EMERGING

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<strong>EMERGING</strong> MARKETS: A Review of Business and Legal Issues In accordance with part 1 of article 50 of Agreement TRIPS a law court has a right to issue the order of court about adoption of urgent and effective facilities, directed on: (à) prevention of violation origin of any right of intellectual ownership and, in particular, prevention of channels goods movement which are under their jurisdiction, goods , including goods imported directly after a customs clearance; (b) storage of the proper proofs related to a probable violation. Moreover, a law court has a right to apply temporary measures of inauditaalteraparte when it is expedient, in particular, in cases if there is possibility that any delay will result in inevitable damage or there is a risk that proofs will be destroyed and this risk is well-proven. Another guarantee of a just consideration of the case is possibility of the law court to demand the grant of any reasonable accessible proofs from a claimant to be sure that a claimant is 1) the rights owner 2) his right is violated or such violation is inevitable. Part 3 of article 50 of Agreement TRIPS gives possibility to require from the claimant to pay deposit or to give an equivalent guarantee which is sufficient for the rights protection of a defendant in case of illegal requirements of a plaintiff and prevention of possible abuses by the right. Concerning the normative legal acts of EU, there are no special norms which would regulate application of preventive measures except for administrative facilities. Only in accordance with part 2 of article 8 of the Directive of the European Parliament and Council of Europe 201/29/ of 22.05.2001 on harmonization of certain aspects of copyright and neighbouring rights in informative society each member state takes measures necessary for the subjects of rights whose interests have been violated through illegal activity, executed on their territory, to make a complaint in relation to the compensation of the damage or/and to demand the act of law, and, in a proper case, confiscation of illegal material, devices, goods or components used to circumvent technical facilities of protection. Also in accordance with part 3 of article 8 of the Directive mentioned above, the member states provide conditions for the subjects of rights for requirements of the act of law against mediators whose services are used by the third person for copyright infringement. Page 104 Volume 1, April 2009
<strong>EMERGING</strong> MARKETS: A Review of Business and Legal Issues Analysis of the articles of CCP and ECP of Ukraine concerning temporary measures has shown that there is a significant difference between them as to the types of preventive measures. In accordance with article 432 ECP of Ukraine the preventive measures include: 1) obtaining of proofs on demand ; 2) inspection of rooms in which actions related to violation of rights take place; 3) imposition of arrest on property which belongs to the person or is in his possession or in other people’s possession to whom the preventive measures have been used. Slightly different list is in part 2 of article 133 of CCP of Ukraine. Methods of proofs provision by the court are: 1) interrogation of witnesses, 2) setting of examination, 3) obtaining on demand and (or) review of proofs, including after their location. Other ways of proofs provision can be applied when necessary. Unlike the civil procedure, where application of other preventive measures is acceptable, in the economic legal proceeding the list of these measures is exhaustive (table 1). The Higher Economic court of Ukraine stands on the same position. In accordance with item 2 of the Informative Letter of the Higher economic court of Ukraine „On some practical issues of the use of preventive measures” of 20.04.2007 № 01- 8/251 [12] the list of types of preventive measures specified in article 43² ECP of Ukraine is exhaustive. Page 105 Volume 1, April 2009
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EMERGING

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