Execution of Decisions on Non-residents – Individuals and Legal Entities – on the Territory of Ukraine
Ukraine is an active participant of international relations both at the state and at private level. These are commercial (business) contacts of enterprises, international marriages with participation of Ukrainian citizens, children in international marriages, inheritance, etc. In any case, not all disputes are resolved peacefully and in such cases the courts are used. What can non-residents (individuals and legal entities), who have received judgments in their jurisdictions, and such decisions should be enforced in the territory of Ukraine, do? Let us examine this question in more detail in this article.
First of all, you need to know that Ukraine is a part of international agreements on mutual legal assistance (including a mutual agreement to fulfill the decision of a foreign court on its territory) with the following countries: the countries of the CIS (the Republic of Azerbaijan, Belarus, Armenia, Kazakhstan, Moldova, Tajikistan, Turkmenistan, Uzbekistan, Georgia, the Kyrgyz Republic and the Russian Federation), with Estonia, Latvia and Lithuania; Bulgaria, Hungary, Romania, Greece, Finland, Italy, Albania, Macedonia, the Czech Republic, Turkey, China, Vietnam and North Korea, Mongolia, Algeria, Iraq, Iran, Yemen, Tunisia, Cyprus and Cuba. There is also the Convention on legal assistance and legal relations in civil, family and criminal cases with CIS countries, and at the same time acts as an older, so-called Minsk Convention 1993, and later, so-called Kishinev Convention 2002, are in force.
Ukraine also has obligations under the Convention on Civil Procedure (The Hague, 1954) to the following countries: Argentina, Austria, Belarus, Belgium, Bosnia and Herzegovina, China (administrative region of Macao), Croatia, Macedonia, Cyprus, Czech Republic, Denmark, Egypt, Finland, France, Germany, Hungary, Israel, Italy, Japan, Latvia, Luxembourg, Morocco, Netherlands (Kingdom in Europe), Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Suriname, Sweden, Switzerland, Turkey Armenia, Vatican City, Kyrgyzstan, Lebanon, Moldova, Russia, Uzbekistan. However, this Convention governs only the question about the order of execution of decisions for the recovery of costs and does not involve fulfilment of judgments on other issues by parties.
Ukraine has a reciprocal obligation on the execution of court decisions with some countries, concerning only certain kinds of legal relationships, such as family, which is regulated by the Convention on the Recognition and Enforcement of Decisions concerning obligations on the content (The Hague, 1973), the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the protection of children (The Hague, 1996) and the Convention on the recovery of maintenance abroad (New York, 1956), or the execution of decisions of international commercial arbitration, which is regulated by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958).
There are not any agreements on the mutual enforcement of judgments between Ukraine and those developed countries that have a significant amount of legal relations with the residents of Ukraine, such as the USA, Canada, Australia, New Zealand, France, Germany, Sweden, Norway, etc.
The procedure for enforcement of foreign judgments under existing international treaties is uniform. The concerned person submits application to the competent court for enforcement of a judgment on the territory of Ukraine. The competent court does not investigate the essence of a decision taken by a foreign court and does not verify compliance with the latest rules of substantive law, but it can check a judgment for violations of public policy, for example, a court in another state was not competent in applicable law, the rights of the side were violated by a court (for example, maintenance of order of summoning the defendant, absence of fraud during the process, and other requirements of a purely formal nature), and other factors (there have been cases of failures in the enforcement of judgments that were not motivated in any way by a foreign court). On fact of receiving a court enforcement document the concerned person must apply to the relevant territorial department of state executive service, which will directly execute the decision on the territory of Ukraine.
It is worth mentioning that the absence of international obligations of Ukraine to certain countries on the implementation of decisions is compensated by the norm of law that such judgments may be executed based on the principle of reciprocity, which is called the principle of “comity” (international comity; comity of nation) in Anglo-Saxon law. It is presumed that the principle of reciprocity is applied if the interested party, a resident of Ukraine in this case, does not prove the opposite; it means that the competent court of the country of execution does not fulfill the decision of the competent Ukrainian courts. Litigation of Ukrainian courts shows that the failure in applying the principle of reciprocity is practically absence, and even if the court of the first instance deny on these grounds, the appeals court cancels such failures and allows enable judgments for execution.
All mentioned above indicates that non-residents should not be afraid to perform judgments in Ukraine. Yes, the process of submission of applications to the competent court, support of such process in the court and the subsequent maintenance of the process in the executive services require specific knowledge and skills, but qualified legal assistance with Ukrainian lawyers removes all your concerns and fears.
Author: Kydalov Igor
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Rather interesting article for those who what to know about Ukrainian law. But from my point of view, there is too much unnecessary information. But for the general knowledge it will be good article just to scan it.