Overview (November 2007)/Ukraine

Legal System

Ukraine is a civil law state; the major sources of law are statutory acts.(1) Core legislation in the form of a law (zakon) is adopted by the Verkhovna Rada, the Ukrainian Parliament. Laws are further developed in regulations (postanova) issued by the highest executive body, the Cabinet of Ministers, and in the acts of other executive bodies of the national government. The president issues decrees (ukaz), which are usually strategic and intended to develop a legal framework; with the exception of personal appointments, the decrees do not generally have direct effect. There are also many other, less important, types of legal source in Ukraine, which may be adopted in furtherance of those above. All of these instruments are broadly referred to as 'legislation'.

The fundamental legislative instruments in the field of litigation are:

Section 8 of the Ukrainian Constitution; 

five procedural codes, namely:

• the Code of Civil Procedure;(2)
• the Code of Criminal Procedure;
• the Code of Commercial Procedure;
• the Code of Administrative Justice; and
• the Code on Administrative Violations (Section IV);(3) and
• a number of laws, including:

1. the Law on the Judiciary of Ukraine;(4)
2. the Law on the Constitutional Court of Ukraine;(5) and
3. the Law on the Status of Judges.

Codes and laws have equal force.

The role of case law is relatively insignificant, but has been increasing in recent years. Ukraine's judicial administration made it easier to invoke case law by launching an online register of court decisions in June 2006 (for further details please see "Online Register of Court Decisions Benefits Lawyers and Litigants"). Additionally, the highest courts summarize their practice in particular fields of substantive and procedural law in the form of regulations and clarifications (rozyasnennya), which are often referred to in the course of proceedings and may influence dispute settlement, especially when there is no relevant legislation or such legislation is unclear or controversial.

The Constitution(6) and the Law on International Treaties(7) officially recognize Ukraine's international treaties as an integral part of its legal system. If international treaties and national legislation conflict, the former will prevail.

National Court System

Litigation is the most common legally formalized method of dispute resolution in Ukraine. The Constitution and Law on the Court System provides that the court system consists of the Constitutional Court of Ukraine and the courts of general jurisdiction. Courts of general jurisdiction include general and specialized (ie, commercial or administrative) courts. General courts consider civil and criminal cases and cases involving administrative violations, as well as certain other administrative matters, whereas the two types of specialized court review commercial and administrative disputes.

The highest court of general jurisdiction is the Supreme Court. Among other functions, it summarizes court practice and provides the lower courts with clarifications on how to apply various rules of law.

Constitutional Court

The Constitutional Court's activity is governed by the Law on the Constitutional Court of Ukraine.

It delivers judgments and opinions in cases regarding:

• the constitutionality of laws (except laws in force which amend the Constitution) and other legislation issued by Parliament, the president, the Cabinet of Ministers and the Parliament of the Autonomous Republic of Crimea;  
• conflicts between the Constitution and Ukraine's international treaties (whether ratified or awaiting ratification);  
• the legitimacy of the constitutional procedure of investigation and examination for the impeachment of the president within the limits prescribed by the Constitution; and  
• official interpretations of the Constitution and national laws.

A case may be referred to the Constitutional Court by:

• the president;  
• a group of 45 or more members of Parliament;  
• the Supreme Court;  
• the parliamentary ombudsman; and  
• the Parliament of the Autonomous Republic of Crimea.

Other legal or natural persons may apply to the Constitutional Court for an official interpretation of the law and Constitution if they require such an interpretation in order to protect or exercise constitutional rights or freedoms. The judgments and opinions of the court are final and binding; they constitute legal precedents and may be invoked before the courts, including the Constitutional Court itself. If legislation is declared unconstitutional, such a declaration may serve as grounds for judicial review of any decisions by courts of general jurisdiction that were based on the application of unconstitutional provisions of law.

General courts

General (zahalni) courts try civil and criminal cases, disputes arising from administrative violations and some administrative cases.

Civil procedure is used to resolve all disputes which are not specifically covered by other procedures. It is further divided into default judgment procedure, adversarial trial procedure and special procedures. Among other things, special procedures are used to:

• declare a person legally incapable, missing or dead;
• establish legally significant facts;
• initiate proceedings on escheated or ownerless property; and 
• order the disclosure of confidential information held by banks.

