I. Competence of the Maritime Arbitration
Commission
1.1. The Maritime Arbitration Commission
shall settle disputes arising from contractual and other civil law
relationships in the area of merchant shipping, irrespective of
whether the parties to a relationship include both Ukrainian and
foreign entities, or whether the parties are only Ukrainian
entities or only foreign entities. In particular, the Maritime
Arbitration Commission shall settle disputes arising from
relationships concerning the following matters:
1) the affreightment of vessels, the carriage
of goods by sea, the carriage of goods in the mixed navigation
(river-sea);
2) the maritime towage of vessels or other floating objects;
3) marine insurance and reinsurance;
4) the sale of seagoing vessels and other floating objects, their
repairs and maritime liens;
5) piloting, conducting through ice, agencing or other servicing
of seagoing vessels, as well as vessels of inland navigation to the
extend that the relevant operations are connected with the sailing
of such vessels on the sea routes;
6) the use of vessels for scientific research, extraction of
minerals and hydrotechnical and other works;
7) the salvage of seagoing vessels or vessels of inland navigation
by seagoing vessels, as well as the salvage in sea waters of
vessels of inland navigation by other vessel of inland
navigation;
8) the raising of vessels and other property sunken in sea
waters;
9) collisions between seagoing vessels, or between a seagoing
vessel and vessel of inland navigation, or between vessels of
inland navigation in sea waters, as well as the infliction by a
vessel of damage to port installations, navigational aids and other
objects;
10) the infliction of damage to fishing nets or other fishing
gear, as well as the infliction of other damage in conducting
maritime fishery trade.
The Maritime Arbitration Commission shall
also consider disputes arising in connection with sailing of
seagoing vessels and vessels of inland navigation on international
rivers, in the instances specified in the present article, and also
disputes arising in connection with performing by vessels of inland
navigation abroad carriages.
1.2. The Maritime Arbitration Commission
shall entertain disputes in a case of the availability of the
written agreement (arrangement) by the parties to submit to
arbitration all or certain disputes which have arisen or which may
arise between the parties in respect of defined legal relationship,
whether contractual or not. An arbitration agreement may be in the
form of arbitration clause in the contract or in the form of a
separate agreement.
1.3. The arbitration agreement shall be in
writing. An agreement is in writing if it is contained in a
document signed by the parties, or in exchange of letters, telex,
telegrams or other means of telecommunication which provide a
record of a such agreement, or in an exchange of statements of
claim and defence in which the existence of an agreement is alleged
by one party and not denied by another. The reference in a contract
to a document containing an arbitration agreement provided that the
contract is in writing and the reference is such as to make that
clause part of the contract.
1.4. The arbitration clause which forms part
of a contract shall be treated as an agreement independent of the
other terms of the contract. A decision by the Maritime Arbitration
Commission that the contract is null and void shall not entail ipso
jure the invalidity of the arbitration clause.
1.5. The Maritime Arbitration Commission
shall entertain disputes subject to its jurisdiction by virtue of
international treaties and agreements.
1.6. The question as to the competence of the
Maritime Arbitration Commission in every concrete case shall be
decided by the President of the Maritime Arbitration
Commission.
1.7. A plea that the Maritime Arbitration
Commission does not have jurisdiction shall be raised not later
than the submission of the statement of defence. A party is not
precluded from raising such a plea by the fact that he has
appointed, or participated in the appointment of an arbitrator. A
plea that the Maritime Arbitration Commission is exceeding the
scope of its authority shall be raised as soon as the matter
alleged to be beyond the scope of its authority is raised during
the arbitral proceedings. The Maritime Arbitration Commission may,
in either case, admit a later plea if it considers the delay
justified.
1.8. The Maritime Arbitration Commission may
rule on a plea referred to in Article 1.7. of the present Rules
either as a preliminary question or in an award on the merits. If
the Maritime Arbitration Commission rules as a preliminary question
that it has jurisdiction, any party may request, within thirty days
after having received notice of that ruling, the Kiev's City Court
to decide the matter, which decision shall be subject to no appeal;
while such a request is pending, the Maritime Arbitration
Commission may continue the arbitral proceedings and make an
award.
1.9. Unless otherwise agreed by the parties,
the Maritime Arbitration Commission may, at the request of a party,
order any party to take such interim measures of protection as the
Maritime Arbitration Commission may consider necessary in respect
of the subject-matter of the dispute. The Maritime Arbitration
Commission may require any party to provide appropriate security in
connection with such measure.
It is not incompatible with an arbitration agreement for a party to
request, before or during arbitral proceedings, a court to order
interim measure of protection and for a court to take a decision
granting such measures.
II. Organization of the Maritime Arbitration
Commission
2.1. The Maritime Arbitration Commission
shall consist of the President, two Vice-presidents, the
arbitrators and the Secretary in Charge.
2.2. The Maritime Arbitration Commission has
its Presidium, which members are the President of the Maritime
Arbitration Commission and its Vice-Presidents.
The President of the Maritime Arbitration Commission is at the same
time the Chairman of the Presidium.
Two members of the Presidium constitute a quorum. Decisions of the
Presidium are taken by the majority of votes. If the votes are
decided equally, the Chairman of the Presidium shall have the
decisive vote.
