Decision of Supreme Court of Ukraine in the case 824/41/26 dated 10 September 2026

RESOLUTION

IN THE NAME OF UKRAINE

10 September 2026 Kyiv

case No. 824/41/26 proceeding No. 61-7559av26

The Supreme Court, composed of a panel of judges of the First Judicial Chamber of the Civil Cassation Court:

H. V. Kolomiiets (judge-rapporteur), I. Yu. Hulieikov, D. D. Luspenyk,

with the participation of:

the secretary of the court session, H. V. Todosiuk; the representative of the claimant in the arbitral dispute, D. V. Derkach; the representative of the respondent in the arbitral dispute, A. R. Cherepakhina,

participants in the arbitral dispute:

claimant: Limited Liability Company “Imperiia Zhyriv”; respondent: Societe Cooperativ Agricole Et Agro-Alimetarial (French Republic),

has considered in an open court session in the premises of the Supreme Court (Kyiv, 28 Povitrianykh Syl Avenue) the appeal of Limited Liability Company “Imperiia Zhyriv” against the ruling of the Kyiv Court of Appeal of 19 May 2026, issued by Judge O. F. Lapchevska, in the case on the application of Limited Liability Company “Imperiia Zhyriv” to set aside the order of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry of 6 February 2026 in case No. 20/2025 upon the claim of Limited Liability Company “Imperiia Zhyriv” against Societe Cooperativ Agricole Et Agro-Alimetarial (French Republic) for the recovery of EUR 15,650.67, including EUR 14,266.80 of principal debt and EUR 1,383.87 of penalty, as well as the costs of paying the arbitration fee and the costs of legal assistance,

ESTABLISHED:

Descriptive part

Summary of the application

By an order of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry (the “ICAC at the Ukrainian CCI”) of 6 February 2026, the arbitral proceedings in case No. 20/2025 were terminated.

On 7 May 2026, disagreeing with the order issued by the ICAC at the Ukrainian CCI, Limited Liability Company “Imperiia Zhyriv” (“Imperiia Zhyriv” LLC) filed an application with the Kyiv Court of Appeal to set aside the said order of the ICAC at the Ukrainian CCI.

The application is justified on the ground that on 10 September 2024 the parties concluded contract No. P-16 for the purchase and sale of goods, namely raw materials for the food industry. The respondent did not perform the terms of the contract and did not pay for the delivered goods, which gave rise to the application to the ICAC at the Ukrainian CCI pursuant to clause 8.2 of the contract.

The applicant disagrees with the conclusions of the ICAC at the Ukrainian CCI regarding the absence of an arbitration agreement between the parties and, accordingly, the lack of competence of the ICAC at the Ukrainian CCI to consider the dispute in this case. It states that such conclusions are based on an incomplete ascertainment of the factual circumstances of the case, in particular the performance by the respondent's officers of actions for the customs clearance of the cargo. During the consideration of the case, the respondent did not raise the question of declaring the contract as a whole or the signatures on the contract invalid, which constitutes a violation of the norms of civil procedural law.

The applicant refers to a violation by the ICAC at the Ukrainian CCI of procedural public policy, which is a ground for setting aside an arbitral award pursuant to subparagraph (b) of Article 459(2)(2) of the CPC of Ukraine.

It refers to Article 16(1) of the Law of Ukraine “On International Commercial Arbitration” and states that the arbitral tribunal may itself rule on its own jurisdiction, including on any objections with respect to the existence or validity of the arbitration agreement.

Summary of the ruling of the court of first instance

By a ruling of the Kyiv Court of Appeal of 19 May 2026, the opening of proceedings on the application of “Imperiia Zhyriv” LLC to set aside the order of the ICAC at the Ukrainian CCI of 6 February 2026 in case No. 20/2025 was refused.

In refusing to open proceedings, the court of appeal, acting as a court of first instance, proceeded from the fact that the decision of the international commercial arbitration had been challenged by the applicant on grounds not provided for by law.

The court substantiated its conclusions by the fact that Article 459 of the CPC of Ukraine establishes an exhaustive list of grounds for setting aside an award of an international commercial arbitration, and it relates exclusively to decisions rendered on the merits of the case, whereas Article 461 of the CPC of Ukraine provides for the challenge of orders of an international commercial arbitration on its having jurisdiction, issued as a preliminary question.

Therefore, taking into account the provisions of Article 454(8) of the CPC of Ukraine, the court indicated that the challenge of an order of the ICAC at the Ukrainian CCI on lack of jurisdiction to consider the dispute is not provided for by the norms of the CPC of Ukraine.

