The Ukrainian Journal of Business Law, #5-6, 2021 In focus: Competition by Olga Usenko

EDITOR’S NOTE

Big Picture Vision

rotection of economic competition generates benefits for society. Nevertheless, driven by the global consequences of economic downturn and local specifics, competition policy-making cannot be addressed from a single perspective, but requires that a much broader agenda be borne in mind. The modernization of competition law, which has been continuing over the past few years, anticipates substantial changes, namely introduction of new merger control thresholds, settlement procedures, joint and several liability, an improved leniency program, etc. The discussion around replenishing institutional frontiers and capacities of the competition authority as well as its investigative powers is another topical issue. Yuriy Terentyev, our Cover Story hero, definitely has a big picture vision of the competition landscape in Ukraine, as he headed the Antimonopoly Committee of Ukraine over the period of 2015-2020, so he knows the regulator’s policymaking and enforcement process as well as upcoming international trends in this sphere. I’m also happy to announce that our extensive legal market research publication, Ukrainian Law Firms 2021, is approaching the finishing line. Stay tuned!

Happy reading, Olga Usenko

The Ukrainian Journal of Business Law May — June 2021 Vol. 19 No.5-6 GENERAL DIRECTOR Rustam Kolesnik EDITORIAL

ADVISORY BOARD

Oleksiy Didkovskiy (Asters) Sergei Konnov (Konnov & Sozanovsky) Sergii Koziakov (Sergii Koziakov & Partners) Oleg Makarov (Verkhovna Rada of Ukraine) Alexander Minin (KM Partners)

EDITORIAL TEAM Editor Olga Usenko Deputy Editor Alena Chernyavskaya Copy Editor Peter Dutczyn Observer Christina Chovgan Designer Mykola Tytarenko Photos Evgeniy Korol Advertising Vadim Shpachuk

Translation Task Force Translation Agency 10 Hoholivska Street, Kyiv, 01054, Ukraine Tel.: +380 44 495-2727 Fax: +380 44 495-2777 editor@ujbl.info www.ujbl.info

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The Journal (ISSN 1726-3085) is published monthly by Yuridicheskaya Practika Publishing, 10 Hoholivska Street, Kyiv, 01054, Ukraine. Certificate of Registration No.6586 KB of 10 October 2002. Copyright © 2020 by Yuridicheskaya Practika Publishing. All rights reserved. No part of this publication may be reproduced, stored in a retrival system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission of the publishers. Contents do not necessarily reflect the views of Yuridicheskaya Practika Publishing. Circulation: 1,000. Recommended retail price in Ukraine is UAH 100. Printed in Ukraine. The publisher and contributors are not responsible for the results of any actions (or lack thereof) taken on the basis of information in this publication. Readers should obtain advice from a qualified professional when dealing with specific situations. All translations are unofficial. Украинский журнал предпринимательского права. Учредитель и издатель — ПрАТ «Юридическая практика» (на английском языке). Український журнал підприємницького права. Засновник та видавець — ПрАТ «Юридична практика» (англійською мовою). Друк: ТОВ «РВС-ПРИНТ». юридична адреса: вул. Ялтинська, 5б, м. Київ. Замовлення № 18-2901. Підписано до друку 7 червня 2021 року.

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May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

May — June 2021 Vol.19 No.5-6

CONTENTS

THE LEGAL GUIDE FOR FOREIGN BUSINESSMEN IN UKRAINE!

SUBSCRIBE ON-LINE E-MAIL: zakaz@pravo.ua WEB: www.ujbl.info

EXPERT OPINION

Oleksandr FEFELOV, Olga SAMOILENKO

“Investigative Powers” of AMCU: What and How does the Authority Inspect

IN RE

Olga IVLYEVA, Mykhailo RAZUVAIEV

Valeriia LEPSKA, Yelyzaveta KASHYNA

The Monopolist Pays Twice: Myth or Reality?

COVER STORY

Antitrust Law Reform — Key Changes

ARGUMENT

Oleksandr TERESHCHENKO

Free Trade Between Ukraine and Israel YURIY TERENTYEV

State of Play

CRUX

Legal Digest

May — June briefing 4 6 8 9 10 12

Deals Cases Draft Law Digest News of the American Chamber of Commerce Biznews

www.ujbl.info | The Ukrainian Journal of Business Law | May — June 2021

DEALS MAY — JUNE

AVELLUM advised EBRD on EUR 50 million financing of new subway cars

AVELLUM acted as the Ukrainian legal counsel to the European Bank for Reconstruction and Development in connection with a loan of up to EUR 50 million to Communal Enterprise Kyiv Metropolitan guaranteed by Kyiv City Council. The funds from the EBRD loan will be used to finance the procurement of 50 new metro cars (as well as related services Glib Bondar and equipment). These metro cars will carry passengers on one of the Kyiv underground’s rail network lines. The AVELLUM team working on the project was led by senior partner Glib Bondar with support from associates Oleg Krainskyi, Anastasiia Zhebel and Mariana Veremchuk.

INTEGRITES advised Chanta Mount

INTEGRITES advised Chanta Mount, a subsidiary of leading Ukrainian bakery producer Khlibni Investytsii, on USD 3 million financing extended by Raiffeisen Bank International for construction of a new production line. The construction of the new production line, which will have a total capacity of 600 kg of bread products an hour will enable the volume of the automated production of frozen semi-finished puff pastry to be increased and to strengthen the holding’s position on the local market. INTEGRITES provided comprehensive legal support for the project, from negotiations with a number of international banks, export credit agencies and suppliers of manufacturing equipment to the successful closure of the transaction. The firm pitched the financial model of the project to creditors, advised on the transaction structure as well as all finance and project agreements. Led by partner Igor Krasovskiy, the team working on the deal included senior associate Yuriy Korchev and the firm’s analytical department.

Asters advised Smart Holding on closed sale of Unex Bank

Asters acted as a legal counsel to Withine Investments LTD (Cyprus), a subsidiary of Smart Holding (one of the largest industrial and investment groups in Ukraine), on the sale of a 100% stake in JSC UNEX BANK to Dragon Capital Investments Limited and Ivan Svitek, which was completed on 15 April 2021. The share purchase agreement for the sale of the 100% stake in JSC UNEX BANK was signed in December 2020. The legal support of the transaction included, among other things, drafting of the share purchase agreement and other relevant transaction documents, and coordination of the execution and closing procedures. Asters’ banking & finance practice team advising on the project included senior partner Armen Khachaturyan and senior associate Maksym Tereshchuk.

Baker McKenzie advised Amtel Properties

Baker McKenzie’s Kyiv office has advised Amtel Properties, on the sale of its office and logistics complex Amtel to Dragon Capital, one of the largest groups of investment and financial companies in Ukraine. Baker McKenzie’s project team was led by Kyiv partner Lina

Nemchenko, with key input from associate Elmaz Abkhairova in Kyiv and London associate Robert Gray.

Asters advised International Finance Corporation

Asters acted as a Ukrainian law counsel to the International Finance Corporation, a member of the World Bank Group, in connection with a USD 20 million loan to Nyva Pereyaslavshchyny, Ukraine’s second largest pork producer. The IFC loan will support Nyva with the construction of two new farms, whose operaIryna Pokanay tion will be aligned with the EU’s Animal Welfare Directive. The loan will also support the company’s climate projects, such as installing biomass boilers and manure disposal systems. Asters’ banking and finance team advising on the project consisted of partner Iryna Pokanay, counsel Gabriel Aslanian and associates Inna Bondarenko and Viktoria Zagreba.

AVELLUM advised Dobrobut’s major shareholders on buyback of shares from Horizon Capital

AVELLUM acted as the legal counsel to Dobrobut’s major shareholders — Oleg Kalashnikov, Dobrobut’s managing shareholder and CEO, and Concorde Capital — on the purchase of Horizon Capital’s minority stake in Dobrobut. AVELLUM assisted with the preparation and negotiation of transaction documents and coordinated completion of the entire transaction. Notably, the firm advised on the disposal of the stake to Horizon Capital in 2018-2019. The team was led by senior associate Anton Arkhypov with support from associate Andriy Kornuta under the general supervision of partner Yuriy Nechayev.

Asters advised ad hoc group of lenders on DTEK’s USD 2 billion restructuring

Asters acted as a Ukrainian law counsel to an ad hoc group of lenders on the successful restructuring of a debt of USD 2.066 billion belonging to DTEK. Following a short sanction hearing on 14 May 2021, the High Court in London sanctioned two inter-conditional schemes of arrangement for DTEK Energy B.V. and DTEK Finance PLC. The schemes of arrangement, which were approved by 100% of those creditors who attended and voted, enabled the DTEK Group to cancel an existing lender and noteholder debt of USD 2.066 billion in exchange for new notes issued by DTEK Energy B.V. Asters’ restructuring team working on the matter was led by partner Iryna Pokanay with support from counsel Gabriel Aslanian, and associates Inna Bondarenko and Viktoria Zagreba. They were assisted by the energy law team (partner Yaroslav Petrov and senior associate Marta Halabala), as well as by partner Oleksiy Demyanenko (corporate aspects), partner Igor Svechkar (antitrust aspects), partner Markiyan Kliuchkovskyi and counsel Dmytro Shemelin (cross-border litigation aspects). Global law firm Hogan Lovells was a lead counsel on this project.

May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

www.ujbl.info | The Ukrainian Journal of Business Law | May — June 2021

CASES MAY — JUNE

Philip Morris wins appeal to quash huge fines

Philip Morris International is a SwissAmerican tobacco manufacturer, whose operation’s center is in Lausanne, Switzerland.

Bank of England recognized bail-in of Privatbank Eurobonds for USD 595 million

Therefore, according to the law, the Bank of England decided to recognize the bail-in of Privatbank Eurobonds, and Her Majesty’s Treasury approved this decision. Eurobonds maturing in 2021 were issued through ICBC Standard Bank Plc (UK), but this debt was reissued to UK SPV Credit Finance plc during their restructuring.

Google won case on Java usage The Northern Economic Court of Appeal has overturned the decision of the court of first instance and upheld the appeal filed by Philip Morris Ukraine and Philip Morris Sales and Distribution to cancel fines imposed by the Antimonopoly Committee of Ukraine totaling UAH 1.2 billion. In October 2019, the AMCU imposed a fine of UAH 6.5 billion on tobacco distributor Tedis and the four largest cigarette manufacturers for conspiracy, following which Tedis monopolized the tobacco products distribution market. Philip Morris Group tried to appeal against the committee’s decision in 2020 but lost the case in the Kyiv Economic Court. It then announced the intention to pay the fine to avoid the charging of a daily penalty of 1.5%. Moreover, in December 2020, Philip Morris announced a lawsuit filed to the International Center for Settlement of Investment Disputes (Washington, USA) regarding bilateral investment arbitration against the Government of Ukraine in relation to the fine imposed by the AMCU which, according to the Philip Morris Group, violated bilateral agreements on mutual investment protection concluded between the USA and Switzerland.

The Bank of England has recognized the procedure for bail-in of three issues of Privatbank Eurobonds worth USD 595 million by the National Bank in the process of the financial institution’s nationalization in 2016 as legal. The decision by the Bank of England relates to the application of the procedure of forced conversion into bank shares (bail-in) in respect of four loans granted by UK SPV Credit Finance plc to PrivatBank. The bonds were issued by a special company (SPV) registered in the UK. The NBU sent a request later on to the Bank of England to recognize the related procedure. It is noted that under the Banking Act 2009, the Bank of England conducted an analysis to determine whether a third country bail-in procedure could be compared in general with the British bankruptcy procedure in view of its objectives and expected results. ADVERTISEMENT

May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

The US Supreme Court has ruled in favor of Google in a patent dispute with Oracle Corp over the rights to Java and the use of this software platform in the Android operating system. The court overturned a ruling adopted by a court of lower jurisdiction alleging copyright infringement by Google and claimed that partial copying of Java codes was fair use. Oracle has accused Google of illegally copying more than 11,000 lines of Java API code to develop the Android operating system, which runs on more than 2 billion mobile devices worldwide. Oracle demanded payment of damages to the tune of USD 9 billion from Google for lost revenue from Java software, The Wall Street Journal notes. Google pointed out that the Java elements it uses in Android are not subject to copyright laws. Java was developed by Sun Microsystems and entered the market in 1995. Sun Microsystems was acquired by Oracle in 2009.

www.ujbl.info | The Ukrainian Journal of Business Law | May — June 2021

DRAFT MAY — JUNE

Clarification of the procedure for appealing public procurement

On 29 April the Verkhovna Rada adopted in the first reading Draft Law No. 5309 On Amendments to the Law of Ukraine On Public Procurement and Other Laws on Improving the System of Appealing Public Procurement. The Draft Law is intended to complete the reform of the appellate body in the field of public procurement. In particular, it makes adjustments to improve the process of filing and reviewing complaints. The complaint to the appellate body shall be submitted by the appeal subject in the form of an electronic document through the electronic procurement system. The party submitting the appeal shall file a complaint: — in electronic form, — with the qualified electronic signature affixed, — by filling in electronic forms with separate fields where the information is indicated in full. If the terms of the bidding documents are challenged, the documentary evidence must be uploaded along with the complaint. A fee shall be charged for filing a complaint to the appellate body through the electronic procurement system. Following the payment, the complaint is automatically entered into the register of complaints, and its registration card is created, which together with the complaint is automatically published in the electronic procurement system. If the customer within the single procurement procedure has determined the parts of the procurement item (lots), following filing of a complaint against a particular lot (lots), registration cards are created for each lot separately.

If the appealing party intends to participate in the complaint consideration through real-time interactive telecommunication systems, it may submit a corresponding application to the appellate body along with the complaint in the form of an electronic document. It is also noted that complaints regarding decisions taken, act or failure to act of the customer, which occurred before the deadline for submission of tender offers, may be filed within 10 days from the date when the appealing party learned or should have learned about the violation of its rights following the decision, act or failure to act of the customer, but no later than four days before the deadline set at the time of such decision, act or failure to act of the customer in relation to submission of tender offers.

to perform the tasks of the Office, details grievance procedures. Moreover, it clearly defines the information to be provided to the Office and excludes the regulations that set administrative liability for improper cooperation with the Office and, accordingly, the right of the business ombudsman and his/her deputies to draw up reports on administrative offenses. The document also provides for a special procedure for prosecuting the business ombudsman and his/her deputies.

Draft law on agricultural insurance adopted in first reading

Draft law on business ombudsman office finalized

The Parliamentary Committee on Economic Development recommends that Parliament adopts in its first reading the revised Draft Law No. 3607 On the Business Ombudsman Office in Ukraine. The document proposes to introduce the institute of a business ombudsman in Ukraine to promote: — proper governance of public entities, — elimination of dishonest behavior in the pre-trial procedure and its prevention, — responding to corruption, — improving the conditions and simplifying the procedure for conducting business, — removing obstacles to development of entrepreneurship in Ukraine. The revised Draft Law defines the procedure for holding a competition for the positions of business ombudsman and his/ her deputies, clarifies the rights and responsibilities of the business ombudsman, as well as the types of acts to be adopted

May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

On 27 April the Verkhovna Rada adopted in the first reading Draft Law No. 5104, which amends the Tax Code and regulates the issue of agricultural insurance. The Draft Law proposes to abolish the provisions on insurance of the agricultural products through the Agrarian Insurance Pool. It also identifies participants in the market for agricultural insurance with state aid, requirements thereto, their rights, and responsibilities. The mechanism of state aid is determined. In particular, it is proposed to increase the income tax rate under agricultural insurance tax contracts by 0.5% (to 3.5%). These funds will then be used to support agricultural products insurance. The document also defines the subject matter of insurance, insurance products, insurance risks, insured events, requirements for insurance contracts with state aid. The powers of the authorized body that carry out state supervision over insurance activities, namely the NBU, are also specified. Thus, farms, collective agricultural enterprises, and agricultural cooperatives will be eligible to receive state aid for insurance of agricultural products.

