Interlegal managed to facilitate dispute consideration by the Ukrainian court
13 April, 2016
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As it known, most House and Line Bills of Lading provide an alternative clause under which the debtor may be brought to responsibility either under its location or under location of the creditor (forwarder/line carrier).
Experts of Interlegal dealt with such clause in one of the latest case proceedings upon freight and container demurrage charge against the Ukrainian consignee. According to the Bill of Lading:
“All actions against carrier under the contract of carriage evidenced by this Multimodal Transport Document shall be brought before the High Court of Bombay, India, and no other Court shall have jurisdiction with regards to any such action. Actions against the Merchant under the contract of carriage evidenced by this bill of lading may be brought before the High Court of Bombay, India, or, in Carrier’s sole discretion, in another court of competent jurisdiction”.
It was a great surprise when the Ukrainian court, having accepted the case to consideration, after several court hearings ordered to cease the case proceedings a) due to arbitration clause under which the dispute shall be settled by the High Court of Bombay, and b) due to application of the Indian law to the dispute.
The court of appeal supported this conclusion in full and left the first instance court decision unchanged.
In the process of cassation claim consideration by the Supreme Commercial Court of Ukraine, the court’s attention was drawn to the fact that the debtor was the Ukrainian resident; therefore, jointly with alternative clause of the Bill of Lading, it shall serve as grounds for dispute consideration at the territory of Ukraine. The need in dispute consideration under the foreign law provisions shall not also facilitate case proceedings cessation, since the Ukrainian law not only provides such opportunity but also stipulates the content determination procedure concerning such provisions.
Cassation claim was satisfied in full. As the result, the case was submitted to the first instance court for consideration on the merits.
Alexey Remeslo and Karina Gorovaya, experts of Interlegal, worked upon the case.
