The definition of the term Affidavit in England and Ukraine through the prism of commercial relations between the legal entities

Abstract

The article presents the outcome of the research and analysis of the concept originated in the common law countries – Affidavitand its application and usage in Ukraine.The focus is made on the legal nature of Affidavit which can slightly vary in different case-law countries. As the analyzed conceptis not relevant to the civil law jurisdictions, the conclusion includes the author`s opinion that the concept by its very nature may havedifferent impact on the outcome of the commercial proceedings in Ukraine.The jurisdiction of England of Wales is chosen as an example jurisdiction for the analysis of the definition of Affidavit. It is foundout that the essence of the term is clarified through both precedents and statutory instruments.One of the main Act which is analyzed throughout the article is the Civil Procedure Rules 1998 (hereinafter – CPR). Accordingto the Glossary section of the CPR the Affidavit is a written, sworn statement of evidence. The nature of this term is explained in detailsin the Part 32 of the CPR which is called – Evidence.According to the general rule of evidence of witness stipulated by section 32.2. of the Part 32 of the CPR any fact which needs tobe proven by the evidence of witnesses is to be proved at trial, by their oral evidence given in public; and at any other hearing, by theirevidence in writing. This is subject to any provision to the contrary contained in these Rules or elsewhere; or to any order of the court.According to the section 32.15 of the Part 32 of the CPR the Evidence must be given by affidavit instead of or in addition to awitness statement if this is required by the court, or by other rules.The analysis made within the article proves and shares the conclusions of the earlier researches as for the paramount role of witnessevidence in the case-law jurisdiction.The form of making the affidavit is analyzed and some views on the validity of Affidavit made in a remote way are highlighted.As for the role of Affidavit in economic proceedings in Ukraine, the conclusion is made that the main nature of the documentmade as an Affidavit in England but filed within the proceedings in Ukraine will be a type of the witness statement. Affidavit in theoutlined situation cannot be treated as an exhibit within the meaning given to exhibits (written document distinct from the witness statementor affidavit) by the Economic Procedural Code of Ukraine.At the same time, it is stressed out that if the Affidavit is made in the other country, its nature may vary and its outcome on theproceedings may be also different.