Resolution of Supreme Court, Civil Cassation Court in the case 824/136/25 dated 24 September 2026

RESOLUTION

IN THE NAME OF UKRAINE

24 September 2026, Kyiv

Case No. 824/136/25, proceedings No. 61-8471av26

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

V. V. Serdiuk (Judge-Rapporteur), O. M. Osiian, N. Yu. Sakara,

with the participation of the secretary of the court hearing, O. S. Vasylenko,

participants in the case:

the applicant under the application for recognition and grant of leave to enforce the arbitral award (the interested party under the application to set aside the arbitral award) - PERSON_1, the interested party under the application for grant of leave to enforce the arbitral award (the applicant under the application to set aside the arbitral award) - PERSON_2,

with the participation of the representatives:

of PERSON_1 - PERSON_3,

of PERSON_2 - PERSON_4, PERSON_5,

having examined in open court session on the premises of the Supreme Court (Kyiv, 28 Povitrianykh Syl Avenue) the appeal of PERSON_2 against the ruling of the Kyiv Court of Appeal of 25 May 2026, delivered by Judge T. I. Yashchuk, in the case concerning the application of PERSON_1 for recognition and grant of leave to enforce the award of the International Commercial Arbitration at the Ukrainian Chamber of Commerce and Industry of 1 September 2025, rendered by sole arbitrator Tetiana Slipachuk under the UNCITRAL Arbitration Rules 2010 in the case concerning the claim of PERSON_1 against PERSON_2 for recovery of the debt under a sale and purchase agreement

and concerning the application of PERSON_2 to set aside the award of the International Commercial Arbitration at the Ukrainian Chamber of Commerce and Industry of 1 September 2025, rendered by the Arbitral Tribunal ad hoc composed of sole arbitrator Tetiana Slipachuk under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL) as revised on 15 September 2010 in the case "Iryna Kostiuk v. Andrii Kostiuk (Ukraine)",

FOUND:

DESCRIPTIVE PART

Summary of the claims in the application of PERSON_1 for recognition and grant of leave to enforce the arbitral award

On 3 November 2025, the Kyiv Court of Appeal received the application of PERSON_1 for recognition and grant of leave to enforce the award of the International Commercial Arbitration at the Ukrainian Chamber of Commerce and Industry (hereinafter - the ICAC) of 1 September 2025, rendered by sole arbitrator Tetiana Slipachuk under the UNCITRAL Arbitration Rules 2010 in the case concerning the claim of PERSON_1 against PERSON_2 for recovery of the debt under a share sale and purchase agreement (case No. 824/126/25).

The application was based on the fact that the ICAC, composed of sole arbitrator Tetiana Slipachuk under the UNCITRAL Arbitration Rules 2010, by its award of 1 September 2025 in the case concerning the claim of PERSON_1 against PERSON_2 for recovery of the debt under a share sale and purchase agreement (hereinafter - the ICAC award, the arbitral award), granted the claim of PERSON_1 and ordered PERSON_2 to pay PERSON_1 EUR 1,172,548.60 and 50 % of the arbitration costs in the amount of USD 12,193.85. The claim for recovery of interest was dismissed.

PERSON_1 explained that on 10 December 2021 she and PERSON_2 concluded a Share Purchase Agreement for the sale and purchase of shares in the Company "PRADATA S.R.O." (hereinafter - the Agreement of 10.12.2021), under the terms of which PERSON_1 (the seller) transferred to PERSON_2 (the buyer) the assets belonging to her, namely 15 % of the shares in the Company "PRADATA S.R.O." (a legal entity under the laws of the Slovak Republic), and the buyer undertook to pay the seller the value of those assets in the amount of EUR 1,500,000.00.

PERSON_1 stated that the buyer had not paid her the full value of the share. Under the Agreement of 10.12.2021, PERSON_2 paid EUR 100,000.00 by bank transfer, as well as EUR 227,451.40 by transferring to PERSON_1 immovable property agreed upon between them. Accordingly, the buyer's debt to the seller under the Agreement of 10.12.2021 amounted to EUR 1,172,548.60, in connection with which PERSON_1 initiated arbitration proceedings for recovery of that debt, as provided for by the terms of the Agreement of 10.12.2021.

On 16 July 2024, the representatives of PERSON_1 sent the notice of arbitration to the email address of PERSON_2 specified in the Agreement of 10.12.2021, "INFORMATION_1", as well as to his additional email addresses "INFORMATION_6" and "INFORMATION_2".

On 17 July 2024, the representatives of PERSON_1 sent the notice of arbitration to the postal address of PERSON_2 specified in the Agreement of 10.12.2021, which he received on 25 July 2024. In the notices of arbitration, I. V. Kostiuk proposed a candidate for sole arbitrator - PERSON_6; however, PERSON_2 gave no response to the notice of arbitration and did not propose a candidate for sole arbitrator, in connection with which on 6 September 2024 PERSON_1 applied to the ICAC as the appointing authority for the sole arbitrator. That application was also sent to the email addresses of PERSON_2. Furthermore, on 11 September 2024 that application was sent to him at his postal address; PERSON_2 refused to accept that letter.

Following the appointment in October 2024 of PERSON_7 as sole arbitrator to hear the arbitral dispute, the arbitral proceedings were conducted with the participation of the representatives of PERSON_1 and PERSON_2.

PERSON_2 has not complied with the ICAC award of 1 September 2025, in connection with which PERSON_1 requested the court:

- to recognise and grant leave to enforce in the territory of Ukraine the ICAC award of 1 September 2025 under the UNCITRAL Arbitration Rules, rendered by sole arbitrator PERSON_8, in the case between PERSON_1 and PERSON_2 concerning recovery of the debt under the agreement in the amount of EUR 1,172,548.60 and compensation of 50 % of the arbitration costs in the amount of UAH 12,193.85;

- to issue a writ of execution for the compulsory enforcement in the territory of Ukraine of the ICAC award of 1 September 2025.

Brief statement of the objections of PERSON_2 to the claims in the application for recognition and grant of leave to enforce the arbitral award

On 2 January 2026, the Kyiv Court of Appeal received, via the "Electronic Court" system: a motion of PERSON_2 to take into account the arguments and evidence set out in the application of PERSON_2 to set aside the ICAC award of 1 September 2025; and a motion of PERSON_2 to join into a single proceeding and hear together the application of PERSON_1 for recognition and grant of leave to enforce the ICAC award of 1 September 2025 (case No. 824/126/25) and the application of PERSON_2 to set aside the ICAC award of 1 September 2025 (case No. 824/136/25).

Summary of the claims in the application of PERSON_2 to set aside the arbitral award

On 3 December 2025, the Kyiv Court of Appeal received the application of PERSON_2 to set aside the ICAC award of 1 September 2025.

In support of the application, PERSON_2 stated that in the period from 27 November 2009 to 9 October 2023 the parties were in a registered marriage. By combining their efforts, joint labour and funds, the parties acquired ownership of immovable property and also made contributions to the authorised capital of commercial business companies.

On 29 October 2016, the parties founded the Slovak commercial enterprise "PRADATA S.R.O." with an authorised capital of EUR 5,000. The shares were distributed as follows: an 85 % share of the authorised capital (EUR 4,250.00) belonged to PERSON_2, and a 15 % share of the authorised capital (EUR 750.00) to PERSON_1

On 10 December 2021, the parties concluded an agreement for the sale and purchase of shares in the Company "PRADATA S.R.O." (the Agreement of 10.12.2021), under the terms of which the claimant creditor PERSON_1 undertook to transfer to PERSON_2 her share in the authorised capital, and the latter to pay its value in the amount of EUR 1,500,000. In performance of the terms of the Agreement of 10.12.2021, PERSON_1 transferred to the debtor a 15 % share in the authorised capital of the company, whereas on 22 April 2022 PERSON_2 paid EUR 100,000.00 in her favour.

On 4 August 2023, PERSON_1 satisfied the claims of the creditor under a mortgage agreement concluded between her and Grand Biuro LLC, which is another business company founded by the spouses, as a result of which she received EUR 227,451.40, which amounted to UAH 9,096,100.00 in hryvnia equivalent.

Accordingly, PERSON_1 considered that she had a monetary claim in the amount of EUR 1,172,548.60, which became the ground for applying to the ICAC for resolution of that dispute.

By its award of 1 September 2025, the ICAC granted the claim of PERSON_1, in part, and ordered PERSON_2 to pay PERSON_1 EUR 1,172,548.60 and 50 % of the arbitration costs in the amount of USD 12,193.85. The claim for recovery of interest was dismissed.

However, in the opinion of PERSON_2, the ICAC award is unlawful and is subject to being set aside on the following grounds.

First, PERSON_2 was not given proper notice of the appointment of the arbitrator and of the arbitral proceedings, as a result of which he was unable to present his case.

The application to set aside the award of international commercial arbitration in this part is based on the argument that the notice of arbitration was received by "another person" other than the debtor within the meaning of Article 2 of the UNCITRAL Rules.

He notes that the provisions of subparagraph (b) of paragraph 3 and paragraph 4 of Article 2 of the UNCITRAL Rules provide that, in the absence of a designated specific address, a notice is deemed to have been received if it is delivered to the addressee's habitual residence or to its mailing address. However, the debtor was notified of the arbitral proceedings by a letter sent by email, which cannot be regarded as proper notice within the meaning of the UNCITRAL Rules, since by clauses 13.1. and 13.3. of the Agreement of 10.12.2021 the parties agreed that notices are to be sent in written (paper) form to the postal address with simultaneous dispatch by email.

The notice of referral of the dispute to international arbitration was delivered to another person rather than to the debtor, and at an address to which the debtor did not and could not have access, which was known to the claimant creditor at the time the notice was sent.

The foregoing circumstances are confirmed by the fact that the notice of arbitration is dated 16 July 2024, but it was sent more than one year after the parties sold, on 30 March 2023, the apartment located at the address to which the notice of arbitration was sent.

The arbitrator's findings that the said email address, to which the notice of arbitration was sent, appears in the corporate register are erroneous, since that email address was used only for household and family purposes at the time when the parties resided there, in particular for settling matters relating to the lease.

Second, PERSON_2 considers that the procedure for appointing the arbitrator to hear the case was not complied with, since the ICAC, when appointing the arbitrator:

(a) did not apply the list-procedure provided for by the UNCITRAL Rules;

(b) did not take proper measures to establish the circumstances in order to state in its decision of 3 October 2024 the reasons for appointing the sole arbitrator;

(c) did not comply with the arbitration agreement, contrary to the terms of which the sole arbitrator was appointed by the resolution of 3 October 2024, whereas the right to apply to international commercial arbitration arises upon expiry of a thirty-day period from the receipt by all parties of proposals concerning candidates for the sole arbitrator and if the parties have not reached agreement on that matter. Notwithstanding that the proposal of a sole arbitrator was contained in paragraph 5 of the notice of arbitration, that notice was not duly sent. Accordingly, the thirty-day period did not begin to run, since the debtor did not receive the notice of arbitration from the claimant creditor;

(d) did not state the reasons for the ICAC's omission of the list-procedure, under which the arbitrator is appointed in consultation with the parties. Omission of that procedure is permitted where there is a need for the urgent appointment of an arbitrator, or where one of the parties systematically refuses to accept any of the proposed candidates. However, none of those conditions was present, and the finding set out in the resolution of 3 October 2024 that the debtor had evaded agreeing on a candidate for sole arbitrator does not correspond to the actual circumstances;

(e) the ICAC did not use the powers vested in it to ascertain the circumstances that would have permitted the application of the list-procedure, namely: it did not send the parties a request for additional information; it did not ascertain whether the debtor had been duly notified; it did not verify compliance with the thirty-day period under paragraph 1 of Article 8 of the UNCITRAL Rules; and it did not examine whether there were real grounds for deeming the list-procedure inappropriate.

In the opinion of PERSON_2, the arbitrator's findings that the debtor submitted his objections concerning the breach of the procedure for appointing the sole arbitrator out of time are erroneous, since in his email of 18 October 2024 the debtor reserved his right to raise objections to the arbitrator's jurisdiction within non-bifurcated proceedings, which he did together with the filing of his first submission on the merits - the statement of defence - in accordance with the provisions of Procedural Order No. 1 of 6 November 2024.

PERSON_2 asserts that the arbitrator disregarded the fact that the time limit for submitting objections to the debtor's request for security for costs had been missed, and that the request for an extension of that time limit was submitted on the last day of the time limit - 21 March 2025, whereas the representatives of the claimant creditor were obliged to, and were able to, inform the arbitrator of the impossibility of meeting the previously set time limit without delay, that is, upon receipt of the arbitrator's letter of 16 March 2025, and not five working days after its receipt.

Disregarding that circumstance constituted a breach of the principles of adversarial proceedings and equality of the participants in the arbitral proceedings, since the arbitrator did not comply with paragraph 24 of Procedural Order No. 1 of 6 November 2024, under which the arbitrator is to extend previously established time limits in exceptional cases, provided that the request for an extension is submitted as soon as it becomes evident that compliance with the previously established time limit has become impossible and provided that the request was not made by a party on the last day of the time limit.

