В публикации детально рассматривается применение иностранного права судами, в частности, концепция доказывания содержания иностранного права как фактических обстоятельств. Статья особенно интересна тем, что в ней широко представлена практика украинского хозяйственного суда.
It is widely accepted that Ukrainian commercial courts may apply foreign law on the basis of Article 4(4) of the Commercial Procedural Code (the CPC). However, such application presupposes, according to Ukrainian law, prior “determination of the substance” of such foreign law in line with Article 8 of the Private International Law Act of Ukraine.
Here lies one of the critical problems: while the CPC puts the foreign law among other “laws” applicable by the court, i.e. treats foreign law “as law”, the procedure prescribed by the Private International Law Act of Ukraine resembles the English law procedure of “proving the law” and appears to treat foreign law “as a fact”. This paper will explore the ways this contradiction is dealt with in practice.
The law as law
It is recognized in the Ukrainian court practice that Article 4(4) of the Ukrainian CPC provides for the application of foreign law (rules of law) among other sources of law: “[a] commercial court in the cases provided for in a law or an international treaty applies the rules of law of other [foreign] states”1.
Courts often apply foreign law intertwined with international law, recognizing both as undoubtedly “law” under the CPC. In Maschio Gaspardo Romania S.R.L. v. Technik Energy LLC the court of appeal referred simultaneously to the Italian Civil Code, and to 1980 UN Convention on Contracts for the International Sale of Goods (CISG). Its decision was confirmed by the High Commercial Court2. A decision on the basis of Romanian law along with CISG and INCOTERMS was adopted in Maschio Gaspardo Romania S.R.L. v. Tridenta Agro LLC3. In its Resolution of 11 December 2007 in Case No. 44/69 BOBST SA v. Express LLC the High Commercial Court applied the UN CISG and Swiss law together.
The principal consequence of treating law “as law” is that pursuant to the maxim jura novit curia, embodied in Article 4(7) of the CPC, the court shall “know the law” regardless of whether it was pleaded by the parties.
The law as fact
The determination of the substance of the foreign law, which is an indispensable component of the application of such law, is governed by Article 8 of the Private International Law Act of Ukraine:
“1. In the course of the application of the law of a foreign state the court or another body shall determine the substance of its provisions according to their official interpretation, the practice of their application and the doctrine in the relevant foreign state”.
“2. In order to determine the substance of the rules of law of the foreign state the court or another body may refer, in the order prescribed by the law, to the Ministry of Justice of Ukraine or other competent bodies or institutions in Ukraine or abroad or may appoint experts”.
“3. The participants of the case are entitled to submit documents confirming the substance of the provisions of the law of the foreign state, to which they refer in support of their claims or objections, and may otherwise assist the court or another body in determining the substance of these norms”.
“4. If the substance of the rules of law of a foreign state has not been determined within a reasonable period of time and despite the measures taken in conformity with this article, Ukrainian law shall apply”.
This Article resembles the rules of “the proof of foreign law” procedure as known in the English law: “the judge…, being untrained in foreign laws, cannot “apply” that foreign law, but rather relies on an expert who gives evidence on that foreign law as a matter of fact and the judge then applies that foreign law solution to decide the case”4. Under English law the court is prohibited from considering the evidence on foreign law not submitted by the parties and may arrive at its own conclusion as regards the contents of the foreign law only if the experts’ positions contradict one another[1]. There is obviously no place for jura novit curia in this procedure.
Under Articles 8(2) and 8(3) of Private Internationa! Law Act of Ukraine, in quite a similar fashion, the commercial courts are not obliged to know the foreign law — but both the courts and the parties may adduce evidence as regards the substance of the law. Characteristically, there is no obligation of the court to research foreign law proprio motu: if the burden of proof of foreign law is not satisfied, the court simply finds the foreign law unproven and falls back to Ukrainian law on the basis of Article 8(4) of the above Act.
