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TRANSPARENCY IN INVESTMENT ARBITRATION: UKRAINE’S PROSPECTIVE

7/2 StelmaKha str., office 77, 03040 Kiev, Ukraine chernykh@arbitrade.com.ua www.arbitrade.com.ua. TRANSPARENCY IN INVESTMENT ARBITRATION: UKRAINE’S PROSPECTIVE The Fifteenth Investment Treaty Forum Public Conference Recent Developments in Investment Arbitration Procedure

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TRANSPARENCY IN INVESTMENT ARBITRATION: UKRAINE’S PROSPECTIVE

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  1. 7/2 StelmaKhastr., office 77, 03040 Kiev, Ukrainechernykh@arbitrade.com.ua www.arbitrade.com.ua

  2. TRANSPARENCY IN INVESTMENT ARBITRATION: UKRAINE’S PROSPECTIVE The Fifteenth Investment Treaty Forum Public Conference Recent Developments in Investment Arbitration Procedure 10 September 2010

  3. First ICSID cases with certain degree of publicity did not provoke much interest in Ukrainian society: • Joseph C. Lemire –v-Ukraine ICSID No. ARB (AF)/98/1 Public Award embodying the Parties’ settlement of September 18, 2000 • Generation Ukraine-v-Ukraine ICSID No. ARB/00/9 Public Award of September 16, 2003 • TokiosTokeles-v-Ukraine ICSID No. ARB/02/18 Public Procedural Order No.1 Decision on Jurisdiction of 29 April 2004 Dissenting opinion of 29 April 2004 Procedural Order No.3 • Western NIS Enterprise Fund-v-Ukraine ICSID No.ARB/04/2 Public Order dated 16 March 2006 Period of Relative Arbitration Apathy

  4. Joseph Charles Lemire-v-Ukraine (ICSID Case ARB/06/18) Ukraine-USA BIT Public Decision on Jurisdiction and Liability of 14 January 2010 Media scandal in relation to the results of the Decision of 14 January 2010 (Press-release of the Ministry of Justice of Ukraine and Response of Gala Radio) • Rosukrenergo-v-Naftogaz (consolidated international commercial arbitration case before Arbitration Institute of the Stockholm Chamber of Commerce) Public translation of the Partial Award dated 7 June 2010 The Award criticized by the former Prime-Minister appeared in the heart of bitter political conflict 24 June 2010 - disclosure of all pending arbitration cases by the Ministry of Justice of Ukraine Triggers of Public Interest

  5. Lemire-v-Ukraine (ICSID) • Laskaridis Shipping Co. LTD, Lavinia Corporation, А.К.Laskaridis and P.K. Laskaridis (Greek) -v-Ukraine represented by the Cabinet of Ministers of Ukraine (ad hoc under UNCITRAL Arbitration Rules) • Alpha Projectholding GmbH (Austria) –v-Ukraine (ICSID) • JSC “Tatnafta” (Russia)-v-Ukraine (ad hoc under UNCITRAL Arbitration Rules) • VancoPrykerchenskaya Ltd. (BVI) -v- Ukraine (Arbitration Institute of the Stockholm Chamber of Commerce) • Windjammer Beteiligungsgesellschaft GmbH & Co.KG and Inmaris Perestroika Sailing Maritime Service GmbH (Germany)-v-Ukraine (ICSID) • Bosh International Inc. (USA) -v-Ukraine (ICSID) • GEA Group Aktiengesellschaft-v-Ukraine (ICSID) • Globex International, Inc., Global TraidingResourse Corp.-v-Ukraine (ICSID) • Torno Global ConsaltingS.p.a and Beta Funding S.r.I. (Italy)-v-Ministry of Transportation and Communication and the State Agency of Auto Roads (ICC Arbitration Court) • Naftrac Limited (Cyprus)-v-National Agency of Ecological Investments (PCA) • Remington Worldwide Limited (UK)-v-Ukraine (Arbitration Institute of the Stockholm Chamber of Commerce) Disclosure of all pending arbitration cases

  6. between Seagroup International, Inc. and Ukraine between AmRUZ TRADING AG and Ukraine between Ministry of Land and Property of RF and Ukraine related to ownership over JS PrykarpatZahidtrans between Alfred C.Toepfer and Ukraine in relation to the claim of Prominpro Export Import Ltd. between Swissphoto AG and Derzhkomzem (State Committee for Land Resources of Ukraine) in relation to the claim of JC CJSC Borschagivsky Chemical-Pharmaceutical Factory between Contra Prahas.r.o. and Ukraine in relation to the claim of RECOM MetallgesellshaftGmBH (Germany) in relation to the dispute between Bancomar and the State Shipping Company Chornomorska Shipping Company related to investments made into Illichivsk Sea Trade Port between Split Center, Split Group and Ukraine between Olimpic Entertainment Group AS and Ukraine between Centragas Holding AG and Ukraine between Unicom Bankering SA and JSC UDP between Pinar-Com and Odessaoblenergo and Energoatom “ Disclosure of all negotiations

  7. Draft Act No.6544 dated 17 June 2010 suggests: • to forbid enforcement of arbitration awards if it menaces the energy safety of Ukraine • to suspend enforcement if a criminal investigation related to the issue is pending • to permit settlement for the companies with the state share exceeding 25 % only under a special Resolution of the Cabinet of Ministers of Ukraine Draft Act No. 6501 dated 25 June 2010 suggests: • to put cases involving movable property of the State and state companies within exclusive jurisdiction of the Ukrainian courts (the restriction is suggested to implement in regard of all available and future arbitration awards) Draft Act No.6658 “On Protection of Energy Safety of Ukraine” suggests: • to forbid execution of concrete arbitration award issued in Rosukrenergo-v-Naftogaz Bizarre Legislative Initiatives

  8. Although thecat will be always out of the bag somehow, well-balanced regulatory response at least in relation to the non-ratified bilateral investment treaties is still may be desirable in Ukraine. Conclusion

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