Decision of the Kyiv Court of Appeal in the case 824/15/26 dated 12 May 2026

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KYIV COURT OF APPEAL

R U L I N G

I N T H E N A M E O F U K R A I N E

Kyiv Unique case number No. 824/15/26

Proceedings No. 22-sk/824/13/2026

12 May 2026, the Kyiv Court of Appeal, composed of a judge of the Judicial Chamber for Civil Cases:

presiding judge - V. M. Ratnikova

with secretary - M. V. Uliianytska

having considered at an open court hearing the application of the Limited Liability Company "KHIMMELTEK" (Ukraine) to set aside the award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry of 19 December 2025 in case No. 172/2025 on the claim of Himmeltek OU (Republic of Estonia) against the Limited Liability Company "KHIMMELTEK" (Ukraine) for the recovery of a debt for goods delivered, as well as the costs of paying the arbitration fee, -f o u n d:

In March 2026, the Limited Liability Company "KHIMMELTEK" (Ukraine) applied to the Kyiv Court of Appeal, as the court of first instance, with an application to set aside the award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry of 19 December 2025 in case No. 172/2025 on the claim of Himmeltek OU (Republic of Estonia) against the Limited Liability Company "KHIMMELTEK" (Ukraine) for the recovery of a debt for goods delivered, as well as the costs of paying the arbitration fee.

The application is substantiated by the fact that, by the award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry of 19 December 2025 in case No. 172/2025, there were recovered from the Limited Liability Company "KHIMMELTEK" (Ukraine, 03022, Kyiv, Mykhaila Maksymovycha Street, ZH P/P 495A; identification code 40592452) in favour of Himmeltek OU (Estonia, Harju maakond, Kesklinna linnaosa, Tallinn, Tartu mnt 67/1- 13b, 10115; registry code 14206308) USD 84,285.66 of debt for goods delivered and USD 4,454.14 as reimbursement of the costs of paying the arbitration fee, in total USD 88,739.80 (eighty-eight thousand seven hundred and thirty-nine US dollars 80 cents).

The ground for applying to set aside the award of the ICAC at the Ukrainian Chamber of Commerce and Industry is that the award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry of Ukraine of 19 December 2025 in case No. 172/2025 is contrary to the public policy of Ukraine.

The applicant states that the only evidence relied upon in the arbitration by the claimant in the arbitral proceedings as confirmation of the fact of delivery and acceptance of the goods was a copy of the international consignment note (CMR).

The respondent in the arbitral proceedings disputed the authenticity of that document, pointing to doubts as to the genuineness of the signatures and seal impressions. In order to establish the material circumstances of the case, the respondent filed a written motion of 18.11.2025 for the appointment of a forensic technical (handwriting) examination, and made an oral motion to summon and examine witnesses who could confirm or refute the fact of delivery and acceptance of the goods.

The International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry refused those motions, despite the fact that they were of material importance for establishing the factual circumstances of the case.

The applicant considers that, by refusing the respondent in the arbitral proceedings an examination and the questioning of witnesses, the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry failed to verify the authenticity of the claimant's only evidence, which raised doubts on the part of the respondent, and based its award on an unverified copy of a document that is important for the case.

Thus, the respondent was in fact deprived of the opportunity to exercise the right to protect its civil rights and interests, and the arbitral award was made without observing the balance of the procedural rights of the parties.

Referring to the fact that the refusal of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry to appoint an examination and to question witnesses, in the presence of reasonable doubts as to the authenticity of the claimant's only evidence, led to a material violation of fundamental principles of justice, namely the equality of the parties and a fair hearing, which resulted in the making of an award that does not conform to the foundations of the legal order of Ukraine, the applicant, the Limited Liability Company "KHIMMELTEK" (Ukraine), requests the court to set aside the award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry of 19 December 2025 in case No. 172/2025 and to impose the court costs on the claimant in the arbitral proceedings.

In the objections to the application, the representative of Himmeltek OU (Republic of Estonia), attorney Roman Yukhymovych Kushnir, referring to the fact that the application of the Limited Liability Company "KHIMMELTEK" is groundless and unsubstantiated, requests that the application of the Limited Liability Company "KHIMMELTEK" of the Limited Liability Company "KHIMMELTEK" (Ukraine) to set aside the award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry of 19 December 2025 in case No. 172/2025 be refused.

He states that the award of the ICAC at the Ukrainian Chamber of Commerce and Industry of 19.12.2025 in case No. 172/2025 is not contrary to the public policy of Ukraine, its independence, integrity, autonomy and inviolability, or constitutional rights, freedoms and guarantees, since this award was made exclusively in respect of the debtor as a separate legal entity and an independent participant in economic turnover, extends its effect only to the debtor and does not concern third parties.

