Author: Maryna Pokotylo, Partner at F&P
Disputes with counterparties can arise even in the case of carefully drafted contracts. Late payment, failure to fulfill obligations, delivery of low-quality goods are just some of the problems that occur in business relationships. Timely legal support and the right defense strategy can be the key to winning in court.
1. Pre-trial settlement of a dispute: an opportunity to save resources
Before going to court, it is important to exhaust all possibilities for pre-trial settlement. Ukrainian law does not explicitly require the claim procedure in all cases, but compliance with it often plays a positive role.
Actions to take:
- Submit a claimThe letter should clearly state the essence of the violation, your requirements, the deadline for responding and the legal grounds. Pursuant to Article 179(7) of the Commercial Procedural Code of Ukraine, a copy of the claim may be attached to the statement of claim as evidence of pre-trial activity.
- Document the negotiationsIf you hold telephone or in-person negotiations, confirm them in writing (by letter or email).
- Engage an intermediary or mediatorThis mechanism is effective in disputes where the parties have a long-standing relationship.
Tip: Conclude contracts with mediation clauses – this is an additional tool for resolving conflicts without going to court.
2. Complete preparation of the evidence base: every document counts
In a court dispute, the basis is proper and admissible evidence. It is worth remembering that in commercial proceedings, the burden of proof rests with the party that substantiates certain circumstances (Article 74 of the Commercial Procedural Code of Ukraine).
We are collecting evidence:
- Main contract and annexesCheck whether all pages are signed, whether the signature of an authorized person is included, and whether there is a seal.
- Acts, invoices, delivery notesconfirm the fact of fulfillment or non-fulfillment of obligations.
- Correspondence.including electronic (via email or messengers), which can be attached as printouts with technical headers.
- Financial documents.payment orders, bank statements, reconciliation statements.
- Witnesses.Witnesses: witnesses are rarely used in commercial disputes, but they can be useful in disputes over the transfer of things or the performance of work.
3. Legal structuring of a statement of claim: not only content but also form
A statement of claim is not just a statement of facts. It is a document that the court evaluates formally. Violation of even the technical requirements may result in the statement being left without motion or returned.
Key elements:
- Structurecomplies with the requirements of Article 162 of the Commercial Procedural Code of Ukraine. It must contain data on the parties, the nature of the dispute, justification, evidence, the amount of the claim, claims and attachments.
- Correct jurisdictionIt is important to establish which court to file a lawsuit in. Violation of jurisdiction will slow down the process.
- Court feeCourt fee: paid in accordance with the Law of Ukraine “On Court Fee”. For example, for property claims, it is 1.5% of the price of the claim, but not less than one minimum wage.
Tip: When the price of the claim is high, it is worth filing a motion for installment or deferral of the court fee.
4. 4. Behavior in litigation: strategy, flexibility and procedural discipline
Effective participation in court proceedings requires systematic work:
- Active position.Provide explanations, answer the court’s questions, and respond to the other party’s motions in a timely manner.
- Counterclaim or counterclaims: use the opportunity to make counterclaims (Art. 177 of the CCP).
- Use of security measuresFor example, seizing the defendant’s accounts or prohibiting the alienation of property. This will help avoid situations where there is nothing to recover after the case is won.
- Involvement of expertsIn case of technical or specialized issues (e.g., construction, IT services, audit).
- Submission of procedural documents through the Electronic Court: speeds up communication with the court and guarantees the filing is recorded.
5. Enforcement of the judgment: collection strategies
Getting a decision is only half the battle. Actual implementation is the next step.
- Applying to the executive serviceSubmit the application together with the writ of execution. From the moment the proceedings are initiated, the enforcement officer has the right to take action against the debtor.
- Private performersThey often work faster than the public service. According to the Law of Ukraine “On Enforcement Proceedings”, you can choose a private enforcement officer.
- Application of sanctions for evasionIf the debtor ignores the court decision, criminal proceedings may be initiated under Article 382 of the Criminal Code of Ukraine (failure to comply with a court decision).
- Asset monitoringIdentifying new accounts, movable and immovable property of the debtor in time will help the bailiff to act more effectively.
Conclusion
Success in a legal dispute with a counterparty is not only the result of being right on the merits, but also the consequence of a professionally built strategy: from pre-trial settlement to enforcement of the judgment. In difficult situations, the assistance of experienced lawyers becomes a decisive advantage.
Fedoryshyn & Partners team has many years of experience in commercial disputes. We help businesses protect their interests effectively, legally and strategically.
Contact us – we know how to win your case.
