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Litigation and enforcement in Ukraine: overview
Author: Oksana Legka
Source: Practical Law Thomson Reuters, 1 April 2021
A Q&A guide to dispute resolution law in Ukraine.
The country-specific Q&A gives a structured overview of the key practical issues concerning dispute resolution in this jurisdiction, including court procedures; fees and funding; interim remedies (including attachment orders); disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any reform proposals.

Main dispute resolution methods

1. What are the main dispute resolution methods used in your jurisdiction to resolve large commercial disputes?
Traditional court litigation remains the most common method used to resolve business-related disputes in Ukraine. Arbitration is a typical out-of-court method but is used less frequently than traditional litigation (see Question 30 to 34). Mediation is rarely used as an alternative to court proceedings or arbitration.
Ukrainian court proceedings are broadly inquisitorial, although there is a clear trend towards a more adversarial approach. The courts consider disputes based on lawsuits filed by claimants, within the scope of the remedies sought and based on evidence provided by participants to the proceedings. The judges give directions on the management of the case taking into account the specificities and scope of the disputed matter, the amount claimed, the time and costs required for performance of certain legal procedures, and so on. All parties have the same procedural rights and each party must prove the facts on which it relies. Judges evaluate evidence based on their own conviction, with no evidence having a pre-determined weight.

Court litigation

Limitation periods

2. What limitation periods apply to bringing a claim and what triggers a limitation period?
Ukrainian law distinguishes between the:
  • General limitation period, which is three years and applies equally to contractual and non-contractual claims, and to both companies and individuals.
  • Specific (reduced or extended) limitation periods, which are expressly determined by law for certain types of claims.
Parties to a contract can extend the limitation period established by law but cannot reduce it.
In commercial cases, limitation periods are regarded as a matter of substantive law. This approach is illustrated by the prohibition on the courts to apply or extent limitation periods on their own initiative. The expiry of the limitation period does not preclude the claimant from bringing a claim. However, the respondent can request the court to terminate the proceedings if the claim is time barred, and the court will be obliged to do so unless it finds that the claimant had a compelling reason to miss the limitation period.
The limitation period starts running from the date when the aggrieved party found out, or could have found out, about a violation of its right or a person violating such right. There is no statutory test to determine when a legal entity "found out or could have found out" about a violation of its rights. In practice, the courts examine the factual circumstances of each case to determine the event triggering a limitation period. Specific rules include the following:
  • For obligations with a defined performance period, the limitation period starts running from the expiration of the performance period.
  • If there is no precise performance period or the obligation is to be performed on demand, the limitation period starts running when the right to request performance arises.
  • For claims relating to the consequences of a void agreement, the limitation period starts running on the date when performance started.

Court structure

3. In which court are large commercial disputes usually brought? Are certain types of disputes allocated to particular divisions of this court?
The judicial system is built on the principle of specialisation for the consideration of civil, criminal, commercial and administrative cases and administrative offences. The judiciary is administered by a system of courts encompassing the courts of general jurisdiction (administering civil law cases and cases regarding administrative offences), commercial courts and administrative courts. The Constitutional Court of Ukraine has exclusive jurisdiction to decide on the constitutionally of laws and officially interpret the Constitution of Ukraine. However, the Constitutional Court is not part of the national judicial system.
Specialised commercial courts have jurisdiction over disputes between business entities, as well as over disputes relating to bankruptcy, anti-monopoly, corporate matters and securities. In practice, the commercial courts most often deal with disputes concerning sale contracts, loan contracts, property, bankruptcy, and insurance matters. The commercial courts apply the rules of the Commercial Procedure Code of Ukraine.
The judicial system encompasses:
  • Local courts.
  • Appellate courts.
  • High specialised courts (such as the High Court of Intellectual Property and the High Anti-Corruption Court).
  • The Supreme Court (which acts as a court of cassation).
The High Court of Intellectual Property acts as a first instance court and appellate court for some categories of cases. The Supreme Court consists of the Supreme Court Grand Chamber, the Administrative Court of Cassation, the Commercial Court of Cassation, the Criminal Court of Cassation, and the Civil Court of Cassation. The Commercial Court of Cassation is composed of chambers specifically designated for the consideration of particular categories of commercial disputes (that is, disputes relating to bankruptcy, the protection of intellectual property rights, anti-monopoly and competition matters, corporate matters, and corporate rights and securities).
There are no specific divisions in local and appellate courts. Before the local courts, cases are usually heard by a single judge. Complex cases can be allocated to a panel of three judges. The appellate courts and cassation courts hear cases in panels of at least three professional judges.
The answers to the following questions relate to procedures that apply in the commercial courts, which are set out in the Commercial Procedure Code of Ukraine.