PERSON_2 states that the arbitral award does not comply with the principle of party disposition and the parties' right "to be heard", since it is based on legal considerations of which the debtor was not and could not have been aware, and he was not given the opportunity to present his arguments in response to such considerations, since the arbitrator's legal characterisation of this dispute as arbitrable was based on the provisions of the European Convention on International Commercial Arbitration of 21 April 1961 (hereinafter - the 1961 Convention) and was "invented" by her on her own initiative, reflecting this post factum in the arbitral award without warning the parties and without giving them the opportunity to express their views on the matter.

Third, PERSON_2 considers that, in accordance with the law, the dispute, by reason of its subject matter, could not be referred to international commercial arbitration for resolution, since its legal nature is that of family relations, which do not fall within the jurisdiction of arbitration under Article 2 of the Law of Ukraine "On International Commercial Arbitration".

The legal nature of a dispute is determined not by the content of the claims but by the substance of the legal relationship. Although the subject matter of the arbitral proceedings was not the division of property between the former spouses as such, it is evident that the dispute concerned not merely the performance of a contract but, first and foremost, a claim which at the same time forms part of the spouses' joint property. The arbitral award directly affects the regime of the spouses' joint co-ownership, that is, the rights of the wife and the husband, which may be exercised only in a national court of Ukraine, since:

(a) the agreement was concluded between the parties while they were married to each other;

(b) the rights and obligations arising under that agreement, that is, the claimant creditor's right of claim against the debtor, as well as the obligation to pay the value of the shares (share) in the total amount of EUR 1,172,548.60, belong to the spouses' joint property, that is, they constitute their joint right of claim and their joint obligation;

(c) a national court of Ukraine has pending before it a civil case concerning the division of the spouses' property, within which these same rights and obligations are subject to division between the husband and the wife in equal shares in accordance with Articles 60-74 of the Family Code of Ukraine.

The family-law nature of the dispute is also evidenced by the provisions of family legislation applied by the arbitrator. In support of this position, the applicant refers to the provisions of part one of Article 19 of the Civil Procedure Code of Ukraine, under which the courts hear in civil proceedings, inter alia, disputes arising from family relations. PERSON_2 also refers to part one of Article 81 of the Law of Ukraine "On Private International Law", stating that awards of international commercial arbitration may be recognised and enforced in Ukraine only in civil and commercial cases. By contrast, in cases arising from family relations, arbitral awards cannot be recognised and enforced, which is consistent with the position of the Supreme Court set out in its resolution of 16 September 2021 in case No. 824/24/21.

In the view of PERSON_2, the arbitrator disregarded the debtor's arguments and evidence that the parties carried on commercial activity exclusively in Ukraine, and that, accordingly, within the meaning of part two of Article 1 of the Law of Ukraine "On International Commercial Arbitration", the dispute could not be referred to international commercial arbitration.

The arbitrator's conclusions that, as at the date of conclusion of the Agreement of 10 December 2021, the debtor's commercial address was: ADDRESS_9, are likewise erroneous, since:

(a) the materials of the arbitral proceedings contain no evidence that, at the time the agreement was concluded, the applicant was registered in Poland as an individual entrepreneur;

(b) the details stated in the contract were used for the purpose of exchanging correspondence;

(c) the provisions of the 1961 Convention applied by the arbitrator to determine the arbitrability of this dispute were applied without grounds, since those provisions cannot serve to interpret the Law of Ukraine "On International Commercial Arbitration" and do not extend to the arbitration agreement under subparagraph (a) of paragraph 1 of Article 1 of the 1961 Convention.

PERSON_2 also disagrees with the court's conclusion that the place of business is the Slovak Republic, since:

(a) the establishment of a legal entity under the law of another country, as well as the debtor's transactions in corporate rights and isolated transactions for the acquisition of shares in the authorised capital of a company in the Slovak Republic, cannot, within the meaning of part two of Article 1 of the Law of Ukraine "On International Commercial Arbitration", evidence that an individual's place of business is located in that State;

(b) PERSON_2 carried on investment activity (part one of Article 2 and Article 3 of the Law of Ukraine "On Investment Activity"), for which Ukrainian legislation requires neither that an individual acquire the status of an entrepreneur nor that such activity be carried on on a permanent, systematic basis, which is characteristic specifically of entrepreneurial activity;

(c) PERSON_1 did not provide evidence that, as at the date on which the arbitration agreement entered into force, the debtor was registered in the Slovak Republic as an individual entrepreneur, or that he carried on entrepreneurial activity in that country.

The arbitrator's interpretation of the provisions of the Law of Ukraine "On International Commercial Arbitration" by applying the 1961 Convention is erroneous, since its application is clearly limited to the scope and conditions defined by the Convention itself. The 1961 Convention was not applicable in these arbitral proceedings, since its provisions applied to arbitration agreements whose parties (individuals) had, as at the date of conclusion of the arbitration agreement, their habitual residence in the territory of different Contracting States that had ratified that Convention, and its provisions do not apply where the actual place of residence of the individual parties as at the date of conclusion of the agreement was within one Contracting State; and since the parties to the arbitration agreement resided in the territory of the Republic of Poland, its provisions were not applicable.

Fourthly, PERSON_2 states that the arbitral award conflicts with the public policy of Ukraine, since the dispute falls within the jurisdiction of the national judicial authorities of Ukraine, and, in addition, the arbitrator manifestly misapplied fundamental provisions of the substantive law of Ukraine, which may lead to a violation of the public policy of Ukraine, as emphasised by the Supreme Court in its decision of 9 October 2025 in case No. 824/17/25.

The arbitrator disregarded the presumption of joint marital property provided for in Article 60 of the Family Code of Ukraine, stating in the award that no evidence had been provided of the original acquisition of the shares (participatory interests) in the company, in particular that the shares had been acquired with the spouses' joint funds, or that they had been acquired with the personal funds of one of the spouses. The arbitrator referred to a non-existent item 1 of part three of Article 57 of the Family Code of Ukraine, and also groundlessly shifted the burden of proof onto the debtor.

The arbitrator's reference to the English Matrimonial Causes Act 1973, which governs the division of the parties' property as former spouses, is also incorrect, since English substantive law applies solely for the purposes of "interpreting" the validity and performance of the contract concluded by the parties, and does not and cannot govern the legal regime of the property of the parties as citizens of Ukraine whose marriage was registered under the law of Ukraine.

The arbitrator's violation of the principles of adversarial proceedings, party disposition and equality of the parties also evidences a violation of the public policy of Ukraine. In addition, the arbitral award violates the children's rights to proper maintenance, since it does not take into account the conclusion of the Constitutional Court of Ukraine set out in Decision No. 1-r/2024 of 29 October 2024, as the fullest possible consideration of, among other things, the interests of the child also forms the public policy of Ukraine.

Although the subject matter of the arbitral proceedings was the question of the parties' rights and obligations under the Agreement of 10 December 2021, and not the division of property, the parties' obligations are deemed "joint marital property", since the dispute that was the subject matter of the arbitral proceedings and the dispute on the division of property pending before a national court of Ukraine in fact concern the same subject matter: (a) the parties' shares in the company; (b) the right of claim under the Agreement of 10 December 2021; (c) the obligation to pay for the share under the contract.

PERSON_2 is convinced that the foregoing indisputably evidences the existence of "parallel proceedings", which creates a risk of a possible conflict/competition of decisions that would violate the principle of legal certainty.

On the basis of the foregoing, PERSON_2 asked the court to set aside the ICAC award of 1 September 2025.

Summary of PERSON_1's objections to the application to set aside the arbitral award

On 21 January 2026, the Kyiv Court of Appeal received PERSON_1's objections to the application to set aside the international arbitral award, in support of which the following was stated.

Firstly, PERSON_1's applications to the national courts of Ukraine for interim measures securing the claim cannot be regarded as rendering the arbitration agreement invalid, in accordance with paragraph 9 of Article 26 of the UNCITRAL Arbitration Rules, under which a request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the arbitration agreement or as a waiver of that agreement.

Article 9 of the Law of Ukraine "On International Commercial Arbitration" also provides that it is not incompatible with an arbitration agreement for a party to request from a court, before or during arbitral proceedings, an interim measure of protection and for a court to grant such a measure.

A distinction must be drawn between the determination by national judicial authorities of the question of granting interim measures and the resolution of the dispute on the merits. PERSON_1 did not refer the resolution of the dispute on the merits to a court of Ukraine. Accordingly, her application to a court of Ukraine cannot be characterised as rendering the arbitration agreement invalid.

Secondly, PERSON_2's arguments that he was not properly notified are unfounded, since the arbitrator proceeded from the address that was stated in the Agreement of 10 November 2021 at the time of its conclusion, namely: ADDRESS_1.

Clause 13.1 of the Agreement of 10 December 2021 provided that any notice (including any demand or other communication) given under or in connection with that contract shall be in writing in the English language, signed by or on behalf of the party, and sent to the parties at the address and contact details specified in clause 13.4, which contained the said address of the debtor.

Referring to paragraph 2 of Article 2 of the UNCITRAL Arbitration Rules, she observes that, if an address has been designated by a party specifically for this purpose or authorised by the arbitral tribunal, any notice shall be delivered to that party at that address, and if so delivered shall be deemed to have been received.

PERSON_1 asserts that the notice of arbitration was sent by e-mail to PERSON_2's e-mail address on 16 July 2024, was delivered in paper form by courier service on 17 July 2024 to the above-mentioned address of the debtor in the Republic of Poland, and on 25 July 2024 was delivered to the debtor by JSC "DHL International Ukraine".

As regards the request for the appointment of a sole arbitrator, that request was sent by e-mail to the debtor's e-mail address on 6 September 2024, and physically by post on 11 September 2024 to the address indicated by the debtor in clause 13.4 of the contract, but the debtor refused to accept the postal item, as confirmed by an official letter of JSC "DHL International Ukraine".

By virtue of paragraph 4 of Article 2 of the UNCITRAL Arbitration Rules, a notice shall be deemed to have been received if it is sent to the addressee's last-known place of business, habitual residence or mailing address by registered letter or any other means that provides a record of delivery or of attempted delivery.

The debtor did not provide the arbitral tribunal with evidence showing that he had notified the claimant of a change of his address in accordance with clause 13.5 of the contract, and in the absence of such notification that clause provided that all notices were to be sent to the address specified in clause 13.4.

She considers the debtor's assertions that the arbitral proceedings were defective owing to his improper notification and the failure to notify him of the appointment of the arbitrator to be unfounded, since the arbitral proceedings were in accordance with the agreement of the parties and the law.

Thirdly, PERSON_1 considers groundless PERSON_2's assertions that the arbitrator was appointed in breach of the procedure, since in September 2024 he was duly notified of the claimant's application to the ICAC with a request for the appointment of a sole arbitrator, but the debtor once again ignored that notice.

Referring to point (d) of paragraph 2 of Article 8 of the UNCITRAL Arbitration Rules, she states that the ICAC has the competence to designate an arbitrator for the arbitral proceedings, who must be appointed as promptly as possible, and may, in its discretion, determine that the use of the list-procedure is not appropriate, and, if for any reason the appointment cannot be made according to the list-procedure, the arbitrator is appointed by the ICAC in its discretion. The ICAC's decision to appoint a sole arbitrator was prompted by the debtor's prolonged disregard of the claimant's letters, which led the arbitral institution to exercise its discretionary powers.

PERSON_1 also disagrees with PERSON_2's arguments insofar as they concern the arbitrator's violation of the principles of adversarial proceedings, equality and party disposition, as well as the right "to be heard", since during the arbitral proceedings the debtor filed an application for bifurcation, a statement of defence and a response on the merits of the dispute, objections to the request for document disclosure, and an application for interim measures; the arbitrator afforded the parties a full and equal opportunity to present their positions.

Fourthly, the arguments of the application concerning the non-arbitrability of this dispute are groundless, since the subject matter of this dispute is the recovery of a debt under the Agreement of 10 December 2021; the claims brought by PERSON_1 did not concern family-law relations, but only the debt under a commercial contract.

As regards the location of the parties' places of business, the claimant states that, at the time of signing the Agreement of 10 December 2021, the parties specified in clause 13.4 the addresses of their locations, which were situated in two different countries, Ukraine and the Republic of Poland, so the dispute is arbitrable within the meaning of part one of Article 1 of the Law of Ukraine "On International Commercial Arbitration". The fact that the Polish address of the debtor's place of business stated in the Agreement of 10 December 2021 has the closest relationship to the arbitration agreement is confirmed by an extract from the Commercial Register of the Bratislava III Municipal Court concerning the company "PRADATA S.R.O.". Accordingly, the criterion that at least one of the parties have its place of business abroad was met, and the dispute is arbitrable under the Law of Ukraine "On International Commercial Arbitration".

Fifthly, PERSON_2's arguments concerning a violation of the public policy of Ukraine as a result of the arbitral tribunal's rendering of an award upon the resolution of a legal dispute are groundless and unfounded.

