Supreme Court judge: Commercial courts consider cases faster than business courts in some countries

The opinion was expressed by Olena Kibenko, judge of the Commercial Cassation Court of the Supreme Court, during the I Investment Forum of the Ukrainian Bar Association. She took part in the discussion section on common myths about doing business in Ukraine.

The judge noted that the most common myths are that commercial courts consider cases for years, almost all commercial cases go through all three instances, and the Supreme Court sends most cases for a new trial.

Olena Kibenko pointed out that the consideration of cases by the commercial courts of Ukraine is much faster than by commercial courts in some foreign countries. According to statistics, the average duration of commercial court proceedings in 2023 was 79 days in the courts of first instance, 67 days in the courts of appeal, and 45 days in the Supreme Court. Overall, the average time for consideration of commercial cases last year was 191 days, or 6-7 months.

Of course, this is only the average data and any lawyer will be able to name cases that took several years to be considered, but these are still isolated cases. The speaker emphasised that prompt consideration of commercial disputes is very important for business and, accordingly, for the level of investment attractiveness of Ukraine. Therefore, the strategic goal of the commercial jurisdiction is to further improve the relevant indicators, and the courts are consistent in achieving it.

The judge also noted that it is sometimes said that many court decisions are appealed to a higher court, cancelled, and cases are returned for a new hearing. However, statistics do not confirm this. Last year, commercial courts of first instance delivered 127,974 decisions, of which 23,099 (18%) were appealed, and 9,183 (7%) were challenged in cassation. At the same time, in 16% of cases, the Supreme Court cancelled the decisions of the first instance courts and returned the cases for a new trial.

Olena Kibenko drew attention to the fact that the Commercial Procedural Code of Ukraine of 2017 significantly reduced the possibility of sending a case for a new trial by the courts of appeal and cassation.

In order to reduce the number of appeals to the courts of appeal and cassation, court decisions must be not only lawful and reasonable, but also convincing. For this purpose, the court must respond to all arguments of the parties. This is especially true for decisions of the courts of appeal. Olena Kibenko pointed out that often one of the arguments of a cassation appeal is that the appellate court ignored the arguments of the parties and essentially just copied the decision of the first instance court. In this case, the parties go from instance to instance in the hope that they will be heard.

The judge noted that the Supreme Court constantly monitors the statistics of cases referred for a new trial. Judges understand that they need to work on reducing the relevant indicators. There are rapporteur judges whose rate consistently varies from 3 to 10% of the number of reviewed decisions, which is significantly lower than the average, and this means that there is still room for reducing the number of new reviews.

In addition, the judge noted that in order to save procedural time (time, money, and other resources of the parties and the state), the cassation court, where possible, should pass a new judgment rather than refer the case for a new trial to lower courts. For this purpose, it is important to distinguish between the issues of fact-finding and their legal assessment, and not to confuse the latter with the assessment of evidence (which is carried out to establish the fact).

The moderator of the event, Daniel Cousens, corporate partner at Linklaters (Warsaw, Poland), asked whether the Supreme Court applies foreign laws.

Olena Kibenko answered that the reluctance of judges to apply foreign law in dispute resolution is also one of the most common myths. The judge noted that since the beginning of the year, the panel of judges she is a member of has considered four cases involving the application of foreign law. Thus, in one of the cases, the issue of whether foreign companies that had been excluded and then reinstated in the company register could participate in the general meeting of a Ukrainian company was resolved. In another case, the Supreme Court applied foreign law to decide whether a director acted in the interests of an English company by making transactions on its behalf in Ukraine.

The speaker noted that, of course, when applying foreign law, many complex issues arise, in particular: how the court should determine the content of foreign law, whether it can search for relevant legal sources (for example, on the Internet) and make a translation using modern automatic translation programs, or whether it must necessarily apply to the competent authorities of a foreign state. Sometimes judges still lack the appropriate skills to apply both the provisions of conflict of laws and foreign law. Therefore, it is necessary to improve the qualifications of judges in dealing with disputes with a foreign element, and to conduct training sessions with foreign colleagues who are more likely to encounter such issues.