Protective Mechanisms in Commercial Procedural Law. International Arbitration

Abstract

This article explores the legal aspects of applying preventive and protective mechanisms in commercial proceedings in Ukraine, as well as in international commercial arbitration. Special emphasis is placed on precautionary measures and claim security measures within commercial litigation. The study examines the nature of disputes that may be submitted to an International Commercial Arbitration Court for resolution by agreement of the parties, highlighting the distinctions between the legal concepts of precautionary measures and claim security measures. Particular attention is devoted to the current challenges in optimizing the implementation of protective measures, notably through granting arbitration tribunals the authority to issue a range of decisions concerning their enforcement.

The purpose the research focuses on analyzing current issues, with subsequent development of practical recommendations for applying innovative approaches to the implementation of protective mechanisms in commercial procedural law.

The research materials include:

– updated legislation: the Law of Ukraine «On Amendments to the Constitution of Ukraine (regarding the Judiciary)»; the Law of Ukraine «On the Judiciary and the Status of Judges»; the Law of Ukraine «On Amendments to the Commercial Procedure Code of Ukraine», the Civil Procedure Code of Ukraine, the Administrative Procedure Code of Ukraine, and Other Legislative Acts; the Law of Ukraine «On International Commercial Arbitration»;

– works of domestic and foreign scholars (both theoreticians and practitioners) who have conducted their own scientific and practical research and were examined in the context of claim security in commercial proceedings.

 The research methodology is based on an interdisciplinary approach that combines formal-logical, dialectical, and legal analysis. The formal-logical method was applied to define the concept of «interim measures» and to explore the essence of international commercial arbitration. The legal analysis method was used to examine the fundamental principles of interim relief in commercial proceedings. The comparative legal method was employed to analyze the norms of international legislation.

Conclusions. Based on the conducted research, the following has been identified:

– the set of normative mechanisms for precautionary measures and claim security is aimed at achieving a single goal, namely the enforcement of judicial protection of the rights of participants in commercial-law relations. Therefore, it seems logical to support the position of scholars regarding the consolidation of these measures into one category: «protective measures», while simultaneously distinguishing what constitutes the «mechanism for implementing protective measures». In this context, precautionary measures are proposed to be equated with basic-type measures, whereas claim security measures correspond to the primary category.

– with the further aim of formalizing precautionary measures within the procedural mechanism, it is proposed to integrate them into the procedural framework of commercial proceedings after the claim is filed and the court review begins, the preparatory stage of commercial proceedings. In cases where the applicant justifies the need to consider their motion regarding the effectiveness of precautionary measures without proper notice to the party against whom the substantiated request is filed, the commercial court judge should indicate this information in the order initiating proceedings and schedule a hearing on the applicant’s motion without prior notification of the person against whom the precautionary measures are being applied.

– іn our view, it is necessary to endorse the scholars’ position on granting arbitrators in Ukraine the authority, in commercial arbitration disputes, to make decisions on the implementation of protective measures, with their subsequent exequatur in the state court.