Rights of audience

4. Which types of lawyers have rights of audience to conduct cases in courts where large commercial disputes are usually brought? What requirements must they meet? Can foreign lawyers conduct cases in these courts?

Rights of audience/requirements

Litigants, whether individuals or legal entities, can present their own case in court proceedings or engage a representative to act on their behalf. Only attorneys admitted to the Ukrainian Bar can conduct cases before the courts and represent parties in court proceedings.

Foreign lawyers

Foreign lawyers must be admitted to the Ukrainian Bar to conduct cases in the Ukrainian courts. To be admitted to the Ukrainian Bar, a foreign lawyer must be certified to practise law before the courts of their country.

Fees and funding

5. What legal fee structures can be used? Are fees fixed by law?
A client and an attorney (or law firm) are free to agree on the amount and structure of legal fees. Remuneration for legal services is commonly based on hourly fees or capped sums. While Ukrainian courts sometimes held that contingency fee agreements were invalid (in line with the Supreme Court 2018 decision), lawyers have continued using contingency/conditional fees (alone or in combination with hourly fees or caps). In May 2020, the Grand Chamber of the Supreme Court ruled that contingency/conditional fees can be used and comply with Ukrainian law.
6. How is litigation usually funded? Can third parties fund it? Is insurance available for litigation costs?

Funding

Litigation is normally funded by the parties.
Ukrainian law does not regulate third-party funding, although there is no prohibition on third parties financing litigation. The High Commercial Court of Ukraine has held that a court cannot reject a claim or appeal on the ground that an external person paid the court fee on behalf of the claimant or appellant. Litigation funding is uncommon in Ukraine for various reasons, including the lack of legal mechanisms allowing investors to ensure and enforce (if necessary) payment by a losing party.

Insurance

Insurance for litigation costs is available. This type of insurance compensates losses sustained as a result of litigation-related costs that a party could not anticipate.

Court proceedings

Confidentiality

7. Are court proceedings confidential or public? If public, are the proceedings or any information kept confidential in certain circumstances?
Court hearings are held in public, so that any person can attend a hearing. On application of a party, the court can arrange for proceedings to be kept confidential in full or in part based on the:
  • Risk of disclosure of confidential or other privileged information.
  • Need to protect an individual's private life.

Pre-action conduct

8. Does the court impose any rules on the parties in relation to pre-action conduct? If yes, are there penalties for failing to comply?
The Constitution of Ukraine generally states that mandatory rules relating to pre-action conduct can be established by law. No such rules have been adopted to date.
Therefore, the parties can use pre-trial dispute settlement procedures based on an agreement or a legal right to do so. For example, a company that seeks to hold a counterparty liable has a statutory right to send a letter of claims to the wrongdoer to launch a pre-action settlement procedure. The parties will go to court if they cannot settle their dispute through negotiations.
The Constitutional Court of Ukraine held that the right to go to court cannot be made conditional on the use of pre-trial dispute settlement procedures. The Ukrainian courts unanimously agree that the use of pre-trial settlement proceedings (even if envisaged by a contract) amounts to a right, not an obligation. Therefore, a claimant can bring an action directly before a court and has no obligation to conduct pre-trial negotiations, even if the parties have previously agreed to resolve their disputes through other means before bringing a claim to court.