2.3. The President of the Maritime
Arbitration Commission and its Vice-Presidents shall be approved by
the Presidium of the Ukrainian Chamber of Commerce and Industry for
the term of 4 years.
The President of the Maritime Arbitration Commission shall organize
activity of the Commission, perform functions mentioned in the
present Rules, represent the Maritime Arbitration Commission in its
relations in Ukraine and abroad.
One of the Vice-Presidents, as designated by the President of the
Maritime Arbitration Commission, shall perform functions of the
President of the Maritime Arbitration Commission in his
absence.
Functions of the Vice-presidents of the Maritime Arbitration
Commission shall be defined by the President of the Maritime
Arbitration Commission.
2.4. Arbitrators are persons appointed by the
parties provided all conditions of the present Rules are observed,
or persons appointed by the President of the Ukrainian Chamber of
Commerce and Industry.
Presidium of the Ukrainian Chamber of Commerce and Industry shall
approve the Recommendatory List of Arbitrators, which can include
citizens of Ukraine, as well as citizens of other countries and
persons of no nationality.
The List of Arbitrators shall specify the name and surname of the
arbitrator, his nationality and permanent residence, education,
speciality, scientific degree (title), office and other data as
decided by the Presidium of the Maritime Arbitration
Commission.
2.5. The arbitrators shall be independent,
objective and impartial in fulfilling their duties. They can not be
representatives of the parties.
2.6. The Secretary in Charge is appointed by
the President of the Ukrainian Chamber of Commerce and Industry by
recommendation of the Presidium of the Maritime Arbitration
Commission.
The Secretary in Charge shall organize the clerical work and shall
perform functions provided by the Rules.
2.7. The arbitrators, the Presidium and
Secretary in Charge of the Maritime Arbitration Commission shall
maintain the confidentiality in regard to the disputes settled in
the Maritime Arbitration Commission.
2.8.The Maritime Arbitration Commission at
the Ukrainian Chamber of Commerce and Industry has its own seal
reproducing its name in the Ukrainian and English languages and
displaying an anchor and the scales of justice.
III. Composition of the Maritime Arbitration
Commission considering the case
3.1. The parties are free to determine the
number of arbitrators, including the sole arbitrator. Failing such
agreement of the parties, three arbitrators shall be appointed. The
arbitrator or arbitrators, considering the case, irrespective of
their number shall be called Composition of the Maritime
Arbitration Commission for the period of proceedings.
3.2. No person shall be precluded by reason
of his nationality from acting as an arbitrator, unless otherwise
agreed by the parties.
3.3. The parties are free to agree on
procedure of appointing the arbitrator or arbitrators, subject to
the provisions of the present Rules.
Failing such agreement,
- in an arbitration with three arbitrators,
each party shall appoint one arbitrator, and the two arbitrators
thus appointed shall appoint the third arbitrator - President of
the Composition of the Maritime Arbitration Commission on a named
case; if a party fails to appoint the arbitrator within 30 days of
receipt of a notification to do so from the Maritime Arbitration
Commission or if the two arbitrators fail to agree on the third
arbitrator within 30 days of their appointment, arbitrator shall be
appointed by the President of the Ukrainian Chamber of Commerce and
Industry in accordance with Article 11/3/ of the Law of Ukraine On
International Commercial Arbitration;
- in an arbitration with a sole arbitrator, if
the parties are unable to agree on the arbitrator, arbitrator shall
be appointed by the President of the Ukrainian Chamber of Commerce
and Industry in accordance with Article 11/3/ of the Law of Ukraine
On International Commercial Arbitration.
3.4. Where, under an appointment procedure
agreed upon by the parties,
- a party fails to act as required under such
procedure;
or
- the parties, or two arbitrators, are unable
to reach an agreement expected of them under such procedure;
or
- a third party, including an institution,
fails to perform any function entrusted to it under such procedure,
any party may request the President of the Ukrainian Chamber of
Commerce and Industry to take the necessary measures, unless the
agreement on the appointment procedure provides other means for
securing the appointment.
3.5. The President of the Ukrainian Chamber
of Commerce and Industry, in appointing an arbitrator, shall have
due regard to any qualifications required of the arbitrator by the
agreement of the parties and to such considerations as are likely
to secure the appointment of an independent and impartial
arbitrator and, in the case of a sole arbitrator or president of
the Composition of the Maritime Arbitration Commission, shall take
into account as well the advisability of appointing an arbitrator
of nationality other than those of the parties.
3.6. Decrees of the President of the
Ukrainian Chamber of Commerce and Industry made in accordance with
Articles 3.3., 3.5. of the present Rules are subjects to no
appeal.
3.7. When a person is approached in
connection with his possible appointment as an arbitrator, he shall
disclose any circumstances which may give rise to justifiable
doubts as to his impartiality or independence. An arbitrator, from
the time of his appointment and throughout the arbitral
proceedings, shall without delay disclose any such circumstances to
the parties, unless they have already been informed of them by
him.
3.8. An arbitrator may be challenged only if
circumstances exist that give rise to justifiable doubts as to his
impartiality or independence, or if he does not possess
qualifications required by the agreement of the parties. A party
may challenge an arbitrator appointed by him, or in whose
appointment he has participated, only for reasons of which he
becomes aware after the appointment has been made.