The law in practice
Court practice appears to favor the “law as a fact” approach. First, jura novit curia is firmly rejected. The courts regularly underlined that they are not obliged to search for evidence of the substance of foreign law, and are not even bound to request clarifications pursuant to Article 8(2) of the Private International Law Act of Ukraine. The court may always decide that there is sufficient evidence on the record which allows it to determine the substance of the foreign law, and may proceed to resolve the case on the basis of the available evidence.
In CRR B.V. v. Kiy Avto LLC and Kyivagroland-1 LLC the respondents challenged the admissibility of the legal opinion of English counsel for claimants as regards the substance of English law, requesting the court to seek an official clarification instead. The court noted that Article 8 of the Private International Law Act of Ukraine establishes a right, but not the obligation of a court, to seek an official clarification and satisfied itself with the available legal opinion[2].
In CJSC KSD v. SE National Atomic Power Generating Company Energoatom the court of appeal endeavored to establish the contents of Swiss law by requesting that the Ministry of Justice seek official clarification of the substance of certain articles of the Obligations Code of Switzerland. However, when the Ministry failed to respond positively within two months, the court proceeded to adjudicate the Swiss law claim on the basis of evidence then available in the record, i.e. the sworn translation of the respective provisions of the Code[3].
Second, the courts apply rules of evidence to the submissions by the parties as to applicable foreign law. As regards the texts of foreign statutes, the courts have relied on apostilled official versions of the relevant laws[4], on their notarized translations[5], as well as on simple printouts of web-resources[6]. The opinions of foreign lawyers have also been admitted11.
In Douglas Shipping and Trading, S.L. v. Summit Enterprises Inc. and Marincom Odessa LLC[7], the Odessa Commercial Court of Appeal denied application of English law, stating that the affidavit on its substance is inadmissible as evidence. In a similar fashion, in the Samsung Electronics Overseas B.V. v. Vikotek LLC[8] case the court found the uncertified translation of an excerpt from Dutch law inadmissible.
Third, where the courts found the evidence submitted inadequate, they do not refer to jura novit curia, but instead actively apply Ukrainian law on the basis of the failure of the parties to prove the rules of foreign law. In the above-mentioned cases, Douglas Shipping and Trading, S.L. and Samsung Electronics Overseas B.V, the courts applied Ukrainian law on the basis of Article 8(4) of the Private International Law Act of Ukraine.
The same Article was relied upon where the parties failed to provide evidence of foreign law altogether. For example, in twin cases Skania Credit JSC v. Private Enterprise Trans Western Group and Skania Credit JSC v. Favorit-M LLC, the court applied Ukrainian law since neither party adduced evidence of Swedish law and the Ministry of Justice failed to provide clarification within a reasonable period of time14. This falling back to Ukrainian law is a characteristic feature of the “law as a fact” approach, with its rejection of the jura novit curia rule.
Nevertheless, there is still a significant objection against the complete adoption of the “law as a fact” approach. The findings of the courts of lower instances based on foreign law are still reviewed on their merits by courts of cassation15, although the latter are prohibited from reconsidering the factual findings of the lower courts by Article 1117(2) of the CPC.
Conclusion
Ukrainian legislation demonstrates a mixed approach towards the mode of application of foreign law: according to the CPC it must be known to the court; according to the Private International Law Act of Ukraine the foreign law must be proven as a fact.
But in this respect court practice tends to adopt the latter approach. The courts have definitely rejected the jura novit curia in respect of foreign law and do not consider themselves obliged to assist the parties in determining the substance of the applicable foreign law. The courts apply evidentiary rules to the process of establishing the substance of foreign law and actively use the fall-back provision of Article 8(4) of the Private International Law Act of Ukraine — a tool very specific for the “law as a fact” approach.
On the other hand, the courts still preserve certain elements of the “law as law” approach: the findings of the court on the basis of foreign law are not considered findings of fact and may be subject to cassation review.
