The CIS multilateral treaties 1. Kiev Agreement of 1992

On 20 March 1992 the Agreement on the Settlement of Disputes Relating to the Exercising of Economic Activity (“Kiev Agreement”) was adopted in Kiev. It entered into force on 8 April 1993 and the Republic of Uzbekistan ratified it in 1993 on the 6^th of May. The main purpose of its adoption was to liquidate the legal vacuum, which appeared after the collapse of the Soviet Union, under which the court judgements of one CIS country were not executed and enforced in the territory of another CIS country.⁴⁶⁰ This agreement was the first treaty among the CIS Member States on the recognition and enforcement of judgments and awards.⁴⁶¹ It contains

454 Ibid., para. 377. The Tribunal rejected all four of the respondent’s objections associated with claimants’

nationality, “passive” investment, its legality and corruption allegations.

455 Vladislav Kim v. Republic of Uzbekistan, para. 413.

456 Ibid., para. 396.

457 Kendra/Bonini, Dealing with Corruption Allegations in International Investment Arbitration: Reaching a Procedural Consensus?, JIntArb 31:4 (2014), 439-453.

458 Friedman/Lavaud/Marley, Corruption in International Arbitration: Challenges and Consequences, in: The Arbitration Review of the Americas 2018, August 2017, available at

https://globalarbitrationreview.com/insight/the-arbitration-review-of-the-americas-2018/1146893/corruption-in-international-arbitration-challenges-and-consequences.

459 Korobeinikov (supra n. 429), p. 503.

460 See in Russian textbook: Mejdunarodniy kommercheskiy arbitraj. Gosudarstva Zentralnoy i Vostochnoy Yevropi, 2001, p. 31.

461 Agreements on co-operation between commercial and arbitral courts of Belarus, the Russian Federation and Ukraine of 21 December 1991 and the Agreement on co-operation and collaboration of arbitral courts of

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rules on the settlement of disputes and enforcement of corresponding judgments and arbitral awards of the contracting CIS states’ competent courts among legal persons and entrepreneurs.⁴⁶² In Art. 3 of this Agreement the competent courts are defined as including arbitration courts. According to Art. 8 only CIS Member States can be signatories to the Kiev Agreement. Uzbekistan has also signed and ratified this agreement.

The rules on mutual recognition and enforcement of judgments of commercial courts read as follows: The CIS Member States mutually recognise and enforce judgments of competent courts which have the effect of res judicata. Judgments rendered by competent courts of one CIS Member State shall be enforced on the territories of other CIS Member States. Judgments rendered by a competent court of one CIS Member State which provide for execution to be levied upon the debtor’s property shall be enforced on the territory of another CIS Member State by authorities appointed by a court or determined in accordance with the laws of this State.⁴⁶³ A judgment is to be enforced upon request of the interested party.

With the request are to be enclosed: ⁴⁶⁴

– obligatorily, a properly certified copy of the judgment to be enforced;

– an official document confirming that the judgment has the effect of res judicata, if it is not apparent from the text of the judgment;

– evidence that the debtor was served with the summons;

– the enforcement document.⁴⁶⁵

It should be noted that above-mentioned documents do not comply with the documents fixed in the New York Convention. The enforcement document, mentioned in the Kiev Agreement, in practice creates difficulties, since on rendering the decision by an arbitration court on the place of dispute settlement; the enforcement document is not usually given. Enforcement of a judgment may be refused upon request of the party against which it is directed only if this party delivers evidence of the following to the competent court in the State where enforcement is sought:⁴⁶⁶

Kazakhstan and the Russian Federation of 27 March 1992 were “predecessors” to the Agreement “On Modalities of Resolution of Disputes arising out of Business Activity” (“Kiev Agreement”) of 1992. The status of both agreements is disputable: they were concluded by the heads of the highest commercial courts of the countries concerned. The Kiev Agreement does not mention them wholly.

462 Art. 1 of the Kiev Agreement.

463 Ibid., Art. 7.

464 Ibid., Art. 8.

465 Enforcement document is an enforcement order issued by the court of origin on the basis of the judgment.

466 Art. 9 of the Kiev Agreement.

a) court of the State addressed had earlier rendered a judgment which has the effect of res judicata in a case between the same parties, concerning the same subject matter and on the same grounds;

b) a judgment of a competent court of a CIS Member State or of a court of a non-CIS Member State, rendered in a dispute between the same parties concerning the same subject matter and on the same grounds, has already been granted recognition;

c) the dispute was solved by a court incompetent according to this Treaty;

d) the other party was not served with the summons;

e) the three-year limitation period for filing the judgment for enforcement has expired.

The highest commercial courts of the main CIS Member States, including Uzbekistan declared that they would apply their national regime to the enforcement of judgments and arbitral awards falling under the Kiev Agreement, i.e. accepted the abolition of the exequatur procedure. The Kiev Agreement does not contain any provisions on the relationship with other instruments. To summarize, the matter of enforcement of court judgements or arbitration awards is questionable, when some CIS countries are parties of the Kiev Agreement and the New York Convention at the same time. For instance, if there is a case on enforcement of an arbitration award of the International Commercial Court under the CCI of Russia in the territory of Uzbekistan, which Treaty’s rules will be used: the rules of the Kiev Agreement or the New York Convention? The main point is that in Uzbekistan both treaties, despite some distinctions between them, are utilised for the enforcement of foreign arbitral awards or court judgements.

2.3.5.2. Minsk Convention of 1993

The Minsk Convention on Legal Assistance in Civil, Family Relations and Criminal Matters of 1993 is applicable to court judgments on compensation of damages under criminal law cases, to court judgments over civil law and family law disputes and to decisions of other state bodies competent to make decisions on civil law and family law disputes. Recognition and enforcement of interim/interlocutory orders are not covered by the Minsk Convention.

The Minsk Convention provides for a procedure whereby a court decision or a decision of the competent state body needs to be recognised in the state where enforcement is sought, and as the result of due recognition, the court of the state where enforcement is sought issues an enforcement order that is mandatory for enforcement in the territory of that state.

Pursuant to the Convention, recognition and enforcement of a foreign court judgment may be refused by the competent Uzbek court if:

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 the judgment did not enter into legal force or is not subject to enforcement, unless the judgment is enforced prior to its entering into legal force;

 the defendant did not participate in the hearing due to not being properly served;

 there is a recognised judgment of the competent Uzbek court or a third state over the same dispute between the same parties, or the Uzbek state body has commenced proceedings on the case;

 pursuant to the provisions of the Minsk Convention, or, in case not provided by the Minsk Convention, under the legislation of Uzbekistan, the dispute falls under the exclusive jurisdiction of the state bodies of Uzbekistan;

 the document confirming the agreement of the parties over the competent jurisdiction is absent; and

 the limitation period for mandatory enforcement of the judgment set in Uzbekistan has expired.⁴⁶⁷