3.9. The parties are free to agree on a
procedure for challenging an arbitrator, subject to the provisions
of paragraphs 10 and 11 of this Article.
3.10. Failing such agreement, a party who
intends to challenge an arbitrator shall, within 15 days after
becoming aware of the constitution of the Composition of the
Maritime Arbitration Commission or after becoming aware of any
circumstances referred to in Article 3.8 of this Rules communicate
the reasons for the challenge in writing to the Composition of the
Maritime Arbitration Commission.
Unless the challenged arbitrator withdraws from his office or the
other party agrees to the challenge, the Presidium of the Maritime
Arbitration Commission shall decide on the challenge.
3.11. If a challenge under any procedure
agreed upon by the parties or under the procedure of Article 3.10.
of this Rules is not successful, the challenging party may request,
within 30 days after having received notice of the decision
rejecting the challenge, the President of the Ukrainian Chamber of
Commerce and Industry to decide on the challenge; its decision
shall be subject to no appeal. While such a request is pending, the
Composition of the Maritime Arbitration Commission, including the
challenged arbitrator, may continue the arbitral proceedings and
make an award.
3.12. If an arbitrator become de
jure or de facto unable to perform his functions or
for other reasons fails to act without undue delay, his mandate
terminates if he withdraws from his office or if the parties agree
on the termination.
Otherwise, if a controversy remains concerning any of these
grounds, any party may request the President of the Ukrainian
Chamber of Commerce and Industry to decide on the termination of
the mandate; its decision shall be subject to no appeal.
3.13. If, under Articles 3.10 or 3.12 of the
present Rules, an arbitrator withdraws from his office or a party
agrees to the termination of the mandate of an arbitrator, this
does not imply acceptance of the validity of any grounds referred
to in Articles 3.10. or 3.12. of the present Rules.
3.14. Where the mandate of an arbitrator
terminates under Articles 3.10 or 3.12. of the present Rules or
because of his withdrawal from office for any other reason or
because of the revocation of his mandate by agreement of the
parties or in any other case of termination of his mandate, a
substitute arbitrator shall be appointed according to the rules
that were applicable to the appointment of the arbitrator being
replaced.
IV. Arbitral Proceedings
а. General
Provisions
4.1. The parties shall be treated with
equality and each party shall be given a full opportunity of
presenting his case.
4.2. Subject to the provisions of the Law of
Ukraine On International Commercial Arbitration, the parties are
free to agree on the procedure to be followed by the Maritime
Arbitration Commission in conducting the proceedings.
Failing such agreement, the Maritime Arbitration Commission may,
subject to the provisions of the Law of Ukraine On International
Commercial Arbitration, conduct the arbitration in such manner as
it considers appropriate. The powers conferred upon the Maritime
Arbitration Commission include the power to determine the
admissibility, relevance, materiality and weight of any
evidence.
4.3. The location of the Maritime Arbitration
Commission and the place of its meetings shall be in
Kiev.
4.4. The parties are free to agree on the
place of arbitration. Failing such agreement, the place of
arbitration shall be determined by the Maritime Arbitration
Commission having regard to the circumstances of the case,
including the convenience of the parties.
4.5. Notwithstanding the provisions of
paragraph 4 of this Article, the Maritime Arbitration Commission
may, unless otherwise agreed by the parties, meet at any other
place it considers appropriate for consultations among the
arbitrators, for hearing witnesses, experts or the parties, or for
inspection of goods, other property or documents.
4.6. The arbitral proceedings shall be
conducted in Ukrainian or Russian languages.
4.7. The parties are free to agree on the
language or languages to be used in the arbitral proceedings.
Failing such agreement, the Maritime Arbitration Commission shall
determine the language or languages to be used in the proceedings.
This agreement or determination, unless otherwise specified
therein, shall apply to any written statement by a party, any
hearing and any award, decision or other communication by the
Maritime Arbitration Commission.
4.8. The Maritime Arbitration Commission may
order that any applications and documentary evidence shall be
accompanied by a translation into the language or languages agreed
upon by the parties or determined by the Maritime Arbitration
Commission.
4.9. The time-limit for arbitral proceedings
in a case shall not exceed 6 months from the date of receiving a
duly formed Statement of Claim and arbitration fee.
The Presidium can prolong this term on the grounds of the motivated
address of the Composition of the Maritime Arbitration Commission
or one of the parties.
4.10. All documents pertinent to the arbitral
proceedings shall be submitted by the parties in a number of copies
equal to the number required to provide one copy for each party and
not less than one copy for the Maritime Arbitration
Commission.
4.11. The Secretariat of the Maritime
Arbitration Commission shall provide for all documents in case to
be transmitted to the parties in time. They are to be transmitted
to the addresses indicated by the parties.
4.12. Unless otherwise agreed by the parties,
any written communication is deemed to have been received if it is
delivered to the addressee personally or if it is delivered at his
place of business, permanent residence or mailing address; if none
of these can be found after making a reasonable inquiry, a written
communication is deemed to have been received if it is sent to the
addressee's last-known place of business, permanent residence or
mailing address by registered letter or any other means which
provides a record of the attempt to deliver it.
The communication is deemed to have been received on the day it is
so delivered.
