On 15 October 2022, two Ukrainian laws came into effect to implement the Hague Convention on Choice of Court Agreements dated 30 June 2005 (referred to as the “Convention“). The first law is the Law of Ukraine “On the Ratification of the Convention on Choice of Court Agreements” No. 1544-IX, dated 15 June 2021 which ratifies the Convention. The second is the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine in Connection with the Ratification of the Convention on Choice of Court Agreements” No. 2627-IX, dated 21 September 2022, which introduces amendments to various legislative acts in order to sync them with the ratified Convention (referred to as the “Amendment Law“).
One of the notable changes made by the Amendment Law is the inclusion of Article 4-1 in the Law of Ukraine No. 2709-IV, dated 23 June 2005, known as the “Private International Law“. This newly added Article 4-1 directly implements certain provisions of the Convention. The provisions reflected in Article 4-1 are as follows:
1. ARTICLE 4-1 OF THE PRIVATE INTERNATIONAL LAW
1.1 Scope of choice of court agreements: Participants in private legal relations involving a foreign element now have the right to enter into agreements on the choice of court of any state. This provision corresponds to Article 3 of the Convention, which recognises the parties’ autonomy to select the court for resolving their disputes.
1.2 Form of the agreement: The agreement on the choice of court must be made in writing, regardless of the place of its conclusion. This requirement aligns with Article 3(c) of the Convention, which requires that the choice-of-court agreement must be in writing or be documented by any other means of communication which renders information usable for subsequent reference.
1.3 Choice of Ukrainian courts: The amended Private International Law specifies that if the agreement designates a court in Ukraine, it must be made in writing in accordance with Ukrainian law. This provision is in accordance with Article 5 of the Convention, which permits the designation of a particular court or courts from a contracting state.
1.4 Limitations on changing exclusive jurisdiction: The amended Private International Law prescribes that the choice-of-court agreement cannot provide for a change in the exclusive jurisdiction of a case with a foreign element to the courts of Ukraine. This limitation corresponds to the Convention, which recognises that a choice-of-court agreement cannot affect the exclusive jurisdiction of a court of the relevant contracting state. Ukrainian courts have currently exclusive jurisdiction in cases concerning real estate located in Ukraine, cases regarding the registration or liquidation of legal entities registered in Ukraine, bankruptcy cases, and other cases where Ukrainian legislation provides for the exclusive jurisdiction of Ukrainian courts.
1.5 Validity of the agreement: The Amendment Law recognises that the invalidity of a legal instrument, which includes an agreement on the choice of court, does not automatically invalidate the agreement itself. This provision conforms with the general principle set forth in Article 3 of the Convention, which states that the agreement on the choice of court can be severed from other terms of contract and cannot be contested solely on the ground that the contract is not valid.
The introduction of Article 4-1 in Private International Law demonstrates the Ukraine’s commitment to the principles and objectives of the Convention. This reflects and implements several important provisions of the Convention, such as the autonomy of parties, the requirement of a written agreement, limitations on changing exclusive jurisdiction, and the severability of the choice-of-court agreement. In this way Ukraine actively promotes and enhances the enforceability and effectiveness of choice-of-court agreements in cross-border disputes.
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