Communicated on 15 May 2019

FIFTH SECTION

Application no. 15361/10 KOMTEKH-PLUS, PF NVP against Ukraine lodged on 2 March 2010

STATEMENT OF FACTS

The applicant company, Komtekh -Plus, is a private company incorporated under the laws of Ukraine.

A. The circumstances of the case

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

On 4 December 2007 five private companies, including a private company called RGK (“the vendors”), and the applicant company concluded a provisional sale and purchase contract for four units located in non-residential premises in Lviv . On the same day they concluded an arbitration agreement providing that any disputes relating to the above contract were to be settled by means of ad hoc domestic arbitration.

The contract of sale (“the main contract”) was concluded on 14 December 2007.

In the end of December 2007 a dispute arose between the vendors and the applicant company concerning the failure of the former to notarise the main contract. On 25 December 2007 the applicant company requested arbitration, seeking to obtain title to the four units. The dispute was amicably settled on 23 January 2008 – the parties agreed that the applicant company was the owner of the four units. On 24 January 2008, the arbitral tribunal confirmed the settlement by a consent award.

1. Enforcement of the arbitral award, proceedings in case no. 6/47

The applicant company applied to a local court to issue an enforcement order in relation to the arbitral tribunal ’ s award (case no. 6/47).

On 22 April 2008 the Ivano-Frankivsk Regional Commercial Court refused to issue an enforcement order, finding that the arbitral tribunal had exceeded its jurisdiction.

On 22 July 2008 the Lviv Commercial Court of Appeal quashed the above decision and ordered the court of first instance to issue an enforcement order.

On 23 September 2008 the Ivano-Frankivsk Regional Commercial Court issued an enforcement order.

On 9 April 2009 a private company, the Z. company , lodged an appeal on points of law with the Higher Commercial Court of Ukraine against the decision of 22 July 2008, claiming that the arbitral award had interfered with its property rights relating to one of the above-mentioned four units (“the fourth unit”).

On 29 May 2009 the applicant company ’ s title to the fourth unit was registered.

On 30 June 2009 the Higher Commercial Court of Ukraine quashed the decisions of 22 April and 22 July 2008 and remitted the case to the first-instance court for reconsideration. On 13 August 2009 the Supreme Court of Ukraine refused to entertain an appeal on points of law against this ruling.

On 5 November 2009 the Ivano-Frankivsk Regional Commercial Court stayed the proceedings until the Lviv Commercial Court of Appeal had considered case no. 15/91 (see below).

On 15 September 2011 the Ivano-Frankivsk Regional Commercial Court closed the proceedings upon the applicant company ’ s request.

2. Setting aside of arbitral award, proceedings in case no. 15/91

On 5 June 2009 the Z. company lodged a claim with the Ivano-Frankivsk Regional Commercial Court seeking to have the arbitral award partially set aside on the grounds that the latter had interfered with its property rights to the fourth unit and to declare its property right over it (case no. 15/91).

On 11 September 2009 the Ivano-Frankivsk Regional Commercial Court rejected the claim in full. The court found that the Z. company had had no title to the fourth unit when the dispute had arisen and when the arbitral award had been issued. In addition, it established that the Z. company ’ s claim was time-barred.

The Z. company appealed against this decision to the Lviv Commercial Court of Appeal.

On 18 May 2010, the Lviv Commercial Court of Appeal quashed the decision of the first-instance court and set aside the arbitral award in the part relating to the applicant company ’ s title to the fourth unit, as it adversely affected the property rights of the Z. company and on the basis that the arbitral tribunal had exceeded its jurisdiction. The court referred to a decision of the Lviv Regional Court of Appeal of 22 January 2007, which had quashed a judgment of 23 May 2006 of the Lychakivskyy District Court of Lviv that had found that RGK had been the owner of the fourth unit; it also referred to a decision of the Lychakivskyy District Court of Lviv of 28 October 2008 which, at the request of the Z. company, had reversed the enforcement of its judgment of 23 May 2006, restoring the title of the Z. company to the fourth unit. In addition, that court had found that the Z. company had lodged its claim within the statutory time-limit, as it had learned about the arbitral award on 29 May 2009.

The applicant company appealed on points of law to the Higher Commercial Court of Ukraine.

