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The Register of Damage for Ukraine (the Register) opened its claims submission process on 2 April 2024. The Register represents an important effort to document the impact of the conflict and collect and process claims for damages resulting from the Russian invasion of Ukraine. The launch of the claims submission process is a pivotal moment in that effort. Moreover, the integration of the Ukrainian government services app and portal, Diia, represents an important example of how digital technology can be employed to facilitate legal processes in the aftermath of conflict.

The Register and its governance

The Register was established in May 2023 by the Council of Europe and supported by a number of other states, including Canada, Japan and the United States. The Register was intended to serve as a documentary record of the damage and loss caused by Russia on or after the Russian invasion (24 February 2022) within the territory of Ukraine, including its territorial waters. The Register enables claims by natural and legal persons (including foreign companies) and the State of Ukraine to be processed, assessed and recorded for future examination and adjudication. While having no adjudicative or compensatory function in respect of such claims, the Register is viewed as a first step in setting up an international compensation mechanism. In future, this may be achieved through the establishment of an international compensation fund (Article 2.5 of the Statute of the Register).

The governance of the Register is the responsibility of the Conference of Participants (COP), which appoints key officials, approves rules and regulations governing the claims process, and oversees the Register's budget and operations. The COP is assisted in the administration of the Register by a Board, an Executive Director and a Secretariat. The Kyiv Office of the Register, established on 22 March 2024, is to serve as a liaison between the Register and Ukrainian authorities, aiding in the collection of evidence and facilitating the claims process. The office will also conduct outreach to inform the public about how to submit claims.

The Claims Submission Process

The Register opened the claims submission process on 2 April. The Board of the Register has decided to adopt a phased approach to the submission of claims, concentrating first on damage to residential property. The Register is expecting between 300,000 and 600,000 claims in this category.

This phased approach is intended to ensure that the Register can manage the submission of claims effectively and adapt its systems for prompt processing and recording. Addressing only one category of damage initially will allow for the platform to be scaled up responsibly at a later date. Subsequent categories of damage will include claims for loss of life and physical injury, damage to Ukraine's critical infrastructure, and claims from businesses (including from foreign companies) for business and other economic losses.

During this first phase, claims may only be submitted in Ukrainian, although it is expected that English may be added in future. Claims can be filed free of charge using a specific claim form on the Ukrainian digital system, Diia, a mobile application and web portal, which is already a trusted platform for 20 million Ukrainians. Its connection and integration with Ukraine's digital services and public registries is intended to help claimants to gather the necessary evidence to substantiate their claims.

Making a claim

While financial compensation is not yet available, the submission of a claim to the Register is an important first step towards receiving that compensation in future. Claimants will need to ensure they are putting forward the necessary supportive evidence for their claim through the Diia portal. During this initial stage, the evidence being submitted electronically relates to title, identification of the property, proof of damage or destruction and the evaluation of damages (including through expert evidence).

The Rules Governing the Submission, Processing and Recording of Claims (Claims Rules) allow the board of the Register to reject a claim "with prejudice" (Article 21(7)(b)) where it considers that claim to be "manifestly unfounded" (Article 18(2)). It is also interesting to note that the Board is empowered to "take into account judgments or awards by national or international courts, tribunals and other adjudicative bodies taking into account the Register's mandate", but that it is not bound by such judgments or awards. This may be of relevance to companies who have sought redress for losses incurred as a result of the Russian invasion through other forms of dispute resolution, including through investment treaty arbitration. Importantly, however, proceedings brought in relation to loss or damage occurring prior to 24 February 2022 fall outside the scope of the Register and are therefore unaffected by this provision.

Comment

The establishment of the Register and its oversight by the COP reflects a commitment to a multilateral approach to conflict resolution and reparations. It is also a significant step towards institutionalising the concept of state accountability for aggression. It underscores the potential for international cooperation in addressing the consequences of unlawful state conduct and the importance of providing a legal avenue for victims to seek redress.

Opening the Register's claims submission process marks a notable development in recording and processing claims arising out of the Russian invasion of Ukraine. While the Register does not have the power to compensate claimants for the damage caused by the invasion, it does represent a first step in a longer-term compensation process. The phased approach that has been adopted is indicative of the complexity involved in creating a comprehensive system for processing a large volume of claims. It also represents a novel intersection of technology, international law, and reparative justice. By leveraging the Diia platform, the Register has not only simplified the submission process for claimants but also sets a new standard for how technology can be harnessed to facilitate legal processes in the aftermath of conflict. This could potentially inspire similar mechanisms in future international disputes, where the accessibility and efficiency of claims processes are very important

For more information, please contact Andrew Cannon, Partner, Hannah Ambrose, Partner, Vanessa Naish, Professional Support Consultant, or your usual Herbert Smith Freehills contact.

Andrew Cannon photo

Andrew Cannon

Partner, Global Co-Head of International Arbitration and of Public International Law, London

Andrew Cannon
Hannah Ambrose photo

Hannah Ambrose

Partner, London

Hannah Ambrose
Vanessa Naish photo

Vanessa Naish

Professional Support Consultant, London

Vanessa Naish

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Key contacts

Andrew Cannon photo

Andrew Cannon

Partner, Global Co-Head of International Arbitration and of Public International Law, London

Andrew Cannon
Hannah Ambrose photo

Hannah Ambrose

Partner, London

Hannah Ambrose
Vanessa Naish photo

Vanessa Naish

Professional Support Consultant, London

Vanessa Naish
Andrew Cannon Hannah Ambrose Vanessa Naish