The Dispute Resolution Review. Ukraine
INTRODUCTION TO DISPUTE RESOLUTION FRAMEWORK
The system of courts of general jurisdiction encompasses:
a local courts;
b appellate courts;
c specialised high courts; and
d the Supreme Court of
Based on the specialisation principle, the courts of general jurisdiction consider the following types of cases: civil, criminal, commercial and administrative and cases on administrative offences.
Local courts are the first instance courts encompassing local general, commercial and administrative courts. Local general courts try civil and criminal cases, as well as certain types of administrative cases (e.g., cases involving local government). Local commercial courts mainly adjudicate in commercial disputes involving individuals registered as ‘private entrepreneurs’ and legal entities, corporate disputes and bankruptcy cases. Local administrative courts handle administrative disputes with the participation of government authorities or officers.
Appellate courts consist of appellate general, commercial and administrative courts, which examine appeals in relation to judgments of respective local courts that have not become effective.
The high courts are specialised. These are the highest courts of appeal for most cases. They comprise the
The highest judicial institution of general jurisdiction is the Supreme Court. The Supreme Court reviews cassation appeals when they are based on different applications of a legal rule by specialised courts in similar cases, or when determining whether a judgment by an international court, whose jurisdiction is recognised by the
Alternative dispute resolution (‘ADR’) in
II THE YEAR IN REVIEW
The Presidium of the High Commercial Court of Ukraine adopted Recommendations No. 04-06/15 on 2 February 2010 (‘the Recommendations’) to ensure the uniform and proper application of substantive and procedural laws in land disputes. The Recommendations were issued to clarify the exclusive jurisdiction of commercial courts in different types of land disputes (since in many cases their jurisdiction in practice overlaps with that of administrative courts). The Recommendations contain clarifications to the lower courts regarding: jurisdiction matters; application of injunctive relief; liability for violation of land legislation; and the particularities of dispute resolutions with different categories of land and participants involved. The Presidium also provided detailed guidance regarding the use of different forms of pre-judgment relief.
The High Commercial Court Recommendations regarding the numerous abuses of procedural rights by litigants stipulated that litigants should use their procedural rights in a proper fashion. The Recommendations contain the definition of abuse of procedural rights and prohibit certain actions aimed at abuse of procedural rights by third parties to the case. It also concerns the abuse of procedural rights by attorneys. The Recommendations stated that the court can influence an attorney’s procedural behaviour through the disciplinary committee of the Bar. It is also stated that a post office receipt could be used as adequate proof that a submission had been dispatched. The Recommendations state that the absence of the enclosure description could not be grounds for returning the claim.
i Overview of court procedure
The principal statutes governing court procedure are the Commercial Procedure Code, the Civil Procedure Code, the Code of Administrative Justice, the Criminal Procedure Code and the Law on Enforcement Proceedings. Civil and administrative procedures generally adhere to the same structure, while commercial procedure is somewhat different. An outline of commercial litigation follows, as well as certain peculiarities of civil and administrative proceedings.
ii Procedures and time frames
Litigation usually commences after a written statement of a claim is filed with a local commercial court. Unless there are grounds to reject the statement of claim, the court opens proceeding by issuing a respective decree that is served on the parties.
A case at a local court is usually heard by a single judge. Witness statements are not accepted as evidence in commercial litigation, but are in civil and administrative proceedings. At the same time, a commercial court may request explanations from parties’ representatives or other participants of a proceeding. According to established practice, most of the evidence comprises written documents.
As a rule, the case trial is completed with issuance of a judgment. The parties, prosecutor, third parties, non-parties to the case affected by a judgment may appeal a judgment as a whole or in part within 10 days of its approval or execution. When that period has lapsed, the judgment becomes effective unless it has been appealed.
Appeals hearings are held in nearly the same form as the hearings at the first instance. An appellate court verifies legality and relevance of a judgment within the scope of relief sought from the local court and may examine new evidence not submitted previously for justifiable reasons.
Based on its findings, an appellate court has the authority to (1) uphold a local court judgment, (2) alter the judgment, (3) vacate the judgment and render a new judgment, (4) close the proceedings or (5) reject the claim. The parties, prosecutor, third parties or non-parties affected by a judgment of an appellate commercial court may make a cassation appeal to the
The parties to a case and the Prosecutor General may appeal a
A commercial court may retry a case based on new facts critical for correct dispute resolution. The list of exclusive grounds for retrial based on new facts is provided by the Code of Commercial Procedure. A party can petition for a retrial based on new facts within one month of their discovery.
Enforcement of judgments is administered by the state enforcement authority pursuant to the Law on Enforcement Proceedings.
As a general rule, a case trial in lower courts should be completed within two months of receipt of the claim by the court. Appellate proceedings should be carried out within two months upon rendering a decree on acceptance of the appeal for consideration. Contrary, appellate proceedings with respect to challenging a decree should be carried out within 15 days upon rendering a resolution on acceptance of the appeal for consideration. Cassation proceedings should be carried out within one month for final judgments and 15 days for procedural rulings from the moment a ruling is issued accepting the cassation appeal.
At the same time, the law provides for an extension or stay of proceedings in certain cases and enables litigants to employ dilatory tactics (e.g., by challenging the judges). Furthermore, the Supreme Court of Ukraine may send a case for retrial to the cassation court (High Court) and, respectively, the court of cassation may send a case for retrial to the court of appeal.
The claimant may petition the court for an interim injunction (e.g., by attaching respondent’s property or enjoining from certain actions). An injunction may be granted if the applicant demonstrates that it will be difficult or impossible to enforce the judgment in absence of the injunction.
A simplified ex parte procedure is available in the general courts for, inter alia, undisputed claims based on a written agreement or deed. In this case the court issues an order regarding the relief sought within a three-day term without holding a hearing.
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