In addition, the disputed legal relationship within the scope of the case is based on the agreement of the parties (on a contractual basis); the content of the contract does not reveal the application of a rule of law of a foreign state that contradicts or conflicts with the current civil legislation of Ukraine; therefore the public policy of Ukraine is not affected in this case.

Nor can the arguments of the application that the arbitral tribunal deprived the respondent of the opportunity to prove its position and made an award on the basis of unverified evidence be recognised as substantiated and as a ground for setting aside the ICAC award, since the ICAC documents were sent to the respondent's official e-mail address - [email protected], which is indicated in the extract from the Unified State Register of Legal Entities, Individual Entrepreneurs and Public Associations (paras. 8, 15, 20 of the ICAC award); procedural documents, including a statement of defence (para. 9 of the ICAC award), were received from the respondent; the respondent's representative was present at the hearing (paras. 23, 26 of the ICAC award) and could file applications, answer questions and submit evidence, and such evidence was examined when establishing the circumstances in the ICAC award itself (paras. 34, 35, 37, 38 and other paragraphs of the ICAC award).

Thus, such arguments amount to a reassessment of the ICAC award on the merits of the dispute. However, pursuant to Article 5 of the Law of Ukraine "On International Commercial Arbitration", in matters governed by this Law, no court shall intervene except where so provided in this Law. Any assessment by the court of first instance of the circumstances of the arbitral dispute, of the completeness and relevance of the evidence submitted by the parties to the arbitral proceedings, etc., would constitute unlawful judicial intervention prohibited by Article 5 of the Law of Ukraine "On International Commercial Arbitration" and a violation of the principle of legal certainty of a court decision.

Thus, in view of the foregoing, there are no proper and sufficient legal grounds for setting aside the challenged arbitral award.

At the court hearing, the representative of the applicant, the Limited Liability Company "KHIMMELTEK" (Ukraine), attorney Kostiantyn Eduradovych Rybachkovskyi, supported the requests of the application to set aside the award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry of 19 December 2025 in case No. 172/2025.

The representative of Himmeltek OU (Republic of Estonia), attorney Roman Yukhymovych Kushnir, requested the court to refuse the application of the Limited Liability Company "KHIMMELTEK" (Ukraine) to set aside the award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry of 19 December 2025 in case No. 172/2025.

Having studied the application, examined the case file and heard the representatives of the parties, the court concluded that the application of the Limited Liability Company "KHIMMELTEK" (Ukraine) to set aside the award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry of 19 December 2025 in case No. 172/2025 is not to be granted on the following grounds.

The court has established that the legal relationship between the parties, Himmeltek OU (Republic of Estonia) and the Limited Liability Company "KHIMMELTEK" (Ukraine), is based on contract No. 01-0120 of 8 January 2020 (the "contract"), under which Himmeltek OU (seller) undertook to transfer, and the Limited Liability Company "KHIMMELTEK" (buyer) undertook to accept into ownership and pay for, fabric and textile materials (the "goods") in accordance with the quantity, assortment and prices specified in the annexes to the contract.

According to clauses 12.1.-12.3. of Section 12 "Arbitration" of the contract, the parties provided that the submission of claims as to the quality and quantity of the Goods precedes recourse to the arbitral tribunal; all disputes and disagreements that may arise under this Contract shall be resolved by the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry, except for matters within the jurisdiction of the courts of general jurisdiction; and for the settlement of disputes the Parties shall apply the legislation of Ukraine.

In July 2025, the claimant Himmeltek OU (Republic of Estonia) applied to the ICAC at the Ukrainian Chamber of Commerce and Industry with a statement of claim for the recovery from the Limited Liability Company "KHIMMELTEK" (Ukraine) of USD 84,285.66 of debt for goods delivered, as well as the costs of paying the arbitration fee.

By order of the President of the ICAC at the Ukrainian Chamber of Commerce and Industry of 15 July 2025, the case was accepted for proceedings at the ICAC at the Ukrainian Chamber of Commerce and Industry under No. 172/2025.

The competence of the ICAC at the Ukrainian Chamber of Commerce and Industry to consider this dispute was based on the arbitration clause contained in clause 12.2. of contract No. 01-0120 concluded by the parties on 8 January 2020.

The said arbitration clause is an arbitration agreement concluded by the parties in writing and complies with the requirements of Article 7 of the Law of Ukraine "On International Commercial Arbitration" and Article 4(1) of the Rules of the ICAC at the Ukrainian Chamber of Commerce and Industry.

