Ukraine: Pros And Cons Of The Revised Economic Procedure Code

Last Updated: 25 July 2019
Article by Yulya Stusova and Andriy Hradov

Revisiting of the procedure codes was one of the important components of the Judicial Sector Reform Strategy 2015-2020 implementation; the Strategy is primarily aimed at practical implementation of the rule of law principle and ensuring that judiciary meets public demand for justice, as well as is compliant with European values and standards of human rights protection.

It was commonly accepted that the Economic Procedure Code of Ukraine required revisting in the first place. Despite the fact that the procedural issues of litigation in economic courts were clear and detailed, the vast majority of such details was provided by regulations of the plenums of the Supreme Court of Ukraine and the Supreme Economic Court of Ukraine rather than the Code itself.

The new version of the Economic Procedure Code of Ukraine (hereinafter – the EPC of Ukraine) has indeed been improved compared to its "predecessor": the Code is more structured and clearly defines actions which may be carried out by the parties at each stage of litigation; it also introduced brand new mechanisms thereto. At the same time, some deficiencies have been identified during the first 1,5 years of Code's application. Such deficiencies need to be removed, including through the amendments to the relevant legislation.

Based on the available case-law, we can note following major "pros" and "cons" of the revised EPC of Ukraine.

Achievements of the economic procedure

Clear procedural deadlines and limits for each stage of a case review have been determined.

First of all, introduction of clear procedural deadlines and limits of each stage of court proceedings is a great achievement, indeed. The previous version of the EPC of Ukraine did not provide for any "stages" of the court proceedings – there was no stage of preparatory proceedings (Article 63 of the previous version of the EPC of Ukraine determined possible actions of the judge aimed at preparation of the case for consideration, but they were not obligatory), the moment of commencement of a case review on the merits was not determined, etc. At the same time, according to the previous version of the EPC of Ukraine, the plaintiff had the right to submit an application to change the grounds or subject of the claim only before the commencement of a case review on the merits. The judicial practice addressed this issue to mitigate this gap.

Thus, Paragraph 3 Clause 3.12 of the Resolution of the Plenum of the Supreme Economic Court of Ukraine dated December 26, 2011, No. 18 "On Certain Issues Related to Application of the Economic Procedure Code of Ukraine by Courts of First Instance" provides that consideration of a case on the merits shall commence at the moment when the economic court starts consideration of claims following completion of case preparation for review, opening of a court session, clarification (if necessary) of rights and obligations of the parties' and other participants of the court proceedings, deciding on other petitions and applications (on adjourning the case, participation of other persons, requesting additional evidence, etc.); the court thereafter shall proceed directly with the establishment of the circumstances of the case and their legal assessment in the manner prescribed by the EPC, which shall be properly recorded in the minutes of the court session.

In addition, provisions of the amended EPC of Ukraine expressly determine the deadlines of consideration for each stage of the legal proceedings: 60 days for preparatory proceedings, 30 days for consideration of the case on the merits, 60 days for simplified proceedings, etc. This approach fully corresponds to the principle of reasonable timing for case consideration.

We find it a true benefit that currently each stage of legal proceedings with all procedural actions, undertaken (or not), is addressed in detail by a single legislative act. This approach confirms with the basic principle of legal certainty.

Deficiencies are not taken as a "disaster" any longer

Another particularly important and positive EPC amendment is the suspension of the statement of claim (statement of appeal and cassation claim) in case of any deficiencies which can be removed without dismissal. Any practicing lawyer will definitely agree that this amendment makes the life significantly easier for the case participants. The previous version of the EPC provided for returning or dismissal of the claim in the event of any deficiency (even if such was not meaningful). In practice it resulted in protraction of the case review, and sometimes even in procedural deadlines being missed by a respective party (for example, the deadline for filing a statement of appeal), which the court could refuse to prolong at the later stage.