As in many other jurisdictions, criminal cases deal with the most serious violations of law (eg, violations affecting life, property and national security).

Disputes arising from administrative violations are similar to criminal cases, but less serious.

General courts are also referred to as 'civil' courts - or simply 'the courts' - as opposed to specialized courts. Local general courts have territorial jurisdiction over the smallest administrative units (ie, towns or districts of a city or region (oblast)). General courts of appeal have territorial jurisdiction over a region of Ukraine; the cities of Kiev and Sevastopol have their own general courts of appeal. Decisions issued by general courts of appeal may be appealed to the Supreme Court.

Commercial courts

Commercial (hospodarski) courts(8) try disputes arising from commercial activity. Local commercial courts have territorial jurisdiction over a region; Kiev and Sevastopol have their own city commercial courts. Commercial courts of appeal usually have territorial jurisdiction over several neighbouring regions; Kiev and Sevastopol have their own commercial courts of appeal. Decisions issued by commercial courts of appeal may be appealed to the Highest Commercial Court and ultimately, in certain cases, to the Supreme Court.

Administrative courts

Administrative courts try administrative disputes arising from legal relations involving state and local government.

Circuit administrative courts have territorial jurisdiction over a region; Kiev and Sevastopol have their own city circuit administrative courts. Circuit administrative courts try disputes involving a state body (except criminal cases and those involving administrative violations). At the same judicial level, local general courts may act as administrative courts when trying disputes involving a local government entity or official or an official entity's action - or failure to act - in respect of its administrative responsibility. Most administrative courts of appeal have territorial jurisdiction over several neighbouring regions. Cases may be further appealed to the Highest Administrative Court and ultimately, in certain cases, to the Supreme Court. The Highest Administrative Court also serves as a court of first instance in disputes concerning national elections, referenda and the registration of presidential candidates.

Plaintiffs may choose whether to bring a case before a local general court (as a first instance court of administrative jurisdiction) or a circuit administrative court (i) when challenging an action or a failure to act on the part of a local executive body, or (ii) if the Code of Administrative Justice fails to provide for specific jurisdiction.

Although the administrative court system was introduced in 2002, by mid-2007 only the Highest Administrative Court and the courts of appeal had been established. According to the transitional provisions of the Code of Administrative Justice, cases may be heard at first instance by the general and commercial courts which were competent to hear them before the code came into force.

Procedural Principles

Ukrainian litigation procedure is complex and still in the process of reform; at present, it combines elements from both Soviet and modern European systems. However, all procedural legislation has been drafted and amended according to the core principles of judicial proceedings set out in the Constitution, namely:

• the consistent application of the law;
• the equality of all participants before the law and the court;
• the adversarial procedure and the freedom to present and prove evidence before the court;
• the right of the accused to a defence;
• openness and accessibility of trials and the complete recording of proceedings (subject to exceptions provided by law);
• the right to contest a court's decision by means of appeal and cassation (subject to exceptions provided by law); and
• the mandatory force of court decisions. 

Parties and participants

The participants in legal proceedings depend on the nature of the proceedings. The main parties in criminal litigation are the prosecutor, the victim and the accused, whereas the parties in civil, commercial and administrative litigation are one or more plaintiffs and defendants. Civil claims arising from a crime may be filed in the course of criminal proceedings or in separate civil proceedings. In proceedings relating to an administrative violation, the victim supports the prosecution against the accused.

A prosecutor may enter not only criminal, but also other kinds of proceedings, acting as a representative of a state body or of a private person (in cases prescribed by law). Civil, commercial and administrative proceedings allow for the participation of third parties, which may bring independent claims against the plaintiff, the defendant or both. A third party which does so is equivalent in status to the plaintiff. If third parties do not bring independent claims, they may join the plaintiff or the defendant and have the same rights as such parties, subject to certain exceptions.

Witnesses, experts and specialists may be involved in proceedings (with certain exceptions).

