LETTERS TO THE EDITOR (03/23/97)

LETTERS TO THE EDITOR

Reform efforts are under way

Dear Editor:

Roman Woronowycz's February 16 article on Ukraine's arbitration courts told only half of the story. By profiling only the existing arbitration court [court of specialization], it ignored reform efforts now under way that will transform Ukraine's legal environment and provide a modern and internationally respected commercial dispute resolution system.

Since independence, it has been generally recognized in Ukraine that the arbitration courts - vestiges of the Soviet past - are ill-suited to a modern commercial setting. That is why, under the Ukrainian Constitution, the High Court of Arbitration will perform its functions only until the courts of general jurisdiction are established, but in no event longer than five years. At that time, the arbitration courts will be replaced by specialized commercial courts and a High Commercial Court of Ukraine.

These provisions, together with legislation currently in the drafting stage, will assure that the future commercial courts of Ukraine, like those of Germany, France, Great Britain and other developed nations, will respond to the needs of sophisticated litigants, individual and corporate, and will be conducive to a vibrant business climate.

Among the U.S. organizations involved in the reform of Ukraine's commercial courts are the International Foundation for Electoral Systems, which with the assistance of Judge Bohdan Futey of the U.S. Court of Federal Claims and Attorney Steven Nix provides counsel to the Verkhovna Rada's Committee on Legal Reform; and the Ukrainian Congress Committee of America, whose Commercial Law Project for Ukraine includes commercial dispute resolution reforms.

Legal experts involved in Ukraine in these very significant reforms include: Dr. Viktor Shyshkyn, national deputy and chair of the Subcommittee on Court Reform of the Verkhovna Rada; Judge Vitalii Boyko, chairman of the Supreme Court of Ukraine; and Judge Dmytro Prytyka, chairman of the High Court of Arbitration of Ukraine.

U.S. experts who have worked without compensation to reform commercial courts include: Prof. Thomas Stipanowich, University of Kentucky Law School; Prof. David Clarke, University of Oklahoma Law School; Prof. Winston Nagan, University of Florida Law School; Prof. Peter Winship, Southern Methodist University Law School; and Prof. Ernest Friesen, California Western School of Law.

Patience T. Huntwork
Phoenix, Ariz.

The writer is technical assistance coordinator of the Commercial Law Project for Ukraine.

Ukraine in midst of court changes

Dear Editor:

I applaud The Ukrainian Weekly's efforts to report on the judicial branch of Ukraine. However, in the interests of clarity and accuracy, I wish to correct several inaccuracies contained in the article on Ukraine's judiciary published in the February 16 edition of your newspaper, titled "Ukraine's Court System: the Court of Contracts."

First, it is not true, as reported in the article, that Ukraine's court system has experienced little change since 1991. With the adoption of its new Constitution, Ukraine has established an independent judiciary and created a new system of justice. Shortly after adoption of the Constitution, the Law on the Constitutional Court of Ukraine was enacted, thus creating a Constitutional Court fully empowered to interpret the Constitution and laws of Ukraine.

A second premise of the article is the proposition that Ukraine's judiciary consists of "three separate courts." While it is true that the courts of arbitration currently maintain specialized jurisdiction over certain matters, the Constitution of Ukraine clearly contemplates a partially unified court system consisting of only two entities: the "Constitutional Court and courts of general jurisdiction" with the Supreme Court as the "highest judicial body in the system of courts of general jurisdiction."

The transitory provisions of the Constitution state that the High Court of Arbitration will continue to function in its current form only until the adoption of a law on Ukraine's system of courts of general jurisdiction, at which time the court is anticipated to become part of the courts of general jurisdiction, which will exercise justice, pursuant to Article 12 of the Constitution, based upon "territoriality and specialization." This legislation has been designated a priority by the Verkhovna Rada's Committee on Law Policy and Legal and Judicial Reform, whose members are currently working on a draft law.

While it is true that the lower level courts of arbitration currently "answer" to the High Court of Arbitration, under the new system of courts envisioned pursuant to the Constitution, decisions of that Court will be appealable to the Supreme Court, thus vesting the Supreme Court with appellate review over the decisions of these lower courts.

It is also true that the jurisdiction of the courts of arbitration is limited to economic or commercial disputes between "legal persons," including individuals registered with the Ministry of Justice. However, individuals, for example sole proprietors, may seek relief in the courts of general jurisdiction. Consequently, the courts of arbitration do not maintain exclusive jurisdiction over economic disputes involving individuals, as implied in the article.

Through the efforts of individuals such as National Deputies Volodomyr Stretovych and Viktor Shyshkyn, as well as Supreme Court Chairman Vitalii Boyko and Volodymyr Stefaniuk, Minister of Justice Serhii Holovatyi and the late Prof. Leonid Uzkov, as well as the cooperative efforts of the International Foundation for Electoral Systems, the American Bar Association and the Commercial Law Project of the UCCA and many others, Ukraine is in the midst of a united and determined effort to create a new judicial system that will uphold all of the rights set forth in the Constitution, and will do so pursuant to internationally recognized standards and the principles of the rule of law.

Stephen B. Nix
Washington

The writer is legal counsel to the International Foundation for Electoral Systems and counsel to the Committee on Law Policy and Legal and Judicial Reform.

Editor's note: Roman Woronowycz's series on Ukraine's court system is ongoing. Subsequent articles in this series will reflect the changes that will occur once the provisions of the new Constitution of Ukraine are implemented.

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