Senior associate Dmytro Izotov was a speaker at the Chinese Grains&Oils Congress, organized by APK-Inform.

Dmytro Izotov spoke during the session "Market of grains and pulses: trends of global and Chinese markets" with the topic "Legal aspects of grain trade in the realities of the global geopolitical crisis and military conflicts."

In a recent interview for the agribusiness video platform GET Talks, Partner Iryna Moroz discussed the latest changes in trade contracts in Ukraine. She highlighted the issues related to the legislative changes and their impact on CIF, FOB, and DAP export contracts. Iryna also discussed the disputes related to demurrage, payment terms, and quality disputes that may arise as a result of these changes.

The dispute emerged under CIF sale contract and was mainly concerned with the buyer’s claim for damages, comprising an allowance for an extension of a delivery period under a further sale contract in string. In particular, the buyer claimed that such damages were recoverable, given that they were allegedly incurred as a consequence of the seller’s non-delivery of the goods under the contract with the buyer. 

The seller denied the buyer’s claim, asserting that damages sought were too remote and not recoverable, given that by the date of conclusion of the contract with the buyer the seller had not been aware of terms of the buyer’s further sale contract. 

Upon a thorough analysis of the parties’ written submissions the Tribunal rendered the award in favour of the seller. The Tribunal confirmed that being unaware of terms of the buyer’s further sale contract the sellers could not reasonably contemplate emergence of damages sought. in case the goods were not shipped. In these circumstances, based on applicable English law the buyer’s claim was dismissed in full. 

The AGA Partners’ team was represented by partner Iryna Moroz, as well as a senior associate Ievgen Boiarskyi and an associate Daria Ivanova. 

According to the results of the international rating The Legal 500, AGA Partners Law Firm has traditionally been recognized in three practices:

International trade - Tier 2
Private clients - Tier 2
Resolution of disputes - Tier 3

Personal recognition received:

Iryna Moroz - Leading individual in the practice of International Trade and Private Clients
Aminat Suleymanova - Leading individual in the practice of Private clients
Oleksandr Gubin - Rising star in the practice of Private clients

In addition, partner Ivan Kasynyuk, counsel Olena Sibirtseva, senior associates Pavlo Lebediev, Dmytro Izotov, Yurii Bedenko and associate Vasyl Radetskyi received positive feedback about cooperation from clients.

➡ Read more about the rating 

At the initial stages of the dispute, the AGA Partners team noticed that the Seller was late in initiating arbitration. According to the arbitration rules, a notice of arbitration in respect of a dispute arising out of a CPT-based contract must be sent not later than one year after the last day of the contractual delivery, collection or arrival period, as the case may be.  

As a result of the corresponding motion prepared by the AGA Partners' team, the Tribunal limited the submissions on the merits of the parties to the issue of time bar. 

In order to prove the Seller's argument regarding the justification for failing to meet the prescribed timelines, the Seller tried to apply the provisions of the arbitration rules, according to which an arbitration initiated outside the time limits can be considered by the Tribunal in their discretion if two conditions are met: (a) the circumstances were outside the reasonable contemplation of the parties when they entered into the contract and it would be just to extend the time, or (b) when the conduct of one party makes it unjust to hold the other party to the strict terms of the time limit in question. 

As a result of the AGA Partners' team professional representation of the Client's interests, applying provisions of English law and the precedents of the English courts, the Tribunal found that the Sellers had breached the time bar and dismissed the claim in its entirety on this basis. 

The AGA Partners’ team was represented by partner Ivan Kasynyuk, senior associate Dmytro Izotov, as well as associates Dariia Zyma and Maksym Fesenko. 

The topic of the speech was legal literacy as an integral part of a modern successful woman. In her speech, Olena Sibirtseva also spoke about the importance of contacting a family lawyer before getting married or starting to live with a partner without going to the registry office. Why do business competitors "wait" for divorce and division of marital property? Should we allow "registering an apartment in one's mother's name" and why is it dangerous for the family? Is inheritance planning about everyone's responsibility or unnecessary precautions? Why should you divorce your previous spouse if a new relationship is on the horizon?

The dispute arose out of a DAP contract under which our client had to deliver the goods to a Polish border station using railway transport. Our client submitted the applications to the electronic railway system to book the railcars for delivery. The said applications had to be approved by a Polish railway with the assistance of a buyer and its consignee. Some of the applications were approved, allowing our client to successfully deliver part of the goods. However, some of the submitted applications were rejected by the Polish side. As a result, the client could not deliver the remaining contract quantity of the goods within the delivery period.

The client insisted that the performance of the contract was prevented by the buyer’s omission, i.e., failing to facilitate the approval of shipment applications by a Polish railway. As a result of this omission, the client incurred substantial default damages, as the non-delivered goods were re-sold at a much lower price. Because the buyer refused to compensate for these damages, the client decided to initiate the FOSFA arbitration proceedings.

During the arbitration, the buyer insisted on the absence of his fault. The buyer stated that under a classic DAP contract, it is a seller who is responsible for the delivery of the goods until the place of destination, bearing all the risks. Our legal team, in turn, referred the Tribunal to numerous contractual provisions which expressly mentioned the buyer’s obligation to facilitate the delivery of the goods and acceptance of the shipment applications. In addition, numerous pieces of evidence were submitted (witness statements, excerpts of Ukrainian legislation, etc) proving that a buyer is playing an important role in the delivery process from Ukraine to Poland.

After a long-lasting exchange of written submissions between the parties, the tribunal fully satisfied the client’s claim awarding the damages in the amount of about USD 2 mln together with interest. The Tribunal in its award admitted that while under a common DAP contract, a seller indeed bears all the risks related to the delivery of the goods to the destination, in the present case the parties in the contract expressly placed additional obligations on the buyer. This decision reminds us once again to carefully study the contractual provisions before signing agreements with counterparties.

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

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!
➡ More information about the ranking

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.