4.13. The Statement of Claim, the Statement
of Defence, the Notice, the arbitral award, the decree or decision
shall be sent to the party by Air-Mail Registered letter with
special delivery or shall be handed personally against
receipt.
Other documents and communications may be sent by ordinary mail or
by telefax, telegraph.
4.14. The Ukrainian Chamber of Commerce and
Industry approves the order of computation and the Schedule of
arbitration fees, the rates of arbitrators' fees and other expenses
of the Maritime Arbitration Commission.
4.15. The computation and allotment of
arbitration fees and compensation of the expenses of the Maritime
Arbitration Commission shall be effected in accordance with the
Schedule on Arbitration Fees and Costs forming a part of the
present Rules (Annex).
4.16. Violation of the order and term for the
payment of arbitration fee and compensation of the expenses of the
Maritime Arbitration Commission may result in the suspension or
termination of the arbitral proceedings. In such cases the Decree
on the suspension or termination of the arbitral proceedings in the
case shall be made by the Chairman of the Presidium of the Maritime
Arbitration Commission.
b. Commencement of Arbitral
Proceedings
5.1. The proceedings in a case shall be
commenced by the filing a duly formed Statement of Claim to the
Maritime Arbitration Commission.
The date of the filing a claim to the Maritime Arbitration
Commission shall be the date of its handing to the Maritime
Arbitration Commission, and, if sent by mail, - the date of the
stamp of the post-office at the place of sending.
5.2. The Statement of Claim shall
contain:
- the name of the Maritime Arbitration
Commission;
- the names and postal addresses of the
parties;
- an indication of the amount of
claim;
- the claimant's demands;
- substantiation of jurisdiction of the
Maritime Arbitration Commission;
- comprehensive statement of the facts,
evidences and legal arguments supporting the claim; substantiated
calculations of the amounts to be recovered or disputed;
legislation on which the claim is referred;
- the list of documents and other evidences
attached to the claim;
- the claimant's signature.
5.3. Attached to the claim are:
- copies of the Statement of Claim and
attached to it documents for the respondent;
- documents supporting the circumstances, on
which the claim is based;
- a proof of payment of the registration
fee.
The parties are free to make a reference to
the documents or other evidence they will submit.
5.4. The Secretary in Charge shall after
receipt of the Statement of Claim send to the Claimant the Rules,
the Recommendatory List of Arbitrators and communicate the amount
of the arbitration fee to be paid by the Claimant on the account of
the Ukrainian Chamber of Commerce and Industry.
In the event that the claim is referred without observance of the
requirements provided for by paragraph 2 and 3 of the present
article, the Secretary in Charge shall offer the Claimant to
rectify the defects within 30 days from the date of the receipt of
such offer.
Pending rectification of the above defects the case shall stay
without progress and if the offer is not fulfilled the arbitral
proceedings terminates.
5.5. At the same time the Secretary in Charge
shall notify the Claimant about the necessity in accordance with
Article 3 of the Rules to send statement on the quantitative
composition of the Maritime Arbitration Commission and appoint an
arbitrator by indicating his name and surname and to submit proof
of payment of the arbitration fee.
5.6. If the Claimant within 30 days from the
date of receipt of notification fails to communicate his statement
on the quantitative composition of the Maritime Arbitration
Commission and to indicate the name and surname of the arbitrator
appointed by him, the arbitrator shall be appointed in accordance
with Article 11/3/ of the Law of Ukraine On International
Commercial Arbitration by the President of the Ukrainian Chamber of
Commerce and Industry.
If the Claimant within 30 days from the date of receipt of
notification fails to submit proof of the payment of the
arbitration fee, the arbitral proceedings in the case shall be
terminated.
5.7. If it becomes evident that the Maritime
Arbitration Commission does not have jurisdiction in the case, it
shall reject to receive the Statement of Claim and return it to the
Claimant within 10 days.
5.8. Within 10 days from the date of the
receipt of duly formed Statement of Claim, the Secretary in Charge
of the Maritime Arbitration Commission shall inform the Respondent
of this receipt and send to the Respondent copies of the Statement
of Claim and attached to it documents, as well as the Rules and the
Recommendatory List of Arbitrators.
5.9. At the same time the Secretary in Charge
shall offer to the Respondent within 30 days from the date of
receipt of the Statement of Claim to submit to the Maritime
Arbitration Commission any written explanations (Statement of
Defence) and all documents supporting his objections to the claim;
any counter-claim or set-off, if available; with the corresponding
groundings, unless the parties have otherwise agreed as to the
required elements of the Statement of Defence, as well as to
communicate to the Maritime Arbitration Commission the name and
surname of the arbitrator appointed by him in accordance with
Article 3 of the Rules.
At the request of the Respondent the named period of time for
submission of the additional documents may be extended, but not
more than for one month.
If the Respondent within 30 days from the date of receipt of the
claim materials fails to appoint an arbitrator, the arbitrator
shall be appointed by the President of the Ukrainian Chamber of
Commerce and Industry in accordance with Article 11/3/ of the Law
of Ukraine On International Commercial Arbitration.
5.10. The counter-claim which is to be
correlated with the original claim, shall meet the same
requirements as the original claim.