LAW DIGEST MAY — JUNE

Law on Bureau of Economic Security now in force, greater powers from autumn

On 25 March the main provisions of the Law of Ukraine No. 1150-IX On the Bureau of Economic Security of Ukraine came into force. The new central executive body will counteract offenses interfering with the functioning of the state’s economy, and should replace the tax police, which is being liquidated. The Cabinet of Ministers will coordinate and direct the body’s activities. The Director of the Bureau of Economic Security of Ukraine will be appointed by the Cabinet of Ministers of Ukraine at the prime minister’s recommendation upon the competition commission’s proposal. The main tasks of the Bureau of Economic Security are as follows: — identification of risk areas within the economy by analyzing structured and unstructured data; — assessment of risks and threats to the economic security of the state, development of ways to mitigate and eliminate these; — ensuring the economic security of the state by preventing, detecting, stopping, investigating criminal offenses that interfere with the operations of the state economy; — detection and investigation of offenses related to international technical assistance acceptance and use. The Bureau of Economic Security of Ukraine will have direct access to the following: — automated information and reference systems, registers, and data banks (databases), whose owners (administrators) are state bodies or local government authorities, — state means of communication, including government ones, special communication networks. In addition to the Bureau’s detectives, there will also be analysts involved — persons with a special title of the Bureau of Economic Security of Ukraine, whose main task is to carry out criminal analysis. Candidates for positions in the Bureau, which provide for special titles of the Bu-

reau of Economic Security of Ukraine, undergo a psychophysiological examination using a polygraph upon their consent. From the date of announcement of the Bureau of Economic Security of Ukraine operations commencement, but no later than six months from the date on which this law comes into effect, the following provisions shall come into force (no later than 25 September 2021): 1. exclusion of the powers of the Security Service of Ukraine to investigate corruption and organized crime in the field of management and economy, liquidation of special units for combating corruption and organized crime of the Security Service of Ukraine, special units for combating organized crime; 2. replacement of the words “tax police” with “Bureau of Economic Security of Ukraine” in legislation; 3. Bureau officials will be able to receive information from the Unified State Register of Vehicles; 4. The Bureau of Economic Security of Ukraine will become an entity that directly carries out counter-terrorism activity within the auspices of its powers. To ensure the liquidation of the State Fiscal Service of Ukraine no later than 6 months from the date of this law coming into force.

National Bank simplified conditions for placing Eurobonds abroad

The National Bank of Ukraine has changed the rules governing Ukrainian companies’ payment transactions on their own debt securities placed abroad to attract external financing (Eurobonds). The document simplifies the conditions and reduces the cost of organizing the placement of Eurobonds abroad: — excluded from the list of transactions, whose annual limit is EUR 2 million, are operations on payment of income and redemption of Eurobonds, as well as other operations of the issuer carried out in connection with the placement of such securities; — the purchase of foreign currency is permitted for accumulation on the issuer’s own account in a Ukrainian bank before the due dates of payments on fulfillment of obligations under Eurobonds.

E-passport regarded equivalent to a passportbooklet

Law No. 1368-IX has been published, which legally equates a digital biometric

passport and an ID card in the Diya mobile application to ordinary passports. The law will come into force on 23 August 2021. The document stipulates that a person may provide an e-passport and e-passport for travel abroad instead of and without additional provision of the passport of a citizen of Ukraine, passport of a citizen of Ukraine for travel abroad, documents (information, data) on taxpayer identification number, place of residence. The e-passport and e-passport for travel abroad are created free of charge. They cannot be used for: — crossing the state border of Ukraine, except in cases where it is necessary to confirm the identity of a citizen of Ukraine when entering Ukraine; — entry into and exit from temporarily occupied territory of Ukraine; — entry, stay, residence, or movement within the borderland, exit to the territorial sea and inland waters of Ukraine.

Parliament adopted key law on land reform

At its session held on 28 April, the Verkhovna Rada adopted in the second and final readings Law No. 2194 On Land Decentralization. It is a key piece of legislation for land reform Draft Law No. 2194 regulates the transfer of land to communities “at local level”. It should adjust legal conflicts on the land market and regulate the exercise of the lessee’s preemptive right to purchase and electronic land auctions. The following are among the main novelties: — transfer of lands to communal ownership by village, settlement, city councils; — cancellation of unnecessary permits and duplication of procedures for verification of land management documentation; — introduction of independent control of land management documentation through public examination/review; — provision of the status of public, open, and publicly available data to information on land management documentation; — integration and unification of land management, topographic, geodetic, and cartographic activities; — introduction of professional liability insurance for land management contractors as an alternative to state control; — reducing the cost of works and time spent on procedures related to land management; — reducing the risks of bribery and corruption.

www.ujbl.info | The Ukrainian Journal of Business Law | May — June 2021

THE CHAMBER

AmCham Ukraine launches UA2US Platform

On 20 May 2021, the American Chamber of Commerce in Ukraine launched the UA2US Platform to give members an opportunity to take their first business steps in the United States. The Platform will unite like-minded and ambitious companies that strive to expand their business horizons beyond Ukraine and see the United States as a potential destination for business expansion. The Platform aims to provide AmCham members with helpful information, valuable contacts, regular meetings, educational webinars, and referrals that will help them grow their business abroad. During the “AmCham UA2US Platform Launch. Make Your First Business Steps with US” event, the participants had an opportunity to discuss the role of U.S. Commercial Service in Ukraine in supporting potential investors, the role of the Ukraine Embassy in U.S. in supporting Ukraine-U.S. partnerships, Economic Development Organizations (EDOs) and their assistance in the establishment of operations in the U.S., and SelectUSA as a tool for potential investors in the U.S. Oksana Markarova, Ambassador Extraordinary and Plenipotentiary of Ukraine to the United States, underlined: “Ukraine is one of the last countries in Eastern Europe with double-digit growth potential. Adding innovations and entrepreneurial freedom to our traditional fundamentals — great location, rich resources, and highly-educated people, will finally enable us to increase productivity and become the prosperous country our citizens deserve to live in. American business with know-how and high compliance standards could and should be an inseparable part of this success!” “Investors look for established markets that are safe and stable, possess a strong infrastructure and IPR protection, strong gov-

ernance, macroeconomic stability, and are known for their progress in technology and innovation. These are all attributes that the U.S. market is proud to maintain. The United States offers unmatched diversity, a culture of innovation, and the world’s most productive workforce to companies of all sizes, from start-ups to multinationals, looking to grow and succeed in the U.S. market”, noted Ilona Shtrom, Senior Commercial Officer, U.S. Commercial Service Ukraine. Andy Hunder, AmCham Ukraine President, said in his welcoming remarks: “We are proud to have world-class performance companies within AmCham that offer highquality goods and services and are ready to enter the foreign market. We see our mission in helping them to achieve their ambitious goals, conquer the USA market with maximum benefit, and strengthen US-Ukraine business ties.” AmCham Ukraine Business Development Director Nataliya Chervona stressed: “We are delighted to have the support of such powerful organizations as U.S. Embassy in Ukraine, SelectUSA, Ukraine Embassy in the U.S., and the Economic Development

May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

Organizations of the United States. Together we can unite our efforts and help our companies to make their first business steps beyond Ukraine”. Among the speakers were: Ilona Shtrom, Senior Commercial Officer, U.S. Commercial Service Ukraine; Ryan Wallace, Senior International Investment Specialist, SelectUSA; Jason Hunt, Manager, Business Attraction and Retention, Office of International Business Development, Pennsylvania Department of Community and Economic Development; Karolina Kaptur, Consultant FDI CEE Markets, Commonwealth of Pennsylvania, Office of International Business Development, Department of Community & Economic Development; Michael Treyger, Deputy Director for Business and Community Development, Office of the Governor of Texas. AmCham Ukraine member companies can already try all the benefits of the newlyestablished platform. On the new website page of the UA2US Platform member companies will have access to all the tips and tricks, valuable contacts, information, and referrals.

www.ujbl.info | The Ukrainian Journal of Business Law | May — June 2021

BIZNEWS MAY — JUNE

Cryptocurrencies China bans financial institutions from conducting business involving cryptocurrencies

China has prohibited financial institutions and payment companies from providing services related to cryptocurrency transactions and warned investors against speculative trading in cryptocurrencies. According to the ban, institutions — including banks and online payment channels — should not offer customers any cryptocurrency-related services, such as registration, trading, clearing, and settlement. In effect China prohibited cryptocurrency exchanges and initial coin offerings but did not ban individuals from owning cryptocurrencies. These measures were not Beijing’s first steps against the digital currency. In particular, in 2017, China closed its local cryptocurrency exchanges, thus suppressing the speculative market, which accounted for 90% of global bitcoin trading. The statement by regulators also claimed that virtual currencies “are not supported by real value”, that it’s easy to manipulate their prices and that related trade agreements are not protected by Chinese law.

Tourism Share of tourism in global economy slumps by half

Due to the pandemic, the contribution of the tourism industry to world GDP in 2020 fell by 49.1% compared to 2019. This is stated in the report by the World Tourism and Travel Council, prepared jointly with Oxford Economics. Prior to the pandemic, the tourism and travel sector created one in every four new jobs in the world, 10.6% of all jobs (334 million persons) and 10.4% of global GDP (USD 9.2 trillion). The tourism sector suffered losses of almost USD 4.5 trillion last year. In 2020, 62 million jobs (-18.5%) were lost in the tourism industry, leaving 272 million employees still working in the industry. The threat of job losses persists, as many jobs are currently supported by government programs, which could be lost without the complete recovery of the tourism and travel industry.

Banking & Finance World Bank approved loan of USD 200 million to Ukraine for upgrade of higher education institutions

On 5 May the IBRD Executive Board approved the Improving Higher Education in Ukraine for Results project to provide a USD 200 million loan to Ukraine to improve the efficiency, quality, and transparency of the higher education system. These funds will be used to purchase modern equipment, create laboratories for students and scientists, and carry out repairs to improve the efficiency of educational space at universities. The project’s main objectives are to increase the competitiveness of higher education in the labor market by updating approaches to teaching, learning, and research under modern challenges. Moreover, it is just as important for Ukrainian universities to regain their credibility among students, including at international level. The Ministry of Education will be implementing the project for 5 years. Shortly, measures will be taken to execute the relevant Agreement between Ukraine and the IBRD and determine the criteria for selecting higher education institutions that will participate in the project.

Europe’s largest banks raised EUR 30 million to launch Visa and MasterCard competitor

More than 30 major European banks and payment services plan to create their own payment system, which would become a competitor for American services — the project by the European Payment Initiative has already received more than EUR 30 million from its sponsors. The idea is to create a European payment champion to compete with PayPal, Mastercard, Visa, Google and Apple. Deutsche Bank, BNP Paribas, ING, UniCredit and Santander are among the plan’s initiators. The EPI team started working on the project 9 months ago — in the summer of 2020 when the European Central Bank supported the project. It is expected that the service operating plan will be developed by September 2021, after which investors will decide whether they are ready to invest in its development, as it requires additional funding. The first product is to be presented at the beginning of next year, and its functionality will be expanded in the second half of 2022.

European Investment Bank allocated further EUR 7 million for infrastructure in Ukraine

The European Investment Bank will grant Ukraine another EUR 7 million to implement the Reconstruction Program, which includes a social infrastructure reconstruction project. The relevant agreement between the EIB and the Ministry for Communities and Territories Development was signed on 25 May. Several hundred small and medium-sized projects at municipal level in Ukraine will be funded by the Reconstruction Program. These refer to social infrastructure, improving utility services, office buildings and key social infrastructure repairs (hospitals, schools, kindergartens, sports facilities).

May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

BIZNEWS MAY — JUNE

M&A

Sanctions

Toyota to buy Lyft division for half a billion dollars due to drones

Toyota, the auto manufacturer, is to acquire Lyft’s autonomous division for USD 550 million. The division is involved in developing unmanned control technology. The Lyft division works with the fifth level of car automation. Such transport can drive completely autonomously, without human control. Toyota has so far only offered partial second-level automation. Due to the agreement, the auto manufacturer will also receive more than 300 employees who have been directly involved in the development of autonomous control technology. On the other hand, Lyft will be able to become profitable in the shorter term — the company has suffered as a result of the pandemic and reduced public mobility. Moreover, the agreement will relieve the company of the risks related to the development of costly new technology for the market. The acquired division will work with Toyota’s Woven Planet research unit.

Microsoft to acquire artificial intelligence developer Nuance for USD 20 billion

Tech giant Microsoft is acquiring Nuance Communications, a company dealing with artificial intelligence and speech recognition, for USD 19.6 billion. This acquisition will enable Microsoft to increase its presence on the healthcare market, namely in the part on artificial intelligence use. The companies have been cooperating for the last two years. Nuance Communications shares have risen by around 20% so far this year. Developments produced by this company are the basis of Siri, Apple’s assistant. The company’s capitalization is about USD 13 billion. The technology company intends to develop software that eliminates the need for physicians to record the words of patients and which can help predict the latter’s needs in a better way. This is one sphere the companies have been working on for two years. As AI learns to recognize speech and make predictions, developers will over time be able to create technology that will simplify keyword searches in medical records and improve the accuracy of medical predictions. Telehealth is another sphere the companies have been working on.

USA imposed sanctions on Russian vessels and firms connected to Nord Stream 2 pipeline

The USA has added a number of Russian vessels and companies involved in implementing the Nord Stream-2 project to its sanctions list. In particular, the Russian Marine Rescue Service, Mortransservice LLC, and Samara Heat and Energy Property Fund JSC became subjects to sanctions. Moreover, such vessels as Akademik Cherskiy, Artemis Offschore, Bakhtemir, Baltiyskiy Issledovatel, Finval, Kapitan Beklemishev, Murman, Narval, Sivuch, Spasatel Karev, Umka, Vladislav Strizhov, Yury Topchev were also added to the sanctions list. The latter two were added to the list of Specially Designated Nationals, whose subjects are prohibited from entering the United States, their assets within the country must be blocked, they are forbidden to conduct any business or conclude any agreements. Vladislav Strizhov and Yury Topchevare are related to Koksokhimtrans LLC, which is already on the sanctions list.

International Monitoring J.P. Morgan forecasts GDP growth of 5.6% in Ukraine in 2021

Analysts at J.P. Morgan have confirmed their GDP growth forecast in Ukraine of 5.6% in 2021 and expect the discount rate to increase to 7%. “We still believe that growth in 2021 will exceed 5%, mainly due to internal factors, but it will also be supported by external demand. As the European and world economies will be recovering in the second half of 2021, Ukrainian exports should also increase in volume and promote growth,” analysts claim. They have highlighted solid performance in Q4 last year and strong growth in retail sales, which confirms that consumption will be an important driver of growth this year. At J.P. Morgan they add that a serious reduction in investment and reserves has been the main negative factor resulting in a 4% decline in GDP last year, but the situation in these areas should improve this year. In particular, analysts expect a rebound of investment by almost 30% after a decline of more than 24% last year, thus reaching the pre-crisis level. According to them, the replenishment of reserves will give a significant additional kick start to growth in 2021. Among the risks, J.P. Morgan points to possible serious aggravation of the COVID-19 situation or geopolitical events. Regarding cooperation with the IMF, experts still anticipate that Ukraine will receive IMF financing in Q3, despite slow implementation of requirements. The IMF mission is likely to return in Q2 2021, and one of the main issues will be the discussion of laws on the High Council of Justice and NABU which have been submitted to Parliament and enhancing liability for electronic tax returns, as well as keeping the NBU independent. US representatives name the resumption of cooperation with the IMF and IFI, as well as reforms in the justice sector as among the conditions of financial support for Ukraine. Analysts also expect a rise in inflation to about 9% by Q3 2021 and a rise in the discount rate to 7% by the NBU at its next meeting.

www.ujbl.info | The Ukrainian Journal of Business Law | May — June 2021

EXPERT OPINION

“Investigative Powers” of AMCU: What and How does the Authority Inspect

the schedule approved by the Head of the AMCU or its branch. It is noteworthy that scheduled inspections do not apply to small and mediumsized businesses. That is, to entities whose income or asset value does not exceed the equivalent of EUR 500,000, if their competitors have a significantly larger market share. Yet, the situation with unscheduled inspections is much more interesting.

