UKRAINE Law and Practice Contributed by: Oleksandr Mamunya, Ganna Prokhorova, Nataliia Badora and Ihor Kharytonov, Mamunya IP
It must be noted that Ukrainian judges are very reluctant to order costs recovery and will likely use any procedural defect in a legal position or evidence provided by the recovering party to deny recovery. It is also common for them to essentially decrease the attorney’s fees, even if the latter are supported by proper evidence. 9. Alternative Dispute Resolution 9.1 Type of Actions for Intellectual Property Alternative dispute resolution is not a common way of settling an intellectual property case and is not common in Ukraine. Effective law provides for two kinds of ADR procedure: • settlement of dispute with the participation of the judge; and • mediation. Settlement of Dispute with the Participation of the Judge This procedure may be initiated during pending court proceedings. It is governed by the Code of Ukraine on Commercial Proceedings and the Code of Ukraine on Civil Proceedings. The judge may resort to this procedure before consideration of the case on merits begins – if the parties agree. The judge stays the proceed- ings and commences a series of confidential meetings with the parties – joint (with all par- ties present) and closed (only one party is pre- sent). The judge will inquire about the parties’ positions, possible settlement options and may offer settlement options of their own. In closed meetings, the judge may also draw the party’s attention to relevant jurisprudence. However, in no case is the judge permitted to give an opinion
on the evidence in the case file, or provide legal advice to the parties. The term for settlement of dispute with the par- ticipation of the judge is no more than 30 days and may not be extended. This procedure ends: • if either party files a statement; • if the 30-day term expires; or • if the judge finds any party attempting to delay negotiations. The procedure may not be prolonged or started over, and the ruling to finish the settlement may not be appealed. The end of the procedure also causes the transfer of the case to another judge. If the procedure bears fruit, it may end with the one or both parties undertaking respective actions as agreed between them (settlement agreement, motion to leave the claim without consideration and not issue judgment on the merits, withdrawal of the claim, or admitting the claim). Mediation This procedure is governed by the Law of Ukraine “On Mediation”. It is possible before filing the lawsuit and/or at any stage of the proceedings, including the stage of enforcing court decision. Mediation is voluntary and confidential. It is con- ducted by an independent, neutral, non-biased mediator, whose job is to help the parties com- municate, negotiate and come to an agreement. They are not permitted to: • combine the mediator’s function with that of any other participant in the conflict; • provide the parties with consultations and recommendations on the decision on the merits of the dispute;
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