Puyang Refractories Group Co. Ltd. v. PJSC Energomashspetsstal

At a glance

Parties

Puyang Refractories Group Co., Ltd. (China) v. PJSC Energomashspetsstal (Ukraine)

Case no.

Kyiv Court of Appeal Case No. 796/101/2018, Proceeding No. 2-k/824/5/2018

Court

Kyiv Court of Appeal (Judge Ya.S. Melnyk, presiding alone)

Underlying award(s)

Award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry (ICAC at the UCCI) of 27 February 2018, Case AC No. 291у/2017 (sole arbitrator)

Forum and rules

Application for recognition and enforcement under the Ukrainian Code of Civil Procedure, the Law of Ukraine on International Commercial Arbitration and the 1958 New York Convention (Articles IV and V)

Treaty

New York Convention 1958

Sector

Supply of refractory goods

Outcome

The application was granted. The court recognised the award, allowed its enforcement and ordered a writ of execution to be issued.

Amount

Award enforced: USD 191,690.25 in total, made up of USD 173,442.24 for goods delivered, USD 11,255.27 as 3% annual interest on the overdue sum, and USD 6,992.74 for the arbitration fee. The court also awarded UAH 881 in court costs.

The dispute

On 6 March 2014 Puyang Refractories Group Co., Ltd., a Chinese company, signed sales contract No. 15/62443 with PJSC Energomashspetsstal of Kramatorsk, Ukraine. Six annexes, dated March 2014 to January 2016, set out the goods to be supplied. Puyang delivered goods worth USD 331,644.40, but the buyer paid only USD 158,202.16. Article 16 of the contract referred disputes to the ICAC at the UCCI, with a sole arbitrator, Ukrainian substantive law and a seat in Kyiv. On 27 February 2018 a sole arbitrator appointed by the Chamber awarded Puyang USD 191,690.25. Puyang then applied to the Kyiv Court of Appeal for recognition and enforcement. Energomashspetsstal objected that the award was contrary to law and that the case had been heard without its representative present.

Key holdings

1. Under Article V of the New York Convention, Article 478 of the Code of Civil Procedure and Article 36 of the Law on International Commercial Arbitration, the party opposing enforcement bears the burden of proving a ground for refusal. The list of grounds in the Convention is exhaustive and must not be read broadly. p. 3–4
2. The debtor gave no substantial reasons or evidence for refusing enforcement. The court found that the arbitration agreement had not been held invalid and that the debtor had been properly notified of the arbitrator's appointment and of the proceedings. It also found that the tribunal's composition and the procedure followed the parties' agreement, and that the award was binding and had been neither set aside nor suspended. p. 4
3. Neither party raised objections in the arbitration about non-compliance with the arbitration clause, the ICAC Rules or the Law on International Commercial Arbitration. Under Article 4 of that Law, both parties are therefore deemed to have waived their right to object. p. 2
4. The court found no issue that could not be arbitrated and no conflict with Ukrainian public policy. p. 4
5. The award was stated in a foreign currency, and the creditor did not ask for the amount to be converted into hryvnia. The court therefore stated the sum in US dollars. It ordered a writ of execution for USD 191,690.25 and awarded UAH 881 in court costs under Article 141 of the Code of Civil Procedure. p. 4–5

Procedural history

1. 6 March 2014Sales contract No. 15/62443 signed. It contains an arbitration clause (Article 16) referring disputes to the ICAC at the UCCI.
2. 16 January 2018The Ukrainian Chamber of Commerce and Industry appoints the sole arbitrator because the parties did not agree on one.
3. 27 February 2018ICAC award in Case AC No. 291у/2017 orders Energomashspetsstal to pay USD 191,690.25. The award took legal effect the same day.
4. April 2018Puyang applies to the Kyiv Court of Appeal for recognition and enforcement of the award.
5. 7 November 2018Kyiv Court of Appeal grants the application and orders a writ of execution. The ruling may be appealed to the Supreme Court within 30 days.

Tribunal, counsel and experts

Decided by

• Ya.S. Melnyk Judge, Kyiv Court of Appeal

For the claimant

Hanna Oleksiivna Dyrda

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Keywords

• New York Convention
• recognition and enforcement
• Article V
• Article IV
• ICAC at the UCCI
• Ukrainian Chamber of Commerce and Industry
• Ukraine
• China
• Kyiv Court of Appeal
• refractories
• sale of goods
• unpaid price
• burden of proof
• waiver of objections
• public policy
• writ of execution
• Energomashspetsstal

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