S. Riabokon

t is probably quite difficult to surprise the modern business community with inspections by law-enforcement authorities, which can appear on the doorstep of your company with a search. As corporate management is gradually developing immunity to such visits, it becomes more difficult [and not always possible] for law-enforcement officers to cope with their tasks. Yet, it is not the case of the Antimonopoly Committee of Ukraine (AMCU), which by virtue of law is also endowed, relatively speaking, with ‘investigative’ powers. However, based on our observations, the majority of company owners and managers are not even aware that the AMCU possesses such a function as conducting inspections, especially unannounced down-raids, “with all the implying implications”. So, what are the inspections that the AMCU is authorized to carry out, and how can business representatives prepare for them? Let’s have a closer look. The principal legislative points establishing the rules of the game are the Law of Ukraine On the Antimonopoly Committee of Ukraine and the Law On Protection of Economic Competition. At the same time, the specific details of the inspections are provided in the Regulation On the Procedure for Conducting Inspections of Compliance with the Law On Protection of Economic Competition approved by AMCU Order No. 182-р dated 2001 (hereinafter — the Procedure). Thus, the Procedure provides that the authorized employees of the AMCU (its territorial branches) (the Commission) has the authority to conduct both scheduled and unscheduled inspections of undertakings. The entity has to be notified of the scheduled inspection in writing no later than 10 calendar days prior to its commencement, and the only basis for such an inspection is

May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

Oleksandr FEFELOV is an attorney at law, partner at Ilyashev & Partners

Olga SAMOILENKO is a lawyer at Ilyashev & Partners

For instance, the Procedure envisages a fairly large list of grounds for the Commission to conduct unscheduled inspections, and a certain part thereof is either not at all connected with the AMCU’s investigation of possible violations of the law on protection of economic competition, or has an indirect connection therewith. In the former case, an unscheduled inspection may be appointed (i) on the instruc-

EXPERT OPINION AMCU tions of the President of Ukraine or the Government; (ii) if it becomes necessary to verify information received from a former employee of the inspected undertaking; (iii) if the inspected undertaking submits a complaint about violation of the law by officials of the AMCU/a branch of it during a scheduled or unscheduled on-site inspection of compliance with the law on protection of economic competition (hereinafter — the competition law) and in certain other cases. In the latter case, unscheduled inspections are appointed on the basis of applications filed by companies, citizens, associations, organizations (institutions) and submissions of the state authorities and local self-government bodies, claiming a violation of their rights. Inspections can, in fact, be appointed on formal grounds even in the absence of any signs of violation of the law on protection of economic competition. This approach by legislators is not justified from the standpoint of the economic principle of prevention of illegal interference by state bodies with economic relations, and the principle of legal certainty. In addition, the inspection on the grounds described above is at variance with

the provisions of the Council Regulation (EC) No. 1/2003 dated 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty Establishing the European Community (hereinafter — the Regulation). Unlike Ukrainian legislation, Article 17 of the Regulation provides that the basis for the investigation is the identification of signs of violation of competition law, namely, any circumstances indicating that the competition may be restricted or distorted. In fairness it must be said that the Draft Law On the Antimonopoly and Competitive Reform No. 2730 of 14 January 2020, which is currently pending consideration by the Verkhovna Rada of Ukraine, eliminates this discrepancy. For instance, Draft Law No. 2730 suggests restricting the AMCU’s powers to conducting inspections in the presence of signs of violation of competition law in their actions in order to collect evidence of such violation and when conducting investigations into cases of violation of competition law by such companies, which is more in line with European legislation. During inspections, the AMCU is entitled to exercise a fairly wide range of powers, in particular, to freely enter the premises of the companies, to have free access to any documents that, in the Commission’s opinion, are necessary for the inspection; to request oral and written explanations, necessary documents and any other information, including those with restricted access, to seize any written and material evidence, and to impose arrest on such evidence. This list of powers is very similar to that of competition authorities in Europe, as discussed in further detail below.

Ukrainian business should welcome the proposed detail compilation of the rules of AMCU inspections in line with European norms

Compliance with EU norms

It is known that pursuant to Article 256 of the EU-Ukraine Association Agreement, Ukraine is under an obligation to approximate its competition laws and enforcement practices to the part of the EU acquis, including the above-mentioned Council Regulation (EC) No. 1/2003. The Regulation stipulates the rules and procedures of investigation of cases of restriction or distortion of competition (breaches of competition legislation) by business undertakings on the territory of the European Union. Among other aspects, the Regulation concerns the legal grounds, rules and procedures of carrying out inspections of business undertakings in cases where the EC suggests infringement of economic competition within the common market. In particular, investigative powers to conduct inspections of undertakings provided for by Article 20 of the Regulation envisages really broad powers, including the following: (a) to enter any premises, land and means of transport of undertakings and associations of undertakings; (b) to examine the books and other records related to a business, irrespective of the medium on which they are stored; (c) to take or obtain in any form copies of, or extracts, from such books or records; (d) to seal any business premises and books or records for the period and to the extent necessary for the inspection; (e) to ask any representative or member of staff of the undertaking or association of undertakings for explanations on facts or documents relating to the subject matter and purpose of the inspection and to record the answers. (At the same time, in order to avoid self-incrimination carrying out compulsory interviews of individuals is not envisaged.) Inspections at the premises of undertakings are conducted on the basis of written authorizations specifying the subject matter and purpose thereof, as well as penalties in case the production of the required books or other records related to the business is incomplete or where the answers to questions asked are incorrect or misleading. Subject to prior authorization from the national judicial authority, inspections of other premises, such as at the homes and vehicles of managers and other related personnel, may be conducted only if there is a reasonable suspicion that books or other records related to the business and to the subject matter of the inspection, which may be relevant to proving a serious violation of Article 81 or Article 82 of the TEEU, are kept there.

www.ujbl.info | The Ukrainian Journal of Business Law | May — June 2021

EXPERT OPINION AMCU The competition authorities of EU member states responsible for conducting inspections shall exercise their powers in accordance with their national legislation, whose rules may be even stricter than the rules of the EC. Officials may inspect business records, take notes and make copies of them. The Commission’s Explanatory Note on the conduct of surprise inspections, as revised in 2015, empowers officials to inspect the personal devices and media of employees used for professional purposes when they are found at the premises. It is notable that there is no obligation on the part of the European Commission to allow the undertakings to have their legal counsel present and to take advantage of the assistance of external legal counsel during both announced inspections or unannounced dawn raids. This means that during inspections EC officials may enter premises without waiting for the undertakings to get advice from their external counsel, usually permitting a waiting period of 30-60 minutes prior to proceeding with the procedural actions. It is clear that consultations with external lawyers are possible, but their unavailability at the time of inspection cannot challenge the validity of actions carried out by inspectors. Notably, carrying out inspections in the absence of an external lawyer was contested several times within judicial procedure. However, the courts did not support the applicants’ position. It was also defined that legal privilege may apply to the interaction of an undertaking with external lawyers only. Thus, the privacy of communication with external lawyers is protected, but it does not apply to communications with inhouse lawyers. We see that the proposed amendments to Ukrainian legislation (Draft Law 2730) are also silent as to security of getting legal assistance during physical inspections, including in the event of unannounced dawn raids. Given the above, we may note that the current powers held by AMCU bodies to inspect the undertakings are, for the most part, similar to those practiced by the European Commission and like in the EU provide for similarly broad powers and capacities. At the same time, the grounds of their application in many instances are not clear for business, so the authorities of the AMCU usually raise various issues and it still remains one of the most disputable and troublesome issues of competition law and law-enforcement practices. Indeed, the carrying out of a search of an entity’s premises within criminal proceedings requires compulsory judicial au-

thorization whilst entering and conducting practically the similar procedural actions by AMCU officials — just an authorization from the Committee. International obligations undertaken by Ukraine require, inter alia, the existence of effective national legislation in the area of economic competition protection to set up (amend) the rules of conducting inspections in line with those provided for by Council Regulation No. 1/2003. The proposed amendments to Article 7 of the Law of Ukraine On the Antimonopoly Committee of Ukraine and Article 44 of the Law On Protection of Economic Competition focus on the rules of conducting inspections of business undertakings intending to provide a legal clarity and to strengthen mutual understanding between the national competition authority and businesses. Defining the norms in the laws drafted in accordance with the relevant European rules governing the conduct of the inspections (i.e., raids) is likely to improve interaction between businesses and the AMCU, build up trust of business in the Committee’s activities, which would result in an overall improvement of the business climate in the country. As legal practitioners have stressed on numerous occasions, in most of the aspects the powers provided by Ukrainian law-enforcement practices in the sphere of carrying out inspections of undertakings by the AMCU do not differ from those of their European counterparts, whilst proposed amendments to the mentioned Laws have just detailed them strictly in line with the corresponding provisions of Regulation 1/2003. Since the number of inspections, including dawn raids, tends to increase and because for them to be carried out in the presence of external counsels is not considered preconditional, we usually recommend our clients to effectuate certain preparatory measures so as to be well prepared for any possible inspections by the AMCU (especially for unannounced dawn raids) and to mitigate the risk of any possible negative consequences arising from them. We believe that introducing the competition compliance program providing for clear rules of correct behavior for all the company’s officials in the field of competition regulation would be an effective protection instrument. Awareness and fulfilment of the program should be examined on a regular basis. Furthermore, we recommend appointing a special officer responsible for checking the knowledge of competition rules by the relevant personnel for representing a company’s interests during an AMCU inspection.

May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

The company’s core officers must be instructed in how to act in the event of an AMCU inspection. Instructions must specify certain tactical steps, methods and practical moves when dealing with inspectors and the rules of behavior before, during and after an inspection, which may include obligatory verification of the authorization of AMCU officials, demanding the attendance of witnesses during procedural actions requiring their compulsory presence, rules of communication, etc. All paper or electronic documents, written communications and other sensitive information related to issues regulated by competition law, should never, if possible of course, be stored in office premises, on the company’s servers or personal computers. Information and documents of a sensitive nature in digital form must preferably be stored in places which the undertaking in question has no formal connection with. In the event of doubts about the nature of information contained in documents or communications, it is necessary to get advice of either in-house or external legal experts. During a physical inspection it is important to be polite, not to interfere with the inspection but, at the same time, not to initiate communication with inspectors (and it is better to avoid it or limit it to a minimum). If possible, to switch off the computer, put away documents and magnetic media and leave work places prior to the start of an inspection. It is important to oversee all the actions of inspectors (taking notes, taking photos and recording them on video), check what documents or information are copied, limit communications with the authorized person, IT-specialist, in-house or external lawyers. It is important to actively engage in drafting a protocol (report) of inspection, act of withdrawal of documents or other material objects. Any communications with external lawyers on competition-sensitive matters should be kept with the documents covered by legal privilege and not subject to disclosure to inspectors. Precise registration and reflection of the actions and possible breaches by the inspectors in the protocol may provide for effective protection of the rights and lawful interests of the entity in the future. In general, Ukrainian business should welcome the proposed detail compilation of the rules of AMCU inspections in line with European norms. However, future adoption of them must not reduce vigilance, but on the contrary, improve the awareness of business undertakings of them and increase the readiness for them. END

www.ujbl.info | The Ukrainian Journal of Business Law | May — June 2021

IN RE Olga IVLYEVA is the head of competition practice at Wolf Theiss Kyiv

The Monopolist Pays Twice: Myth or Reality?

Mykhailo RAZUVAIEV is an associate at Wolf Theiss Kyiv

krainian antitrust law stipulates that damages caused by, among other things, abuse of dominance shall be compensated by the infringing party at double the amount. This rule is established by para 2 of Article 55 of the Law of Ukraine On Protection of Economic Competition No. 2210 of 11 January 2001 (the Competition Law). This article discusses how the above mechanism actually works in practice and whether it has proven to be an effective protective measure against the abuse of dominance or has a declarative nature only.

Regulatory framework and existing challenges

Apart from establishing the general rule on compensation of damages caused by abuse of dominance, Ukrainian antitrust regulations do not provide for any specific mechanism for exercising such right by afflicted persons. The relevant right to apply to court with a claim for compensation of damages caused by abuse of dominance is established by the Commercial Code of Ukraine. However, the Commercial Code does not establish any specific mechanism either. Unlike in the EU, where the practice of filing claims for compensation of damages is quite common, in Ukraine such practice is not yet widespread. The reasons behind this situation may include such factors as a lack of the established procedure for compensation of damages, absence of clear mechanism for calculation of damages, duration and complexity of the overall process, etc. It appears that the principal challenges for persons suffering from abuse of dominance are (i) difficulty in proving caused damages and their amount, and (ii) the ne-

Determining persons

Unlike in the EU, where the practice of filing claims for compensation of damages is quite common, in Ukraine such practice is not yet widespread

cessity to establish and prove nexus between the abuse of dominance and caused damages.

The role of the Antimonopoly Committee

Article 55 of the Competition Law does not require the claimant to have a decision of the Antimonopoly Committee of Ukraine (the AMCU) in order to get compensated for caused damages. However, in accordance with the available court practice, the fact of abuse of dominance and the infringer’s guilt in each case was confirmed by the relevant AMCU decision. As stated by courts: (i) only the AMCU has the competence to detect and establish the fact of abuse of dominance, and (ii) the right to file a court claim arises from the moment of establishing the fact of abuse of dominance by the AMCU, rather than from the moment when the monopolist committed a violation. Therefore, in order to effectively proceed with the case on claiming damages for abuse of dominance, it is required to apply to the AMCU and ensure to obtain the relevant AMCU decision. As follows from court practice, only the AMCU decision may serve as admissible evidence of abuse of dominance and the infringer’s guilt.

May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

afflicted by abuse of dominance

With regard to persons who can claim compensation under Article 55 of the Competition Law, the relevant list is not established by the law. The law only specifies that these can be any persons who suffered damages as a result of the abuse of dominance. Therefore, it may in principle be argued that apart from persons who suffered from abuse of dominance directly (i.e. direct customers), the list of persons who can apply to a court for compensation of damages, at double the amount, may also include indirect customers and the infringer’s competitors. However, available court practice addresses only cases where damages were claimed by direct customers, and neither the AMCU nor courts commented on the possibility of claiming damages by indirect customers or the infringer’s competitors, including how to prove caused damages, their amount and causality in such cases. Therefore, in practice, it would be difficult (or even impossible), at least in the near future, for indirect customers/competitors to receive compensation for damages caused by an abuse of dominance.

Calculating the amount of damages

Based on available court practice, the amount of damages subject to compensation at double the amount was generally determined as the difference between (i) the costs actually incurred by the afflicted person as a result of and during the period of abuse of dominance, and (ii) the amount of reasonable expenses that the claimant could have had in the absence of such violation. Therefore, the amount of damages can be determined as the difference between

IN RE ANTITRUST LAW What do you expect from your law firm? wolftheiss.com

(i) the amount paid for the goods/services at the time of abuse of dominance, and (ii) the value of the same goods/services established after termination of the violation.

