ПРО ЗАСТОСУВАННЯ СУДАМИ КАТЕГОРІЇ «ПУБЛІЧНИЙ ПОРЯДОК» ЩОДО РІШЕНЬ МІЖНАРОДНОГО КОМЕРЦІЙНОГО АРБІТРАЖУ

Abstract

The article examines the negative tendency towards excessive interference of state courts of Ukraine in international commercial arbitration by cancelling and refusing to enforce arbitral awards on grounds that go beyond the principle of legal certainty as an element of the Rule of Law. It was concluded that the expansive interpretation of the category of public order, applied in some decisions of the Supreme Court, will prevent the normal functioning of international commercial arbitration as an alternative way of commercial disputes' resolution in Ukraine, which not only undermines the investment prospects of Ukraine's economy, but also destroys the possibility of classifying Ukraine as a legal systems of civilized countries of the world, creates ample opportunities for abuses in the process of contesting and recognizing in Ukraine decisions of international commercial arbitration. It is substantiated that a violation of public order as a basis for refusing to recognize and enforce international commercial arbitration awards in Ukraine can be qualified in the case of clear disregard for direct prohibitions established by the state regarding the protection of sovereignty, fundamental human rights and freedoms. One of the ways to solve these problems is to the establish a legal ban on the execution of an arbitral awards in favour of the occupying country and persons related with it. Types of violations of the arbitration procedure as grounds for contesting an international commercial arbitration award or refusing to enforce it are comprehensively regulated in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), and cannot be based on expansive interpretation by the court of the arbitration procedure from the point of view of compliance with the norms established by the Civil Procedure Code and the Economic Procedure Code of Ukraine.