Reproduced with permission from Law Business Research. This article was first published in Getting the Deal Through -Private Antitrust Litigation 2011, (published in October 2010; contributing editor Samantha Mobley)
Legislation and jurisdiction
1. How would you summarise the development of private antitrust litigation?
The number of private antitrust litigation cases is growing gradually and the relevant jurisprudence is in the process of formation. As the respective legislative basis improves, private antitrust litigation is expected to gain significant practical importance in the near future.
2. Are private antitrust actions mandated by statute? If not, on what basis are they possible?
Private antitrust actions are mandated by statute.
3. If based on statute, what is the relevant legislation and which are the relevant courts and tribunals?
The following main material acts shall be applicable in private antitrust actions:
- the Civil Code of Ukraine;
- the Commercial Code of Ukraine;
- the Act on Protection of Economic Competition;
- the Act on Protection from Unfair Competition.
As private antitrust cases generally fall within the jurisdiction of commercial courts, the proceedings are covered by the Code of Ukraine on Commercial Proceedings.
Private antitrust actions are normally considered by Ukrainian commercial courts. Local commercial courts consider all cases as the courts of first instance. In case of further appeals, the case may be reconsidered by the local appellate commercial courts, the Superior Commercial Court of Ukraine and the Supreme Court of Ukraine.
4. In what types of antitrust matters are private actions available?
Private actions are generally available in all types of antitrust matters. An action for compensation of damages caused by unfair competition or an action for seizure of infringing products may be brought on the basis of special provisions of the Act on Protection from Unfair Competition, but private cases regarding agreements restricting competition, abuse of dominant position and merger control may be brought only on the basis of general provisions of the Civil Code of Ukraine and the Act on Protection of Economic Competition. However, current jurisprudence is not uniform on the question of initiating a private antitrust action simply on the basis of general legislative provisions.
5. What nexus with the jurisdiction is required to found a private action?
Normally, an antitrust private action should be brought in the local court at the location of a defendant (a place where the office of the defendant is officially registered).
6. Can private actions be brought against both corporations and individuals, including those from other jurisdictions?
Private antitrust actions may be brought against corporations and individuals registered as private entrepreneurs, including those from other jurisdictions, subject to conditions described in question 5 above.
7. If the country is divided into multiple jurisdictions, can private actions be brought simultaneously in respect of the same matter in more than one jurisdiction?
Private action procedure
8. May litigation be funded by third parties? Are contingency fees available?
Third-party funding of antitrust law claims is permitted. However, only the expenses of a party to the case may be reimbursed in the event of a court decision in favour of such party. If a third party funding the competition law claim is not a party to the case, its expenses will not be compensated.
9. Are jury trials available?
No jury trials are currently available in antitrust litigation.
10. What pre-trial discovery procedures are available?
Ukrainian law does not provide for pre-trial discovery procedure as it is known in some other countries. In some cases, even before opening proceedings the court may issue a preliminary injunction to secure (request) evidence that may not be available at a later stage, or which may be significantly complicated to obtain.
11. What evidence is admissible?
In commercial proceedings the courts accept documentary and material evidence, including written explanations regarding the merits of the case submitted by the representatives of the parties and other persons participating in commercial court proceedings, as well as expert evidence.
Witness evidence as such is not allowed in commercial proceedings. However, officials of legal entities, state and municipal bodies may participate in commercial proceedings with a special status (if engaged by the court) and provide explanations regarding the facts of the case.
Expert evidence is allowed in the form of written expert reports submitted to the court by the experts appointed by the court. The report should answer the questions determined by the court. The parties are allowed to submit to the court suggestions regarding the experts to be appointed and the questions to be addressed to the experts. In commercial proceedings the appointment of experts is at the judge's discretion (unlike in general civil proceedings, where the parties may agree on the expert or experts who will provide the report).
