Jurisdiction issues in bilateral treaties on legal assistance

A dispute with a counterparty abroad starts not with the claim but with a prior question: which state’s courts may hear it at all. The answer often sits not in the procedural code but in a bilateral treaty on legal assistance — the instrument counsel reaches for last.

Ukraine has such treaties with some thirty states. Most of them regulate jurisdiction, and this paper examines how. Published in the Bulletin of the Academy of Advocacy of Ukraine, No. 3(22), 2011, pp. 197–202.

In short: the court for a dispute with a counterparty abroad is often fixed not by the procedural code but by a bilateral treaty on legal assistance. Under lis alibi pendens the treaties with Latvia, the Czech Republic and Romania give different outcomes, so a strategy cannot be carried over from one treaty to another.

The treaties recognise four kinds of jurisdiction, and which one applies determines whether a party has any choice at all:

• General — set by the treaty’s default rules, usually the defendant’s domicile or residence.
• Contractual — the parties have chosen the court themselves.
• Exclusive — no way around it. One court decides, and party agreement cannot displace it.
• Alternative — the claimant picks among two or more competent courts. This is where forum shopping lives, and where the choice of forum frequently decides the outcome.

What if the same parties are already litigating the same subject matter elsewhere? The lis alibi pendens rule says the court seised second must give way. But the procedural consequence differs from treaty to treaty — that is the paper’s central finding.

• Latvia (Art. 20(4)): the court seised later terminates the proceedings.
• Czech Republic (Art. 21(2)): the justice body seised later leaves the case without consideration.
• Romania (Art. 21(2)): the court seised later closes the case once it confirms the first court has declared its competence.
• Ukrainian Private International Law Act adds a fourth: the court refuses to open proceedings.

Four different outcomes for one situation. The practical consequence: a strategy that worked under one treaty cannot be carried over to another — each text has to be read on its own terms.

The paper was submitted on 29 September 2011, and the treaty map has since changed — most of all to the east.

Ukraine has abandoned the 1993 Minsk Convention. By Law No. 2783-IX of 1 December 2022 Ukraine suspended the CIS Convention on Legal Assistance in Civil, Family and Criminal Matters and its Protocol in relations with the Russian Federation and the Republic of Belarus, and withdrew from the Convention and the Protocol altogether (Article 84 of the Convention). The Convention appears as source 9 in the article.

So did the 1992 Kyiv Agreement on the procedure for settling disputes connected with economic activity (source 11), from which Ukraine withdrew by a law of 12 January 2023.

Bilateral treaties with other states — Latvia, the Czech Republic, Romania, Poland, Turkey and the rest — remain in force, and the analysis holds for them. If anything the practical point is sharper now: multilateral CIS machinery used to absorb a large share of these disputes; it is gone, and jurisdiction must be established either under a bilateral treaty or under general rules.

Tsirat G. A. Jurisdiction Issues in International Treaties of Ukraine on Legal Assistance // Bulletin of the Academy of Advocacy of Ukraine. — 2011. — No. 3(22). — pp. 197–202. Full text in Ukrainian: original article (PDF, 6 pp.).