5.11. Unless otherwise agreed by the parties,
either party may amend or supplement his claim or defence during
the course of the arbitral proceedings, unless the Maritime
Arbitration Commission considers it inappropriate to allow such
amendment having regard to the delay in making it.
The above is applied to the right of a party to state requirements
as to the counter-claim or set-off.
c. Preparation for the Consideration of the
Case
6.1. The Secretary in Charge shall make
preliminary preparation for the consideration of the case in
accordance with Articles 4, 5 of the present Rules.
6.2. The Composition of the Maritime
Arbitration Commission shall check the preparation procedure and,
if necessary, take additional measures to prepare the case for the
consideration, in particular, it may demand written explanations,
evidences and other documents from the parties.
6.3. The Secretary in Charge shall notify the
parties 30 days prior to the proceedings of the time and place of
the meeting of the Composition of the Maritime Arbitration
Commission and of the personal composition of the Maritime
Arbitration Commission.
This period of time can be reduced or extended by the consent of
the parties.
d. The Consideration of the Case
7.1. Subject to any contrary agreement by the
parties, the Composition of the Maritime Arbitration Commission
shall decide whether to hold oral hearings for the presentation of
evidence or for oral argument, or whether the proceedings shall be
conducted on the basis of documents and other materials only.
However, unless the parties have agreed that no hearings shall be
held, the Composition of the Maritime Arbitration Commission shall
hold such hearings at an appropriate stage of the proceedings, if
so requested by the party.
7.2. The parties shall be given sufficient
advance notice of any hearing and of any meeting of the Composition
of the Maritime Arbitration Commission or the purpose of inspection
of goods, other property or documents.
7.3. All the statements, documents or other
information supplied to the Composition of the Maritime Arbitration
Commission by one party shall be communicated to another party.
Also any expert report or evidentiary document on which the
Composition of the Maritime Arbitration Commission may rely in
making the decision shall be communicated to the parties.
The parties may conduct their cases in the Maritime Arbitration
Commission and take part in the arbitral proceedings directly or
through their duly authorized representatives.
7.4. Unless otherwise agreed by the parties,
if, without showing sufficient cause:
- the Claimant fails to communicate his
Statement of Claim in accordance with Articles 5.2., 5.3. of the
present Rules, - the Composition of the Maritime Arbitration
Commission shall terminate the proceedings;
- the Respondent fails to communicate his
Statement of Defence in accordance with the Rules, - the
Composition of the Maritime Arbitration Commission shall continue
the proceedings without treating such failure in itself as an
admission of the Claimant's allegations;
- any party fails to appear at a hearing or
produce documentary evidence, - the Composition of the Maritime
Arbitration Commission may continue the proceedings and make the
award on the evidence before it.
7.5. The Composition of the Maritime
Arbitration Commission may adjourn the consideration of the
case:
- in a case of the necessity to require a new
evidence;
- in connection with non-appearance of the
respondent's representative in the meeting of the court, if there
is no notification that the notice of a date of the arbitral
proceedings was handed over to him;
- in a case of the deviation of the
application on the challenge of arbitrator and request of the
challenging party to the President of the UCCI according to Article
3.11. of the present Rules.
The consideration of the case may be
adjourned on the presence of another circumstances determined by
the Composition of the Maritime Arbitration Commission as
preventing to settle dispute in the given meeting.
7.6. Unless otherwise agreed by the parties,
the Maritime Arbitration Commission:
- may appoint one or more experts to report to
it on specific issues to be determined by the Composition of the
Maritime Arbitration Commission;
- may require a party to give the expert any
relevant information or to produce, or to provide access to, any
relevant documents, goods or other property for his
inspection.
7.7. Unless otherwise agreed by the parties,
if a party so requests, or if the Composition of the Maritime
Arbitration Commission considers it necessary, the expert shall,
after delivery of his written or oral report, participate in a
hearing where the parties have the opportunity to put questions to
him and to present expert witnesses in order to testify on the
points at issue.
e. Making of Award and Termination of
proceedings
8.1. The Maritime Arbitration Commission
shall decide the dispute in accordance with such rules of the law
as are chosen by the parties as applicable to the substance of the
dispute. Any designation of the law or legal system of a given
State shall be construed as directly referring to the substantive
law of that State and not to its conflict of laws rules.
8.2. Failing any designation by the parties,
the Maritime Arbitration Commission shall apply the law determined
by the conflict of laws rules which it considers
applicable.
8.3. The Maritime Arbitration Commission
shall decide ex aequo et bono or as amiable compositeur only if the
parties have expressly authorize it to do so.
8.4. In all the cases, the Maritime
Arbitration Commission shall decide in accordance with the terms of
the contract and shall take into account the usages of the trade
applicable to the transaction.
8.5. The arbitral proceedings are terminated
by the final arbitral award or by an order of the Maritime
Arbitration Commission for termination of arbitral
proceedings.
8.6. In arbitral proceedings with more than
one arbitrator any decision of the Composition of the Maritime
Arbitration Commission shall be made, unless otherwise agreed by
the parties, by a majority of all its members. However, questions
of procedure may be decided by a presiding arbitrator, if so
authorized by the parties or all members of the Composition of the
Maritime Arbitration Commission.