Rights and obligations

Parties enjoy equal procedural rights during proceedings. They are entitled to:

• examine the case file, recording extracts and making copies if necessary; 
• take part in hearings; 
• present evidence and participate in its examination; 
• bring motions before the court;  
• give oral and written explanations; 
• submit opinions regarding issues arising during the proceedings;  
• object to the motions and opinions of other participants; and  
• appeal against court decisions.

The parties may settle a dispute at any time before the decision is made (except in criminal and constitutional cases or those involving administrative violations). The plaintiff may change the grounds, subject or value of its claim, or withdraw it altogether. A defendant may accept the claim. Parties are required to respect the court and to use their rights in good faith.

Jurisdiction

The territorial jurisdiction of the courts varies according to the type of proceedings.

In general, a claim is brought before the court of the defendant's place of residence. However, in many cases the law prescribes other criteria or enables the plaintiff to choose from several options.

Civil litigation

The legislation on civil litigation provides as follows:

A claim may be lodged with the court of the plaintiff's place of residence in cases involving:

• compensation for damage caused by unlawful decisions, actions or failure to act on the part of pre-trial investigating authorities, the prosecution office or the court;
• labour relations;
• collection of maintenance;
• paternity disputes; or
• divorce (if the parties so decide or if the plaintiff supports minors or has other valid reasons to request a change of venue);
• A claim against a legal entity may be brought before the court of the place where its representative office or branch is located if the dispute arose as a result of the legal entity's actions.

Cases involving claims for compensation for death, damage to health or damage caused as the result of crime may be brought before the court of the defendant or plaintiff's place of residence or the place where the damage was caused.

Claims for compensation for damage caused to property may be brought before the court of the defendant's place of residence or the place where the damage was caused. 

Consumer claims may be brought before the court of:

• the place of residence of the defendant or the plaintiff;
• the place where damage was caused; or
• the place where the agreement was to be performed.

Exclusive jurisdiction applies in certain disputes as follows: 

• Claims involving immovable property or the exclusion of property from an official register must be brought before the court of the place where the property (or the majority thereof) is located; 
• Creditors of a testator must bring claims before the court of the place where the property (or the majority thereof) is located, unless the property has already passed to the inheritors; and
• Claims against carriers must be brought before the court of the carrier's place of residence if the claim arises from a transportation agreement. 

Ukrainian civil procedure also recognizes prorogation agreements, although such agreements have no effect in cases of exclusive jurisdiction.

Claims against several defendants domiciled in various locations can be brought before the court of the place of residence of any of them.

Commercial litigation

There is no choice of jurisdiction in commercial proceedings, but there are a number of exceptions to the general rule:

Disputes among shareholders or between shareholders and the company which arise from the incorporation, activities, administration or liquidation of the company are tried by the court at the company's place of registration.

Claims against carriers must be brought before the court of the carrier's place of residence if the claim arises from a transportation agreement. 

Claims involving immovable property or the exclusion of property from an official register must be brought before the court of the place where the property (or the majority thereof) is located. 

Claims arising from a violation of IP rights must be brought before the court of the place where the violation occurred. 

Disputes between recoverers and debtors involving the barring of a notarial writ of execution or the return of property collected thereunder may be brought before the court of the place of execution or the defendant's place of residence. 

Kiev City Commercial Court has exclusive jurisdiction over cases involving state secrets and claims against:

• a main or central agency of executive power;
• the National Bank of Ukraine;
• the Auditing Chamber of Ukraine;
• Parliament and the government of the Autonomous Republic of Crimea;
• regional councils;
• Kiev and Sevastopol city councils; and
• state administrations.

Claims against several defendants domiciled in various locations can be brought before the court of the place of residence of any of them. 

Bankruptcy proceedings are held at the court of the place of residence of the prospective bankrupt party. 

Administrative litigation

The legislation on civil litigation provides that claims against decisions, actions or failure to act in certain cases must be brought before the court at the plaintiff's place of residence. Once established, Kiev Administrative Court will have jurisdiction over claims involving:

• national authorities;
• Ukraine's foreign diplomatic or consular missions and their officials and employees; or
• the disbanding or prohibition of a political party.

