Foreign Judgements Enforcement
Recognition and enforcement of foreign court judgments in Ukraine
Foreign court judgments handed down against Ukrainian companies or individuals need recognition and enforcement in Ukraine, i.e., they must go through a judicial procedure in a Ukrainian court to obtain its permission to execute them (exeqatur).
A foreign court judgment can be recognized and enforced in Ukraine based on bilateral treaties on legal assistance concluded by Ukraine with other states. These are 30 treaties listed here https://minjust.gov.ua/m/4906),
the Minsk Convention on legal aid and legal relationships in civil, family and criminal matters of 1993, the Kyiv agreement on the procedure for resolving disputes related to the implementation of economic activities of 1992, and some Hague Conventions in the field of family law (for example, The Hague Convention on Law Applicable to Maintenance Obligations of 1973, the European Convention on the Recognition and Enforcement of Decisions concerning Custody of Children and Restoration of Custody of Children of 1980 and others). Therefore, in different cases on recognizing a foreign court judgment in Ukraine, we must apply various international treaties with varying regimes for regulating these issues, and in the absence of such an international agreement – the Code of Civil Procedure of Ukraine.
Jurvneshservice lawyers provide the following services in the judicial procedures of recognition and enforcement of foreign court judgments:
- preparation of a package of documents to initiate a legal process for the recognition and enforcement of a foreign court judgment (exeqatur);
- translation of the documents into Ukrainian, their legalization and submission to a court;
- application for interim measures in respect of debtor’s property;
- draft of objections to debtor’s position against the execution of the foreign court judgment;
- preparation and submission of evidence, statements, and motions in a lawsuit;
- creditor representation at all stages of the proceedings, including in a court of the first instance (local general court at the location of the debtor or its property), the court of appeal (Regional Court of Appeal), the Supreme Court of Ukraine, if necessary;
- preparation of documents to initiate writ execution;
- support of enforcement proceedings, joint work with bailiffs.
Stages of the judicial procedure
Preparation of documents for initiating legal proceedings
First of all, Jurvneshservice attorneys prepare a package of documents to initiate the legal proceedings:
– legalization of the foreign judgment;
– translation of the foreign court judgment and other materials into Ukrainian by the certified translator;
– receipt of a confirmation from the foreign court that the judgment took effect and the debtor was duly served with the court process;
– draft of a pleading on the recognition and enforcement of the foreign court judgments;
– draft and legalization of a power of attorney to represent the creditor in Ukraine’s courts, its due translation into Ukrainian.
This set of documents is submitted to the court at the location of the debtor or its assets. The court serves these materials to the debtor with its obligation to respond within 30 days. The creditor may comment on the debtor’s reply within terms fixed by the court.
Court interim measures
It is advisable to carry out security measures (seizure of the debtor’s assets) to save the debtor’s assets from erosion or concealment to guarantee the foreign judgment’s real enforcement. As foreign creditor is not registered in Ukraine and usually has no assets here, the Ukrainian court may rule on security measures only if the foreign creditor deposits monetary means in an amount defined by the court to cover potential damages of the debtor. The amount of deposit must commensurate with requested security measures and losses of the defendant. The deposit may be substituted with a bank guarantee, surety, or another financial instrument from a person approved by the court that does not doubt its financial capacity.
Debtor's objections against recognition and enforcement of the foreign court judgement. Preparatory court meeting
The law gives the debtor a right to object against the recognition and enforcement of the foreign court judgment. Almost every debtor raises objections as the foreign court judgment is taken against it. The lists of grounds to which the debtor has the right to refer to contained in the bilateral international treaties on legal assistance, multilateral international conventions, as well as in the civil procedural law of Ukraine. The most used grounds are –
1) A debtor did not take part in the foreign court proceeding as he was not duly and in time summoned to the foreign court;
2) if a judgment between the same persons and on the same matter has been already issued on the territory of Ukraine and took effect; or if a corresponding body of Ukraine initiated the proceedings between the same persons and on the same matter earlier;
3) if an issue in which the judgment to be recognized and enforced shall be exclusively decided by the Ukrainian courts.