Simplified and writ proceedings

Revised EPC of Ukraine provides for such types of proceedings as simplified and writ proceedings, which can also be deemed as a great achievement, since such proceedings are expected to be more time and cost efficient to the parties involved. According to the provisions of Article 247 of the EPC of Ukraine, simplified proceedings are intended for consideration of small claims, as well as any other cases under the jurisdiction of an economic court, save for certain exceptions listed by Part 4 of the above Article (for example, corporate disputes, disputes regarding protection of intellectual property rights). In its turn, writ proceedings may apply to consideration of cases for recovery of monetary debts under agreements executed in writing (including in e-form) provided the amount of the claim does not exceed one hundred living wages for able-bodied persons.

Development and introduction of simplified forms of legal proceedings has been on the agenda since 1981 and aimed at reducing the financial burden incurred by individuals, as well as reducing the timeframes of the proceedings. Thus, Clause 8 of the Recommendation R (81) 7 of the Committee of Ministers to Member States on Measures Facilitating Access to Justice dated 14 May 1981 provides that Member States of the Council of Europe should take all possible efforts to reduce the time for making a decision in the case. Therefore, it was recommended to cancel outdated procedures that had no practical value and to staff the courts with sufficient personnel that would contribute to facilitation of proceedings in a more efficient manner, as well as would develop mechanisms to monitor the progress of the proceedings from the start thereof. It is obvious that the core ideas of the above recommendation and the best practices of the EU countries were observed in terms of the new EPC drafting.

Introduction of the institute of witnesses in the economic proceedings

Another positive and progressive step towards improving the EPC of Ukraine was the introduction of the institute of witnesses in the economic proceedings. Traditionally, testimony of witnesses is associated with a civil or criminal litigation, but the parliament decided to supplement the list of sources of evidence in the economic proceedings, hence opening wider opportunities for a party to substantiate his/her legal position.

At the same time, revised Code reasonably limits the number of circumstances that can be established on the basis of witness's testimony. In particular, in accordance with Article 87 (2) of the EPC of Ukraine, circumstances (facts) that are recorded (laid down) in relevant documents as provided by law or business practices cannot be established on the basis of witness's testimony.

Rendering of an expert opinion requested by a party shall have the status equivalent to a conclusion of an expert examination appointed by the court

Also, we should note pros of Part 1 Article 101 of the EPC of Ukraine, according to which a party in the case shall have the right to file an expert opinion made on its request. Under Part 3 Article 98 of the EPC of Ukraine, an expert opinion made at the request of a party to the case and expert conclusion made as the result of an expert examination appointed by the court shall be treated as equivalent evidence.

The possibility of filing the conclusion of an expert examination issued at the request of a party to the case is appreciated by the legal community given that this instrument allows reduced timing of a case review.

Introduction of the concept of abuse of procedural rights and establishment of liability for such actions

Introduction of liability for the abuse of the procedural rights by the parties has been one of the most discussed topics within the legal community. "Procedural abusers" quite effectively used gaps in the previous EPC of Ukraine to delay proceedings and "influence" results thereof.

The list of abuses in the amended EPC of Ukraine includes the most common methods of proceeding protracting used by unscrupulous parties, such as filing appeals against a judgment that is not the subject to appeal, is not in force yet (already expired); filing motions (petitions) to resolve issues that have already been decided by the court in the absence of other grounds or newly-discovered circumstances; apparently unjustified challenging or other similar actions aimed at groundless delay or interruption of the case review or enforcement of court decisions.

We should separately note the following procedural abuses commonly used by unscrupulous parties in order to interfere the review and influence the outcome of the case: (1) filing several claims against the same respondent (respondents) with the same subject matter and on the same grounds, or filing several claims with a similar subject matter and on similar grounds, or carrying out other actions aimed at manipulating the automated allocation of cases; (2) filing an apparently unsubstantiated claim, or a claim not based on a dispute, or a claim resulting from apparently artificial dispute; (3) unreasonable or artificial consolidation of claims in order to change the jurisdiction of the case, or apparently unreasonable involvement of a person as the respondent (co-respondent) for the same purpose.

