The Centre for Commercial Law Studies at Queen Mary University of London has published its final recommendations on the establishment of the Intellectual Property Court in Ukraine.
The comprehensive recommendations will help Ukraine establish a world class IP Court that will support its growing creative and high tech economy.
The work forms part of the radical transformation of Ukraine’s legal system and is funded by the Foreign Commonwealth and Development Office (FCO) Good Governance Fund.
The report provides a comprehensive assessment of the legal framework and procedures of the IP Court in Ukraine and suggests recommendations on how to address the existing gaps by incorporating best international practices of IP litigation.
The key findings and recommendations in the report will help reinforce and improve the Court’s independence, jurisdiction, efficiency, accessibility, and technical expertise. The overall guidance of the Queen Mary team is aimed at ensuring that Ukraine’s new IP Court will be presided over by suitably qualified judges with the appropriate level of expertise, with the jurisdiction that ensures access to all and procedures that ensure cases are heard in a timely and effective manner matching best international practice.
Specifically, the report recommended separating the first and appellate instances and to allow access to natural persons. The qualification of judges with the appropriate level of expertise was another key area of focus with recommendations including more stringent selection criteria for the appellate chamber. The creation of a new Institute of Scientific Advisors was also recommended, that would assist judges in clarifying technical aspects of a case.
Locating the IP court exclusively in Kyiv, the capital of Ukraine, was seen as a concern for providing effective nationwide access to the IP Court. The report therefore recommended that hearings should be conducted at a regional level and that videoconferencing should be permitted to allow participants to join proceedings outside of the physical Court.
The report also included a series of recommendations to expand the jurisdiction of the IP Court to cover all relevant IP related issues, for example, tax and customs disputes involving IP rights, commercial cases involving IP agreements, appeals against a decision to refuse the registration of IP rights, disputes concerning recognition of well-known TMs, and all copyright holder disputes.
Suggestions to improve the efficiency of the Court proceedings included increasing the number of judges, amending the procedure to allow cases to be heard by one judge and in complex cases by a panel of judges, and improving the procedure of preliminary injunctions to encourage pre-trial settlement.
The implementation of these recommendations will help Ukraine’s new IP Court to become a world-class centre of judicial excellence on IP matters that has the trust and respect of national and international businesses and investors making Ukraine a more attractive destination for FDI.
The report is the culmination of a two-year project that was launched in 2018 led by Professor Ioannis Kokkoris and Dr Noam Shemtov, from Queen Mary’s Centre for Commercial Law Studies (CCLS).The Project has benefited from advice from a specially created International Advisory Board (IAB), chaired by Lord Neuberger, former President of the UK Supreme Court and consisting of leading international and Ukrainian IP judges, experts and practitioners.
Key to the success of the Project, notwithstanding numerous major challenges including political changes in Ukraine and COVID 19 Pandemic related disruptions, was the commitment, adaptability and continuous engagement by the Project team with all the key stakeholder. It enabled the Project to stay on track in a very uncertain political environment and to deliver a training programme for over 100 Ukrainian IP judges, candidates to the new IP Court and members of the Appeal Chamber at the IP Office, via a bespoke online training platform.
Dr Noam Shemtov, Project Co-Director, Reader in Intellectual Property and Technology Law, CCLS: "It has been truly exciting and interesting to share our knowledge and expertise with Ukraine, a country with incredible innovative and creative potential, to enable it to establish a world class IP Court.
We have very much enjoyed the many opportunities to visit Ukraine and to engage with its highly professional and dynamic judicial and legal community. We hope that our work has laid a solid foundation for the creation of a highly professional and effective IP Court that will become a lasting success story for Ukraine and its judiciary."
Dr Ian Walden, CCLS Director: "This Project demonstrates the core vision of CCLS: applying our academic and practical expertise to help address issues faced by governments and businesses around the world in reforming legal and judicial systems. We are very proud that our academics can participate in, and drive, such interesting and impactful work. We are particularly grateful to Maria Tymofienko, one of our PhD candidates, for initiating and managing this exciting Project. We will continue to expand the CCLS offering in capacity building for supporting judicial and commercial law reform."
Lord Nueberger, Chairman of the International Advisory Board, Ukraine IP Court Project, formerly the President of the UK Supreme Court: "Like all the other members of the International Advisory Board, I hope that our efforts and assistance will help to lead to tangible and beneficial results, and that the process of setting up the IP Court will be finalised and the Court will be operational soon.
"We also hope that in the near future the judges of the new IP court will be highly respected and valued members of the European and International judges’ community, who will be sharing their experience and challenges in creating a fair, strong and trusted system of enforcement of IP rights for the benefit of the many dynamic, creative and innovative sectors of Ukrainian economy and all those who work in them and contribute to them."
Since the 2014 revolution, Ukraine has launched and enacted more reforms than during the preceding twenty-five years. In 2015, the Ukrainian Government announced a large-scale transformation of the country’s judicial system and administration of justice. This included the reform of Ukraine’s Supreme Court, as well as the creation of specialised courts such as the High Court on Intellectual Property and the High Anti-Corruption Court.
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