Novelty 7 - Consideration of "Pilot" Cases by the Supreme Court in the Capacity of the Court of First Instance

Co-authored by Anton Havryk

This article continues a series of publications on the most striking changes in the new version of the Code of Administrative Procedure of Ukraine for the purposes of tax litigation.

What follows is the overview of the seventh most significant (of course, in our opinion) change attributable to the consideration of “pilot” cases by the Supreme Court.

The overview of the other essential changes is available here: Novelty No 1, Novelty No 2, Novelty No 3, Novelty № 4, Novelty No 5, Novelty No 6.

The Bill provides an interesting mechanism to ensure the fast unity of the judicial practice.

If there are 10 or more identical cases (quite a likely situation for tax disputes), the court of first instance may transfer one of these cases to the immediate consideration of the Supreme Court acting in the capacity of the court of first instance. Proceedings in the other cases are suspended until the resolution of the "pilot" case by the Supreme Court.  

Following the resolution of the "pilot" case by the Supreme Court, the courts of  first instance restore the proceedings in the suspended cases and decide them in line with the findings made by the Supreme Court.

* Photo from https://theneedleblog.wordpress.com/

Novelty 6 - Judicial Mediation

Co-authored by Anton Havryk

This article continues a series of publications on the most striking changes in the new version of the Code of Administrative Procedure of Ukraine for the purposes of tax litigation.

What follows is the overview of the sixth most significant (of course, in our opinion) change attributable to judicial mediation.

The overview of the other essential changes is available here: Novelty No 1, Novelty No 2, Novelty No 3, Novelty № 4, Novelty No 5.

The so-called "judicial mediation" will be introduced at the stage of pretrial proceeding.

In order for the procedure of "judicial mediation" to commence, there must be the consent of both parties to the dispute. The court issues its order on the beginning of the mediation procedure and suspends the proceedings before the mediation is over.

Mediation is conducted by the court by having recourse to joint meetings (two parties are present) or closed meetings (one party only is present). During such meetings the court gives suggestions to the parties on the settlement of the dispute, provides legal advice on the possible resolution of the dispute taking into account the existing evidence and court jurisprudence on similar cases.  

As many as 30 days are set aside for the procedure of "judicial mediation". If within this period of time the parties do not manage to settle the case, the judge will return to the usual procedure of its  consideration.

* Photo from http://www.salzburg-altstadt.at

Novelty 5 - Full Reimbursement of Attorney’s Fees

Co-authored by Anton Havryk

This article continues a series of publications on the most striking changes in the new version of the Code of Administrative Procedure of Ukraine for the purposes of tax litigation.

What follows is the overview of the fifth  most significant (of course, in our opinion) change attributable to the reimbursement of attorney's fees.

The overview of the other essential changes is available here: Novelty No 1, Novelty No 2, Novelty No 3, Novelty № 4.

The Bill provides for the full imposition of the attorney’s costs of the winning party on the losing party.

The currently existing statutory limit significantly confining the scope of the possible reimbursement of attorney’s fees will be revoked. Instead, the Bill introduces the criterion of “proportionality”. A court may decrease the amount of attorney’s costs payable to the successful party, if these costs are not commensurate with the amount of the lawsuit, the complexity of the case, the volume of legal services provided or other criteria.

* Photo from http://alexius.co

Novelty 4 - Counteracting the Abuse of Procedural Rights

Co-authored by Anton Havryk

This article continues a series of publications on the most striking changes in the new version of the Code of Administrative Procedure of Ukraine for the purposes of tax litigation.

What follows is the overview of the fourth most significant (of course, in our opinion) change attributable to counteracting the abuse of procedural rights.

The overview of the other essential changes is available here: Novelty No 1, Novelty No 2, Novelty No 3.

The Bill proposes measures aimed at counteracting the abuse of procedural rights.

The abuse of procedural rights may, for example, include the following: dilatory and obstructionist tactics, filing several complaints (so-called “clones”) or artificial insertion of several claims into one compliant  for the purpose of referring the lawsuit to the “needed” judge or court.

The first and main consequence of revealing the abuse of procedural rights is the refusal to allow the relevant application or petition. Additional adverse effects may encompass the full imposition of the costs of proceedings regardless of the outcome of the case, holding attorneys-at-law (advocates) and officials of governmental agencies disciplinary liable, the application of compulsory measures, such as a fine.  

   

Moreover, the Bill envisages some preventive measures directed against the abuse of procedural rights. For example, to prevent the filing of “cloned” complaints, the Bill sets out a new requirement to the statement of a claim: the plaintiff must confirm in this document that he has not yet filed any analogous complaints with courts.

* Photo from http://abovethelaw.com

Novelty 3 - New Approach to Determining Duration of Litigation

Co-authored by Anton Havryk

This article continues a series of publications on the most striking changes in the new version of the Code of Administrative Procedure of Ukraine for the purposes of tax litigation.

What follows is the overview of the third most significant (of course, in our opinion) change attributable to new approach to determining the duration of litigation.

The overview of the other essential changes is available here: Novelty No 1, Novelty No 2.

The authors of the Bill propose a new approach to determining the duration of litigation: the periods of time set aside for administering litigation will be longer than now, but their adherence will be strictly monitored.

Hopefully, there will be no widespread situation of today in the future in which a court resorts to written proceeding and refrains from ruling on the case for several months.

The general period of time devoted for litigation at a court of first instance will be 90 days as compared to current one month. Given the increased importance of the new fashion pretrial proceeding, 60 days out of the above 90 days will be attributable to the pretrial proceeding and the remaining 30 days will be ascribable to trial.  

The general period of time set aside for litigation at a court of first appeal and a court of second appeal (cassation) will be 60 days when it comes to appealing from judgements and 30 days when it comes to appealing from procedural rulings. As a matter of reminder, nowadays the period of time set out for litigation at the aforesaid courts amounts to one month and does not depend on the type of the appealed decision.

* Photo from http://briandhunter.org