ІММСО (Industrial Minerals and Metals) v. PJSC Dniprovskyi Metalurhiynyi Combinat

At a glance

Parties

IMMCO (Industrial Minerals & Metals) Limited (Hong Kong) v. PJSC Dniprovskyi Metalurhiynyi Kombinat (Ukraine)

Case no.

Kyiv Court of Appeal Case No. 796/94/2018 (appellate proceeding No. 2-к/824/3/2018)

Court

Kyiv Court of Appeal, Judge I.V. Ivanova (sitting alone)

Underlying award(s)

Award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry (ICAC), Case No. AC 217у/2017, 18 January 2018

Forum and rules

ICAC at the Ukrainian Chamber of Commerce and Industry, Kyiv; ICAC Rules

Treaty

Contract No. 14-1419-12 of 15 August 2014, arbitration clause (clauses 9.2–9.3)

Sector

Metallurgy; sale of goods

Outcome

Application granted: the award was recognised, enforcement was permitted and a writ of execution was ordered (28 November 2018).

Amount

Award enforced: USD 11,665.44 for goods delivered plus USD 1,874.09 for arbitration fees, total USD 13,539.53.

The dispute

IMMCO (Industrial Minerals & Metals) Limited, a Hong Kong company, entered into sale contract No. 14-1419-12 on 15 August 2014 with PJSC Dniprovskyi Metalurhiynyi Kombinat im. F.E. Dzerzhynskoho. The respondent PJSC Dniprovskyi Metalurhiynyi Kombinat became its legal successor in 2016. The contract was governed by Ukrainian substantive law, and its clauses 9.2–9.3 referred disputes to the ICAC at the Ukrainian Chamber of Commerce and Industry. The buyer did not perform its obligations. IMMCO brought a claim on 14 July 2017, and on 18 January 2018 a three-member ICAC tribunal ordered the buyer to pay USD 13,539.53. In April 2018 IMMCO applied to the Kyiv appellate court for recognition of the award and permission to enforce it. The respondent did not appear and filed no objections.

Key holdings

1. The arbitration clause in clauses 9.2–9.3 of the contract is a written arbitration agreement that meets Article 7 of the Ukrainian Law on International Commercial Arbitration and Article 2(1) of the ICAC Rules. p. 2
2. The application was filed within the three-year time limit of Article 475(3) of the Civil Procedure Code. It came with the documents required by Article 476 of the Code and Article 36 of the Law: the original award, a notarised copy of the contract and certified Ukrainian translations. p. 3
3. The party opposing enforcement bears the burden of proving the grounds for refusal under Article 36 of the Law, Article 478 of the Civil Procedure Code and the 1958 New York Convention. The respondent offered no evidence of any ground, and the court found none. p. 4
4. The award is final and immediately enforceable. A separate application to set it aside had been rejected by the Kyiv appellate court on 27 April 2018, and the Supreme Court upheld that rejection on 17 September 2018. The respondent had been duly notified of the arbitration and had asked three times for adjournments. pp. 3–4
5. The court recognised the award, permitted its enforcement and ordered a writ of execution for USD 11,665.44 plus USD 1,874.09, a total of USD 13,539.53. The ruling may be appealed to the Supreme Court within thirty days. p. 5

Procedural history

1. 15 August 2014Sale contract No. 14-1419-12 concluded, with an ICAC arbitration clause.
2. 14 July 2017IMMCO files its claim with the ICAC at the Ukrainian Chamber of Commerce and Industry.
3. 18 January 2018The ICAC awards IMMCO USD 13,539.53 (Case No. AC 217у/2017).
4. 10 April 2018The Kyiv City Court of Appeal opens proceedings on IMMCO's application for recognition and enforcement, filed in April 2018.
5. 27 April 2018The Kyiv City Court of Appeal refuses to set the award aside. The Supreme Court upholds this on 17 September 2018.
6. 31 May 2018The enforcement proceedings are stayed at the respondent's request.
7. 18 October 2018The enforcement proceedings resume before the new Kyiv Court of Appeal, which replaced the liquidated appellate courts.
8. 28 November 2018The Kyiv Court of Appeal grants recognition and enforcement and orders a writ of execution.

Tribunal, counsel and experts

Decided by

• I.V. Ivanova Judge, Kyiv Court of Appeal

For the claimant

O.A. Boboshko

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Keywords

• recognition and enforcement
• New York Convention
• ICAC Ukrainian Chamber of Commerce and Industry
• domestic award enforcement
• writ of execution
• Ukrainian Civil Procedure Code Article 478
• Law on International Commercial Arbitration Article 36
• burden of proof
• sale of goods
• metallurgical plant
• Dnipro Metallurgical Plant
• Hong Kong
• set-aside rejected
• Kyiv Court of Appeal

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