Which Law Governs Your Ukraine–EU Contract When Nobody Chose One

Contract architecture | JVS Law

A German company and a French company that fall out over a contract are arguing inside one system. Whichever court hears them applies the same conflict-of-law rules and reaches the same answer about which law governs. That is what Rome I is for.

A Ukrainian company and a French company have no such instrument. There are two sets of conflict rules, one on each side, and which of them decides the case depends on which court gets the file first. Eight years ago our partner wrote that this gap is the part of European integration nobody talks about. It is still open.

The trade chapters of the EU–Ukraine Association Agreement run to hundreds of pages. Private international law gets one article.

Article 24, “Legal cooperation”. The parties agree to develop judicial cooperation in civil and criminal matters, “fully using the relevant international and bilateral instruments and based on the principles of legal certainty and the right to a fair trial”. They agree to develop further judicial cooperation in civil matters “on the basis of the relevant multilateral legal instruments, in particular the conventions of the Hague Conference on Private International Law in the fields of international legal cooperation, litigation and the protection of children”.

Read it twice and the shape becomes clear. It is an agreement to cooperate — to serve documents, to take evidence, to recognise judgments through Hague instruments. It is not an agreement to unify the rules that decide which country’s law governs a contract. Those rules were left exactly where they were.

On the EU side. Regulation (EC) No 593/2008 — Rome I. Uniform across the Member States. Where the parties chose a law, it applies; where they did not, Article 4 sends you to the habitual residence of the party effecting the characteristic performance, with a closed list for the common contract types.

On the Ukrainian side. The Law of Ukraine on Private International Law No. 2709-IV of 23 June 2005. Article 5 gives party autonomy; Article 43 confirms it for contracts, except where a Ukrainian statute prohibits the choice. Where there is no choice, Article 44 sends you to Article 32(2)–(3): the law most closely connected with the transaction, presumed to be the law of the party effecting the performance decisive for the contract — and then Article 44 lists them. Seller under a sale. Lessor under a lease. Carrier under carriage. Contractor under works. Service provider under services.

The structures rhyme. That is not a coincidence — both descend from the same continental tradition, and a Ukrainian court and a French court will usually arrive at the same governing law. What they do not share is an instrument that makes them do so.

Three consequences, in ascending order of how much they cost.

Jurisdiction decides the conflict rules. Inside the EU it does not matter much which Member State’s court hears the case: the conflict rules travel with the dispute. Between Ukraine and the EU they do not. The court that takes the case applies its own conflict rules — so the fight over forum is also, silently, a fight over which system decides the governing law.

The overriding mandatory rules are not the same set. Whatever law governs, a court applies its own overriding mandatory provisions. A Ukrainian court will apply Ukrainian ones — currency control, licensing, war-time restrictions — to a contract governed by French law. A French court will not apply them the same way, if at all. Two courts, same contract, two different sets of non-negotiable rules layered on top.

The Hague contract conventions do not fill the gap. The 1955 sales convention, the 1978 agency convention and the 1986 sales convention — the latter never entered into force — attracted few parties, and Rome I displaced them for most of those. Ukraine is not a party to any of them. There is no fallback treaty layer here; there is national law on each side and nothing between.

Two things have closed, and the big one has not.

Recognition of judgments now has a treaty. The 2019 Hague Judgments Convention entered into force for Ukraine and for the EU on the same day, 1 September 2023, and the 2005 Choice of Court Convention has been in force for Ukraine since 1 August 2023. Those two cover the back end — whether a judgment travels and whether a jurisdiction agreement is honoured. Neither touches applicable law.

Choice of law by agreement has soft-law support. The Hague Principles on Choice of Law are not binding, but they are the drafting standard a well-made clause follows. That is the practical answer available today: choose the law expressly, and the gap mostly stops mattering.

Accession is what closes it properly. Ukraine received candidate status on 23 June 2022 and accession negotiations were formally opened at the intergovernmental conference in Luxembourg on 25 June 2024. On accession, Rome I and Rome II apply in Ukraine directly, and Brussels I bis with them. Until then, the position is the one described above — and every contract signed in the meantime lives under it.

• Choose the governing law expressly, in its own clause. This is the whole answer to the Rome I gap, and it is free. A contract without a choice hands the question to whichever court seises it.
• Check the choice is one Ukrainian law permits. Article 43 allows it “except where the choice of law is directly prohibited by the laws of Ukraine” — and there are such cases.
• Choose the forum in the same breath. Because jurisdiction carries the conflict rules, an unclear forum clause reopens the applicable-law question you thought you had closed.
• Map the Ukrainian mandatory rules that will apply regardless. Currency settlement deadlines, licensing, sanctions and wartime measures do not care what law you chose.
• Do not rely on a Hague contract convention. Ukraine is not a party to any of them.

Based on the author’s article “Нерегулируемый переезд”, first published in Yurydychna Praktyka, issue No. 19 (1062), written after the Max Planck Institute and Jena University conference “How European is European Private International Law?” in Berlin, where Ukraine was represented by Iryna Dikovska, Gennadii Tsirat and the author. Rewritten in August 2026 with the position as it now stands; the law is stated as at that date.