Main stages

9. What are the main stages of typical court proceedings?

Starting proceedings

Litigation starts by filing a statement of claim with a first instance court. A single judge is appointed to consider how to proceed with the claim. The judge must order the commencement of proceedings within five days after receipt of the statement of claim, unless there are reasons to:
  • Defer acceptance of the claim. The court can provisionally defer acceptance of the claim if the statement of claim does not comply with the statutory form and content requirements. The claimant has ten days to rectify the defects, otherwise the claim will be returned to the claimant. If the defects are rectified, the statement of claim is considered as filed on its initial date of receipt by the court.
  • Return the claim to the claimant. The court will return the claim to the claimant if its signatory lacks authority or no confirmation of payment of court fees is provided. The claim can be filed again with the court on rectification of such defects.
  • Deny commencement of proceedings. The court will deny commencement of proceedings if, for example, it has no jurisdiction over the dispute, a final judgment or arbitral award has been issued regarding an identical dispute, the defendant was liquidated, and so on.
A claim can be filed online on obtaining electronic authorisation (electronic signature). The claimant can choose whether to file a claim via post, at the chancellery of the relevant local court or online.

Notice to the defendant and defence

Before lodging a statement of claim with the court, the claimant must serve a copy on the defendant. The claimant must enclose a confirmation of service in its statement of claim, otherwise the court can defer acceptance of the claim and return it to the claimant.
The court will serve a court order on participants to the proceedings, notifying them of the causes of action, details of the preliminary hearing or first hearing on the merits, and timeline for submitting the defence. The defendant is not obliged to file a defence. If the defendant does file a defence, it must forward a copy of it to the claimant. The defendant can bring a counterclaim within the timeline for providing the defence. A counterclaim is adjudicated together with the initial claim.

Subsequent stages

The court must hold a preliminary hearing within 60 days after the start of proceedings. At this hearing, the judge resolves various organisational issues (for example, involvement of other persons in the proceedings, consolidation of claims, acceptance of a counterclaim, checking completeness of evidence referred to in the claim and defence, granting injunctive relief, ordering expert evidence, and summoning witnesses) and schedules the date of the first hearing on the merits. The preliminary hearing can also lead to dismissal of the claim without consideration or termination of the proceedings (similar to strike-out of claim) (see Question 10).
The subsequent stages are as follows:
  • The parties make introductory pleadings outlining their core arguments.
  • The court establishes the facts of the dispute through the inspection of documents, cross-examination of witnesses and review of other evidence provided by the parties.
  • The parties make their full pleadings (stage of debates).
  • The judge (or a panel of judges) hands down a judgment.

Interim remedies

10. What steps can a party take for a case to be dismissed before a full trial? On what grounds can such applications be brought? What is the applicable procedure?
The defendant can initiate a procedure similar to an application for strike out of claim at a preliminary hearing or at any time during the proceedings if it proves any of the following:
  • The dispute cannot be adjudicated in commercial proceedings.
  • There is no cause of action.
  • The court should have refused to start proceedings (for example, there is an effective arbitral award in place between the same parties over an identical dispute).
  • The defendant was liquidated and has no legal successors.
  • The parties have already entered into a settlement agreement approved by the court.
The defendant can petition the court to dismiss a claim without consideration if any of the following apply:
  • The claim was filed by a person with no legal capacity.
  • The statement of claim was signed and lodged by an unauthorised person.
  • Another court is considering an identical dispute between the same parties.
  • The claimant failed to provide the evidence requested by the court with no valid reason.
  • The claimant failed to appear before the court.
  • The parties agreed to refer the dispute to arbitration.
  • The parties entered into an agreement to refer the dispute to a foreign court.
  • The claimant failed to secure the fees for consideration of its claim.
The court can also dismiss a claim without consideration or strike out a claim on its own initiative if it considers that any of the above grounds are satisfied.
There is no procedure for summary judgment under Ukrainian law.
11. Can a defendant apply for an order for the claimant to provide security for its costs? If yes, on what grounds?
The defendant can apply for an order for the claimant to provide security for the remuneration of the defendant's attorney and other costs arising from the proceedings. The court will grant the application if the defendant shows any of the following:
  • The claim is frivolous and vexatious, or there are signs that the claim is an abuse of the claimant's right of recourse to the courts.
  • The claimant resides or is incorporated outside Ukraine or the claimant's assets located in Ukraine are not sufficient to cover the defendant's costs.
  • Enforcement of the costs order will be impaired due to the claimant's poor financial condition or actions aimed at the alienation of its assets.
12. What are the rules concerning interim injunctions granted before a full trial?