Summary of the requests of the appeal

In June 2026, the representative of “Imperiia Zhyriv” LLC, attorney D. V. Derkach, filed with the Supreme Court an appeal against the ruling of the Kyiv Court of Appeal of 19 May 2026, in which he asks that the contested ruling be set aside and the case be transferred to the Kyiv Court of Appeal for further consideration.

Arguments of the person who filed the appeal and the response to it

In substantiation of the appeal, the representative of “Imperiia Zhyriv” LLC stated that the order of the ICAC at the Ukrainian CCI terminating the arbitral proceedings was issued at the final stage of rendering the decision in the case, which, in the applicant's opinion, does not give grounds for applying the requirements of Article 461 of the CPC of Ukraine to refuse to open proceedings in the case.

At the same time, he draws the attention of the court of appellate instance to the fact that, by the order adopted, the ICAC at the Ukrainian CCI actually restricted the claimant in its ability to obtain a lawful court decision, and given that the contract provides specifically for arbitration as the procedure for resolving disputes between the parties, the tribunal restricted the claimant's right of access to justice in a situation where the case file indicates the unlawful deprivation of its right of ownership of property belonging to it. The Kyiv Court of Appeal did not take these circumstances into account when issuing the contested ruling.

The applicant asserts that, as a result of the unlawful decision of the ICAC at the Ukrainian CCI and the issuance of the contested ruling by the Kyiv Court of Appeal, the claimant has actually been deprived of the possibility of restoring its violated rights through the courts.

Pursuant to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the “Convention”), everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, which shall determine the dispute concerning his civil rights and obligations.

The right to a hearing means the right of a person to apply to a court and the right to have his case heard and decided by a court.

Arguments of the person who filed the response to the appeal

In July 2026, the representative of Societe Cooperativ Agricole Et Agro-Alimetarial (French Republic), attorney A. R. Cherepakhina, filed a response in which she asked that the appeal of “Imperiia Zhyriv” LLC be dismissed and the ruling of the Kyiv Court of Appeal of 19 May 2026 be upheld as having been issued without violations of the norms of procedural law.

She draws attention, in particular, to the impossibility for national courts to review decisions of the ICAC at the Ukrainian CCI on the merits, since this is contrary to Article 5 of the Law of Ukraine “On International Commercial Arbitration”. Accordingly, the lack of jurisdiction of the ICAC to consider the dispute cannot be challenged.

She states that if procedural law does not provide for the possibility of judicial challenge of a certain act, this in itself does not indicate a violation of the right of access to justice.

Proceedings in the court of appellate instance

By a ruling of the Supreme Court of 5 June 2026, the appeal was left without progress and time was granted to remedy the deficiencies.

By a ruling of the Supreme Court of 15 June 2026, appellate proceedings in the case were opened.

By a ruling of the Supreme Court of 1 July 2026, the case was scheduled for court hearing.

By a ruling of the Supreme Court of 8 July 2026, the motion of “Imperiia Zhyriv” LLC to hold the court session by videoconference was granted.

Factual circumstances of the case established by the court of first instance

By an order of the ICAC at the Ukrainian CCI of 6 February 2026, the arbitral proceedings were terminated in case No. 20/2025 upon the claim of “Imperiia Zhyriv” LLC against Societe Cooperativ Agricole Et Agro-Alimetarial (French Republic) for the recovery of EUR 15,650.67, including EUR 14,266.80 of principal debt and EUR 1,383.87 of penalty, as well as the costs of paying the arbitration fee and the costs of legal assistance, due to the lack of jurisdiction of the ICAC at the Ukrainian CCI to consider the dispute.

The ICAC at the Ukrainian CCI proceeded from the fact that the claimant had not provided proper, admissible and reliable evidence confirming the free and conscious expression by the respondent of an internal will aimed at establishing contractual relations with the claimant (conclusion of the contract).

In this regard, the provision of clause 8.2 of the contract, which the claimant considers to be the legal basis for filing the claim with the ICAC at the Ukrainian CCI, is not an arbitration agreement (arbitration clause) within the meaning of Article 4(1) of the Rules of the ICAC at the Ukrainian CCI, and therefore the arbitral tribunal finds that there is no arbitration agreement between the parties and, accordingly, that the ICAC at the Ukrainian CCI lacks jurisdiction to consider the dispute in this case. In so doing, it is guided by Article 67(2) and (3) of the Rules of the ICAC at the Ukrainian CCI.

