Ukraine

by

Pavlo Byelousov, partner,

and Roman Hryshyn-Hryshchuk, associate

AEQUO Law Firm

Senator Business Сenter, 15th floor 32/2 Moskovska
Kyiv, Ukraine
E: byelousov@aequo.ua
T/F: +38 044 233 65 99

Dr. Tatyana Slipachuk, FCIArb, C.Arb

 Ukraine

I. PRESENT ATTITUDE TOWARD ENFORCEMENT OF

FOREIGN MONEY JUDGMENTS

A. Describe the receptiveness of your government (including

courts) toward enforcement of foreign money judgments.

The recognition and enforcement of foreign judgments in Ukraine, in

absence of the special regulations, are governed by the number of
legislative acts and judiciary explanations and recommendations, such
as: the Civil Procedural Code of Ukraine1 (the “Civil Procedural
Code”), the Law of Ukraine on International “Commercial Arbitration2
(the “LICA”), the Law of Ukraine “On Executive Procedure”3 (the
“Executive Procedure Law”), the Law of Ukraine “On Private
International Law” (the “PILL”), the Decree of the Supreme Court of
Ukraine “On Courts’ Practice Regarding Recognition and Enforcement
of the Decisions of Foreign Courts and Arbitral Tribunals and Setting
Aside Arbitral Awards Rendered within the Territory of Ukraine”
No. 12 dd. 24 December 19994 (the “Decree No. 12”), the Explanatory
Note of the Ministry of Justice of Ukraine “On the Procedure of the
Recognition and Enforcement of the Decisions of the International
Commercial Arbitration Court at the Ukrainian Chamber of Commerce
and Industry Abroad” No. 26-50/284 dd. 7 May 20105 and
Informational Letter of the Superior Specialized Court of Ukraine for
Civil and Criminal Cases “On Courts’ Practice on Setting Aside
Decisions of the International Commercial Arbitration Court at the
Ukrainian Chamber of Commerce and Industry and on Recognition and

1 Civil Procedural Code of Ukraine No.1618-IV dated 18 March 2004 as amended

on 3 October 2017.
2 The Law of Ukraine “On International Commercial Arbitration” No. 4003-XII

dated 20 April 1994 is based on UNCITRAL Model Law and almost completely follows
its wording.
3 The Law of Ukraine “On Executive Procedure” No. 606-XIV dated 21 April 1999.
4 The Decree of the Supreme Court of Ukraine “On Courts` Practice Regarding

Recognition and Enforcement of the Decisions of Foreign Courts and Arbitral Tribunals
and Setting Arbitral Awards Rendered within the Territory of Ukraine Aside”, No. 12
dated 24 December 1999.
5 Explanatory Note of the Ministry of Justice of Ukraine “On the Procedure of the

Recognition and Enforcement of the Decisions of the International Commercial

Arbitration Court at the Ukrainian Chamber of Commerce and Industry Abroad”
No. 26-50/284 dd. 7 May 2010.
 UKRAINE

Enforcement of the Decisions of International and Foreign Arbitral

Tribunals” dated 11 December 2015.6

It shall be noted that on 3 October 2017, the Ukrainian Parliament

adopted the law No.2147-VIII (the “Law No.2147”) amending the Civil
Procedural Code, the Commercial Procedural Code, the Code for
Administrative Court Proceedings of Ukraine and other laws. Published
officially on 28 November 2017, the Law No.2147 entered into force on
15 December 2017. The Law No. 2147 introduced important changes to
the court procedures in arbitration-related matters (see our comments
provided in Question I. (C) hereof).

Furthermore, Ukraine is a state party to the 1958 New York

Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (the “New York Convention”) subject to the proviso that awards
issuing from a state not a party would be enforced only in the event of
reciprocity, as well as to a number of the multi- and bilateral
international treaties governing the issue of enforcement of foreign
judgments.

Besides, the Commercial Procedural Code of Ukraine7 (the

“Commercial Procedural Code”) regulates the issue of validity of the
arbitration agreement and arbitrability rules.8

The above said instruments constitute the domestic legal framework

governing recognition and enforcement of foreign judgments in
Ukraine.9

According to Article 462 and Article 474 of the Civil Procedural

Code Ukrainian courts shall grant enforcement of foreign court
decisions or foreign arbitral awards provided that:

6
Informational Letter of the Superior Specialized Court of Ukraine for Civil and
Criminal Cases “On Courts’ Practice Regarding Challenging Decisions of the
International Commercial Arbitration Court at the Ukrainian Chamber of Commerce
and Industry and Regarding Recognition and Enforcement of the Decisions of
International and Foreign Arbitral Tribunals” dated 11 December 2015
7
Commercial Procedural Code of Ukraine No.1798-IV dated 6 November 1991 as
amended on 3 October 2017.
8
Commercial Procedural Code, Art. 22.
9
In this text we apply the term “foreign judgments” for designation of both foreign
court decisions and foreign arbitral awards.
UKR-4 ENFORCEMENT OF MONEY JUDGMENTS

(i) recognition and enforcement are permitted under an

international treaty ratified by the Verkhovna Rada of Ukraine
(Parliament); or
(ii) on the basis of the reciprocity principle.

If the recognition and enforcement of the foreign judgment depends

on the reciprocity principle, it shall be presumed that reciprocity exists
unless it is proven otherwise.10

International Treaties Providing for Recognition and Enforcement of

Foreign Court Decisions and Arbitral Awards
Ukraine is currently bound by both (a) international conventions
entered into after Ukraine had gained independence and (b) treaties
concluded by the Ukrainian SSR and by the former Soviet Union, which
are applicable by virtue of the Law of Ukraine “On the Legal Succession
of Ukraine”.
Among international conventions signed and ratified by Ukraine
which relate to the recognition and enforcement of foreign judgments,
the following principal instruments should be mentioned: the New York
Convention, the 1954 Hague Convention on Civil Procedure, the 1961
European Convention on International Commercial Arbitration and the
CIS (Minsk) Convention on Legal Assistance and Legal Relations in
Civil, Matrimonial and Criminal Cases (1993) and the CIS (Kyiv)
Convention on Settlement of the Commercial Disputes (1992), etc.