8.7. The award shall be made in writing and
shall be signed by the arbitrator or arbitrators. In arbitral
proceedings with more than one arbitrator, the signatures of the
majority of all members of the Composition of the Maritime
Arbitration Commission shall suffice, provided that the reason for
any omitted signature is stated.
8.8. The arbitral award shall state the
reasons upon which it is based, a resolution regarding satisfaction
or rejection of the claim, the amount of the arbitration fee and
costs and their apportioning.
8.9. The award shall state its date and the
place of a meeting of the Composition of the Maritime Arbitration
Commission . According to Article 4 the award shall be deemed to
have been made at that place.
8.10. If, during arbitral proceedings, the
parties settle the dispute, the Composition of the Maritime
Arbitration Commission shall terminate the proceedings and, if
requested by the parties and not objected to by the Composition of
the Maritime Arbitration Commission, record the settlement in the
form of an arbitral award on agreed terms.
8.11. The award on agreed terms shall be made
in accordance with the provisions of the Articles 8.6.-8.9. of the
Rules and shall state that it is an award. Such an award has the
same status and effect as any other award on the merits of the
case.
8.12. The Composition of the Maritime
Arbitration Commission shall issue an order for termination of the
arbitral proceedings when:
- the Claimant withdraws his claim, unless the
Respondent objects thereto and the Composition of the Maritime
Arbitration Commission recognizes a legitimate interest on his part
in obtaining a final settlement of the dispute;
- the parties agree on the termination of the
proceedings;
- the Composition of the Maritime Arbitration
Commission finds that the continuation of the proceedings has for
any other reason become unnecessary or impossible, including when
the Claimant violated the procedure of paying the arbitration
fee.
8.13. The arbitral award on the merits of the
dispute or an order for termination of the proceedings is announced
at the arbitral meeting after the proceedings is over. The
Composition of the Maritime Arbitration Commission may announce the
resolutive part of the award only.
In connection with the particular complexity of a case, the award
on it may be made during 5 days, what is announced at the
proceedings.
8.14. Within 10 days from the date of making
an award, the parties shall be sent the motivated award in a
written form, which is signed by the arbitrators in accordance with
paragraph 7 of the present Article. If necessary, the President of
the Maritime Arbitration Commission shall be entitled as an
exception to extend this term; but not more than by 10
days.
8.15. The mandate of the Composition of the
Maritime Arbitration Commission terminates with the termination of
the arbitral proceedings, subject to the provisions of Articles
8.16.-8.18 of the present Rules.
8.16. Within 30 days of receipt of the award,
unless another period of time has agreed upon by the
parties:
- any of the parties, with notice to the other
party, may request the Composition of the Maritime Arbitration
Commission to correct in the award any errors in computation, any
clerical or typographical errors or any errors of similar
nature;
- if so agreed by the parties, a party, with
notice to the other party, may request the Composition of the
Maritime Arbitration Commission to give an interpretation of a
specific point or part of the award.
If the Composition of the Maritime
Arbitration Commission considers the request to be justified, it
shall make the correction or give the interpretation within 30 days
of receipt of the request. Such interpretation shall form part of
the award.
8.17. The Composition of the Maritime
Arbitration Commission may correct any error of the type referred
to in sub-paragraph 16/a/ of this Article on its own initiative
within 30 days of the date of the award.
8.18. Unless otherwise agreed by the parties
any of the parties, with notice to the other party, may request,
within 30 days of receipt of the award, the Composition of the
Maritime Arbitration Commission to make an additional award as to
claims presented in the arbitral proceedings but omitted from the
award. If the Composition of the Maritime Arbitration Commission
considers the request to be justified, it shall make the additional
award within 60 days.
8.19. The provisions of Article 8 shall apply
to a correction or interpretation of the award or to an additional
award.
V. Recourse against an Arbitral
award
9.1. Recourse to a court against an arbitral
award may be made only by an application for setting aside in
accordance with paragraph 2 and 3 of the Article 9 of the present
Rules.
9.2. An arbitral award may be set aside
according to the Article 6/2/ of the Law of Ukraine On
International Commercial Arbitration by the Kiev's City Court only
if:
- the party making the application for setting
aside furnishes proof that:
- a party to the arbitration agreement
referred to in Article 1.2. of the Rules was under some incapacity;
or the said agreement is not valid under the law to which the
parties have subjected it or, failing any indication thereon, under
the law of Ukraine;
or
- he was not given proper notice of the
appointment of an arbitrator or of the arbitral proceedings or was
otherwise unable to present his case;
or
- the award was made regarding a dispute not
contemplated by or not failing within the terms of the submission
to arbitration, or contains decisions on matters beyond the scope
of the submission to arbitration, provided that, if the decisions
on matters submitted to arbitration can be separated from those not
so submitted, only that part of the award which contains decisions
on matters not submitted to arbitration may be set aside;
or
- the Composition of the Maritime Arbitration
Commission or the arbitral procedure was not in accordance with the
agreement of the parties, unless such agreement was in conflict
with a provision of the Law of Ukraine On International Commercial
Arbitration from which the parties cannot derogate, or, failing
such agreement, was not in accordance with this Law;
or
- the court finds that:
- the subject-matter of the dispute is not
capable of settlement by arbitration under the Law of
Ukraine;
or
- the award is in conflict with the public
policy of Ukraine.
