UKRAINE Law and Practice Contributed by: Olena Perepelynska, Krystyna Khripkova, Nadiya Mykiyevych and Anna Kozyrieva, IMPACTA LAW
parties must be afforded an opportunity to question the expert and present expert witnesses regarding the disputed issues. The ICA Law and the CPCU provide for the court’s assistance in taking evidence, namely through the examination of a witness, the production of evidence, or the inspection of evidence at its location (see 8.3 Powers of Compulsion ). There is no general concept of discovery or disclosure in the ICA Law. However, Article 25 (4) of the ICA Law provides that the tribunal may request the production of evidence from a party (see 8.3 Powers of Compul- sion ). Neither the ICA Law contains specific provisions governing witness statements, cross-examination or legal privilege. Accordingly, these matters are gen - erally left to the parties’ agreement, the applicable arbitration rules and the procedural directions of the arbitral tribunal, subject, where relevant, to any man - datory provisions of the applicable law. 8.2 Rules of Evidence Ukrainian law does not prescribe a separate set of rules of evidence applicable to arbitration. The gen - eral rule is that each party shall prove the facts and circumstances upon which it relies in support of its position ( onus probandi incumbit actori ). Ukrainian law does not establish any standard of proof applicable in arbitration. Ukraine is a civil law jurisdiction and generally applies the “inner conviction” approach, which is often used in international arbitrations seated in Ukraine. However, after the last judicial reform, Ukrainian commercial courts are empowered to apply the balance of prob - abilities standard of proof and some arbitral tribunals apply this standard in arbitral proceedings seated in Ukraine as well. In any case, the rules of evidence applicable in pro - ceedings before Ukrainian courts do not automatically apply to arbitral proceedings. The CPCU applies only in limited circumstances, for example, when court assistance is sought in connection with the taking or preservation of evidence (see 8.3 Powers of Compul- sion ).
The ICA Law grants arbitral tribunals broad discretion to determine the admissibility, relevance, materiality and weight of the evidence (Article 19 (2)), subject to the parties’ agreement and to the requirements of Article 18 that the parties be treated equally and given a full opportunity to present their case. In practice, arbitral tribunals may also draw guidance from internationally recognised soft law instruments, such as the IBA Rules on the Taking of Evidence in International Arbitration, where appropriate and con - sistent with the parties’ agreement. 8.3 Powers of Compulsion An arbitral tribunal seated in Ukraine may request that the parties produce evidence (which may include documents, witness testimony and other categories of evidence). Under Article 25 (4) of the ICA Law, if any party fails to produce evidence at the request of the arbitral tribunal, the tribunal may draw adverse inferences or decide the case based on the evidence available in the record. However, arbitral tribunals seated in Ukraine do not have the power to compel the production of docu - ments or the attendance of witnesses. Where coercive measures are required, judicial assis - tance may be sought. Under Article 27 of the ICA Law, an arbitral tribunal or, with the tribunal’s consent, a party to the arbitration may request the competent court to assist in taking evidence in support of an arbitration seated in Ukraine. Such request may seek the examination of a witness, the production of evi - dence or the inspection of evidence at its location. This request must be submitted to the court of appeal with jurisdiction over the location of the evidence or the witness’s residence. As set out in Article 84 (11) of the CPCU, where the court grants the relevant request, it may order the person in possession of the requested evidence to produce it either directly to the arbitral tribunal or to the requesting party for subse - quent submission to the arbitral tribunal. In its order for the production of evidence, the court shall also determine issues relating to the provision of secu - rity for, or the advance payment of, the reasonable expenses incurred by the person in producing the requested evidence.
1112 CHAMBERS.COM
Powered by FlippingBook