Article | Legal Framework for Consideration of Disputes Involving Foreign Persons by an Economic Court |
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Authors | ANTONINA BOBKOVA , VALERIIA NOVOSHYTSKA |
Name of magazine | Legal journal «Law of Ukraine» (Ukrainian version) |
Issue | 7 / 2020 |
Pages | 131 - 146 |
Annotation | Today, one of the urgent and practical tasks faced by our country is to seek the support of foreign investors in solving our socio-economic issues; in this connection experts believe that a crucial factor for the investors is whether their rights and interests are protected, and this, for its part, depends on the state of the legal framework used for consideration of economic disputes involving investors. Foreign persons have the right to seek protection of their violated rights and interests in an economic court, and to act as defendant or other participant in litigation. At the same time, proceedings in economic courts involving a foreign person have certain specifics enshrined in various legal regulations, international treaties, and agreements of the parties, and case law indicates that there is some complexity and ambiguity in the application of provisions of relevant legislation sometimes making it impossible to effectively protect and promptly resolve a dispute. So far, the issue of the legal framework for consideration of disputes with a foreign element by economic courts has been considered by scientific community only in an indirect manner and has not become the focus of a separate study. The article aims at generalizing the legal framework for consideration of disputes involving foreign persons by economic courts and providing a substantiation as regards the vectors of development and improvement of relevant legislation of Ukraine, with a view to making economic proceedings look more attractive for foreign investors in terms of seeking protection of their rights and legitimate interests. Following the study, such results have been obtained: 1) generalization of the legal framework for consideration of disputes with involvement of foreign persons by economic courts, which comprises provisions of the Code of Economic Procedure of Ukraine (Ukrainian CEP), other laws and subordinate legislation, as well as provisions of international treaties which have been made a part of national legislation, and also economic agreements (contracts); 2) substantiation as regards the vectors of development and improvement of relevant legislation of Ukraine: at the level of Ukrainian CEP regarding court jurisdiction of disputes involving foreign persons; expansion of economic courts’ competence by making their jurisdiction include cases commenced as regards the disputes arising in connection with implementation of economic activities, as regards challenging of international commercial arbitration awards, as well as regarding recognition and granting of permit for the enforcement of international commercial arbitration awards or decisions of foreign courts; introduction of additional grounds for recognition of arbitration agreements as invalid and unenforceable; at the level of international treaties – ratification of the Convention on Choice of Court Agreements; at the level of subordinate legislation – clarification of the Regulation on the form of foreign economic agreements (contracts) in terms of recommendations for the wording of the foreign economic agreement’s clause about resolution of disputes in a court of law, given that the parties are unable to choose the rules of procedural law in case of proceedings in economic courts. The article suggests that Ukrainian CEP and the Regulation on the form of foreign economic agreements (contracts) should be amended.
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Keywords | legal framework; economic court proceedings; foreign person; arbitration agreement |
References | Bibliography Journal articles 1. Bobkova A, Novoshytska V, ‘Iurysdyktsiia hospodarskykh sudiv’ [‘Jurisdiction of Economic Courts’] (2017) 9 Pravo Ukrainy 86 (in Ukrainian).
Conference papers 2. Tsirat H, ‘Osoblyvosti zastosuvannia st. II (3) Konventsii pro vyznannia ta vykonannia inozemnykh arbitrazhnykh rishen 1958 r. u praktytsi ukrainskykh sudiv’ [‘Specifics in Applying Article II (3) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 in the Practice of Ukrainian Courts’] v Niu-Iorkska konventsiia pro vyznannia ta vykonannia inozemnykh arbitrazhnykh rishen: 60-richna istoriia uspikhu. Zbirnyk dopovidei i statei do V Mizhnarodnykh arbitrazhnykh chytan pam’iati akademika I. H. Pobirchenka [New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards: a 60-Year Success Story. Collected Reports and Articles for the V International Arbitration Readings in Memory of Academician I. H. Pobirchenko] (2019) 46–55 (in Ukrainian).
Newspaper articles
3. Vronska H, ‘Chy mozhut ukrainski sudy zastosovuvaty normy prava inshykh krain?’ [‘May Ukrainian Courts Apply Provisions of Law of Other Countries?’] (Yurydycheskaia praktyka, 29.08.2019)
4. Tenkov S, ‘Spravy z inozemnym elementom i yakyi sud vyrishuvatyme spir?’ [‘Cases Involving a Foreign Element and Which Court Will Resolve the Dispute?’] (Yurydychnyi visnyk Ukrainy, 19–25.08.2006) |
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