9.3. An application for setting aside may not
be made after three months have elapsed from the date on which the
party making that application had received the award or, if the
request had been made under Articles 8.16-8.18 of the present
Rules, from the date on which that request had been disposed of by
the Maritime Arbitration Commission.
VI. Recognition and Enforcement of an
arbitral award
10.1. An award of the Maritime Arbitration
Commission shall be final. It shall be carried out by the parties
voluntarily within the time-limit indicated by the Maritime
Arbitration Commission.
If the award does not indicate any time-limit, it shall be carried
out immediately.
10.2. An arbitral award shall be recognized
as binding and in a case of refusal from its voluntary execution
shall be enforced depending on the respondent's location.
If the debtor is in Ukraine, the award of the Maritime Arbitration
Commission at the UCCI shall be enforced upon the application in
writing to the competent court on the place of the debtor's
location in accordance with the Law of Ukraine On International
Commercial Arbitration and the Rules of civil procedure of
Ukraine.
If the debtor is abroad, the claimant's application in writing
shall be communicated to the competent court of the country where
the debtor is located and in accordance with Article III of the
New-York Convention On the Recognition and Enforcement of Foreign
Arbitral Awards /1958/ or interstate agreement the state court of
the contracting state shall recognize and enforce awards of the
Maritime Arbitration Commission in accordance with the Rules of
procedure of the territory where the awards is relied
upon.
10.3. To obtain the recognition and
enforcement of the award, the party applying for recognition and
enforcement shall, at the time of the application, supply to the
competent state court the duly authenticated original award or a
duly certified copy thereof, and also the original arbitration
agreement referred to in Article 1.2. of the Rules or a duly
certified copy thereof. If the said application, award or agreement
is not made in an official language of the country in which the
award is relied upon, the party applying for recognition and
enforcement of the award shall produce a translation of these
documents into such language in two copies. The translation shall
be certified by an official or sworn translator or by a diplomatic
or consular agency.
SCHEDULE ON ARBITRATION FEES AND
COSTS
I. Definitions
Arbitration Fee
shall mean a fee charged in respect of each
case to cover the general expenses connected with the work of the
Maritime Arbitration Commission at the Ukrainian Chamber of
Commerce and Industry.
Arbitration fee comprises arbitrators' fees for examination and
settlement of an economic dispute and administration fee to cover
the Maritime Arbitration Commission expenses (remuneration of legal
and clerical staff, their travelling allowance, maintenance,
established state charges and taxes, etc.).
Costs of the arbitral procedure
shall mean special expenses of the Maritime
Arbitration Commission incurred in connection with the examination
of a case (expenses of conducting expert examination and preparing
translations, sums to be paid to interpreters, experts and
witnesses, travelling allowance connected with the case
examination, etc.).
Expenses of the parties
shall mean expenses incurred by the parties
separately in defending their interest through representatives
before the Maritime Arbitration Commission, their travelling
allowance, lawyers' fees, etc.
II. Arbitration Fee
1. The arbitration fee shall be charged in
the currency in which claim amount is expressed or in freely
convertible currency. The party located on the territory of Ukraine
may pay currency officially circulating in Ukraine calculated into
US dollars at the rate of purchase by the National Bank of Ukraine
of the foreign currency coming into free sale on the date of
payment of the arbitration fee.
Where the claim is brought in various currencies, the Maritime
Arbitration Commission shall determine a single currency of the fee
to be paid.
2. The arbitration fee shall be calculated
depending on the amount of the claim according to the following
schedule.
Amount of claim in US $
|
Arbitration Fee in US $
|
Upwards of
|
Up to
|
0
|
50,000
|
6% of the claim amount, but not less than
600
|
50,001
|
100,000
|
3,000 + 4% of the claim amount exceeding
50,000
|
100,001
|
200,000
|
5,000 + 3% of the claim amount exceeding
100,000
|
200,001
|
500,000
|
8,000 + 2% of the claim amount exceeding
200,000
|
500,001
|
1,000,000
|
14,000 + 1% of the claim amount exceeding
500,000
|
1,000,001
|
5,000,000
|
19,000 + 0.5% of the claim amount exceeding
1,000,000
|
5,000,001
|
|
39,000 + 0.3% of the claim amount exceeding
5,000,000
|
The above amounts of the arbitration fee is paid when the case is
considered by the panel of arbitrators in composition of three
arbitrators. If the case is considered by the sole arbitrator, the
amount of the arbitration fee shall be reduced on 30%.
If the parties did not come to an agreement as to the number of the
arbitrators, considering the case, the claimant shall pay
arbitration fee in advance for three arbitrators.
In the case, if the parties agreed that their case shall be
considered by the sole arbitrator, the amount of the arbitration
fee, paid by the claimant for other two arbitrators shall be
returned to the claimant by the decision of the President of the
Maritime Arbitration Commission.
3. To determine the amount of the arbitration
fee in each case, the claim amount shall be computed in US dollars
at the rate established in the country where the currency of the
claim is the legal mean of payment on the date of the payment of
the arbitration fee. The same exchange rate shall be used to
compute the amount of the received fee in the currency of
payment.
