Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio
Kiev Treaty Concerning the Modalities of the Settlement of Disputes Related to the Exercise of Commercial Activity1
Kiev, 20 March 1992
The Governments of the States – Members of the Commonwealth of Independent States, attaching great importance to the development of co-operation in the sphere of settlement of commercial disputes between actors which are located in different CIS Member States, based on necessity of providing equal opportunities for protection of rights and legitimate interests among all commercial actors, have agreed on the following:
This Treaty regulates matters of hearing cases originating out of contractual and other civil relations between commercial actors and their relations with state authorities and other authorities, as well as enforcement of judgments concerned.
For the purposes of this Treaty ‘commercial actors’ mean enterprises, their associations, organizations of any legal form, as well as individuals who have the status of entrepreneur according to the laws of the CIS Member States and their associations.
Commercial actors of every CIS Member State shall on the territories of other CIS Member States enjoy legal and judicial protection of their property rights and legitimate interests equally to commercial actors of this state.
Commercial actors of each CIS Member State shall have the right to turn freely to courts, commercial courts, arbitral tribunals and other authorities which are competent to hear cases mentioned in Article 1 (hereinafter – ‘competent courts’), to plead, to bring forward motions, to file claims and to perform other procedural acts on the territories of other CIS Member States.
The competent court of the CIS Member State may hear cases mentioned in Article 1 if:
the defendant had his permanent residence or seat on the territory of this CIS Member State on the day when the action was brought against him. If there are multiple defendants who are situated in different CIS Member States, then the case can be heard upon the plaintiff’s choice before the court of the State where any of them is situated;
the defendant’s enterprise or a branch carries out commercial, industrial or any other economic activity on the territory of the State concerned;
the contractual obligation which is the subject of the dispute was performed or has to be performed in whole or in part on the territory of the State concerned;
the act or another circumstance which gave rise to the claim for damages took place on the territory of the State concerned;
the plaintiff who claims harm of his professional reputation has his permanent residence or seat on the territory of the State concerned;
p. 4040the supplier, contractor or provider of services is situated on the territory of the State concerned and the dispute concerns the conclusion, alteration or termination of a contract.
Competent courts of the CIS Member States can also hear cases if there is a written agreement between the parties on submitting the dispute to this court. If there is such an agreement, the court of another CIS Member State shall dismiss the proceedings upon the defendant’s request, provided that such request is made before the judgment has been rendered.
Exclusive jurisdiction for claims of commercial actors concerning property rights in immovables is vested in the court of the CIS Member State where the immovable is situated.
Exclusive jurisdiction for claims challenging non-normative acts of state authorities and other authorities in whole or in part is vested in the court of the place where the authority is situated. The same rule applies to claims brought by commercial actors for damages caused by such acts or by the mentioned authorities’ inappropriate performance of obligations towards commercial actors.
The parties may not alter the jurisdiction laid down in paragraphs 3 and 4 through an agreement.
The court which has jurisdiction to determine a claim shall also determine a counter-claim and a set-off claim arising out of the same legal transaction on which the original claim is based.
Competent courts and other authorities of the CIS Member States shall mutually grant legal aid.
Mutual legal aid includes handing-in and mailing documents and performing other steps in the proceedings, such as conducting expertise and hearing the parties, witnesses, experts and other persons.
When granting legal aid competent courts and other authorities of the CIS Member States communicate with each other directly.
When granting legal aid applications competent courts and other authorities addressed shall apply their national laws.
When applying for legal aid and enforcement of judgments, the enclosed documents shall be composed in the language of the applying State or in Russian.
Documents that are issued or authorized by an organ or a specially entrusted person within their competence and that comply with the established form and are officially sealed on the territory of one CIS Member State shall be accepted on the territories of other CIS Member States without any special authorization.
Documents that are treated as official documents on the territory of one CIS Member State shall have evidential value of official documents on the territories of other CIS Member States.
The CIS Member States mutually recognise and enforce judgments of competent courts which have the effect of res judicata.
Judgments rendered by competent courts of one CIS Member State shall be enforced on the territories of other CIS Member States.
Judgments rendered by a competent court of one CIS Member State which provide for execution to be levied upon the debtor’s property shall be enforced on the territory of another CIS Member State by authorities appointed by a court or determined in accordance with the laws of this State.
A judgment is to be enforced upon request of the interested party.
With the request are to be enclosed:
obligatorily, a properly certified copy of the judgment to be enforced;
p. 4041an official document confirming that the judgment has the effect of res judicata, if it is not apparent from the text of the judgment;
evidence that the debtor was served with the summons;
the enforcement document.
Enforcement of a judgment may be refused upon request of the party against which it is directed only if this party delivers to the competent court in the State where enforcement is being sought evidence of the following:
a court of the State addressed had earlier rendered a judgment which has the effect of res judicata in a case between the same parties, concerning the same subject matter and on the same grounds;
a judgment of a CIS Member State competent court or of a non-CIS Member State court rendered in a dispute between the same parties concerning the same subject matter and on the same grounds, has already been granted recognition;
the dispute was solved by a court incompetent according to this Treaty;
the other party was not served with the summons;
the three-year limitation period for filing the judgment for enforcement has expired.
The highest courts of the CIS Member States will settle controversial issues arising in connection with enforcement of judgments of competent courts.
Civil legislation of one CIS Member State shall be applied on the territory of another CIS Member State according to the following rules:
Legal capacity of legal persons and entrepreneurs is determined by the laws of the CIS Member State on which territory the legal person was established or the entrepreneur was registered;
Property legal relations are determined by the laws of the State where the asset is located. Property rights for means of conveyance which are to be registered are determined by the laws of the State where the means of conveyance is registered;
Accrual and extinction of property rights and other rights in rem is determined by the laws of the State where the asset was located at the moment when the act or another circumstance occurred that caused such accrual or extinction.
Accrual and extinction of property rights and other right in rem for an asset which is subject to a legal transaction is determined by the laws of the State where the legal transaction was concluded, unless the parties agreed otherwise;
form of the legal transaction is determined by the laws of the State where it was concluded. Form of legal transaction concerning real estate and another immovable property is determined by the laws of the State where the property is located;
form and period of the proxy is determined by the laws of the State where the proxy was issued;
rights and duties of the parties of a legal transaction are determined by the laws of the State where it was concluded, unless the parties agreed otherwise;
rights and duties of the parties of obligations resulting from torts are determined by the laws of the State where the act or another circumstance which gave rise to the claim for damages took place;
These laws should not be applied if the act or another circumstance which gave rise to the claim for damages is not unlawful according to the laws of the State of litigation;
p. 4042questions of limitation period are to be solved according to the laws of the State that are to be applied to corresponding relation.
The Highest Courts and the Ministries of Justice of the CIS Member States shall upon request of corresponding organs of another State deliver information on laws which are in force or were in force in their States as well as on its application practice.
This Treaty is open to signing by CIS Member States and requires ratification. It will enter into force after its ratification by at least three CIS Member States on the date of depositing the third instrument of ratification to the depositary State. For States which will ratify the Treaty later on, it will enter into force on the date of depositing their instruments of ratification.
Drawn up in the city of Kiev on 20 March 1992 in the original in Russian. The Original is kept in the Archive of the Government of the Republic of Belarus that will direct authorized copies of it to the States signatories of this Treaty.
Translation by Dr. Eleonora Gerasimchuk, LL.M., Rousaud Costas Duran, Barcelona (Spain).