12. What evidence is protected by legal privilege?
Advice from an attorney, as well as any other documentary or material evidence obtained by an attorney acting for a client, is generally considered privileged. Under general rules, a party has to prove the facts on which it is relying as grounds for its claims or objections. The law establishes two main requirements regarding evidence: it should be reasonable and admissible. Admissibility is interpreted, in particular, as legality of the source from which the evidence is obtained. However, in litigation proceedings, legal privilege as such does not protect the evidence from disclosure. Advice from in-house counsel is not privileged.
13. Are private actions available where there has been a criminal conviction in respect of the same matter?
Private actions may still be brought if criminal proceedings in respect of the same matter are being processed. The civil claim may be filed either within the criminal case or as a separate suit.
14. Can the evidence or findings in criminal proceedings be relied on by plaintiffs in parallel private actions? Are leniency applicants protected from follow-on litigation?
A plaintiff in a parallel private antitrust action may rely on evidence or findings in criminal proceedings initiated with respect to the same matter. However, it should be noted that in each given matter the judge assesses evidence/findings and decides on their admissibility.
Leniency applicants are not protected from follow-on litigation.
15. In which circumstances can a defendant petition the court for a stay of proceedings in a private antitrust action?
In Ukraine private antitrust actions are resolved pursuant to the Code on Commercial Proceedings. In commercial litigation the court should stay the proceedings if the case cannot be resolved until another related case is resolved or until the court receives legal assistance from a foreign entity or a court.
The court may also (but does not have to) stay the proceedings for the time needed to receive the results of an expert examination, or if the court reveals a violation of law and decides to send the case file to the relevant authorities (ie, prosecutors' office) to check whether such violation has the elements of a crime or not.
16. What is the applicable standard of proof for claimants and defendants?
No general standard of proof exists. However, in some specific cases certain facts shall be proved only by certain types of evidence specifically provided by effective Ukrainian laws.
Also, in commercial proceedings the court practically accepts documentary or material evidence only, save for some minor exemptions.
17. What is the typical timetable for collective and single party proceedings? Is it possible to accelerate proceedings?
As a general rule, the law provides that the court shall consider a case within two months (at the first instance court and at the court of appeals). Further appeals should be considered within a month. However, in practice these terms are not always complied with. Also, for a number of reasons these terms may be extended – for example, if the proceedings are suspended, or if the parties file a motion for an extension.
Generally, the term of consideration of the case by courts, including all appeal instances, varies from one month (as the shortest possible term at the court of first instance) to several years (if all possible appeals are filed). The term mostly depends on the complexity of the case.
The law does not provide for an expedited procedure.
18. What are the relevant limitation periods?
The limitation period for bringing a claim for violation of competition laws is five years from the date of violation, or, in the case of a lasting (continuous) violation, five years from the day of its actual completion. In some cases the law provides for a three-year limitation period.
19. What appeals are available? Is appeal available on the facts or on the law?
The decision of the court of first instance may be appealed to the Court of Appeals on the grounds of breach of material law, and/or breach of procedural law (if the latter caused an improper court decision), and/or incomplete consideration of the circumstances of the case, and/or inconsistency of the court decision with the established facts of the case, and/or lack of evidence.
A cassation complaint against the decision of the Court of Appeals may be filed with the Superior Commercial Court of Ukraine, and the decision by the latter may be appealed (though on extremely limited grounds) to the Supreme Court of Ukraine.
20. Are collective proceedings available in respect of antitrust claims?
Ukrainian law does not explicitly provide for collective proceedings as they are known in common law countries. However, according to the effective Ukrainian procedural laws, several plaintiffs may take out a joint action against the same defendant(s) if their claims are similar and based on a similar cause of action.
21. Are collective proceedings mandated by legislation?
Please see section 20.
22. If collective proceedings are allowed, is there a certification process? What is the test?
23. Have courts certified collective proceedings in antitrust matters?
24. Are 'indirect purchaser claims' permissible in collective and single party proceedings?
Indirect claims are not generally permissible under Ukrainian law.
