February 2013

Developments in Court Practice

There have been several important developments in the practice of the higher courts of Ukraine released recently.

The Supreme Court of Ukraine having heard the claim seeking the invalidation of an auction concluded that any irregularities committed by the state enforcement officer in the course of the enforcement proceeding and which do not concern the rules of the auction itself may not serve as a ground for the invalidation of the auction. Such breaches of the rules can be appealed under the Law of Ukraine "On the Enforcement Proceeding" (Ruling No.6-140φρ12 of 26 February 2012).

The Supreme Court of Ukraine in cases on the reinstatement concluded that the rule prohibiting dismissal of an employee during his/her absence due to sickness applies only to the termination initiated by the employer. This rule does not apply to the termination on the grounds stipulated in the employment contract. The Court further held that employment contract is a particular form of an employment agreement and as such not subject to the rule invalidating terms and conditions of employment agreements aggravating the situation of employees as compared to the one established by law (Ruling No.6-156φρ12 of 26 December 2012; Ruling No.6-127φρ12 of 23 January 2013).

The Higher Commercial Court of Ukraine Guidance Letter No.01-06/374/2013 of 18 February 2013 "On Court Practice in Resolving Disputes Arising from Contractor Agreement Performance"

Contractor agreement can be created by executing a handover and acceptance certificate

Execution of handover and acceptance certificate for the work performed is evidence that a contractor agreement in simplified form has been concluded, and contractual obligations arise from such an agreement. The Court highlights that under the Commercial Code of Ukraine contracts can be concluded in simplified form through exchange of letters, faxes, telegrams, telephoned telegrams, etc. as well as by way of accepting an order (Ruling No.21/5005/14068/2012 of 11 May 2012).

In case of repudiation of contractor agreement on the part of the customer under the Commercial Code of Ukraine there exist no grounds for its cancellation in a judicial proceeding

A customer may at any time prior to the completion of works unilaterally repudiate a contractor agreement after the payment to the contractor for the completed part of works and reimbursement of all the damages incurred due to repudiation. If the law or contract allow such reputation and this right is exercised, the contract is considered terminated and there are no grounds for terminating such a contract in judicial proceedings (Ruling No.5010/1495/2011-18/65 of 23 May 2012).

The Higher Commercial Court of Ukraine Guidance Letter No.01-06/1731/2012 of 28 November 2012 "On Certain Issues Arising in Application of Advertising Legislation"

Distribution of unreliable information regarding the experience in rendering particular services constitutes unfair advertising

The advertisement of the defendant clinic containing information regarding experience in medical treatment, safe ultrasonic diagnosis and experience of doctors in performing various procedures was held to constitute unfair advertising as there was no evidence to support such statements. Such actions, in Court's opinion, were aimed at drawing a large number of clients in need of such services. Therefore the right of the plaintiff to a fair competitive environment was violated (Ruling No.4/73 of 5 April 2011).

For further information please contact managing partner Oleksiy Didkovskiy
and senior associate Andriy Pozhidayev

© Asters 2013
Web-site  |  Contacts