The Government of Ukraine brought bills in the parliament (Verkhovna Rada) related to the organization of joining the International Convention for the Unification of Certain Rules Relating to the Arrest of Ships signed in Brussels on 10 May 1952. The work on preparation for joining the Convention was carried out by the Cabinet of Ministers of Ukraine in pursuance of the Law ‘On the State Programme of Adaptation of Ukrainian Legislation to the Legislation of the European Union’ dated 18 March 2004.
Besides the adaptation of the Ukrainian legislation to the legislation of the EU, joining the Convention should lead to the situation when Ukrainian vessels could be arrested in the member countries under the maritime claims only, as well as vessels of the member countries could be arrested under the maritime claims only in the ports of Ukraine.
The Commercial Procedural Code and the Civil Procedural Code of Ukraine are supposed to be amended accordingly.
Thus, in the result of the bill’s enactment the commercial process shall be innovated by the exclusive jurisdiction. Article 116 of the Commercial Procedural Code of Ukraine is to be amended by inclusion of the second part to clarify that the cases on the disputes arising out of the maritime claims are to be heard by the court at the location of the port where the vessel, in relation to which the security of the maritime claim is made, stays. The civil process (Article 114 of the Civil Procedural Code of Ukraine) shall be amended in the same way. These novelties may result in introduction of the legal principle pursuant to which the jurisdiction on the maritime disputes shall be defined at the place of the vessel’s arrest (arresto fundatur jurisdictio).
At the same time, the bill contains a highly disputable proposal on entering a provision to Article 110 of the Civil Procedural Code according to which the claim under the dispute arising out of the damages that make the debt due to maritime claim, can be filed at the location of the respondent’s ship or at the place of the ship’s registration (port).
The latest provision definitely contradicts the previous provisions as in case of arrest of the vessel to secure the maritime claim, unsolvable option appears between the obligatory jurisdiction and the jurisdiction at the discretion of the claimant (forum electivum). As it is widely known that the exclusive territorial jurisdiction excludes the competence of other courts or the right of the claimant to choose the court.
However it should be noted that the Legal Support Department of the Verkhovna Rada paid attention to the contradiction in the bill and recommended to amend same, in particular, to exclude the corresponding provisions of Article 110 of the Civil Procedural Code of Ukraine.
Aleksander Chebotarenko (email@example.com)
International Law Offices, Ukraine.