On 21 September 2022, Ukraine’s parliament adopted amendments to the national legislation to ratify the Convention on Choice of Court Agreements (the “New Law”). This much-awaited law entitles parties to an agreement with a non-Ukrainian party to agree on the location of the court(s) that will have jurisdiction to resolve disputes concerning the agreement (i.e., the forum selection clause). The New Law awaits signature of the President of Ukraine to become effective.
While this was also generally possible before the New Law, the New Law is significant because, among other things, it requires the courts in jurisdictions other than the selected forum to suspend or dismiss proceedings in favor of the chosen court (which requirement previously was not clearly the case in Ukraine), which helps to remove the risk of the bringing of proceedings in a non-chosen court in order to prevent, delay, or complicate the proceedings in the chosen jurisdiction. This is to be the case unless the parties have expressly indicated that the selected forum is nonexclusive.
Accordingly, if the parties have chosen English courts for the resolution of disputes, an attempt by one of the parties to bring the proceedings in a Ukrainian court should be dismissed.
It is further noteworthy that, so long as the forum selection clause does not expressly indicate that it is nonexclusive, the inclusion of an arbitration clause does not undermine the foreign choice-of-court agreement requiring the Ukrainian courts to dismiss attempts to bring the case in Ukraine.