“Few professionals can provide competent expertise that would be deemed by the courts of foreign jurisdictions” states Alexey Kot, Managing Partner of Antika Law Firm
— Demand has recently appeared for such a service as legal expertise, both from foreign and domestic clients. What is the reason for this?
— This is primarily due to the fact that judicial reform has not been completed, and is only coming into its active phase. While the judicial system will be “stormed”, all disputes that should and could be considered in Ukraine at the earliest available opportunity will pass to foreign courts and arbitrations. Therefore, the need for such services as legal due diligence – preparation of expert answers to controversial and complex questions about the application of the rules of Ukrainian law by recognized experts in a particular field of law, will grow in the nearest time.
We have been monitoring this market for five years, since 2010, when we established Antika Law Firm. This service is in demand both in Ukraine and abroad. Although most requests come to us from foreigners. The service is also in demand because in some fields there are very few lawyers who can act fully as experts. Hence, demand exceeds supply.
— In which cases is it necessary to resort to the help of an expert?
— In our country such a tool as an expert opinion may be used primarily in legal proceedings. A qualified opinion of a competent expert may well help to convince the judge, prosecutor or investigative officer in the correctness of the position, which a defence lawyer states for; in particular, we can talk about the application of certain political or administrative pressure. Or else, when we realize that someone respects no rules, we can apply expert opinion for judge to feel, put it mildly, very “uncomfortable” taking an illegal decision, which can then be appealed against with great publicity and relevant personal consequences for the judge.
Widespread use of legal expertise is support of enterprise management position in decisions already adopted. Management often has the need to report to the shareholders, investors or management of the parent company for some of their actions in terms of their appropriateness and legality. In such cases, expert opinion helps to confirm the validity of earlier decisions.
One more option that is quite popular nowadays is the need for so-called additional opinion arising from the legal department of a large company, which doubts the correctness of its answer to the narrow question or wants to redistribute or minimize the risks. For example, we often receive this kind of requests from banks and large corporations. In this case, except the answer to the question, the expert need to provide also a description of his arguments as expert opinion will be used in standard risk assessment procedure.
— And which inquiries do foreigners make and precisely who?
— Often disputes with participation of Ukrainian companies and involving the use of Ukrainian law are considered outside Ukraine – in foreign courts and arbitrations. As a rule, the majority of judges even if it comes to arbitration did not have any idea of Ukrainian legislation. Therefore, it is necessary for a court to establish the content of Ukrainian law, and the parties are forced to justify their position by enlisting experts from Ukraine. The formula is quite simple: there is a judge or an arbitrator, who must be convinced that your position really corresponds to Ukrainian legislation, and whose expert will in the most intelligible way present a position on which the claim or objection of the relevant party is based, that, as a rule, will gain benefits. Of course, the expert's name and competency, “track record” is also important for the court.
— Do clients resort to experts directly or do their legal counsels deal with this matter?
— As a rule, Ukrainian lawyers are attracted as experts by large foreign law firms which accompany disputes in foreign courts or arbitration. The entire law firm or some of its employees may be involved in preparing the opinion in all matters regarding the interpretation of the rules of Ukrainian law (including close work with the company about incorporating expert opinion into their documents ad rem), or only in specific, narrow issues.
As an example, I will illustrate a case that had been considered for a long time in the High Court of Justice of England and Wales. The client succeeded in getting a court order on seizure of the debtor’s assets, though the core process was in Ukraine. This seizure is caused by the fact that in the case of a decision in favour of the plaintiff to execute that decision in Ukraine would, for obvious reasons, be almost impossible. Our function as experts was to prove with reason that the litigation prospects – the likelihood that adjustment of the claim against the defendant in Ukraine is great enough, but because of an unfair act on the part of the defendant the client is unlikely to execute the decision and recover the debt in Ukraine. That is what, in fact, the British lawyers persuaded the Court on the basis of our expert opinions.
— Who is an expert as a rule?
— The selection of experts is rather rigorous, because sometimes the outcome of the case depends on the quality of the opinion. In order to get or, more exactly, deserve the right to provide expert opinion, a specialist should be an unquestioned authority in the field where the opinion is required. In most cases we can speak of recognized practicing lawyers with the relevant recommendations of international legal ranking publications, as well as representatives of science, actively involved in law-enforcement and legislative activity (participation in scientific and expert councils of higher courts, state boards and commissions in certain fields, preparation of drafts, comments on regulations etc.).
— Which factors are taken into account when selecting a specialist? Whose opinion will be really high quality and authoritative for any court instances?
— Among experts everything revolves around personalities – only a few can provide competent expertise that would be regarded by courts of foreign jurisdictions. Now we actively provide expert opinions on civil, contract, corporate law and, of course, on the application of antitrust/competition law and in the energy sector.
This work is well paid, but quite complicated. In arbitrated cases sums running into multi-millions are involved, so the issue is not the cost, but in the desire to get a better expert.
I am proud to say that our clients know that we work with the best experts in Ukrainian law.
Foreign lawyers are very sensitive to any potential conflict of interest.
Most importantly, reputation is what experts should always remember. Because if an expert was accused of incompetence on at least one occasion or, for example, of being e inconsistent, when his position on similar issues in various cases is different, he can safely put an end to his career as an expert. So, if a specialist is chosen for his or her expertise, he/she already has no right to make mistakes. If the expertise was of poor quality, he will never get a second request. But if the expert has established well and on more than one occasion, he will be addressed more and more in future.