Proceedings in the cases of granting permission for the enforcement of arbitration awards: problems and areas of improvement

The legislator enshrines a legal mechanism for settling the issuance of an executive document by the court of competent jurisdiction. As stipulated in art. 485 of the CPC of Ukraine, an application for a writ of execution to enforce the arbitration award shall be unilaterally considered by the judge within fifteen days from the date of its receipt in the courtroom with notice of the parties. Moreover, the non-appearance of the parties or one of the parties duly notified of the date, time, and place of the hearing shall not preclude the judicial examination of the application. A similar provision is available in art. 56 of the Law.

Following the examination of the application for issuing a writ of execution to enforce the arbitration award, the court decides on issuing a writ of execution or a refusal to issue a writ of execution to enforce the arbitration award.

It should be noted that under the above provision of the CPC of Ukraine, in considering an application for a writ of execution to enforce the arbitration award at the request of one of the parties, the court requires a case from the permanent arbitral tribunal which stores it. In this case, there is a legal conflict with the provisions of the Law "On Courts of Arbitration" because under the provisions of p. 2 of art. 56 of the Law, in considering an application for issuing an executive document, the competent court must request the case from the permanent arbitral tribunal which stores it. Thus, the CPC of Ukraine indicates the option of resolving this issue if the parties care, and the case cannot be called on if they have not required it. At the same time, the Law imperatively obliges the court of competent jurisdiction to take action without making it dependent on the parties' will. However, the purpose of such a request is unclear in both cases. Moreover, if the case is requested from the permanent arbitration court, the term of consideration of the application for issuing a writ of execution is significantly increased. The case must be forwarded to the state court within five days from the date of receipt of the request. In this case, the period for consideration of the application for issuing a writ of execution for the enforcement of the arbitration award shall be extended to thirty days from the date of its receipt by the court.

In addition, a lack of the statutory indication of the option of requesting the case, which the arbitration court considered, by the court to resolve a specific dispute catches attention.

It seems that the above is due to the fact that the Law does not regulate the storage of such cases at all if a writ of execution has not been issued for them. Part 2 of art. 54 of the Law only deals with the storage of case materials considered by the arbitration court to resolve a specific dispute for which enforcement documents have been issued. They must be kept in the court of competent jurisdiction, at the place of issuance of the executive document.

Noting the legislative inconsistency, the author believes that there is no need for requesting the case from a permanent arbitral tribunal or arbitral tribunal to resolve a particular dispute, given that in deciding on the issuance of a writ of execution to enforce the arbitration award, the state court is not authorized to review arbitration cases as an appellate or cassation authority is.

Grounds for a refusal to issue a writ of execution to enforce an arbitration award

Within proceedings in the case of granting permission to enforce the arbitration award, the court must ascertain the absence or existence of grounds for a refusal to issue a writ of execution stipulated in art. 486 of the CPC of Ukraine and synchronized with the provisions of part 6 of art. 56 of the Law. The analysis of these norms contributes to the conclusion that most of the listed grounds for a refusal to issue a writ of execution to enforce the arbitration award are legally justified, but some of them are contradictory.

First of all, the author dwells on the grounds of the first conditionally defined group which, given the essence of the procedure under the study, have an explicit legal and practical focus, so their regulation and preservation in procedural law are necessary. Thus, the court must refuse to issue a writ of execution to enforce the arbitration award if: the arbitration award has been revoked by the court on the date of the approval of the decision upon the application for issuing a writ of execution; the case in which the arbitration award has been made is not under the jurisdiction of the arbitral tribunal by law; the deadline for applying for a writ of execution has been missed, and the court has not recognized reasons for its omission as valid; the arbitration award has been made in a dispute not provided for in the arbitration agreement, or this arbitration award has resolved issues beyond the scope of the arbitration agreement (if the arbitration award has resolved issues that go beyond the arbitration agreement, it may be revoked only in the part which concerns the relevant); the arbitration award is invalidated; the arbitral tribunal decided on the rights and obligations of persons who did not participate in the case.

While exercising such powers, the court fulfills the control function over the arbitration award, which is mentioned above and which must be assigned to the state as represented by judicial authorities as the only authorities executing justice through authorized professional judges. In this context, the author cannot agree with V.A. Rekun who proposed - for the interests of cases, for the interests of enterprises, organizations and in order to relieve state courts of the obligation to issue executive documents in arbitration cases which they did not consider - to allow one or more permanent arbitral tribunals to issue enforcement documents in cases in an experimental fashion (Rekun, 2009, p. 268).

