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Will businesses have an option of litigating from home?

03/ 04/ 2020

Olga Vorozhbyt, Partner, Head of Litigation and Regulatory, DLA Piper

Oleksii Gerasymchuk, Senior Associate, DLA Piper

On 30 March 2020, the Ukrainian parliament adopted a law amending several legislative acts and targeted at ensuring additional social and economic guarantees due to the spread of COVID-19 (Law).

As of today, the Law has already been signed by the President of Ukraine, officially published and became effective.

The Law introduces several new provisions, needed as interim measures, in order to improve the regulation in different areas of living, affected by the COVID-19 outbreak.

In particular, the amendments will have a significant impact on any litigation and criminal proceedings.
In this regard, the Law provides for the following procedural changes to be in effect for the duration of the quarantine:

  • Statutes of limitations, defined in Commercial, Family, Civil and Labor Codes of Ukraine shall be prolonged;
  • Procedural time limits for procedural actions by the disputing parties, as well as time limits for rendering decisions by the courts, shall be prolonged;
  • Disputing parties shall be provided with an opportunity to participate in a hearing via video conference from any location by connecting with their personal devices, under the condition that they can verify their identity;
  • Judges shall be entitled to restrict access to the hearing for audiences, if their attendance may threaten the life and health of others.
  • In criminal proceedings, if there are no investigative judges available at a certain court, that court shall be provided with an opportunity to forward a motion of any participant for consideration before an investigating judge of another court. The procedure shall not apply to the judges of the High Anti-corruption Court. 

These developments are aimed at facilitating and ensuring a safe participation in court hearings for any party. Additionally, the newly implemented rules are expected to safeguard persons and businesses from expiration of the statute of limitations and procedural time limits elapse. Such rules will also protect the right of access to justice, and ensure protection of private and business interests in a court.

That being said, automatic prolongation of all procedural time limits may lead to evident negative effects in practice. For example, this may lead to an impossibility to proceed to the next stage in a litigation, with proceedings being paused for an undefined and, presumably, lengthy period of time. All of the postponed cases are going to just keep stacking up, meaning that the judges will be overloaded at the end of the quarantine. In some cases, such a situation may predictably lead to confusion, mistakes, and misuse of procedural rights by parties to a case.

For the nonce, it is unclear how participating in a hearing via video conference from any location (from home, office or any other place) will be implemented in practice, namely: how the court and parties to the case will cooperate regarding the matter, what will be the permitted software for the video link, how will someone’s identity be verified etc.

However, it is expected that the above risks may be mitigated by means of existing laws and respective clarifications on new rules to be issued by the judicial authorities.

Thus, despite the mentioned risks, we believe that the Law in conjunction with existing rules will ensure proper access to justice during the quarantine period, as well as after its end, and that businesses will not be completely isolated from justice.

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