Does Ukraine need separate investment courts: Victor Surnik's material specifically for the blog “Legal Practice”

Today, during the full-scale military invasion of the Russian Federation in Ukraine, the issue of rebuilding the state is particularly acute. One of the sources of financing such reconstruction is investments, including foreign ones. A necessary precondition for attracting foreign investment is the improvement of the investment climate in Ukraine, in particular, ensuring proper judicial protection of investors' rights and interests. Therefore, the protection of the rights of investors, in particular, foreign ones, is a new challenge for the judicial system of Ukraine. And here the question arises, is our judicial branch ready for such challenges?

Without a doubt, the active attraction of foreign investment will lead to an increase in the number of litigation related to the protection of the rights and interests of investors. At the same time, at the XI International Judicial Law Forum, the main emphasis of the speeches of representatives of the judicial branch of the authorities was aimed at the excessive burden on the judicial system and the shortage of personnel. Therefore, in this context, the question arises in the organizational readiness of the judicial system.

In addition, the analysis of judicial practice allows us to conclude that investment activity in Ukraine is underdeveloped and is not fully defined in the legal field, as evidenced, in particular, by the different approaches of the Supreme Court to the interpretation of investment treaties, and, as a consequence, discrepancies in the legal conclusions in investments legal relations.

Therefore, the issue of creating a separate judicial institution in Ukraine — the Supreme Investment Court of Ukraine — is very acute and has long been discussed in the legal community.

In our opinion, it is necessary to separate investment disputes into a separate category of cases.

At the same time, if we talk about the creation of a new judicial institution for the consideration of investment disputes, then the question arises in the constitutionality of such innovations, because under Article 125 of the Constitution of Ukraine the creation of extraordinary and special courts is not allowed.

In addition, the creation of a new court requires a logistical base and the appointment of new judges, which will require significant expenses from the country's budget, which, as they say, is not on time.

In our opinion, it is possible to resolve this issue in a more rational way, for example, by creating a separate chamber for the consideration of investment disputes within the Economic Court of Cassation or the Supreme Court on Intellectual Property. This will require significantly less expenses and, at the same time, will allow to separate investment disputes into a separate category of cases, which will be considered by judges of a separate specialization.