Availability and grounds

The court can grant interim injunctions on application of the claimant, defendant or a third party at any time before and during the proceedings. The application must contain evidence of the facts on which the applicant relies. An injunction is granted if the applicant shows the court that the enforcement of the final judgment would be impaired or impossible without interim relief. When considering whether to grant an injunction, the High Commercial Court of Ukraine has held that judges must consider whether:
  • The application for the injunction is reasonable, justifiable and fair.
  • The balance of convenience favours granting the injunction.
  • Granting the injunction would ensure enforcement of the judgment on the merits if the claim was allowed.
  • The injunction does not affect anyone apart from the applicant or defendant.
The judge can grant several interim injunctions in conjunction. An interim injunction cannot amount to final relief in a dispute.
The court can require the applicant for an injunction/interim order to give a cross-undertaking to protect the defendant or any other person against any damage that they may sustain as a result of the injunction. The applicant will be required to deposit funds on the court's account to fortify the undertaking. In certain cases, the applicant can provide a bank guarantee in lieu of the fortification payment. The injunction order will be discharged if the applicant fails to fortify the cross-undertaking within ten days of the order.

Prior notice/same-day

Injunction applications are made without notice to the defendant. Judges generally deal with applications without summoning the parties, although they can arrange for a hearing to be attended by the applicant and parties to be bound by the injunction (for example, if evidence accompanying the application is not sufficient to decide whether to grant the injunction).
Urgent injunctions are not specifically regulated. In principle, the judge can grant an injunction on the day of receipt of an application, provided that the applicant shows valid reasons for this.

Mandatory injunctions

The court cannot order a party to positively take certain actions. This type of interim injunction was abolished by amendments to the Commercial Procedure Code adopted in 2020. In practice, prohibitory injunctions ordering a party to refrain from taking certain actions are rather common.

Right to vary or discharge order and appeals

An injunction can be varied through substituting one type of injunctive relief (such as an attachment) with another type of injunctive relief (such as a prohibitory injunction). The court can set aside an injunction on its own initiative or on a substantiated application of a party to the proceedings. Parties to the proceedings, as well as non-parties, can appeal injunction orders if the court has decided on their rights, freedoms, interests or obligations. An appeal must be filed within ten days after the grant of the injunction order or its receipt by the appellant (if the appellant was not served with the order at the hearing). An appeal against an injunction order does not suspend the execution of the order.
13. What are the rules relating to interim attachment orders to preserve assets pending judgment or a final order (or equivalent)?

Availability and grounds

An applicant for an interim attachment (freezing) order must satisfy the court that there is a risk of dissipation of the respondent's assets. The application must be supported by evidence showing the likelihood of dissipation (for example, alienation of assets or threat that such alienation will occur, transfer of funds despite outstanding debts towards the claimant, or conclusion of mortgage or pledge agreements). The mere allegation that the defendant will resist execution of the final judgment does not justify issuing an attachment order. Interim attachment orders are usually granted before the commencement of substantive proceedings.
The court can require the applicant for an attachment order to give a cross-undertaking to protect the defendant or any other person against any damage that they may sustain as a result of the order (see Question 12, Availability and grounds).

Prior notice/same-day

Interim attachment orders are granted ex parte (see Question 12, Prior notice/same-day).

