Ruling of the Kyiv Court of Appeal in the case 824/11/26 dated 6 April 2026

KYIV COURT OF APPEAL

Case No. 824/11/26

Proceeding No. 22-sk/824/12/2026 Presiding Judge: L. P. Sushko

RULING

IN THE NAME OF UKRAINE

6 April 2026 The Kyiv Court of Appeal, composed of:

Presiding Judge L.P. Sushko, with the participation of secretary I.V. Yanchuk, having considered at an open court session in the city of Kyiv, on the premises of the Kyiv Court of Appeal, the materials of the application of attorney PERSON_1, representing the interests of INFORMATION_1, for the setting aside of the award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry of 21 November 2025 in case No. 452/2024 on the claim of INFORMATION_2 against INFORMATION_1 for the recovery of funds and an order to make a delivery,

ESTABLISHED:

By the award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry of 21 November 2025 in case No. 452/2024, there were recovered from INFORMATION_1 in favour of INFORMATION_2 INFORMATION_3 of penalty for late delivery of goods, INFORMATION_4 of fine for delay in delivery of goods by more than 30 days, INFORMATION_5 of fine for untimely remedying of defects, INFORMATION_6 of fine for breach of the terms of the contract regarding the quality of goods, INFORMATION_7 as reimbursement of the costs of paying the arbitration fee, in total INFORMATION_8, and the respondent was ordered to deliver INFORMATION_9 as a replacement in accordance with the contract.

On 15 March 2026, the representative of INFORMATION_1, attorney PERSON_1, sent to the Kyiv Court of Appeal, through the “Electronic Court” subsystem of the UJITS, an application for the setting aside of the award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry of 21 November 2025 in case No. 452/2024.

On 16 March 2026, the materials of the application were received by the Kyiv Court of Appeal, and on 17 March 2026 they were transferred to the presiding judge.

By ruling of the Kyiv Court of Appeal of 20 March 2026, proceedings in the case were opened and the case was set for hearing on 6 April 2026 at 09:50.

The representative of INFORMATION_2, PERSON_2, objected at the court session to the transfer of the case materials to another court by jurisdiction, since, in his opinion, this could lead to delays in the consideration of the case.

Attorney PERSON_1, representing the interests of INFORMATION_1, did not appear at the court session, having been duly notified of the day, time and place of the court session. The court, in accordance with Article 457(2) of the Civil Procedure Code of Ukraine, found it possible to consider the case in the absence of the respondent's representative.

On 6 April 2026, the Kyiv Court of Appeal received a motion from attorney PERSON_1, representing the interests of INFORMATION_10, to postpone the consideration of the case to another date due to symptoms of a viral illness, without providing evidence confirming the said circumstances. At the same time, the said motion was transferred by the registry of the Kyiv Court of Appeal to Judge L.P. Sushko at 10:40, which made it impossible to consider it at the court session held on 6 April 2026 at 09:50.

Having examined the case materials and heard the opinion of the claimant's representative, the court reached the conclusion that the case materials should be referred to another court by jurisdiction, on the following grounds.

The provisions of Article 23(3) of the Civil Procedure Code of Ukraine establish that cases concerning the recognition and granting of permission for the enforcement of awards of international commercial arbitration are considered: 1) if the place of arbitration is in the territory of Ukraine, by the general appellate courts at the location of the arbitration; 2) if the place of arbitration is outside Ukraine, by the general appellate court whose jurisdiction extends to the city of Kyiv.

Pursuant to Article 1(1) of the Law of Ukraine “On International Commercial Arbitration”, this Law applies to international commercial arbitration if the place of arbitration is in the territory of Ukraine. Under Article 20 of the said Law, the parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.

It is apparent from the copy of Contract No. 403/1/22/350 dated 28.11.2022 submitted to the Kyiv Court of Appeal that in clause 10.1 of Section 10 “Dispute Resolution” the parties agreed on the place of arbitration in the city of Lviv, Ukraine (case file p. 41).

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

In addition, pursuant to Article 454(4) of the Civil Procedure Code of Ukraine, an application for the setting aside of an award of international commercial arbitration is filed with the general appellate court at the location of the arbitration.

It is apparent from the copy, attached to the application, of the award of 21 November 2025 of the International Commercial Arbitration constituted to consider a specific dispute, the setting aside of which is sought by the respondent, that paragraph 10 of Section 1 “Jurisdiction of the ICAC” states that, in accordance with the agreements of the parties, the place of arbitration in this case remains the city of Lviv, Ukraine, whereas the oral hearings were held in the city of Kyiv (case file p. 15).

In view of the foregoing, the Kyiv Court of Appeal is not the court of first instance that is to decide the application of INFORMATION_1 for the setting aside of the award of the International Commercial Arbitration at the Ukrainian Chamber of Commerce and Industry of 21 November 2025 in case No. 452/2024, since the location of the arbitration is the city of Lviv.

Pursuant to Article 31(1)(1) of the Civil Procedure Code of Ukraine, the court shall transfer a case for consideration to another court if the case falls within the territorial jurisdiction of another court.

In accordance with Article 32(1) and (2) of the Civil Procedure Code of Ukraine, disputes between courts regarding jurisdiction are not permitted, and a case transferred from one court to another must be accepted for proceedings by the court to which it has been sent.

In such circumstances, the case does not fall within the jurisdiction of the Kyiv Court of Appeal and is subject to transfer by jurisdiction to the Lviv Court of Appeal.

Guided by Articles 23 and 454 of the Civil Procedure Code of Ukraine, the court

RULED:

To transfer the materials of case No. 824/11/26 (proceeding No. 22-sk/824/12/2026) on the application of attorney PERSON_1, representing the interests of INFORMATION_1, for the setting aside of the award of the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry of 21 November 2025 in case No. 452/2024 on the claim of INFORMATION_2 against INFORMATION_1 for the recovery of funds and an order to make a delivery, by jurisdiction for consideration to the Lviv Court of Appeal (location: 79008, Lviv Oblast, city of Lviv, Soborna Square, building 7).

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

If only the introductory and operative parts of the ruling were announced at the court session, the said time limit shall be calculated from the date on which the full text of the ruling was drawn up.

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.

The full text of the ruling was drawn up on 9 April 2026.

Judge of the Kyiv Court of Appeal L.P. Sushko