Party-Commissioned Expert Reports in Ukrainian Courts: Four Procedural Traps Foreign Counsel Must Know

Evidence is the foundation of any court proceeding. A well-constructed legal argument without evidentiary support will not carry a case – in Ukraine any more than elsewhere. Yet the process of gathering and presenting evidence in Ukrainian commercial litigation has a peculiarity that regularly catches both domestic claimants and foreign parties off guard: the procedural status of expert reports commissioned directly by a party to the dispute.

Since 2018, Ukrainian procedural codes have expressly permitted parties to commission expert opinions independently – without a court order – and to submit them as evidence. The reform was driven by the principle that in civil and commercial proceedings the court acts exclusively as an arbiter, not as an investigator. In theory, this was a step toward greater equality of arms. In practice, a line of Supreme Court decisions has significantly diluted the reform’s benefits, particularly for claimants.

This article sets out concrete procedural problems that arise when a party-commissioned expert report reaches a Ukrainian court, draws on the most recent Supreme Court case law, and offers practical guidance for foreign clients and counsel navigating Ukrainian litigation.

⚠️  Core issue:  Ukrainian courts have developed a practice of treating party-commissioned expert reports not as expert evidence – which carries enhanced procedural protections – but merely as written evidence. This distinction has four significant downstream consequences for the commissioning party.

Background: Expert Evidence in Ukrainian Commercial Procedure

The Commercial Procedural Code of Ukraine (CPC) recognises three categories of evidence: (1) written, material and electronic evidence; (2) expert opinions; and (3) witness testimony. Expert opinions are treated as a distinct category with their own procedural rules – stricter requirements as to who may prepare them, what they must contain, and how they must be formatted.

Prior to 2018, an expert opinion could be used in proceedings only if it was prepared pursuant to a court order. The 2018 reform – introduced through wide-ranging amendments to all procedural codes – changed the default rule: parties were given the right to commission expert opinions before litigation commences and to file them with their initial submissions. Court-ordered expert examination was retained only as an exception, available where the party can demonstrate a legitimate reason for being unable to obtain the opinion beforehand.

The model contemplated by the legislature was straightforward: (1) a prospective claimant identifies issues requiring specialist knowledge; (2) commissions an expert opinion before filing; (3) submits the opinion with the statement of claim. Court appointment of an expert is a last resort, not the default.

✦  Key provision – Art. 99(1)(2) CPC

A court may appoint an expert at a party’s request only where it was impossible to submit the expert opinion together with the statement of claim for reasons the court recognises as valid, in particular due to the inability to obtain the materials necessary for the examination.

In principle, the 2018 reform was a meaningful liberalisation. In practice, it has been partially undermined by a line of Supreme Court decisions that effectively demote the procedural status of party-commissioned expert opinions.

The Four Problems

As early as its judgment of 12 September 2018 in case No. 638/16054/16-ц, the Supreme Court held that an expert opinion submitted by a party – rather than prepared under a court order – can be treated by the court only as written evidence, not as expert evidence proper. This position has since been affirmed repeatedly (Supreme Court: 16 January 2019, case No. 227/1524/16-ц; 26 September 2019, case No. 910/20650/17; 9 August 2023, case No. 348/897/21; 6 May 2025, case No. 910/16093/18).

The consequences of this classification are more serious than they may first appear. Four distinct procedural problems flow from treating a party-commissioned expert opinion as mere written evidence.

Problem 1: Higher Evidentiary Standards Become Unreachable

Written evidence is assessed against the standard requirements of relevance, admissibility, and reliability. Expert evidence is subject to a considerably more detailed set of requirements: Who prepared it? What qualifications does the preparer hold? Does the opinion comply with statutory requirements as to form, content, and process?

These additional requirements serve a dual purpose – they impose quality control on expert evidence, and they give opposing parties clear grounds to challenge it. When a party-commissioned expert opinion is reclassified as written evidence, the application of those quality-control norms becomes uncertain. The result is arguably perverse: the stricter the rules the legislator has crafted for expert opinions, the more damaging their non-application becomes for the party that has invested in obtaining a rigorous, compliant opinion.

📋  Practical consequence:  A party that carefully commissions a technically compliant expert opinion may find that compliance with expert-opinion rules is treated as irrelevant by the court, because the document is being assessed as a written exhibit – not as expert evidence.

Problem 2: No Right to Challenge the Expert’s Impartiality

Ukrainian procedural law allows parties to challenge an expert’s independence and impartiality (recusal). This mechanism is available precisely because an expert – unlike a document author – has a formal procedural status as a participant in the proceedings.

If, however, the person who prepared the expert opinion is treated by the court not as an expert but merely as the author of a written document, the recusal mechanism is unavailable. A party who believes the opposing side’s expert lacks objectivity or has a conflict of interest cannot formally challenge that person’s participation. This was confirmed by the Podilsky District Court of Kyiv on 8 November 2024 in case No. 758/4794/24, which held that an author of a party-commissioned opinion cannot be subject to a recusal challenge, as they do not hold expert procedural status.

⚠️  Practical consequence:  Opposing parties are deprived of an important quality-control tool. A biased or conflicted expert contributing a written exhibit faces no procedural check that would otherwise apply to court-appointed or formally-recognised party experts.

Problem 3: The Expert Cannot Be Called for Oral Examination

Under Art. 98(5) CPC, the court may – at a party’s request or on its own motion – summon an expert to provide oral explanations regarding the opinion. The word ‘expert’ in that provision implies a person holding expert procedural status.

Applying the same logic that removes recusal rights, courts have concluded that the author of a party-commissioned opinion is not a procedural expert and therefore cannot be summoned for oral examination. This matters considerably in technically complex cases – IP disputes, financial fraud claims, engineering defect cases – where the opposing party needs an opportunity to test the basis of the expert’s conclusions through directed questioning.