Position of the court of appellate instance, applicable legal norms and reasons on which the court relies in adopting the resolution

Having heard the report of the judge-rapporteur and the explanations of the representatives of the claimant and the respondent in the arbitral dispute, and having examined the arguments of the appeal, the response to the appeal and the materials in the case file, the panel of judges reached the following conclusions.

Pursuant to Article 23(2) of the CPC of Ukraine, cases concerning challenges to decisions of arbitral tribunals, contesting awards of international commercial arbitrations, and the issuance of writs of execution for the compulsory enforcement of decisions of arbitral tribunals are considered by courts of appeal as courts of first instance at the place where the case was considered by the arbitral tribunal (at the seat of arbitration).

Article 24(2) and Article 351(2) of the CPC of Ukraine establish that the Supreme Court reviews on appeal court decisions of courts of appeal rendered by them as courts of first instance.

Article 367(1) of the CPC of Ukraine provides that the court of appellate instance reviews the case on the basis of the evidence available in it and additionally submitted, and verifies the lawfulness and validity of the decision of the court of first instance within the limits of the arguments and requests of the appeal.

According to Article 263(1) of the CPC of Ukraine, a court decision must be based on the principles of the rule of law and must be lawful and well-founded.

Article 7(1) of the Law of Ukraine “On International Commercial Arbitration” provides that an arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

According to the content of this provision, only the existence of an arbitration agreement concluded between the parties is a ground for consideration of the case by an arbitral tribunal.

Article 4(1) of the Rules of the ICAC at the Ukrainian CCI provides that the ICAC accepts disputes for consideration where there is a written agreement (arrangement) between the parties to refer to it all or certain disputes which have arisen or may arise between the parties in respect of any defined legal relationship, whether contractual or not. An arbitration agreement may be concluded in the form of an arbitration clause in a contract or in the form of a separate agreement.

Under Article 67(2)(1) of the Rules of the ICAC at the Ukrainian CCI, the arbitral tribunal issues an order terminating the arbitral proceedings in cases where it concludes that the ICAC lacks jurisdiction over the dispute.

The grounds for setting aside arbitral awards by courts of general jurisdiction are specified in Article 34(2) of the Law of Ukraine “On International Commercial Arbitration” and correspond to the content of Article 459 of the CPC of Ukraine.

Pursuant to Article 459(1) of the CPC of Ukraine, an award of an international commercial arbitration may be set aside by a court only in the cases provided for by this Article, unless otherwise provided for 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”.

According to Article 459(2) of the CPC of Ukraine, an award of an international commercial arbitration may be set aside if:

1) the party making 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; or

2) the court finds that:

(a) under the law, the subject matter of the dispute is not capable of settlement by international commercial arbitration; or (b) the arbitral award is in conflict with the public policy of Ukraine.

Pursuant to Article 34(2)(1) of the Law of Ukraine “On International Commercial Arbitration”, an arbitral award may be set aside by a court, inter alia, if the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of Ukraine.

According to Article 454(8) of the CPC of Ukraine, the court issues a ruling refusing to open proceedings in a case on the grounds provided for by paragraphs 1-3 and 6 of Article 186(1) of this Code, and also if a decision of an arbitral tribunal or an award of an international commercial arbitration is challenged (contested) on grounds not provided for by law or by an international treaty the binding nature of which has been consented to by the Verkhovna Rada of Ukraine.

Having established that the applicant contests the order of the ICAC terminating the arbitral proceedings due to the lack of jurisdiction of the ICAC at the Ukrainian CCI to consider the dispute that arose between the parties, the Kyiv Court of Appeal reasonably refused to open proceedings on the application of “Imperiia Zhyriv” LLC to set aside the order of the ICAC at the Ukrainian CCI of 6 February 2026 in case No. 20/2025, since the order of the international commercial arbitration was contested by the applicant on grounds not provided for by law.

Article 16(3) of the Law of Ukraine “On International Commercial Arbitration” provides that the arbitral tribunal may rule on a plea referred to in paragraph 2 of this Article either as a preliminary question or in an award on the merits. If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request, within 30 days after having received notice of that ruling, the authority specified in Article 6 to decide the matter, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award.

Article 461 of the CPC of Ukraine establishes the procedure for challenging orders of an international commercial arbitration on its having jurisdiction, issued as a preliminary question.

That is, there is a possibility of challenging orders of the ICAC on its having jurisdiction if these orders were issued as a preliminary question.

