15.09.2021
Emerging technologies as a method of acceleration of the recognition and enforcement of foreign judgments
Author

By Anna Mysyshyn

The rapid expansion of the globalization of business has increased the number of cases appearing before foreign courts. This boosted the number of foreign judgments and arbitral awards that should be recognized and enforced in Ukraine. Despite the fact that 2017 Judicial reform positively affected the recognition and enforcement of foreign judgments in Ukraine, the practice shows that due to the long process of review of all paper materials and clerical workloads judges often delay the recognition and enforcement of foreign judgments. Practice also indicates that enforcement of some cases might be delayed for 5 or more years, which in turn violates the principles of Fair Trial, in particular, the Art. 6 of the ECHR.

REASONS FOR DELAYS

Paying particular attention to the reasons for the delay of the recognition and enforcement of foreign judgments in Ukraine, it is necessary to focus on the provisions of some international treaties and national legislation that regulate the issue of the recognition and enforcement of foreign judgments and international commercial arbitral awards in Ukraine.

In this regard, it is worth noting that Ukraine is a party to more than 20 bilateral agreements on legal assistance in civil and commercial matters. The provisions of these agreements concern only general issues of recognition and enforcement, which are detailed and supplemented by national legislation. The fundamental multilateral agreement that regulates the recognition and enforcement of international commercial arbitration awards is the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention, 1958), to which Ukraine is a party.

National legislation that regulates the recognition and enforcement of foreign judgments can be divided into general and special legislation. In particular, the general legislation includes the Constitution of Ukraine and the Law “On Private International Law”. The special legislation includes the Civil Procedural Code of Ukraine (hereinafter – CPC of Ukraine), the Law “On Enforcement Proceedings”, the Law “On International Commercial Arbitration”.

Referring to the issue of delays, attention should be drawn to the provisions of the CPC of Ukraine.  

In this context, it is important to highlight that the CPC of Ukraine does not set any deadlines for the domestic court to decide whether to leave the application for permission to enforce the foreign judgment without consideration.

Art. 467 of the CPC of Ukraine states that after reviewing the submitted documents and clarifications, the court decides to grant permission to enforce the judgment of a foreign court or to refuse such permission on this issue. The court must verify the validity of the application and all additional documents provided by the parties in accordance with the provisions of domestic legislation and international agreements [1].

Therefore, given the above, some obstacles to effective justice can be identified:

– courts, given the limited funding, only formally comply with the requirements of procedural law, and do not send the debtor copies of an application with all annexes, which are usually quite large, due to the foreign component;

– courts delay terms while verifying the application on its compliance;

– the process of the recognition and enforcement of foreign judgments is often delayed due to the absence of accurate deadlines in the national legislation.

Thus, in practice, the plaintiff might be waiting for the decision on the application for several months, and eventually, receive the notification that documents do not meet all requirements and do not comply with provisions of national law.

WHAT ARE THE POSSIBLE SOLUTIONS?

For today, some European countries presented possible solutions – the use of the latest digital technologies and algorithms that can significantly improve the administration of justice, inter alia, take care of a backlog of small claims court disputes.

For instance, in Estonia, the ministry of justice is designing an AI “robot judge” that could adjudicate small claims disputes of less than 7,000 euros. The system will clear a backlog of cases, for judges and court clerks [2].

In Great Britain, the most relevant project is known “online civil money claims”. Designed for claims under £ 10,000 and for self-represented litigants, this allows court users to resolve money claims in an online environment [3].

The diversity of institutional settings within Europe provides contrasting examples of the use of technology to support the administration of justice. The variety of solutions adopted, both from a technical and managerial point of view, provides a unique insight into judicial applications of ICT and these solutions should be disseminated and discussed in-depth. 

The use of information and communication technologies and artificial intelligence will allow timely verification of a foreign judgment and maximize its chances of recognition and enforcement. For example, confirm that the court adhered to the procedure for reviewing the court decision, or the party has submitted all the necessary documents, including an application for the recognition and enforcement of the foreign judgment its annexes.

Artificial intelligence can scrutinize arbitral awards in a timely manner to maximize its chances of recognition and enforcement. For example, AI can ensure that the arbitral tribunal has complied with the procedural format required for the award. AI can also ascertain that the arbitral tribunal has answered every issue raised by the parties in their submissions. Additionally, AI can help the arbitrators with assessing the compliance of the award with mandatory rules and public policy of the seat of arbitration or potential places of enforcement of the award to comply with their duty to render an enforceable award. 

The arbitral process is only completed upon the successful enforcement of the award by the winning party. The enforcement of the award can become complicated but at the same time, the enforcement of awards is one of the main advantages of international commercial arbitration over international litigation.

CONCLUSION

In order to fulfill its obligations under the EU-Ukraine Association Agreement, Ukraine has to adopt and implement best European practices, in particular new technological solutions that will contribute to the operational efficiency, coordination, and accessibility of the court [4].

Undoubtedly, the use of artificial intelligence and the latest information and communication technologies in the process of recognition and enforcement of foreign judgments will accelerate the recognition and enforcement of foreign judgments.

INTRODUCTION


[1] Civil Procedural Code of Ukraine, 2004,  available at: https://zakon.rada.gov.ua/laws/show/1618-15#Text 

[2] Wired, 2019, available at: https://www.wired.com/story/can-ai-be-fair-judge-court-estonia-thinks-so/ 

[3] Susskind R. Online courts and the future of justice. Oxford University Press. First edition. London, 2019. P. 167 

[4] Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part. Official Journal of the European Union, 2014, available at: https://trade.ec.europa.eu/doclib/docs/2016/november/tradoc_155103.pdf