The dispute that arose between the parties falls within the ratione personae and ratione materiae competence of the ICAC at the Ukrainian Chamber of Commerce and Industry, as determined by the Law of Ukraine "On International Commercial Arbitration" and the Rules of the ICAC at the Ukrainian Chamber of Commerce and Industry.

The claimant substantiated its recourse to the ICAC at the Ukrainian Chamber of Commerce and Industry with a statement of claim by reference to the above-mentioned arbitration clause.

The respondent did not dispute the competence of the ICAC at the Ukrainian Chamber of Commerce and Industry, having delegated its representative to the session of the Arbitral Tribunal to participate in the oral hearing of the case.

The session of the Arbitral Tribunal was attended by the claimant's representative, Roman Kushnir, and the respondent's representative, Yaryna Hul.

In the course of the consideration of the case on the merits, the representatives of the parties set out their positions on the subject matter of the dispute, maintained the claims and objections previously submitted and put forward arguments in support of them.

The claimant's representative supported the position set out in the statement of claim. The respondent's representative objected to the granting of the claims, considering them unsubstantiated, and supported the objections set out in the statement of defence.

On 19 December 2025, the ICAC at the Ukrainian Chamber of Commerce and Industry made an award in case No. 172/2025, by which it recovered from the Limited Liability Company "KHIMMELTEK" (Ukraine, 03022, Kyiv, Mykhaila Maksymovycha Street, ZH P/P 495A; identification code 40592452) in favour of Himmeltek OU (Estonia, Harju maakond, Kesklinna linnaosa, Tallinn, Tartu mnt 67/1- 13b, 10115; registry code 14206308) USD 84,285.66 of debt for goods delivered and USD 4,454.14 as reimbursement of the costs of paying the arbitration fee, in total USD 88,739.80 (eighty-eight thousand seven hundred and thirty-nine US dollars 80 cents).

In resolving the dispute, the ICAC at the Ukrainian Chamber of Commerce and Industry established that, in performance of contract No. 01-0120 of 8 January 2020 concluded by the parties and Annex No. 60 thereto of 9 November 2021, the claimant Himmeltek OU on 9 November 2021 shipped to the respondent LLC "KHIMMELTEK" by road transport, on FCA Pabianice, Poland (Incoterms 2010) delivery terms, goods for a total amount of USD 84,285.66, as confirmed by the copies in the case file of commercial invoice No. 0002/11/2021 of 9 November 2021, international consignment note (CMR) No. 09/11 of 9 November 2021, and export (import) customs declaration No. 21PL361010E2793929 of 9 November 2021.

The Arbitral Tribunal established the fact of delivery of the goods. The claimant submitted the original of international consignment note (CMR) No. 09/11 of 9 November 2021, the authenticity of which as a document the respondent's representative did not dispute, just as the respondent had previously not disputed the fact of delivery of the goods. No evidence was submitted of the respondent having made claims against the carrier regarding the absence or loss of the goods, which, taken together, indicates acceptance of the goods by the respondent.

However, in breach of its contractual obligations and the requirements of Articles 53 and 59 of the Vienna Convention, the respondent did not pay for the goods delivered within the specified time limit.

The respondent's debt to the claimant under contract No. 01-0120 of 8 January 2020 in the amount of USD 84,285.66 is confirmed by the documents in the case file.

The Arbitral Tribunal found that the respondent had breached the obligations established by contract No. 01-0120 of 8 January 2020 regarding timely payment for the goods delivered by the claimant and, in view of the established circumstances, concluded that the claimant's claims for recovery from the respondent of the debt for goods delivered were substantiated, documented and to be granted in the amount of USD 84,285.66.

The said award of the ICAC at the Ukrainian Chamber of Commerce and Industry states that it enters into legal force from the date of its making, is final and is subject to immediate enforcement.

The applicant (the debtor under the arbitral award), LLC "KHIMMELTEK" (Ukraine), filed an application with the competent court to set aside this award of the ICAC at the Ukrainian Chamber of Commerce and Industry.

Pursuant to Article 454(1), (2) and (4) of the Civil Procedure Code of Ukraine, the parties have the right to apply to the court with an application to set aside an award of international commercial arbitration. An award of international commercial arbitration may be challenged in the manner provided for by this Chapter if the place of arbitration is in the territory of Ukraine. An application to set aside an award of international commercial arbitration shall be filed with the general court of appeal at the place of arbitration.

Article 459(1) of the Civil Procedure Code of Ukraine provides that an award of international commercial arbitration may be set aside by a court only in the cases provided for by this Article, unless otherwise provided by an international treaty the binding nature of which has been consented to by the Verkhovna Rada of Ukraine, or by the Law of Ukraine "On International Commercial Arbitration".

