Asters has successfully represented Power Construction Corporation of China and Powerchina Huadong Engineering Corporation in challenging security measures granted by the Kyiv Court of Appeal in assistance to arbitration proceedings pending before the Dubai International Arbitration Center against the Fursy Energy Group and FAS Energy.
The firm explained that “the procedure for interim measures of protection in aid of international arbitration was introduced to the Civil Procedure Code of Ukraine in December 2017 with the full-scale reform of Ukrainian procedural codes. Despite some sporadic previous decisions by the Ukrainian courts, the Powechina case became the first one addressing fundamental issues regarding interim measures procedure, such as the international jurisdiction of the Ukrainian court in such cases with multiple foreign defendants.”
As background, according to Asters, “in spring 2022, Fursy Energy Group LLC and FAS Energy LLC, the owners and operators of the Photovoltaic power plant in the Kyiv Region, launched an arbitration in the DIAC against Powerchina. In parallel, Fursy applied to the Kyiv Court of Appeal for security measures in aid of international arbitration seeking a prohibition for Powerchina to collect the pledged and mortgaged assets in Ukraine for the certified debts of Fursy. In May 2022, the Kyiv Court of Appeal ex parte upheld Fursy’s application. Notably, this was the first known ruling rendered against collectively two foreign companies upon an application filed in aid of international arbitration having no seat in Ukraine. In June 2022, Powerchina appealed the Kyiv Court of Appeal’s ruling on multiple grounds, challenging the international jurisdiction of the Ukrainian courts over Powerchina and claiming a lack of substantive grounds to grant the interim measures.”
According to the firm, the Supreme Court held that “in the case of multiple defendants, the international jurisdictions of the Ukrainian court shall be established with respect to each of such defendants.” Furthermore “Kyiv Court of Appeal erred in establishing its jurisdiction since the court did not have jurisdiction over one of the Powerchina companies, which does not have a representative office and/or property in Ukraine,” and it “sided with Powerchina and Asters by finding that the subject matter of the claim referred by Fursy to arbitration does not correlate with the measures requested before the Ukrainian courts.” Finally, it “found that the requested measures were disproportionate.”
The Asters team included Co-Managing Partner Oleksiy Didkovskiy and Partners Markiyan Kliuchkovskyi, Yaroslav Petrov and Iryna Pokanay, Counsels Oleksandr Volkov, Anzhelika Livitska and Gabriel Aslanian, Senior Associate Viktor Tarasenkov, and Associate Oleksii Izotov.