Gathering Evidence in Aid of Foreign Litigation Guide |
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Ukraine |
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(Europe)
Firm
Asters
Contributors
Serhii Sviriba |
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| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | Yes, Ukraine is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”) since 2001. Other relevant statutes include:
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| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | The Ministry of Justice of Ukraine receives court orders/requests from foreign competent bodies or through diplomatic channels and checks the validity and applicability of such orders/requests. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | Information/evidence that can be sought includes serving of court summons or other documents, interrogation of parties or witnesses, the exercise of expert examination or inspection at the location, performing other procedural actions, transferred to them pursuant to the procedure specified in an international treaty, and if it is not concluded, it shall be transferred by means of diplomatic channels. |
| Who bears the burden of showing whether any privileges apply? | There are no provisions in Ukrainian law directly obliging a court and/or Ukrainian central authority (the Ministry of Justice of Ukraine) to check whether any privileges apply when considering a letter of request. However, according to Ukrainian rules of proceedings in civil and commercial matters, a letter of request shall not be admitted for execution if it contradicts the law. Therefore, in our view, if the request concerns information that is privileged under Ukrainian law (e.g., client-attorney privilege, medical secrecy, the seal of confession, etc.), a court has to reject it. Also, considering the letter of request in a competent Ukrainian court, a person concerned may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | No, unless otherwise provided by the relevant international treaty. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | Yes, applicable procedural laws of Ukraine provide for the possibility to conduct depositions by videoconference. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | In accordance with Article 23 of the Hague Evidence Convention, Ukraine will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in common law countries. Also, the letter of request shall not be admitted for the execution, if it:
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| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | There are no provisions in Ukrainian legislation, which explicitly prohibit citizens residing in Ukraine from voluntarily giving evidence in a foreign proceeding. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | No, the arbitration tribunal or a party with the consent of the arbitration tribunal may request from a general court of appeal at the location of evidence (place of witness' residence) assistance in the examination of witnesses, gathering evidence, or inspection thereof at its location (Article 20 of the Law of Ukraine “On International Commercial Arbitration”). |
Gathering Evidence in Aid of Foreign Litigation Guide
Yes.
Yes, Ukraine is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”) since 2001.
Other relevant statutes include:
- An international treaty between Ukraine and the relevant foreign state
- Commercial Procedural Code of Ukraine
- Civil Procedural Code of Ukraine
- Law of Ukraine “On Private International Law”
The Ministry of Justice of Ukraine receives court orders/requests from foreign competent bodies or through diplomatic channels and checks the validity and applicability of such orders/requests.
Information/evidence that can be sought includes serving of court summons or other documents, interrogation of parties or witnesses, the exercise of expert examination or inspection at the location, performing other procedural actions, transferred to them pursuant to the procedure specified in an international treaty, and if it is not concluded, it shall be transferred by means of diplomatic channels.
There are no provisions in Ukrainian law directly obliging a court and/or Ukrainian central authority (the Ministry of Justice of Ukraine) to check whether any privileges apply when considering a letter of request.
However, according to Ukrainian rules of proceedings in civil and commercial matters, a letter of request shall not be admitted for execution if it contradicts the law. Therefore, in our view, if the request concerns information that is privileged under Ukrainian law (e.g., client-attorney privilege, medical secrecy, the seal of confession, etc.), a court has to reject it.
Also, considering the letter of request in a competent Ukrainian court, a person concerned may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence.
No, unless otherwise provided by the relevant international treaty.
Yes, applicable procedural laws of Ukraine provide for the possibility to conduct depositions by videoconference.
In accordance with Article 23 of the Hague Evidence Convention, Ukraine will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in common law countries.
Also, the letter of request shall not be admitted for the execution, if it:
- may lead to violation of the sovereignty of Ukraine or endanger its national security;
- does not belong to the jurisdiction of the court;
- contradicts the law or the international treaty.
There are no provisions in Ukrainian legislation, which explicitly prohibit citizens residing in Ukraine from voluntarily giving evidence in a foreign proceeding.
No, the arbitration tribunal or a party with the consent of the arbitration tribunal may request from a general court of appeal at the location of evidence (place of witness' residence) assistance in the examination of witnesses, gathering evidence, or inspection thereof at its location (Article 20 of the Law of Ukraine “On International Commercial Arbitration”).