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UKRAINE 13
Supreme Court of Ukraine, First Judicial Chamber of the Civil Court of Cassation, 2 May 2024, Case No. 824/131/23
(CFSIT, Inc. and Cargill Financial Services International, Inc. v. Interested Person)
UKRAINE 13
The Supreme Court confirmed the first instance decision granting exequatur of an LCIA partial final award rendered in London, finding, inter alia, that there were no grounds for refusal because of a violation of public policy, in the n arrow meaning of the state’s fundamental principles and interests. In particular, there had been no procedural inequality between the parties because the debtor had not participated in the arbitration, alleging that he was unable to engage English counsel due to Ukrainian cross-border foreign currency payments restrictions and because most international law firms in Ukraine had worked for companies of the Cargill group, to which the applicants belonged. This, the Court found, had been the debtor’s free choice and he should bear its consequences.
The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.
The court discusses the general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.
Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.
Public policy: The court discusses alleged violations of a fundamental rule of due process in the arbitration on the recognition and enforcement of an arbitral award, including the failure to communicate the names of the arbitrators, the failure to send copies of reports or letters filed in the arbitration, etc.
Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.