Publication date: 09.07.2024
Legal regulation of arbitration and mediation in Ukraine
Introduction
Arbitration and mediation are important alternative dispute resolution tools that allow parties to avoid lengthy and costly litigation. In Ukraine, the legal regulation of arbitration and mediation is aimed at creating an efficient and transparent system for resolving commercial and other disputes. In this article, we will analyze the main principles, regulations and bodies that regulate arbitration and mediation in Ukraine, as well as the advantages and peculiarities of these dispute resolution methods.
Basic principles of legal regulation of arbitration and mediation
The legal regulation of arbitration and mediation in Ukraine is based on several key principles that ensure the efficiency and fairness of the dispute resolution process:
Theprinciple of voluntariness. Arbitration and mediation are conducted on a voluntary basis, which means that the parties choose these methods to resolve their disputes.
Theprinciple of independence and impartiality. Arbitrators and mediators must be independent and impartial, which ensures the fairness and objectivity of the dispute resolution process.
Theprinciple of confidentiality. All information obtained during the arbitration or mediation process must remain confidential, which contributes to the parties' trust in these dispute resolution methods.
Theprinciple of equality of the parties. All parties to arbitration or mediation have equal rights and opportunities to present their positions and evidence.
Theprinciple of fairness and reasonableness of decisions. Decisions of arbitrators and mediators must be fair and reasonable, based on the requirements of the law and take into account the interests of all parties.
Key regulations
The legal regulation of arbitration and mediation in Ukraine is based on a number of regulations, among which the key ones are
TheLaw of Ukraine "On International Commercial Arbitration". This law regulates the procedure for the establishment and operation of international commercial arbitration in Ukraine, defines the procedure for arbitration of disputes and enforcement of arbitral awards.
TheLaw of Ukraine "On Arbitration Courts". The Law establishes the legal basis for the organization and operation of arbitration courts in Ukraine, regulates the procedure for resolving disputes in arbitration courts and enforcement of their decisions.
TheLaw of Ukraine "On Mediation". This law defines the legal and organizational framework for mediation in Ukraine, sets requirements for mediators and the mediation procedure.
TheCivil Procedure Code of Ukraine. The Civil Procedure Code contains provisions on the possibility of resolving civil disputes through mediation and arbitration, as well as the procedure for the enforcement of arbitral awards.
CommercialProcedure Code of Ukraine. The Commercial Procedure Code regulates the procedure for commercial disputes in commercial courts, including the possibility of using mediation and arbitration.
State regulatory authorities
The main governmental authorities that regulate and supervise arbitration and mediation in Ukraine are:
TheMinistry of Justice of Ukraine. The Ministry of Justice is responsible for the development and implementation of regulations in the field of arbitration and mediation, as well as coordination of activities of other state bodies in this area.
Courts of general jurisdiction and commercial courts. The courts supervise the enforcement of arbitral awards, consider applications for recognition and enforcement of arbitral awards, and facilitate mediation in cases pending before the courts.
National Association of Mediators of Ukraine. This is a professional association that promotes the development of mediation in Ukraine, sets professional standards for mediators, and conducts their certification and advanced training.
Procedure for arbitration of disputes
The arbitration of disputes includes several main stages, each of which is essential to ensure a fair and efficient resolution of the dispute:
Conclusion of the arbitration agreement. Arbitration of a dispute is only possible if there is an arbitration agreement between the parties that provides for the submission of the dispute to arbitration. The arbitration agreement may be concluded in the form of a separate agreement or an arbitration clause in the main agreement.
Formation of the arbitral tribunal. The parties have the right to determine the number and procedure for appointing arbitrators. If the parties fail to reach an agreement, the arbitrators may be appointed by an arbitral tribunal or a court.
Conduct ofarbitration proceedings. The arbitration shall be conducted in accordance with the procedures established by the arbitration agreement and the rules of the arbitral institution. The parties have the right to provide evidence, call witnesses and present their positions.
Making theaward. The arbitral tribunal shall render an award based on the evidence and the law. The arbitral award shall be binding on the parties.
Recognition and enforcement of the award. In order to recognize and enforce an arbitral award in Ukraine, a competent court shall be requested to file a corresponding application. The court shall consider the application and issue a ruling on the recognition and enforcement of the arbitral award.
Procedure of the mediation process
The mediation process is aimed at reaching a mutually acceptable solution through negotiations between the parties with the assistance of a neutral intermediary - a mediator. The main stages of the mediation process include:
Consent tomediation. The parties must voluntarily agree to mediation and select a mediator who will facilitate the resolution of the dispute.
Preparationfor mediation. The mediator holds preparatory meetings with each of the parties, examines the case file and prepares a plan for the mediation sessions.
Conductingmediation sessions. The mediator organizes and conducts mediation sessions, during which the parties have the opportunity to express their positions, discuss problematic issues and find compromise solutions.
Reaching a mediation agreement. If the parties reach an agreement, the mediator helps them to draw up a mediation agreement that contains all the agreements and conditions for resolving the dispute.
Implementation of themediation agreement. The mediation agreement is legally binding on the parties and may be enforced voluntarily or compulsorily in case of breach of the agreement.
Advantages of arbitration and mediation
Arbitration and mediation have a number of advantages over traditional litigation, which makes them attractive for dispute resolution:
Cost-effectiveness. Arbitration and mediation are usually less expensive than litigation, which allows the parties to save on legal fees and attorneys' services.
Speed. Arbitration and mediation processes usually take less time than litigation, allowing the parties to resolve the dispute quickly and avoid business delays.
Confidentiality. Arbitration and mediation ensure the confidentiality of the process, which allows the parties to preserve trade secrets and avoid negative impact on reputation.
Flexibility. The parties have the opportunity to independently select arbitrators and mediators, establish dispute resolution procedures and agree on the terms of enforcement.
Maintainingrelationships. Mediation, in particular, helps to preserve business relations between the parties, as it is focused on reaching a mutually acceptable solution through negotiations and compromises.
Challenges and prospects for development
Despite their advantages, arbitration and mediation in Ukraine face a number of challenges that require attention from legislators, judicial authorities and professional associations:
Lack ofawareness. Many entrepreneurs and citizens are not sufficiently aware of the possibilities of arbitration and mediation, which limits their use in dispute resolution.
Lack oftrust in arbitration and mediation processes. Some market participants distrust arbitration and mediation due to the lack of transparency of the procedures and the possibility of influencing arbitrators and mediators.
Problems with the enforcement of awards. Recognition and enforcement of arbitral awards may face difficulties due to insufficiently regulated procedures in national legislation and imperfect judicial system.
Professional development ofmediators and arbitrators. To ensure the high quality of arbitration and mediation services, it is necessary to constantly improve the qualifications of mediators and arbitrators, introduce new standards and methods of work.
Conclusion.
The legal regulation of arbitration and mediation in Ukraine is an important tool for ensuring efficient and fair dispute resolution. It includes the legal framework, the activities of state regulatory and supervisory authorities, the procedure for arbitration and mediation of disputes, as well as the benefits and challenges of these dispute resolution methods. Effective legal regulation contributes to the development of arbitration and mediation, increasing the level of trust in these instruments and ensuring a stable legal environment for businesses and citizens in Ukraine.
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