Summary of the decision of the court of appeal rendered as the court of first instance

By ruling of 28 January 2026, the Kyiv Court of Appeal joined into a single set of proceedings the applications of PERSON_2 (case No. 824/136/25) and of PERSON_1 (case No. 824/126/25), since both applications of the parties are based on the ICAC award of 1 September 2025 rendered by the ad hoc arbitral tribunal composed of sole arbitrator Tetiana Slipachuk under the Arbitration Rules of the United Nations Commission on International Trade Law as revised on 15 September 2010 in the case "Iryna Kostiuk v. Andrii Kostiuk (Ukraine)". Moreover, under both the application for recognition and grant of leave to enforce the ICAC award and the application to set aside the ICAC award, the same circumstances are to be examined and established, since the grounds for refusing recognition and leave to enforce the ICAC award (Article 478 of the Civil Procedure Code of Ukraine) and the grounds for setting aside the ICAC award (Article 459 of the Civil Procedure Code of Ukraine) are analogous.

By ruling of 25 May 2026, the Kyiv Court of Appeal dismissed PERSON_2's application to set aside the ICAC award of 1 September 2025. It granted PERSON_1's application for recognition and grant of leave to enforce the ICAC award of 1 September 2025.

It recognised and granted leave to enforce the ICAC award of 1 September 2025 rendered by the ad hoc arbitral tribunal composed of sole arbitrator Tetiana Slipachuk under the Arbitration Rules of the United Nations Commission on International Trade Law as revised on 15 September 2010 in the case "Iryna Kostiuk v. Andrii Kostiuk (Ukraine)", on the recovery from PERSON_2 in favour of PERSON_1 of a debt under a share sale and purchase contract in the amount of EUR 1,172,548.60 and arbitration costs in the amount of USD 12,193.85.

It issued a writ of execution for the compulsory enforcement in the territory of Ukraine of the ICAC award of 1 September 2025 rendered by the ad hoc Arbitral Tribunal composed of sole arbitrator Tetiana Slipachuk under the Arbitration Rules of the United Nations Commission on International Trade Law as revised on 15 September 2010, in the case "Iryna Kostiuk v. Andrii Kostiuk (Ukraine)", on the recovery from PERSON_2 in favour of PERSON_1 of a debt under a share sale and purchase contract in the amount of EUR 1,172,548.60 and arbitration costs in the amount of USD 12,193.85.

It ordered PERSON_2 to pay PERSON_1 the costs of the court fee in the amount of UAH 605.60.

The ruling of the court of first instance is reasoned on the basis that the grounds for setting aside an award of international commercial arbitration defined in Article 459 of the Civil Procedure Code of Ukraine are analogous to the grounds for refusing recognition and leave to enforce an award of international commercial arbitration. In considering PERSON_2's application, the court did not establish any grounds for setting aside the arbitral award; therefore, there are no grounds for refusing PERSON_1's application for recognition and grant of leave for the compulsory enforcement of the arbitral award.

The arbitration agreement is valid; the debtor was duly notified of the arbitral proceedings and of the appointment of the arbitrator; the arbitral award was rendered in respect of a dispute contemplated by the arbitration agreement, and that award does not decide matters beyond the scope of the arbitration agreement; the composition of the arbitral tribunal and the arbitral procedure were in accordance with the arbitration agreement; the debtor participated in the arbitral proceedings and did not challenge the validity of the arbitration agreement; the dispute referred to the arbitral tribunal composed of a sole arbitrator is arbitrable; the recognition and enforcement of the arbitral award do not conflict with the public policy of Ukraine.

Summary of the claims of the appeal

On 24 June 2026, PERSON_2, represented by advocates A. K. Kozyrieva and O. S. Perepelynska, filed with the Supreme Court, through the "Electronic Court" subsystem, an appeal against the ruling of the Kyiv Court of Appeal of 25 May 2026 in this case, rendered by it as the court of first instance, in which he asked that the contested court decision be set aside and that a new court decision be rendered in this case granting PERSON_2's application to set aside the ICAC award of 1 September 2025, setting aside the ICAC award of 1 September 2025 and dismissing PERSON_1's application for recognition and grant of leave to enforce the said ICAC award.

Receipt of the appeal by the Supreme Court and proceedings in the court of appeal

By ruling of 29 June 2026, the Supreme Court left the appeal without action and granted time to remedy its deficiencies.

On 3 July 2026, materials remedying the deficiencies of the appeal were received, from which it appears that the deficiencies of the appeal had been remedied.

By ruling of 8 July 2026, the Supreme Court opened appellate proceedings in this case and requested the materials of case No. 824/136/25 from the Kyiv Court of Appeal.

In July 2026, the materials of the civil case were received by the Supreme Court.

By ruling of 6 August 2026, the Supreme Court completed the preparatory actions in this case and scheduled the case for hearing in open court on 17 September 2026 at 11:00, with notice to the participants in the case.

On 11 August 2026, the ruling of the Supreme Court of 6 August 2026 scheduling the court hearing for 17 September 2026 at 11:00 was sent through the "Electronic Court" subsystem to the representatives of PERSON_2, who received that ruling on 11 August 2026 through their electronic account in the "Electronic Court" subsystem.

On 11 August 2026, the summons to the court hearing and the ruling of the Supreme Court of 6 August 2026 scheduling the court hearing for 17 September 2026 at 11:00 were sent through the "Electronic Court" subsystem to the representatives of PERSON_1: PERSON_9 and PERSON_3. The representatives of PERSON_1 received the said ruling on 11 August 2026 through the electronic account of the "Electronic Court" subsystem.

On 12 August 2026, summonses to the court hearing on 17 September 2026 at 11:00 were sent by post to the participants in the case at the addresses indicated in the case materials.

The participants in the case were duly notified, in the manner prescribed by law, of the hearing of the case on 17 September 2026 at 11:00.

On 3 September 2025 through the "Electronic Court" system and on 7 September 2025 by post, the Supreme Court received applications identical in content from PERSON_2's representative, advocate O. S. Perepelynska, for participation in court hearings by videoconference from outside the court premises.

By ruling of 8 September 2026, the Supreme Court granted the applications of PERSON_2's representative, advocate O. S. Perepelynska, and decided to ensure the participation of PERSON_2's representative, advocate O. S. Perepelynska, in the court hearing scheduled for 17 September 2026 at 11:00, as well as in subsequent court hearings, should they be scheduled, by videoconference from outside the court premises using her own technical means, and explained to the participants in the case that, in accordance with part four of Article 212 of the Civil Procedure Code of Ukraine and paragraph 46 of the Regulation, the risks of the technical impossibility of participating in a videoconference from outside the court premises, of interruption of the connection, and the like, are borne by the participant in the case.

On 17 September 2026, at the court hearing, the Supreme Court adjourned the hearing until 24 September 2026 at 11:00.

At the court hearing on 17 September 2026, the representatives of the parties were notified against signature of the date and time of the next court hearing on 24 September 2026 at 11:00. In addition, summonses to the court hearing on 24 September 2026 at 11:00 were sent to the participants in the case at the addresses indicated in the case materials, and through the "Electronic Court" system to the persons registered in the system.

The participants in the case were duly notified, in the manner prescribed by law, of the court hearing of the case scheduled for 24 September 2026 at 11:00.

ARGUMENTS OF THE PARTICIPANTS IN THE CASE

Arguments of the person who filed the appeal

In support of the claims of the appeal, PERSON_2 submitted that the contested ruling of the court of first instance had been delivered in breach of the rules of substantive and procedural law, namely:

1. The court of first instance incorrectly established the factual circumstances of the case as regards the identification of the arbitral body that heard the dispute under the Agreement of 10.12.2021, since it wrongly stated that the dispute had been heard by the ICAC under the ICAC Rules, rather than by a specially constituted ad hoc arbitral tribunal under the UNCITRAL Rules (pp. 6-8 of the appeal).

2. The court of first instance failed to give proper assessment to the applicant's argument that the arbitration agreement had become invalid and inoperative under the law of England, to which the parties had subjected the Agreement of 10.12.2021.

Before initiating the arbitral proceedings, PERSON_1 applied three times to the Solomianskyi District Court of Kyiv with applications for securing a future claim which she intended to file with a court of general jurisdiction, that is, she departed from the terms of the arbitration agreement; therefore, that agreement became inoperative and the dispute could not be heard by an arbitral tribunal.

Accordingly, there are grounds for setting aside the arbitral award provided for in subparagraph (a) of paragraph 1 of part two of Article 459 of the CPC of Ukraine and subparagraph 1 of paragraph 1 of part two of Article 34 of the Law of Ukraine "On International Commercial Arbitration" (pp. 8-24 of the appeal).

3. The court of first instance incompletely and incorrectly ascertained the circumstances that the applicant had not been given proper notice of the appointment of the arbitrator or of the arbitral proceedings. Therefore, there are grounds for setting aside the arbitral award provided for in subparagraph (b) of paragraph 1 of part two of Article 459 of the CPC of Ukraine, as well as subparagraph 2 of paragraph 1 of part two of Article 34 of the Law of Ukraine "On International Commercial Arbitration" (pp. 24-46 of the appeal).

4. The court of first instance incompletely and incorrectly ascertained the circumstances of the case and, as a consequence, reached the erroneous conclusions that the arbitral procedure was in accordance with the Agreement of 10.12.2021 and the legislation in force. Therefore, there are grounds for setting aside the arbitral award provided for in subparagraph (d) of paragraph 1 of part two of Article 459 of the CPC of Ukraine, as well as subparagraph 4 of paragraph 1 of part two of Article 34 of the Law of Ukraine "On International Commercial Arbitration" (pp. 46-64 of the appeal).

5. The court of first instance reached the erroneous conclusions that the dispute under the Agreement of 10.12.2021 is arbitrable and could be referred to international commercial arbitration. Therefore, there are grounds for setting aside the arbitral award provided for in subparagraph (a) of paragraph 2 of part two of Article 459 of the CPC of Ukraine, as well as subparagraph 1 of paragraph 2 of part two of Article 34 of the Law of Ukraine "On International Commercial Arbitration" (pp. 64-103 of the appeal).

6. The court of first instance incompletely and incorrectly ascertained the circumstances concerning the conflict of the arbitral award with the public policy of Ukraine. That is, there are grounds for setting aside the arbitral award provided for in subparagraph (b) of paragraph 2 of part two of Article 459 of the CPC of Ukraine, as well as subparagraph 2 of paragraph 2 of part two of Article 34 of the Law of Ukraine "On International Commercial Arbitration" (pp. 104-117 of the appeal).

Arguments of the person who filed the response to the appeal

In the response to the appeal filed with the Supreme Court in July 2026, PERSON_1 requests that the appeal be dismissed and the contested court decision be upheld, relying on the lawfulness and validity of the conclusions of the Kyiv Court of Appeal acting as a court of first instance.

Arguments of the person who filed additional written explanations concerning the arguments of the response to the appeal

On 6 August 2026, additional written explanations concerning the arguments of the response to the appeal were received by the Supreme Court through the "Electronic Court" system, in which the representative of PERSON_2 sets out arguments in rebuttal of the arguments of the response to the appeal filed in this case, considering the response unfounded and as not refuting the arguments of the appeal.

Explanations of the parties' representatives at the court hearing

At the court hearing, the representatives of PERSON_2, attorneys A. K. Kozyrieva and O. S. Perepelynska, fully supported the claims and arguments of the appeal and requested the Supreme Court to allow the appeal, set aside the ruling of the Kyiv Court of Appeal of 25 May 2026 and deliver a new court decision in this case allowing the application of PERSON_2 to set aside the ICAC award of 1 September 2025, setting aside the ICAC award of 1 September 2025 and refusing the application of PERSON_1 for recognition and grant of leave to enforce that ICAC award.

At the court hearing, the representative of PERSON_1, attorney P. V. Lebediev, objected to the appeal being allowed, supported the arguments of the response to the appeal and requested the court to dismiss the appeal and to uphold the contested ruling of the Kyiv Court of Appeal of 25 May 2026.

Factual circumstances of the case

PERSON_2 and PERSON_1 are citizens of Ukraine and were married from 27 November 2009, the marriage having been registered by the Civil Status Registration Department of the Solomianskyi District Justice Directorate in Kyiv, registration entry No. 1902.

By decision of 8 September 2023 in case No. 760/14493/23, which entered into legal force on 9 October 2023, the Solomianskyi District Court of Kyiv dissolved the marriage between PERSON_2 and PERSON_1. The parties have two minor children of the marriage: PERSON_10, INFORMATION_3, and a son, PERSON_11, INFORMATION_4.

According to the data in the passports of citizens of Ukraine, the parties have a registered place of residence in Ukraine, namely: PERSON_1 since 1 June 2016 at the address: ADDRESS_2, and PERSON_2 since 25 September 2020 at the address: ADDRESS_3.

As at the date of conclusion of the Agreement of 10.12.2021, the parties' actual place of residence was at the address: ADDRESS_4, where the parties rented a house during the period from 18 May 2020 to 22 March 2022. During the period from 25 January 2021 to 20 April 2023, the parties' place of residence was registered in an apartment at the address: ADDRESS_1. That apartment was sold by the parties on 30 March 2023, as confirmed by a copy of notarial deed No. 1945/2023 of 30 March 2023 certifying the apartment sale and purchase agreement, executed in the presence of PERSON_2 and PERSON_1.

Since 26 April 2024, PERSON_2 has resided and been registered at the address: ADDRESS_5, as confirmed by a copy of the residential lease agreement and the certificate of temporary registration of the place of residence.