In addition, the author believes that activities of the judicial body cannot be purely formal towards the issuance of an executive document. The state court must assess the arbitration award as to its compliance with the law; however, it is essential to keep in mind that the issuance of a writ of execution enforces the arbitration award and hence has some substantive effects on the interested parties, including debtors. The position of I.O. But is convincing, as follows: given that the interested party appeals to the court with a statement, the purpose of which is to guarantee the state enforcement of the arbitration award, the court of competent jurisdiction must make sure that the arbitration award is indeed lawful. At the same time, the court of competent jurisdiction should be endowed not with audit functions (i. e., not to review the case and the arbitration award, make a new decision, or change it) but control ones, incl. a refusal to issue a writ of execution on the grounds of the arbitration award's non-compliance with the law (But, 2016, p. 190).

Therefore, if the court finds the above circumstances amidst the procedure concerned, it must respond accordingly, i. e., a refuse to issue a writ of execution to enforce the arbitration award. At the same time, it should be noted that the establishment of these grounds by the court is not legally related to requesting the case from the arbitral tribunal. The conclusion on the availability of preconditions for refusing to issue a writ of execution can be made only on the basis of the documents obligatorily attached to the application: the original arbitration award (or a duly certified copy thereof) and the original arbitration agreement (or a duly certified copy thereof), or a valid court decision revoking the arbitration award or declaring the arbitration agreement invalid.

The statutory imposition of an obligation on the state court to establish the potential availability of other grounds for a refusal to issue a writ of execution in proceedings for granting permission to enforce arbitration awards is unjustified and contradicts the essence of this procedure. In particular, para. 8, p. 1 of art. 486 of the CPC of Ukraine entails that the court shall refuse to issue a writ of execution to enforce the arbitration award if the permanent arbitral tribunal has not provided the specific case at the court's request. The author has previously defended the position that requesting the case from the arbitral tribunal does not meet the objectives and competence of the state court in the context of the legal goal to be achieved through a system of procedural actions in the proceedings on the case of granting permission to enforce the arbitration award. It seems that requesting for the arbitration case's materials should take place only in the case of initiating another type of proceedings - proceedings in cases of appeal against arbitration awards, challenging awards of international commercial arbitration. The scientific community has other arguments in favor of the exclusion of such a ground for a refusal to issue a writ of execution for enforcing the arbitration award as failure to provide materials of the arbitration case, which also deserves attention, at the court's request. For example, N.S. Stasiv notes that the refusal to issue a writ of execution on the grounds of the arbitral tribunal's failure to provide the materials of the arbitration case at the request of the court is a sanction applicable to the applicant who does not have objective options to comply with the requirements of the court decision, and, therefore, shall not be liable (Stasiv, 2020b, p. 7).

The legislator regards the cases when the arbitration award contains ways to defend the rights and protected interests not provided by law as grounds to refuse to issue a writ of execution for the arbitration award (item 7, p. 1 of art. 486 of the CPC of Ukraine). This legislative provision is in discord with provisions of other regulations, in particular art. 16 of the Civil Code of Ukraine. I.O. But has studied this issue within his dissertation (But, 2016, pp. 191-193). Today, the current wording of p. 2 of art. 16 of the Civil Code of Ukraine outlines general methods of the protection of civil rights and interests. However, it is also consolidated the norm under which the court may protect a civil right or interest in a different way established by an agreement or law or a court in cases specified by law. That kind of the vision of ways to protect a right is reflected in the procedural rules. In particular, art. 5 of the CPC of Ukraine establishes that when executing justice, the court protects the rights, freedoms and interests of natural persons, the rights and interests of legal entities, state and public interests in the manner prescribed by law or agreement. If the law or agreement does not determine an effective way to protect the violated, unrecognized or disputed right, freedom, or interest of the person who has appealed to the court, the court may determine a method to protect the right, which is not contrary to law, following the requirement stated by such a person. Arbitration courts also should be authorized to apply such an approach to determining methods to protect rights. Therefore, the ground provided in para. 7, p. 1 of art. 486 of the CPC of Ukraine should be excluded.

