There is arguably a tendency among those of us who maintain cross-border practices to focus on substantive legislation and perhaps even to make the implicit assumption that attendant procedural niceties will resolve themselves in one jurisdiction in pretty much the same manner as another.

Some time ago, our law firm opened a representative office in London strictly to provide administrative support for our own efforts there. Nonetheless, we attracted the attention of both private individuals and law firms for help with issues in Ukraine and, as a result, developed an English litigation support team.

For the purposes of this brief overview, we consider only cases involving private matters, rather than commercial or business ones.

First of all we address the issue of what type of support might be necessary for an English client for the purposes of the court proceedings in his national courts. Such legal assistance may well go to matters of evidence, including the locating and gathering of documents necessary to be lodged before the court in favour a litigant's position.

For example, imagine an English citizen wishes to file a divorce with an English court or to receive a declaration of paternity and needs to obtain some documents from Ukrainian authorities. For these purposes, the Ukrainian attorney at law has the right to collect all required documents under the authority of a power of attorney granted by the foreign client, including the filing of an advocate's request to obtain the required information from the state authorities and private enterprises concerned. It is quite obvious that he needs such documents to be provided in a form admissible in English courts. And more than simply a matter of form, it is important that the opposing party in the court does not have any grounds to claim that the documents provided were false, void or otherwise lacked the weight of credibility.

Establishing admissibility includes, inter alia, an acknowledgement as to whether the documents concerned are true and the copies thereof are authentic. A mere statement on behalf of the Ukrainian lawyer who oversaw the gathering of such documentation would likely appear insufficient. What we need is a document equivalent to a sworn statement. The said procedure of acknowledgement may be achieved by producing an affidavit on behalf of the attorney at law, instructed to this effect by the foreign client. One use of affidavits is to allow evidence to be gathered from witnesses or participants who may not be available to testify in person before the court. This document may be widely used in England and Wales but, in Ukraine, there might be difficulties in providing such an acknowledgement.

The problem is that unlike in England and Wales, where there is the institution of a commissioner for taking oaths who witnesses such kind of statements, Ukrainian legislation does not provide for such a procedure. That is why a document exercising the function of a sworn testimony or affidavit can be certified only by a Ukrainian notary according to the relevant rules, one of which is that such a document must be written entirely in Ukrainian, therefore necessitating the additional – sometimes time-consuming – production of a certified translation by a professional translator.

One can readily appreciate that careful planning greatly benefits the process. The Ukrainian lawyer requires clear instructions on everything from deadlines for document production to a sample of the title of proceedings. It may well be in the English solicitor's best interests either to obtain advance consent from the opposite party on such issues as the need to examine the Ukrainian solicitor or to obtain a direction from the court as to how evidence is to be received.

In this way, by careful coordination in advance, the final stage of transmitting the documents in proper form will produce no untoward surprises. All the parties will be aware of what to do, how and in what terms. The practice of our firm showed the need for a full and clear understanding between the parties in such cases.

Note that the above-mentioned procedure is obligatory in cases where the Ukrainian attorney forwards the English client copies of the documents obtained. In cases where originals of the documents are forwarded, a mere statement by the Ukrainian solicitor might well be enough to satisfy admissibility issues. Nonetheless, all such details should be clarified in advance.

Now we turn to the issue of the recognition of decisions delivered by foreign courts, according to the law of Ukraine. The procedure of recognition and enforcement of foreign decisions exists and is fixed by the relevant national laws. Moreover, Ukraine also is a party to several international and bilateral agreements covering this matter.

First of all we should point out that Ukraine is a party to the Convention on Recognition and Execution of Foreign Arbitration Decisions, dated 10 June, 1958, which means that arbitration decisions delivered in England
and Wales will be recognised and executed in Ukraine. The other act, namely the Law of Ukraine on Private International Law, contains a provision which states the following. In Ukraine the following executed decisions may be recognised – namely, those that entered into force of:

- foreign courts dealing with cases arising during civil, labour, family and economic legal relations;

- foreign courts dealing with criminal cases related to the compensation of damage and caused losses; and

- foreign arbitrations and other bodies of foreign states that consider civil and economic cases.

In addition to the above, foreigners, stateless persons, foreign legal entities, foreign states and international organisations are eligible to apply to the courts of Ukraine for the protection of their rights, freedoms or interests. The procedural capacity and capability of foreigners in Ukraine are determined according to the law of Ukraine.

The courts of Ukraine exclusively consider cases involving foreigners provided that:

- in real estate matters, the real estate under dispute is located on the territory of Ukraine;

- both parties to the case regarding legal relations between parents and children reside in Ukraine;

- in the case of an inheritance, the testator was a citizen of Ukraine and resided in it;

- the dispute is connected with the registration of an intellectual property right that requires registration or issue of a certificate (patent) in Ukraine;

- the dispute is connected with the registration of liquidation on the territory of Ukraine of foreign legal entities, natural persons and entrepreneurs;

- the dispute relates to the authenticity of records in the state register of Ukraine;

- in cases on bankruptcy the debtor was established according to the legislation of Ukraine;

- the case relates to the issue or destruction of securities registered in Ukraine;

- the case relates to an adoption that was performed or is being performed on the territory of Ukraine; and

- other cases determined by the laws of Ukraine.

In summary, cross-border issues are resolved most effectively when foreign counsel instructing Ukrainian counsel set out the issues and tasks clearly and allow adequate time for the multiplicity of administrative matters that may well attend the production of a 'simple' document.

Lyudmila Opryshko is a senior associate at Konnov & Sozanovsky in Kiev.