Pursuant to Article 459(2) of the Civil Procedure Code of Ukraine, which is consistent with Article 34(2) of the Law of Ukraine "On International Commercial Arbitration" (here and hereinafter in the wording in force at the time of filing the application to set aside the awards of international commercial arbitration), an award of international commercial arbitration may be set aside if: 1) the party filing the application to set aside furnishes proof that: (a) one of the parties to the arbitration agreement was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of Ukraine; or (b) it was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable for valid reasons to present its explanations; or (c) the award deals with a dispute not contemplated by or not falling within the terms of the arbitration agreement, or contains decisions on matters beyond the scope of the arbitration agreement, provided that, if the decisions on matters covered by the arbitration agreement can be separated from those not so covered, only that part of the arbitral award which contains decisions on matters not covered by the arbitration agreement may be set aside; or (d) the composition of the international commercial arbitration or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of law from which the parties cannot derogate, or, failing such agreement, was not in accordance with the law; 2) the court finds that: (a) the subject matter of the dispute is not capable of settlement by international commercial arbitration under the law; or (b) the arbitral award is contrary to the public policy of Ukraine.

A decision of a national court to set aside an arbitral award may be made only if at least one of the grounds provided for by Article 34(2) of the Law of Ukraine "On International Commercial Arbitration" and Article 459(2) of the Civil Procedure Code of Ukraine is present (proven).

Therefore, the legislation of Ukraine, while permitting the challenge of an award of international commercial arbitration by filing an application to set it aside, establishes an exhaustive list of grounds on which an arbitral award may be set aside.

An analysis of the provisions of Article 459 of the Civil Procedure Code of Ukraine and Article 34 of the Law of Ukraine "On International Commercial Arbitration" shows that the burden of proving the existence of grounds for setting aside an award of international commercial arbitration lies on the party applying to set aside such award.

According to Article 5 of the Law of Ukraine "On International Commercial Arbitration", in matters governed by this Law, no court shall intervene except where so provided in this Law.

When considering cases on setting aside awards of international commercial arbitration, the powers of the national court are limited, since the national court has no power to review awards of international commercial arbitration on the merits of the resolution of the dispute, or to undertake a full review or reassessment thereof.

The Supreme Court reached similar conclusions in its resolutions of 23 February 2023 in case No. 824/47/22 and of 29 August 2024 in case No. 824/72/24.

In applying to set aside the award of the ICAC at the Ukrainian Chamber of Commerce and Industry of 19 December 2025 in case No. 172/2025, the applicant LLC "KHIMMELTEK" (Ukraine) referred to the fact that this award is contrary to the public policy of Ukraine and that, in making it, the ICAC at the Ukrainian Chamber of Commerce and Industry violated the fundamental principles of justice: adversarial proceedings, objective truth and equality of the parties.

In assessing the arguments and objections of the participants in the case regarding the merits of the application of the Limited Liability Company "KHIMMELTEK" (Ukraine) to set aside the award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry of 19 December 2025 in case No. 172/2025, the court proceeds from the following.

Pursuant to sub-item (b) of item 2 of Article 459(2) of the Civil Procedure Code of Ukraine, an award of international commercial arbitration may be set aside if the court finds that the arbitral award is contrary to the public policy of Ukraine.

A similar provision is enshrined in Article 34(2) of the Law of Ukraine "On International Commercial Arbitration".

In paragraph 12 of Resolution of the Plenum of the Supreme Court of Ukraine No. 12 of 24 December 1999 "On the practice of consideration by courts of applications for recognition and enforcement of decisions of foreign courts and arbitral tribunals and for setting aside awards made by way of international commercial arbitration in the territory of Ukraine", the courts were instructed that public policy is to be understood as the legal order of the state, the defining principles and foundations that form the basis of its existing system (concerning its independence, integrity, autonomy and inviolability, fundamental constitutional rights, freedoms, guarantees, etc.).

Article 459 of the Civil Procedure Code of Ukraine does not contain a definition of what is meant by "public policy".

In determining the content of this concept, account should be taken of the recommendations of the International Law Association on public policy, adopted in New Delhi in 2002, which state that the finality of arbitral awards in international commercial arbitration should be respected save in exceptional circumstances.

Such exceptional circumstances exist if recognition or enforcement of the arbitral award would be contrary to international public policy. According to paragraph 1 (d) of these recommendations, the international public policy of any state includes: (I) fundamental principles pertaining to justice or morality that the state wishes to protect even when it is not directly concerned; (Ii) rules designed to serve the essential political, social or economic interests of the state, known as lois de police or "public order rules"; and (Iii) the duty of the state to respect its obligations towards other states or international organisations.

