We share another review of the judicial practice of the Cassation Civil Court as part of the Supreme Court – https://bit.ly/3K5lhpS .
The review reflects the important legal conclusions of the Civil Court of Cassation as part of the Supreme Court, formulated during the consideration of cases regarding the appeal of decisions of arbitration courts and the granting of permission for the enforcement of decisions of arbitration courts, in particular the following:
- the presence of a valid arbitration clause and the obligation to appeal to an arbitration court are not a limitation of the party's right to judicial protection, guaranteed by Art. 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms and Art. 55 of the Constitution of Ukraine, and is a type of alternative protection chosen by the parties at their own discretion (voluntarily);
- requirements of Clause 14, Part 1, Art. 6 of the Law of Ukraine "On Arbitration Courts" regarding the limitation of the competence of arbitration courts do not apply to disputes arising from accessory contracts, even if such contracts ensure the fulfillment of obligations under a consumer contract. Thus, a dispute that arises under a suretyship agreement is not a dispute about the protection of consumer rights and can be submitted to an arbitration court if there is an appropriate arbitration clause;
- the plaintiff, the defendant, the third party in the case considered by the arbitration court, and the persons who did not participate in the case, and the arbitration court decided the issue of their rights and obligations, are different subjects in the cases of appeal of the decisions of the arbitration courts. Identification of the applied in Art. 454 of the Civil Code of Ukraine and in Art. 51 of the Law of Ukraine "On Arbitration Courts", the concept of "a person who did not participate in the case" with a person who is a party to the arbitration proceedings, but was not present during the arbitration proceedings, is erroneous;
- taking into account the fact that clause 1 part 5, part 7 of Art. 454 of the Civil Code of Ukraine, which were recognized as unconstitutional by the Constitutional Court of Ukraine, shall expire three months after the termination or cancellation of the martial law imposed by the Decree of the President of Ukraine dated February 24, 2022 No. 64/2022 "On the introduction of martial law in Ukraine", as amended, until the expiration of the specified period, the specified norm is applicable, but taking into account the fact that the 90-day period for submitting an application for annulment of the decision of the arbitration court, provided for in clause 1, part 5 of Article 454 of the Code of Civil Procedure of Ukraine, is not preclusive, since the Code of Criminal Procedure of Ukraine does not contain a ban on the renewal of this term at the request of a party to the case in case the court recognizes the reasons for its omission as valid;
- cases on appeal of the decision of the arbitration court or on the issuance of an executive document for the enforcement of the decision of the arbitration court, adopted in a dispute regarding a deed concluded with a natural person – a guarantor for the performance of the main obligation under a credit agreement, the parties to which are legal entities, are subject to a decision by the commercial court jurisdiction;
- the appeal in the appeal procedure of the decision on the issuance of an executive letter for the enforcement of the decision of the arbitration court is not provided for by the norms of the current Code of Criminal Procedure of Ukraine. If such a complaint is filed, the court must refuse to open appeal proceedings (Clause 1, Part 1, Article 358 of the Civil Procedure Code of Ukraine). In case of initiation of proceedings regarding the decision of the court of first instance, which is not subject to appeal, the specified proceedings shall be closed;
- the possibility of taking security measures by the state court in cases considered by the arbitration court is provided exclusively by Part 3 of Art. 149 of the Code of Civil Procedure of Ukraine. At the same time, the law does not provide for the possibility of carrying out such measures in the order of economic proceedings.