The “law as fact” approach seems to be in better correspondence with the commercial procedure moving gradually towards the adversarial concept, where the court sits as an impartial arbitrator between the pleading parties, rather than searching for “the truth”. But in practice there is still significant room for development and uncertainty.
I In all of the court cases cited in this paper the courts apply foreign law on the basis of Article 4(4) of the CPC. See specifically the Resolution of the High Commercial Court of 11 December 2007 in the case No. 44/69 BOBST SA v. Express LLC.
2 Resolution of the High Commercial Court of 25 May 2010 in the case No. 39/244.
3 Resolution of the High Commercial Court of 16 June 2010 in the case No. 39/243.
4 Clarkson C. M. V. Hill Jonathan. The Conflict of Laws. 3rd ed. New York: Oxford University Press. 2006. p. 9.
s Collier J. G. Conflict of Laws. 3rd ed. New York: Oxford University Press, 2001, p. 35.
6 Resolution of the Kiev Commercial Court of Appeal of 17 May 2010 in case No. 6/600. The cassation complaint against this decision was returned without consideration for procedural reasons by the Ruling of the High Commercial Court of 30 July 2010. A similar decision was taken in Gardner Denver Oy v. Artemivsky Zavod Sklovyro-biv LLC (see the Resolution of the Odessa Commercial Court of 16 July 2007 in case No. 16/164-06-4663).
7 Resolution of the Kiev Commercial Court of Appeal of 8 December 2008 in the case No. 22/175.
8 See Resolution of the High Commercial Court of 11 December 2007 in the case No. 44/69 BOBST SA v. Express LLC.
9 Resolution of the High Commercial Court of 25 May 2010 No. 39/244 in the case Maschio Gaspardo Romania S.RL. v. Technik Energy LLC; Resolution of the High Commercial Court of 16 June 2010 No. 39/243 in the case Maschio Gaspardo Romania S.R.L. v. Tridenta Agro LLC.
10 Resolution of the Donetsk Commercial Court of Appeal of 2 August 2011 in the case No. 41/75pd Gaz Vagon Trust LLC v. Svela Invest LLC and Ormoran Enterprises Limited (as regards Russian law). See also Resolution of the Kiev Commercial Court of Appeal of 17 January 2011 in the case No. 39/333 Zaltech GmbH v Shans LLC (as regards Austrian law). The latter decision was confirmed by the Resolution of the High Commercial Court of 29 March 2011.
11 See Resolution of the High Commercial Court of 11 December 2007 in the case No. 44/69 BOBS T SA v. Express LLC . Resolution of the Kiev Commercial Court of Appeal of 6 April 2011 in the case No. 39/7-54/71 Aeroturbine Inc. v. Aviation Compan y Khors LLC . Resolution of the Odessa Commercial Court of 16 Jul y 2007 in case no. 16/164-06-4663 Gardner Denver Oy v. Artemivsky Zavod Sklovyrobiv LLC.
1 2 Resolution of the Odessa Commercial Court of Appeal of 22 February 2007 case No. 6-15-25/306-04-10527. By its Ruling of 16 April 2007 the High Commercial Court dismissed the appeal from this Resolution on procedural grounds.
1 3 Decision of the Kiev Commercial Court of 16 October 2010 in case No. 9/272. sustained by the Resolution of the Kiev Com• mercial Court of Appeal of 15 March 2011 and the Resolution of the High Commercial Court of 22 June 2011.
14 Decisions of the Commercial Court of Zakarpattia Region of 30 October 2008 in case No. 2/89 and of 5 October 2010 in case No. 10/30. Both decisions remained unchallenged.
1 5 See the Resolutions of the High Commercial Court in cases BOBST SA v. Express LLC, Maschio Gaspardo Romania S.R.L v. Technik Energy LLC, Maschio Gaspardo Romania S.R.L v. Tridenta Agro LLC, Zaltech GmbH v. Shans LLC mentioned above.
Автор: Dmitry A. SHEMELIN
Источник: Ukrainian Journal of Business Law. – 2013. – № 1-2. – Р. 38 – 40.