Notable past cases

The following can be noted as being among the most important cases in the past. Nibulon vs. Ukrainian Railways Nibulon vs. Ukrainian Railways (Ukrzaliznytsia) is the most notable case on compensation of damages as a result of abuse of dominance. The whole process lasted for about six years and the sum of compensation came to UAH 120.28 million (approx. USD 4.3 million) plus about UAH 54.47 million (approx. USD 1.95 million) in total for inflation costs; Ukrzaliznytsia was also penalized by the AMCU for the amount of UAH 100 million (around USD 3.6 million) for a violation of antitrust legislation. In accordance with the case materials, during the period of 2011 — 2014 Ukrzaliznytsia requested Nibulon, without any due legal basis, to qualify its domestic shipments as those made for export. This resulted in applying higher fees to Nibulon. As a result of such actions, Nibulon suffered damages amounting to UAH 60.14 million (about USD 2.15 million). In June 2013, the AMCU issued its decision and qualified the actions of Ukrzaliznytsia as abuse of dominance, and imposed a fine of UAH 100 million (around USD 3.6 million) for a violation of the antitrust law. The court then established that, as a result of the infringement, Ukrzaliznytsia

Only the AMCU decision may serve as admissible evidence of abuse of dominance and the infringer’s guilt

caused damages to Nibulon in the amount of UAH 60.14 million, which is the difference between the tariff for domestic shipments and the tariff for export that was, in fact, applied to Nibulon. UIA vs. AMIC Another notable case is Ukraine International Airlines (UIA) vs. AMIC Aviation. In September 2015, the AMCU found Amic guilty of abusing its monopoly position at Kharkiv and Odesa airports as a result of (i) establishing increased prices for the refueling of aircraft and (ii) providing discounts without objectively justified reasons. The AMCU imposed a fine of UAH 18.7 million in total (about USD 670,000) for a violation of the antitrust law. The court of first instance then fully satisfied UIA’s claim and ordered Amic to compensate UIA the amount of about UAH 21.6 million (approx. USD 774, 200) at double damages. However, in April 2019, at

the appeal stage, the parties reached an amicable settlement agreement whereby Amic agreed to pay UIA USD 300,000. The above case is the first and, so far, the only available case where the court approved an amicable settlement agreement in a case on compensation of damages as a result of abuse of dominance.

Pending and potential cases

At the end of 2020, three Ukrainian freight forwarders (C.M.T. Ltd., Inter Trans Logistics LLC and Unimar Ligistic LLC) applied to a court and claimed about UAH 6.9 million (roughly USD 247,000) in total as compensation of double damages caused by Eurotermynal LLC. The basis for such claims was the abuse of dominance by Eurotermynal LLC when servicing trucks at Odesa port in 2016 — 2017. The infringement was confirmed by the relevant decision of the AMCU, and the antitrust authority imposed a fine of UAH 5.37 million (approx. USD 192,000) for a violation of the antitrust law. Other potential cases relate to gas supplies for household consumers. The AMCU recently commenced investigations against several gas supply companies in Western Ukraine (Lvivgas zbut, Volyngas zbut, Zakarpatgas zbut, Ivano-Frankivskgas zbut and Rivnegas Zbut). Each company is suspected of abuse of dominance and overpricing when supplying gas to consumers. Although at this stage it is too early to draw any conclusions in respect of

www.ujbl.info | The Ukrainian Journal of Business Law | May — June 2021

IN RE ANTITRUST LAW the above cases, they will certainly contribute to the existing practice related to compensation of damages resulting from abuse of dominance. Therefore, all these cases should be further monitored in order to see what practical conclusions can be drawn.

EU practice

In the EU, issues related to compensation of damages caused by antitrust law infringements are regulated by Directive 2014/104/EU (the Directive). The document aims to simplify the procedure for review of relevant court cases. The Directive provides, among other things, that damages subject to compensation may include the actual losses, loss of profit, and interest payments; the document also specifies that damages can be claimed: — not only by direct consumers but also by indirect consumers; — regardless of whether or not the fact of infringement was established by the antitrust authority; and — from any infringer (in case of joint violation by several persons). What is also important is that the Directive allows the courts to estimate the

The mechanism for compensation of damages resulting from the abuse of dominance is on a path of active transformation from a theoretical declared measure to an effective protective solution available for use in real business life amount of damages caused by the infringement if it is practically impossible or excessively difficult for a claimant to calculate them on the basis of available evidence. Apart from this, back in 2019, the EU Commission introduced Guidelines for courts on how to estimate the share of overcharge which was passed on to indirect consumers (so-called “Passing-On Guidelines”). The Guidelines have a recommendatory nature and provide for approaches and examples of calculation of the amount ADVERTISEMENT

May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

of damages that could be helpful for courts and claimants.

Conclusions

Taking into consideration the increased number of court cases in this area during the last few years and the outcome of the cases, it appears that the mechanism for compensation of damages resulting from the abuse of dominance is on a path of active transformation from a theoretical declared measure to an effective protective solution available for use in real business life. In order to speed up the transformation process and simplify the existing mechanism for compensation of damages, the rules of the game should be changed and the factors that currently inhibit the process should at least be reduced. The implementation of EU practice, where the availability of the Directive and Passing-On Guidelines enables the overall process to be significantly simplified, would most definitely increase the number of relevant cases in courts and transform the existing mechanism into an effective protective measure against monopolists which abuse their market powers. END

Організатор

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9 липня 2021 року

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Інформаційна підтримка

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Ірина Гончар координатор Форуму i.gonchar@pravo.ua +380 (67) 924-69-60

Вікторія Черкасова івент-менеджер v.cherkasova@pravo.ua +380 (97) 616-76-19

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www.ujbl.info | The Ukrainian Journal of Business Law | May — June 2021

IN RE Antitrust Law Reform — Key Changes

Yelyzaveta KASHYNA is an associate at AVELLUM

he Ukrainian Parliament is planning to implement comprehensive reform of Ukrainian competition law. Draft Law of Ukraine On Amendments to Some Laws of Ukraine in Relation to Competition Law Reform, No.2730, of 14 January 2020, focuses on the introduction of new merger control thresholds, settlement procedures, an improved leniency program, joint and several liability, and some other amendments. This article analyses the major changes that this reform introduces.

Merger control

The Antimonopoly Committee of Ukraine intends to lower the pressure on businesses and shift its attention to transactions with a reasonable local nexus

rules

The Antimonopoly Committee of Ukraine intends to lower the pressure on businesses and shift its attention to transactions with a reasonable local nexus. At this time, the value of assets and turnover of the seller and all the entities related to the seller by control, i.e., consolidated financial indicators of the seller’s group, are included in the jurisdictional test. This often requires parties to provide notification on the acquisition of a small business or business having no nexus to Ukraine. Under the Draft Law, the financial indicators of the seller group shall be no longer counted towards the target if the seller ceases to control the target as a result of the transaction. However, to prevent the split of one single transaction into several small transactions and in this way to avoid notification requirements, the regulator will consider two or more transactions among the same parties taking place within two years as a single transaction. If the financial indicators of the parties exceed the jurisdictional thresholds, such transaction will be subject to merger control rules.

Valeriia LEPSKA is an associate at AVELLUM

Given that the financial indicators of the seller group will not be counted towards the target, the Antimonopoly Committee of Ukraine proposes to lower the jurisdictional thresholds. It is expected that the transaction will be subject to merger control rules if it results in: — reaching or exceeding 25% or 50% of votes in the target’s highest governing body or acquisition of control over the target; — acquisition of control over the target through the purchase or lease of assets; and — entering into a contractual arrangement which will subsequently grant control over the target, provided that: — the target’s Ukrainian turnover or value of assets exceeds EUR 2 million, and the parties’ combined Ukrainian turnover or value of assets exceeds EUR 30 million; or

May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

— the target’s Ukrainian turnover or value of assets exceeds EUR 2 million, and worldwide turnover of at least one other party exceeds EUR 150 million. Such an approach will reduce notifications of foreign-to-foreign transactions without any local Ukrainian nexus, which are currently being notified to the Ukrainian competition authority. At the same time, existing jurisdictional thresholds will continue to apply to transactions that result in: — amalgamation of companies; — establishment of joint ventures; and — acquisition of control through appointment of management. In addition, the AMCU proposes introducing the full-functionality criterion for joint ventures into the Law of Ukraine On the Protection of Economic Competition of 11 January 2001. Currently, this criterion is mentioned in the regulator’s nonbinding guidelines. It often creates uncertainty in its enforcement practice when it comes to the assessment of whether the establishment of a non-fully functioning joint venture is subject to merger control rules.

Procedural

rights

The parties will have a broader scope of procedural rights during the Phase II review. In particular, the parties will be able to: — participate in hearings during the Phase II review; — extend the Phase II review for one (1) month, if the parties offer remedies; — examine the materials of the Phase II review, if there are potential grounds to prohibit concentration or concerted practices.

IN RE COMPETITION LAW gramme

pro-

In 2012, the AMCU introduced the concept of a leniency programme to detect existing cartels. Even though this is an efficient tool in fighting cartels in other jurisdictions, leniency is still unpopular in Ukraine due to the local business mentality and vague regulation for its application. The current Ukrainian leniency programme offers companies involved in a cartel, which self-report and hand over evidence to the AMCU, total immunity from fines, which the regulator would have otherwise imposed on them. However, given that the immunity is granted on a first come, first served basis, the company that considers applying for leniency is unaware as to whether it is the first applicant. So such a company faces the risk of receiving a fine for concerted actions instead of benefiting from self-reporting. The improved leniency programme will set out more detailed guidelines for those who wish to benefit from it. It will encourage companies to come forward with evidence of illegal cartels by offering reduced fines. In particular, a cartel participant would be able to apply for leniency, if it: — cooperates with the regulator during an investigation; — provides sufficient evidence (e.g., detailed overview of cartel activities and full information on participants); — ceases cartel activities, unless the regulator instructs otherwise; and — is not the ringleader. The AMCU would grant full immunity from a fine to the first applicant for leniency that meets the above conditions. Subsequent leniency applicants would be able to apply for a reduced fine: — up to 50% for the second applicant; — up to 30% for the third applicant; and — up to 20% for others.

New settlement procedures

The regulator intends to introduce settlement procedures in concerted actions and abuse of dominance cases. After the company receives a statement of objection, it would be entitled to settle a case by sending a request to the AMCU asking for the settlement procedure. Such a procedure should be carried out via the signing of a settlement agreement that must include the following:

S. Riabokon

Improved leniency

Joint

and several liability

The proposed changes aim to implement the provisions of the Ukraine-EU Association Agreement

— acceptance by the defendant of the fact of infringement specified in the statement of objection; — acceptance by the defendant of the amount of the fine; and — a 15% reduction in the fine to be imposed in the event of non-application for the settlement procedure. The settlement agreement is subject to further approval by a commercial court. The amendments shall accelerate the investigation of infringements of competition law, and they shall also avoid the further challenge of a decision adopted by the AMCU.

Over the years the regulator has faced challenges with the enforcement of fines. To avoid liability for infringements of competition law, the companies might well employ aggressive tactics. For example, there are reported cases when a defendant company transfers its assets to a related entity and then files for liquidation or bankruptcy. To confront these issues, the reform introduces the concept of joint and several liability, making controlling entities liable for infringements of their subsidiaries. Therefore, the regulator will be able to impose fines on a group of companies. Moreover, the regulator will be entitled to split the fine and apply it to each company separately in different amounts depending on the severity of any infringement. To enforce the fine against several group companies, the regulator has to initiate court proceedings against each company. The proposed changes aim to implement the provisions of the Ukraine-EU Association Agreement. Even though the draft is still subject to further deliberations and review, it is a step in the right direction to improve current Ukrainian competition law.

www.ujbl.info | The Ukrainian Journal of Business Law | May — June 2021

END

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State of Play For the last couple of years, the approach and institutional capacity of competition regulation and enforcement handled by the Antimonopoly Committee of Ukraine has seen substantial changes, and another portion of them is on the way. With the lack of awareness around the powers of the regulator, business experiences certain problems in formulating strategic priorities in line with best practices. We asked Yuriy Terentyev, former head of the Antimonopoly Committee of Ukraine (2015-2020), who recently joined Redcliffe Partners as a partner, to share his big picture vision of the competition landscape. Some insights from the inside out are surprising to a certain extent, though some are predictable. Our discussion has a clear mission, namely to shed light on the state of play and upcoming global trends in competition enforcement and broaden the understanding of fundamental rationale behind the decisions of various stakeholders. UJBL What lessons did you learn from your time in public service? What opportunities and limitations did you face as Chairman of the Antimonopoly Committee of Ukraine in 2015-2020? Yuriy Terentyev: The main lesson is that in public service your success, even more than anywhere else, depends on people. The performance of the authority is the performance of its employees, which is based on their competence and motivation. Any chairman has a difficult task. On the one hand, the AMCU is a collegial body, which consists of 9 commissioners who are equal. Each commissioner may have his or her own priorities and ambitions. On the other hand, the Chairman bears overall political responsibility for the authority and its effectiveness, and manages it as a legal entity. My main job was to build an effective institution which would be able, firstly, to competently understand the markets and the problems which exist in them and, secondly, to deal with such problems in the most adequate and effective way. Historically, public authorities in Ukraine have lacked a clear mission and strategy. Internal competences in AMCU were not built around proactive detection of violations and understanding of market specifics. The AMCU has existed for more than 20 years but there was a limited number of material cases which dealt with the relevant economic problems that exist. At the same time, the AMCU produced thousands of cases on an annual basis of relatively minor wrongdoings predominantly in regulated sectors. During my term we made systemic changes to the way the authority works: introduced a system of internal target setting

based on external economic effects, which was calculated following OECD methodology; started detailed transparent reporting which is focused not on enforcement statistics but rather on the analysis of industries and the problems which they have; intensified enforcement which led to adoption of decisions with the amounts of penalties imposed and collected to the budget exceeding the cumulative amount since the authority was established (in dollar equivalent); started cases involving the main oligarchic groups; optimized the organizational structure of the authority and its regional presence.

UJBL What were the challenges along

the way? Did you feel the political nature of competition law? Y. T.: Competition enforcement and economic policy may, indeed, need to be aligned. The policy should be formulated and executed with pro-competitive objectives in mind. Competition enforcement, in its turn, needs to address the most relevant economic problems which may also be high on the political agenda. In this regard, the issue here is constructive interaction between policy and competition enforcement. In fact, the political component of competition enforcement is not something which is regarded negatively. In the EU, the supreme body which takes decisions in competition cases is the European Commission, which is a political body and includes only one commissioner out of many, who is responsible for competition. In the USA the formation of the FTC is done on a political basis. Some countries, like South Africa, have country specific political and economic

May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

objectives which need to be taken into account for the purposes of merger assessment. However, the relations between AMCU and political leadership may also become problematic when, instead of policy, we may see political pressure. Such pressure may appear if someone wants you to open or close a case or to influence a specific decision. There is no ultimate remedy from such threats. I saw that the only possible practical way forward is to build up consistent case law, which should specify in more detail the limits for qualification of specific conduct as problematic from the perspective of competition law and would also establish the standards of proof for specific types of violations. The existence of such clarity limits the possibility of subjectivity and bias and improves the legal certainty, which is one of the key elements of the rule of law.

UJBL What limitations in private practice

do you experience after leaving public service? Y. T.: Obviously, I need to avoid situations of conflict of interest. The law does not allow me to represent clients at the authority for a period of one year after resignation (which ends on 3 July 2021) and have deals with entities which were defendants in the cases which I handled.

UJBL There is a legislative initiative in the Ukrainian Parliament (draft law No. 3132) to extend the powers of the AMCU. How can you comment on this? How could, in your opinion, the institutional capacity of the Committee be broadened?

