Fishing Company S.A. v. State Enterprise “Servis”

At a glance

Parties

Fishing Company S.A. (British Virgin Islands) v. State Enterprise "Servis" (Ukraine)

Case no.

Kyiv Court of Appeal No. 824/266/18 (proceeding No. 2к/824/12/2019)

Court

Kyiv Court of Appeal, sitting as court of first instance; Judge M.M. Panchenko presiding

Underlying award(s)

Award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry, 28 September 2018, Case No. 76/2018 (sole arbitrator, name redacted)

Treaty

New York Convention 1958 (Articles II and IV); Ukrainian Law on International Commercial Arbitration, Articles 35–36; Civil Procedure Code, Articles 474–479

Sector

Shipping; ship management; suretyship

Outcome

The award was recognised and leave to enforce it was granted (1 March 2019). The court ordered a writ of execution to issue.

Amount

Award enforced: USD 220,000 debt, USD 7,680.72 arbitration fee and USD 2,014.25 legal costs, a total of USD 229,694.97. Court fee: UAH 881 against the debtor.

The dispute

Fishing Company S.A., a British Virgin Islands company, stood surety for the State Enterprise "Kerch Sea Fishing Port". The first surety agreement, dated 31 December 2015, was with LOGNAR Maritime Ltd. and covered standard ship management agreements dated 31 December 2015 and 1 March 2016. The second, dated 25 April 2016, was with E.G.S. Denizcilik ve Ticaret Ltd. Sti. and covered Agency Agreement No. 03/2016. Fishing Company paid USD 173,079.28 and USD 88,837.52 on the port's behalf. The State Fisheries Agency then ordered the vessel "Tamanskiy" transferred to State Enterprise "Servis" (Order No. 410 of 24 November 2016). By agreements of 16 February 2017, Servis replaced the port as debtor and agreed repayment schedules. Servis made no payments, and Fishing Company obtained an award of USD 220,000 plus costs from the ICAC at the Ukrainian Chamber of Commerce and Industry. It then applied to the Kyiv Court of Appeal to have the award recognised and enforced. Servis filed no objections and did not appear at the hearing.

Key holdings

1. The debtor's absence did not prevent the court from deciding the application (Article 477(1) of the Civil Procedure Code). The court refused the debtor's request to adjourn because no documents supported it. p. 2
2. The applicant met the requirements of Article IV of the New York Convention and Article 35(2) of the Law on International Commercial Arbitration. It filed the original award and certified copies of the arbitration clause. The documents were in Ukrainian, so no translation was needed. p. 4
3. There were no grounds to refuse under Article 478 of the Civil Procedure Code. The dispute could be arbitrated under the law, and nothing showed the award was contrary to Ukrainian public policy. The debtor raised no objections and offered no evidence. The arbitration clause is in clause 5 of the surety agreements. p. 5
4. The applicant did not ask for conversion into Ukrainian currency under Article 479(6) of the Civil Procedure Code. The sums are therefore recoverable in US dollars, the currency of the award. p. 5
5. The award was recognised and leave to enforce it was granted. A writ of execution is to issue for USD 229,694.97, and the debtor must pay the UAH 881 court fee. p. 6

Procedural history

1. 16 February 2017State Enterprise "Servis" replaces the original debtor under both surety agreements, and repayment schedules are agreed.
2. 28 September 2018The ICAC at the Ukrainian Chamber of Commerce and Industry (Case No. 76/2018, sole arbitrator) awards Fishing Company USD 229,694.97 in total.
3. 29 December 2018Fishing Company applies to the Kyiv Court of Appeal for recognition and enforcement of the award.
4. 2 January 2019The court sends the application to the debtor and invites objections within one month. None are filed.
5. 4 February 2019The court schedules the application for a hearing.
6. 1 March 2019The court recognises the award and grants leave to enforce it. The ruling could be appealed to the Supreme Court within 30 days; it entered into force on 2 April 2019.

Tribunal, counsel and experts

Decided by

• M.M. Panchenko Judge, Kyiv Court of Appeal (presiding judge)

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Keywords

• New York Convention
• recognition and enforcement
• Article IV
• Article II
• ICAC Ukrainian Chamber of Commerce and Industry
• Ukraine
• Kyiv Court of Appeal
• surety agreement
• ship management agreement
• substitution of debtor
• state enterprise
• public policy
• default of respondent
• Kerch Sea Fishing Port
• Tamanskiy
• foreign currency judgment

Summary generated with AI from the published documents — refer to the award for the authoritative text.