The court as a legal institution is intended to secure human rights, freedoms and legitimate interests, create the necessary guarantees for the exercise thereof and develop the effective mechanism for their protection in case of violation. Administration of justice is the main instrument to achieve the mentioned objectives. The European Court of Human Rights repeatedly stated that the enforcement of judgement delivered by any court should be considered as an integral part of the "litigation" for the implementation of Article 6 of the European Convention on Human Rights providing for the enforcement of judgements, which cannot remain unenforced. The answer to the question of the completion of dispensed justice for a person or organization of justice mainly depends on the effective judgements enforcement system, and, if the issue concerns foreign judgements, on the recognition of such judgements in a certain state.
The foreign judgements and international commercial arbitration awards may be recognized and enforced in the territory of Ukraine on two grounds: such recognition and enforcement are provided for by the international treaty, the consent to the binding nature of which is granted by the Verkhovna Rada of Ukraine, or under the principle of reciprocity.
The recognition of the foreign judgement means that the foreign judgement is valid within the territory of Ukraine in the manner prescribed by law.
The enforcement of the foreign judgement means its implementation by means of measures of state coercion taken against the debtor in enforcement proceedings. The UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) is the basis of the international legal regulation of recognition and enforcement of arbitral awards in Ukraine.
Ukraine, as a party to the New York Convention, has assumed the obligation to recognize arbitral awards as binding and to enforce them in accordance with its national standards, which should not contradict this Convention.
However, it will not be sufficient to be guided solely by the provisions of the New York Convention when requesting a Ukrainian court for enforcement of a foreign judgement, since the Ukrainian procedural legislation contains broader requirements in certain aspects.
The Convention provides for that a party, when requesting for recognition and enforcement, should submit:
- the duly authenticated original award or a duly certified copy thereof;
- the original arbitration agreement (arbitral clause) or a duly certified copy thereof.
While the Civil Procedure Code of Ukraine contains a wide list of documents to be provided to the court:
- a copy of the foreign judgement certified in the prescribed manner, compulsory enforcement of which is requested;
- an official document stating that the foreign judgement has entered into legal force (if this is not indicated in the judgement);
- a document certifying that the party against whom the foreign judgement has been rendered and who did not participate in the proceedings was duly notified of the date, time and place of the hearing;
- a document determining to what extent or how long the foreign judgement is subject to enforcement (if it has already been enforced before);
- a document certifying the representative's authority (if the request is filed by the representative);
- the translation of the listed documents certified in accordance with the legislation in Ukrainian or in the language provided for by the international treaties of Ukraine.
Moreover, both the Convention and national legislation establish the following requirements for the content of the request for enforcement of the foreign judgement:
- the name of the person filing the request, indication of his/her place of residence (stay) or location;
- the name of the debtor, indication of his/her place of residence (stay), location of such debtor or location of his/her property in Ukraine;
- the reasons for filing the request.
Such extension of the list by national legislation can formally seem to be the violation of the requirements of the Convention, given the exclusivity of the list of documents attached to the request for enforcement of the foreign judgement. Moreover, the Convention provides for that each Contracting State shall recognize and enforce arbitral awards in accordance with the rules of procedure of the territory where the recognition and enforcement of such awards is requested, under the conditions laid down in the articles of the Convention. Therefore, the additional requirements established by national legislation, without denying the Convention, can be hardly called as a violation of the requirements of the Convention.
It is necessary to put a special emphasis on the requirement to provide, together with the request, a document certifying that the party against whom the foreign judgement has been rendered and who did not participate in the proceedings was duly notified of the date, time and place of the hearing.
The requirement together with a petition to submit a document certifying that the party against whom the foreign judgement was made and which did not take part in the proceeding but was duly notified of the date, time and place of proceeding should be separately noted.
It is obvious that the adequacy of the notice of the date, time and place of the hearing will be assessed by the Ukrainian court in view of the requirements for such notice under the law of the country where the judgement was rendered. Therefore, a creditor who intends to enforce the judgement in Ukraine, or at least deals with a Ukrainian counterparty is advised to prepare such a document in advance.