PERSON_1 obtained a temporary residence permit for the territory of the Republic of Poland on 8 May 2020, valid until 20 April 2023, after which, by decision of PERSON_12 of 2 May 2023, she was granted a temporary residence permit for the territory of the Republic of Poland from 18 July 2023 to 1 May 2026. PERSON_1 obtained an EU resident card on 7 November 2024.

PERSON_2 obtained a temporary residence permit for the territory of the Republic of Poland on 8 May 2020, valid until 20 April 2023. On 18 July 2023, PERSON_2 obtained a temporary residence permit for the territory of the Republic of Poland until 1 May 2026, and also obtained an EU resident card valid from 7 November 2024 to 7 November 2029.

On 29 October 2016, the parties established in the Slovak Republic a company in the form of a limited liability company, "PRADATA S.R.O.", with a total authorised capital of EUR 5,000.00, as confirmed by an Extract from the Commercial Register of the Bratislava III City Court; the company's registered office is Slovakia, Bratislava 851 01, Kopianska Street, 14. The shares (stakes) in that company were distributed as follows: a share corresponding to 85% of the company's authorised capital and equivalent to EUR 4,250.00 belongs to PERSON_2; a share corresponding to 15% of the company's authorised capital and equivalent to EUR 750.00 belonged to PERSON_1.

On 10 December 2021, the parties concluded an Agreement on the sale of a share in the authorised capital of the Limited Liability Company "PRADATA S.R.O.", under the terms of which the seller, PERSON_13, undertook to transfer to the buyer her share in the authorised capital, and the buyer, PERSON_14, undertook to pay its value at a price of EUR 1,500,000.00. As stated by the representative of PERSON_2 in the application to set aside the arbitral award, in performance of the terms of the contract PERSON_1 transferred to PERSON_2 a 15% share in the authorised capital of the Company "PRADATA S.R.O.". In turn, on 22 April 2022 PERSON_2 transferred to PERSON_1 a sum of money in the amount of EUR 100,000.00.

On 4 August 2023, PERSON_1 satisfied the creditor's claims under the mortgage agreement and re-registered in her own name the title to the immovable property items which were subsequently contributed to the authorised fund of LLC "LamaKhauz". The claims of PERSON_1 as creditor under the agreement and the mortgage agreement were satisfied in the amount of UAH 9,096,100.00, which was equivalent to EUR 227,451.40.

By a supplementary agreement of 29 January 2023, the parties amended the Agreement of 10.12.2021 as regards payment of the consideration to a bank account by 30 June 2023 (case file p. 170, vol. 2).

In Section 20 "Applicable Law and Submission to Jurisdiction" of the Agreement of 10.12.2021, the parties agreed as follows:

"20.1. The interpretation, validity and performance of this agreement, as well as all non-contractual obligations arising out of or in connection with this Agreement, shall be governed by English law.

Arbitration and jurisdiction: (a) Any dispute, controversy or claim arising in connection with this agreement shall be finally resolved by arbitration in accordance with the UNCITRAL Arbitration Rules 2010 (the "Rules"); (b) The arbitral tribunal shall consist of 1 (one) arbitrator; (c) The seat of arbitration shall be Kyiv, Ukraine; (d) The language of the arbitral proceedings shall be English. If the parties fail to appoint a sole arbitrator within the time limits established by the Rules, the International Commercial Arbitration Court (ICAC) shall act as the appointing authority; (e) The arbitral award shall be final and shall be performed by the parties to this agreement. For the avoidance of any doubt, the confidentiality provisions of this agreement shall apply to any proceedings relating to the arbitral proceedings and/or resulting from an arbitration commenced and conducted between the parties pursuant to this clause, until a final award is rendered; (f) The submission of any request for arbitration filed pursuant to this clause shall be made in accordance with clause 13 (notices)".

By ruling of 24 May 2024 in case No. 760/12080/24, the Solomianskyi District Court of Kyiv returned the application of PERSON_15 for securing a claim prior to the filing of a statement of claim to her representative, PERSON_9, on the ground that it did not contain a proposal regarding counter-security and did not state the value of the security for the claim, which is necessary for assessing the proportionality of the interim measures to the claims asserted.

By ruling of 3 June 2024 in case No. 760/12543/24, the Solomianskyi District Court of Kyiv returned the application of PERSON_1 for securing a claim prior to the filing of a statement of claim to her representative, PERSON_9, because a copy rather than the original of the warrant had been attached to the application as confirmation of authority.

By ruling of 25 June 2024 in case No. 760/14186/24, the Solomianskyi District Court of Kyiv refused the application of PERSON_1 for securing a claim prior to the filing of a statement of claim. The court's ruling was reasoned on the basis that an application for securing a claim must be substantiated, in particular as regards the proportionality of the type of security to the claims asserted (or future claims) and their interrelation; however, PERSON_1 had not proven that PERSON_2 owed the applicant a debt under the agreement on the purchase of shares in the Limited Liability Company "PRADATA S.R.O.".

On 6 September 2024, PERSON_1 applied to the ICAC with an application for the appointment of a sole arbitrator to hear the arbitral dispute on the basis of the Agreement of 10.12.2021.

Within the arbitral proceedings, PERSON_1 filed a statement of claim against PERSON_2, in which she requested that PERSON_2 be ordered to pay the debt in the amount of EUR 1,172,548.60 with compound interest at the rate of 3.15% per annum, capitalised every three months, from 1 July 2023 to the date of actual payment; and/or interest in the amount of EUR 3,665.40 accrued for the period from 1 July 2023 to 4 August 2023; and/or legal assistance costs together with compound interest at the rate of 3.15% per annum, capitalised every three months, from the date those costs were incurred to the date of their actual payment; and/or any other relief that the arbitral tribunal deems appropriate.

The ICAC, composed of the sole arbitrator Tetiana Slipachuk (an ad hoc arbitral tribunal under the Arbitration Rules of the United Nations Commission on International Trade Law "UNCITRAL" as revised on 15 September 2010), by award of 1 September 2025 partially granted the claim of PERSON_1 against PERSON_2 for recovery of the debt and ordered PERSON_16 to pay PERSON_17 under the contract the sum of EUR 1,172,548.6 and 50% of the arbitration costs in the amount of USD 12,193.85. It dismissed the claim for recovery of interest.

REASONING

Position of the Supreme Court

Part two of Article 24 and part two of Article 351 of the CPC of Ukraine provide that the Supreme Court reviews on appeal the court decisions of courts of appeal delivered by them as courts of first instance.

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

Under part one of Article 368 of the CPC of Ukraine, the case is heard by the court of appeal under the rules established for hearing a case in simplified action proceedings, with the specific features established by Chapter 1 "Appeal Proceedings" of Section V "Review of Court Decisions" of the CPC of Ukraine.

Having heard the report of the judge-rapporteur and having examined the arguments of the appeal and the case file, the panel of judges reached the following conclusions.

Regarding the claims of the application of PERSON_2 to set aside the arbitral award

The subject matter of the appellate review in this case is the arguments of PERSON_2 as to the existence of grounds for setting aside the ICAC award of 1 September 2025 in the arbitral dispute between PERSON_1 and PERSON_2 concerning recovery of a debt under a sale and purchase agreement.

Under parts two and four of Article 454 of the CPC of Ukraine, an award of international commercial arbitration may be challenged in the manner provided for in this Section if the seat of arbitration is located in the territory of Ukraine. An application to set aside an award of international commercial arbitration is filed with the general court of appeal at the seat of arbitration.

Under Article 2 of the Law of Ukraine "On International Commercial Arbitration", arbitration means any arbitration (arbitral tribunal), irrespective of whether it is formed specially for the hearing of a particular case or is administered by a permanent arbitral institution, in particular the International Commercial Arbitration Court or the Maritime Arbitration Commission at the Ukrainian Chamber of Commerce and Industry (Annexes No. 1 and No. 2 to this Law).

Part one of Article 7 of the Law of Ukraine "On International Commercial Arbitration" provides that an arbitration agreement is an agreement of the parties to submit to arbitration all or certain disputes which have arisen or may arise between them 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 the provisions of part one of Article 20 of the Law of Ukraine "On International Commercial Arbitration", 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.

Part one of Article 34 of the Law of Ukraine "On International Commercial Arbitration" provides that recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs 2 and 3 of this Article.

Under part two of Article 459 of the CPC of Ukraine, which is consistent with part two of Article 34 of the Law of Ukraine "On International Commercial Arbitration", an award of international commercial arbitration may be set aside if: 1) the party filing the application for setting aside furnishes proof that: (a) a party 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) 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.

The interpretation of Article 459 of the CPC of Ukraine shows that the burden of proving the existence of grounds for setting aside an award of international commercial arbitration lies on the party that files the application to set aside such award. A legal conclusion similar in substance is set out in the resolutions of the Supreme Court of 15 February 2024 in case No. 824/85/23 (proceedings No. 61-37av24).

A decision of a state court to set aside an arbitral award, as the outcome of the hearing of a case challenging that award, may be rendered only where at least one of the grounds provided for in part two of Article 34 of the Law of Ukraine "On International Commercial Arbitration" and part two of Article 459 of the CPC of Ukraine exists (is proven). Accordingly, the legislation of Ukraine, while permitting an arbitral award to be challenged by way of an application to set it aside, establishes an exhaustive list of grounds, upon the existence of any one of which the arbitral award may be set aside.

Under 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.

That is, when hearing 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 or to undertake their full reassessment.

Under parts one to three of Article 12 and parts one, five and six of Article 81 of the CPC of Ukraine, civil proceedings are conducted on the basis of the adversarial principle. The participants in the case have equal rights with respect to the exercise of all procedural rights and obligations provided for by law. Each party must prove the circumstances relevant to the case on which it relies as the basis of its claims or objections, except in cases established by this Code. Evidence is submitted by the parties and other participants in the case. Proof may not be based on assumptions.

Under Article 89 of the CPC of Ukraine, the court assesses evidence according to its inner conviction, based on a comprehensive, complete, objective and direct examination of the evidence available in the case. No evidence has a predetermined weight for the court. The court assesses the relevance, admissibility and reliability of each item of evidence separately, as well as the sufficiency and interrelation of the evidence in its totality. The court assesses both the evidence collected in the case as a whole and each item of evidence (group of evidence of the same type) contained in the case, and gives reasons for rejecting or taking into account each item of evidence (group of evidence).

The Grand Chamber of the Supreme Court has repeatedly emphasised the need to apply the standards of proof provided for by procedural law and has stated that the adversarial principle ensures that the circumstances of the case are examined in full. In particular, this principle entails placing the burden of proof on the parties. At the same time, this principle does not create an obligation for the court to regard as proven and established a circumstance asserted by a party. Such a circumstance must be proven in a manner that satisfies the standard of greater persuasiveness, under which the conclusion that the asserted circumstance exists, having regard to the evidence submitted, appears more probable than the opposite (paragraph 81 of the resolution of the Grand Chamber of the Supreme Court of 18 March 2020 in case No. 129/1033/13-ts, proceedings No. 14-400tss19).

In dismissing the application of PERSON_2 to set aside the arbitral award, the court of first instance proceeded from the fact that in this case the grounds for setting aside an award of international commercial arbitration are defined by Article 459 of the Civil Procedure Code of Ukraine, and that in considering the application of PERSON_2 the court did not establish any grounds for setting aside the arbitral award, since the latter had not proven his claims by proper and admissible evidence, which is his procedural obligation.

The panel of judges of the Supreme Court agrees with the conclusion of the Kyiv Court of Appeal, acting as the court of first instance, on the following grounds.

Regarding the grounds for setting aside an arbitral award provided for by subparagraph (a) of paragraph 1 of part two of Article 459 of the Civil Procedure Code of Ukraine, and by subparagraph 1 of paragraph 1 of part two of Article 34 of the Law of Ukraine "On International Commercial Arbitration" (pages 8-24 of the appeal).

PERSON_2 and his representatives assert that, under the law of England, the application of which was stipulated by the Agreement of 10 December 2021, PERSON_1 waived the jurisdiction of international commercial arbitration to resolve the dispute between the parties in favour of the national court of Ukraine, since she repeatedly applied to a court of general jurisdiction with applications for interim measures securing the claim.

Pursuant to Article 9 of the Law of Ukraine "On International Commercial Arbitration", it is not incompatible with an arbitration agreement for a party to request from a court, before or during arbitral proceedings, an interim measure of protection and for a court to issue a ruling granting such a measure.

Pursuant to paragraph 9 of Article 26 of the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL), as revised on 15 September 2010, a request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement.

The rules of procedural law do not link the fact that a party to contractual legal relations performs positive acts, for example applying to national judicial authorities with an application for interim measures securing a claim, with an expression of the will of such party to refer the dispute for resolution to the relevant court, even if such an application does not comply with the rules of procedural law.

The court of first instance established that the repeated applications of PERSON_1 to a court of general jurisdiction for interim measures securing the claim did not lead to the result she sought (the application of interim measures securing the claim) owing to procedural defects in those applications.

An application to a court for interim measures securing a claim does not give grounds to consider that PERSON_1 referred the resolution of the dispute to the national court, since the filing of a statement of claim and of an application for interim measures securing a claim are different forms of procedural application: in the first case, what is at issue is a party's desire to resolve a legal dispute, and in the second, to take preventive measures aimed at securing the actual enforcement of a court decision.