📋  Practical consequence:  In cases where the expert opinion is central to the outcome, the opposing party loses the procedural right to question the expert orally. The opinion stands unexamined by cross-examination-equivalent procedures.

Problem 4: Expert Costs Are Effectively Non-Recoverable

Art. 123 CPC defines recoverable litigation costs to include, among others, costs associated with engaging experts and conducting expert examination. It would be natural to expect that costs incurred in commissioning a pre-litigation expert opinion would fall within that category.

However, two lines of Supreme Court authority combine to block recovery. First, the familiar reclassification: if the opinion is not expert evidence, the costs are not expert costs. Second, the Supreme Court has held – in cases No. 824/647/19-a (16 December 2020), No. 640/19089/20 (13 July 2021), and No. 914/3881/21 (31 May 2023) – that costs related to expert examination are recoverable only where the examination was conducted within court proceedings, because a party acquires litigant status only after filing a claim.

The paradox for a claimant is complete. The CPC requires the claimant to file all available evidence with the statement of claim. To do this, the claimant must commission an expert opinion before filing. But because the opinion was commissioned before filing – and thus before the claimant held litigant status – the cost cannot be recovered even if the claimant succeeds in full.

⚠️  Practical consequence:  Claimants who follow the procedural rules and obtain expert opinions before filing are systematically denied cost recovery for doing so. Defendants who commission expert opinions after the action commences – and thus after acquiring litigant status – face no such obstacle.

The Structural Asymmetry: Claimant vs. Defendant

The combined effect of the four problems described above creates a structural disadvantage for claimants. The table below summarises the asymmetry.

Claimant	Defendant
Must commission expert opinion before filing to comply with evidence-submission rules	Commissions expert opinion after action commences, within the proceedings
Opinion filed pre-litigation = reclassified as written evidence	Opinion filed with defence = treated as proper expert evidence
Expert costs not recoverable (pre-litigation commission)	Expert costs recoverable if defendant succeeds
Cannot challenge opposing expert’s impartiality via recusal	Shares this limitation – but benefits from the claimant’s weaker position
Cannot call own expert for oral examination	May benefit from inability to question claimant’s expert

This asymmetry is not merely inconvenient – it undermines the adversarial principle that is supposed to govern commercial litigation in Ukraine. The adversarial model requires that both parties operate under equivalent procedural conditions when presenting evidence. Where the claimant’s compliance with the evidence-submission rules is systematically penalised, those conditions do not hold.

Practical Implications for Foreign Parties and International Disputes

For foreign companies involved in Ukrainian litigation – whether as claimants in IP enforcement cases, contract disputes, or investment-related proceedings – the practical implications are significant.

Expert reports obtained abroad.  A foreign technical or financial expert opinion obtained in the home jurisdiction and submitted in Ukrainian proceedings will almost certainly be reclassified as written evidence. Foreign counsel should not assume that a report meeting the standards of their own jurisdiction’s expert evidence rules will carry the same procedural weight in a Ukrainian court.

IP and technology disputes.  In intellectual property proceedings – trademark similarity, patent validity, trade secret misappropriation – specialist expert evidence is often indispensable. Parties who invest in high-quality technical opinions and expect them to be assessed as expert evidence in the full procedural sense should be advised of the risk of reclassification.

Pre-litigation strategy.  Given the current state of the case law, parties contemplating Ukrainian litigation should ideally seek a court order for expert examination rather than commissioning opinions privately, wherever circumstances permit. Where pre-litigation commission is unavoidable, the costs budget should reflect the near-certainty that those costs will not be recovered.

Investment dispute context.  Foreign investors involved in disputes with Ukrainian state entities or counterparties should note that the structural disadvantage described in this article affects claimants – which is usually the position of a foreign investor asserting a claim. Experienced Ukrainian litigation counsel can advise on strategies to mitigate exposure.

The Case for Change

The current judicial practice is difficult to reconcile with the legislative intent behind the 2018 reform. The legislature deliberately extended the right to commission independent expert opinions to all parties; it did not intend to create a two-tier evidentiary system in which that right carries reduced procedural consequences.

The principle established in the 2018 explanatory notes – that courts in civil and commercial proceedings act as arbiters and not investigators, and that evidence including expert opinions is presented by the parties – is directly at odds with a practice that treats party-presented expert evidence as inherently inferior.

There is a credible argument that the Supreme Court’s current position meets the criteria for departure set by the Court itself: a previous legal position should be revised when it is erroneous, ineffective, or has demonstrably become outdated in light of developments in the relevant area of law. The documented structural disadvantage to claimants, and the undermining of the adversarial principle, provide exactly such grounds.

📌  Our view:  The existing line of Supreme Court authority on party-commissioned expert opinions should be reconsidered. The current approach narrows the procedural rights of litigants in ways that the legislature did not intend and that are inconsistent with the adversarial model Ukrainian procedure is supposed to embody.

Conclusion

Commissioning an expert opinion before filing a claim in Ukraine is not only permitted – it is, under the current procedural rules, effectively required. Yet the Supreme Court has developed a practice of treating such opinions as written evidence rather than expert evidence, with four concrete adverse consequences: weaker evidential scrutiny standards, loss of recusal rights, inability to summon experts for oral examination, and non-recovery of expert costs.

The asymmetry this creates between claimants and defendants is not a technical quirk. It is a structural distortion of the adversarial principle, one that disproportionately affects foreign parties asserting claims in Ukrainian courts. Understanding this dynamic – and planning litigation strategy accordingly – is essential for any foreign party engaged in or contemplating proceedings in Ukraine.