EMERGING

EMERGING MARKETS:
A Review of Business and Legal Issues
instantaneousness of part 6, article 50 of Agreement TRIPS and are effective as they allow the
persons to keep the proofs and to halt subsequent offences in the field of author law.
Subject composition of persons who are to execute the preventive measures adopted by
the economic court is to be determined by the contents of the economic court ruling about the
use of preventive measures .
As for the order and method of implementation of preventive measures, they are to be
determined in accordance with the selected preventive measure (article 432 ECP of Ukraine) ,
and obtaining of proofs on demand after the rules of article 38 ECP of Ukraine is carried out
by the economic court. As to the inspection of rooms in which actions related to violation of
rights, and impositions of arrest on property, which belongs to the person to whom the
preventive measures are accepted and who himself or other persons possess this property, it is
carried out by a state executor in accordance with part 1 article 43 6 ECP of Ukraine in an order,
statutory by Law of Ukraine „On executive realization” [18], on the basis of the proper
economic court ruling which is an executive document.
As it has been mentioned above, the procedures which provide the observances of
intellectual ownership rights are to be equal and just (part 2 article 41 of Agreement TRIPS),
that is why preventive measures must be adequate. In our opinion, adequacy of measure prior
to a claim, which is used by the economic court should be determined by its conformity to the
requirements, to provide which it is used. The estimation of such conformity must be carried
out by the court, in particular, taking into account correlation of rights ( interest) protection of
which a claimant sues, with the cost of property on which the arrest is imposed or property
consequences of prohibition of a defendant to accomplish certain actions.
Therefore, an important guarantee of observance of legal titles and interests of person,
against whom preventive measures are used and, simultaneously, a certain guarantee to
prevent a claimant from abuse of procedural law is possibility to compensate the damage
inflicted by the use of preventive measures .
For example, in accordance with article 4310 ECP of Ukraine in case of stopping of
preventive measures or in case of waiver of a claimant of lawsuit, or in case when the
Page 112 Volume 1, April 2009