Thus, this concerns situations which in doctrine are designated by the term “principle of competence-competence” and which have the following legal regulation:

- Article 5 (paragraph 3) of the European Convention on International Commercial Arbitration of 1961;

- Article 16 (part three) of the Law of Ukraine “On International Commercial Arbitration”;

- Article 5 (parts four and five) of the Rules of the ICAC at the Ukrainian CCI of 2025: “The arbitral tribunal has the right to issue an order on a plea referred to in part two of this Article either as a preliminary question or in an award on the merits of the dispute. If the arbitral tribunal issues an order on the ICAC having jurisdiction as a preliminary question, any party may, within 30 days after receipt of this order, challenge it by filing an application to set it aside with the Kyiv Court of Appeal, whose decision on this matter is not subject to appeal. Such an application shall not be an obstacle to the continuation of the consideration by the arbitral tribunal and the making of an award on the merits of the dispute”.

Article 32(1) of the Law of Ukraine “On International Commercial Arbitration” states that the arbitral proceedings are terminated by the final arbitral award or by an order of the arbitral tribunal adopted in accordance with paragraph 2 of this Article.

Article 59(1) of the Rules of the ICAC at the Ukrainian CCI of 2025 states that the arbitral proceedings are concluded by the making of an arbitral award or an order terminating the arbitral proceedings.

In turn, Article 67(2) of the Rules of the ICAC at the Ukrainian CCI of 2025 states that the arbitral tribunal issues an order terminating the arbitral proceedings in cases where: 1) it concludes that the ICAC lacks jurisdiction over the dispute.

Assessing these provisions, it should be concluded that only final arbitral awards on the merits and an order of the arbitral tribunal on its having jurisdiction to consider the case, issued as a preliminary question, are subject to challenge (by way of setting aside) in a state court.

Orders of the ICAC at the Ukrainian CCI terminating arbitral proceedings cannot be challenged under the procedure established by Section VIII of the CPC of Ukraine.

In refusing to open proceedings on the application of “Imperiia Zhyriv” LLC, the court of first instance took into account that the order of the ICAC at the Ukrainian CCI of 6 February 2026 in case No. 20/2025 is not an order that may be challenged under Article 461 of the CPC of Ukraine, which the applicant mentioned in the appeal.

Therefore, the contested ruling was issued by the Kyiv Court of Appeal with the correct application of the norms of substantive law, without violations of the norms of procedural law, and complies with the general rules of Article 263(1) of the CPC of Ukraine.

Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms guarantees to every person the fundamental right to a fair and public hearing of his case within a reasonable time by an independent and impartial tribunal established by law.

At the same time, the panel of judges notes that an order of the ICAC at the Ukrainian CCI terminating the arbitral proceedings does not deprive a party to the dispute of the right to seek protection of its rights (and resolution of the dispute on the merits) before a national state court under the general procedure.

Taking into account the conclusions set out above in this resolution, the arguments of the appeal that, as a result of the unlawful decision of the ICAC at the Ukrainian CCI and the issuance of the contested ruling by the Kyiv Court of Appeal, the claimant was actually deprived of the possibility of restoring its violated rights through the courts do not merit attention, since the claimant is not deprived of the possibility of applying to a national court for the protection of its violated, unrecognised or contested rights, freedoms or legitimate interests.

The other arguments of the appeal do not refute the above conclusions.

Conclusions following the consideration of the appeal

According to Article 375 of the CPC of Ukraine, the court of appellate instance dismisses the appeal and upholds the court decision if it finds that the court of first instance rendered the court decision in compliance with the norms of substantive and procedural law.

In view of the foregoing, the Supreme Court has concluded that the arguments of the appeal do not refute the correctness of the conclusions of the court of first instance, and therefore there are no grounds for granting it.

Given that the Supreme Court, as a court of appellate instance, dismisses the appeal and upholds the contested ruling, the court costs incurred in connection with the consideration of the case in the court of first instance, as well as the court costs incurred in connection with the review of the case on appeal, are not subject to redistribution.

Guided by Articles 24, 351, 367, 368, 374, 375, 381-384 and 454 of the CPC of Ukraine, the Supreme Court, composed of a panel of judges of the First Judicial Chamber of the Civil Cassation Court,

RESOLVED:

To dismiss the appeal of Limited Liability Company “Imperiia Zhyriv”.

To uphold the ruling of the Kyiv Court of Appeal of 19 May 2026.

The resolution of the court enters into legal force from the moment of its adoption, is final and is not subject to appeal.

Judges: H. V. Kolomiiets

I. Yu. Hulieikov

D. D. Luspenyk