Main proceedings

There is no legal mechanism to grant interim relief in support of proceedings that have been or are about to be commenced in a foreign court.

Preferential right or lien

Attachment does not create any preferential right or lien over the seized assets. The attachment order is registered as a public encumbrance in accordance with the Law of Ukraine on Securing of Creditors' Claims and Registration of Liens. A registered encumbrance enjoys priority over unregistered encumbrances. The priority of registered encumbrances is further determined by the order in which they were registered. These rules equally apply to encumbrances registered under interim attachment orders.

Damages as a result

The claimant must compensate the defendant and any other person who suffered loss as a result of the attachment if the claimant is ultimately unsuccessful in its claim. Compensation comes primarily from the cross-undertaking given by the claimant.

Security

If the court considers that an undertaking should be fortified, the applicant has ten days to provide security (for example, through a fortification payment to the court, a bank guarantee or other financial security, or any other action the court deems appropriate to remove risks of potential losses to the defendant). See Question 12, Availability and grounds for further details.
14. Are any other interim remedies commonly available and obtained?
The most common forms of interim relief are:
  • Restrictions on the disposal of assets owned by the defendant (freezing orders) (see Question 13).
  • Prohibitions to take certain actions imposed on the defendant or other persons (prohibitory injunctions) (see Question 12).
The courts can only order interim remedies that are explicitly envisaged by law.

Final remedies

15. What remedies are available at the full trial stage? Are damages only compensatory or can they also be punitive?
The claimant can seek the following remedies:
  • Recognition of a right or lack of it.
  • Recognition of a transaction as invalid.
  • Termination of an action violating a right or posing a threat to a right.
  • Restitution and reinstatement of the status quo ante that existed before an infringement of the rights and legitimate interests of a person.
  • Specific performance.
  • Alteration or termination of legal relationships.
  • Indemnification for losses and moral (non-pecuniary) damages, and imposition of penalties.
  • Recognition of the invalidity of a decision, act or omission of a governmental entity, municipal entity, another entity or their officers, that contravenes the law or impairs a person's rights and legitimate interests.
The court can apply other remedies to protect a right or interest.
To hold a person liable for damages, four elements must be shown:
  • Existence of damages and their amount.
  • Misconduct (breach).
  • Direct causal link between the misconduct and damages.
  • Fault in causing damages.
Ukrainian law distinguishes between two types of damages:
  • Actual damages, that is, losses sustained by a person in connection with the destruction or damage to an object, as well as expenses that a person has incurred or must incur to restore its breached right.
  • Lost profit, that is, income that a person would have received under normal circumstances if its right had not been breached.
The aggrieved party must always prove the existence and amount of damages that it claims. The fault of the defaulting party is presumed until that party rebuts the presumption.
Damages are compensatory in nature. Punitive damages are not recognised under Ukrainian law.

Evidence

Document disclosure

16. What documents must the parties disclose to the other parties and/or the court? Are there any detailed rules governing this procedure?
A party must disclose the documents on which it relies. There is no obligation to disclose documents that adversely affect a party's own case or support the other party's case. Documents are disclosed by submitting originals or copies to the court and every other party. A party cannot rely on a document that it failed to disclose simultaneously with lodging its claim, defence or pleadings. A party that cannot disclose certain documents (for example, because it does not possess them) must notify the court immediately, stating the reasons for this and giving confirmation that a search has been made to locate the documents.
There is no statutory obligation to provide documents in electronic form. However, a party can submit evidence in electronic form (including together with other evidence in paper form).
A party can seek a court order compelling a person possessing documents to disclose them. The court cannot begin this process on its own initiative, except if it has doubts as to the parties' good faith.

Privileged documents

17. Are any documents privileged? If privilege is not recognised, are there any other rules allowing a party not to disclose a document?

