Ministry of Defence v Vector Avia
Supreme Court of Ukraine applies access to court principles to reject excessive formalism in ICAC award enforcement
Facts in brief
The Ministry of Defence of Ukraine obtained an arbitral award from the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry in case No. 425/2023 against the Turkish supplier Vector Avia. The Ministry then applied to the Kyiv Court of Appeal for permission to enforce the award and for issuance of a writ of execution.
The total award was USD 2,692,244.26, consisting of USD 2,669,673.44 in penalties and fines and USD 22,570.82 as reimbursement of the arbitration fee.
Discussion
Vector Avia argued before the Kyiv Court of Appeal and on appeal to the Supreme Court that the Ministry’s application should be left without consideration because the Ministry had not produced the original arbitration agreement or a notarized copy. It relied on Article 476(4) of the Civil Procedure Code of Ukraine, which requires, among other documents, the original arbitration agreement or a notarized copy. Vector Avia also objected that the copy filed by the Ministry had been certified by the Ministry’s own department, rather than by an independent source.
The courts rejected that objection in the circumstances of the case. The Ministry showed that the original contract and related documents had been seized in a Ukrainian criminal investigation. The Kyiv Court of Appeal compared the Ministry-certified copy of the supply contract and compared it with a copy certified by a representative of the Office of Prosecutor General. On that record, the Supreme Court held that there was no basis to leave the Ministry’s application without consideration.
For this anti-formalism point, the Supreme Court relied on the European Court of Human Rights’ access to court case law under Article 6(1) of the European Convention on Human Rights, including Miragall Escolano and Others v. Spain and Pérez de Rada Cavanilles v. Spain, making the point that procedural requirements should not be interpreted so strictly that they deprive a party of effective access to court.
Supreme Court connected that approach with Article 12(5)(4) of the Civil Procedure Code, under which the court, while remaining objective and impartial, assists participants in exercising their procedural rights.