1. On 19 September 2012 the Constitutional Court of Ukraine ruled that Art. 61 of the Family Code of Ukraine must be understood to mean that charter capital and property of a private enterprise are joint property of spouses. Given this, while conducting business activity one should take account of the possibility that the spouse of the owner of a private enterprise may use this judgment of the Constitutional Court to challenge loan agreements, contract of guarantee or pledge agreements of the private enterprise owned by his or her current or former spouse.

2. The Higher Commercial Court of Ukraine (the HCCU) in its information letter No. 01-06/1258/2012 dated 19 September 2012 discussed some issues arising in interpreting Arbitration Tribunals Law which is the main piece of legislation governing domestic arbitration in Ukraine.

   In particular HCCU opined that if an arbitration clause had been entered into before Arbitration Tribunal Law came into effect and the matter in dispute was not later recognized as non-arbitrable, then:

   1. The dispute is within the jurisdiction of commercial courts if there is no objection from the defendant.
   2. If the defendant insists that the dispute be transferred to the arbitration tribunal and the arbitration clause is effective, then the commercial court has to dismiss the case.

   But if the dispute, under the conditions described above, is not arbitrable, such an arbitration clause does not deprive the parties of the right to litigate in the commercial courts.

3. Given the multitude of issues raised in by the practical implementation of the new Court Fee Law the HCCU issued its letter dated 17 September 2012 No. 01-06/1260/2012 providing information of how documents proving the payment of the court fee must be prepared.

   HCCU stressed that drafting of payment orders is subject to regulation by Payment Systems and Funds Transfer Law and regulations of the National Bank.

   Should the commercial court have a doubt that the payment has in fact been made to the state treasury, it may direct the taxpayer to provide the court with a certificate issued by the State Treasury of Ukraine evidencing the fact of payment.

   Payment orders must be filed only in original and must contain information regarding the purpose of payment.

4. The Letter dated 17 September 2012 No. № 01-06/1259/2012 explains HCCU's position with regard to prosecutors filing claims in interests of the State.

   In particular HCCU recalled that under Article 121 of the Constitution and a judgment of the Constitutional Court the prosecutor can file claims only in the interests of the State but not in the interests of companies, institutions, organizations of any type or legal form.

   Thus if the case is commenced by prosecutor it is up for the commercial court to evaluate whether the prosecutor has identified the plaintiff in accordance with these principles. If the prosecutor failed to define the plaintiff correctly (for instance the case is filed on behalf of a private company), the court must dismiss the case without consideration or if the case has already been initiated it must be terminated.

For further information please contact managing partner Oleksiy Didkovskiy
and senior associate Andriy Pozhidayev