In addition, Ukraine concluded a number of bilateral agreements on

providing legal assistance in civil, criminal and matrimonial cases which
among others govern the issues of recognition and enforcement of
foreign judgments with the followings states: China (1993); Lithuania
(1993); Moldova (1994); Poland (1994); Estonia (1995); Georgia
(1995); Latvia (1995); Mongolia (1995); Uzbekistan (1998); Vietnam
(2000); Czech Republic (2002), Hungary (2002), Macedonia (2003),
Turkey (2004), Republic of Korea (2004), Bulgaria (2005), Cyprus
(2006), Romania (2006), Greece Republic (2007), etc.

10
Civil Procedural Code para.2, Art. 462; Civil Procedural Code para.2, Art. 474.
 UKRAINE

Recognition and enforcement of foreign judgments on the basis of the

reciprocity

The Civil Procedural Code sets forth the presumption of the

reciprocity i.e. if the recognition and enforcement of the foreign
judgment depends on the reciprocity principle, it shall be presumed that
reciprocity exists unless it is proven otherwise.11

Thus, should no international treaty provide for recognition and

enforcement of a foreign judgment, such recognition and enforcement
still may be granted on the basis of the reciprocity principle and the
burden of proof that reciprocity exists / or does not exist is transferred
from applicant to judgment debtor.

For instance, in the case on the recognition and enforcement of the

Order of the High Court of Justice Queen's Bench Division Commercial
Court, Claim No 2009 Folio 1099, dd. 12 November 2009 as amended
by the Orders (“Receivership Order”), the Holosiivskyi District Court of
Kyiv applied the reciprocity principle and granted the motion on the
enforcement of the Receivership Order. In its decision, the court stated
that although no international treaty provided for the recognition and
enforcement of decisions of the courts of the United Kingdom of Great
Britain and Northern Ireland, the Receivership Order may be recognized
based on the reciprocity principle.12

B. Briefly describe recent illustrative attempts, whether

successful or unsuccessful, to enforce a foreign money
judgment in your country, particularly with regard to
enforcement of any judgments from United States courts.

The 2011-2018 practice shows that Ukrainian courts are inclined to

grant recognition and enforcement of the foreign judgments in Ukraine
provided that all the requirements to a motion for enforcement are met.

As regards the enforcement of US court decisions it is worth

mentioning that there are no bilateral or international agreements on
enforcement of judgments between Ukraine and the United States and

11Civil Procedural Code para.2, Art. 462; Civil Procedural Code para.2, Art. 474.
12 Ruling of Holosiivskyi District Court of Kyiv dated 05 August in case
No. 2601/23768/12
UKR-6 ENFORCEMENT OF MONEY JUDGMENTS

thus, US court decisions can only be enforced on the basis of reciprocity.

According to sources available to us we did manage to find only one

unsuccessful attempt to enforce the US money judgment in Ukraine (see
below).

Kyivskiy District Court of Simferopol (Crimea) Refused to Enforce the

US Court Decision (March 2011)

Kyivskiy District Court of Simferopol (Crimea) refused to recognize

and enforce the court decision rendered by the Sixth Judicial Circuit of
Florida (USA) obliging the Ukrainian debtors to pay 2 059 775,70 US
Dollars.

Upon examining the case, the Ukrainian court established that

Ukrainian debtors were not given proper notice of case consideration
that prevented them from participating in the court proceedings in the
US. In its ruling dated 16 March 2011 the Kyivskiy District Court of
Simferopol stated that the serving of the court summons upon Ukrainian
debtors were not provided in time, and thus it did not meet the
requirements set forth by the 1965 Hague Convention on the Service
Abroad of Judicial and Extrajudicial Documents in Civil or Commercial
Matters, which both Ukraine and the USA are parties to.

It was also established that there is no written arbitration or

prorogatory agreement (clause) between the parties allowing the US
court to settle the dispute between them and applied without reasoning
the 1958 New York Convention, which actually concerns the
enforcement of foreign arbitral awards.

Based on the above, Kyivskiy District Court of Simferopol (Crimea)

refused to grant recognition and enforcement of the Florida Sixth
Judicial Circuit Decision in Ukraine. The information whether the said
ruling of Kyivskiy District Court of Simferopol was appealed by the
creditor is not available.

However, in 2013 the Ukrainian court recognized and enforced the

English court judgment under the reciprocity principle. In particular, on
3 June 2013 the Pecherskyi District Court of the city of Kyiv recognized
and enforced the UK court judgment for recovery more than USD 420
million. In the mentioned case No. 757/4478/13-c, while considering the
 UKRAINE

issue of proving the reciprocity, the Ukrainian court held that such
reciprocity should be presumed due to the reciprocity principle provided
under Article 390 (2) of the Civil Procedural Code. And thus, there shall
be no need to additionally prove that it exists for the applicant (creditor).

As regards the arbitration awards, according to the available decisions

with regard to arbitration awards it can be concluded that Ukraine,
generally speaking, is an arbitration-friendly jurisdiction and courts
refuse enforcement only in cases where gross violations of arbitration
procedure are proven. The US originated arbitral awards are enforced
under the New York Convention.