The public policy reservation is formulated in general terms in international conventions. In particular, Article 6 of the UN Convention on the Law Applicable to the International Sale of Goods of 15 June 1995 provides that in each of the Contracting States the application of the law determined by this Convention may be excluded on grounds of public policy. The same rule is established in Article 18 of the UN Convention on the Law Applicable to Contracts for the International Sale of Goods of 22 December 1986.

The resolution of the Supreme Court of 23 July 2018 in case No. 796/3/2018 (proceedings No. 61-30854av18) states that public policy should be understood as the legal order of the state, the defined principles and foundations that form the basis of its existing system (concerning its independence, integrity, autonomy and inviolability and fundamental constitutional rights, freedoms, guarantees, etc.).

The public policy of any country includes the fundamental principles and foundations of justice and morality that the state wishes to protect even when this is not directly related to the state itself; rules that secure the fundamental political, social and economic interests of the state (public policy rules); and the duty of the state to comply with its obligations towards other states and international organisations.

These are the immutable principles that express the stability of the international system, including state sovereignty, non-interference in the internal affairs of states, ensuring territorial integrity, etc.

The reservation on violation of public policy as a ground for setting aside an award of international commercial arbitration is a mechanism that enshrines the priority of state interests over private ones and protects social relations from negative influences on them.

That is, the legal concept of public policy exists in order to protect the state from foreign arbitral awards that violate the fundamental principles of fairness and justice in force in the state. These provisions are intended to establish a legal barrier against decisions made contrary to the fundamental procedural and substantive principles on which public policy rests.

At the same time, an unjustified refusal to grant leave to enforce an award of an international commercial arbitration court is a kind of blocking of such award and may, if applied arbitrarily, take on the character of an artificial regulatory barrier, which is impermissible from the point of view of international law. Such blocking would not only fail to correspond to the purposes of international arbitration, but would also violate the legitimate rights that this arbitral award may in fact confer on the award creditor.

Similar legal conclusions were set out by the Supreme Court in its resolutions of 14 January 2021 in case No. 824/178/19, of 27 January 2022 in case No. 824/170/21, of 23 March 2023 in case No. 824/118/22, and of 2 May 2024 in case No. 824/131/23.

The court has established that the disputed legal relationship within the scope of this case arose between business entities on the basis of contract No. 01-0120 of 8 January 2020 concluded by them (a private commercial legal relationship).

It was precisely such a dispute that was resolved by the arbitral tribunal, which, within its competence, established that the respondent (buyer), the Limited Liability Company "KHIMMELTEK" (Ukraine), had breached the obligations established by contract No. 01-0120 of 8 January 2020 regarding timely payment for the goods delivered by the claimant. The respondent's debt to the claimant under contract No. 01-0120 of 8 January 2020 in the amount of USD 84,285.66 is confirmed by the documents in the case file. In view of the established circumstances, the Arbitral Tribunal concluded that the claimant's claims for recovery from the respondent of the debt for goods delivered were substantiated, documented and to be granted in the amount of USD 84,285.66.

The arbitral award was made exclusively in respect of its parties and resolved issues of a private commercial legal relationship.

The circumstances established by the final award of the ICAC at the Ukrainian Chamber of Commerce and Industry of 19 December 2025 in case No. 172/2025 do not concern the public, economic and social foundations of the State of Ukraine. This award was made in a dispute contemplated by the arbitration agreement and exclusively in respect of the debtor as a separate, independent legal entity, and the circumstances established by this award concern the manner of performance of obligations that arose between the participants in this case on the basis of the contract concluded by them.

There are no grounds to consider that enforcement of the said award is contrary to the public policy of Ukraine, its independence, integrity, autonomy and inviolability, or constitutional rights, freedoms and guarantees.

Therefore, the said award of the ICAC at the Ukrainian Chamber of Commerce and Industry of 19 December 2025 in case No. 172/2025, which resolved a dispute arising from a private commercial legal relationship by establishing circumstances concerning the manner of performance of an obligation that arose between the participants, cannot be considered contrary to the public policy of Ukraine.

In examining the applicant's arguments that, in making the award, the ICAC at the Ukrainian Chamber of Commerce and Industry violated the principles of adversarial proceedings, objective truth and equality of the parties, the court proceeds from the following.

The list of fundamental foundations that constitute public policy includes equal treatment of the parties to the arbitral proceedings, in particular: giving the parties the opportunity to present their arguments and to comment on the arguments of their opponents; the absence of procedures relating to the dispute in which the arbitrators participate in the absence of the parties to the dispute; the inadmissibility of the submission of forged evidence by the parties, etc.

Such conclusions were set out by the Supreme Court in its resolution of 23 January 2025 in case No. 824/37/24.

