The new Law on International Private Law came into force on September 1 2005. It sets out a number of types of cases in which Ukrainian courts claim exclusive jurisdiction and relates particularly to cases involving non-Ukrainian parties. If such a case is decided by a foreign court, it is likely that the decision will not be legally recognized or enforced in Ukraine. The entry into force of the law coincided with the introduction of the new Codes of Civil and Administrative Procedure.

The general framework for jurisdictional issues in Ukrainian law is based on the Codes of Civil, Administrative and Commercial Procedure although additional regulations have been developed in bilateral and multilateral treaties - one of the most significant being the Minsk Convention.(1)

The new law provides a comprehensive set of regulations governing various forms of legal relations with foreign elements. Article 1 states that a 'foreign element' is deemed to exist where:

• at least one of the participants in legal relations is a citizen of a foreign state, a stateless person or a foreign legal entity;
• the subject of legal relations is located in a foreign state; or
• a legal fact that determined the commencement, alteration or termination of legal relations occurs or occurred in a foreign state.

The legislation covers issues such as:

• the status of physical and legal persons;
• legal agreements;
• power of attorney;
• limitation of action; and
• the law of obligations.

Article 77 of the law provides that Ukrainian courts have exclusive jurisdiction:

• where disputed immovable property is located in Ukraine;
• in cases concerning relationships between children and parents, where all parties are resident in Ukraine;
• if the testator in a probate case was a citizen and resident of Ukraine;
• if a dispute arises from the registration of IP rights which are secured by registration or patent certification in Ukraine;
• if a dispute relates to the registration or dissolution of foreign companies, non-governmental organizations, charitable foundations or other associations, or an individual's business in Ukraine;
• if a dispute relates to the validity of records in one of the Ukrainian state registries, including the Companies' Register, Register of Immovable Property Owners and the Land Registry;
• if the debtor in an insolvency case was established under Ukrainian legislation;
• in cases involving the issuing or liquidation of securities officially registered in Ukraine;
• in cases in which an adoption took place or is taking place in Ukraine; and
• in other cases where Ukrainian law provides that national courts take precedence.

Articles 396 and 401 of the Code of Civil Procedure already provide that the decision of a foreign court on an issue which is deemed to fall within the exclusive jurisdiction of the Ukrainian courts or other competent bodies may not be legally recognized or enforced. However, Article 3 of the new law follows conventional legislative practice in Ukraine in stating that, if an international treaty to which Ukraine is a signatory makes provisions other than those established by the new law, the provisions of the international treaty shall be applied.

Litigious parties in disputes with a foreign element would be well advised to check all relevant bilateral or multilateral treaties to which Ukraine is a signatory.

Endnotes

(1) The Minsk Convention on Legal Assistance and Legal Relations in Civil, Family, and Criminal Cases, signed on January 22 1993, has been in force in Ukraine since April 14 1995. The convention has been ratified by most of the Commonwealth of Independent States.