The Supreme Court Ruled on Enforcement of US Arbitral Award

On 5 November 2018 the Supreme Court upheld both the ruling of

the Obolonskyi District Court of the city of Kyiv and resolution of the
Kyiv Court of Appeals recognizing and enforcing the AAA/ICDR
arbitral award in a dispute between United Media Holding N.V. (UMH)
and TriLado Enterprises Inc. v Forbes Media, LLC on termination of the
license agreement for use of Forbes trademarks in Ukraine.13

In April 2016, an international arbitration tribunal found that Forbes

Media was acting well within its rights when it terminated its license
agreement with UMH in 2014 for violations of provisions of the license
agreement related to editorial independence.

In the mentioned case, the Supreme Court ruled to uphold the lower
courts' decisions granting recognition of the AAA/ICDR arbitral award
in Ukraine establishing that Forbes Media had the right to terminate its
license agreement with UMH.

The Supreme Court Ruled on Enforcement of the PCA Award

On 25 January 2019 the Supreme Court upheld a ruling of the Kyiv

Court of Appeals recognizing and enforcing the PCA arbitral award in a
high-profile case concerning the annexation of Crimea by the Russian
Federation and nationalization of Ukrainian businessman’ assets. 14

13
Resolution of the Supreme Court dated 5 November 2018 in case No.
756/15952/16-c
14
Resolution of the Supreme Court dated 25 January 2019 in case No. 796/165/18
UKR-8 ENFORCEMENT OF MONEY JUDGMENTS

It is worth mentioning, among other things, thoughts of the Supreme

Court in relation to (1) Ukraine’s courts’ jurisdiction to recognize and
enforce the PCA arbitral award and (2) enforcement of the PCA arbitral
award in Ukraine due to the state immunity.

As regards to the former issue, the debtor claimed that Ukraine’s

courts’ lacked jurisdiction to recognize and enforce the PCA arbitral
award due to absence of Russian property in Ukraine. The Supreme
Court dismissed the above argument and stated that provisions of the
Civil Procedural Code in their systematic interconnection do not require
from the applicant to determine the debtor’s property that may be
foreclosed on as of the time of submission of the application for granting
permission for enforcement of the arbitral award. Furthermore, the court
stated that the effective laws of Ukraine allow searching for the debtor’s
property that may be foreclosed on at the stage of enforcement of the
court decision.

As regards to the letter issue, the Supreme Court dismissed the

arguments of the debtor that its property and assets situated in Ukraine
have the judicial immunity from the jurisdiction of courts and other
government authorities of Ukraine explaining that “by including the
arbitration reservation into the Agreement between the Cabinet of
Ministers of Ukraine and the Government of the Russian Federation on
the Encouragement and Mutual Protection of Investments dated 27
November 1998 and providing for the final and binding nature of the
arbitral award delivered as a result of any dispute arising out of the
Agreement for both parties, the debtor, the Russian Federation, ipso
facto granted its consent to waiver of all types of the immunity of the
state”.

C. Describe any proposed legislation or other governmental

action in your country that could significantly affect the
enforcement of foreign money judgments.

The amendments to the procedural codes introduced by the Law

No. 2147 (see our comments provided in Question I. (A) hereof)
established the long expected legislative clarifications to the rules
governing the procedure of the recognition and enforcement of foreign
judgments in Ukraine and, among others, provided the following:
 UKRAINE

(i) introduced presumption in favour of the validity and

enforceability of arbitration agreements (i.e. any inaccuracies in
the text of the arbitration agreement or doubts regarding its
operability, validity and possibility of performance shall be
interpreted in its favour);
(ii) clarified the existing arbitrability rules;
(iii) separated regulation procedures for the recognition and
enforcement foreign court decisions (judgments) (Section 1-2 of
Chapter IX of the Civil Procedural Code) and for the
recognition and enforcement of foreign arbitral awards (Section
3-4 of Chapter IX of the Civil Procedural Code);
(iv) established two-tier structure of the court proceedings for the
recognition and enforcement of arbitral awards in Ukraine (the
appellate court – the cassation court);
(v) clarified the requirements for recognition and enforcement of
arbitral awards in Ukraine and grounds for refusal in
enforcement;
(vi) ensured the court’s power to impose interim measures
(provisional injunctions) to secure enforcement of the foreign
judgment and foreign or international arbitral awards.
(vii) ensured the possibility to recover both pre-award and post-
award interest from the debtor after recognition of the money
judgment in Ukraine;
(viii) introduced a procedure of voluntary execution of the arbitral
awards on the recovery of cash funds.

II. PROCEDURE TO ENFORCE A FOREIGN

MONEY JUDGMENT

A. General Summary of Procedure

Ukrainian courts consider issues dealing with the recognition and

enforcement of foreign money judgments of the courts/tribunals of those
countries, which have concluded international agreements with Ukraine
covering issues of recognition and enforcement or under the reciprocity
principle. As was already stated in Section I (A) hereof the enforcement
UKR-10 ENFORCEMENT OF MONEY JUDGMENTS

procedure is governed by Chapter IX of the Civil Procedural Code.

1. Briefly summarize the procedure and expected length of time

necessary to enforce a foreign money judgment if a treaty
provides for enforcement of judgments from the country of
origin.

The Civil Procedural Code provides that a foreign judgment may be

submitted for enforcement in Ukraine only within three years from the
time it became effective unless it provides for payment by installments.
The judgments related to collection of any regular payments (including
payment by installments) may be enforced at any time during the
enforcement period for the payment as awarded. But in this case, such
debt of regular payments under a foreign judgment can be collected only
for the last three years.

The enforcement procedure includes the following stages:

(a) Submission of the motion for granting enforcement;

(b) Submission of the Respondent’s objection;
(c) Court hearings of the case;
(d) Delivery of the court ruling on enforcement or refusal in
enforcement;
(e) Issuance of the writ of execution, if the motion for granting
enforcement is satisfied by the court.