The Supreme Court agrees with the conclusion of the Kyiv Court of Appeal, acting as the court of first instance, that in this case the parties did not submit proper and admissible evidence that would indisputably show that PERSON_1 herself waived the jurisdiction of international commercial arbitration to resolve the dispute between the parties in favour of the national court of Ukraine.

Pursuant to clause 9.1 of the Agreement of 10 December 2021, no variation or waiver of any provision or condition of this Agreement shall be effective unless it is in writing and signed by or on behalf of each of the parties (or, in the case of a waiver, by or on behalf of the party waiving compliance).

A logical and textual analysis of the said clause of the Agreement of 10 December 2021 shows that a variation or waiver of any provision or condition of this Agreement must be (1) made in writing and (2) signed by or on behalf of each of the parties (or, in the case of a waiver, by or on behalf of the party waiving compliance).

The parties to this case have not duly proven the contrary.

The case file does not contain any written waiver by PERSON_1 of the jurisdiction of international commercial arbitration to resolve the dispute between the parties under the Agreement of 10 December 2021 in favour of the national court of Ukraine.

In view of the above, the Supreme Court finds that the sole condition agreed by the parties in the Agreement of 10 December 2021 for the variation or waiver of a provision of this Agreement concerning the jurisdiction of international commercial arbitration to resolve the dispute between the parties has not been fulfilled.

Regarding the arguments of PERSON_2 referring to the doctrinal approach of Mr Gary Born (Gary B. Born) concerning waiver of an arbitration agreement

In this case, PERSON_2 indicates that Mr PERSON_18 (PERSON_19. Born) is a leading expert in the field of international commercial arbitration who has set out conclusions on the concept of "inoperative" (invalid, having ceased to have effect), which covers, among other things, cases of "waiver of the arbitration agreement [waiver], its revocation, repudiation, termination".

According to PERSON_2, Mr PERSON_18 (PERSON_19. Born) stated: "if a party seeks interim measures in an attempt to circumvent the arbitration clause, the application for such measures may be regarded as a waiver [waiver] of rights under the arbitration agreement".

In the context of the foregoing, the Supreme Court finds that a doctrinal approach is applied in judicial practice to resolve a particular dispute where the resolution of that dispute is not expressly regulated by the parties (absence of relevant provisions in the contract agreed by the parties) or by law, and also where it is necessary to eliminate conflicts of legal rules or a conflict between the legal positions of the parties.

At the same time, in this case the parties, in the relevant Agreement, jointly and voluntarily agreed the conditions under which a waiver of the provisions of the Agreement (in particular, concerning the jurisdiction of international commercial arbitration to resolve the dispute) is deemed effective (duly expressed, implemented), namely the above-mentioned clause 9.1 of the Agreement of 10 December 2021.

Furthermore, the reference by PERSON_2 to the doctrinal approach of Mr Gary Born (PERSON_20 Born) contains no evidence that such an approach covers cases where both parties to the relevant contract have jointly agreed the conditions for waiving the provisions of that contract (in this instance, the Agreement of 10 December 2021).

In view of the above, PERSON_2 has not proven the applicability in this case of the doctrinal approach of Mr PERSON_21 (PERSON_19. Born) concerning waiver of an arbitration agreement.

Regarding the arguments of PERSON_2 referring to the case of Mitchell & Anor v Mulvey Developments Limited & Others (judgment of the High Court of Ireland of 20 December 2021 in case 2009 4373 P)

In the case under consideration, PERSON_2 submitted a Ukrainian translation ("neutral citation") of the judgment of the High Court of Ireland of 20 December 2021 in the case of Mitchell & Anor v Mulvey Developments Limited & Others and indicated that in that case the key question before the Court was as follows: "In what circumstances is a party to an arbitration agreement precluded (by estoppel or otherwise) from relying on the terms of that agreement as a result of its own conduct?".

PERSON_2 states that in the said case "The Defendant (Homebond) entered an appearance in the state court more than a year after service of the proceedings, corresponded with the plaintiff, made procedural applications in the court proceedings, and only 9 months after entering an appearance relied on the arbitration agreement for the first time. The High Court found that the unconditional actions of the defendant demonstrated an 'intention to participate in the [court] proceedings and to file a defence on the merits', as a result of which the defendant lost the right to rely on the arbitration agreement" (pages 16-17 of the appeal).

In the context of the case under review, the Supreme Court proceeds from the fact that the circumstances of this case, insofar as it is alleged that the applications of the award creditor to the national courts of Ukraine for interim measures securing the claim show that she waived the arbitration agreement, are not similar to the circumstances of the case of Mitchell & Anor v Mulvey Developments Limited & Others.

The references by PERSON_2 to the case of Mitchell & Anor v Mulvey Developments Limited & Others are not supported by convincing evidence that in that case the parties to the relevant contract had jointly agreed the conditions for waiving the provisions of that contract, unlike the Agreement of 10 December 2021, which contains an arrangement between PERSON_2 and PERSON_1 regarding the procedure for waiving the provisions of this Agreement (clause 9.1 of the Agreement of 10 December 2021). Therefore, the assertions in the appeal of PERSON_2 that these cases are analogous are unproven.

Regarding the arguments of PERSON_2 referring to the case of Capital Trust Investment Ltd. v Radio Design AB & Others (judgment of the Court of Appeal of England and Wales of 15 February 2002 in case A3/2001/0542)

In the case under consideration, PERSON_2 submitted a Ukrainian translation of the judgment of the Court of Appeal of England and Wales of 15 February 2002 in the case of Capital Trust Investment Ltd. v Radio Design AB & Others and indicated that in that case one party brought a claim under the contract before a state court notwithstanding the existence of an arbitration agreement concluded between the parties, and the defendant (Radio Design AB) filed an application to stay the proceedings in the state court on the ground that the parties had submitted any disputes under the contract to international commercial arbitration. Subsequently, the defendant filed an additional application stating that, should the stay of proceedings be refused, it would apply for a judgment on the dispute to be given by the state court.

The Court of Appeal in the said case concluded that the defendant had not lost the right to rely on the arbitration agreement, since all of its procedural steps were conditioned by a clear reservation of the right to require the dispute to be referred to arbitration. The court concluded that the party "at no stage evinced an intention that the courts rather than the arbitrators should determine the claims", and therefore the arbitration agreement remained valid and enforceable (pages 17-18 of the appeal).

In the context of the case under review, the Supreme Court proceeds from the fact that the circumstances of this case, insofar as it is alleged that the applications of the award creditor to the national courts of Ukraine for interim measures securing the claim show that she waived the arbitration agreement, are likewise not similar to the circumstances of the case of Capital Trust Investment Ltd. v Radio Design AB & Others.

In the case under consideration, the parties agreed in clause 9.1 of the Agreement of 10 December 2021 a procedure for waiving the provisions of this Agreement, but that procedure was not implemented, in consequence of which the arguments of PERSON_2 that the actions of the award creditor PERSON_1 in this case contradict the conclusions set out in the case of Capital Trust Investment Ltd. v Radio Design AB & Others are refuted.

To summarise the foregoing, the references by PERSON_2 to English legal doctrine, as well as to the case of Mitchell & Anor v Mulvey Developments Limited & Others and the case of Capital Trust Investment Ltd. v Radio Design AB & Others, in order to prove that the award creditor waived the arbitration clause by reason of her applications to the national court of Ukraine for interim measures securing the claim, are mistaken.

In this case, PERSON_2 has not proven by proper and admissible evidence that the Agreement of 10 December 2021 has ceased to have effect or is invalid.

The Kyiv Court of Appeal, acting as the court of first instance, also correctly indicated that, pursuant to part one of Article 43 of the Law "On Private International Law", the parties to a contract may, in accordance with Articles 5 and 10 of this Law, choose the law applicable to the contract, except where the choice of law is expressly prohibited by the laws of Ukraine.

Part one of Article 47 of the Law of Ukraine "On Private International Law" provides that the law applicable to a contract under the provisions of this section governs the validity of the contract, the interpretation of the contract, the rights and obligations of the parties, the performance of the contract, the consequences of non-performance or improper performance of the contract, the termination of the contract, the consequences of the invalidity of the contract, and the assignment of a claim and transfer of a debt under the contract.

The court established that in the Agreement of 10 December 2021 the parties stipulated the application of English law to the interpretation, validity and performance of this agreement (clause 20.1.).

Therefore, English law applies to the settlement of the substantive legal dispute between the parties, and not to the determination of the question of its arbitrability.

The resolution of the Grand Chamber of the Supreme Court of 16 June 2020 in case No. 145/2047/16 (proceedings No. 14-499tss19) states that in Ukrainian law the doctrine of venire contra factum proprium (prohibition of contradictory conduct) manifests itself, in particular, in the characterisation of certain behavioural acts (so-called conclusive acts) of a person, and is based on the Roman maxim "non concedit venire contra factum proprium" (no one may act contrary to their own previous conduct), which is founded on the principle of good faith. Conduct is contrary to good faith and fair business practice if it is inconsistent with the previous statements or conduct of a party, provided that the other party to the legal relationship reasonably relied on those statements or previous conduct.

In the circumstances of the case under review, the parties concluded the Agreement of 10.12.21, including an arbitration clause therein, on a voluntary basis and on the basis of their free expression of will. In so doing, PERSON_1 had a reasonable expectation that disputes that might arise from the sale and purchase agreement would be referred for resolution to international commercial arbitration and would be resolved in accordance with the substantive rules of English law.

The parties to the Agreement of 10.12.2021 did not, either by mutual agreement or each individually, waive the terms of this Agreement in the part concerning the resolution of disputes by international commercial arbitration, and no evidence of this has been submitted. PERSON_1 initiated the arbitral proceedings in respect of the dispute, which were based on the Agreement of 10.12.2021 concluded between the parties; that is, her conduct in this situation is consistent. By contrast, the attempt of PERSON_2 to avoid the method of resolving the dispute between them by international commercial arbitration, as previously agreed by the parties, demonstrates his wish to evade the relevant arrangement recorded in the Agreement, which in this case is unjustified.

The opposite approach could lead to a situation in which any party to a contract containing an arbitration clause could, for the purpose of evading the referral of a dispute to the agreed arbitral tribunal, file an application with a national court for interim measures securing the claim, and the mere fact of such filing would be sufficient for a departure from the contractual terms agreed by the parties, in particular with respect to the arbitration clause, which the Supreme Court considers inadmissible. Such an approach would violate the principle of freedom of contract and the principle of legal certainty, which is a component of the principle of the rule of law.

Accordingly, the Supreme Court rejects the arguments of the appeal in this part.

Regarding the grounds for setting aside an arbitral award provided for in subparagraph (b) of item 1 of part two of Article 459 of the Civil Procedure Code of Ukraine, as well as paragraph 2 of item 1 of part two of Article 34 of the Law of Ukraine "On International Commercial Arbitration" (pp. 24-46 of the appeal).

The arguments of PERSON_2's application in this part come down to the fact that the notice of arbitration was received on 25 July 2024 by a new resident of the apartment that the spouses had sold in March 2023, which unequivocally confirms that the respondent did not receive such written notice. The e-mail address to which the notice of arbitration was sent was used only for household and family purposes while the parties lived there, in particular to settle rental matters. However, even receipt of the e-mail by PERSON_2 cannot be regarded as proper notice of the arbitral proceedings, since in clause 13.3 of the contract the parties expressly provided that a notice under or in connection with that contract is not valid if it is given only by fax or e-mail.

Under part one of Article 3 of the Law of Ukraine "On International Commercial Arbitration", unless otherwise agreed by the parties: any written communication is deemed to have been received if it is delivered to the addressee personally or if it is delivered at his place of business, habitual residence or mailing address; if none of these can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee's last-known place of business, habitual residence or mailing address by registered letter or any other means which provides a record of the attempt to deliver it; the communication is deemed to have been received on the day it is so delivered.

Pursuant to Article 2 of the UNCITRAL Arbitration Rules, a notice, including a notification, communication or proposal, may be transmitted by any means of communication that provides or allows for a record of its transmission.

If an address has been designated by a party specifically for this purpose or authorized by the arbitral tribunal, any notice shall be delivered to that party at that address, and if so delivered shall be deemed to have been received. Delivery by electronic means such as facsimile or e-mail may only be made to an address so designated or authorized. In the absence of such designation or authorization, a notice is: (a) received if it is physically delivered to the addressee; or (b) deemed to have been received if it is delivered at the place of business, habitual residence or mailing address of the addressee.

If, after reasonable efforts, delivery cannot be effected in accordance with paragraphs 2 or 3, a notice is deemed to have been received if it is sent to the addressee's last-known place of business, habitual residence or mailing address by registered letter or any other means that provides a record of delivery or of attempted delivery.

A notice shall be deemed to have been received on the day it is delivered in accordance with paragraphs 2, 3 or 4, or attempted to be delivered in accordance with paragraph 4. A notice transmitted by electronic means is deemed to have been received on the day it is sent, except that a notice of arbitration so transmitted is only deemed to have been received on the day when it reaches the addressee's electronic address.

