The Law Journal published ARBITRADE’s report on the application of summary dismissal procedure under ICSID Arbitration Rule 41 (5) related to the Ukrainian context
The recent edition of the Law Journal No. 5 (107) contains the Report of Yuliya Chernykh, partner of ARBITRADE, highlighting application of the summary dismissal procedure to the claims being “manifestly without legal merit” (Article 41 (5) of the ICSID Arbitration Rules).
Application of procedure established by Article 41 (5) of the ICSID Arbitration Rules was criticized, and therefore was actually inapplicable (“frozen”) for 6 years until 2010. It was firstly applied in Global Trading Resource Corp. and Globex International, Inc v. Ukraine (ARB/09/11), where arbitrators dismissed the claim being manifestly without legal merit.
Yuliya Chernykh underlined: “…novelty of the summary dismissal embodied in Rule 41(5) shall be acknowledged as landmark procedure, having neither analogue in the commercial arbitration nor in the Ukrainian court proceedings. Application of this instrument opens new horizonts in investment arbitration.”
One of the paramount issues arising out of application of the procedure shall be constitution of the investment in the context of investment arbitration. It must be duly considered: when and under which circumstances Arbitration Tribunal can conclude to have all the relevant materials to reach decision in summarily.
The Law Journal, the leading legal journal in Ukraine, has been published in the Ukrainian language since 2002.Download the Report of Yuliya Chernykh (in Ukrainian)