Pursuant to Article 466 of the Civil Procedural Code, the party

seeking recognition and enforcement of the foreign court decision shall
file a motion containing the following information:

(i) name of the applicant (or its representative) and his address;
(ii) name of the person against whom recognition and
enforcement are sought, its place of location or residence or
the address of its property in Ukraine;
(iii) reasons for filing the motion.

The said motion shall be accompanied by the following documents

unless otherwise provided by the respective international/bilateral treaty:
 UKRAINE

(a) a duly certified copy of the foreign court judgment;

(b) an official document certifying that the foreign court judgment
has entered into force (if the judgment itself does not expressly
provide this);
(c) a document certifying that the party, against whom the foreign
court judgment is rendered and who did not participate in the
proceedings, was duly notified about the place and time of the
hearings;
(d) a document identifying the portion or the time following which
the foreign court judgment/decision is subject to enforcement (if
it has previously been enforced);
(e) a document certifying powers of the applicant’s representative;
(f) a duly certified translation of the above documents into Ukrainian
or other language as applicable under international treaty.

Should the court find that the motion for granting enforcement does
not meet the above mentioned requirements or lacks some documents it
will return the motion to the applicant.15

Upon receipt of the said motion, the court shall send a written
notification to the opposing party within five days. In the said notice the
court gives the respondent a month to present its objections.

After the defendant submits written objections or refuses to do so, the

court delivers a ruling setting the date and time of the hearing. The
parties shall be notified in writing about the date of the hearing not later
than ten days in advance. The hearing may be postponed provided there
is a request from any of the parties with a reasonable excuse.

After considering the motion for granting enforcement and hearing

the parties’ arguments, the judge delivers the ruling on granting the
permit for enforcement of the foreign court decision. The said ruling
serves as a basis for issuing the writ of execution, which in fact triggers
the executive procedure and is binding for the debtor.

Generally, the application for granting enforcement of the foreign

court decisions should be considered by the judge within two-three
months. However, since no defined final deadline is provided by the

15
Civil Procedural Code para.4, Art. 466;
UKR-12 ENFORCEMENT OF MONEY JUDGMENTS

Civil Procedural Code, the time limits mostly depends on the courts’
internal schedules.

Before the amendments introduced by the Law No. 2147, the Civil
Procedural Code established a unified procedure for the recognition and
enforcement of both foreign court decisions and the foreign arbitral
awards. However, after the Law No. 2147 came into effect, the
procedural rules established two separate procedures and requirements
for the documents filing for the recognition and enforcement of foreign
judgements and arbitral awards.

Pursuant to Article 476 of the Civil Procedural Code, the party

seeking recognition and enforcement of the foreign arbitral awards shall
file a motion signed by the person in favor of which the award of the
international commercial arbitration was delivered, or its representative,
and containing the following information:

(i) name of the court to which the motion is filed;

(ii) name (if any) and composition of the international
commercial arbitration by which the award was rendered,
based on which a writ of execution should be issued;
(iii) name of the participants in the arbitration proceedings
(their representatives), their place of residence (location) or
seat;
(iv) date and venue of the foreign arbitral award;
(v) date of receipt of the foreign arbitral award by the
applicant;
(vi) applicant's request for issuing a writ of execution for
enforcement of the foreign arbitral award;

The said motion shall be accompanied by the following documents

unless otherwise provided by the respective international/bilateral treaty:

(a) original copy of the duly certified arbitral award or a notarized copy
of such award;
(b) original copy of the arbitration agreement or a notarized copy of
such agreement;
 UKRAINE

(c) document confirming payment of the court fee;

(d) a document certifying powers of the applicant’s representative;
(e) a duly certified translation of the documents listed in paragraphs
above into Ukrainian or other language as applicable under
international treaty.
(f) a copy of the motion for recognition and granting a permit for
enforcement of the award according to the number of participants
in the court proceeding.
Besides the above, further procedure for granting enforcement of the
arbitral awards is identical to the procedure for enforcement of the
foreign court decisions described above.

The motion for granting enforcement of the arbitral award should be

considered by the judge within two months.16

2. Briefly summarize the procedure and expected length of time

necessary to enforce a foreign money judgment if no treaty
provides for enforcement of judgments from the country of
origin.

Pursuant to the effective Ukrainian legislation the procedure for

enforcement of foreign money judgments on the reciprocity basis does
not differ from the procedure for recognition and enforcement under an
international treaty as described in Question B (1) above. However,
should the judgment debtor succeed in proving that there is no
reciprocity between Ukraine and the court of origin, the Ukrainian court
may ask the creditor to provide additional clarification on the existence
of reciprocity or address the said issue on reciprocity to the Ministry of
Justice of Ukraine, which certainly will take additional time. At present,
no procedure for proving the non-existence of reciprocity is provided by
Ukrainian legislation.

Please see our comments provided in Question I. (A) hereof.

B. Detailed Discussion of Procedure

1. Indicate the courts in your country that are competent (i.e.,

16Civil Procedural Code para.1, Art. 477.

UKR-14 ENFORCEMENT OF MONEY JUDGMENTS

have jurisdiction) to grant enforcement of a judgment.

Pursuant to Article 464 of Chapter IX of the Civil Procedural Code

the issues of recognition and enforcement of foreign court decisions
shall be considered by local courts (of general jurisdiction) at the place
of residence or location of the debtor. If the debtor does not have place
of residence or location in Ukraine, then the court at the location of the
debtor’s property in Ukraine will have jurisdiction.