A violation of procedural public policy is to be understood as those procedural violations committed by the arbitral tribunal that constitute a ground for setting aside its award under item 1 of Article 459(2) of the Civil Procedure Code of Ukraine. Such grounds for setting aside an award of an arbitral tribunal may be applied if the party that has filed the application to set aside the arbitral award substantiates that application with these arguments.

By contrast, the grounds for setting aside an award of an arbitral tribunal under item 2 of Article 459(2) of the Civil Procedure Code of Ukraine are subject to verification by the court ex officio.

The category of public policy is applied not only in order to protect the state from foreign arbitral awards that violate the fundamental principles of fairness and justice in force in the country of recognition and enforcement of such awards. An obviously incorrect application by an arbitral tribunal of fundamental rules of national substantive law or a gross violation of rules of procedural law may also lead to a violation of the public policy of Ukraine and is subject to assessment by the national court when an award of a commercial arbitration located in the same country is challenged before it.

Accordingly, awards of the ICAC at the Ukrainian Chamber of Commerce and Industry are also subject to assessment by the court as to whether they violate the public policy of Ukraine.

In reaching these conclusions, the court is guided by the fact that the public policy of Ukraine may be violated by such an award of an international commercial arbitration court in the making of which the right to judicial protection was materially and manifestly violated. Such violations include the inconsistency of the arbitral award with the exclusive competence of a state court to resolve such a dispute, or the existence of a decision of a national court in a dispute between the same parties, concerning the same subject matter and on the same grounds as the dispute considered by the arbitral tribunal.

The Supreme Court reached such conclusions in its resolution of 21 August 2025 in case No. 824/159/24.

A violation of public policy also takes place in cases where the award of the arbitral tribunal violates: the underlying, fundamental principles (foundations) of Ukrainian law, primarily constitutional ones, the foundations of the legal order in Ukraine, and the basic principles of civil law; generally accepted principles of morality, and the legitimate interests of persons, society and the state; the fundamental principles and norms of international law, including international legal standards of human rights.

It appears from the content of the award of the ICAC at the Ukrainian Chamber of Commerce and Industry of 19 December 2025 in case No. 172/2025 that the respondent party, LLC "KHIMMELTEK" (Ukraine), participated in the arbitral proceedings and exercised its right to submit its evidence and to set out its position.

In particular, on 10 September 2025, the ICAC at the Ukrainian Chamber of Commerce and Industry received the respondent's statement of defence to the statement of claim for the recovery of the debt, in which the respondent confirmed receipt of the statement of claim materials in the case and stated that it considered the claimant's claims unsubstantiated and not to be granted, referring to the fact that the statement of claim contained contradictory data as to the amount of the debt itself and that the fact of acceptance of the goods had not been confirmed by proper evidence, since the claimant had submitted only copies of the CMR, not confirmed by any original documents, signatures of officials (employees) or acts of acceptance and transfer of the goods, in connection with which the respondent considered it expedient to request an examination of the signatures and seals on the documents submitted.

On 19 November 2025, the ICAC at the Ukrainian Chamber of Commerce and Industry received the respondent's motion for the appointment of a forensic technical (handwriting) examination of the signatures and seal impressions on the documents in order to verify the authenticity of the signatures and seals on the submitted copy of international consignment note (CMR) No. 09/11 of 9 November 2021.

The session of the Arbitral Tribunal was attended by the claimant's representative, Roman Kushnir, and the respondent's representative, Yaryna Hul.

The claimant's representative provided the Arbitral Tribunal, for inspection, with the original of international consignment note (CMR) No. 09/11 of 9 November 2021.

The respondent's representative confirmed that delivery in accordance with the terms of the contract took place upon handover of the goods to the carrier in accordance with the delivery basis FCA Pabianice, Poland (Incoterms 2010), that is, the seller had performed its obligation under the contract.

The respondent's representative also confirmed that international consignment note (CMR) No. 09/11 of 9 November 2021, submitted by the claimant at the hearing, was the original, but expressed doubt as to the person who had acted on behalf of LLC "KHIMMELTEK", namely that the director of LLC "KHIMMELTEK" had doubts as to the authenticity of the signature.

During the oral hearing of the case, the respondent's representative made an oral motion to examine witnesses and proposed that the director of LLC "KHIMMELTEK", PERSON_2 ( PERSON_1 ), be examined as a witness.

In considering that motion, the Arbitral Tribunal invited the respondent's representative to put forward arguments as to the necessity of examining the proposed witness, in particular to state which specific circumstances relevant to the case she could confirm or refute and what additional information, not reflected in the written materials of the case, she could provide.

The respondent's representative did not express a clear position regarding the involvement of the witness. The claimant's representative objected to the granting of that motion.