Under clause 13 of the Agreement of 10.12.2021, the parties agreed that any notice (including any demand or any other communication) given under or in connection with that agreement must be in writing and in English, signed by or on behalf of the party, and sent to the other party for the attention of the person and to the contact details set out in clause 13.4 (the parties' addresses).

In clause 13.2 of the Agreement of 10.12.2021, "Time of delivery", the parties agreed that any notice may be sent by any of the methods listed below, and that, if sent by a given method, the corresponding deemed date and time of delivery at which the notice takes effect, in the absence of evidence of earlier receipt, shall be as follows: (a) if delivered personally, at the time of delivery at that address, with the recipient's signature and the date at that address; (b) if sent by registered letter, at the time recorded by the delivery service as the time of delivery; (c) if sent by prepaid airmail with confirmation of postal delivery, at 9:00 a.m. on the fifth day after dispatch or, if sent abroad, on the seventh day after dispatch.

For the purposes of this clause: (a) all references to time are to local time at the place of intended receipt; (b) any notice received or deemed received on a day that is not a business day, or after 17:30 on a business day, is deemed received on the next business day.

Under clause 13.3 of the Agreement of 10.12.2021, "Delivery by e-mail", a notice sent by any of the methods specified in clause 13.2 (Time of delivery) must at the same time be sent by fax or e-mail to the contact details given in clause 13.4 (the parties' addresses), provided that such notice is deemed delivered and takes effect upon delivery in accordance with clause 13.2 (Time of delivery). A notice given under or in connection with this Agreement is not valid if it was sent only by fax or e-mail.

The parties' addresses are set out in clause 13.4 of the Agreement of 10.12.2021, namely: 1) details of the seller (creditor): PERSON_1; ADDRESS_6; NUMBER_1; INFORMATION_5; 2) details of the buyer (debtor): PERSON_2; ADDRESS_9; NUMBER_2; INFORMATION_1

In clause 13.5 of the Agreement of 10.12.2021, the parties agreed that a party may, by giving notice in accordance with this clause 13 (notices), change its respective details set out in clause 13.4 (the parties' addresses). The change takes effect for the party notified of it at 9:30 on a business day on the later of: (a) the date, if any, specified in the notice as the date on which the change takes effect; or (b) the fifth business day after the notice is deemed received in accordance with clause 13.2 (time of delivery). Under clause 13.6 of the Agreement of 10.12.2021, this clause 13 (notices) also applies to the service of any proceedings or other documents in any court case or, where applicable, in any arbitration or other method of dispute resolution.

It has been established that on 16 July 2024 the representatives of PERSON_1 sent the notice of arbitration by e-mail to the e-mail address of PERSON_2 specified in clause 13.4 of the Agreement, "INFORMATION_1", and also to the e-mail address "INFORMATION_2".

The notice of arbitration in paper form was sent to PERSON_2 by courier on 17 July 2024 through JSC "DHL International Ukraine" to the debtor's address specified in clause 13.4 of the Agreement: ADDRESS_9; according to the delivery confirmation received from JSC "DHL International Ukraine" (waybill No. 1134826976), the notice of arbitration was delivered to the said address of PERSON_2 on 25 July 2024.

The creditor's representatives sent the request for the appointment of a sole arbitrator by e-mail on 6 September 2024 to the ICAC's e-mail address, with the debtor's e-mail addresses in copy, in particular "INFORMATION_1", in accordance with clause 13.4 of the Agreement. A written request for the appointment of a sole arbitrator was sent on 11 September 2024 to the debtor's address specified in clause 13.4 of the Agreement but was returned undelivered.

As is apparent from the content of the challenged arbitral award, the arbitrator considered the arguments of PERSON_2 concerning the defects in notification that occurred when the notice of arbitration and the claimant's proposal for the appointment of an arbitrator were sent.

The court of first instance established, and PERSON_2 did not refute, that the notice of arbitration and the notice of the request for the appointment of a sole arbitrator were sent to PERSON_2 at the addresses specified in the contract, namely the e-mail address "INFORMATION_1" and the postal address ADDRESS_7. The notices were sent to the e-mail address used by PERSON_2, inter alia, for correspondence concerning the company's activities. Therefore, the arguments that PERSON_2 uses that e-mail address for private communication are of no legal significance, since it was precisely this e-mail address that he personally specified in the Agreement of 10 December 2021.

The Supreme Court also agrees with the conclusion of the court of first instance that the receipt by another person, rather than by PERSON_2, of the postal notice of arbitration sent to ADDRESS_7 cannot be recognised as a ground for setting aside the arbitral award, since the judgment creditor's side complied with the terms of clause 13 of the Agreement of 10 December 2021, which govern the procedure, agreed by both parties and not altered by them, for notifying each other in respect of the legal relations arising under the Agreement of 10 December 2021.

Thus, under clause 13.3 of the Agreement of 10 December 2021, a notice sent by any of the methods specified in clause 13.2 (time of delivery) must at the same time be sent to the contact details specified in clause 13.4 (addresses of the parties) by fax or e-mail. Accordingly, the contract clearly provides that a notice must be sent to the address specified in clause 13.4 of the Agreement. Those requirements were fulfilled by the representative of PERSON_1 by sending the notice by courier to the address specified in the contract. There are therefore no grounds to consider that the notice is not valid, as would be the case if it had been sent only by fax or e-mail, since the notice was sent by two methods: by e-mail and by postal item through a delivery service.

Accordingly, the receipt by PERSON_2 of the notice of arbitration only by e-mail provides no grounds for applying the "invalidity" of such notice established by clause 13.3 of the Agreement, and the requirement to send the notice by postal item to the address specified in the contract was complied with by the judgment creditor.

Sending the documents to any other address would not have complied with the requirements of the Agreement of 10 December 2021. Clause 13.5 of the Agreement of 10 December 2021 provides that the parties may change their details set out in clause 13.4 of the Agreement of 10 December 2021 provided that appropriate notice is given to the other party in accordance with the requirements of clause 13 of that Agreement. Accordingly, in order to change the address specified in clause 13.4 of the Agreement of 10 December 2021, the judgment debtor was obliged to follow the mechanism of written notification of the judgment creditor set out in clause 13 of the Agreement of 10 December 2021.

The conclusion of the court of first instance is also well founded that the circumstance that the postal item concerning the arbitral proceedings delivered by courier service was not received by PERSON_2 is not an unconditional ground for setting aside the arbitral award, since the case file reliably confirms that it was precisely in connection with the receipt of the notices by e-mail that the respondent took an active part in the consideration of this case by the ICAC composed of the sole arbitrator Tetiana Slipachuk.

As regards the sending to PERSON_2 of the request of PERSON_1 for the appointment of a sole arbitrator, the court established that, according to the letter of JSC "DHL International Ukraine" of 18 September 2024, the item under DHL air waybill No. 8994353104 of 11 September 2024 arrived at the destination station and was handed over to a courier for delivery; however, the package could not be delivered, since the recipient was not found at the address ADDRESS_9. The recipient was contacted at the available telephone number NUMBER_2. In the telephone conversation, the recipient asked for the item to be returned (case file sheet 82, volume 2). The court notes that it is precisely this telephone number NUMBER_2 that is specified as the means of communication with PERSON_22 in clause 13.4 of the Agreement of 10 December 2021.

The Supreme Court agrees with the conclusion of the Kyiv Court of Appeal that the judgment debtor was duly notified of the arbitral proceedings and of the appointment of the arbitrator, and was also represented in the arbitral proceedings by the Law Association "INTEGRITES".

The Agreement of 10 December 2021 was amended by a supplementary agreement of 29 January 2023 as regards the time limit for the judgment debtor's performance of the monetary obligation under the principal Agreement. The parties to the Agreement were aware of the possibility of, and the procedure for, amending it, yet did not propose any amendments concerning the addresses of the parties, and the case file contains no evidence that either party evaded the conclusion of a supplementary agreement in that respect at the proposal of the other party, nor any evidence that such an arrangement was reached by the parties.

Accordingly, the Supreme Court rejects the arguments of the appeal in this part.

As regards the grounds for setting aside an arbitral award provided for by subparagraph (d) of paragraph 1 of part two of Article 459 of the Civil Procedure Code of Ukraine, and by paragraph 4 of item 1 of part two of Article 34 of the Law of Ukraine "On International Commercial Arbitration" (pages 46-64 of the appeal).

PERSON_2 considers that the procedure for the appointment of the arbitrator to hear the dispute was not complied with, since the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry failed to comply with the procedure when appointing the arbitrator.

The procedure for the appointment of a sole arbitrator was agreed by the parties in provision 20.2(d) of the contract. In particular, if the parties do not appoint an arbitrator within the time limits provided for by the UNCITRAL Rules 2010 (that is, within 30 days under paragraph 1 of Article 8 of the Rules), the sole arbitrator is to be appointed by the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry.

As is apparent from the notice of arbitration sent to PERSON_2 on 16 July 2024 and received by him at the e-mail address INFORMATION_1, PERSON_1 proposed that PERSON_23, who is included in the list of sole arbitrators of the ICAC, be appointed as sole arbitrator. On 6 September 2024, PERSON_2 was also notified, at the e-mail address he had specified, of the application by PERSON_1 to the ICAC requesting the appointment of a sole arbitrator. PERSON_2 did not reply to those letters.

Under Article 8 of the UNCITRAL Arbitration Rules, if the parties have agreed that a sole arbitrator is to be appointed and if within 30 days after receipt by all other parties of a proposal for the appointment of a sole arbitrator the parties have not reached agreement thereon, a sole arbitrator shall, at the request of a party, be appointed by the appointing authority.

The appointing authority shall appoint the sole arbitrator as promptly as possible. In making the appointment, the appointing authority shall use the following list-procedure, unless the parties agree that the list-procedure should not be used or unless the appointing authority determines in its discretion that the use of the list-procedure is not appropriate for the case.

As is apparent from the decision of the President of the ICAC, Mykola Selivon, of 2 October 2024 on the appointment of a sole arbitrator, according to the claimant's application of 6 September 2024, the respondent evaded the claimant's request to approve a sole arbitrator, did not confirm the sole arbitrator proposed by the claimant, did not raise any objections to the proposed candidate and did not propose another candidate to the claimant for approval.

In view of that fact, and of the fact that the parties did not agree in the arbitration clause that the appointing authority would apply the list-procedure, in order to ensure the prompt and effective appointment of a sole arbitrator, the President of the ICAC considered it inappropriate to apply such procedure in this case. The selection of arbitrators by the President of the ICAC, whether under the list-procedure or by direct appointment, is not limited to any list or group of arbitrators, and therefore the President of the ICAC is entitled freely to choose the person most suitable for resolving the dispute.

In appointing the sole arbitrator in this dispute, the President of the ICAC took into account that the Agreement of 10 December 2021, concluded between citizens of Ukraine, is governed by English law (clause 20.1), that the claimant's interests are represented by a Ukrainian law association, that the subject matter of the agreement is shares in a company registered in the Slovak Republic, and that there is no agreement between the parties as to any requirements to be additionally imposed on the arbitrator's qualifications.

Under paragraph 1 of Article 8 of the UNCITRAL Rules, the right to apply to the appointing authority arises if within 30 days after receipt by all other parties of a proposal for the appointment of a sole arbitrator the parties have not reached agreement thereon.

At the same time, owing to the judgment debtor's failure to respond to the judgment creditor's notice of 16 July 2024, the ICAC duly exercised its discretionary powers on the basis of the application of PERSON_1 of 6 September 2024 in accordance with the UNCITRAL Rules 2010 and the ICAC Rules of Assistance, without applying the list-procedure, since PERSON_2 did not take part in the procedure for the appointment of the sole arbitrator.

The arguments of PERSON_2 that he had not been duly notified of the arbitration of 16 July 2024 were correctly considered unfounded by the court of first instance in this case, since the notice in written form was sent to the address specified in the Agreement of 10 December 2021, which excludes the possibility of considering the notification of PERSON_2 by e-mail to be invalid. Given the actual notification of the judgment debtor at the e-mail address INFORMATION_1, he was not deprived of the opportunity to propose an alternative candidate for sole arbitrator or otherwise to express his objections.

Analysing similar arguments of PERSON_2, the court of first instance in its decision referred to paragraph 244 and stated that it took into account the facts and conclusions set out in Section 7.2.1, as well as the letters of the respondent's representative of 14 and 18 October 2024, who raised no objections concerning the constitution of the ICAC panel. The consideration of the arbitral dispute between the parties by an international commercial arbitration seated in the city of Kyiv under an ad hoc procedure by a sole arbitrator in this case complies with the terms of the Agreement of 10 December 2021.

The foregoing refutes the corresponding arguments of the appeal, and the Supreme Court therefore rejects them.

As regards the grounds for setting aside an arbitral award provided for by subparagraph (a) of paragraph 2 of part two of Article 459 of the Civil Procedure Code of Ukraine, and by paragraph 1 of item 2 of part two of Article 34 of the Law of Ukraine "On International Commercial Arbitration" (pages 64-103 of the appeal).