Criminal litigation

In general, proceedings are held before the court at the place where the violation occurred. However, the rules provide that:

• if it is impossible to identify where a violation occurred, the case is heard by the court at the place where the inquiry or pre-court investigation was concluded;
• in certain circumstances proceedings may be transferred to the court at the accused's place of employment or domicile or the place where the majority of the witnesses reside; and
• if several proceedings involving several defendants and crimes are joined, the case is heard by the court of the place where the criminal proceedings were initiated or where the inquiry or pre-court investigation was concluded.
• Administrative violations

In general, proceedings are held before the court of the place where the violation occurred. However, illegal public consumption of alcohol and public drunkenness are dealt with by the court of the place where the violation occurred or the offender's place of residence. Certain traffic violations are dealt with by the court of the place where the violation occurred, the court of the offender's place of residence or the court of the place where the vehicle was registered.

 Conduct of Proceedings

The six types of procedure used in Ukrainian courts are known as the civil, criminal, administrative, commercial, constitutional and administrative violation procedures.(6) Each procedure has its own terms and rules, although these generally follow the same structure. The following outline of proceedings indicates the most common phases of civil, commercial and administrative litigation.

Commencement of proceedings

In order to start litigation proceedings, a plaintiff must file a claim with the respective local court. Before filing a claim, a party may apply for preliminary measures, such as the production of evidence, the inspection of premises and, in commercial and IP proceedings, the attachment of assets. However, the courts are often reluctant to exercise such powers. If such measures are applied before civil or commercial proceedings are commenced ex parte, the statement of claim must be submitted 10 days later.

The claim must generally include:

• an indication of the court before which the claim is to be filed;  
• an indication of the parties, their locations or places of residence and company register numbers (or tax numbers in the case of natural persons);  
• an indication of the value of the claim (if the claim is subject to a monetary estimation);  
• a statement of the facts on which the plaintiff relies;  
• a statement of the evidence which the plaintiff intends to produce in support of the facts;  
• a reference to the legislative provisions on which the claim is based;  
• the remedy sought by the plaintiff;  
• information about the use of preventive measures;  
• other information which the claimant deems relevant or useful; and  
• a list of attached documents.

The attached documents must include proof of payment of the court fees; representatives must submit proof of power of attorney. Usually, the attached documents also include copies of the written evidence in the plaintiff's possession at the moment of filing of the claim.

Plaintiffs in civil and administrative proceedings must submit to the court additional copies of the claim and attachments for all respondents and third parties involved in the action. Plaintiffs in commercial proceedings must serve copies of the claim and attachments on the defendant and third parties before submitting the papers to the court. The statement of claim is often accompanied by an application for preventive measures. The claim may normally be secured by means of a court order preventing the defendant or other persons from taking certain actions (eg, disposing of assets). In civil proceedings the court may also order a person to take certain actions. Evidence may be secured by orders for witness and expert examination, the production of evidence and the inspection of premises.

The court examines whether the claim meets the legislative requirements of form, content and jurisdiction. Depending on the results of its examination, the court may reject the claim or accept it and commence the action.

The court serves its order on the acceptance of the claim and the commencement of the action on the parties; in civil and administrative proceedings, the court simultaneously serves the defendant with the claim. The order for commencement of proceedings usually includes the date of the first (or preliminary) hearing and requests for (i) a statement of defence from the defendant, and (ii) the production of additional documents from all parties to support their positions.

On receipt of the claim the defendant may respond with a full or partial admission, a statement of defence or a counterclaim.

Preliminary hearings

In civil and administrative proceedings the court must hold a preliminary sitting to:

• specify the claim and defence;  
• specify the persons involved in the case;  
• specify the facts to be discovered during the proceedings, and whether the facts of the case are disputed or accepted by the parties;  
• specify the list of evidence the parties intend to bring and the terms of its submission;  
• secure evidence (if necessary);  
• secure the claim (if necessary); and  
• set the date of the first hearing.

In commercial proceedings, especially in complex cases, the first hearing is often used for similar purposes. However, if the case is straightforward, a decision may be delivered at the first hearing.

Evidence

'Evidence' is defined as factual data which gives the court grounds for defining the existence or absence of circumstances which substantiate the claims and objections of the parties or is otherwise relevant to the case.

