GILS Dispute Resolution: Ukraine

UKRAINE

CASE №1:

The Solomenskiy District Court of Kyiv ruled on 02.08.2022 that the director of a Ukrainian company (UkrCo) was guilty of violating customs regulations, and the Company's goods totaling EUR 500 000 were seized. 

Subsequently, the UkrCo independently appealed the above judgement in the court of appeal, the Supreme Court, and by filing an application for its reconsideration on newly discovered circumstances. Each time, the courts refused to satisfy the UkrCo's claims. 

UkrCo then approached GRATA International Ukraine, and it was decided to re-file an application to reconsider the appealed ruling on newly discovered circumstances. 

The complexity of this case is that cases on violation of customs rules are considered under the provisions of the Code of Ukraine on Administrative Offences, which does not provide for the institution of reconsideration of court decisions on newly discovered circumstances. The majority of such applications are either dismissed or refused by the courts. 

Nevertheless, the lawyers of GRATA International Ukraine have conducted work to establish new material circumstances, and substantiated the application for reconsideration of the ruling on newly discovered circumstances with the practice of the ECHR (according to which cases of administrative offences are considered criminal within the meaning of the Convention for the Protection of Human Rights and Fundamental Freedoms) and also used the analogy of law (referring to the norms of the Criminal Procedure Code on reconsideration of court decisions on newly discovered circumstances). 

After a second reconsideration, the ruling of the Solomenskiy District Court of Kyiv dated 13.10.2023 satisfied the application of the UkrCo to the full extent, and the confiscated goods were returned to the client.

Mykola Aleksiuk.

CASE №2:

A Lithuanian company approached GRATA International Ukraine with a request regarding the recovery of a debt from a Ukrainian LLC arising under a supply contract. 

The complexity of the case was that, according to the supply contract, all disputes should be considered in the ICAC at the UCCI, while the client wanted to consider the dispute in the commercial court of general jurisdiction (for faster consideration of the dispute). 

GRATA International Ukraine lawyers managed to prove, with reference to the relevant practice of the Supreme Court, that the arbitration agreement on transferring the dispute to the arbitration court is not a waiver of the right to submit a claim to the court, but one of the ways of realising the right to protect one's rights. In connection with the above, the parties had only a legal opportunity, not an obligation to apply to the arbitration court. At the same time, limitation of the right to apply to the commercial court was not allowed. 

In addition, it was argued that the arbitration clause in the supply contract could not be fulfilled due to a material mistake of the parties in the provisions that would have allowed to establish the true intentions of the parties regarding the election of the rules under which the arbitration proceedings should be carried out. 

Consequently, the commercial court accepted the claim for consideration and satisfied the client's claims in full.

Mykola Aleksiuk.