Having heard the positions and arguments of the representatives of the parties, the Arbitral Tribunal concluded that there were no grounds for granting the respondent's motion to involve a witness, reasoning that such examination had no objective procedural expediency, would not contribute to a fuller or deeper clarification of the circumstances of the case and could not provide new facts.

In considering the respondent's motion for the appointment of a forensic technical (handwriting) examination of the signatures and seal impressions on international consignment note (CMR) No. 09/11 of 9 November 2021, the Arbitral Tribunal proceeded from the fact that the respondent had not cited specific circumstances that would objectively indicate falsification of that document, and its arguments were based exclusively on assumptions as to the possibility of copying or forging the signatures and seal impressions.

The original of international consignment note (CMR) No. 09/11 of 9 November 2021 submitted by the claimant at the session raises no doubts for the Arbitral Tribunal as to its authenticity, since it was drawn up in accordance with the provisions of the Convention on the Contract for the International Carriage of Goods by Road (Geneva Convention). At the same time, the signature of the respondent's director and the impression of the respondent's seal in box 24 of the said consignment note are identical to the respondent's signature and seal on additional agreement No. 1 of 5 January 2021 and on Annex No. 60 of 9 November 2021.

Taking into account the principles of adversarial proceedings and procedural economy, and having regard to the sufficiency of the evidence in the case file for establishing the relevant circumstances, the Arbitral Tribunal refused the respondent's motion for the appointment of a forensic technical (handwriting) examination in the case.

In the award, the Arbitral Tribunal noted that in resolving this dispute the Arbitral Tribunal applies the doctrine of venire contra factum proprium (prohibition of contradictory conduct), since the respondent had never disputed, in the statement of defence or any other document, the fact of its receipt of the goods under invoice No. 0002/11/2021 of 9 November 2021 and international consignment note (CMR) No. 09/11 of 9 November 2021 in the amount of USD 84,285.66, nor had it made any claims against the carrier regarding the absence of that consignment of goods.

The Arbitral Tribunal established the fact of delivery of the goods. The claimant submitted the original of international consignment note (CMR) No. 09/11 of 9 November 2021, the authenticity of which as a document the respondent's representative did not dispute, just as the respondent had previously not disputed the fact of delivery of the goods. No evidence was submitted of the respondent having made claims against the carrier regarding the absence or loss of the goods, which, taken together, indicates acceptance of the goods by the respondent.

The respondent's arguments regarding an allegedly "forged signature" on the CMR are conditional and are not confirmed by proper and admissible evidence. The respondent's representative was unable to specify any defect in the execution of the consignment note from the point of view of the requirements of the Convention on the Contract for the International Carriage of Goods by Road (CMR), limiting herself to a general reference to doubts about the signature. In the absence of evidence of loss of the goods, a challenge to the signature does not in itself refute the fact of delivery and acceptance of the goods. Any graphic differences may arise as a result of copying or scanning and do not indicate forgery. The respondent did not submit any substantiated evidence of forgery of the document, and therefore its objection is groundless.

On the basis of the case file, the Arbitral Tribunal found that the respondent had breached the obligations established by contract No. 01-0120 of 8 January 2020 regarding timely payment for the goods delivered by the claimant. As a result of the respondent's breach of the contractual obligation, the claimant acquired grounds to resort to the relevant remedies and, in accordance with the provisions of Articles 61 and 62 of the Vienna Convention, to require payment of the full price of the goods delivered.

Having found that all circumstances of the case had been sufficiently clarified, the arbitral tribunal assessed the positions of the parties and the documents submitted by them and, within the scope of the claims of Himmeltek OU (Republic of Estonia) and on the basis of the evidence submitted by the parties to the case, made an arbitral award granting the claimant's claims.

Therefore, the materials of the arbitral proceedings in case No. 172/2025 confirm that the respondent party, LLC "KHIMMELTEK" (Ukraine), was given all procedural opportunities to set out its position on the merits of the dispute, including to participate in the oral hearings in case No. 172/2025 at the ICAC at the Ukrainian Chamber of Commerce and Industry, to file motions, to submit objections, evidence, etc.

At the same time, the motions filed by the respondent party for the appointment of a forensic technical (handwriting) examination and for the summoning and examination of a witness were considered by the arbitral tribunal, and the reasons for their rejection were reflected in the award of the ICAC at the Ukrainian Chamber of Commerce and Industry.

The arguments of the applicant LLC "KHIMMELTEK" (Ukraine) set out in the application to set aside the award of international commercial arbitration, that by refusing the respondent in the arbitral proceedings an examination and the questioning of witnesses the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry failed to verify the authenticity of the claimant's only evidence, which raised doubts on the part of the respondent, and based its award on an unverified copy of a document that is important for the case, amount to the applicant's assumptions and disagreement with the challenged award of the Arbitral Tribunal.