In civil and administrative cases the court may consider as evidence:

• statements from witnesses and the parties;
• written evidence (ie, a document, act, inquiry, item of correspondence or extract thereof which relates to the issues of the case); 
• material evidence which provides information related to the issues of the case; and
• experts' opinions.

Parties may submit their statements orally or in writing if the court so requires. Material evidence may include sound and video recording and other types of audiovisual information. Copies of written documents must be submitted, but the originals must be available for presentation to the court.

Main hearings

Main hearings begin with the consideration of technical issues, such as:

• the announcement of the court's composition and the rights of the parties; 
• the identification of the individuals involved; and  
• the verification of the powers of the representatives or officials representing the parties or legal entities.
• If a party does not attend, the court generally suspends the hearing, unless the party has asked the court to hear the case in its absence. Further failure to appear before the court may lead to different outcomes, depending on the type of procedure and whether the plaintiff or defendant is absent. If the plaintiff consistently fails to attend, the court usually dismisses the case without further consideration, in which case the plaintiff may file the same claim again whenever it deems appropriate within the terms of limitation. If the defendant fails to attend, the case is usually heard and decided in its absence.

Once the court has dealt with the technical issues, it hears the parties' procedural applications and motions and issues a court order (ukhvala) on each of the issues raised.

The trial begins with the presentation of the claim by the plaintiff or its representative; the respondent and the court may ask questions relating to the presentation. The defendant then presents its statement of defence, which may be followed by further questions by the plaintiff or the court.

Witnesses and experts present their evidence orally. They are questioned by the court and cross-examined by the parties. Material evidence is examined by the court; the parties may object to the evidence or comment on it. Usually most of the evidence is comprised of written documents.

The parties may then make additional statements regarding the claim and defence before they summarize their statements with reference to the evidence examined. After the court concludes the debate, the court retires to consider and deliver the decision.

Judgments

Proceedings may end with the issuance of an order cancelling proceedings or a judgment (ie, a decision on the merits of the case).

The grounds for cancellation are set out in the relevant procedural codes and usually include:

• amicable settlement between the parties;  
• the withdrawal of the claim;  
• the discovery of an existing court decision on the same dispute involving the same parties;
• the death of a party (in the case of a natural person) or the winding-up of a legal entity with no legal grounds for succession;
• agreement between parties in commercial proceedings to refer their dispute to arbitration.

A decision on the merits must be delivered within two months of the date on which the claim was received. However, the law provides for a stay of action or extension of the proceedings in certain circumstances.

The judgment - referred to as rishennia or postanova, depending on the type of procedure - must include:

• an introduction indicating the court, case number, parties and judge;  
• a description of the case, incorporating:
• a summary of the pleadings;
• further claims or other motions brought by the parties;
• opinions and objections; and
• a description of the court's actions during the trial (eg, details of the evidence examined).

If the decision is not appealed, the judgment comes into force on the day after the last day on which an appeal may be submitted. Once the decision is in force, a party may apply to the court for a writ of execution (termed nakaz or vykonavchy lyst depending on the type of procedure).

Appeals

Civil and administrative procedures require that an appeal be filed within 30 days of the judgment, subject to previous notice of appeal filed within 10 days of the judgment.

In commercial cases an appeal must be filed within 10 days of the judgment. Parties may also appeal a judgment directly to the Highest Commercial Court of Ukraine under the cassation procedure. The same rules of appeal apply to court orders, but with half of the period of appeal.

Appeals follow the same procedural form as first instance hearings. However, appeal hearings are usually much shorter, as the courts do not allow parties to engage in a full presentation and examination of the case; it is presumed that the court has already studied the case materials and is concerned only with whether the parties have changed their positions or have new evidence to submit.

An appeal court may uphold the original decision, issue a new decision or refer the case back to the court of first instance. The appeal court's decision may be appealed to the court of cassation, but it takes effect on the date it was made.

Cassation

Appeals before a court of cassation must be submitted within one month of administrative and commercial decisions and two months of civil decisions. In addition to its appeal, a party may ask that the enforcement of the lower courts' decisions be suspended until the court of cassation's decision is issued.

