In arbitration disputes involving substantial sums and international counterparties, the evidentiary foundation becomes the key to success. But what if the necessary witnesses or documents are located in Ukraine? In such cases, national legislation comes to the rescue.
Judicial Assistance in Securing Evidence upon Arbitration’s Request
Article 27 of the Law of Ukraine "On International Commercial Arbitration" enables both the parties and the arbitral tribunal itself to apply to a Ukrainian court for assistance. This refers specifically to the appellate court of general jurisdiction, which is empowered to examine witnesses, request documents, or conduct an inspection of physical evidence located within the territory of Ukraine.
This possibility is further reinforced by Part 7 of Article 116 of the Civil Procedure Code of Ukraine, which expressly authorises the court to take measures to secure evidence upon the request of an arbitral tribunal. This goes beyond mere witness testimony – the court may order expert examinations, request documents, or carry out inspections if there is a risk that the evidence may be lost, destroyed, or simply become inaccessible by the time it is to be considered by the arbitrators.
Examination of Witnesses by the Court as a Form of Securing Evidence
The appellate court of general jurisdiction in Ukraine, upon the request of the arbitral tribunal or a party to the arbitration proceedings (with the tribunal’s consent), conducts the examination of a witness located in Ukraine. The questioning is carried out on the basis of a list of questions approved by the arbitral tribunal.
The witness testifies under oath, and their evidence is recorded in the official minutes of the court hearing. These minutes constitute written evidence that may be used within the arbitration proceedings.
The parties to the arbitration have the right to attend the court hearing and pose additional questions to the witness through the judge. This ensures adherence to the principle of adversarial proceedings and allows for clarification or elaboration of the answers provided.
The court’s ruling summoning the witness typically addresses the issue of compensating the expenses related to the witness’s appearance. Upon completion of the hearing, the transcript of the examination is submitted to the arbitral tribunal for use as evidence in the case.
Other Forms of Securing Evidence
In addition to witness examination, the court may assist the arbitration by means of other procedural actions. For instance, if a specific document or item is required to resolve the dispute, the court (upon the motion of a party or the request of the arbitral tribunal) may issue a ruling ordering the production of such evidence from a relevant individual or institution.
The application must substantiate what facts the evidence is intended to prove and why the party is unable to obtain it independently. If the addressee of the court ruling fails to produce the requested evidence without valid reason, the law provides for a mechanism of compulsory seizure: the court may issue an order authorising a state enforcement officer to temporarily seize the specified items or documents for judicial examination.
Non-compliance with a court order to produce evidence, or other forms of obstruction, may also result in the imposition of fines.
Thus, even documentary or physical evidence located in Ukraine may be secured and preserved for use in arbitration proceedings.
Timing and Procedure for Securing Evidence
Measures to secure evidence may be taken either before the commencement of arbitration or during its course - provided that a risk of loss or destruction of the evidence without court intervention is duly substantiated.
In practical terms, this means that parties to arbitration are not left to grapple alone with the challenge of inaccessible evidence: they may rely on the resources of the Ukrainian national judiciary to obtain the necessary witness statements or material evidence.
Evidence obtained in this manner is subsequently submitted to the arbitral tribunal in the prescribed form - typically in the form of certified transcripts of witness examinations, copies of documents, inspection reports, and similar materials.
The Advantages of Engaging Fortior
The Fortior team supports the client at every stage of the process: from preparing a professionally drafted court application with a well-reasoned motion and a complete evidence package, to coordinating with the arbitral tribunal to approve the list of questions for a witness or the request for document production.
We manage the court proceedings, prepare the witness for examination (explaining the procedure and alleviating any undue stress), and safeguard the client’s interests throughout every step. During the hearing, we ensure that the process is properly conducted—strictly within the bounds of the approved questions and with the court transcript duly prepared in the correct format.
If you require assistance with securing evidence for arbitration, you are welcome to contact us at [email protected].