REDCLIFFE PARTNERS

REDCLIFFE PARTNERS Year of establishment: 2015 Location: Kyiv, Ukraine Number of partners/ lawyers: 9/32 CORE PRACTICE AREAS Antitrust Banking and Finance Capital Markets Corporate and M&A Dispute Resolution Arbitration Energy & Natural Resources Real Estate Tax

www.ujbl.info | The Ukrainian Journal of Business Law | May — June 2021

REDCLIFFE PARTNERS

COVER STORY

At the beginning of 2021 Parliament approved changes to legislation which will enable the addition of complaints review officers who will be carrying out this intense work instead of commissioners Y. T.: In order for the competition agency to be effective it should obviously stop doing the things which reduce its efficiency and ability to focus on the most relevant problems and add capacity and powers to those activities which produce the most positive effect on the competitive environment. The AMCU should be able to define its priorities and have more freedom on cases which it starts rather than to react to every incoming complaint on minor issues. The most problematic area for the AMCU is its work with procurement complaints. The annual number of complaints increased from under 1,000 in 2014 to over 15,000 now. This situation requires the permanent involvement of all commissioners in the review of complaints and limits their capacity to work on competition, merger control and state aid cases. At the beginning of 2021 Parliament approved changes to legislation which will enable the addition of complaints review officers who will be carrying out this intense work instead of commissioners. This will free up the resources of the AMCU to deal with competition-relevant issues. Another area for improvement is merger control. Ukraine used to be notorious in the

international legal community for its poorlydesigned merger control thresholds, which required that transactions that even were not affecting Ukraine had to be notified. This situation was improved in 2016 when a jurisdictional nexus for both parties was introduced. The number of notifications decreased from over 1,000 to about 500. However, the thresholds still remain inconsistent with EU rules and the requirements of DCFTA with the EU, which require that the whole turnover of the seller’s group need not be counted, but only that of the object of acquisition. The further alignment of Ukrainian merger control rules with EU standards would lead to a reduction in the number of notifications to around 200 and enable focus only on those transactions which are relevant for Ukraine. The effectiveness of competition enforcement is not possible without more precise definitions of investigatory powers, including the rights to conduct dawn raids, searches at business and residential premises, and more effective instruments to bring transgressors to account, like parental liability and succession of liability in the event of transfer of a business to another

May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

entity. Undoubtedly, these initiatives should be balanced with safeguards of a fair process for defendants. Controlling state aid is the most recent addition to the AMCU mandate. In order for this tool to have proper effectiveness it should be aligned at the level of basic concepts with EU standards. This should start from the definition of “state aid” itself and include not only the components of effect on competition, use of public resources, granting of an advantage, but also the “effect on trade” as envisaged in EU legislation and the DCFTA. Such alignment should help to reduce the number of minor notifications which flood the authority. Another very promising area for legislative development is private enforcement. In the EU the parties concerned may opt to file a complaint with the European Commission, the national competition authority or directly with a national court. Opening the door for private enforcement will reduce the workload on the AMCU with regard to traditional abuse of dominance cases which are now possible only as follow-on cases based on a prior decision of the agency establishing the dominance and the fact of a violation.

UJBL Foreign investors always assess country risks when entering the Ukrainian market. Many of them argue that certain economic sectors are still lagging behind the competitive environment, mainly due to the oligarchic structure of our economy. Does the AMCU possess legitimate powers to change the situation in these sensitive areas? Y. T.: The AMCU does, indeed, have powers to improve the competitive environment both via enforcement and, in some cases, even more effectively through competition advocacy initiatives. It may be surprising, but after decades of reform and after the signing of the DCFTA with the EU, the state itself remains a violator of competition rules at the central and local levels. On a yearly basis the anti-competitive actions of government agencies are the most popular offence, with several hundred cases a year; local municipalities are setting up municipal enterprises which, in many cases, compete with taxpayers actually using the money of taxpayers; state enterprises either dominate in some sectors or get advantages through parallel business activity and performance of quasiregulatory functions; there are thousands of cases a year that public procurement procedures are organized in a way which is either discriminatory or limits competition unreasonably.

REDCLIFFE PARTNERS The business groups which are referred to as oligarchic are rarely present in highly-competitive sectors but rather worked “hand in hand” with the state, either when operating in regulated sectors or in potentially competitive markets where the state set up barriers to entry or allocated resources. The AMCU mandate is designed to detect and address individual violations but is not sufficient to remedy the systemic problems of economic policy. In such cases action needs to be taken at the level of the government or Parliament. The AMCU can catalyze the pro-competitive changes that need to be agreed on and implemented. A good example of such activity is the market study of the energy sector, which back in 2016 defined key 25 problems in the sector and established the framework for their systemic correction. This involved actions at the level of Parliament, government, sector regulator and the key state-owned enterprises.

UJBL What were the main pitfalls in the positions of legal counsel advocating clients before the authorities? We know this is a provocative question, but it would be really interesting to know your true “helicopter view” opinion. Y. T.: Businesses do not face issues with the competition authority on a regular basis. Therefore, when a problem arises, they may tend to outsource the case completely to external counsel which may have limited knowledge about the nature of the client’s business. At the beginning of my term at the AMCU I saw many cases where lawyers were arguing cases in front of the authority in the same manner in which they would have been arguing a tax claim in an administrative court. They were just denying the statements of AMCU saying that they were “wrong” or “unproven”. This approach had very low efficiency. In competition cases you need to give a consistent alternative picture of the respective activities with a detailed explanation of the business rationale behind the decisions. UJBL

Are there any global competition trends that have emerged over the past few years? If so, do you expect them to emerge in Ukraine? Y. T.: For many years cartels were the most important topic for academics and enforcers internationally. However, there has been a renewal recently of interest in the topic of abuse of dominance, both for tech companies and the traditional sectors. It is noteworthy that, especially with regard

COVER STORY

Digitalization has been a hot topic for at least 5-6 years. In all international events the most discussed subjects were the platforms, algorithmbased collusions, big tech, the use of data and killer acquisitions to healthcare enforcers in some jurisdictions like the UK, are looking not only at exclusionary behavior, but also at excessive pricing. Digitalization has been a hot topic for at least 5-6 years. In all international events the most discussed subjects were the platforms, algorithm-based collusions, big tech, the use of data and killer acquisitions. The topics related to digital markets will definitely remain on top of the list of priorities of enforcers globally. The EU is developing a regulation package for digital markets which will impose specific non-discriminatory obligations on the biggest tech companies. The interest shown towards big tech comes in parallel with the willingness in many jurisdictions, including the EU, to screen sensitive sectors of the economy in the event of foreign acquisitions. Investment control mechanisms existed in countries like the US and Canada, but now they are becoming more popular. Covid-19 related restrictions have greatly affected the competitive environment, making some authorities take actions against market shocks, but also allow in

some cases cooperation between competitors, like agreeing on the schedules for store opening hours.

UJBL

Which practices and services do you plan to develop as partner of a law firm? Y. T.: My previous management experience of over 20 years and in-house legal experience enable me to see the strategic priorities of clients and address them from a cross-practice perspective and not just look at them only from the perspective of competition law. At the same time, clients may not be aware that some issues can be resolved with instruments of competition law. So, I see that the potential to offer new services, both by extending the scope of competition work as well as in serving the client, which require complex strategic solutions, is quite big. Having been on the enforcement side in the past, I am able to evaluate which defense strategies are more likely to be effective and how the argumentation in the case should be structured and substantiated to be more understandable for the authority.

www.ujbl.info | The Ukrainian Journal of Business Law | May — June 2021

END

ARGUMENT Free Trade Between Ukraine and Israel

he Free Trade Agreement (FTA) signed between the Cabinet of Ministers of Ukraine and the Government of the State of Israel (jointly referred to as the Parties) was signed by the Parties on 21 January 2019. After the respective ratifications by Ukraine on 11 July 2019 and by Israel on 13 August 2020, the FTA came into force on 1 January 2021. The process of negotiations was completed in 7 rounds and took more than 7 years. The Parties in the FTA affirm their existing rights and obligations with respect to each other under WTO Agreements. In the event of any inconsistency between the FTA and the WTO agreements, the FTA prevails. According to statistics of the Customs Service of Ukraine, turnover between Ukraine and Israel in 2017-2020 is shown in the Table. It’s very important that Ukraine had a positive trade balance over the last four years. Wheat, ferrous metals, chemical and mineral products and wood were among key Ukrainian export commodities to Israel. According to estimates Ukraine will, through tariff liberalization and regulatory approximation, take further advantage of new trading opportunities on the Israeli market. Thus, the signing of the FTA is very important for development of Ukrainian exports. Due to the significant scope of the FTA, in this introductory article we only provide a brief overview of its key provisions, primarily on trade and market access.

Gradual elimination of customs duties

Each Party shall accord national treatment to the goods of the other Party. Ukraine and Israel will gradually reduce or eliminate

Oleksandr TERESHCHENKO is a senior associate at Aequo Law Firm

It’s very important that Ukraine had a positive trade balance over the last four years

customs duties on goods in accordance with the Tariff Schedules to Annex 2-C of the FTA. The Parties shall apply to originating goods traded between the Parties the lesser of the customs duties resulting from a comparison between the rate established in accordance with its Tariffs under the FTA and the applied most-favored-nation (MFN) rate. From the time the FTA comes into force, Israel will immediately abolish import duties on approximately 10% of agricultural goods (fish, vegetable oils, vegetables) and about 80% of industrial goods (medicines, fertilizers, building materials, etc.). Tariff liberalization on industrial goods will be much wider than on agricultural goods, which will be liberalized at a slower pace. Thus, tariff reduction will further help Ukrainian exporters to save millions on an annual basis. The FTA establishes transitional periods to complete abolition of customs duties, partial liberalization of customs duties as well as exceptions to this trade regime. Neither Party may increase any existing customs duty or adopt any new customs duty, or other charges that have equivalent

Year

Turnover, USD

Ukraine’s Exports, USD

Ukraine’s Imports, USD

Trade Balance, USD

2020

731 418 628,91

563 957 600,41

167 461 028,50

+ 396 496 571,91

2019

801 928 804,28

620 902 434,76

181 026 369,52

+ 439 876 065,24

2018

761 860 851,90

580 498 239,69

181 362 612,21

+ 399 135 627,48

2017

762 414 469,55

604 647 168,42

157 767 301,13

+ 446 879 867,29

May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

effect, on an originating good of the other Party. Such measures shall cover only customs duties, which means that VAT and excise (for excisable goods) will still be collected. Ukraine and Israel may only increase customs duty as may be authorized by the Dispute Settlement Body of the WTO or as permitted by any agreement under the WTO Agreement. Starting from 2021, a zero customs import duty shall apply to the following goods imported to Israel: — Fish, vegetables and oils (for agricultural goods); — Medicines, cosmetics, chemical and paper products, clothes, fertilizers, building materials, cars, consumer electronics and tools (for industrial goods). For Ukraine the transitional period will continue for up to 5 years, for Israel — up to 7 years. For imports to Israel the import customs duty shall gradually fall to “0”: — within the 3-year transitional period: nuts, spices, seeds, tobacco, ceramics, garden tools; — within the 5-year transitional period: duck meat, flour, corn starch, juice, canned meat, confectionery, bed linen and kitchen linen, molds for metal production; — within the 7-year transitional period: malt extract, ketchup and homemade sauces, shampoo, furniture. Starting from 2021, a zero customs import duty shall apply to the following goods imported to Ukraine: — nuts and oils, confectionery, tropical fruit, juice (for agricultural goods); — mineral products, cosmetics, chemical products and fertilizers, raw materials for light industry, building materials, equipment and tools (for industrial goods). For imports to Ukraine an import customs duty shall gradually fall to “0”: — within the 3-year transitional period: potatoes, jams, canned tropical fruit, light industry products, consumer electronics, detergents and cleaners; — within the 5-year transitional period: tomatoes, carrot, paper, strawberry, apricot, plums, coffee, tea, juice, ketchup and tomato sauces, wine, suits, TVs, means of transport, optical equipment.

ARGUMENT FTA All fees and charges of any nature (other than customs duties and other duties and charges that are excluded from the definition of a customs duty) imposed on, or in connection with, the importation or exportation of goods, are limited to the approximate cost of services rendered and cannot represent a form of indirect trade protection.

Tariff quotas are imposed by the Parties for the most sensitive products. Each Party shall implement and administer the tariff rate quotas set out in its Tariff Schedule to Annex 2-C, which contains an extensive list of goods, to which Israel applies tariff quotas. For imports to Israel, a zero customs import duty shall apply within a tariff quota to poultry, milk products and ice cream, sunflower oil, eggs, honey, wheat, potatoes, peas, beans, wines, sweet corn, carrot, broccoli, cabbage, peppers, mushrooms, watermelons, apples, sunflower oil, cucumbers.

Export duties

Ukraine and Israel may apply duties, taxes or charges which have an equivalent effect on exports only in accordance with their rights and obligations under the WTO. Ukraine shall not apply customs duties on exports to the following goods: — Wheat and meslin-up to 900,000 tons; — Hot-rolled bars and rods-up to 150,000 tons; — Other bars and rods of iron or nonalloy steel-up to 12,000 tons; — Flat-rolled products of iron or nonalloy steel, of a width of 600 mm or more up to 125,000 tons. Thus, for example, if the export of wheat to Israel exceeds 900,000 tons, only in this case may Ukraine impose export customs duties to limit further exportation thereof.

Elimination of import and export restrictions

Ukraine and Israel may not adopt or maintain any prohibition or restriction on the importation of any good of the other Party or on the exportation or sale for export of any good. These rules do not apply to Israeli export restrictions on metal waste and scrap as well as to the import of non-kosher meat. The Parties shall not adopt or maintain a measure that is inconsistent with the WTO Agreement on Import Licensing Procedures.

S. Riabokon

Tariff quotas

The FTA allows Ukraine and Israel to apply bilateral safeguard measures

Trade Defense Instruments (TDIs) and bilateral safeguard measures

Ukraine and Israel confirmed their right to apply traditional TDIs in mutual trade: safeguard measures, anti-dumping and anti-subsidy (countervailing) measures. This obligation is not limited in time and allows the Parties to initiate appropriate investigations in the event of unfair competition or surge in imports. Additionally, the FTA allows Ukraine and Israel to apply bilateral safeguard measures: (a) only during the transition period, which is a 2-year period beginning on the entry into force of the FTA, except when the tariff elimination for the good against which the action is taken occurs over a longer period of time, in which case the transition period is the period of the staged tariff elimination for that particular good. However, the measures may not be applied within 2021; and

(b) if as a result of the reduction or elimination of a duty pursuant to the FTA, an originating good is being imported into the Party’s territory in such increased quantities, in absolute terms or relative to domestic production, and under such conditions that the imports of the originating good constitute a substantial cause of serious injury, or threat thereof, to a domestic industry. A Party may to the minimum extent necessary to prevent or remedy serious injury, or threat thereof: (a) suspend the further reduction of any rate of a customs duty provided for under the FTA; or (b) increase the rate of duty on the good to a level not to exceed the lesser of: (i) the most-favored-nation (MFN) applied rate of duty in effect at the time the measure is applied; or (ii) the base rate as specified in the Tariffs Schedule. A bilateral safeguard measure may only be applied following an investigation as per the WTO Safeguard Agreement by the Party’s competent authority: for Ukraine — the Ministry of Economic Development and Trade and for Israel — the Commissioner of Trade Levies, in the Ministry of Economy and Industry or the corresponding unit in the Ministry of Agriculture. A Party that applies a safeguard measure may establish an import tariff quota for the product concerned under the agreed preference established in this Agreement. The import under the tariff quota shall not be less than the level of a recent period, which shall be the average of imports in the last 3 years for which statistics are available.

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HOT ISSUE FTA In critical circumstances where delay would cause damage that would be difficult to repair, a Party may apply a safeguard measure on a provisional basis. The duration of any provisional measure shall not exceed 200 days. A bilateral safeguard measure shall not be applied for a period exceeding 2 years. However, this period may be extended to up to 2 additional years. For seasonal goods no measure may be taken more than four times within the initial 2 years or for a cumulative period exceeding 4 years. Neither Party shall apply a bilateral safeguard measure more than once against the same good. A Party may not apply, with respect to the same good, at the same time as a bilateral safeguard measure and a safeguard measure under the WTO Safeguards Agreement. Upon termination of the bilateral safeguard measure, the rate of duty, or quota if applied as a safeguard measure, shall be at the level which would have been in effect had the measure not been imposed.

