Ukraine: cross-border discovery mechanisms and limitations

Kostiantyn Likarchuk
AVELLUM, Kyiv
klikarchuk@avellum.com

Roman Syniuta
AVELLUM, Kyiv
rsyniuta@avellum.com

Khrystyna Shvab 
AVELLUM, Kyiv
kshvab@avellum.com

Collecting evidence in Ukraine is a double-edged sword: on the one hand, the country benefits from numerous public registers that offer easy access to various important data; on the other, obtaining evidence through the courts is more limited and challenging compared to other jurisdictions.
When considering Ukraine for cross-border discovery, the first step is to determine what evidence is required and how easily it can be obtained.

Open data

Ukraine has long been a leader in open data within Europe. In practical terms, this means that much of the information lawyers need is readily available, often with little effort. Here is a summary of some key information that can be accessed through open data or quasi-public resources.

Legal entities: 

• Basic information: Name, registration code, address, officers, shareholders, UBOs, history of corporate changes, company status, etc.
• Company documentation: Articles of association and full ownership structure (Note: other company documents may sometimes be obtained through information requests to authorities).
• Financial information: Annual, semi-annual and quarterly financial reporting.
• Business licences: Information is published by relevant regulatory bodies.  

Individuals:

• Entrepreneurial activity: Information on whether an individual is registered as an entrepreneur, along with contact details (address, phone, email).
• Asset declarations of public officials: Detailed data about public officials and their families’ assets, including real estate, vehicles, bank accounts, shares, and more.

Both:

• Real estate and land rights: Searchable by owner or address. Licensed attorneys can access underlying documents such as contracts and deeds uploaded to the register.
• Transport ownership: Searchable with some limitations.
• Intellectual property: Publicly available through various IP registers. 
• Litigation history: Public access via the court decisions register (which includes both final judgments and procedural rulings). However, access to case files’ materials is limited. 
• Debts: Enforcement proceedings can be checked in relevant registers. 
• Public procurement: All relevant information and documentation are available through a public platform. 

The main benefit of such transparency is that information can be obtained quickly and reliably from official sources.

Important note is, however, that access to some of the otherwise public information may be restricted if it pertains to military, defence, or other sensitive categories.

Formal requests for information and/or documents

Where information or document held by state bodies is not restricted, it may be obtained upon request for information or documents and/or attorney request.  Attorneys may also request information or documents from private parties (enterprises, institutions, and organisations, as well as NGOs) but such requests are not always properly fulfilled. 

As a matter of practice, the requests are frequently used by lawyers and are considered as relatively efficient method of evidence collection.

Courts

Where information or document does not form part of open data, is not otherwise public, or is clearly restricted, one may require court’s assistance in gathering it. 

Collection of evidence in support of foreign court proceedings

Ukrainian law does not provide for a self-standing procedure for collecting evidence in support of foreign court proceedings, such as disclosure orders in common law jurisdictions. Instead, Ukrainian courts provide assistance to foreign courts based on letters rogatory. 

When both Ukraine and the requesting state are parties to an international treaty, that treaty applies. If not, the request is processed through diplomatic channels. 

Ukraine is party to the 1970 Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters ('Hague Evidence Convention'). It, however, has made two important reservations:

• Language requirement: Letters rogatory to Ukraine must be in Ukrainian or accompanied by a certified Ukrainian translation; and
• Limited scope: Ukraine does not execute letters rogatory for the purpose of pre-trial document discovery, as is usual in common law countries.

In addition to the Hague Evidence Convention, Ukraine has entered into several bilateral treaties on mutual legal assistance. Such treaties may offer more favourable provisions compared to the Hague Evidence Convention. For instance, the treaty with Cyprus allows requests to Ukraine in Greek accompanied with certified English translations.  

A more sophisticated (but often time-consuming) approach is to apply for the recognition and enforcement of a foreign court order. For instance, there was a case where Ukrainian courts enforced a worldwide freezing order issued by the Hight Court of Justice in the part of ordering Ukrainian national to disclose information about assets of the respondent. 

This method usually requires more effort and time than the letter rogatory process and should be considered a backup when conventional methods fail. Furthermore, there is always the risk that a court may refuse to recognise or enforce provisional orders on interim measures, as these, although binding, are not in fact final judgments in the case.

Collection of evidence in support of international arbitration

Unlike with foreign court proceedings, Ukraine has clear procedures for assisting with evidence collection in support of international arbitration cases. Here is how it works:

•  A party can file an application to preserve evidence before the arbitration tribunal is officially set up, as long as they have already filed the request for arbitration (i.e. it is not possible to secure evidence for a potential, or 'contemplated' arbitration); and
• Once the arbitration tribunal is in place, the tribunal itself, or a party with the tribunal’s consent, can ask an appellate court in the area where the evidence is located or the witness resides to assist in collecting evidence.

However, there are important caveats to keep in mind. The Ukrainian courts will only assist with evidence collection according to the Ukrainian Civil Procedure Code, which follows the civil law tradition. This means that requests for document production are limited and can only cover specific documents.

For a request to be considered, it must include:

1. A clear description of the evidence being sought (including precise details of each piece of evidence).
2. The purpose of the evidence – what circumstances or arguments it will prove or disprove.
3. Solid grounds to believe the evidence exists and is held by a specific person or entity (usually backed by other evidence). 
4. Evidence of efforts made to obtain the evidence independently, and a justification for why this was not possible (often requiring proof that document requests were sent before seeking court assistance).

If any of these points are missing, the court will likely dismiss the request. For example, there have been cases where parties requested vague documents like “evidence confirming home heating services,” and the court rejected those requests because they didn’t specify exactly what evidence was being sought. Courts generally require documents to be described in detail – by title, date, number, or form – and will reject requests that lack such details.

This means that if a party does not know exactly what evidence the other side holds, obtaining it through a court order is unlikely. Precision is key.

Conclusion

In summary, Ukraine offers a distinctive environment for evidence collection in cross-border disputes. On the one hand, the country’s extensive open data infrastructure provides lawyers with quick and reliable access to a wide range of information about companies, individuals, assets, and litigation history. In many cases, this transparency allows parties to gather substantial evidence without resorting to formal procedures.

On the other hand, when evidence cannot be obtained through open sources or requests, the available legal mechanisms are comparatively limited. Broad disclosure or discovery mechanisms usual in common law jurisdictions are not available.

For practitioners, this means that successful evidence gathering in Ukraine depends heavily on a well-planned approach. When used strategically, the available tools can make Ukraine a relatively accessible jurisdiction for obtaining evidence despite its procedural limitations.