On 14 September 2010 the Higher Commercial Court of Ukraine upheld the decision of 18 May 2010.

On an unspecified date the applicant company and two other private companies appealed to the Lviv Commercial Court of Appeal against the decision of 18 May 2010, seeking to have the appeal proceedings reopened owing to newly discovered circumstances, as the above-mentioned decision of 28 October 2010 had been quashed on 14 July 2010 by the Lviv Regional Court of Appeal following an application by the applicant company.

On 15 November 2010 the Lviv Commercial Court of Appeal extended the time-limit for lodging the application and reopened the proceedings. On 20 January 2011, it dismissed the application, confirming that the arbitral tribunal had exceeded its jurisdiction, and finding that in any event the reversal of the decision of 28 October 2008 had not influenced the outcome of the case because the court had based its reasoning also on the decision of the Lviv Regional Court of Appeal of 22 January 2007 that had restored the Z. company ’ s title to the fourth unit.

The two above-mentioned companies appealed on points of law to the Higher Administrative Court of Ukraine. On 29 March 2011 the Higher Administrative Court of Ukraine upheld the appellate court ’ s decision.

On 23 May 2011 the applicant company appealed on points of law against the decision of 20 January 2011 to the Higher Commercial Court of Ukraine. On 26 May 2011 the Higher Commercial Court of Ukraine refused to entertain the appeal on points of law as the case had already been considered.

On an unspecified date the Z. company registered its title to the fourth unit. On 30 April 2013, it sold the fourth unit to a certain Ms K.

B. Relevant domestic law

The Arbitration Courts (domestic) Act as in force at the relevant time read as follows:

Article 2. Definitions

“... [C] ompetent court – a local court of general or commercial jurisdiction at the place of consideration of a case by an arbitral tribunal ...”

Article 51. Challenging of an arbitral award

“... [A]n arbitral award may be challenged by third parties and parties that were not involved in a case, if the arbitral tribunal decided an issue concerning their rights and duties, ... before a competent court that has jurisdiction ...

Should a competent court set aside an arbitral award, the parties are not precluded from resorting to arbitration, except for the situations provided in this article ...”

Article 56. Procedure for issuing an enforcement order

“... A ruling of a competent court refusing to issue an enforcement order , if it has not been appealed against , shall come into effect after the elapse of the term for appeal. In the case of an appeal [being lodged], a ruling shall come into effect after the appellate court has considered the case ...

For fifteen days after the competent court renders a ruling refusing to issue an enforcement order, the parties have a right to appeal against this ruling. After a ruling refusing to issue an enforcement order enters into force, a dispute between the parties may be considered by a competent court in accordance with the general rules [of consideration of cases].”

COMPLAINTS

The applicant company complains under Articles 6 and 13 of the Convention that the Higher Commercial Court of Ukraine surpassed its jurisdiction when considering the appeal on points of law in case no. 6/47, and that both the Lviv Commercial Court of Appeal and the Higher Commercial Court of Ukraine surpassed their jurisdiction when considering the appeals in case no. 15/91. The applicant company also complains, under Article 1 of Protocol No. 1 to the Convention, that it was unlawfully deprived of its possessions.

QUESTIONS TO THE PARTIES

1. Is Article 6 § 1 of the Convention applicable to the proceedings on enforcement and/or the setting aside of a domestic arbitral award?

2. Considering the applicable domestic positive law: (a) did the Higher Commercial Court of Ukraine surpass its jurisdiction when considering the appeal on points of law in case no. 6/47; (b) did the Lviv Commercial Court of Appeal and the Higher Commercial Court of Ukraine surpass their jurisdiction when considering the appeals in case no. 15/91?

3. In the affirmative, did the consideration of those appeals amount to a violation of article 6 § 1 of the Convention?

4. As for question 2(b) above, was the applicant company estopped from claiming a lack of jurisdiction of the court to which it itself had resorted?

5. In the negative, has the applicant company duly exhausted domestic remedies, regarding the complaints raised in its appeal on points of law?

6. In view of the answers to the above questions, has there been a violation of the applicant company ’ s right to the peaceful enjoyment of its possessions under Article 1 of Protocol No. 1 to the Convention?