Amicus Curiae Brief in case No. 910/3022/24
On 21 September 2026, the UAA Working Group submitted to the Commercial Court of Cassation of the Supreme Court a collectively prepared independent expert opinion (Amicus Curiae Brief) in case No. 910/3022/24, brought by Onur Taahhut Tasimacilik Insaat Ticaret ve Sanayi A.S. acting through its representative office in Ukraine (Сompany) against the State Agency for Restoration and Development of Infrastructure of Ukraine, the successor of Ukravtodor (Agency).
The dispute in this case arose out of a contract of 20 January 2020 between the Agency and the Сompany for the major repair of the M-05 Kyiv–Odesa motorway, concluded following a tender, for works to be financed by loans from the EBRD and the EIB. The general conditions of the contract follow the FIDIC Red Book 1999. The lower instance courts declined to refer the parties to arbitration holding that the arbitration clause named no arbitral institution, rules or seat, and that a dispute under a contract concluded following a public procurement procedure was in any event not arbitrable. On 7 September 2026, the Supreme Court opened cassation proceedings upon the Agency's appeal.
The Working Group considers that this case raises issues that are important for the development of arbitration in Ukraine and for shaping the perception of Ukraine as an arbitration-friendly jurisdiction. In this case, the Supreme Court will have the opportunity to opine on:
- interpretation of an arbitration clause in a contract concluded based on the FIDIC Red Book 1999;
- the validity and enforceability of an arbitration clause in which the parties referred their dispute to international arbitration without naming an arbitral institution, seat or rules, in particular having regard to the mechanism of Article IV of the 1961 European Convention on International Commercial Arbitration;
- the arbitrability of disputes under contracts concluded in the field of public procurement;
- whether the operability of an arbitration clause is affected by a party's failure to object to the jurisdiction of a state court in an earlier dispute under the same contract.
The Working Group concluded that an arbitration clause providing for the final resolution of disputes by international arbitration is itself an arbitration agreement excluding the jurisdiction of the state courts; that where the parties have not agreed on the constitution of the tribunal or the rules of arbitration, those matters shall be settled by relying on the subsidiary mechanism of Article IV of the 1961 European Convention, so that the absence of such terms deprives the clause neither of validity nor of enforceability; that the civil-law aspects of disputes under public procurement contracts are arbitrable under Article 22(2) of the Commercial Procedure Code; and that a failure to raise an arbitration objection in one set of proceedings does not deprive a party of the right to rely on the same arbitration agreement in another dispute.
The Amicus Curiae Brief was prepared by the UAA Working Group composed of Olexander Droug, Chair of the Working Group, Partner at Sayenko Kharenko; Valeriia Lada, UAA Amicus Curiae Officer, Attorney-at-Law; Serhii Uvarov, UAA President, Partner at IMPACTA LAW; Krystyna Khripkova, UAA Board Member, Counsel at IMPACTA LAW; Katalina Shkuro, Associate at Sayenko Kharenko; and Alessandro Platania, Senior Contract Manager at Webuild (Bucharest, Romania).
The Working Group hopes that this Amicus Curiae Brief will assist the Supreme Court in its consideration of the case.
You may find the full text of the Amicus Curiae Brief (in Ukrainian) here.