the import of goods and refuse to fulfill its contractual obligations. Having terminated the contract, the Buyer itself infringed the contract and therefore must compensate the Seller for the losses incurred as a result of the Buyer’s non-fulfillment of the contract.
The position of the arbitral tribunal under the FOSFA rules shows that impossibility to import will not discharge the contract under the doctrine of frustration. The intention for the goods to be processed in Buyer’s state was indeed the reason why the Buyer concluded the contract; however, the impossibility for such purpose to be achieved was not a sufficient ground to discharge the Buyer from its contractual obligations. The decision generally follows the line adopted by English courts in cases with similar circumstances. (See Congimex Companhia Geral de Commercio Importadora & Exportadora S.A.R.L. v. Tradax Export S.A  1Lloyd’s Rep. 250 and Bangladesh Export Import Co Ltd v. Sucden Kerry S.A.  2 Lloyd’s Rep. 1) The parties clearly outlined the scope of their duties in the contract and did it in such a way that the import ban would not make the performance illegal. First, the parties agreed on the DAF Incoterms which specifically provides that the Seller’s obligation is to place the goods at the border between the parties’ states, cleared for export but not cleared for import. Second, the parties agreed to English law as the governing law, which provided adequate level of protection against import prohibitions, preventing the parties to use such circumstances in bad faith and escape from their respective contractual obligations.
Unfortunately, trade conflicts are part of the current trade and economic policy of many countries and they are an inherent risk factor, which must be taken into account when doing business with these countries. Mostly driven by political reasons, the states are always ready to introduce trade restrictions in order to harm the opponent as much as possible. Like any war, a trade conflict entails losses on both sides. In most cases, this practice becomes detrimental to both states, not only to the one introducing the ban, as the case presented above shows.
Ukraine seems to be quite friendly jurisdiction for entering and exercising marriage contracts. However, there are plenty of issues to be taken into account before you can be assured that after entering marriage contract with your spouse all pecuniary interests are protected.
This article addresses the main tips that will help you to choose the most efficient way to share the spouses’ property and prevent long-lasting property disputes.
What is marriage contract under the Ukrainian law?
Ukrainian legislation and practice supports intention of spouses to govern their own relations. At the same time this right is not absolute.
Pre-nuptial agreement under foreign law vs marriage contract under Ukrainian law?
Ukrainian law provides the option for the couples who are already married or are going to marry in the nearest future to govern their property relations during the marriage at their own discretion. However, Ukrainian law recognizes the notion of marriage contracts, unlike pre-nuptial agreements (“prenups”).
In contrast to prenups, establishing the property and financial rights of each spouse in case of divorce , marriage contracts regulate property relations of the couple from the date of marriage. In particular, pre-nuptial agreement governs relations only if the couple divorces. If the marriage is not terminated, prenup does not come into effect. On the other hand, marriage contract is one of the sources for governing spouses property relations in both cases: during their marriage or in the case of divorce.
It is worth saying that Ukrainian legislation recognizes marriage contracts concluded abroad. Such contracts are enforceable in Ukraine unless they do not contravene the mandatory rules of Ukrainian legislation.
In addition to it, marriage contracts in Ukraine have other peculiarities.
Who and when may enter into marriage contract?
Only married couples or couples that have applied to the Civil Registry Office for registration of marriage may conclude a marriage contract. In other words, it is possible to enter such agreement at any time after you have officially become a bride and a groom. However, under Ukrainian law the contract will become valid only after the official registration of marriage.
The Parties may choose Ukrainian law as the law governing their marriage contract if Ukraine is:
- lex personalis of one of the spouses;
- the state where one of the spouses has a place of habitual residence;
- the state where the immovable property is situated (the contract may cover respective immovable property).
What is the procedure of entering marriage contracts in Ukraine?
It is not too complicated to enter marriage contract in Ukraine. Both parties have to appear before a Ukrainian notary public official and sign the contract in front of him.
What issues may be and may not be addressed in the marriage contract?
- The couple may govern only property relations.
Marriage contract deals only with property relationships and specifies the property rights and duties of the couple as the spouses or the parents. It is possible to prescribe arrangements for:
- the legal status of joint property;
- the order of property division in case of marriage dissolution;
- the legal status of separate personal property;
- the use of personal or joint residential property etc.;
- determination of the date of beginning of the co-residence period without marriage registration .
It is prohibited to govern nonpecuniary relations of the parties and each provision that intends to govern such relation is deemed to be invalid.
- There is no exhaustive list of issues that may be addressed in the marriage contract.