25. Can plaintiffs opt out or opt in?
26. Do collective settlements require judicial authorisation?
27. If the country is divided into multiple jurisdictions, is a national collective proceeding possible?
28. Has a plaintiffs' collective-proceeding bar developed?
29. What forms of compensation are available and on what basis are they allowed?
The court may grant the following final remedies against the defendant:
Prohibition to perform or obligation to terminate certain actions or activity
The court may grant this remedy if the actions/activity of the defendant constitute a breach of antitrust laws and such breach negatively affects the rights and/or legally protected interests of the plaintiff.
Obligation to perform certain actions
The court may grant this remedy if the omission/inaction of the defendant constitutes a breach of antitrust laws and such breach negatively affects the rights and/or legally protected interests of the plaintiff.
Invalidation of agreement
The court may grant this remedy if the challenged agreement has been made in violation of antitrust laws and such agreement negatively affects the rights and/or legally protected interests of the plaintiff.
Invalidation or cancellation of an act of state or municipal body
The court may grant this remedy if the act issued by the defendant (state or municipal body) constitutes a breach of antitrust laws and such breach negatively affects the rights and/or legally protected interests of the plaintiff.
Compensation of damages
The court may grant this remedy if:
- the actions/activity of the defendant constitute a breach of antitrust laws;
- such breach negatively affects the rights and/or legally protected interests of the plaintiff;
- as a direct result of such breach, the plaintiff suffered damages; and
- the amount of damages is proven by sufficient evidence.
The court may grant this remedy if information disseminated by the defendant about the plaintiff is incorrect, untrue or false, and dissemination of this information negatively affects the plaintiff's business reputation.
30. What other forms of remedy are available?
Interim remedies are available in antitrust law cases in Ukraine. As an interim remedy, a commercial court may issue a preliminary injunction seizing property and/or money, or prohibiting the defendant or third parties from taking certain actions. It may grant interim remedies if failure to grant them would make enforcement of a future judgment on the merits of the case impossible or complicated.
31. Are punitive or exemplary damages available?
Exemplary damages are available as a remedy for anti-competitive coherent practice, abuse of market power, and breach of merger control rules.
32. Is there provision for interest on damages awards?
The court determines the amount of damages according to the amount of actual damages and lost profit duly evidenced within the proceedings. To be awarded compensation, the claimant should prove that the actual damages and the lost profit were directly caused by the defendant's breach of law and the rights or interests of the claimant. There is no provision for interest on damages awards.
33. Are the fines imposed by competition authorities taken into account when settling damages?
Formally, the amount of damages to be compensated does not depend on the fact and/or amount of the fine imposed by the Antimonopoly Committee; however, in practice the court sometimes takes into account the conclusions made by the Antimonopoly Committee regarding the amount of the fine.
34. Who bears the legal costs? Can legal costs be recovered, and if so, on what basis?
Usually, the plaintiff or defendant may recover its legal costs from the unsuccessful party; however, the reasonable amount of fees which may be recovered very much depends on the discretion of the judge.
35. Is liability imposed on a joint and several basis?
As a general rule, infringers of antitrust and competition laws may be held liable on a joint and several basis. However, procedural laws require that the claimant should clearly determine in the lawsuit the claims against each of the defendants.
36. Is there a possibility for contribution and indemnity among defendants? In the case of joint and several liability, a defendant who paid the whole indemnification to the claimant may claim a refund of the appropriate share from other defendants.
37. Is the 'passing on' defence allowed?
The passing-on defence is not available in Ukrainian competition law. Private antitrust litigation is a relatively new and still-developing
38. Do any other defences exist that permit companies or individuals to defend themselves against competition law liability?
No specific defences are provided by competition law.
39. Is alternative dispute resolution available?
Alternative dispute resolution (arbitration) is available only upon agreement by the parties, except in some type of disputes (eg, those involving state authorities
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