The Right of Access to Non-State Dispute Resolution in the Legal Order of Larger Europe: A Yardstick to Harmonise Approaches to State and Non-State Dispute Settlement in Ukraine

Abstract

The Ukrainian legal thought has traditionally regarded the right of access to justice as a right of access\xa0to the State court, or to State managed or controlled procedures for dispute settlement. One of the main\xa0reasons for that was that the non-state, or uncontrolled by the State dispute settlement was not formally\xa0permitted, prohibition being imposed by the Soviet system and even to a certain extent during the period\xa0of domination on parts of the territory of the modern Ukraine, of the various externally imposed\xa0requirements of various legal systems in force at the material time. Non-state dispute settlement in its\xa0traditional forms, mainly based on the custom, was also left outside the attention in the pre-Soviet times\xa0and could not find its dignified place between accessible schemes and instruments for dispute settlement.\xa0Moreover, the understanding that justice delivery for the parties to the dispute should remain within State\xa0monopoly, became commonly accepted as from 1996. The adoption of the Constitution of Ukraine to a\xa0certain extent perverted approach to settlement of conflicts, focusing on the main role for the State courts,\xa0to these ends. In particular, the courts are having “direct jurisdiction” over any dispute, this led to\xa0perception of pre-trial settlements as unnecessary, even as regards those that remained in force, notably,\xa0the commissions on labour disputes that were recognized in the case-law of the European Court as equating\xa0in legal force to binding and enforceable legal instruments. Thus, the traditional historical approach to\xa0seeing judicial examination of disputes as an exceptional step in dispute settlement, in the absence of\xa0agreement or settlement by the parties, notably through mediation, arbitration or conciliation, variousforms of third party involvement, steadily disappeared. However, alternative examination of disputes is\xa0returning back to its original standing. It is gaining its place in the discussions on the judicial reform and\xa0reform of the system for settlement of disputes. This reform is far from being finalised and possibly has not\xa0even started in practice. The new approach to settlement of disputes, aimed at breaking the principle of\xa0State monopoly on examination of disputes and seeing State dispute settlement by court as an exception,\xa0is still not firmly entrenched into the mentality of lawyers, public servants, judges, law enforcement\xa0employees and politicians in Ukraine. Thus, the article suggests and points out to importance of taking\xa0into account with these changes of a wider European perspective. Such a perspective should relate not\xa0only to theoretical and practical advantages of the non-state dispute settlement, but also provides that the\xa0privatisation of the dispute settlement procedures and breaking the state monopoly on it, is a part of wider\xa0international obligations, also being a part of the supranational legal order of the European Union. This\xa0obligation of Ukraine is also seen as part of the requirements stemming from the Council of Europe law.\xa0Both the EU law and the Council of Europe provide for extensive soft law recommendations, legal\xa0principles, which are formed by the case-law of the European Court of Human Rights. Such an approach\xa0provides that alternative means of dispute settlement, including arbitration, do not run contrary to the\xa0principles of human rights with regard to fair judicial proceedings. On the contrary, they could be seen as\xa0a highly relevant actual means of dispute settlement for any modern European society, built on the\xa0principles of respect to rule of law and human rights.