The courts of cassation are:

• the Supreme Court (for civil and criminal proceedings);
• the Highest Administrative Court (for administrative proceedings); and
• the Highest Commercial Court (for commercial proceedings).
• When submitting such an appeal against a civil or administrative decision, the appellant must provide the court with proof of power of attorney and a copy of the decision or decisions being appealed.

The cassation procedure involves no examination of evidence; parties may appeal only on points relating to material and procedural law. The hearings are usually very brief, consisting of short speeches by the parties and questions by the court.

A court of cassation may uphold the lower court's decision, issue a new decision or refer the case back to a lower court.

Second cassation and review on extraordinary grounds

In certain rare cases, a decision of the Highest Commercial Court or Highest Administrative Court may be appealed to the Supreme Court, while in civil and criminal proceedings the court may reconsider its previous decisions.

The court may uphold the cassation court's decision, uphold or overturn any of the lower courts' decisions or refer the case back to a lower court for retrial, depending in part on the type of procedure.

Execution of Decisions

The execution of court decisions is mandatory. However, parties often refuse to comply with obligations imposed on them by the courts, in which case a compulsory execution procedure must be applied.

The execution of a court decision is a separate and complex stage of litigation in Ukraine. This is mainly because the execution of court decisions is carried out by a separate state authority which is independent of the courts, but subordinate to the Ministry of Justice;(9) the system also remains badly managed and underfinanced by the state. A post-Soviet reluctance to comply with any form of state order - even a court decision - adds to the problem.

The compulsory execution procedure is governed by the Law on Execution Procedure and carried out by the State Execution Service.

A party wishing to enforce a decision must submit a writ of execution and an application for execution to the branch of the service which is closest to the defendant or other person bound by the court decision - this is usually the branch at the place of residence of the defendant or another party bound by the decision. An application may be filed with a regional or central office fo the service under certain circumstances.

The service formally starts the proceedings by asking the party in question to comply with the decision voluntarily, usually within seven days. If the party fails to do so, an enforcement service officer is entitled to execute a decision (eg, by taking property from a debtor and transferring it to the collector). However, the service's generally slow reaction to collectors' applications and the development of the case in general may give a debtor time to hide property or hamper its seizure in some other way. Owing to badly drafted legislation, a party which hampers the enforcement of a court decision or simply fails to abide by it is very unlikely to face a penalty, except for a relatively small fine. Therefore, the execution procedure generally requires day-to-day supervision and control on the part of the collector or its representative.

The execution procedure for a winning party requires almost as much effort and close attention as the court procedure itself.

Costs

Court costs consist of the court fee and and different expenses related to consideration of the case (litigation expenses).

The court fee (also referred to as state duty) must be paid in all kinds of proceedings except criminal proceedings. A related type of payment is a fee for technical and information services also payable to the courts in civil and commercial cases. Such fees (duties) must be paid before the case is submitted to court. However, in certain types of claim the law grants exemption from fees; in other cases, the court may grant extension of payment or reduce the amount of such fees.

Litigation expenses in administrative, civil and commercial cases may include:

fees for legal services;  

expenses relating to the appearance of parties and their representatives in court;  

expenses relating to the involvement of witnesses, interpreters and experts; and  

expenses relating to the examination of evidence on site and the implementation of other actions required for court proceedings.

Litigation expenses in criminal proceedings consist of:

• costs payable to witnesses, victims, experts and interpreters (also payable in cases involving administrative violations);  
• disbursements for the storage, delivery and examination of evidence; and  
• other costs incurred by the investigating agency, pre-trial investigation and the court.
• The losing party is usually ordered to pay the winning party's costs. The only practical exception is nonetheless significant: technical difficulties and controversial legal practices mean that, although legal fees may be at least partly recovered from the losing party, it is rare for a winning party to achieve this. Moreover, the sum of recoverable legal fees and expenses is capped by legislation.

Court costs and orders to pay them are regulated by several legislative instruments; most costs are set out in the Cabinet of Ministers' Decree on State Duty, which has the legal force of law

State court duty varies according to the type of claim and procedure, ranging from a minimum of UAH1.7 to a maximum of 1% of the claim value, but not exceeding UAH25,500. The only exception to this rule is a claim for defamation, for which a higher sum may be charged (up to 10% of the claim value).