There is a general rule for governing private legal relations, including family relations: the person may do everything that is not prohibited by the law. Enforcing this principle, the Supreme Court of Ukraine held that the parties do not have the right to govern their relations at their own discretion only in limited cases when:
- there is an expressed prohibition in civil legislative act;
- the prohibition is implied by a legislative act;
- such agreement contradicts the substance of the parties’ relations.
For instance, the marriage contract may not narrow the scope of the child’s rights established by the Family Code and it may not put one of the spouses in extremely unfavorable material situation.
In other words, the marriage contract is valid if it does not contradict the mandatory rules of the law and basic moral rules of the society .
- Any property may be subject to marriage contract.
Existing or future property
The couple may agree on the fortune of the property that is already possessed by the couple or will be acquired in the future. It is not prohibited to prescribe the fortune of the house that had not been built yet.
Personal or joint property
The couple may prescribe rules for joint or personal property as well as the regime of ownership: parties may change the ownership for particular item from joint to personal and vice versa. At the same time, it is prohibited to pass ownership rights for property that must be registered, in particular immovable property. This rule leads us to the next important peculiarity.
- The couple does not have the right to change title for registered property, but may determine legal regime of such property.
It is crucial that marriage contract under the Ukrainian law may not include provisions on changing the title for the property that is to be registered, inter alia immovable property.
For instance, you may not prescribe that “after entering this contract the car owned by John becomes the property of Maria”. On the other hand, provision “The car registered to John`s name is his personal property, but may be used by Maria” will be enforceable.
The general formula of Ukrainian legislation looks like “each spouse has equal rights for all matrimonial property without determination of precise rights for each item”. However, it is possible to agree that precise item is subject to personal ownership of one of the spouses or the spouses joint property and define the shares of each spouse in such item. Even if in the future such person changes his mind and claims such agreement as invalid, Ukrainian courts tend to dismiss such a claim since “other decision will be in contravention to the contract”.
Thus, the parties may agree that precise property is the personal property of one of them despite it was bought during marriage. But it is crucial that such property must be registered at the name of the person that owns the property.
- The marriage contract may cover the fortune of the property acquired during co-residence period prior to the marriage, if the couple has been married later.
This conclusion appears from the Ruling of the Supreme Court of Ukraine . In that case the Plaintiff tried among other issues to challenge the provisions of the marriage contract about the fortune of the flat purchased during co-residence period before official marriage registration. The Supreme Court of Ukraine held that “the parties have a right to determine legal regime of property acquired during their co-residence prior to registration of marriage”.
- The marriage contract may state the date of the beginning of co-residence period before the marriage.
The parties have the right to agree on the date that is to be considered as the start point of the co-residence. From this point all property is a joint property of the parties unless otherwise is prescribed by the marriage contract.
The Supreme Court of Ukraine held, that there are no reasons to prohibit parties to agree on the date of the beginning of their co-residence period in the contract since it does not contravene the mandatory rules of law .
- The marriage contract may not place one spouse in an «extremely unfavorable material position».
«Extremely unfavorable material position» means that the question for the court is whether the spouse has been placed by a marriage contract in a position significantly less favorable than the position he or she would have enjoyed under the general rules of Ukrainian legislation. According to these rules all property obtained during the marriage is going to be divided between the spouses in equal shares 50/50.
Therefore, it is vital that provisions of a marriage contract comply with the principle that «each party eats what he/she kills», meaning that each spouse owns property acquired himself or herself during the marriage. For instance, everybody gets consideration individually from the contract which he or she is party to; assets acquired during the marriage that are subject to mandatory registration (houses, land plots, cars) are owned by the spouse on whose name these assets (movable or immovable) have been registered.
The burden of proving the extremely unfavorable material position rests on the party that claims to be in the mentioned position. The Supreme Court of Ukraine stated that this term is evaluative and must be proved by the Party that invokes it .
Is the marriage contract an ideal solution for governing matrimonial relations?
We outlined the main issues related to entering marriage contracts in Ukraine. This information may help you in drafting enforceable contract in the course of recent court practice. However, it is worth saying that marriage contracts are still not too widespread in Ukraine. Despite significant professional focus on marriage contracts, the last are not the best option for governing property relations between spouses. There are many reasons for it:
- moral ill-preparedness of couples to regulate pecuniary relations since it may string up relations;
- there is always a risk that the other party will file a claim with the court demanding to held marriage contract as invalid as it places this party in extremely unfavorable material position. Even if the claimant fails to prove his allegations the court proceedings may last for years.
