A novelty in the Civil Procedure Code – a counter provisional remedy
The matter of amendments
Verkhovna Rada of Ukraine adopted Law of Ukraine On Introduction of Amendments to the Commercial Procedure Code of Ukraine, Civil Procedure Code of Ukraine, Administrative Court Procedure Code of Ukraine and Other Enactments dated 03.10.2017 No. 2147-VIII (Law No.2147-VIII).
In conformity with Resolution of Plenum of Supreme Court dated 30.11.2017 No.2 and cl.1 of Final Provisions of Law No.2147-VIII, the law specified shall come into force on 15.12.2017.
Whom it will affect
All business entities and their chiefs, individuals, litigators, insolvency officials and other lawyers.
The new Civil Procedure Code introduces an institution of counter provisional remedy into the national legal system.
A notion of a counter provisional remedy has been included into the national civil procedure law. By its legal substance, the relevant institution is to assure balance of interests between the parties in dispute, to create conditions to assure an objective possibility for compensation of negative consequences caused to the party in dispute due to applying to it the provisional remedy, and reduced possibilities for parties to use the provisional remedy for pressing the other party in dispute.
How to prepare / mechanism of the amendments introduction
The new Civil Procedure Code of Ukraine specifies that while settling an issue regarding the provisional remedy, the court shall establish a necessity to apply counter provisional remedy, its amount and other appropriate actions to for the applicant of an application on provisional remedy to commit, taking into account the circumstances of the case.
The counter provisional remedy can be expressed as a deposit of funds that may be forwarded later to cover the expenditures and losses of the other party, for a court deposit, a commitment to provide a bank guarantee or another type of financial security, or a commitment of the applicant to make particular actions.
Simultaneously, the Code does not specify an exclusive list of counter provisional remedies. This fact provides the courts with an opportunity to choose such remedies, which will assure the interest balance between the parties in dispute in the best way.
Moreover, the new Civil Procedure Code of Ukraine specifies that the cover of losses caused by provisional remedies at the expenses of levying an execution upon the counter provisional remedies shall be performed on the grounds of court consideration of an individual suit on loss recovery applied after the consideration of the initial suit, which, by its essence, disables the reception of groundless loss recovery stated by the other party of the court consideration.