The applicant emphasised that the dispute, by its legal nature and substance, is non-arbitrable and therefore could not have been referred to international commercial arbitration: according to the law, the dispute is of a family-law nature, namely, the subject matter of the dispute is a right of claim and obligations under a contract which at the same time form part of the joint community property of the judgment creditor and the applicant as former spouses; at the date of conclusion of the Arbitration Agreement, the places of business of both parties within the meaning of part two of Article 1 of the Law of Ukraine "On International Commercial Arbitration" were located in the territory of one State (Ukraine).

Under Article 16 of the Law of Ukraine "On International Commercial Arbitration", the question of the jurisdiction of the ICAC in each particular case is decided by the arbitral tribunal hearing the dispute. Under part one of Article 20 of the Law of Ukraine "On International Commercial Arbitration", 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.

Accordingly, in practice this principle is implemented in such a way that the arbitral tribunal itself is to interpret the content of the arbitration agreement in order to determine whether or not it (the tribunal) has jurisdiction to hear the particular case.

The said arguments, which PERSON_2 raised in his objections during the arbitral proceedings, were also examined by the arbitrator, and the corresponding conclusions are set out in the challenged arbitral award, with which the Kyiv Court of Appeal agreed, namely:

- in the present case both parties are natural persons. At the date of conclusion of the contract, one of the parties indicated a permanent residence in Ukraine and the other a permanent residence in Poland, which satisfies the requirement of different permanent residences in different Contracting States. In addition, the contract concerns the transfer of shares (a participatory interest) in a Slovak company, which means that the object of the legal relations is located in the territory of a foreign Contracting State, further underlining the international character of the transaction. The contract itself is governed by the law of England and provides for arbitration with the place of arbitration in the city of Kyiv, Ukraine;

- the ICAC also took into account that the Law of Ukraine "On Private International Law" likewise defines a foreign element as including the involvement of foreign property and legal acts performed outside Ukraine. These circumstances establish a clear foreign element, indicating that the contract forms part of international economic relations. Accordingly, the dispute falls within the scope of the Law of Ukraine "On International Commercial Arbitration" and the Law of Ukraine "On Private International Law" and satisfies the criterion of international character required for international arbitration under Ukrainian law;

- the dispute that arose under the contract is arbitrable under Ukrainian law. This agreement constitutes civil-law relations with a clear foreign element, since the parties have permanent residences in different States and the object of the contract, shares (a participatory interest) in a Slovak company, is located abroad. This satisfies the criterion of internationality provided for by the Law of Ukraine "On International Commercial Arbitration" and the Law of Ukraine "On Private International Law". Likewise, the ICAC took into account the above-mentioned provisions of the European Convention of 1961. Accordingly, the arbitration agreement is valid and enforceable, and the Arbitral Tribunal has substantiated and confirmed its jurisdiction to hear and determine this dispute;

- under the law of England, a share purchase agreement is a commercial contract that sets out the terms of the sale of shares (a participatory interest) and is the foundation of any successful business sale transaction. It ordinarily contains agreed provisions on the transfer of the shares (participatory interest), consideration, completion and closing mechanisms, due diligence obligations, representations and warranties, indemnities, variation clauses, waivers, and governing law and dispute resolution provisions. The contractual structure of this contract appears quite typical and underlines its nature as a commercial transaction intended to effect the transfer of ownership of corporate assets with certain commercial and financial consequences;

- this contract bears the hallmarks of a commercial transaction, namely: the transfer of shares (a participatory interest) for consideration, detailed warranties, indemnification for losses, variation clauses, and governing law and dispute resolution provisions, and there is no evidence whatsoever that it was concluded for the purpose of dividing matrimonial property;

- the contract is a commercial contract governed by the general principles of contract law, and is not an instrument of family law. Accordingly, the contract does not constitute an intra-family arrangement and is not a matter falling within the scope of family-law regulation. Therefore, the respondent's assertions that the dispute is non-arbitrable in view of its family-law nature are rejected.

Those conclusions of the ICAC, with which the court of first instance agreed, are well founded, accord with the agreed arrangements of the parties to the dispute and are not inconsistent with the case file.

The arguments of PERSON_2 in this part are that, for a natural person, the place of the "place of business" is determined by the place of his or her registration as an individual entrepreneur (the criterion for applying part two of Article 1 of the Law of Ukraine "On International Commercial Arbitration"), whereas the place of residence of a natural person is relevant to the assessment of the arbitrability of the dispute only where the natural person does not have the status of an individual entrepreneur (the criterion for applying part three of Article 1 of the Law of Ukraine "On International Commercial Arbitration").

Under Article 1 of the Law of Ukraine "On International Commercial Arbitration", there may be referred to international commercial arbitration by agreement of the parties, among other things, disputes arising from contractual and other civil-law relations in the course of foreign trade and other forms of international economic relations, if the place of business of at least one of the parties to the dispute is located abroad at the time of conclusion of the arbitration agreement, or if the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one State, or if one of the following places is situated outside the State in which the parties have their places of business: the place of arbitration if determined in, or pursuant to, the arbitration agreement; any place where a substantial part of the obligations arising from the contractual or other civil-law relations is to be performed; or the place with which the subject matter of the dispute is most closely connected.

Article 2 of the Law of Ukraine "On International Commercial Arbitration" defines the concept of "arbitration", which is to be understood as any arbitration (arbitral tribunal) whether or not it is formed specially to hear a particular case or is administered by a permanent arbitral institution, in particular the International Commercial Arbitration Court or the Maritime Arbitration Commission at the Ukrainian Chamber of Commerce and Industry.

A distinction must be drawn between the right of the parties to stipulate in a contract a provision for referring a dispute to international commercial arbitration, subject to the restrictions established by law where a dispute is not capable of settlement by arbitration, and the obligation of the parties to apply to international commercial arbitration for the resolution of a dispute where the parties have agreed in their contract on an arbitration clause, having determined the terms of the arbitral proceedings. Where agreement to refer a dispute to international commercial arbitration has been reached, such dispute is subject to unconditional referral to arbitration.

As established by the court, PERSON_1 and PERSON_2 are citizens of Ukraine and have a registered place of residence in Ukraine: PERSON_1 at ADDRESS_8; PERSON_2 at ADDRESS_3.

Since June 2021, PERSON_2 and PERSON_1 have been registered in Ukraine as individual entrepreneurs. According to the individual information on the insured person, PERSON_2 received income from entrepreneurial activity in Ukraine and paid the single tax for natural persons.

According to the extract from the Commercial Register of the Bratislava III Municipal Court of 2 July 2024, the company "PRADATA s.r.o." is a limited liability company engaged in the purchase of goods for sale to the end consumer and in intermediary activities in the provision of services, the activities of business consultants and organisational and economic advisers, and provides advertising and marketing services, administrative services and computer services.

From 29 October 2016 the partners of the company were PERSON_14 and PERSON_13, and from 5 January 2022 only PERSON_14, which evidences the performance of the contract for the purchase and sale of the participatory interest and the entry of changes in the Commercial Register concerning the owner of the company. The addresses of the partners in the Commercial Register as at 2 July 2024 are stated as follows: PERSON_14 from 13 October 2021, ADDRESS_1; PERSON_13 from 29 October 2016 to 5 January 2022, ADDRESS_8.

Thus, it is precisely these addresses that are stated both in the Commercial Register of the Bratislava III Municipal Court and in the Agreement of 10 December 2021.

Also, according to the data of the Commercial Register, the management body of the company is the sole executive director PERSON_24, Master of Business Administration, and the registered office of the company is Bratislava 851 01, Kopcianska 14.

The representatives of PERSON_2 confirmed that the company has an office in the Slovak Republic, carries on its activities abroad and develops software in the field of merchandising.

Accordingly, the parties' conduct of entrepreneurial activity in Ukraine and their registration as individual entrepreneurs in Ukraine have no legal significance for determining the jurisdiction of the ICAC and do not indicate that, for the purposes of this dispute, the parties' "places of business" are located in Ukraine, since the dispute arose between members of a commercial enterprise, is based on a contract for the purchase and sale of a participatory interest in the charter capital of a company and is a commercial, corporate dispute, while the company itself is registered in the Slovak Republic and carries on its activities abroad; consequently, the object of the legal relations is located in the territory of a foreign State. Having registered places of residence both in Poland and in Ukraine, PERSON_2 stated in the Agreement of 10 December 2021 his residential address in Poland, and PERSON_1 hers in Ukraine. It is therefore evident that the parties expressly agreed that the subject matter of the arbitration agreement relates to more than one State.

Under part three of Article 1 of the Law of Ukraine "On International Commercial Arbitration", for the purposes of paragraph 2 of that Article: if a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration agreement; if a party does not have a place of business, reference is to be made to its habitual residence.

Since the parties to this dispute are natural persons, the criterion of the closest relationship to the arbitration agreement is decisive, since the arbitration agreement concerns LLC "Pradata s.r.o.". Thus, the criterion of at least one of the parties having a place of business abroad was satisfied, and the dispute is arbitrable in accordance with the requirements of the Law of Ukraine "On International Commercial Arbitration".

The court established that the subject matter of the dispute in the arbitral proceedings is the recovery of a debt under a contract for the purchase and sale of a participatory interest in the charter capital of the company "Pradata s.r.o.", registered in the Slovak Republic. The judgment creditor's claims in the arbitral proceedings did not concern matters of family-law relations, but solely the debt under that commercial contract concluded between members of the company.

As at the time of the application to the ICAC, all provisions of the Agreement of 10 December 2021, including the arbitration clause, were in force and had not been declared invalid by a court, including on grounds of their sham nature.

The parties stipulated that disputes arising under the Agreement of 10 December 2021 were to be referred to international commercial arbitration, with the place of arbitration in the city of Kyiv, in accordance with the UNCITRAL Arbitration Rules 2010 (section 20). The parties did not alter that decision.

The arguments of PERSON_2 that the true nature of this dispute is that of family-law relations, which precluded the possibility of referring the dispute to international commercial arbitration, are refuted by the case file, since the parties defined sufficiently clearly in the contract their status as buyer and seller, the latter being the owner of the participatory interest in the charter capital, as well as the subject matter, the price and the time limits for payment for the participatory interest. The Agreement of 10 December 2021 contains no reference to the buyer and the seller being spouses, nor any reservations in view of their family relations.

The case file contains no evidence that the arbitration clause had been declared invalid as at the date on which the judgment creditor applied to international commercial arbitration for the resolution of this dispute; all provisions of the Agreement of 10 December 2021 were in force and binding on both parties.

Thus, a dispute arose between the parties in connection with the judgment debtor's breach of obligations under the contract. Disputes of this nature may be referred to international commercial arbitration.

The conclusions of the court of first instance are correct that the arguments of PERSON_2 concerning the arbitrator's application of provisions of family legislation are untenable, since the arbitrator referred in her award to provisions of family law in order to give reasons for the inadmissibility of the judgment debtor's arguments as to the non-arbitrability of this dispute on account of family-law relations, as set out by the judgment debtor in his submissions, and by that reasoning the arbitrator did not give a legal characterisation of the disputed legal relations such as would amount to resolving the dispute on the merits under family legislation.

The court of first instance also correctly rejected the applicant's arguments concerning the pendency of a dispute before the Podilskyi District Court of the City of Kyiv in case No. 758/2219/25 on the claim of PERSON_1 against PERSON_2, third party: LLC "LamaKhauz", for the division of matrimonial property, since that circumstance is not of decisive significance for the question of the jurisdiction of the ICAC. No judgment has been delivered in case No. 758/2219/25, and therefore the arguments that the outcome of the consideration of that case could have materially affected the outcome of the arbitral proceedings are based on assumptions.

In such circumstances, the panel of judges rejects the arguments of the appeal in this part.

Regarding the grounds for setting aside an arbitral award provided for in subparagraph (b) of paragraph 2 of part two of Article 459 of the Civil Procedure Code of Ukraine, and in the second subparagraph of paragraph 2 of part two of Article 34 of the Law of Ukraine "On International Commercial Arbitration" (pages 104-117 of the appeal).

In the application to set aside the arbitral award, PERSON_2 submits that the contested Arbitral Award contravenes several components of the public policy of Ukraine at once, since the sole arbitrator:

- rendered an award in a dispute that falls within the exclusive jurisdiction of the state courts and could not be referred to international commercial arbitration;

- misapplied fundamental rules of national substantive law (the Family Code of Ukraine), which form a component of the public policy of Ukraine;

- violated the fundamental principles of the civil legislation of Ukraine, in particular as regards the autonomy of the will of the parties to a marriage contract, thereby undermining the predictability of civil commerce and the principle of legal certainty, which is likewise a component of the public policy of Ukraine;

- violated the fundamental principles of the procedural law of Ukraine, namely the principles of party disposition, adversarial proceedings and equality of the parties, which are a component of the public policy of Ukraine, thereby depriving the applicant of the right to proper judicial protection.

PERSON_2 further stated that the arbitral award violates:

- the rights and legitimate interests of the parties' joint minor children, which are a component of the public policy of Ukraine, since by the Arbitral Award the sole arbitrator effectively deprived the parties' children of the state-guaranteed safeguards of proper maintenance;

- the legitimate interests of the applicant and his right to participate in the division of the joint property, which are guaranteed to him by the state and form a component of the public policy of Ukraine, since the Arbitral Award alters the balance of the spouses' interests and violates their equality;

- the principle of legal certainty, which is a component of the public policy of Ukraine, and may give rise to a legal collision and a conflict between decisions of the international commercial arbitration and of a state court of Ukraine.