Privileged documents

Under the Law of Ukraine on the Bar and Practice of Law, issues raised by clients, advice given and other information obtained by an attorney during their professional activities are subject to attorney-client privilege. Attorneys, their assistants and officers of an attorney's firm cannot disclose information subject to attorney-client privilege. These persons, as well as technical staff of an attorney's firm, cannot be interrogated on matters covered by attorney-client privilege. The Rules of Ethics also provide for the confidentiality of client information and any other information obtained from clients, except when such information is given by an attorney acting as a witness (unless it is privileged).
Attorney-client privilege does not extend to information in the possession of third parties, including clients. The rights and obligations arising from attorney-client privilege do not apply to:
  • In-house lawyers.
  • Lawyers who are not admitted to the Bar.
  • Law firms that are not in the form of an attorneys' partnership.
  • Foreign lawyers (unless they are admitted to the Ukrainian Bar).
Ukrainian law does not recognise the "without prejudice" principle.

Other non-disclosure situations

Ukrainian law protects the secrecy of:
  • Information on an individual's medical condition.
  • Information stored by notaries.
  • Confidential information, including commercial secrets.
  • Information protected by bank secrecy laws.
  • Personal communications and notes.
  • Information acquired by telecommunications operators on subscribers' communications and other details on telecommunications services.
  • Personal data.
  • State secrets.
On application of a party, the court can order disclosure of information falling under the above categories in light of the specific circumstances of the case.

Examination of witnesses

18. Do witnesses of fact give oral evidence or do they only submit written evidence? Is there a right to cross-examine witnesses of fact?

Oral evidence

Witnesses give evidence in the form of written witness statements. The court can call a witness to give oral evidence at trial if the facts outlined in the witness statement contradict other evidence or there are doubts as to the credibility of the statements. If a witness fails to appear in court with no valid reason, the court will not attach any weight to their witness statement. The use of witness evidence in commercial proceedings was introduced by a judicial reform that took effect in December 2017 and remains largely untested in practice.
Ukrainian law does not attribute different weight to written and oral evidence. The court assesses each item of evidence separately and independently.

Right to cross-examine

A witness can be called at trial to be cross-examined on the contents of their witness statement by the judge or on the application of any party.

Third party experts

19. What are the rules in relation to third-party experts?

Appointment procedure

The court can, on its own initiative or on the application of a party, appoint an expert to prepare evidence for the purposes of the proceedings. The court selects an expert from among nominees suggested by the parties and appoints the expert on which they agree. The order appointing the expert sets out the questions that the expert should address, which can be proposed by the parties subject to final approval by the court.
An expert can also be appointed by a party. A party engaging an expert independently has full discretion on whether to submit the expert report to the court. The court will not rely on the evidence of a party-appointed expert if the other party succeeds in challenging the expert (for example, on the ground of serious concerns as to the impartiality of the expert).

Role of experts

Both court-appointed and party-appointed experts must provide objective and independent expert evidence. Experts are criminally liable for issuing deliberately misleading reports.
The judge is not bound by an expert's opinion, although they cannot reject evidence contained in an expert report without cause.

Right of reply

The court can call an expert to be cross-examined by the judge and parties to the proceedings. Cross-examination is held at the adjudication stage.

Fees

As a rule, the party that applies for the appointment of an expert or instructs an expert pays the expert's fees and expenses. The court can order a party to deposit in the court's bank account a sum covering the expert's fees. In its final judgment, the court must rule on the allocation of expert fees between the parties. The court can order the losing party to reimburse expert fees borne by the successful party or allocate the sum between the parties.

Appeals

20. What are the rules concerning appeals of first instance judgments in large commercial disputes?

Which courts

The courts of appeal (courts of second instance) review the judgments of local courts that have not become effective. The Supreme Court (court of cassation appeal) reviews the judgments of first instance courts and appellate courts. The appellant submits its statement of appeal directly to the appeal court. No permission is required to bring an appeal.