Debtors usually based their objections on the allegation that they were not duly services and, due to that, failed to present their defense at the court. This allegation may be used due to Ukraine’s declaration to the Hague Convention On The Service Abroad Of Judicial And Extrajudicial Documents In Civil Or Commercial Matters of 1965. Within its ratification, Ukraine has refused to apply Article 10 of the Convention that allows the use of process agent service and couriers. Due notification is made through the Ministry of Justice of Ukraine according to the form found at http://www.hcch.net/upload/act_form14efu.pdf.
Initially, each party to enforcement proceeding presents its arguments and proves at the preparatory meeting that may last for more than one week. Having studied debtor’s objections, Jurvneshservice lawyers raise their objections, aiming to refute the debtor’s grievances against the execution of the foreign judgment and provide a rebuttal to the arguments and evidence of the debtor. Many of the procedural issues of the case, for example, the appointment of an expert on the law, the introduction of interim measures, the involvement of third parties to the case, and many others are resolved at the preparatory meeting.
Court consideration of the case
The consideration of the case begins after completion of the preparatory hearing.
The subject of the proceeding is the debtor’s arguments stated against the recognition and enforcement of the foreign court judgment. Jurvneshservice lawyers provide for competent presentation of the trial evidence and arguments upon which the debtor objections are based. The purpose of the Jurvneshservice position is to prove that there is no ground for refusing enforcement. Jurvneshservice efforts result in a ruling (the form of judgment in cases of such kind) to recognize and enforce the foreign court judgment issued against the debtor.
(A) If the court of the first instance decides to refuse recognition and enforcement of the foreign judgment, its ruling may be appealed to the Court of Appeal. The appeal rebuts the arguments of the first instance court. The Court of Appeal, composed of three judges, examines the appeal in an open court hearing. Jurvneshservice lawyers present the creditor’s position and his arguments, take part in the assessment of the evidence, and the opinion of the first instance court. The Court of Appeal re-examines both parties’ arguments and issues, either provision that approves the first instance court ruling or cancels it. The task that Jurvneshservice lawyers put in such cases is to get the Court of Appeal judgment, which recognizes and enforces the foreign decision in Ukraine.
(B) If the first instance court issues ruling on the recognition and enforcement of the foreign judgment, the debtor can use an appellate review. So, if the debtor challenges the ruling of the first instance court, the task of the Jurvneshservice lawyers is to stand on its defense and to uphold.
The cassation proceedings against the decisions of the first and appeal instances
A cassation appeal to the Supreme Court of Ukraine may be filed against the decisions of the courts of the first and appeal instances both by the debtor and the creditor. In contrast to the appeal, the Supreme Court of Ukraine considers complaints in a simplified manner, i.e., based on the case’s written materials without the participation of the parties and their representatives. In these circumstances, regardless of a person who submitted the cassation complaint, Jurvneshservice attorneys prepare the legal position on all aspects of the court case and submit it to the Supreme Court (case is heard by a panel of 5 judges).
Opening of enforcement proceedings
A writ of execution is issued by the court of the first instance after the entry into force of the Ukrainian court’s decision on recognition and enforcement of the foreign court judgment. It is the basis for the opening of enforcement proceedings by a public or private bailiff.
- submit a request for a writ of execution to the court of the first instance;
- receive the writ and attach it with appropriate documents for initiating enforcement proceedings;
- select a candidature of the bailiff (public or private) and approve him with the creditor;
- accompany the bailiff in all matters of enforcement proceedings.
During the entire period of enforcement proceedings, Jurvneshservice lawyers closely interact with the bailiff. Jurvneshservice lawyers may draft a peaceful agreement if the debtor and the creditor decide on that or appropriate procedural documents if bailiff’s actions are complained by the debtor.
Gennadii Tsirat – Doctor of Law, specializes in the enforcement of arbitral awards in Ukraine. He represented the interests of many foreign companies in the recognition and enforcement of foreign arbitral awards in Ukraine. His last case is the recognition and enforcement of the International Arbitration Center’s arbitration award at the Austrian Federal Chamber of Economics of June 6, 2012, in case No. SCN-5039 in the lawsuit of Norbert Schaller Gesellschaft M.H. to the Public Joint-Stock Company First Investment Bank.