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.

In considering cases on the setting aside of 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 dispute, or to undertake a full review or reassessment thereof.

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

The resolution of the Supreme Court of 23 July 2018 in case No. 796/3/2018 (proceedings No. 61-30854av18) states that public policy is to be understood as the legal order of the state, the defined principles and foundations that constitute the basis of the order existing therein (relating to its independence, integrity, sovereignty and inviolability, and fundamental constitutional rights, freedoms, guarantees, etc.). The international public policy of any country includes fundamental principles and foundations of justice and morality that the state wishes to protect even where this has no direct bearing on the state itself; rules that secure the fundamental political, social and economic interests of the state (rules on public policy); and the obligation 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, non-violation of territorial integrity, etc.

Thus, the legal concept of public policy exists 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 erect a legal barrier against awards rendered contrary to the cardinal procedural and substantive legal principles on which the public and state order rests.

The object of the public policy reservation is international private-law relations, and its subject matter is the non-application of foreign law chosen to govern civil-law relations with a foreign element where its application would violate the public policy of the state. In such a case, the public policy reservation regulates an autonomous sphere of social relations that is independent of the sphere of inter-state relations.

In view of the foregoing, reliance on a violation of public policy may be made only in cases where an arbitral award contravenes the foundations of the legal order of the state. A similar legal conclusion is set out in the resolution of the Supreme Court of 30 July 2026 in case No. 824/125/25 (proceedings 61-7081av26).

The court of first instance correctly noted that the applicant's arguments concerning the violation of the public policy of Ukraine by the arbitral award amount to disagreement with the application of the rules of substantive and procedural law, the terms of the contract in resolving the dispute, and the correctness of its resolution on the merits, and do not demonstrate a violation of public policy.

The panel of judges observes that the public policy reservation, as a ground for setting aside an award of international commercial arbitration, is a mechanism that establishes 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 to protect the state from foreign arbitral awards that violate the fundamental principles of fairness and justice in force in the state. Accordingly, the finality of arbitral awards in international commercial arbitration must be respected, save in exceptional circumstances (Recommendations of the International Law Association on Public Policy, adopted in New Delhi in 2002). The applicant has not proved the existence of such exceptional circumstances (paragraph 1(d) of those Recommendations).

A manifestly incorrect application by an arbitral tribunal of fundamental rules of national substantive law, or a gross violation of the rules of procedural law, may result in a violation of the public policy of Ukraine and is subject to assessment by the national court when an arbitral award is challenged. At the same time, awards of international commercial arbitration resolving a dispute between private parties to commercial legal relations by establishing circumstances relating to the procedure for performing an obligation that arose between the participants do not contravene the public policy of Ukraine.

The panel of judges agrees with the conclusions of the court of first instance that PERSON_2 has not furnished evidence confirming that the arbitral award he contests concerns the public, economic and social foundations of the state or is aimed at interfering with the public policy of the State of Ukraine.

Accordingly, the Supreme Court considers untenable the arguments of the appeal that the court of first instance failed to discharge its duty to examine ex officio whether the arbitral award complies with the public policy of Ukraine, contrary to the provisions of paragraph 2 of part two of Article 459 of the Civil Procedure Code of Ukraine.

The applicant's arguments concerning the violation of the public policy of Ukraine by the arbitral award in essence amount to disagreement with the application of the rules of substantive law, a reassessment of the evidence and a review of the dispute on the merits, which is procedurally impermissible. The court therefore does not assess the correctness of the arbitrator's application of the rules of substantive law, nor the existence of other disputes between the parties (concerning the division of the spouses' property, the partial invalidation of the marriage contract, and the determination of the children's place of residence), since the arbitral tribunal did not resolve in the arbitral award any issues relating to disputes between the parties as spouses.

The panel of judges notes that the Kyiv Court of Appeal correctly concluded that the contested award was rendered in a dispute contemplated by the arbitration agreement and in respect of the debtor as an independent participant in commercial dealings; accordingly, such award does not contravene the public policy of Ukraine and does not threaten its independence, integrity, sovereignty and inviolability, or constitutional rights, freedoms and guarantees.

As established by the court, PERSON_2 was afforded by the ICAC all procedural opportunities to present his position on the merits of the dispute, including to participate in the procedural conference of 5 November 2024 and in the oral hearings of 3 June 2025, to file motions and to submit objections. Accordingly, the arguments that the court violated the fundamental principles of procedural law forming part of the public policy of Ukraine, namely the principles of party disposition, adversarial proceedings and equality of the parties to the proceedings, have not been substantiated.

The circumstances established by the ICAC award of 1 September 2025 do not concern the public, economic and social foundations of the State of Ukraine; the said award was rendered in a dispute contemplated by the arbitration agreement and exclusively in respect of the debtor as an independent participant in commercial legal relations; accordingly, enforcement of the said award does not contravene the public policy of Ukraine, its independence, integrity, sovereignty and inviolability, the constitutional rights, freedoms and interests of natural persons, the rights and interests of legal entities, or the interests of the state.

In view of the foregoing, the court considers that PERSON_2 has not proved that the arbitral award affects the public, economic and social foundations of the functioning of the State of Ukraine, or that the said award will cause harm to the sovereignty or security of the State of Ukraine, and thus violates the public policy of Ukraine. The panel of judges therefore rejects the arguments of the appeal in this part.

Equally erroneous and unfounded are the arguments of the appeal that the court of first instance incorrectly established the factual circumstances of the case as regards the identification of the arbitral body that heard the dispute under the Agreement of 10 December 2021 (10.12.2021), on the basis that the court wrongly stated that the dispute was heard by the ICAC in accordance with the ICAC Rules rather than by a specially constituted ad hoc arbitral tribunal in accordance with the UNCITRAL Arbitration Rules (pages 6-8 of the appeal).

Such arguments of the appeal stem from the applicant's mistaken understanding of the conclusions of the court of first instance, since the arbitral award was rendered by a specially constituted ad hoc arbitral tribunal in accordance with the UNCITRAL Arbitration Rules. The court's conclusions do not indicate that the court misidentified the body that heard the arbitral dispute, which refutes the corresponding arguments of the appeal.

In this case, the court of first instance duly took into account the arguments and objections of the participants in the case, gave such arguments a proper assessment, and gave well-founded reasons for its conclusions.

Regarding the claims in the application of PERSON_1 for recognition and leave to enforce the arbitral award

Legal relations concerning the recognition and enforcement of awards of international commercial arbitration in Ukraine are governed by Article V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 (the New York Convention), which entered into force for Ukraine on 10 January 1961, by the Law of Ukraine "On International Commercial Arbitration", and by the provisions of Section IX of the Civil Procedure Code of Ukraine.

Recognition of and leave to enforce an award of international commercial arbitration means the extension of the legal force of such award to the territory of Ukraine and the application of means of compulsory enforcement in the manner established by the Civil Procedure Code of Ukraine.

Pursuant to Article 35 of the Law of Ukraine "On International Commercial Arbitration", an arbitral award, irrespective of the country in which it was made, shall be recognised as binding and, upon written application to the competent court, shall be enforced subject to the provisions of this Article and of Article 36. The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof, and the original arbitration agreement referred to in Article 7 or a duly certified copy thereof. If the award or agreement is made in a foreign language, the party shall supply a duly certified translation of these documents into Ukrainian.

Article 476 of the Civil Procedure Code of Ukraine provides that an application for recognition of and leave to enforce an award of international commercial arbitration shall be submitted in writing and must be signed by the person in whose favour the award of international commercial arbitration was made, or by that person's representative. The application for recognition of and leave to enforce an award of international commercial arbitration shall be accompanied, inter alia, by: the duly authenticated original arbitral award or a notarised copy of such award; the original arbitration agreement or a notarised copy of such agreement; a power of attorney or other document confirming the authority of the person to sign the application; and a translation, certified in accordance with the law, of the documents listed in items 1-3 and 5 of this part into Ukrainian or into the language provided for by an international treaty the binding nature of which has been consented to by the Verkhovna Rada of Ukraine, if they are made in another language.

Pursuant to Article 5 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958), which entered into force for Ukraine on 8 January 1961: "Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: (a) The parties to the agreement referred to in article II were, under the law applicable to them, 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 the country where the award was made; or (b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or (c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or (d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or (e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: (a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or (b) The recognition or enforcement of the award would be contrary to the public policy of that country."

Similar provisions concerning the grounds for refusing recognition of and leave to enforce an award of international commercial arbitration are set out in Article 478 of the Civil Procedure Code of Ukraine and Article 36 of the Law of Ukraine "On International Commercial Arbitration".

The interpretation of the above provisions gives grounds to conclude that, in deciding on the recognition of and leave to enforce an award of international commercial arbitration, the court does not assess the correctness of that award as to the merits of the resolution of the dispute, but verifies only compliance with the time limits for filing the application, compliance with the requirements of procedural law as to its form and content, and the existence of circumstances that may constitute grounds for refusing recognition of and leave for compulsory enforcement of the award. The burden of proving the existence of grounds for refusing recognition and enforcement of the arbitral award rests on the party objecting to the application.

Pursuant to part one of Article 475 of the Civil Procedure Code of Ukraine, the question of recognition of and leave to enforce an award of international commercial arbitration shall be considered by the court upon the application of the judgment creditor in accordance with this Chapter, if the debtor has its place of residence (stay) or location in the territory of Ukraine. The rules established by Article 475 of the Civil Procedure Code of Ukraine on the jurisdiction of a national court of Ukraine over an application for recognition of and leave to enforce an award of international commercial arbitration embody the principle of a sufficient connection between the state whose court grants leave for the recognition and compulsory enforcement of the arbitral award and the person of the debtor.

In concluding an arbitration clause, the parties usually provide for the referral to arbitration of any disputes, including disputes concerning the validity of the contract itself (unless such disputes are expressly excluded from the scope of the arbitration clause). Subsequently, if a party could renounce arbitration and challenge the jurisdiction of the arbitrators by invoking the invalidity of the contract, a party acting in bad faith would always use this possibility to derail the arbitration (resolutions of the Supreme Court of 24 September 2020 in case No. 824/198/19, proceedings No. 61-5122sv20, and of 30 July 2026 in case No. 824/84/25 (proceedings No. 61-15157av25)).

The Kyiv Court of Appeal, acting as the court of first instance in this case, reasonably stated that the arbitration agreement is valid; the debtor was duly notified of the arbitration proceedings and of the appointment of the arbitrator; the arbitral award was rendered in respect of a dispute contemplated by the arbitration agreement, and the award does not decide issues that go beyond the scope of the arbitration agreement; the composition of the arbitral tribunal and the arbitral procedure were in accordance with the arbitration agreement; the debtor participated in the arbitration proceedings and did not challenge the validity of the arbitration agreement; the dispute referred to the arbitral tribunal composed of a sole arbitrator is arbitrable; and the recognition and enforcement of the arbitral award do not contravene the public policy of Ukraine.

In connection with the foregoing, the panel of judges of the Supreme Court agrees with the conclusions of the Kyiv Court of Appeal to grant the application of PERSON_1 for recognition of and leave to enforce the ICAC award of 1 September 2025.

Pursuant to parts one, two and five of Article 263 of the Civil Procedure Code of Ukraine, a court decision must be based on the principles of the rule of law and be lawful and well-founded. A decision is lawful if it is rendered by the court in accordance with the rules of substantive law and in compliance with the rules of procedural law. A decision is well-founded if it is rendered on the basis of fully and comprehensively ascertained circumstances on which the parties rely as the grounds for their claims and objections, confirmed by the evidence examined at the court hearing.

The ruling of the court of first instance meets the said requirements of procedural law.

The arguments set out in the appeal, taken together and each individually, do not refute the correctness of the conclusions of the court of first instance set out in the reasoning part of the contested court decision; they amount to the applicant's disagreement with the conclusions regarding their assessment and refer to facts that were the subject of examination and assessment by the court of first instance.

Pursuant to Article 375 of the Civil Procedure Code of Ukraine, the court of appeal shall dismiss the appeal and uphold the court decision if it finds that the court of first instance rendered the court decision in compliance with the rules of substantive and procedural law.

In view of the foregoing, having established the absence of grounds for setting aside the contested court decision, the panel of judges concludes that the appeal is to be dismissed and the ruling of the Kyiv Court of Appeal of 25 May 2026 upheld.

Since the appeal has been dismissed, there are no grounds for a new allocation of the court costs incurred in connection with the consideration of the case on appeal.

Guided by Articles 24, 367, 368, 374, 375, 381-384, 459, 477 and 479 of the Civil Procedure Code of Ukraine, the Supreme Court, sitting as a panel of judges of the First Judicial Chamber of the Civil Cassation Court,

RESOLVED:

The appeal of PERSON_2, on whose behalf attorneys Anna Kostiantynivna Kozyrieva and Olena Serhiivna Perepelynska act, is dismissed.

The ruling of the Kyiv Court of Appeal of 25 May 2026 is upheld.

The resolution of the court of appeal shall enter into legal force on the day of its adoption and is not subject to appeal.

Judges|V. V. Serdiuk|

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|O. M. Osiian |

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|N. Yu. Sakara|