On 17 May 2023, at the Council of Europe Summit, the European Union and 43 other countries signed the agreement on the Register of Damage Caused by the Aggression of the Russian Federation Against Ukraine ("Register").
The Register constitutes the first component of a future international compensation mechanism, which is intended to compensate damages caused by the Russian Federation's aggression against Ukraine.
The signing of the agreement was preceded by the Resolution of the Committee of Ministers of the Council of Europe dated 12 May 2023 establishing the Enlarged Partial Agreement on the Register and the Statute of the Register.
About the Register
The Statute provides that the Register will be created as a legal entity under the national law of the Kingdom of the Netherlands and Ukraine with its seat in The Hague (the Netherlands). The statutory functions of the Register are as follows:
• Receive and process information on damage claims and evidence.
• Classify and organize such claims.
• Assess and determine the eligibility of such claims for inclusion in the Register.
• Record the eligible claims for the purposes of their future examination and adjudication.
As can be seen from the provisions of the Statute, the right to submit a damage claim should be granted to natural and legal persons, as well as the State of Ukraine, including its regional and local authorities, and state-owned or controlled entities that suffered damage, loss or injury that was caused on or after 24 February 2022 in the territory of Ukraine by the Russian Federation's internationally wrongful acts in or against Ukraine.
It should be noted that the Register should have no authority to adjudicate claims, including determining responsibility and allocating any payments or compensation. Such authorities will be granted to other bodies established within the framework of international compensation mechanism.
Such a mechanism may provide for the establishment of a claims commission and a compensation fund authorized, accordingly, to adjudicate claims and/or pay compensation for damage.
In addition, the document also provides for the establishment of a satellite office of the Register in Ukraine for the purpose of facilitating contact with potential claimants in Ukraine, in particular, with regard to the existence and purpose of the Register, the procedure for filing claims for damage, etc.
Conclusions and recommendations
As of today, the Register is in the creation stage. The Statute of the Register provides that the date from which the Register shall be open for submitting claims will be determined later. It also provides that the eligibility criteria for recording claims in the Register shall be determined in the rules and regulations of the Register.
In light of the above, we recommend following the publication of information on the opening of the Register and the eligibility criteria for the purposes of correct completion and timely submission of claims for damage.
By Ihor Siusel, Partner, Kseniia Prokhur ,Counsel, and Nataliya Lipska, Junior Associate, Baker McKenzie