Pursuant to Article 475 of Chapter IX of the Civil Procedural Code

the issues of recognition and enforcement of foreign award shall be
considered by the appellate court, having jurisdiction over the city of Kyiv
(i.e. the Kyiv Court of Appeal).

It is worth noting that the introduction of the new amendments to the

procedural codes that limited the jurisdiction of the courts to consider
the motions for the recognition and enforcement of the arbitral awards
should improve the prevailing court practice of application of
international treaties in the process of rendering the rulings on the
recognition and enforcement of foreign judgments and increase
efficiency of enforcement proceedings in Ukraine.

2. Describe any requirements regarding translation and

authentication of the documents evidencing the original
judgment.

In accordance with Article 466 and 476 of the Civil Procedural Code
the foreign judgment must be duly authenticated under the established
procedure.

As Ukraine acceded to the Hague Convention of 5 October 1961 on

Abolishing the Requirement of Legalisation for Foreign Public
Documents17 (the “Apostille Convention”) judgments given in the other
States parties thereto, shall be apostilled, in order to be accepted in
Ukraine, according to the procedure set forth in the said Apostille
Convention and the applicable legislation of the country of issuance,
without any consular or diplomatic legalization.

In respect of the court decisions and arbitral awards rendered in the

states non-parties to the Apostille Convention, legalization in the

17
The Apostille Convention came into force for Ukraine on 22 December 2003.
 UKRAINE

Ministry for Foreign Affairs (or other competent authority) and in the
consular department in that country will be required.

Moreover, the Civil Procedural Code requires that all the documents
submitted along with the motion for granting enforcement of foreign
judgment should be accompanied by the translation thereof into
Ukrainian or other language as set forth by the applicable international
treaty. If the translation is made in Ukraine, it shall be carried out by a
certified translator and notarized by a Ukrainian public notary. If the
translation is made elsewhere, public notary certification as well as
apostillization (or diplomatic and consular legalization) will be required.
However, the apostille itself and notary endorsement still will need to be
translated into Ukrainian or other proper language and certified by a
Ukrainian notary.

It shall be noted that Ukrainian court may differently interpret

provisions of Article IV(1)(a) of the New York Convention regarding
requirements of “duly certified copy” of an arbitral award. For instance,
the Supreme Court in its recent decision on the recognition and
enforcement of the arbitral award came to the conclusion that the
mentioned provisions of the New York Convention require that a copy
the arbitral award should be certified by a person authorized by the
arbitration rules or other rules to certify the original of the arbitral award,
in particular, by the secretary general of the arbitral institution.18

The above approach is more complicated in comparison with the

provisions of the Civil Procedural Code which expressly allows to file
“a notarized copy of the duly authenticated original arbitral awards”
(please see Question B (1) above).

3. Indicate whether jurisdiction over the judgment debtor must

be obtained by your courts in the enforcement action.

In accordance with Article 464 of the Civil Procedural Code the

proceedings for granting the enforcement of a foreign decisions shall be
initiated in the proper court at the place of residence or location of the
debtor, or at the place of location of his property in Ukraine.
Pursuant to Article 475 of the Civil Procedural Code the proceedings
for granting the enforcement of a foreign arbitral awards shall be

18Resolution of the Supreme Court dated 27 June 2018 in case No. 519/15/17
UKR-16 ENFORCEMENT OF MONEY JUDGMENTS

initiated in the Kyiv Court of Appeal.

4. If the original judgment is in a foreign currency, describe

whether the judgment need be converted into local currency.
[Ed. Note: Indicate how the conversion should be calculated
(e.g., exchange rate when judgment awarded, when enforced,
or at another time?)]

In accordance with paragraph 8 of Article 467 of the Civil Procedural

Code if the original court decision provides for recovery in foreign
currency, the court granting enforcement shall state the sum to be
recovered in Ukrainian national currency according to the exchange rate
set forth by the National Bank of Ukraine as of the date when the
respective ruling is rendered.
In accordance with paragraph 6 of Article 479 of the Civil Procedural
Code if the original arbitral award provides for recovery in foreign
currency, then the court shall indicate in its ruling the recovery amount
in the currency specified in the arbitral award, and upon application of
the judgment creditor the court shall determine the recovery amount in
Ukrainian national currency according to the exchange rate set forth by
the National Bank of Ukraine as of the date when the respective ruling
is rendered.

5. Indicate whether the judgment creditor can receive interest

on the original judgment amount regardless of whether the
original judgment amount included interest.

Ukrainian legislation does provide for such possibility. According to

paragraph 4 and 5 of Article 479 of the Civil Procedural Code, in the
event the foreign arbitral award provides for payment of interest and/or
default interest accrued under the conditions specified in the award, then
the court shall indicate in its ruling on the accrual of such interest and/or
default interest until the time of enforcement of the arbitral award, taking
into account the applicable laws which govern such accrual. In such
case, the residual amount of the interest (default interest) shall be
calculated according to the rules determined in the court judgment, by
the body (person) which enforces the court judgment.

6. Indicate whether the successful judgment creditor is entitled

to reimbursement of its attorneys fees or court costs incurred
 UKRAINE

in bringing the enforcement proceeding.

Ukrainian legislation does provide for such possibility. Under the

Civil Procedural Code the court may decide as to the reimbursement of
court costs including attorneys fees.
For instance, in the recent judgment of the Kyiv Court of Appeal, the
court granted the motion on the recognition and enforcement of the
Vilnius Court of Commercial Arbitration and ordered the debtor to pay
EUR 18 417,60 of the creditor’s attorneys fees.19

7. Describe the conditions under which the losing party may

appeal your court’s decision whether or not to enforce a
judgment.