- The notary or other authority may get information on the existence of marriage contract only after voluntary disclosure by one party.
- The marriage contract is not a document that evidences title for goods, unlike certificate of ownership or agreement on division of spouses` property;
- The marriage contract may determine spouses shares in joint property. However, for real division of property the couple needs to get court decision or enter agreement on transfer of the property from one spouse to another, that is called the agreement on property division.
We would like to consider the agreement on property division as one of the optimal solutions to govern legal relations of the spouses.
The agreement on division of spouses` property.
In the contrast to marriage contract, the agreement on division of spouses` property is a document on transferring of title. This means, that if somebody contests or disclaims your property right to some estate you may present the abovementioned agreement as the proof of your ownership. Moreover, unlike marriage contracts, it is possible to transfer the property rights for immovables under the agreement on division of spouses` property.
Why is it so? With the best will in the world notary does not have any possibility to check whether a particular person has been a party to marriage contract. The reason is that marriage contract is not registered, as well as any information from such agreement is not included into any official State Registries.
Thus, the notary may take into account the terms of the marriage contract only if the parties voluntarily inform about it. Meanwhile, the agreement on division of spouses` property as well as other agreements on transferring property title do not have any chances to be hidden from the notary and the public. All transfers of property under such agreements are reflected in the State Registries, while the agreement itself is the property title document. However, the agreement on property division could deal only with existing, but not the future property.
Thus, if you want to divide the property formally and univocally, to be sure that the property cannot be claimed by the other spouse or his successors, it is better to choose the agreement on division of spouses` property rather than marriage contract. The spouses may also opt for entering marriage contract and after that conclude the agreement on division of property.
Marriage contracts are recognized and enforceable under Ukrainian law. Recent court practice supports spouse’s decision for governing their relations in the way, different from the common rules. This article addressed some tips for making decision to enter marriage contract more acknowledged. On the other hand, we suggest that agreement on division of spouses` property is one of the most effective alternative ways to determine spouse’s pecuniary relations if the parties are looking for some ultimate decision.
- Prenuptial Agreements, available at: http://family.findlaw.com/marriage/prenuptial-agreements.html
- The Supreme Court of Ukraine, the Ruling dated 28 January 2015, No. 6-230цс14за, Verdictum database
- The Ruling, supra note 2.
- The Appeal Court of Kyiv, the Order dated 04 March 2015, No. 22-ц/796/3320/2015, Verdictum database (upheld by the Ruling of High Court for Civil and Criminal issues dated 18 May 2015)
- The Ruling, supra note 2.
- The Ruling, supra note 2.
- The Ruling, supra note 2.
Irina Moroz, Partner at AGA Partners,
Olga Kuchmiienko, Associate at AGA Partners
The article is available in Ukrainian only.
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Iran. The country with enormous trade potential and a juicy market for many foreign companies around the globe. Following partial lifting of sanctions in Iran, it is expected that more and more businesses from different industries will enter the Iranian market. Needless to say, along with the development of international trade in Iran more disputes and arbitrations involving Iranian companies will emerge.
In the meantime, the author of this post has already faced the case where the arbitration clause with Iran-based company provided for arbitration at the non-existent Iranian arbitral institution. This case is a good illustration of what problems and dilemmas arise when the parties agree on such a pathological clause.
Arbitrating or litigating?
Imagine you are instructed to bring a claim. You look at the relevant arbitration clause in the contract, but you realize that it refers to a non-existent Iranian arbitral institution. What are your first thoughts? – One of the first questions that crosses the lawyer’s mind is whether this clause is enforceable. In simpler terms, the question is whether to arbitrate or litigate.
The positions of Iranian lawyers in this respect differ significantly. Some lawyers think that such an arbitration clause is unenforceable in Iran. According to them, provided the parties do not agree on another arbitral institution, they are left with no other choice than to litigate. On the other extreme, there are practitioners who believe that the parties should arbitrate in existent Iranian arbitral institutions. There are also Iranian lawyers who do not conclude whether the clause is valid or not, but who, nevertheless, advice to resort to litigation.
It can be said that the practice in many countries points towards arbitration since there are plenty of cases where arbitration clauses that refer to non-existent arbitral institutions were enforced. For instance, in the case HKL Group Co Ltd v Rizq International Holdings Pte Ltd  SGHCR 5 the arbitration clause referred to the non-existent “Arbitration Committee at Singapore under the rules of The International Chamber of Commerce” (paras. 1-2). Despite the absence of this arbitral institution, Singapore High Court stayed court proceedings in favour of arbitration on
“[…] the condition that parties obtain the agreement of the SIAC or any other arbitral institution in Singapore to conduct a hybrid arbitration applying the ICC rules, with liberty to apply should they fail to secure any such agreement.” (para. 37).
