RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF UKRAINE

of December 24, 1999 No. 12

About practice of consideration by courts of petitions for recognition and execution of foreign judgements and arbitration and about cancellation of the decisions passed according to the procedure of the international commercial arbitration in the territory of Ukraine

Generalization of practice of consideration by courts of petitions for recognition and execution of foreign judgements and arbitration and about cancellation of the decisions passed according to the procedure of the international commercial arbitration in the territory of Ukraine demonstrates unequal approach of courts to determination of conditions under which foreign judgements are subject to recognition and forced execution in Ukraine, and availability of mistakes by consideration of petitions for cancellation of the decisions passed according to the procedure of the international commercial arbitration in its territory.

Due to the need to provide the identical solution of the specified questions and steady observance at the same time of provisions of regulatory legal acts which regulate them the Plenum of the Supreme Court of Ukraine DECIDES to make to courts such explanations:

1. Consideration by courts of petitions for recognition and execution of foreign judgements and arbitration is special form of mutual legal assistance which is provided by Ukraine and other participating states of the corresponding international treaties.

In case of their decision courts shall proceed from provisions of Art. 84 of the Law of April 21, 1999. "About enforcement proceeding", Articles 35, 36 Laws of February 24, 1994. "About the international commercial arbitration" and the corresponding international treaties of Ukraine which provide procedure for recognition and execution of foreign judgements and arbitration and to consider that according to Art. 9 of the Constitution of Ukraine the international agreements which consent to be bound is provided by the Verkhovna Rada of Ukraine are included into the national legal system of Ukraine and that according to the Law of December 10, 1991. "About action of international treaties in the territory of Ukraine" such agreements are applied in Ukraine according to the procedure, provided for regulations of this legislation.

At the same time it is necessary to proceed also from general rules that the international agreements on legal assistance extend only to subjects of the participating states and that in the presence between participants of multi-lateral agreements also agreements of bilateral or special agreements concerning legal assistance the relevant standards of those contracts and agreements which took effect later shall be applied.

Concerning recognition and execution of the foreign judgements and arbitration which is not settled by the legislation of Ukraine according to the Resolution of the Verkhovna Rada of Ukraine of September 12, 1991. "About procedure for temporary action in the territory of Ukraine of separate acts of the legislation of USSR" relevant provisions of the Decree of Presidium of the Verkhovna Rada of the USSR of June 21, 1988 are applied in the borders established by it. "About recognition and execution in the USSR of foreign judgements and arbitration" (further - the Decree).

The timely and correct solution of the specified petitions promotes increase in the international authority of Ukraine.

2. According to Art. 2 of the Decree competent courts of Ukraine on consideration of petitions for recognition and execution of foreign judgements and arbitration are regional, Kiev and Sevastopol city courts and the Supreme Court of the Autonomous Republic of Crimea in the place of residence (stay) of the debtor and if the last in Ukraine has no it, - in the location of its property.

The petition for cancellation of the decision (resolution), taken out according to the procedure of the international commercial arbitration in the territory of Ukraine, are also considered by courts of this level at the arbitration venue (Articles 6, of 16, 34 Laws "About the International Commercial Arbitration").

If the foreign judgment (arbitration) for which execution in Ukraine it was granted permission by competent court is not completely performed and returned to vzimatel (because of disposal of the debtor for borders of Ukraine and so forth), in case of the request of vzimatel for continuation of its execution the last is performed according to earlier granted permission.

If the foreign judgment (arbitration) is made concerning several debtors whose part does not live (is not) in Ukraine and has no property in its territory, the court considers question of recognition and execution of this decision only concerning debtors who live (are) in the territory of Ukraine or have property there.

Free of charge for the applicant and the debtor only consideration by competent court of Ukraine of the petition for recognition and execution of the foreign judgment and arbitration is performed. When giving by such court permission to forced execution of the decision in the territory of Ukraine it is performed by the corresponding rules of the Law "About Enforcement Proceeding", including on compensation of court costs on carrying out executive actions.

3. Courts shall find out availability of international treaties on mutual provision of legal assistance between Ukraine and the state, about recognition and execution of the judgment or arbitration of which the petition arrived. At present are acting, in particular, such international agreements on this matter which were concluded by Ukraine or which she joined:

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