Pursuant to Article 469 and 479 of the Civil Procedural Code ruling
granting or refusing enforcement of a foreign judgment may be appealed
in accordance with procedures set forth for appealing court judgments.
Therefore, general provisions as laid down in Section 1, Chapter 5 of the
Civil Procedural Code shall apply.

In particular, under Article 352 of the Civil Procedural Code the right
to appeal is not subject to any particular conditions except time limits.
Therefore, any party to the proceedings may file an appeal against the
decision of the court of first instance to the respective appellate instance.
It shall be noted that in the event of appealing the ruling of court of first
instance on the enforcement of the arbitral awards, the Supreme Court
would be considered the appellate instance.

However, the said petition, in accordance with Article 376 of the Civil
Procedural Code, shall be satisfied only in the following cases: (i) the
court failed to fully ascertain the relevant facts of the case; (ii) the facts
which the court considered as determined were not proved; (iii) the
court’s conclusions do not comply with the facts of the case; (iv) the
court violated or incorrectly applied the rules of material or procedural
law.

8. Describe any other procedures which could seriously affect

the enforcement action.

19
Ruling of the Kyiv Court of Appeal dated 31 October 2018 in case
No. 796/129/2018
UKR-18 ENFORCEMENT OF MONEY JUDGMENTS

Shall the service of judicial documents abroad under the 1965 Hague
Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters be required for the purposes
of enforcement proceeding in Ukraine, as a rule a Ukrainian court will
postpone such proceeding for a 6 (six) month period to ensure that a
respective judicial document is duly served.

Paragraph 7 of Article 477 of the Civil Procedural code expressly

provides that if the motion to set aside the arbitral award has been
submitted to the competent court, the Ukrainian court where
enforcement is sought may suspend the enforcement proceedings until
the court ruling resolving such motion comes into effect.
In addition, if the above-mentioned circumstances are present,
paragraph 2 of Article 36 of the LICA allows the court to adjourn its
decision upon the request of the judgment debtor.

III. REQUIREMENTS FOR ENFORCEMENT OF A

FOREIGN MONEY JUDGMENT

A. General Summary of Requirements

1. Assuming the proper procedure is followed as set out in

Section II, briefly summarize the requirements which must
be met to enforce a foreign money judgment if a treaty
provides for enforcement of judgments from the country of
origin.

1.1. Given, a due process was observed and all the documents required
by Article 466 of the Civil Procedural Code (please, see Question
II. A. 1.), a competent Ukrainian court, having considered the motion for
granting enforcement of a foreign court decision, shall issue its ruling,
granting enforcement. A motion will not be satisfied in cases provided
by applicable international treaties. If an international treaty does not
contain relevant provisions, then the corresponding permission may be
refused for any of the following reasons:

(a) the foreign court’s/arbitration judgment has not yet come into
force under the law of the country where it was rendered;
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(b) the respondent was prevented from participating in the

proceedings as it was not given proper notice of case
consideration (i.e., service must occur according to law or
relevant international agreement);
(c) the case falls within the exclusive jurisdiction of the Ukrainian
court or another Ukrainian agency;
(d) a prior Ukrainian court’s/arbitration judgment in force exists
between the same parties, on the same subject and on the same
basis, or the proceedings between the same parties, on the same
subject and on the same basis were initiated before the Ukrainian
court earlier than respective proceedings were initiated in the
foreign court;
(e) the limitation period for enforcement of foreign judgments as set
forth by effective international treaties or in the absence thereof
by the Civil Procedural Code (3 years) has expired;
(f) the subject of the dispute is not subject to judicial consideration
according to Ukrainian legislation;
(g) the enforcement of the judgment could threaten the interests of
Ukraine;
(h) judgment of a foreign court has been previously recognized in
Ukraine, and a permit has been granted for its enforcement, in the
dispute between the same parties, on the same subject and on the
same grounds as the judgment requested for enforcement; and
(i) in other cases provided by Ukrainian legislation.

In other words, this last point provides Ukrainian courts with wide
discretion in refusing to permit enforcement of foreign judgments.

1.2. In respect of enforcement of arbitration awards, specific

requirements set forth by the New York Convention shall apply. Article
Article 478 of the Civil Procedural Code (which is identical to the
provisions of Article V of the New York Convention and 36 of the LICA)
provides that recognition or enforcement of an arbitral award,
irrespective of the country in which it was made, may be refused only:
UKR-20 ENFORCEMENT OF MONEY JUDGMENTS

(a) at the request of the party against whom it is invoked, if that party
furnishes to the competent court where recognition or
enforcement is sought, proof that:
(i) a party to the arbitration agreement was under some
incapacity; or the said agreement is not valid under the law
to which the parties have subjected it or, failing any
indication thereon, under the law of the country where the
award was made; or
(ii) the party against whom the award is invoked was not given
proper notice of the appointment of an arbitrator or of the
arbitrator proceedings or was otherwise unable to present his
case; or
(iii) the award deals with a dispute not contemplated by or not
falling within the terms of the submission to arbitration, or it
contains decisions on matters beyond the scope of the
submission to arbitration, provided that, if the decisions on
matters submitted to arbitration can be separated from those
not so submitted, that part of the award which contains
decisions on matters submitted to arbitration may be
recognized and enforced; or
(iv) the composition of the arbitral tribunal or the arbitral
procedure was not in accordance with the agreement of the
parties or, failing such agreement, was not in accordance
with the law of the country where the arbitration took place;
or
(v) the award has not yet become binding on the parties or has
been set aside or suspended by a court of the country in
which, or under the law of which, that award was made; or
(b) if the court finds that:
(i) the subject-matter of the dispute is not capable of settlement
by arbitration under the law of Ukraine; or
(ii) the recognition or enforcement of the award would be
contrary to the public policy of Ukraine.