If the request is duly executed and filed with all of the documents listed above, the court shall inform the debtor within five days upon receipt of such request and provide the latter 1 month to file the objection. After receiving the objection or refusal to file the objection from the debtor, or after a month, in the event of the debtor's silence, the court shall rule on the date, time and place of consideration of the request, of which the parties are notified no later than ten days before the date of consideration.
Following consideration of the request in open court session, the court shall rule on granting permission to enforce the foreign judgement or on refusal to grant the request in this regard.
The procedure apparently is simple enough and it should not take more than two months. However, as practice shows, there are many ways to "delay" the process.
The party may request for postponement of consideration of a request for enforcement of foreign judgement by a court. Moreover, the law does not contain restrictions on the allowable number of postponements of consideration, which may create an opportunity of procedural abuse in the form of delaying the process.
The analysis of the practice shows that the average period from filing the request for consideration to the delivery of a judgement by the competent court in fact amounts to six months.
The delay in the actual enforcement of the judgement for the significant period may be used by an unscrupulous debtor in order to withdraw assets or otherwise avoid payment of debt, which actually makes it impossible to grant the creditor's claims which have been already recognized by court.
In order to ensure protection against such potential violations of the creditor's rights, the law provides for the possibility of applying interim remedy within the proceedings for the recognition and enforcement of foreign judgements and international arbitration awards. The interim remedy is a temporary restriction on the subjective rights, freedoms and interests of the defendant or other persons associated with him/her in order to ensure subsequent administration of justice and granting of the plaintiff's (applicant's) claims.
The use of such an instrument is possible both before requesting the court for enforcement of the foreign judgement and at any stage of the proceedings.
When resolving the issue of securing the claim, the court takes into account whether the potential threat of non-enforcement of the judgement is proven, as well as the balance of interests of the parties and other participants in the trial considering the principle of proportionality. The proportionality means that a court correlates the negative consequences of taking measures to secure a claim with those negative consequences that may result from the failure to take such measures, taking into account the correspondence of right or legitimate interest for which the applicant seeks protection, and the pecuniary consequences of the prohibition to take the certain actions.
Therefore, the applicant should justify the clear reasons and the urgent need to secure a claim, prove that the risks of events or the debtor's actions, which may complicate or prevent the enforcement of the judicial act, are serious and real in the application for security.
The applicant should also pay attention to the grounds for refusal to grant a request for enforcement of the foreign judgement, including the fact that a judgement did not enter into legal force, unduly notice of the other party about the litigation, violation of the criterion of exclusive competence of the Ukrainian judicial system, a decision of the Ukrainian court on a similar dispute between the same parties, missing the deadline for filing a request for enforcement of a foreign judgement, threat to the interests of Ukraine.
The non-exhaustive list of grounds for refusing to grant a request for granting permission to enforce a foreign judgement may be the problematic aspect for a foreign applicant. However, although the list is not exhaustive, it is stipulated that such ground should be enshrined in the law of Ukraine, i.e. it should not be left to the court's discretion, and therefore it is not arbitrary.
Pursuant to a foreign judgement and a final ruling on granting permission to enforce such judgement, the court issues a writ of execution to be enforced. Subsequently, the state enforcement service or private bailiff (at the applicant's discretion) directly enforces the judgement, which is the final stage of the procedure for recognition and enforcement of foreign judgements.
It follows from the above that the legal climate, in particular in recognition and enforcement of foreign judgements, improves every year, and the case-law shows a constant increase in the number of requests for enforcement of a foreign judgement considered by Ukrainian courts. At the same time, the support of a specialist having expertise in Ukrainian law and the practice of applying to Ukrainian courts is the key prerequisite for a positive outcome. Although it is still premature to state that there are no problematic or ambiguous aspects of the legal regulation of recognition and enforcement of foreign judgements in Ukraine, it is safe to say that the dynamics in development of the judicial practice and reform of the law regarding protection of the interests of participants in proceedings related to enforcement of foreign judgements in Ukraine is positive.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.