A party which brings an appeal must pay 50% of the court duty paid to the court of first instance.

Fees for technical and information services in civil and commercial proceedings are determined by the Cabinet of Ministers. In commercial cases such fees are set at UAH118; the sum for civil cases depends on the type of the claim, but may not exceed UAH30.

Foreign Element Disputes

The main legislation governing disputes involving foreign states or legal or natural persons is the Law on International Private Law, which came into force on September 1 2005.

A case is deemed to include a 'foreign element' if:

• at least one party to the legal relations in question is a foreigner, a stateless person or a foreign legal person;  
• legal relations are based on an object located in a foreign state; and  
• a legal fact which gives rise to the commencement, alteration or termination of legal relations occurs or occurred in a foreign state.
• Foreigners, stateless persons, foreign legal persons, foreign states (including their entities and officials) and international organizations are entitled to refer to the Ukrainian courts to protect their rights, freedoms and interests. Special treatment for diplomatic agents, the personnel of international organizations and other parties may be introduced by international treaties and national law.

Foreign states and their representatives enjoy special legal treatment under international treaties. Ukraine is a party to diplomatic and consular bilateral agreements with a number of states, as well as to the Vienna Conventions on Diplomatic and Consular Relations 1961 and 1963. As a member state of numerous international organizations, including the United Nations and the Council of Europe, Ukraine recognizes privileges and immunities of their personnel. It is also a signatory to:

• the Convention on the Privileges and Immunities of the United Nations 1946;
• the Convention on the Privileges and Immunities of the Specialized Agencies; and 
• the European Convention on State Immunity 1972.

However, it has not yet decided whether to be bound by the Convention on Jurisdictional Immunities of States and their Property 2004.

The procedural capacity of foreign persons in Ukraine is governed by Ukrainian law. The court may require a foreign legal person to produce a duly executed document as evidence of legal capacity (eg, articles of incorporation or an extract from the trade register).

If the property or a representative of Ukraine in a foreign state is not granted jurisdictional immunity, the government may apply such measures as are allowed by international law if diplomatic measures are insufficient to settle the consequences of such a violation.

Unless Ukrainian law or an international treaty provides otherwise, the consent of the competent authorities of the relevant foreign state is necessary in claims involving a foreign state in which (i) the person or entity is a plaintiff or is engaged as a defendant or third party, or (ii) its property in Ukraine is involved in the case or subject to injunction or attachment.

Foreign persons act in the same capacity as Ukrainian natural and legal persons in civil, commercial and administrative proceedings unless otherwise specified by legislation.

In criminal proceedings against them, foreigners and stateless persons act in the same capacity as Ukrainian nationals. However, those with diplomatic immunity are exempt from criminal jurisdiction. The responsibility of persons covered by diplomatic immunity for administrative violations is determined through diplomatic channels

Conflicts of international jurisdiction

The Law on International Private Law also deals with jurisdictional issues involving a foreign element. Ukrainian courts may try foreign element cases if:

• the parties have previously agreed that Ukraine courts are to have jurisdiction (except in circumstances where rules of exclusive jurisdiction apply);  
• the defendant is domiciled in Ukraine, owns movable or immovable property on Ukrainian territory or, in the case of a legal person, has a branch or agency there;  
• an indemnification case involves damages caused in Ukraine, a plaintiff who is a natural person domiciled in Ukraine or a defendant who is a legal person domiciled in Ukraine;  
• a maintenance or affiliation case involves a plaintiff who is domiciled in Ukraine;  
• an inheritance case involves a testator who was either a Ukrainian national or was domiciled there when he or she died;  
• the action or event which gave rise to the proceedings took place in Ukraine;  
• a person last known to have been domiciled in Ukraine is to be declared missing or deceased;  
• special proceedings arise out of the personal status or capacity of a Ukrainian national; and  
• proceedings against a Ukrainian national who acts as a diplomatic agent abroad or otherwise enjoys immunity from local jurisdiction cannot be initiated abroad.

Other circumstances can be introduced by Ukrainian law or international treaties.