Unlike the list of grounds for refusal of enforcement of foreign

judgments, the list of those for arbitral awards is exhaustive. Therefore,
the court may not invoke any other provision of Ukrainian legislation
 UKRAINE

for a refusal to grant the enforcement.

2. Assuming the proper procedure is followed as set out in

Section II, briefly summarize the requirements which must
be met to enforce a foreign money judgment if no treaty
provides for enforcement of judgments from the country of
origin.

By statute, foreign judgments may be enforced only if a bilateral or

multilateral international agreement with Ukraine so provides. This
notwithstanding, however, a foreign judgment may be enforced on a
reciprocal basis. At present, there are no special requirements provided
under Ukrainian legislation in respect of the enforcement of a foreign
money judgment if no treaty provides for enforcement of judgments
from the country of origin. Such procedure would be governed by
Chapter IX of the Civil Procedural Code as provided in Question III (A),
p.1.1. above.

Please also see our comments in this respect provided in Question

I (A) and Question II (A), p. 2 hereof.

B. Detailed Discussion of Requirements

1. Describe any requirements of your country with regard to the

jurisdiction (i.e., competence) of the court of origin over the
parties and subject matter of the original action. [Ed. Note:
Indicate whether the jurisdiction of the court of origin must
have been based on a ground which can be exercised by a
court of your country. Can the defendant submit to
jurisdiction or waive rights to protest jurisdiction?]

For granting enforcement of foreign court decisions, the Ukrainian

court shall only ascertain that the subject matter of the original action
does not fall within the exclusive competence of Ukrainian courts.
According to the PILL the Ukrainian court shall have exclusive
jurisdiction in the following cases:

(a) if the real estate subject to the dispute is located in the territory of
Ukraine, except cases provided by the law;
(b) if both parties to a case related to legal relations between children
and parents have a place of residence in Ukraine;
UKR-22 ENFORCEMENT OF MONEY JUDGMENTS

(c) if the testator is a citizen of Ukraine and had his/her last place of
residence in Ukraine in an inheritance case;
(d) if the dispute is related to the formalization of the intellectual
property right, which requires the registration or the certificate
(patent) issue in Ukraine;
(e) if the dispute is related to the registration or liquidation of foreign
legal entities or sole traders in the territory of Ukraine;
(f) if the dispute is related to the validity of records in a state register
or cadastre of Ukraine;
(g) if, in bankruptcy cases, the debtor has been established in
accordance with the legislation of Ukraine;
(h) if the case is related to the issue or destruction of securities issued
in Ukraine;
(i) cases related to adoption, which have taken or are taking place in
the territory of Ukraine;
(j) in other cases as defined by the laws of Ukraine.

However, with regard to arbitral awards, in pursuance of Article 36

of the LICA Ukrainian court considering a motion for granting the
enforcement of a foreign arbitral award may examine whether the
arbitration proceedings were in accordance with the procedure agreed
by the parties, including whether the arbitration forum and scope of the
submitted dispute complied with the arbitration agreement.

After the legislative amendments to the procedural codes,

Commercial Procedural Code clarified existing arbitrability rules i.e.
after many years of prohibition and uncertainty with regard to
arbitrability of corporate disputes, new rules allow to arbitrate corporate
disputes arising out of contracts based on an arbitration agreement
concluded by respective legal entity and all of its shareholders. New
arbitrability rules expressly allow referring civil law aspects of
competition disputes, as well as disputes arising out of public
procurement or privatization contracts to arbitration. All other aspects of
such disputes along with disputes regarding records in the register of real
estate, IP rights, a title to security instruments and bankruptcy disputes,
as well as disputes against a debtor being in bankruptcy proceedings, are
now declared non-arbitrable.
 UKRAINE

2. Describe any requirements of your country with regard to

notice to the defendant in the original action. [Ed. Note: Must
the court of origin have followed your country’s service of
process rules? Could service have been by mail or
publication?]

In accordance with Article 467 and 477 of the Civil Procedural

Code a proper notice shall be given to the defendant in the original
action. However, the Ukrainian legislation does not provide any
requirements as to the form of such notice. Therefore, we presume that
it must be served according to the procedure provided by the applicable
international treaty (e.g., the 1965 Hague Convention on the Service
Abroad of Judicial and Extrajudicial Documents in Civil or Commercial
Matters).

3. Describe any requirements of your country with regard to

finality and non-appealability of the court of origin’s
judgment.

Article 466 of the Civil Procedural Code only requires that the
Ukrainian court make sure that the foreign court decision has entered
into force. It may be expressly stated in the judgment itself. Should it not
be clear from the plain text of the judgment, a separate document
confirming that it has entered into force must be provided.
Furthermore, Ukrainian legislation does not oblige the court to
examine whether the judgment debtor had exhausted all means of appeal
available at the country of original action.
It shall be noted that neither analysis of Ukrainian legislation nor
recent court practice of the Supreme Court prohibit the enforcement of
the emergency awards in Ukraine. In particular, in recent proceeding on
recognition and enforcement of the emergency award rendered in JKX
Oil & Gas plc et al v. Ukraine case, the Supreme Court set out that the
arbitral award — irrespective of whether it is an emergency award —
can be read within the context of Article V of the New York Convention.
Therefore, there is likelihood that Ukrainian courts will enforce
emergency arbitral awards in other proceedings.

4. Describe the position of your country with regard to refusal

to enforce a judgment on grounds of public policy,
UKR-24 ENFORCEMENT OF MONEY JUDGMENTS

particularly with respect to whether your courts will refuse to

enforce a judgment if the original claim could not have been
brought under the laws of your country.

