Khoperiya A. Grounds for refusal to recognize and grant permission to enforce the decision of the international commercial arbitration

The article proposes a solution to an important scientific problem, which was to reveal the essence and content of the grounds for refusal to recognise and grant permission to enforce an arbitral award of the ICA based on scientific achievements, provisions of acts of Ukrainian and international legislation and the practice of their application. It is concluded that the recognition and granting of permission to enforce arbitral awards is a necessary step in granting a decision to a private law body that considers disputes between subjects of private relations binding, so that coercive measures can be applied where necessary. It is established that the arbitral award should be considered as an act of a completely private law nature, which is essentially a legal action of a third party to resolve a dispute between the parties, preceded by a set of legal actions of a private law nature aimed at private law agreed to grant the right to settle the dispute definitively to third parties and, in principle, undertook to comply with this decision regardless of whether they agreed with its content. Among the positive aspects of the two-tier system, the concentration of judges’ experience and the development of practice in the consideration of cases on the recognition and granting of permission to enforce the decisions of international commercial arbitration are emphasized. The possibility of refusing to recognize or enforce the arbitral award is determined in the event that the party against whom the award was made has not been duly notified of the appointment of the arbitrator or of the arbitral proceedings. To do this, the party must submit to the relevant court the following evidence: 1) evidence that the parties have not appointed an arbitrator in the manner prescribed by law; 2) evidence that the parties have not agreed on a specific place and time of arbitration; 3) evidence confirming the absence of notification of the party on the appointment of an arbitrator or on the arbitral proceedings in the prescribed manner; 4) evidence that the parties have agreed on the procedure for sending notifications, but the party has not received a notification. In order to refuse to recognize and grant enforcement of an ICA decision due to procedural deficiencies in the arbitral proceedings in the form of non-compliance with the composition of the arbitral tribunal or the arbitration procedure, the following conditions should be provided: 1) evidence that the parties have determined at their own discretion the composition of the arbitral tribunal in the manner prescribed by law; 2) evidence that the parties have agreed on a specific place and time of arbitration; 3) evidence that the parties have agreed on the arbitration procedure; 4) evidence that the composition of the arbitral tribunal or the arbitration procedure did not comply with the agreements of the parties. In the course of the analysis of legislation, the author identifies the grounds for refusal to recognise and enforce an award of the ICAC related to challenging its competence. The author classifies the grounds for refusal to recognise and enforce an award of the ICAC related to procedural deficiencies in the arbitral proceedings. The author highlights the grounds for refusing to recognise and enforce an award of the ICAC related to its appeal at the place of its issuance. Based on the provisions of the current legislation, the author identifies the grounds for refusal to recognise and enforce an award of the ICAC, which are subject to investigation at the initiative of a national court. The author describes the improper subject matter of the dispute and the public policy clause as grounds for refusing to recognise and enforce an international commercial arbitration award.