Communicated on 3 April 2019

FIFTH SECTION

Application no. 23819/11
ARCELORMITTAL AMBALAJ CELIGI SANAYI VE TICARET ANONIM SIRKETI
against Ukraine
lodged on 8 April 2011

STATEMENT OF FACTS

The applicant, Arcelormittal Ambalaj Celigi Sanayi Ve Ticaret Anonim Sirketi, is a private company incorporated under the laws of Turkey. It is represented before the Court by Mr T. Gürmen, a lawyer practising in Istanbul.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant company, may be summarised as follows.

On 22 January 2007 the applicant company and a Ukrainian private company, A., entered into a contract for the supply of goods (“the contract”). The contract was drafted in both English and Ukrainian, and specified that both versions had equal legal force and were authentic. Clause 8 of the contract contained an arbitration clause, the Ukrainian version of which reads as follows:

“8.  Arbitration

8.1.  All disputes arising from the present Contract or in connection with the present Contract shall be settled by negotiation between the parties.

8.2.  If the parties cannot agree, the dispute shall be submitted for consideration to the International Commercial Arbitration Court at the Kyiv Chamber of Commerce and Industry (Міжнародному Комерційному арбітражному Суді при Торгово‑промисловій палаті м. Київ). The decision of the Arbitration Court shall be final and binding upon both parties.

8.3.  The parties have agreed that during the consideration and resolution of any such dispute the Rules of the International Commercial Court at the Ukrainian Chamber of Commerce and Industry in Kyiv (Регламент Міжнародного Комерційного суду при Торгово-Промисловій палаті України, м. Київ) shall be applied ...”

In the English version of the arbitration clause, the designated arbitration tribunal was referred to as “the International Commercial Arbitration Court of the Chamber of Commerce and Industry of Ukraine”.

On 7 October 2008 the applicant company lodged a statement of claim with the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry (“the ICAC”) against A., seeking payment for delivered goods plus damages.

On 8 December 2008 A. submitted a statement of defence, which contained, inter alia, objections to the ICAC’s jurisdiction. It argued, in particular, that the initial negotiation procedure referred to in clause 8.1 had been bypassed, despite being a prerequisite for arbitration. A. also asked for additional time in order to submit supplementary documents in the case and requested an oral hearing.

On 20 February 2009 the ICAC issued an arbitral award, ordering A. to pay the applicant company in full for the delivered goods and to reimburse the arbitration fee. The ICAC dealt with the issue of its jurisdiction both of its own motion and in reply to A.’s objections. It pointed first to an “inaccuracy” in the arbitration clause, in that it referred to the “International Commercial Arbitration Court at the Kyiv Chamber of Commerce and Industry” instead of the “International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry”. It found that the parties had meant the ICAC because it was the only arbitral institution at a chamber of commerce and industry, in accordance with the Rules on the ICAC and the Law of Ukraine on international commercial arbitration. Further, it replied to A.’s objection that it lacked jurisdiction, finding that the requirement for negotiations could not have been implemented, as the clause did not contain a clear procedure or time-limit and thus was not enforceable.

In April 2009 A. lodged an application with the Shevchenkivskyy District Court of Kyiv, seeking to set aside the arbitral award, claiming that the arbitration clause was invalid under Ukrainian law, that the ICAC had surpassed its jurisdiction and that the arbitral award was contrary to the public policy of Ukraine.

On 27 July 2009 the Shevchenkivskyy District Court of Kyiv allowed the application and set aside the arbitral award. The court found that the arbitration clause referred to a non-existent institution, the “International Commercial Court at the Kyiv Chamber of Commerce and Industry” (Міжнародний Комерційний суд при Торгово-промисловій палаті м. Київ),