Among other things, pursuant to the current procedural law, the court refuses to issue a writ of execution for enforcing the arbitration award if the arbitral panel, which made the arbitration award, did not meet the statutory requirements,

i. e., the requirements of Section III of the Law of Ukraine "On Courts of Arbitration". However, the establishment of the relevant circumstances cannot be implemented by the court on the assumption that the court should not request for an arbitration case, as well as go beyond its powers in proceedings of granting permission to enforce arbitration awards, i. e., in deciding on the issuance of a writ of execution, as in order to conclude the arbitral panel's non-compliance with the statutory requirements, it is necessary to conduct a substantive trial with mandatory examination and evaluation of relevant evidence indicating such a circumstance, which cannot occur in the proceedings. In the author's opinion, the consideration of this issue should take place only on the initiative of interested persons, who should apply to the court of competent jurisdiction and provide the necessary evidence to confirm their position. This will ensure the dispositive and adversarial nature of civil proceedings and avoid the acquisition of features of the investigative process. Many scientific contributions are devoted to dispositive and adversarial principles as fundamental categories of civil proceedings and the court's role in such proceedings. In particular, V. A. Kro- itor and V. Yu. Mamnytskyi, studying the adversarial principle, note that the law is based on the point that civil proceedings are conducted on an adversarial basis, but with the active assistance of the court, i. e., on the terms of their cooperation, to consider the case effectively (Kroitor, Mamnitskyi, 2019, p. 41). It is essential to support this position as the court can only assist interested parties in exercising their rights, but it cannot undertake such rights.

One should draw attention to the fact that the above ground is available in the list of grounds for revoking the arbitration award, but only within proceedings on the case of appeals against arbitration awards, challenging awards of international commercial arbitration. This type of proceedings is the only possible and optimal procedure for establishing that the arbitral panel, which made the decision, did not meet the statutory requirements. Therefore, to differentiate court competence and avoid duplication of judicial powers in various proceedings, para. 6, part 1 of art. 486 of the CPC of Ukraine also needs to be abolished, but such a ground must be preserved in para. 4 of p. 2 of art. 458 of the CpC of Ukraine.

Conclusions

The procedure for applying for the enforcement of arbitration awards requires improvement. The legal issues that need to be resolved in the current legislation include the elimination of the conflict between the norms of the CPC of Ukraine and the Law of Ukraine "On Arbitration Courts" in terms of determining the court of competent jurisdiction authorized to consider the case on the issuance of an executive document. This power should be assigned to the court of appeal, as it is currently enshrined in civil procedural law. In addition, the legal requirement for requesting the case by the state court from the arbitration court is unfounded, given the nature of the proceedings in cases of granting permission to enforce arbitration awards. It is argued that legal grounds for refusing to issue a writ of execution to enforce arbitration awards (arbitral panel, which made the arbitration award, did not meet statutory requirements; arbitration award contains ways to assert the rights and protected interests not provided by law; the permanent arbitration tribunal did not provide the relevant case at the court's request) should be excluded from art. 486 of the CPC of Ukraine. Although the article resolves some controversial issues, the procedure concerned requires further studies in this regard.

References

1. But, I.O. (2016). Rozhliad tsyvilno-pravovykh sporiv treteiskymy sudamy v Ukraini [Consideration of civil disputes by arbitration courts in Ukraine]. Candidate's thesis. Odesa (in Ukrainian).

2. Kotviakovskyi, Yu.O. (2017). Deiaki problemni pytannia shchodo prymusovoho vykonannia rishen treteiskykh sudiv [Some issues on enforcement of arbitration decisions]. Pryvatne tapublichnepravo - Private and public law, no. 1, pp. 24-27 (in Ukrainian).

3. Kroitor, V.A., Mamnitskyi, V. Yu. (2019). Adversarial principle under the new civil procedure in Ukraine. Access to justice in Eastern Europe, no. 4(5), pp. 30-41. DOI: 10.33327/AJEE-18-2.4-a000021 (in English).

4. Rekun, V.A. (2009). Problemy vykonannia rishen treteiskykh sudiv [Problems of execution of decisions of arbitration courts]. Aktualni problemy derzhavy i prava - Actual problems of the state and law, no. 47, pp. 264-268 (in Ukrainian).

5. Sibilov, D.M. (2021). Vykonavcha syla rishen treteiskykh sudiv [Executive force of decisions of arbitration courts]. Problemy zakonnosti - Problems of legality, no. 153, pp. 38-48. DOI: 10.21564/2414-990X.153.225629 (in Ukrainian).

6. Stasiv, N.S. (2020a). Henezys prymusovoho vykonannia rishen treteiskoho sudu [Genesis of the forced enforcement of the decision of court of arbitration]. Jurnalul juridic national: teorie §i practica - National law journal: theory and practice, no. 1, pp. 81-85 (in Ukrainian).

7. Stasiv, N.S. (2020b). Tsyvilne sudochynstvo u spravakh pro nadannia dozvolu na prymusove vykonannia rishen treteiskykh sudiv [Civil proceedings in cases of granting permission to enforce the decisions of arbitration courts]. Extended abstract of candidate's thesis. Lviv (in Ukrainian).

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