Markiyan Malskyy, J.D., LL.M., MILE, Attorney-at-law, Partner, Head of the West Ukrainian Branch of Arzinger and Head of its ADR practice, spoke at the international conference “Activities of Permanent Arbitration and Mediation Centers” held by Arbitration Court at Nowy Tomyśl Chamber of Commerce and Industry on April 19.

The conference was held under the honorary patronage of the President of the Polish Seim Committee on Justice and Human Rights Ryszard Kalisz and Andrzej Wilkoński, Starosta of Nowy Tomyśl district. The event is one of the leading ones in the field of mediation and arbitration.

Markian Malskyy delivered his presentation “Practical guidance on the resolution of a dispute involving a Ukrainian party”. He told about international arbitration practice in Ukraine, arbitral proceedings involving Ukrainian parties, and arbitration institutions active in Ukraine. He also dwelled on the issues of arbitrability and enforcement of international arbitral awards in Ukraine. In particular, there are two international arbitration institutions in Ukraine – the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry (ICAC at the UCCI) and the Maritime Arbitration Commission at the Ukrainian Chamber of Commerce and Industry (MAC at the UCCI). The workload of ICAC is rather high, with about 500 cases considered annually, whereas the Maritime Arbitration Commission has only considered 20 cases over its 20 years of activity.

Markian cited a number of problems inhibiting the development of international arbitration in Ukraine. Although Ukraine is actively moving towards arbitration and has passed nearly all the necessary legal documents to be viewed as an arbitration-friendly jurisdiction, Ukrainian court practice still shows a rather “hostile” and bias treatment of arbitration. In particular, Ukrainian legislation does not clearly determine the disputes which may and which may not be considered in international commercial arbitration, while the judges have quite small knowledge of the basic principles of international commercial arbitration. Difficulties also arise in obtaining and enforcement of interim measures in support of arbitral proceedings. Ukrainian parties often use tricks and “guerrilla” tactics. Also, parallel proceedings and anti-arbitration provisions are possible. Therefore, in the case of arbitration proceedings involving a Ukrainian party, one needs to be careful about detail and formality, to plan always well in advance, and even to be ready to withstand aggressive action. Such proceedings are usually lengthy and complex, while enforcement, though problematic, is quite real.

However, despite all the problems and difficulties, as Markian noted, international commercial arbitration is still a better option for the settlement of international commercial disputes involving a Ukrainian party or in respect of Ukraine.

Markian is a recognized expert in international arbitration. He has extensive experience in representing Ukrainian and international companies in arbitration proceedings in different jurisdictions, including all known global arbitral institutions. He is also recommended as an arbitrator by a number of international arbitration institutions, and is an Of Counsel of the Head of Lviv Regional State Administration for foreign economic activity. He wrote two books on commercial dispute resolution and has over 100 publications on legal issues. In 2012 Markian Malskyy obtained his doctoral degree (Dr. jur.) with the thesis “Arbitration agreement as a condition for dispute resolution in international commercial arbitration” at the Kyiv National Taras Shevchenko University.

Markian Malskyy’s experience and expertise and Arzinger’s international arbitration practice headed by him are honored by many clients as well as by international ratings and guides, such as Chambers Global 2013, The Legal 500 - Europe, Middle East & Africa 2013, “Ukrainian Law Firms. A Handbook for Foreign Clients” 2012 and 2013, etc.