Under Article 52 of the Rules of the ICAC at the Ukrainian Chamber of Commerce and Industry, the Arbitral Tribunal has the autonomous right to determine the admissibility, relevance, reliability and weight of each item of evidence separately, as well as the sufficiency and interrelation of the evidence in its totality.

And based on the interpretation of the rules in Chapter VIII of the Civil Procedure Code of Ukraine and Chapter VII of the Law of Ukraine "On International Commercial Arbitration", when considering a case on setting aside an award of international commercial arbitration, the powers of the national court are limited, since the national court has no power to review awards of international commercial arbitration on the merits of the resolution of the dispute and may not undertake a full review or reassessment thereof.

Any assessment by a court of general jurisdiction of the circumstances of the arbitral dispute, of the completeness and relevance of the evidence submitted by the parties to the arbitral proceedings, etc., would constitute unlawful judicial intervention prohibited by Article 5 of the Law of Ukraine "On International Commercial Arbitration" and a violation of the principle of legal certainty of a court decision.

Similar legal conclusions were set out by the Supreme Court in its resolutions of 6 September 2022 in case No. 824/255/21 (proceedings No. 61-5310av22), of 6 September 2022 in case No. 824/256/21 (proceedings No. 61-5306av22), and of 15 September 2022 in case No. 824/267/21 (proceedings No. 61-5308av22).

In view of the foregoing, the applicant's arguments that, in the course of considering case No. 172/2025, the arbitral tribunal violated the underlying principles of procedural law that form part of the public policy of Ukraine, namely the principles of dispositivity, adversarial proceedings and equality of the parties to the proceedings, were not confirmed during the consideration of the case on setting aside the award of the ICAC at the Ukrainian Chamber of Commerce and Industry of 19 December 2025 in case No. 172/2025.

Taking into account the foregoing and the legal concept of public policy, the court concluded that the award of the ICAC at the Ukrainian Chamber of Commerce and Industry of 19 December 2025 in case No. 172/2025 is consistent with the public policy of Ukraine.

The court has established that the arguments of the application of LLC "KHIMMELTEK" (Ukraine) to set aside the award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry of 19 December 2025 in case No. 172/2025 mainly amount to disagreement with the arbitral award made and are aimed at a review of the award of the ICAC at the Ukrainian Chamber of Commerce and Industry on the merits of the dispute, relate directly to the subject matter of the case and to the assessment of the correctness of the arbitral tribunal's interpretation of the terms of the contract and the requirements of the legislation, which is not a ground for setting aside an award of international commercial arbitration, since such matters go beyond the powers of the court considering the case as a court of first instance.

In view of the foregoing, the court concluded that there are no legal grounds provided for by item 2 of Article 459(2) of the Civil Procedure Code of Ukraine and item 2 of Article 34(2) of the Law of Ukraine "On International Commercial Arbitration" for setting aside the award of the ICAC at the Ukrainian Chamber of Commerce and Industry of 19 December 2025 in case No. 172/2025 challenged by the applicant.

In such circumstances, the application of the Limited Liability Company "KHIMMELTEK" (Ukraine) to set aside the award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry of 19 December 2025 in case No. 172/2025 on the claim of Himmeltek OU (Republic of Estonia) against the Limited Liability Company "KHIMMELTEK" (Ukraine) for the recovery of a debt for goods delivered, as well as the costs of paying the arbitration fee, should be refused.

Pursuant to item 2 of Article 141(2) of the Civil Procedure Code of Ukraine, the court costs related to the consideration of the application are not reimbursed and are borne by the applicant.

Guided by Articles 23, 457, 459 and 460 of the Civil Procedure Code of Ukraine, the court, -

r u l e d:

To refuse the application of the Limited Liability Company "KHIMMELTEK" (Ukraine) to set aside the award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry of 19 December 2025 in case No. 172/2025 on the claim of Himmeltek OU (Republic of Estonia) against the Limited Liability Company "KHIMMELTEK" (Ukraine) for the recovery of a debt for goods delivered, as well as the costs of paying the arbitration fee.

The court's ruling may be appealed by the parties to the Supreme Court within thirty days from the date of its pronouncement.

If only an abridged ruling (the introductory and operative parts) was pronounced at the court hearing, the said time limit shall be calculated from the date of drawing up the full text of the ruling.

The court's ruling, if it has not been appealed, enters into legal force upon expiry of the time limit for appeal.

If an appeal is filed, the court's ruling enters into legal force after the consideration of the case by the court of appeal.

Presiding judge: