MEDIATION IN THE DISPUTE SETTLEMENT SYSTEM UNDER THE EU- UKRAINE ASSOCIATION AGREEMENT 2014

Abstract

The article examines the system of dispute settlement under the Association Agreement between Ukraine and the EU of 2014, which may arise from the lack of a unified approach to interpreting the provisions of the Agreement or fair use, and due to the improper performance of obligations by one of the Parties. Each individual dispute resolution mechanism is described. In particular, a general dispute settlement mechanism extending to the provisions of the Agreement on Deep and Comprehensive Free Trade Area between Ukraine and the EU (DCFTA), and a dispute settlement mechanism within the DCFTA, implemented through consultation, arbitration or arbitration, are explored. It is stated that the general dispute settlement mechanism is based on a "traditional" diplomatic approach, in which the Association Council, consisting of members of the Government of Ukraine and members of the European Commission, is a key dispute resolution body. The DCFTA dispute settlement mechanism is more complex. Attention is drawn to the fact that the consultation mechanism, which by its content provides for negotiation, can act as a separate dispute settlement procedure or as a stage preceding the arbitration procedure or mediation, if the parties failed to reach a mutually agreed solution. The arbitration procedure involves the consideration of the dispute by a panel of three independent arbitrators whose decisions are binding on the parties. If the respondent Party does not comply with the decision and does not offer temporary compensation, the other Party has the right to apply temporary protection measures, which stipulate the suspension of its obligations. Another mechanism for dispute resolution is mediation, which aims to facilitate a mutually agreed solution through comprehensive and expedited procedures through a mediator.

The features of mediation in the dispute settlement system under this Agreement are identified. Attention is drawn to the benefits of mediation over other dispute resolution tools provided by the UA. In particular, unlike arbitration, any dispute concerning the provisions of Title IV of the AA may be the subject of mediation. In addition, the mediator does not have the right to submit a final dispute resolution to the parties compared to the arbitrators. Its purpose is to facilitate the adoption of a mutually agreed decision taken by the Parties as a result of their independent consent. Such a feature makes the mediation mechanism a more attractive and flexible way of resolving a conflict between the Parties, which is not always ready to commit itself to a legally binding solution. In addition, jointly finding a mutually beneficial solution can help solve problems in interpreting and implementing the terms of the agreement in a more effective way.