The notion of public policy is not clearly established in Ukrainian

legislation. However, the analysis of the court practice provides one with
understanding of the public policy in the context of recognition and
enforcement of the foreign court decisions and arbitral awards. In
particular, under the Decree No. 12 the Plenum of the Supreme Court of
Ukraine has provided for certain indications as to how public order (the
expression almost identical to “public policy”) should be understood by
referring to the legal order of the state, the determining principles and
basis, as being fundamentals of the existing state order, and connected
with its independence, integrity, inviolability, main constitutional rights,
freedoms, guarantees etc.

Furthermore, in its recent decision on recognition and enforcement of

the PCA Award (please also see Question 1 (B) hereof), the Supreme
Court explained that
“reservation regarding violation of the public order as a basis for
dismissing the motion for recognition and granting permission for
enforcement of a foreign arbitral award is a specific mechanism
establishing the priority of the state interests over the private ones
and therefore protecting the public order of the state from any
negative effects. Reservation regarding the public order in
international civil proceedings does not allow recognition of the
award of the arbitral tribunal within the territory of the state if
enforcement thereof will result in the actions that are expressly
forbidden by the law or damage the sovereignty or security of the
state”.20

Therefore, the application of foreign law is not per se in contravention

of Ukrainian public policy. However, as the scope of public policy is not
absolutely clear, the courts may interpret this provision by its discretion.
For instance, the Appellate Court of Kyiv, by its decision of 23
February 2017 in case No.759/16206/14-ц, refused to recognize and
enforce GAFTA award on the ground that “delegation of right to accrue
interests to Claimant or state executors contradicted the principles of

20Resolution of the Supreme Court dated 25 January 2019 in case No. 796/165/18
 UKRAINE

justice of Ukraine /…/ as it shall be approached as interference in

relations, regulated by an arbitral clause and may be qualified as
contrary to the public policy of Ukraine”.

However, new Supreme Court, when ruling on case

No.759/16206/14-ц on recognition and enforcement of GAFTA award,
has adopted a different approach to accrual of the post-award interest in
the context of the public policy. By its the decision dated 15 May 2018,
the Supreme Court found that accrual of interest on debt by an executor
is not prohibited by law and not contradict the public policy of Ukraine.
Thus, the court concluded that the interest accrual procedure should,
until the moment of execution, be determined in order to keep the
balance between the claimant’s private interest in recovery in the amount
set by the arbitral award and public interest in enforcement of such
award.21

It is also worth mentioning that until recently the Ukrainian courts

were reluctant to apply arbitrability rules of the Article V (2) of the New
York Convention if none of the parties invoked public policy or
arbitrability exceptions. However, in its recent case the Supreme Court
considering the issue of recognition and enforcement of the Partial Award
of 25 July 2016 rendered by Arbitration Institute of the Stockholm
Chamber of Commerce (SCC) in a high-profile case involving Ostchem
Holding Ltd and Odesa Portside Plant clarified the lower court’s
obligation to check ex officio compliance with public policy and
arbitrability rules of the Article V (2) of the New York Convention.
Specifically, one of the reasons for cancellation of the lower court
decisions was the failure of those courts to check whether enforcement of
the above SCC award would violate Ukrainian public order.22

In addition, the Law of Ukraine “On International Private Law”

introduced in June 2018 a prohibition to recognize and enforce foreign
court judgments on the recovery of the monetary debt from Ukrainian
military entities that has significant purpose for economics and national
security in favour of the Russian Federation or Russian enterprises.

In addition, the Law of Ukraine “On International Private Law”

21Ruling of the Grand Chamber of the Supreme Court dated 15 May 2018 in case
No. 759/16206/14-ц
22Resolution of the Supreme Court dated 27 June 2018 in case No. 519/15/17
UKR-26 ENFORCEMENT OF MONEY JUDGMENTS

introduced in June 2018 a prohibition to recognize and enforce foreign

court judgments on the recovery of the monetary debt from Ukrainian
military entities that has significant purpose for economics and national
security in favour of the Russian Federation or Russian enterprises.

5. Describe any requirements of your country with regard to

showing reciprocity between the court of origin and your
country.

As regards the reciprocity principle between Ukraine and the country

of the court of origin and the requirements of a decision subject to
recognition and enforcement in Ukraine, it shall be presumed that
reciprocity exists unless it is proved otherwise. For more details please
see our comments provided in Question I. (A) hereof.

6. Indicate whether the courts of your country will review the

merits of the case before granting enforcement.

Ukrainian courts may not review the merits of the case, decided by a
foreign court or arbitral tribunal. The motion for granting enforcement
of a foreign judgment may only be considered within the specific limits
described above (see Question III.(A).1. hereof). The courts may not
examine the correctness of the said judgment, nor may they introduce
any changes therein.

7. Describe whether the courts of your country will examine if

the court of origin applied the same rules of law which a court
in your country would have followed had it heard the case
originally (i.e., the proper choice of law).

The Ukrainian courts may not examine the foreign judgment as to the
correctness of the determination of applicable law (see Question
III.(B).6. above), unless recognition of such judgment may lead to
violation of Ukrainian public order (see Question III.(B).4. above)
8. Describe whether enforcement of a judgment will be denied
if the underlying cause of action is barred under your
country’s statute of limitations.

The Civil Procedural Code does not provide for the expiry of the
limitation period in respect of the underlying cause of action as a ground
for refusal in granting the enforcement of foreign judgments. At that, the
 UKRAINE

court may not examine the foreign judgment as to the compliance of the
original action with the Ukrainian statute of limitation.

9. Describe any other requirements or defenses which could

prevent the enforcement of a judgment. [Ed. Note: For
example: fraud in the original action; a prior inconsistent
judgment; the original court was an inconvenient forum; etc.]

Please see Question III (A)(1).