Now onward, if the court finds that the party or its representative abuses procedural rights, it may apply procedural restraints and even impose court fees upon such party, regardless of the outcome of the dispute.

We should separately note the novelty of the economic proceedings, which has both pros and cons for the parties – the small claims

According to the provisions of Clauses 1 and 2 Part 5 Article 12 of the EPC of Ukraine, small claims are: 1) cases, which amount does not exceed one hundred living wages for able-bodied persons; 2) not complicated cases recognized by the court as insignificant, except for the cases subject to consideration under the rules of regular proceedings only, and cases which amount exceeds five hundred living wages for able-bodied persons.

One of the specific features of small claims is that they cannot be revised in the court of cassation, except for cases mentioned in Sub-clauses (a) – (d) of Clause 2 Part 3 Article 287 of the EPC of Ukraine, namely: a) the cassation claim concerns a right that is crucial for the development of a uniform law enforcement practice; b) the person filing the cassation claim is deprived of the possibility to refute the circumstances established by the challenged decision in terms of another case; c) the case is publicly sensitive or is particularly important to the party filing the cassation claim; d) the court of first instance has mistakenly classified the case as "minor".

In this context, we believe that the limitation of the possibility to file a cassation against certain categories of cases may be demed as an achievement of the new EPC of Ukraine. First of all, this helped reducing the "workload" of cassations courts, and allowed them focusing on the most important legal issues. This novelty is fully in line with the international regulations and ECHR's case-law.

In accordance with the established practice of the European Court of Human Rights (for example, Ponomarov v. Ukraine, Riabykh v. Russia, Nieliubin v. Russia), revision by the supreme judicial bodies shall be aimed at correcting mistakes made by courts, as well as deficiencies of the judiciary rather then conducting yet another review; revision should not replace the appeal itself, and the mere fact of existence of two contradicting opinions shall not serve as the grounds for a new consideration.

Similar opinion was expressed by the Cassation Administrative Court within the Supreme Court of Ukraine in case No. П/811/1170/16 whereby the Court stated that revisiting a case in the cassation proceedings, the Supreme Court of Ukraine being the highest judicial body pursuant to Part 3 Article 125 of the Constitution of Ukraine, shall act as a "court of law" and shall consider disputes having the utmost importance for the public and the state. Thus, the Supreme Court within the law-enforcement activities is able to ensure individual benefit, taking into account the fact that a person, his/her life and health, honor and dignity, inviolability and security are recognized as the highest social value in Ukraine.

Despite the fact that the introduction of the institute of small claims was a significant step forward, many issues arising from this category of cases have been detected in practice.

As an example, we can refer to the uncertainty of the consequences of a court decision to review small claims under the rules of regular proceedings. Thus, in accordance with Part 6 Article 250 of the EPC of Ukraine, when the court decides to consider the case in the simplified procedure, and further at its own initiative or at the request of a party to the case, it subjects the review to the rules of the regular proceedings, the consideration of the case shall begin with the stage of the proceedings commencement.

At the same time, in accordance with Part 2 Article 12 of the EPC of Ukraine, regular proceedings are intended for consideration of cases which, due to their complexity or other circumstances, may not be considered within the simplified proceedings. Thus, a logical question arises on whether a claim ceases to be small once it changes the category from simplified to regular.

Unfortunately, the EPC of Ukraine is silent in this regard; the court practice is unable to give a straightforward answer, as well. We believe that if a minor case changes the type of proceedings from simplified to regular, the claim shall cease to be deemed small, since the appointment thereof for review under the rules of regular proceedings means that the case is not minor and is more complicated given the nature of the legal relations involved. In its turn, this undermines representation by any procedurally capable person, and requires the parties to engage attorneys.

Regardless of all the pros of the revised EPC, it has some cons as well.

Deficiencies detected over the 1.5 years following effectiveness of the new EPC of Ukraine

We should note that the court practice found that certain promising amendments may in practice have negative consequences for the parties.