Proof of origin of imported goods

The Parties shall apply diagonal cumulation of origin within the Pan-Euro-Med zone, which is based on a network of free trade agreements, the origin protocols of which consist of identical rules of origin. For example, goods of Israeli origin may be imported into Ukraine, processed and exported to the EU as goods of Ukrainian origin. The origin of the imported goods may be proven by Electronic Movement Certificate EUR.1 or EUR-Med, issued by the customs authorities. It must be noted that this FTA is the first free trade agreement, which envisages the issue of electronic certificates. All the other FTAs involving Ukraine provide for hard copy versions of certificates.

Technical barriers to

trade and conformity assessment

One of the acute problems in trade relations between Israel and Ukraine is that of different technical rules and standards. The Agreement aims to reduce obstacles to mutual trade arising from technical barriers to trade (the TBT): technical regulations, standards, conformity assessment and similar requirements. Ukraine and Israel confirmed existing rights and obligations under the WTO Agreement on TBT and cooperation on these issues to simplify and avoid unnecessary di-

One of the acute problems in trade relations between Israel and Ukraine is that of different technical rules and standards

The Parties shall also implement the Authorized Economic Operator concept. In the event of disputes with customs authorities, each Party shall grant access to at least one level of administrative review and judicial review of the final determination on customs matters. The Parties established a Subcommittee on Customs, Trade Facilitation and Rules of Origin to address any customs related issues. They shall also cooperate with a view to implementing paperless customs procedures.

Dispute vergence of technical requirements. The Parties reaffirmed their rights and obligations under the WTO SPS and TBT Agreements. Where a Party detains at a port of entry a good originating in the territory of the other Party due to a perceived failure to comply with a technical regulation, it shall immediately notify the importer of the reasons for the detention. The Parties shall use relevant international standards, guidelines and recommendations as a basis for their technical regulations and conformity assessment procedures.

Customs and trade facilitation

The classification of goods for tariff purposes shall be made by the Parties in conformity with the Harmonized System (HS). If they introduce new classifications, they must be not less preferential than those applied originally. For the purpose of determining the customs value of goods, the Parties shall apply the WTO Customs Valuation Agreement (Agreement on Implementation of Article VII). Ukraine and Israel will grant duty-free temporary admission for the goods mentioned in the Istanbul Convention on Temporary Admission of Goods. Neither Party may apply customs duties to goods, regardless of their origin, imported temporarily from the territory of the other Party for repair or restoration (whether under warranty or not). Both Parties shall ensure that their customs authorities shall issue advance rulings concerning the classification of goods, rules of origin as well as eligibility of goods for preferential treatment.

May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

settlement

If any Party considers that any benefit which could have reasonably been expected to accrue under the FTA is being nullified or impaired as a result of the application of any measure by the other Party, the Party may have recourse to dispute settlement. Any dispute shall be settled by consultations between the Parties. The complaining Party may request the establishment of an Arbitral Tribunal if the other Party does not reply to the request for consultations or the Parties have failed to settle the dispute through consultations within 60 days after the request for consultations; or the Parties have had recourse to mediation and no mutually acceptable solution has been reached within 15 days from the issuance of the mediator’s opinion. The Arbitral Tribunal shall be composed of 3 arbitrators. All proceedings shall be conducted in English. The Arbitral Tribunal shall issue the initial report within 90 days after its formation. Any Party may provide its comments on the initial report within 30 days of the date of the report. The Arbitral Tribunal shall prepare the final report within 45 days of the date of the initial report. The period for implementation should not exceed 15 months. If the Party fails to properly comply with the final report within the period for implementation, that Party shall enter into consultations with a view to agreeing on mutually acceptable compensation. If no such agreement has been reached within 20 days from the request, the complaining Party shall be entitled to suspend the application of benefits granted under the FTA, but only equivalent to those affected by the measure or matter that the Arbitral Tribunal has found to be inconsistent with the Agreement. END

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May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

CRUX

Legal Digest The last few months were fruitful for new legislative activities in the Ukrainian Parliament. Among attentionworthy initiatives are Drafts No. 5431-1 and No. 5431-1 on improving the activities of the Antimonopoly Committee of Ukraine, the refined Draft Law On the Institution of the Business Ombudsman in Ukraine and Draft Law No. 5309 On Making Amendments to the Law of Ukraine On Public Procurements and to Other Laws Regarding the Upgrading of the Public Procurements Complaints System. The topic of raiding and matters regarding estimating the value of real estate are also among significant amendments of late. The UJBL editorial team asked experts to provide their comments on these and other important topics.

On 25 March Law of Ukraine No. 11-50-IX On the Bureau of Economic Security of Ukraine came into force. What are the main functions of the Bureau, and what are the possible consequences for Ukrainian business?

BOHDAN SLOBODIAN, Counsel, EQUITY The pillar and one of the key functions of the Bureau of Economic Security is analytical activity in regards to existing and potential threats in the sphere of the state’s economy, which, following the law, constitutes the key factor in combating economic and financial offences. Another key function of the Bureau of Economic Security is police operations and pre-trial

investigation within the remit established by law. Unlike the State Fiscal Service or National Police, it being, first and foremost, an analytical rather than “law-enforcement” body, can be referred to as one of advantages of the Bureau in this context. The investigative function of the Bureau of Economic Security is a secondary one, which results from its analytical activity. And now about key provisions. Law No 1150-IX has introduced the notion of risk analysis defined as information and analysis activity with a view to assessing threats to economic security, degree of its vulnerability and level of negative influence on it. Part 1 of Article 12 of the Law establishes that in its

analytical activities the Bureau uses a risk-oriented approach which lies in identifying, assessing and determining the risks of criminal offences in the economic field as well as appropriate measures to manage risks in a way and scope which ensures minimization of such risks, depending on their level. Thus, the given provisions spell out the ILP (IntelligenceLed Policing) concept previously unknown in Ukraine. As far as prospects to create a bureau for businesses, it all depends on the results of staff selection of the leadership and employees of the Bureau of Economic Security. Taking into consideration the fact that personnel of the Bureau’s central office is being

planned four months after the Law came into effect, it is too early to talk about any results. However, returning to the aforementioned ILP concept, one can expect the analytical work of the Bureau of Economic Security to become a safeguard against ungrounded pressure on businesses from law-enforcement bodies. For example, there will be no need to institute a fact of criminal proceedings to “terrorize” enterprises with searches solely with a view to finding out whether or not they are fictitious. Instead, the respective analytical units of the Bureau of Economic Security will check up on such facts by monitoring the current economic activities of a legal entity.

www.ujbl.info | The Ukrainian Journal of Business Law | May — June 2021

CRUX Draft Law No. 5317 on issues regarding estimating the value of land was registered in Parliament. How would you rate the proposed amendments, and how can they affect the real estate market in Ukraine?

ANDRII GREBONKIN, Senior Associate, Baker McKenzie — Kyiv Ukraine has a practice of so-called “fractional” real estate valuation, which evolved following the adoption of the Law of Ukraine On Land Valuation (2003), which recognized land valuation as a separate form of valuation. “Fractional” means

that the value of real estate is determined by adding up the value of its components, i.e., land and land improvements (buildings, structures, etc.). The Draft Law is aimed at eliminating this approach and introduces real estate valuation as an integral object. In particular, it abolishes expert land valuation as a separate procedure that is necessary for implementing civil law agreements in respect of land and land rights. Legislators believe that due to these changes, individuals and legal entities won’t have to go through the valuation procedure twice, or separately for the building and for the land underneath it.

However, some provisions of the Draft Law will need to be further revised along with some of the regulatory mechanisms it envisaged. (The Central Scientific Experts Office of the Ukrainian Parliament has already noted that it might be necessary to merge or integrate two separate registers: the State Register of Appraisers and Appraisal Entities maintained by the State Property Fund of Ukraine, and the State Register of Appraisers on Land Expert Valuation maintained by the State Service of Ukraine for Geodesy, Cartography and Cadastre (StateGeoCadastre)). In general terms, taking into account the above com-

ments and subject to careful elaboration of the regulatory framework, adoption of this Draft Law would help bring the practice of real estate valuation in Ukraine into line with global valuation standards, as well as simplify the real estate valuation procedure for individuals. Moreover, it may encourage further discussion on how to implement the principle of the integral nature of real estate in the Ukrainian legal system which, incidentally, is already envisaged by the Draft Concept of Updating the Civil Code of Ukraine prepared by the Government Working Group and published in Spring 2021.

Draft Law No. 5431 and its alternative, Draft No. 5431-1, on improving the activites of the AMCU were registered in Parliament. What are the proposed amendments about?

NAZAR CHUCHAK, Associate, Asters The registering in Parliament of two Draft Laws, No. 5431 and No. 5431-1, is an attempt to further advance the reform process. Both drafts entail four common essential streams of amendments. The first one relates to increasing the procedural capabilities of the competition authority (AMCU) to collect evidence and prove market collusion or abuse of dominance. Among a few new powers of the authority, the drafts introduce the right to access places of residence of individuals if proof of the existence of a cartel is required. Within this

stream, draft laws also stipulate refined rules on a lenience program and introduction of a settlement mechanism. Three other streams of amendments revolve around: i. The AMCU’s right to dismiss the complaint and refusal to open an investigation if the subject matter of the alleged infringement do not meet the enforcement priorities defined by the AMCU; ii. improvements in merger control, in particular, by amending the definition of economic concentration and excluding turnover of an exiting seller from the notifiability assessment (instead taking into account only the turnover generated by the business being acquired); iii. introduction of joint and several liability of parent and affiliated companies. Conceptually, we can agree with all these amendments. These ideas are not new and were quite effectively imple-

mented in other countries as well as at EU level. However, in some aspects the draft laws seem rather raw and unbalanced. Most crucially, the proposed increase in the AMCU’s investigative powers is not accompanied with adjustment of the rights of the undertakings under investigation. Many subtle aspects of the AMCU’s powers that are important for the observance of such rights were not addressed in the draft laws and merely left for self-regulation by the AMCU. The AMCU’s discretion to dismiss complaints that do not meet the enforcement priorities of the authority also seems controversial and could lead to entire industries being unable to protect their rights. Existing legislation prevents undertakings from seeking protection directly before the courts, as the courts are prohibited from interfering in the exclusive remit of

May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

the AMCU by identifying market boundaries, establishing a company’s dominance or violations of competition rules. Although Draft Law No. 5431-1 eliminates this “monopoly” of the authority, effective consideration of this type of case by the courts, even in the medium term, seems rather illusionary. Finally, the reasons behind the introduction of parental liability are quite understandable, but we should also consider the risks related to commonly controversial decisions of the AMCU against international companies. Suffice to mention the AMCU’s multimillion-dollar fine, which was imposed on local affiliates of tobacco companies, which was recently overturned by the courts. By way of conclusion, these are not the first draft bills on improving competition rules, and they may become another failed attempt in the absence of substantial improvement.

CRUX LEGAL DIGEST Draft Law No. 5322 On Bringing Amendments to Particular Laws of Ukraine on Avoiding Malpractice on Wholesale Energy Markets was registered in Parliament on 1 April. What is being proposed in this Draft, and how relevant are its provisions at the current time?

IVAN BONDARCHUK, Counsel, Head of Energy, LCF Law Group In 2020 there were numerous statements regarding manipulation by generating companies and power traders. For example, insider trading, concerted practices or bidding without an available volume of commodity (so-called ‘unsecured bid’). Such practices had

an effect on competition and led to deformation of reasonable market pricing. At the same time, the national regulator (NEURC) was unable to react efficiently due to its limited powers and the relatively soft sanctions defined for breach of regulatory and licensing rules by market participants. The aim of Draft Law No. 5322 іs to define the framework prohibiting abusive practices in wholesale energy markets in line with the state’s obligation to implement REMIT. The Draft Law sets out definitions of wholesale energy markets and products, envisage key requirements and re-

strictions for the participants of markets, and also defines a list of abusive practices. For example, the Draft Law directly prohibits unsecured bids aimed at influencing pricing on the market, concerted bidding, securing of cross-border interconnection without subsequent operations therewith, misrepresentation of data affecting market behavior, etc. The NEURC is likely to be granted additional powers with which to control the market and investigate alleged violations. For instance, during an investigation the NEURC will be able to receive all relevant information and enlist law-enforcement

agencies to get access to facilities, offices, and electronic devices, as well as to file motions to a court asking for the attachment of bank accounts. Sanctions are also expected to be increased. Anticipated fines for abusive practices could reach UAH 102 million (around USD 3.7 million). Following adoption of the Draft Law, the NEURC will have 6 months to set the regulations required for implementation of its requirements, including the rules for registration of participants of the wholesale market, procedure for investigation of the violations and methodology for designation of fines.

Parliament adopted Draft Law No. 4416-1 in the first reading, which puts forward amendments to the Law On Industrial Parks. What is proposed in the mentioned Draft, and how will its provisions promote the attraction of investment?

LIDIIA VATUTINA, Associate, EVERLEGAL On 15 April 2021, the Ukrainian Parliament approved in its first reading Draft Law No. 4416-1 (the Law). The Law’s primary goal is to improve the investment attractiveness of industrial parks by introducing a number of incentives for industrial park stakeholders, i.e., its members, managing companies and the initiators of establishment of industrial parks. In overall terms, the purpose of the Law is to regulate the activity of industrial parks in Ukraine more precisely,

since existing Ukrainian legislation on industrial parks provides rather superficial regulation. Apart from incentives for industrial park stakeholders, the Law also provides for a list of facilities that can operate within industrial parks, expands the powers of the Ministry of Economy as a regulator of all industrial parks in Ukraine and brings Law of Ukraine No. 5018-VI On Industrial Parks into line with other legislative acts in Ukraine. In particular, the Law introduced the following incentives: — industrial park members can receive: • partial compensation of interest payments on loans, provided that such members export the products they manufactured in an industrial park; and

• partial compensation of their investments in manufacturing made within the first 3 years of their business activity in an industrial park; — industrial park members and its managing company can receive partial compensation of interest payments on loans raised for equipping an industrial park; and — industrial park members, its managing company and initiator of its establishment can compensate 50% of expenses spent on grid connection made within an industrial park. However, none of these incentives is enforceable unless there are separate legislative acts providing for a mechanism on the granting of specific incentives. Otherwise, such incentives will remain on paper, which may have a negative effect on the activities of industri-

al parks in Ukraine and, further, their investment attractiveness. The Law also defines the facilities that can operate within industrial parks. These include offices of the managing company; business campuses, accelerators, funds, laboratories for innovative technologies development; marketing and advertising facilities; educational institutions; green areas; industrial and engineering buildings and structures, etc. The Law has been well received by Ukrainian governmental bodies, existing players and potential investors. Hence, along with other legislative acts specifying the provision of various incentives to industrial park stakeholders that are yet to be drafted, the Law can boost the activities of industrial parks in Ukraine and help to increase the investment attractiveness of Ukraine.

www.ujbl.info | The Ukrainian Journal of Business Law | May — June 2021

CRUX LEGAL DIGEST On 15 April the Verkhovna Rada of Ukraine adopted Draft Law No. 3774 to fight raiding. What are the provisions of the Draft?

SERGIY SMIRNOV, Partner, Sayenko Kharenko

ZLATA SIMONENKO, Counsel, Sayenko Kharenko The said Draft Law was approved in the first reading, with MPs voting in favor of a simplified procedure for preparing it for the second reading stage. The Draft amends certain laws of Ukraine regarding im-

provement of the anti-raiding mechanism. As envisioned by its authors, the law is intended to eliminate several legislative gaps and omissions that prevent proper protection of ownership and corporate rights. In particular, the following gaps should be addressed: — the existing procedure for handling complaints against a state registrar’s decisions, acts or omissions does not provide an adequate response mechanism whereupon an illegal registration action or an affected person’s filing of a complaint to the Ministry of Justice of Ukraine new registration actions are taken; — current legislation establishes onerous multiple formal requirements for the content of the complaint to be submitted to the Ministry of Justice of Ukraine. The authors of the Draft Law propose to give the Ministry of Justice of Ukraine the right to prohibit registration actions during the period of consideration of a complaint against registration actions (decisions); such prohibition

would enable any hostile takeover to be quickly stopped. In addition, the Draft contains provisions aimed at removing artificial barriers preventing the Ministry of Justice of Ukraine from considering on merit any complaints against registration actions (decisions), as well as to streamline the procedure by which the Ministry of Justice of Ukraine handles complaints. At the same time, the Draft requires publication of decisions adopted by the Ministry of Justice of Ukraine on its official website. It is important to note that one of the proposed changes addresses an extension of the period for appealing against registration actions from 60 calendar days to 3 months. Furthermore, it is proposed to improve the rules for signing of decisions at a legal entity’s general meeting by establishing that in case of a change of the legal entity’s CEO at a general meeting the minutes of such meeting must be signed by participants who voted for the decision and the number of votes must be sufficient for

May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

the approval of such a decision. Particular attention is paid to deeds on termination of land lease agreements for which a prior decision of the general meeting on approval of such deed is required. In our opinion, the initiators of the Draft Law focused on some problems and gaps that are often used during (and after) hostile takeovers. However, it is first necessary to wait until the final text of the law is approved by MPs. Secondly, in our opinion, issues of counteracting hostile takeovers should cover not only the procedural aspects of making and appealing against relevant decisions but also the proper (primarily criminal) liability for such actions. It is no secret that now, in the majority of cases, the perpetrators of illegal takeovers manage to avoid any liability. That is why it is critical to amend laws so that they establish an effective mechanism for prosecuting the perpetrators and for ensuring the procedural possibility of recovering the damages caused to the victim by illegal actions.

CRUX LEGAL DIGEST On 29 April Parliament adopted Draft Law No. 5309 in its first reading on upgrading the public procurement complaints system. What exactly does this Draft propose, and what mechanism of complaint is active at the moment?

ANDRIY LYTVYN, Attorney at Law, Ilyashev & Partners As far as adoption in the first reading by the Verkhovna Rada of Ukraine on 29 April 2021 of the Draft Law of Ukraine On Making Amendments to the Law of Ukraine On Public Procurements and to Other Laws Regarding the Upgrading of the Public Procurements Complaints System under No. 5309 of 29 April 2021 (hereinafter — the Draft Law) is concerned, the document in question suggests not only upgrading of the public procurements complaint system. The Draft Law suggests mak-

ing amendments also regarding other issues, which pertain to the procedure of conducting public procurements. For instance, inclusion of leasing to the range of services, to which the Law applies, as well as clarification of services of financial institutions, to which the Law does not apply, etc. As far as the complaints review procedure is concerned, currently the Permanently Acting Administrative Board of the Antimonopoly Committee of Ukraine for reviewing complaints of breaches of legislation in the sphere of public procurements (hereinafter — the Board) operates at the Antimonopoly Committee of Ukraine (hereinafter — the AMCU). The Board’s membership includes state authorized officials of the AMCU who also perform a variety of other functions, envisaged by the law, which puts an extra load on this public executive body.

It follows from the text of the Draft Law that making amendments to the public procurements complaints procedure is being performed for the purpose of completing the reform of the complaints review body, which actually appears to be, according to the law, the AMCU itself. Considerable steps in this regard were made in February 2021. Namely, amendments were made to the Law of the AMCU, which envisage setting up a Committee for reviewing complaints regarding breaches of legislation in the sphere of public procurements (hereinafter — the Committee), which would consist of a range of state authorized officials for reviewing complaints directly in the sphere of public procurements. There is a necessity to set up such a Committee and to engage such state authorized officials in order to resolve the issue of handling a considerable volume of complaints,

which must be reviewed in a timely and highly professional manner. Thus, it is necessary to clearly distinguish the Board from the Committee. Among other things, the Draft Law also imposes tighter deadlines towards the submission of complaints, enforces stricter requirements towards proving the complainant’s rights have been infringed and provides for stronger adverse effects in case of missing any deadlines or failures to submit information, documents and materials, requested by the Committee when reviewing the complaints. In general, the introduction of amendments, as suggested by the Draft Law, targets bringing the procedure of filing complaints into conformity with the already launched reform of the complaints review body in the sphere of public procurements and appears, therefore, to be reasonably justified.

The Parliamentary Committee on Economic Development recommends that Parliament adopt in its first reading the refined Draft Law No. 3606 On the Institution of the Business Ombudsman in Ukraine. What are the key changes contained in the Draft?

OLEKSIY BOKHAN, Legal Assistant,

AVER LEX Attorneys at law A year has passed since the registration of Draft Law No. 3607 of 5 June 2020, and the revised Draft was received on 5 May 2021, so it will be useful to compare the wording. 1. MPs are not abandoning the position of the need to

adopt a special law on the institution of the Business Ombudsman, which provides for the formation of a non-governmental non-profit organization. A precedent already exists — the Law of Ukraine On Chambers of Commerce and Industry in Ukraine. 2. The institution also retains the powers of an “authoritative and control-supervisory nature”. Although the list of the Business Ombudsman’s rights has been expanded in total, such an important tool as the right to be present during state supervision (control) activities in the field of economic activity has been removed. In addition,

in the absence of “supervisory” powers, the question of the effectiveness of the institution will arise. 3. The wording of the Draft dated 5 June 2020 provided for administrative liability of officials of public entities for improper cooperation with the institution; criminal liability was established for illegally influencing the Business Ombudsman in order to prevent him/her from performing official duties. However, due to the special requirements for the procedure on amending the legislation on administrative offenses and criminal liability, these provisions were excluded. Instead, similar features of the

amendments to the Criminal Procedure Code of Ukraine were not taken into account, so the application of a special procedure of criminal proceedings against the Business Ombudsman remains in the new wording. By way of conclusion, we believe that the revised Draft Law No. 3607 specifies, on the one hand, important issues on the establishment and operation of the institution of the Business Ombudsman in Ukraine but, on the other hand, it somewhat narrows the scope of guarantees and tools available to the Business Ombudsman in protecting business interests in our country.

www.ujbl.info | The Ukrainian Journal of Business Law | May — June 2021

May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

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Aequo

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Agroprosperis, Apax Partners, Apollo, Bunge, DuPont, EBRD, European Commission, Google, Inditex Group, NCH Capital, Pioneer Hi-Bred International, Samsung Electronics, Sandvik, Synthon, Tetra Laval, Ukrainian Redevelopment Fund, UniCredit Group, Vodafone Ukraine, etc.

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7Klovsky Uzviz 14th floor Business Center "Carnegie Center" Kyiv, 01021, Ukraine Tel.:+380 44 280 88 87 E-mail:office@aderhaber.com www.aderhaber.com

Повний спектр юридичних послуг, пов'язаних із вирішенням спорів: корпоративні спори, банківські спори, господарські спори, податкові спори, митні спори, спори про захист ділової репутації, спори, пов'язані з інтелектуальною власністю, трудові спори. Стягнення проблемної заборгованості. Виконавче провадження. Банкротство та фінансова реструктуризація. Податки. Нерухомість та будівництво. Аграрне та земельне право. Антимонопольне право. Взаємодія з державними органами (GR). Послуги для власників бізнесу та приватних клієнтів. Юридичний аудит. А також кримінальне законодавство та захист бізнесу

Провідні іноземні та українські компанії: Dragon Capital, Yandex Ukraine, Nestle, Coca-Cola, I&U Group, MERX, MetLife, British American Tobacco, PJSC "Kyivgaz", Inditex Group, STOLLER INTERNATIONAL INC, SWISS TIMBER INTERNATIONAL, CHERKASYAGROLEND INVEST LLC, Vodafone Ukraine, Alfa-Bank, Piraeus Bank, Credit Agricole Bank, AVK Confectionery LLC, WOG, UkrAVTO, Kovalska, Epicentr та інші

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A full range of dispute resolution services: corporate, banking, land and commercial disputes, debt and asset recovery. Bankruptcy practice, criminal law, White Collar Crime, land law, taxation and family law.

Sberbank, PJSC, PromInvestBank PJSC, Ukrgasbank, PJSC, Alpha Bank PJSC, Kyivmiskbud, Discover Drilling Equipment LLC, Heliclub Ukraine, Investohills Vesta LLC, Lugcentrokus PJSC, Babyn Yar Memorial Foundation

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11 Shota Rustaveli Street, Kyiv, 01001, Ukraine Tel.: +38 044 235 88 77 E-mail: office@abp.kiev.ua www.abp.kiev.ua

Повний спектр послуг з судового врегулювання спорів: корпоративні, банківські, земельні та господарські спори, стягнення проблемної заборгованості. Практики банкрутства, кримінального, земельного, податкового та сімейного права.

АТ «СБЕРБАНК», ПАТ «Промінвестбанк», АБ «Укргазбанк», АТ «Альфа Банк», «Київміськбуд», Discovery Drilling Equipment, Heliclub Ukraine, ФК «Інвестохіллс Веста», ПАО«Лугцентрокуз», Фонд пам’яті «Бабин Яр»

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Corporate, M&A, Banking and Finance, Arbitration, Leading Ukrainian and foreign companies Energy, Antitrust, Private Clients, Land law & Real Estate, Competition Law, Dispute Resolution, Legal expertise, Infrastructure and Logistics, PPP & Government relation

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www.ujbl.info | The Ukrainian Journal of Business Law | May — June 2021

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Multinational corporations and major Ukrainian companies from many sectors, financial institutions, government agencies, international organizations, HNWI

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Leonardo Business Center, 19-21 Bohdana Khmelnytskoho Street, Kyiv, 01054, Ukraine Tel.: +380 44 230 6000 Fax: +380 44 230 6001 E-mail: info@asterslaw.com www.asterslaw.com

Альтернативне вирішення спорів, антимонопольне право, банківське та фінансове право, державно-приватне партнерство, державна допомога, енергетика, природні ресурси та будівництво; злиття та поглинання / корпоративне право, інтелектуальна власність, кібербезпека, комплаєнс та боротьба з корупцією, кримінальне право та захист бізнесу, міжнародна торгівля, міжнародні арбітражні та судові спори; нерухомість, податкове право, приватні клієнти, реструктуризація та банкрутство, ринки капіталу, сімейне право, судові спори, технології та комунікації, трудове та міграційне право

Транснаціональні корпорації та провідні українські компанії з різних галузей, фінансові установи, органи державної влади, міжнародні організації, HNWI

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Бізнес-центр «Леонардо», вул. Богдана Хмельницького 19-21, Київ, 01054, Україна Тел.: +380 44 230 6000 Факс: +380 44 230 6001 E-mail: info@asterslaw.com www.asterslaw.com

Arbitration; Asset Tracing and Recovery; Banking and Finance; Capital Markets; Corporate/M&A; Competition; Cross-Border and Local Litigation, Employment; Energy; Fraud Investigation; Intellectual Property; Government Relations; Real Estate and Infrastructure; Private Clients; Restructurings and Insolvency; Tax; International Trade; Compliance and Investigations; Data Protection and Cybersecurity

ЕБРР, Kernel, Министерство финансов Украины, ICU, Укрэксимбанк, Metinvest B.V., JP Morgan Securities Plc, Raiffeisen Bank International, Dragon Capital, Nordic Environment Finance Corporation, Epicentr, DTEK, Nemiroff, British American Tobacco, AXDRAFT, Argus Media Ltd Caterpillar Inc., Swedfund International AB, UBER, UDP

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38 Volodymyrska Street, Kyiv, 01030, Ukraine Tel./Fax: +380 44 591 3355 E-mail: info@avellum.com www.avellum.com

Арбітраж; банківське та фінансове право; взаємодія з державними органами; вирішення спорів в міжнародних та українських судах; енергетика; інтелектуальна власність; конкурентне право; корпоративне право та M&А; нерухомість та інфраструктура; податки; приватні клієнти; реструктуризація та банкрутство; ринки капіталу; розшук та повернення активів; розслідування шахрайства; трудове право; міжнародна торгівля; комплаєнс та розслідування; захист даних та кібербезпека

EBRD, Kernel, Ministry of Finance of Ukraine, ICU, Ukreximbank, Metinvest B.V., JP Morgan Securities Plc, Raiffeisen Bank International, Dragon Capital, Nordic Environment Finance Corporation, Epicentr, DTEK, Nemiroff, British American Tobacco, Argus Media Ltd, AXDRAFT, Caterpillar Inc., Swedfund International AB, UBER, UDP

ІНР Англійська, Українська, Російська

вул. Володимирська, 38, 4 поверх, Київ, 01030, Україна Тел./Факс: +380 44 591 3355 E-mail: info@avellum.com www.avellum.com

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International corporations and leading Ukrainian companies and financial institutions, including ArcelorMittal, EastOne Group, Horizon Capital, ING Bank Ukraine, MasterCard, Metinvest BV, Poverkhnost Media Group, Raiffeisen Bank, Societe des Centres Commerciaux, UkrSibbank, BNP Paribas Group

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Renaissance Business Center 24 Bulvarno-Kudriavska Street, Kiev, 01054, Ukraine Tel: +380 44 590 0101 Fax: +380 44 590 0110 E-mail: Kyiv@bakermckenzie.com www.bakermckenzie.com/ ukraine

Антимонопольне та конкуренційне право; Банківське та фінансове право; Корпоративне право, в тому числі Злиття та Поглинання, Цінні папери; Комплаєнс; Судове право; Трудове право; Страхування; Інтелектуальна власність; Міжнародне та комерційне право; Інформаційні технології та телекомунікації; Великі проекти і проектне фінансування; Нерухомість, земельні відносини та будівництво; Податкове та митне законодавство

Міжнародні корпорації та провідні українські компанії і фінансові установи, в тому числі ArcelorMittal, EastOne Group, Horizon Capital, ING Bank Ukraine, MasterCard, Metinvest BV, Поверхность Медиа Групп, Raiffeisen Bank, Societe des Centres Commerciaux, УкрСиббанк, BNP Paribas Group

ІНР Англійська Українська Російська

Бізнес-центр «Ренесанс» вул. Бульварно-Кудрявська, 24 Київ ,01054, Україна Тел.: +380 44 590 0101 Факс: +380 44 590 0110 E-mail: Kyiv@bakermckenzie.com www.bakermckenzie.com/ ukraine

May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

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Litigation; Banking and Finance; Restructuring and Bankruptcy; Corporate and M&A; Tax Disputes; Real Estate; Labor; Intellectual Property; Criminal Law; Enforcement Proceedings; Alternative Dispite Resolution, International Аrbitration

Leading foreign and local companies and high-net-worth individuals

WND English; Russian; Ukrainian

4 Rylskyi Lane, Kyiv, 01001, Ukraine Tel./Fax: +38 044 277 22 22 E-mail: info@equity.law www.equity.law

Судова практика; банківське та фінансове право; реструктуризація та банкрутство; корпоративне право та M&A; податкові спори; нерухомість та будівництво; трудове право; інтелектуальна власність; кримінальне право; виконавче провадження; альтернативне вирішення спорів; міжнароднийарбітраж.

Провідні іноземні та національні компанії, а також представництво приватних осіб

ІНР Англійська; Російська; Українська

пров. Рильський, 4, м. Київ, 01001, Україна Тел./Факс: +38 044 277 22 22 E-mail: info@equity.law www.equity.law

Corporate law, Tax law, Transfer Pricing, Financial Instruments and Project Funding, Criminal law/ Economic Crime, Agrarian Law & Land, Combating financial fraud and corruption, forensic investigations, Accounting and Tax Accounting, Labor law, Investments and Business Structuring, Dispute Resolution, Compliance, Electronic and Mobile Commerce, Antimonopoly / Competition Law, Intellectual Property, Property&Business Appraisal

Louis Dreyfus Commodities Ukraine; Savik Shuster Studio; Plastics-Ukraine, LLC; Kyivstar, JSC; LINYK, PJSC; Pruszynski Ukraine, LLC; Teliani Trading, LLC; Ukrrichflot PJSC; Zepter International Ukraine; Heraeus Electro-Nite, LLC; Huawei Tech. Investment Co., LTD; Farmak JSC; Fozzy Group; Braz Trade Sp. z o.o.

English, Polish, Ukrainian, Russian

18/24 Dmytrivska street, Kyiv, 01054, Ukraine Tel.: +380 44 238 09 44 Tel.: +380 44 238 04 13 E-mail: info@euconlaw.com www.euconlaw.com

Корпоративне право, Податкове право, Трансфертне ціноутворення, Фінансові інструменти та проектне фінансування, Кримінальне право/ економічні злочини, Аграрне та земельне право, Протидія фінансовому шахрайству і корупції, форензік розслідування, Бухгалтерський та податковий облік, Трудове праве і міграційне право, Інвестиції та бізнес-структурування, Вирішення спорів, Compliance, Електронна та мобільна комерція, Антимонопольне/конкурентне право, Інтелектуальна власність, Оцінка майна, майнових прав та бізнесу

Англійська, Польська, Українська, Російська

вул. Дмитрівська, 18/24, Київ, 01054, Україна Teл.: +380 44 238 09 44 Teл.: +380 44 238 04 13 E-mail: info@euconlaw.com www.euconlaw.com

Antitrust and competition; Banking and finance; Government relation (GR); Litigation and dispute resolution; Business security; Environment protection; Intellectual property; Compliance, Corporate governance and risk management; Corporate and M&A; Criminal Law and White Collar; International Trade; Maritime Law; Real Estate; Taxation; Private clients; Anti-Corruption and Anti-Bribery; Insolvency and Restructuring; Employment

Azelis; Amic; Česká exportní banka; EGAP; Enkom; Expobank; BNP Paribas; Marks&Spencer; GAP; Red Bull; Inditex Group; Syngenta; Reckitt Benckiser; Omya; Printec; Mercator Medical; Oriflame; Ubisoft; ProCredit Bank; Evyap Trading; Lacoste; Good Look; Red Head Family Corporation

WND Ukrainian Russian English German

19B Instytutska Street, Suite 29, Kyiv, 01021, Ukraine Tel: +380 44 581 1220 E-mail: info@golaw.ua www.golaw.ua

Антимонопольне та конкурентне право; Банківське та фінансове право; Взаємодія з державними органами (GR); Вирішення судових спорів; Захист бізнесу; Захист навколишнього середовища; Інтелектуальна власність; Комплаєнс, корпоративне управління та управління ризиками; Корпоративне право та M&A; Кримінальне право та посадові злочини; Міжнародна торгівля; Морське право; Нерухомість; Податкове право; Послуги для власників бізнесу та приватних клієнтів; Протидія корупції; Реструктуризація та банкрутство; Трудове право

ІНР Українська Російська Англійська Німецька

вул. Інститутська 19-Б, офіс 29, Київ, 01021, Україна Тел.: +380 44 581 1220 E-mail: info@golaw.ua www.golaw.ua

www.ujbl.info | The Ukrainian Journal of Business Law | May — June 2021

PROMART

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MAJOR CLIENTS

Antitrust & Competition, Banking & Finance, Corporate and M&A, Dispute Resolution, International Arbitration & Cross-Border Disputes, Criminal Defence, Commercial, Employment, Real Estate, Energy and Natural Resources, Innovations & Technology

Leading foreign and Ukrainian companies, including: National Bank of Ukraine, OTP Bank, Alfa-Bank, Ukrsotsbank, UkrSibbank, JSC FUIB, Concorde Capital, Louis Dreyfus Company Ukraine, Agromino Agroholding, Resilient a.s., HarvEast, Kivshovata Agro, UDP Renewables, Main Group Ukraine, UNIT.City, Onur Air (Turkish Airlines), First Ukrainian expert center, Go To-U, Thirdwave Ukraine, Blackbull Trading, 8allocate, Apsim Technologies, Rainbow, Adidas Ukraine, Farmak, Regus and others.

WND / Ukrainian, English, German, Polish, Russian

4 Rylskyi Lane, Sofiyska Square, Kyiv, 01001, Ukraine Tel: +380 44 3370016 E-mail: hello@everlegal.ua www.everlegal.ua

Антимонопольне право та конкуренція, банківське та фінансове право, корпоративне право та злиття та поглинання, вирішення спорів, міжнародний арбітраж та транскордонні спори, кримінальний захист, комерційні питання, трудове право, нерухомість, аграрне право, енергетика та природні ресурси, інновації та технології

Провідні іноземні та українські компанії, в тому числі: Національний банк України, АТ «ОТП Банк», АТ «Альфа-Банк», АТ «Укрсоцбанк», АТ «УкрСиббанк», АТ «ПУМБ», Concorde Capital, Louis Dreyfus Company Ukraine, Agromino, Resilient a.s., HarvEast, Kivshovata Agro, UDP Renewables, Main Group Ukraine, UNIT.City, Onur Air (турецькі авіалінії), ПУЕЦ, Go To-U, Thirdwave Ukraine, Blackbull Trading, 8allocate, Apsim Technologies, Rainbow, Adidas Україна, Фармак, Regus та ін.

ІНР / Українська, Англійська, Німецька, Польська, Російська

Провулок Рильський, 4 Софійська площа, Київ, 01001, Україна Тел.: +380 44 337 0016 E-mail: hello@everlegal.ua www.everlegal.ua

Intellectual property; Copyright and media law; Renewable energy and green tariff; IT; Commercial law and Contracts; Corporate and M&A; Investments; Labour law; Dispute resolution; Tax, including international tax structuring; Land, construction and real estate; Litigation

Multinational corporations and Ukrainian companies

WND Ukrainian, Russian, English

23 Shota Rustaveli Street, Suite 3, Kyiv, 01033 Tel.: +380 44 490 5400 Fax: +380 44 490 5490 e-mail: info@konnov.com www.konnov.com

Інтелектуальна власність; Авторське та медіа право; Альтернативна енергетика та зелений тариф; IT; Комерційне право; Корпоративне право та M&A; Інвестиції; Трудове право; Судові спори; Податки, включаючи міжнародне податкове структурування; Земля, будівництво та нерухомість; Судовий процес

Транснаціональні корпорації та українські компанії

ІНР Українська, Російська, Англійська

вул. Шота Руставелі, 23, оф.3, Київ, 01033 Тел.: +380 44 490 5400 Факс: +380 44 490 5490 e-mail: info@konnov.com www.konnov.com

Litigation, Banking & Finance, Bankruptcy & Restructuring, Competition & Antitrust, Corporate and M&A, Energy & Natural Resources, Intellectual Property, International Arbitration, Tax, WhiteCollar Crime

Альфа-Банк, Промінвестбанк, Перший Український Міжнародний Банк (ПУМБ), ФК «Контрактовий дім» (EasyPay), OTP Банк, Universal Bank, VR Global Partners, МРІЯ Агрохолдинг, Bunge Ukraine, Spike Trade, ЮРіЯ-Фарм, Fozzy Group, Кондитерська група «АВК», TNT Express Worldwide, Альянс Україна, Ostchem Holding Limited, SCATEC Solar, Кондитерська корпорація «Рошен», Миколаївський суднобудівний завод «Океан», Alros Holding Limited, Finance Real, Граве Україна, UDP Renewables, Українська асоціація відновлюваної енергетики (УАВЕ), Klosterfrau, Unicorns.

WND / Ukrainain Russian English

47 Volodymyrska Street, Office 3, Kyiv, 01001, Ukraine Tel./Fax: +380 44 455 8887 info@lcf.ua www.lcf.ua

Судова практика, антимонопольне та конкуренційне право, банківське та фінансове право, банкрутство та реструктуризація, енергетика та природні ресурси, інтелектуальна власність, корпоративне право та M&A, міжнародний арбітраж, податкове право, кримінальне право

Alfa-Bank, Prominvestbank, First Ukrainian International Bank (FUIB), FC Kontraktovyi Dim (EasyPay), OTP Bank, Universal Bank, VR Global Partners, MRIYA Agro Holding, Bunge Ukraine, Spike Trade, YURiA-Pharm, Fozzy Group, AVK Confectionery Company, TNT Express Worldwide, Allianz Ukraine, Ostchem Holding Limited, SCATEC Solar, Roshen Confectionery Corporation, Mykolaiv Shipyard Ocean, Alros Holding Limited, Finance Real, Grawe Ukraine, UDP Renewables, Ukrainian Association of Renewable Energy (UARE), Klosterfrau, Unicorns.

ІHР/ Українська Російська Англійська

вул. Володимирська, 47, офіс 3, Київ, 01001, Україна Тел./Факс:+380 44 455 8887 info@lcf.ua www.lcf.ua

LCF LAW GROUP

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May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

ADDRESS

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Mamunya IP

PRACTICE AREAS

MAJOR CLIENTS

SERGEYEVS' LAW OFFICE

ЮРИДИЧНЕ БЮРО СЕРГЄЄВИХ

ADDRESS

Full scope of services in Intellectual Property: Foreign and Ukrainian large companies, patent, trademark, industrial design, geographical including international corporations, tech start-ups. indications, plant varieties prosecution and enforcement, including litigation; copyright advice and enforcement, unfair competition, anti-counterfeiting, IP assignments and licensing, IP due diligence.

WND Ukrainian English Russian

Stand Business Center, 14 Vasylkivska St., Kyiv 03040 Ukraine Tel.: +380 44 495 4500 E-mail: office@mamunya-ip. com mamunya-ip.com

Повний спектр послуг у галузі інтелектуальної власності: реєстрація та захист прав на винаходи, торговельні марки, промислові зразки, географічні зазначення, сорти рослин, у т.ч. судовий захист; консультування та захист авторських прав, захист від недобросовісної конкуренції, боротьба з контрафактом, передача прав та ліцензії, аудит прав інтелектуальної власності.

Великі іноземні та українські компанії, включаючи міжнародні корпорації, стартапи у технічних галузях.

ІНР Українська Англійська Російська

Бізнес-центр «Стенд» вул. Васильківська, 14, Київ, 03040, Україна Тел.: +380 44 495 4500 E-mail: office@mamunya-ip. com mamunya-ip.com

Corporate Law, Tax Law, Dispute Resolution and Conflict Management, Investment Support, Labor Law, Customs Law, Migration Law, Intellectual Property, Antitrust Law and Procurement

Leaders in IT/TMT, HoReCa, trade and pharma: GigaGroup, GigaCloud, Synchron, Trustee Wallet, Ipharm.Help, Myronivsky Hliboproduct (MHP), Gastrofamily (Family of Restaurants of Dmytro Borysov), Chornomorka, Yudgin Burger, Mirta Ukraine, Medical Data Management, Ukrainian Innovations

WND Ukrainian English Russian

37V Vasylkivska Street, Kyiv, 03022, Ukraine Tel.: +380 93 317 10 20 E-mail: mk@mklegalservice.com www.mklegalservice.com

Корпоративне право, податкове право, вирішення спорів та управління конфліктами, супровід інвестицій, трудове право, митне право, міграційне право, інтелектуальна власність, антимонопольне право та тендери

Лідери в галузі IT/TMT, HoReCa, торгівлі, фармацевтики: GigaGroup, GigaCloud, Synchron, Trustee Wallet, Ipharm.Help, Миронівський хлібопродукт (МХП), Gastrofamily (Сім'я ресторанів Дмитра Борисова), Чорноморка, Юджин Бургер, Мірта Україна, Medical Data Management, Українські Інновації

ІНР Українська Англійська Російська

вул. Васильківська, буд. 37В, Київ, 03022, Україна тел.: +380 93 317 10 20 E-mail: mk@mklegalservice.com www.mklegalservice.com

Maritime Law, Litigation, Corporate Law, Labor Law, Tax Law, International Arbitration, Mediation, Due Diligence, Private Clients, Business Security

SC V.Ships (Ukraine), SC CMA Ships Ukraine, ABC Maritime LLC, Wilhelmsen Marine Personnel (Ukraine) Ltd, BSM Crew Service Centre Ukraine, Solstad Offshore Crewing Services Ukraine Ltd, SC Danaos Ukraine, V.Ships Offshore Ukraine, M Shipping LLC

WND Ukrainian English Russian

11/6 Armiiska Street, Office 2A, Odesa, 65058, Ukraine Tel.: +380 48 737 8228; +380 50 199 8228 Fax: +380 48 737 8228 E-mail: office@srgv.com

Морське право, судова практика, корпоративне право, трудове право, податкове право, міжнародний арбітраж, медіація, юридичний аудит, приватні клієнти, захист бізнесу

ІНР Українська Англійська Російська

Вул. Армійська, 11/6, офіс 2а, Одеса, 65058, Україна Тел.: +380 48 737 8228; +380 50 199 8228 Факс: +380 48 737 8228 E-mail: office@srgv.com

MK Legal Service

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www.ujbl.info | The Ukrainian Journal of Business Law | May — June 2021

PROMART

INFORMATION FOR WRITERS

Writing for the UJBL Guidelines for Authors Thank you for your interest in submitting an Article to the Ukrainian Journal of Business Law. We welcome articles which illuminate business problems or issues currently confronted by the government, private enterprises, law firms, etc, by setting them within general legal or business context. Remember that you are writing a newspaper piece to which we have certain stylistic requirements. All articles are submitted on speculation; we do not guarantee publication. Articles must be original. When submitting an article, please also mind the following: • Language All articles are published in English. • Deadlines Deadlines are strict. Our schedules and production requirements may change; therefore, we reserve the right to publish any Article in a different issue than the one for which it was submitted. • Length Unless otherwise indicated by the editor, the articles must be maximum 13 000 characters with spaces. • Form of Submission Please provide two typed or word processed doublespaced manuscripts with wide margins. Manuscripts

may be submitted on disc (as MS Word files) or by e-mail to editor@ujbl.info.

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The Article should be of interest to experts in the field but also easily understood by non-specialists. Please explain references and terms that may not be easily recognized. The Article should highlight recent developments which should be mentioned in the lead. All articles must be written in the third person. Avoid “you,” “I,” “our,” and the imperative tense. The editors will write the headlines and any subheads that may appear. Your suggestions are helpful but not binding.

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The editors will consult the author about substantive changes to the copy. We reserve the right to copy-edit according to the UJBL style without notice to the author. Before publication, the editors may send edited material for the authors final proof. Authors receive two complementary issues. Additional copies may be ordered at the cost of reproduction.

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Task Force

The Ukrainian Journal of Business Law Ukrainian Attorney

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Ukrainian Law Firms 2021

Wolf Theiss

To submit your Article or advertise in the Ukrainian Journal of Business Law, please contact Olga Usenko, Editor, at +380 (0)44 495-2727 or e-mail quiries to editor@ujbl.info

Issue

Theme (In Focus)

Article Submission Deadline

Ad Space Closing Date

January — February

Infrastructure

closed

March — April

Bad Debts and Liability Management

closed

May — June

Antitrust

closed

July — August

Business Crime and Investigations

closed

25 June

September — October

International Arbitration

4 August

27 August

4 October

26 October

Back Issues & Subscriptions 44

Back issues and subscriptions may be obtained from Yuridicheskaya Practika Publishing, 10 Hoholivska Street, Kyiv, 01054, Ukraine; phone: (044) 495-2727; fax: (044) 495-2777; e-mail: subscribe@ujbl.info. Subscriptions are also available at any Ukrainian Post Office (subscription codes — 08087) and through private subscription agencies in Kyiv and other major cities.

May — June 2021 | The Ukrainian Journal of Business Law | www.ujbl.info

Ukrainian Energy Forum 2021

▶2021 EDITORIAL CALENDAR

November — December Energy

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The Ukrainian Journal of Business Law 10 Hoholivska Street, Kyiv, 01054, Ukraine Telephone: +38 (0)44 495-2727, Telefax: +38 (0)44 495-2727 E-mail: editor@ujbl.info

The Ukrainian Journal of Business Law, #5-6, 2021 In focus: Competition

Articles inside

Valeriia LEPSKA, Yelyzaveta KASHYNA

Olga IVLYEVA, Mykhailo RAZUVAIEV