SURVEY LETTER OF THE SUPREME ECONOMIC COURT OF UKRAINE

of November 29, 2007 No. 01-8/917

About some questions of court practice of application of the Charter of the railroads of Ukraine, other regulations of the transport legislation

The Supreme Economic Court of Ukraine generalized court practice on application of some regulations of transport law and according to the procedure of information and for accounting in hearing of cases sends the survey letter for data of economic courts of Ukraine.

1. Observance of pre-judicial pretentious procedure for dispute settlement which arises according to the transportation agreement of load the railroad based on the Charter of the railroads of Ukraine is not obligatory.

The agreement on the international railway freight traffic (SMGS) and the Convention on the international rail haulings (KOTIF) provide obligatory pre-judicial pretentious procedure for dispute settlement.

Based on the solution of the Constitutional Court of Ukraine of 09.07.2002 of N15-rp/2002 on the case of pre-judicial dispute settlement the Resolution of the Cabinet of Ministers of Ukraine of N1973 made of 25.12.2002 changes to the Charter of the railroads of Ukraine according to which observance of pretentious procedure for presentation of requirements to carrier is not obligatory, non-compliance with pre-judicial procedure for dispute settlement is not obstacle for the address with the claim directly in economic court.

The law of Ukraine of 23.06.2005 "About modification of some legal acts of Ukraine on pre-judicial dispute settlement" makes corresponding changes in Civil, Economic and Economic procedural codes of Ukraine which legislatively fixed non-obligation pre-judicial dispute settlement which arise according to the transportation agreement in the internal message based on the Charter of the railroads of Ukraine.

As for pretentious procedure for dispute settlement which arise on international carriages of loads based on CIM documents - SMGS, the international treaty according to Article 10 of the Civil code of Ukraine existing which regulates civil legal relationship which consent to be bound is provided by the Verkhovna Rada of Ukraine is part of the national civil legal system of Ukraine.

If the existing international treaty of Ukraine signed in the procedure established by the law contains other rules, than those which are established by the relevant act of the civil legislation are applied rules of the corresponding international treaty of Ukraine.

Item 6 of article 315 of the Economic code of Ukraine provides that in the disputes connected with international carriages of loads, the procedure for presentation of claims and terms of limitation period are established by transport codes or charters or international treaties which consent to be bound is provided by the Verkhovna Rada of Ukraine.

By item 4 of the Charter of the railroads of Ukraine it is also determined that transportation by the railroads of loads, passengers, baggage and cargo baggage in the international message is performed according to agreements on railway international services.

Considering requirements of part one of Article 4 of the Economic Procedure Code of Ukraine, the economic court solves economic disputes based on the Constitution of Ukraine, the Law of Ukraine "About economic courts", this code, other legal acts of Ukraine, international treaties which consent to be bound is provided by the Verkhovna Rada of Ukraine; also the part three of the same Article provides that if in international treaties of Ukraine which consent to be bound is provided by the Verkhovna Rada of Ukraine other rules are established, than those which are stipulated by the legislation Ukraine then are applied rules of the international treaty.

The regulation of Article 5 of the Economic Procedure Code of Ukraine provides that the procedure for pre-judicial dispute settlement is determined by this Code if other procedure is not established by the legislation existing in the territory of Ukraine which regulates specific type of the economic relations which, in particular, the Agreement about international railway cargo the message (SMGS) and the Convention on the international rail haulings (KOTIF) are.

By provisions of paragraph 1 of article 30 of the Agreement on the international railway freight traffic the right of presentation of the claim which is based on the transportation agreement belongs to that person who has the right to declare the claim of the railroad. The claim can be made only after the statement of the claim according to requirements of article 29 of this Agreement.

In article 3 of this Agreement the words "railroad" are understood as all railroads of one country. Besides, the application N19 to the Agreement is installed by the list of names and addresses of bodies of the railroads, competent to review the complaints - such single body in Ukraine is the Head commercial department of Ukrzheldortrans therefore the claim and the claim need to be declared to Ukrzheldortrans.

Article 53 of the Convention on the international rail haulings (KOTIF) which Ukraine joined the Law of Ukraine of 05.06.2003 contains similar regulations on obligation of pre-judicial pretentious procedure for dispute settlement.

2. The agreement on the international railway freight traffic is acting in Ukraine according to the Law of Ukraine "About successorship of Ukraine" and "The Vienna convention on successorship of the states about agreements".

Though the Verkhovna Rada of Ukraine did not consider and did not ratify the Agreement on the international railway freight traffic, this Agreement is effective in Ukraine, considering the following.

According to the Law of Ukraine "About successorship of Ukraine" of 12.09.1991 Ukraine is legal successor of the rights and obligations according to international treaties of USSR which do not contradict the Constitution of Ukraine and interests of the republic.

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