The Law on International Private Law also lists foreign element cases that may be tried only by Ukrainian courts. It covers all cases involving:

immovable property in Ukraine which gives rise to proceedings;  

• relations between children and parents in which both parents are domiciled in Ukraine;  
• a testator who was a Ukrainian national and was last domiciled in Ukraine;  
• a dispute arising from the registration of IP rights involving the certification or issuance of a patent in Ukraine;  
• a dispute arising from the registration or liquidation in Ukraine of foreign entities or the business undertakings of foreign nationals;  
• a dispute relating to the validity of entries in the public registry or land registry;  
• insolvency proceedings in which the debtor was incorporated under Ukrainian law;  
• the issuance or annulment of securities; and  
• the adoption of a child in Ukraine.

Ukrainian courts must refuse to try a claim if proceedings involving the same parties and cause of action have been brought before a court or other jurisdictional body in a foreign state.

Disputes in which at least one party is a foreign enterprise or organization fall within the jurisdiction of Ukraine's commercial courts if the defendant is domiciled in Ukraine. Ukrainian commercial courts also try such disputes if (i) a branch, agency or other establishment of an international enterprise or organization is domiciled in Ukraine, or (ii) a dispute concerns immovable property owned in Ukraine by a foreign enterprise or organization.

International organizations, diplomatic agents of foreign states recognized by Ukraine and other persons identified in Ukraine's laws and international treaties fall within the jurisdiction of Ukrainian courts in civil cases only insofar as the jurisdiction conforms to the principles and norms of international law and international treaties in force in Ukraine.

Recognition and enforcement of foreign decisions

Since September 6 2005 the recognition of foreign judgments has been governed by the Code of Civil Procedure.

Foreign court and arbitral awards are recognized and enforced in Ukraine if such an arrangement is established by an international treaty to which Ukraine is a party or by virtue of a reciprocal or ad hoc agreement with another state. Ukraine has entered into a number of bilateral agreements on legal aid and legal relations with a variety of states and is a party to the Commonwealth of Independent States Kiev Agreement on Settlement of Disputes Arising out of Commercial Activity 1992 and the Commonwealth of Independent States Minsk Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Matters 1993; it is a signatory to the Kishinev Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Matters 2002, but this has yet to be ratified. Ukraine is not a party to the Brussels Convention 1969 or the Lugano Convention 1988, although its accession was previously considered.

As a general rule, requests for enforcement should be submitted within three years of the date on which it is delivered. The request must be lodged with a local court at the place of the debtor's domicile. If the debtor is not domiciled in Ukraine - or if his or her domicile is unknown - the request is lodged with a local ordinary court at the place where the debtor has property in Ukraine.

For further information on this topic please contact Taras Tertychnyi, Serhii Sviriba or Dmytro Marchukov at Magister & Partners by telephone (+380 44 492 82 82) or by fax (+380 44 492 82 72) or by email (mailto:ttertychnyi@magisters.com?subject=Article on ILO or mailto:ssviriba@magisters.com?subject=Article on ILO or mailto:dmarchukov@magisters.com?subject=Article on ILO).

Endnotes

(1) English annotations to approximately 1080Ukrainian legal acts can be accessed at http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?user=annot.

(2) English annotations to the Civil and Criminal Codes can be accessed at http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?page=48&user=annot and http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?page=22&user=annot.

(3) 'Administrative violations' are defined as minor violations of public law, as opposed to crimes. A list of violations and corresponding penalties is set out in the Code of Administrative Violations.

(4) English annotations to the Law on the Judiciary of Ukraine can be accessed at http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?page=88&user=annot.

(5) English annotations to the Law on the Constitutional Court of Ukraine can be accessed at http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?page=13&user=annot.

(6) The English text of the Constitution can be accessed at http://www.rada.kiev.ua/const/conengl.htm.

(7) English annotations to the Law on International Treaties can be accessed at http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?page=38&user=annot.

(8) English annotations to the Code of Commercial Procedure can be accessed at http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?page=21&user=annot.

(9) English annotations to the Law on Execution Procedure can be accessed at http://zakon.rada.gov.ua/cgi-bin/laws/main.cgi?page=2&user=annot. 

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