Judge Jordan Tan AR has explained the enforceability of the arbitration clause by referring to the following reasons (para. 27):
“[f]irst, it clearly evinces the intention of the parties to resolve any dispute by arbitration. Second, it provides for mandatory consequences in that if a dispute arises, the matter has to be referred to arbitration. Third, it states the place of the arbitration, namely, Singapore. Fourth, it provides that the arbitration is to be governed by a particular set of rules, namely, the ICC rules.”
In contrast with the Singapore case, the arbitration clause in the case at hand does not specify seat of arbitration. The fact that the parties agreed on a non-existent Iranian arbitral institution does not mean that they have selected Iran as the place of arbitration. This is because the choice of the arbitral institution cannot be regarded as the choice of the seat. However, the arbitration clause is enforceable because it clearly records parties’ intention to arbitrate. This intention is not prejudiced by the mere fact that the selected arbitral institution does not actually exist. This is the main argument in favour of commencing arbitral rather than court proceedings. Undoubtedly, enforceability of such arbitration clauses is in full conformity with the pro-arbitration spirit of the New York Convention.
Even though the pro-arbitration practice with regard to such arbitration clause is far more evident, you are still exposed to the certain risks. On the one hand, if you choose arbitrating, there is always a risk that you will fail in your attempt to commence arbitral proceedings. On the other hand, you definitely run a risk that the court will stay proceedings in case you decide to litigate. This situation plainly causes much uncertainty. Is that a threat to the claimant’s right to a fair trial? – It is not the question of who to blame for such an uncertainty, but rather the issue (along with the main question of the enforceability of the arbitration clause) for the arbitrator’s or for the judge’s (as the case may be) attention.
Which arbitral institution?
Reference to a non-existent arbitral institution creates not only a dilemma whether to initiate court or arbitral proceedings. The next important issue is the arbitral institution which shall substitute the non-existent one. Of course, there will be no problem if the parties select the existent arbitral institution by mutual agreement. But obviously, that is highly unlikely scenario after the dispute has arisen.
One may suggest that the parties’ intentions were to arbitrate at the Iranian arbitral institution. Therefore, it should be the existent Iranian arbitral institution: either the Arbitration Center of the Iran Chamber of Commerce or the Tehran Regional Arbitration Centre. However, given the absence of the choice of the seat of arbitration, it may also be argued that possible options are not restricted only to Iranian arbitral institutions. But what shall the claimant do in such a situation? File a claim in any arbitral institution in any country of the world hoping that it will hear the case?
Ideally, the claimant should select the arbitral institution which will most likely accept its jurisdiction. The problem is how to identify this arbitral institution. First of all, the potential claimant should look for the arbitral institution(s) that is the most closely connected with the case or the arbitration agreement. Once the claimant has identified such an arbitral institution, he should then conduct a proper investigation in order to find out (through relevant practice and the case law) whether it has previously accepted jurisdiction to hear the dispute under similar circumstances and whether it has pro-arbitration approach. Indeed, in Iran the advice should be sought from local lawyers who should assess the prospects of commencement of arbitration there.
First step: court or the arbitral tribunal?
Even if you decide to go to arbitration in Iran and determine the particular arbitral institution, you still have the issue of whether to go to the Iranian court for the appointment of the tribunal or directly submit the dispute to arbitration. In practical terms going to the national court would be an unreasonable waste of time with unpredictable result. For this reason, it is better to have recourse to arbitration directly. Especially, given that arbitral tribunal has a power to rule on its own jurisdiction. But this issue is something that Iranian lawyers also do not have a common opinion on.
Arbitration agreement that refers to a non-existent arbitral institution is always a headache for potential claimants and a room for maneuvers for potential respondent. It creates a number of dilemmas that need to be resolved prior to bringing the case. Iran – is not an exceptional jurisdiction when it comes to solving those dilemmas there, especially given controversial views regarding such arbitration agreements among local lawyers. However, you cannot have a 100% correct recipe for dealing with the issues such arbitration clauses cause. It is very much a matter of the strength of your arguments that the parties’ intention to arbitrate is maintained despite the absence of contractually agreed forum and the pro-arbitration views of the court seized or of the arbitral tribunal (as the case may be). The story in Iran is not over yet. It remains to be seen how it will develop…
The article is available in Russian only.