Grounds for appeal

The grounds for appeal vary depending on each specific case, but an appellant must identify the following in its statement of appeal:
  • Why the judgment of the first instance court is unlawful and/or unsubstantiated (for example, the first instance court failed to establish the facts of the case in full due to procedural irregularities).
  • There are new facts that must be established or new evidence that must be assessed by the court (provided that there are valid reasons why such evidence was not disclosed before the first instance court).
A decision can be appealed to the Supreme Court if a lower court failed to correctly apply substantive law rules or breached procedural law rules and provided that one of the following conditions apply:
  • The appellate court applied the law without taking into consideration decisions of the Supreme Court on the application of this law in similar circumstances.
  • The appellant shows a need to depart from the decisions of the Supreme Court on the application of a particular law in similar circumstances.
  • The Supreme Court has not yet issued a decision on the application of a particular law in similar circumstances.
  • The lower court breached certain specified procedural law rules (for example, the court did not have jurisdiction to hear the case, the judgment was rendered in absence of a party that was not duly notified of the proceedings, the court failed to examine all available evidence, and so on).
The above conditions were introduced in 2020 and significantly limit the grounds for cassation appeal.

Time limit

The appellant must file an appeal against a judgment within 20 days after the day on which the judgment is handed down. An appeal against a court order can be brought within ten days after the day on which the order is pronounced. If the period for appeal has lapsed, the judgment becomes effective.
A cassation appeal can be lodged with the Supreme Court within 20 days after the day of the judgment of a lower court.
These time limits can be extended if a party convinces the appellate court or Supreme Court (as applicable) that the delay was due to a compelling reason.

Class actions

21. Are there any mechanisms available for collective redress or class actions?
Ukrainian procedural law does not expressly provide for class actions.
However, the Law of Ukraine on Consumer Rights Protection authorises consumer associations to bring lawsuits to recognise as illegal and stop the actions of retailers, manufacturers or contractors in relation to an indefinite number of consumers. Judgments issued in these cases must be taken into account by the courts when reviewing the claims of individual consumers seeking damages based on the same illegal actions. These claims are not common in Ukraine.

Costs

22. Does the unsuccessful party have to pay the successful party's costs and how does the court usually calculate any costs award? What factors does the court consider when awarding costs?
The costs that a successful party can recover include court fees and legal fees relating to the adjudication of the dispute. Legal fees include:
  • Attorneys' fees.
  • Witnesses' costs.
  • Translators' and experts' fees.
  • Fees relating to the execution of search orders.
  • Any other expenses to prepare and ensure the effective management of the case.
Attorney's fees must be commensurate with the complexity of the case and the work done and time spent by an attorney as well as the quantum and/or magnitude of the case. If this is not the case, the court can on an application by the other party decrease the amount of awarded fees. The same applies to translators' and experts' fees.
Court fees are allocated between the parties pro rata to their success on the different issues. A successful party will be awarded its legal costs. A party that succeeded in defending some aspects of its case will be awarded a pro rata portion of its costs.
Along with its first petition on the merits of the case, each party must provide an estimate of the costs already incurred and prospective costs, otherwise the court can deny recovery of that party's costs.
When awarding costs, the court considers the following:
  • Whether the costs relate to the adjudication of the matter.
  • Whether the costs are substantiated and commensurate with the complexity of the case, the amount claimed, the importance of the dispute for the parties, including whether the outcome of the case will affect the reputation of a party, as well as the overall magnitude of the case in the public domain.
  • Whether the conduct of a party significantly but unnecessarily extended the duration of the proceedings (for example, through filing vexatious applications or excessive costs estimates).
  • The parties' conduct at the pre-trial stage and in respect of settlement of the dispute.
The court can order full recovery of costs against a party (even successful) if that party abused its procedural rights or if the dispute arose in connection with that party's incorrect and vexatious actions. The court determines the amount of costs to be awarded based on evidence provided by the parties (such as contracts and invoices) before the end of the stage of debates or, if the court allows, within five days after the judgment is rendered.
23. Is interest awarded on costs? If yes, how is it calculated?
Interest cannot be awarded on costs.

Enforcement of a local judgment

24. What are the procedures to enforce a judgment given by the courts in your jurisdiction in the local courts?
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