Sayenko Kharenko’s litigation practice team has successfully defended the interests of an international software provider for e-commerce businesses worldwide. 

The dispute is connected with the business centre’s (BC) owner’s failure to fulfil the preliminary agreement’s provisions regarding BC’s commissioning, which resulted in the tenant’s termination of the contract. The BC’s owner refused to acknowledge the termination of the preliminary agreement and return the advance payment. 

Despite the claim being dismissed by the first instance court, the court of appeal and the Supreme Court have fully agreed with the Sayenko Kharenko lawyers’ arguments and decided to uphold the claim in favour of the Client. The following conclusions are vital in this dispute: 

• the advance payment, determined in the agreement as equivalent to foreign currency, is subject to return at the exchange rate effective as of the date of filing the claim, not in a sum it was actually paid; 
• sending a withdrawal notice by email, not in writing as defined by the terms of the agreement, does not itself constitute the improper termination of the agreement; 
• the “letter in response” doctrine was applied to defend the Client’s position. The doctrine states that if it is proved that a letter or message was sent to a specific person, then the message sent in response is considered authentic without additional evidence; 
• in addition to other evidence provided by lawyers to defend the Client’s position, the courts also considered email correspondence and other electronic evidence. The court upheld the position that email correspondence has long been a part of doing business in Ukraine and, therefore, can be used in the proofing procedure; 
• given the inconsistent BC’s owner’s behaviour during the court proceedings and his refusal to acknowledge the facts he recognised in the negotiations, the court supported the lawyer’s argument to apply the “prohibition of contradictory behaviour” concept. 

After evaluating all the parties’ arguments, the court recovered an advance payment from the defendant, taking into account exchange rate fluctuations and three per cent per annum for the entire in payment delay period. 

The judicial defence was performed by counsel Sergiy Protyven, senior associate Zhanna Zayets, associate Dmytro Shahirmanov and junior associate Anastasiia Marushchak under the supervision of the partners Oleksiy Koltok and Olena Sukmanova.