4. The arbitration fee shall be considered as
paid on the day when the sum is transferred to the payment account
No. 260020128332 MFO 322313 of the Ukrainian Chamber of Commerce
and Industry in Ukreximbank in Kiev. Freely convertible currency
shall be transferred to the currency account No. 260020128332/840
in the same Bank.
Costs on the bank transfer of the amounts of the arbitration fees
and expenses paid to the Maritime Arbitration Commission are borne
by the party making the corresponding payment.
5. When submitting the statement of claim,
the claimant shall pay the registration fee in the amount of 200 US
dollars to the above account of the Ukrainian Chamber of Commerce
and Industry. This fee shall not be refundable. It shall be used to
cover arbitration fee. The remaining portion of the arbitration fee
shall be paid by the claimant within 30 days after receiving the
corresponding notification from the Maritime Arbitration Commission
about the amount of the fee to be paid.
The case shall stay without progress until the mentioned amount of
the fee is transferred to the account of the Ukrainian Chamber of
Commerce and Industry.
6. If the consideration of the case is
terminated by the decision of the President of the Maritime
Arbitration Commission in accordance with paragraphs 5.4. and 5.6.
of the Rules, the claimant shall pay 10% of the amount of the
arbitration fee.
III. Reduction of the Amount and Partial
Return of the Arbitration Fee
1. Where the claimant withdraws his claim
before the notice of the hearing date is sent to him, the Maritime
Arbitration Commission shall return 75% of the amount of the
arbitration fee to him less the amount of the registration
fee.
2. Where the claimant withdraws his claim
after the notice of the hearing date is sent to him but before the
date of the first hearing of the case, particularly owing to the
parties' having settled the disputes amicably, as well as in other
instances of the Maritime Arbitration Commission receiving, before
the above date, notification of the parties' refusal to be their
dispute considered by the Maritime Arbitration Commission, 50% of
the arbitration fee less the amount of the registration fee shall
be returned to the claimant.
3. Where owing to the circumstances mentioned
in paragraph 2 of this section the examination of the case is
terminated at the first hearing without an award being made, 25% of
the arbitration fee less the amount of the registration fee shall
be returned to the claimant.
4. In cases as provided by paragraphs 1,2,3
the decision of the partial return of the arbitration fee shall be
contained in the award or order for termination of the arbitral
proceedings in a case. If the arbitral proceedings terminates
before the Composition of the Maritime Arbitration Commission is
formed, order for return of the fee is to be passed by the
President of the Maritime Arbitration Commission.
IV. Arbitration Fee in Respect of
Counter-claim
1. The Rules as to the arbitration fee
relating to the principal claim shall also apply to a
counter-claim.
V. Allotment of Arbitration Fee
1. The arbitration fee shall be borne by the
unsuccessful party, subject to any other rules.
2. Where the claim is partially awarded the
arbitration fee shall be borne by the respondent in proportion to
the satisfied amount of the claim and by the claimant in proportion
to the dismissed part of the claim.
3. The parties are free to agree on an
allotment of the arbitration fee other than provided in paragraphs
1 and 2.
VI. Costs of the Arbitral
Procedure
1. The costs of the arbitral procedure shall
be paid by the parties as follows:
If the parties agreed the consideration to be
conducted neither in Ukrainian or in Russian, they shall borne the
expenditures for the interpreter solidary.
If upon the request of a party the
translation of the commentaries and instructions of the Composition
of the Maritime Arbitration Commission is made on a language
another than Ukrainian or Russian, the expenses of translation
shall be paid by the requesting party.
The same rule shall apply to translation of
the awards of the Maritime Arbitration Commission and to the cases
provided for in Articles 4.7.-8. of the Rules of the Maritime
Arbitration Commission.
2. In a case of participation in the
proceedings of the appointed by a party arbitrator, whose habitual
residence is out of the place of meeting of the Maritime
Arbitration Commission, this party shall make an advance for
payment for his participation in the arbitral proceedings (on
travelling expenses, accomodation, etc.).
In case of appointment of such arbitrator by the President of the
Ukrainian Chamber of Commerce and Industry or in a case of his
appointment as the presiding arbitrator, the named advance should
be made by each party in equal amounts, and if the respondent
should not made the corresponding advance in the said time-limit,
the payment of such advance should be made by the
claimant.
3. The Maritime Arbitration Commission may
request that the claimant should deposit an advance to cover the
costs as are necessary for the conduct of the proceedings.
The Maritime Arbitration Commission may also request the party
applying for necessity to provide any act connected with the
proceedings to pay the advance, if it considers such application
justified.
4. The costs of the arbitral procedure shall
be computed in the currency in which they are incurred. The date of
payment of costs or advance costs shall be determined according to
the rules of paragraph 4 of Section II.
VII. Expenses of the Parties
1. Each party shall bear his own expenses
mentioned in paragraph 3 of Section I.
Expenses born by the party in favour of which the award has been
made, connected with the defence of its interests before the
Maritime Arbitration Commission (traveling allowance, expenses for
legal assistance etc.) can be reimbursed to the other party to the
extend which is found justified by the Maritime Arbitration
Commission.
2. By way of exception of the rules laid down
in Sections V-VII the Maritime Arbitration Commission may exact for
benefit of party the other party's unnecessary expenses caused by
the former's unfair and inappropriate acts. Such acts shall
include, in particular, acts causing an unjustified delay in the
proceedings.