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15 April 2022

The Supreme Court cancels Russia’s state sovereignty immunity over its war with Ukraine. Starting from 2014 Ukrainian courts may ignore the immunity defense in accepting lawsuits against Russia for compensation of harm. 

In this case a Ukrainian woman brought a claim against Russia. She sought to recover the moral harm (essentially, emotional distress) caused by the death of her husband fighting the Russian invasion of Ukraine. 

The local court denied the claim, arguing that Ukrainian law prohibits suing a foreign state without its consent. The appeal court tried to seek Russia’s consent. It suspended the proceedings pending a request to the Russian embassy. 

The Supreme Court in cassation proceedings held that starting from 2014, and especially after the start of the full-scale war in 2022, Ukrainian courts had a right to ignore Russia’s state sovereignty.

The Supreme Court noted the current general trend in international law is for the recognition of limits to state immunity. Where harm was caused by agents of a country that broke international law and the UN Charter prohibiting armed aggression, its immunity would not be exercised in pursuance of legitimate rights. So the country is not entitled to the defense.

Besides, given the severance of diplomatic relations between the two countries, there was no practical way to seek Russia’s consent in the matter. 

The ruling is likely to open up a flood of litigation against Russia for damages caused by the hostilities, dating all the way back to 2014. There is little doubt that Ukrainian courts will not hesitate to grant such claims. Although the awards will likely not be accepted in Russia, they could still be filed for enforcement in countries that harbor Russian assets. It remains to be seen how courts in such countries will treat such judgements. 

Whatever Russian assets are still left in Ukraine will likely not be available for collection either, as they must have by now all been gobbled up by Ukraine’s sanctions against Russia. 

Ukraine declared martial law in response to Russia’s military invasion in February 2022. 


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