On October 22, 2020, Marchenko Partners, jointly with the Business Ombudsman Council, organized a webinar devoted to an important issue for Ukraine: “When Court Decisions or Arbitral Awards Are Not Enforced by States – Practical Insights.”
Our partner Oleh Marchenko talked about the State responsibility for the non-enforcement of arbitral awards or decisions of national courts, which is not an uncommon issue for Ukraine. When court decisions or arbitral awards in private disputes are not enforced by a given State, the State may be responsible for denying justice and may have to pay the check itself. The issue is especially relevant in enforcement proceedings against state-owned companies, whose assets are protected by a moratorium on enforcement. Oleh discussed pluses and minuses of using investor-state dispute settlement instruments and the European Court of Human Rights for denial of justice cases by reviewing and comparing several cases against Ukraine and other States, including GEA (Germany) v. Ukraine (ICSID 2011), Romak (Switzerland) v. Uzbekistan (PCA 2009), Western NIS Fund (USA) v. Ukraine (ICSID 2006), White Industries Australia v. India (UNCITRAL 2011), and Regent v. Ukraine (ECtHR 2008).
Volodymyr Kutsenko, an investigator from the Business Ombudsman Council, shared his experience in helping businesses to deal with the non-enforcement of court decisions and arbitral awards by various state agencies of Ukraine. The non-enforcement issue is a priority for the Council, which received over 500 complaints during 5 years. Volodymyr explained how a company could submit its claims to the Council and their consideration by the Council. He reviewed illustrative cases, in which the Council helped to enforce court decisions and arbitral awards.