Disqualification of a judge – exercising the right to impartial trial or abuse of procedural rights?

Mechanism of a judge disqualification aimed at removing judges whose impartiality is doubted is one of the procedural guarantees of the performance of the tasks envisaged by the economic proceedings and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Revised version of the EPC of Ukraine contains an improved disqualification mechanism as compared to the previous version of the Code. Even if a judge considering the case decides that the disqualification is groundless, respective motion must be considered by another judge (who is not a member of the panel of judges considering the case). Such mechanism of consideration should have resulted in genuinely unbiased decision under disqualification motion.

However, judges managed to find a countervailing mechanism aimed at overcoming the disqualifications. With reference to Article 43 of the EPC of Ukraine courts find a motion for disqualification of a judge to be an abuse of procedural rights and dismiss or return such motion to an applying party. This mechanism ensures the possibility of "avoiding" the motion review by another judge appointed by the system of automated allocation of cases.

Transfer of the case file to the court of appeal/cassation in case of challenging of certain court rulings

Another disadvantage of the amended EPC of Ukraine, which is used by many so-called "procedural abusers", is Clause 17.10 of the Transitional Provisions whereby filing of an appeal against decisions of the court of first instance envisaged by Clauses 1, 6-8, 10, 12-14, 17-21, 31-33 of the Part 1 Article 255 of this Code (for example, return of the statement of claim to the applicant (plaintiff), or filing a cassation claim against a ruling of the court of appeals (except for injunctive relief, change of interim remedies, counter injunctive relief, charging fines under procedural restraints, separate rulings) shall require transfer of the case file. Along with the transfer of the entire case file, the court makes a ruling to suspend the proceedings.

Unfortunately, the above clause of the Transitional Provisions of the Code opens a room for interpretations intended to delay a case consideration and is used by many unscrupulous parties. Even if the court of appeal/cassation refuses to commence proceedings under the claims against the above ruling, the transfer of the case file from one court to another (and returning it back) may take up to several months, which violates one of the principles of a fair trial, i.e. the reasonable timing of the case review.

Practical difficulties faced by the third parties regarding their right to appeal a court decision provided the rights and obligations of a respective third parties are affected by such decision.

Article 17 of the EPC of Ukraine stipulates that persons who did not take part in a case shall have the right to request its revisiting by the court of appeal and or cassation (in cases determined by law) provided the court decided on their rights, interests and/or obligations. However, revised Code, as well as its previous iteration, does not specify in which cases a judgement shall be deemed to concern rights and obligations of a person not being a party to the case. As a result, courts in practice tend to limit such list to the extent possible.

For example, the Supreme Court stated in the case No. 911/2635/17 that: "The decision shall be deemed to tackle the rights and obligations of a person who was not involved in the case review provided the reasoning part of the decision contains court conclusions in respect of the rights and the obligations of such person, or the court expressly indicated the rights and obligations of such persons in the operative part of the judgment". However, if the person whose rights and interests may be violated is not explicitly mentioned in the text of the judgment, it is considered that such person's rights were not violated.

Hence, if the judgment expressly mentions the impact made on the rights and obligations of any person who was not involved as a party to the case, such judgement shall be canceled. As a general rule, however, judgements do not expressly refer to the third parties' rights not involved in the case. It is even more so when it comes to inheritance disputes, as well as corporate legal relations.

In our opinion, such approach makes the institution of appeal of a judgment by a person that was not a party in the case only theoretical and illusory.

Summarizing above, we note that the revised version of the EPC of Ukraine has been significantly improved compared to the previous iteration thereof. The introduction of such novelties as writ and simplified proceedings, witness's testimony, and a clear determination of the limits and terms of each stage of the proceedings may be viewed as positive changes in the economic proceedings. At the same time, certain provisions the EPC of Ukraine were not thoroughly developed and effected, therefore we are looking forward to seeing the case-law, which would "clarify" certain provisions of the revised EPC; we also expect that the parliament will remove detected deficiencies.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions