The Law of Ukraine
On Introducing Amendments to Some Legislative Documents of Ukraine
Related to Out-of-Court Settlement of Disputes
Date of entry into force:
July 22, 2005
July 22, 2005
The present Law introduced amendments to the Trade Navigation Code of Ukraine (Articles 218 and 383). According to these amendments, the failure of the parties to adhere to the procedure for out-of-court settlement of a dispute shall not be an obstacle to file a claim with a court according to the procedure established by the law. It shall also be established that, before filing a claim against the carrier of cargo that arises from overseas transportation of cargo, it shall be possible but not mandatory to make a claim to the carrier, unlike it is envisages in the effective wording of the Code.
Also, the present Law introduced amendments to sub-item 12.4.2 of item 12.4 of Article 12 of the Law of Ukraine “On Corporate Profit Tax”. According to these amendments, in the instance when, in compliance with the conclusion of the relevant authorized body, force majeure circumstances and circumstances of a natural disaster are of temporary nature and do not influence the legal capacity of the debtor to pay the debt after these circumstances are over, the creditor may (in the effective wording – shall have to) submit a claim to the debtor regarding the payment of the above-mentioned debt.
The present Law introduced amendments to Article 8 of the Decree of the Cabinet of Ministers of Ukraine “On State Duty”. According to these amendments, the sum of state duty that was paid shall be returned in part or in full (inter alia) in the instances when proceedings in the relevant case are terminated or the claim was left without consideration, when the case is not subject to consideration by a court or by a commercial court, or when the relevant claim was submitted by an incapable individual. It is proposed to exclude the provisions, according to which the sum of state duty that was paid shall be returned in part or in full when proceedings in the relevant case are terminated, if the case is not subject to the consideration by courts, or if an interested individual that turned to court did not adhere to the procedure for preliminary out-of-court settlement of a dispute that is established for the given category of cases and the possibility to apply this procedure is lost, provided the sum of state duty has already been collected into budget revenues.
A provision was excluded from the Commercial Court of Ukraine. According to this provision, in the instance of violating the established deadlines for examining a claim or leaving a claim without a reply, the court, at the time of settling a commercial dispute, shall collect a penalty from the guilty party in the amount established by the law and channel it into budget revenues. It is also specified that, before filing a claim against the carrier that arises from the relevant contract for cargo transportation, it shall be possible (instead of mandatory as it is stipulated in the effective wording of the Code) to make a claim to the carrier.
Amendments were introduced to the Commercial Procedural Code. According to these amendments, the parties shall apply measures of out-of-court settlement of a commercial dispute on the basis of an agreement between them. Provisions rendering the following shall be excluded from the Code:
- disputes that arise from the relevant contract for transportation, the contract for the provision of communication services and the contract that is based on government contractual works may be transferred for the settlement to a commercial court on condition that the parties have adhered to the procedure for out-of-court settlement of such disputes that is established for the given category of disputes;
- actions based on a statement of a prosecutor or their deputy, the Counting Chamber, the Anti-Monopoly Committee of Ukraine, and its territorial departments shall be brought by a commercial court, regardless whether the parties have resorted to measures of out-of-court settlement of disputes.
The present Law excluded Article 9 “Responsibility for the Violation of the Deadlines for the Consideration of a Claim” and part 2 of Article 24 “Involvement of a Different Defendant in the Participation in a Case. Replacement of an Inappropriate Defendant” from the Commercial Procedural Code of Ukraine. According to part 2 of Article 24, the petition on involving a different defendant in the participation in the case may be satisfied on condition of implementing measures of out-of-court settlement of a dispute with respect thereto in the instances specified in Article 5 “Key Provisions of Out-of-Court Settlement of a Commercial Dispute” of the present Code. The involvement of a defendant in the participation in a case on the initiative of the commercial court may be organized regardless whether the procedure for out-of-court settlement of a dispute was observed.
Also, the present Law introduced other amendments aimed at eliminating the mandatory nature of out-of-court settlement of a dispute.