Proving Ukrainian law abroad: what a tribunal actually asks the expert

On 4 February 2019 the tribunal in PJSC CB PrivatBank and Finance Company Finilon LLC v. The Russian Federation (PCA Case No. 2015-21, UNCITRAL Arbitration Rules, Russia–Ukraine BIT of 27 November 1998) issued its Partial Award. The award is public. So is a fact that changed the character of the evidence in that arbitration: the Russian Federation declined to take part, and the Permanent Court of Arbitration said so in a press release while the proceedings went on without it.

I acted as expert on Ukrainian law in that case.

Take away the other side and you take away the familiar shape of expert work. There is no rebuttal report to answer, no opposing counsel steering you into a corner. The questions come from the panel instead, and they tend to be the ones you hoped nobody would ask — not “what does the article say”, but “is that reading disputed in Ukraine, and by whom”.

That is the version of the exercise worth writing about, because it strips the work down to what it actually is: putting a foreign legal system on the record in a form a tribunal can rely on.

No arbitral tribunal and no foreign judge can apply Ukrainian law ex officio. Somebody has to prove it, and expert evidence on Ukrainian law is how that is done.

In an English court that means evidence of fact under CPR Part 35: the duty is owed to the court and not to the party paying, the report carries a statement of truth, and the substance of the instructions is disclosed. Rule 44.1 of the US Federal Rules of Civil Procedure takes the opposite theoretical route — foreign law is a question of law — yet the proof still arrives as a declaration and, often enough, a deposition. Under the IBA Rules on the Taking of Evidence (Articles 5–6) a tribunal may order a second round of reports, put both experts in the room at once, or appoint an expert of its own.

The difference is not stylistic. A CPR 35 report is written for a judge who will read it alone, in silence, and hold the author to every sentence. An arbitration report is written knowing a second expert will go through it line by line looking for the overstatement. Same law, different discipline.

Ukraine’s Law on International Commercial Arbitration (1994) reproduces the UNCITRAL Model Law on written communications almost word for word. A communication is deemed received if delivered personally or at the addressee’s place of business, habitual residence or mailing address; if none can be found after reasonable inquiry, it is deemed received if sent to the last known address by registered letter or any other means providing a record of the attempt to deliver.

Three notions carry the weight there: last known place of business, reasonable inquiry, attempt to deliver. Nothing about who signs for the envelope.

Then came the Supreme Court in Altum Air, Inc. v. WindRose Airline (case No. 761/17236/17, 9 October 2019). The respondent had been served both by DHL and by registered mail of the Ukrainian postal service. The court set a new standard: an arbitral body must serve the respondent not only at its registered address but also at the seat of management, if the two differ; notification counts as duly made only if it is received by a person authorised in writing — by power of attorney or an internal resolution — to accept postal items; where a courier delivers, the person taking the envelope must sign and give their full name and passport or other identity details; and a courier’s own delivery statement is not treated as proof.

We consider that the court erred. It replaced “notification” with “summons” — two concepts Ukrainian procedural law deliberately treats differently. The result is a standard stricter than the one Ukraine’s own Commercial Procedural Code applies to domestic service, and it now reaches any communication addressed to a legal person, in local litigation as much as in international arbitration. It also hands a respondent a workable technique for never receiving anything it would rather not receive.

For enforcement the stakes are plain. Article V(1)(b) of the New York Convention says nothing about the form of notice, and the UNCITRAL Secretariat’s Guide records that courts have generally not been prescriptive about who received it: arguments that the recipient was not a legal representative or authorised agent have mostly failed. Ukraine has moved the other way — and the ruling reaches awards rendered years before it appeared.

The practical lesson lands before the dispute, not after. The service file is built while the arbitration is running, by whoever is running it. Reconstructing it in front of an enforcement court is a different and much worse exercise. A fuller version of this analysis was published in the newsletter of the IBA Arbitration Committee in March 2020.

Four habits separate a report a tribunal can lean on from one it has to check:

• Cite the instrument by title, number and date, and give the wording in force at the relevant time. Ukrainian statutes are amended often; “the Civil Code provides” is not a citation.
• Separate what is settled from what is not. Where the Supreme Court has gone two ways, show both lines and say which one currently prevails.
• Answer the question the instructing party would rather you left alone. It will be asked at the hearing anyway, and by then the answer will be someone else’s.
• Footnote the primary source, not the commentary that summarises it.

Oral evidence on foreign law rarely turns on eloquence. It turns on whether the expert can say “that is contested, and here is why” without either hedging everything or defending a position past the point the sources support.

Where the other side has not appeared, the panel does that testing itself — and a tribunal that has read the file closely asks better questions than most cross-examiners.

Instruct early. The questions a tribunal ends up asking are usually visible in the pleadings months before the report is due.

Send the instrument itself — the resolution, the notice, the courier receipt — rather than a description of it. Half of the Ukrainian law issues in cross-border matters are decided by what a document actually says in Ukrainian.

Ask for the negative as well as the positive. A report that only supports one side reads as advocacy and is discounted accordingly.

And check who signs it. Under most rules the expert, not the firm, carries the report — and it is the expert’s name that appears in the award. On what to verify before the instruction letter goes out, see what surprises foreign counsel about Ukrainian law experts.

Written by Anna Tsirat, Doctor of Laws, partner at JVS Law (Jurvneshservice). She acted as expert on Ukrainian law in PJSC CB PrivatBank and Finance Company Finilon LLC v. The Russian Federation (PCA Case No. 2015-21) and has acted as an expert before the High Court of Justice in London and courts in the United States, Switzerland, Austria and the Netherlands.

The Supreme Court ruling discussed here is case No. 761/17236/17 of 9 October 2019; a fuller analysis appeared in the newsletter of the IBA Arbitration Committee in March 2020. Ukrainian procedural law and Supreme Court practice continue to change — verify the current position before relying on this note.