The Ukrainian Journal of Business Law, #3, 2020 by Olga Usenko

EDITOR’S NOTE

The Power of Enforcement

riminal violations have exceeded the borders of states and continents. Criminal justice requires serious coordination by national law-enforcement authorities, smooth mechanisms of cooperation and exceptional communication. The heroes of our cover story, partners of AVER LEX attorneys at law Olga Prosyanyuk and Vitaliy Serdyuk, argue that Interpol provided the possibilities for prosecution of crime but the State of Ukraine often abuses these opportunities because of the deep background of political prosecutions. The extraterritoriality of legislation like the US Foreign Corrupt Practices Act and UK Bribery Act provoked a wave of investigations around the world. Furthermore, foreign authorities have started prosecuting Ukraine-related corruption cases. In addition, attempts by the US to enhance its enforcement power are driving the trend for extending jurisdiction. It should not take long to see the result. Our guest contributor, Syed Mujtaba Hussain from the UAE, presented the concept of setting up an International Financial Centre by sharing the successful experience of Dubai and Astana. It is certainly worth Ukraine considering this idea.

The Ukrainian Journal of Business Law March 2020 Vol. 18 No.3 GENERAL DIRECTOR Rustam Kolesnik EDITORIAL ADVISORY BOARD Oleksiy Didkovskiy (Asters) Sergei Konnov (Konnov & Sozanovsky) Sergii Koziakov (High Qualification Commission of Judges of Ukraine) 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 25А, "L" Dehtyarivska Street, Kiev, 04119, Ukraine Tel.: +380 44 495-2727 Fax: +380 44 495-2777 editor@ujbl.info www.ujbl.info

Happy reading, Olga Usenko

Founded and published by Yuridicheskaya Practika Publishing

The Journal (ISSN 1726-3085) is published monthly by Yuridicheskaya Practika Publishing, 25А "L" Dehtyarivska Street, Kiev, 04119, 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 2 березня 2020 року.

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March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

THE LEGAL GUIDE FOR FOREIGN BUSINESSMEN IN UKRAINE!

March 2020 Vol.18 No.3

CONTENTS

EXPERT OPINION

Sergiy Smirnov

International Crimes and Domestic Criminal Law

COVER STORY

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

IN RE

Sergiy Grebenyuk, Orest Stasiuk

Denys Nienov

Foreign Powers Investigating Ukrainians Request to Remove Information Regarding a Person from Interpolâ&#x20AC;&#x2122;s Database

ARGUMENT

Nikolay Kolesnikov

Yuriy Sergeyev, Iryna Radkovska

The Role and Challenges of the Whistleblower System in the Corporate Sector Maritime Piracy as International Crime and its Influence on Shipping

AVER LEX

Useful Mechanism

Syed Mujtaba Hussain

A Case for Setting Up Ukraine International Financial Centre

March briefing 4 Deals 6 Cases 8 Draft 10 Law Digest 12 News of the American Chamber of Commerce 14 Biznews

VENUE

Healthy Competition

CRUX

Legal Digest

www.ujbl.info | The Ukrainian Journal of Business Law | March 2020

DEALS MARCH 2020

Baker McKenzie assisted BSTDB

The Kyiv office of Baker McKenzie acted as Ukrainian law counsel to the Black Sea Trade and Development Bank in connection with their up to USD 70 million loan to Epicentr K LLC and Renvior Trading Limited. The loan will support the Group’s agriculture business program for 2019-2021, particularly the construction of three new and modernization of four existing grain silos and Serhiy Chorny the purchase of agricultural machinery. Baker McKenzie’s team was led by managing partner Serhiy Chorny with key input from associate Ganna Smyrnova.

Kinstellar — Ukrainian legal counsel to DEG

Kinstellar has acted as Ukrainian legal counsel to DEG-Deutsche Investitions-und Entwicklungsgesellschaft mbH, a development finance institution and subsidiary of KfW Bankengruppe, in connection with a USD 20 million credit facility for Nibulon, a leading agricultural commodities exporter and producer in Ukraine. In addition to the work that Andriy Nikiforov is usual for this type of transactions, Kinstellar’s team has also extensively advised DEG on the mortgaging of ships as well as on various types of vessels related to insurance. Kinstellar’s team advising on the transaction was led by Andriy Nikiforov, counsel, and included Anna Kalinichenko, Oleh Andreikiv, senior associates, Oleksiy Burchevskyy, knowledge lawyer, maritime and transport law, and Viktoria Pysmenna, associate.

AVELLUM advised on Ukraine’s new benchmark euro-denominated notes

AVELLUM acted as the Ukrainian legal counsel to the Ministry of Finance of Ukraine on the second breakthrough issuance of Ukraine’s euro-denominated notes. Ukraine raised EUR 1,25 billion at a record low coupon of 4.375%. The new notes mature in 10 years. This deal followed the EUR 1 billion 6.75% issue that Ukraine carried out in July 2019, which was the country’s first Euro offering in over a decade. The AVELLUM team was Glib Bondar led by senior partner Glib Bondar with support from as-

sociates Oleg Krainskyi, Mykola Falko, Mariana Veremchuk, Andriy Kornuta, and Vladyslav Heivandov.

Joint venture transaction between TIS Group and DP World

Kyiv-based CMS Cameron McKenna Nabarro Olswang has advised TIS Group on the English and Ukrainian law aspects of a joint venture transaction whereby DP World, one of the world’s largest port operators, enters Ukraine directly for the first time. As part of the transaction, DP World agreed to acquire control of TIS Container Terminal Ukraine, the deepest Graham Conlon and most technologically advanced container terminal in the Ukrainian Black Sea port of Yuzhnyi. The CMS team was led by corporate/M&A partner Tetyana Dovgan and Graham Conlon, managing partner of the Kyiv office, and included Vitalii Mainarovych, Diana Pysarenko, Mariana Saienko, Denys Hatseniuk, Olga Belyakova, Nataliya Nakonechna, Mykola Roman Shulyar Heletiy, Oleksandr Sytnyk, Olga Shenk and Vladyslav Kurylko and Christian Delgado (Amsterdam). Marchenko Partners advised DP World. The deal is being handled by the corporate team including partner Roman Shulyar, and associates Ruslan Yurchenko, Alexander Poznyakov and Bogdan Burlaka. Legal support on antitrust matters is provided by partner Oleksandr Aleksyeyenko and senior associate Sviatoslav Henyk.

Baker McKenzie advised shareholders of Biopharma

The Kyiv office of Baker McKenzie advised the shareholders of Biopharma, a leading Ukrainian manufacturer of pharmaceuticals and healthcare products, on the carve-out of its non-plasma business and its further sale to Stada AG, a global manufacturer of pharmaceuticals and consumer healthcare products. The Baker McKenzie team Viacheslav Yakymchuk was co-led by Kyiv office partners Viacheslav Yakymchuk, head of the Corporate M&A practice group, and Olha Demianiuk, head of the Healthcare & Life Sciences industry group, with

March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

DEALS MARCH 2020 key input from associates Andrii Finogin, Olha Sviatenka and Khrystyna Penyk, and London-based senior corporate associate Robert Gray. The team also included antitrust and competition partner Oksana Simonova and senior associate Olha Mikheieva.

Sayenko Kharenko advised on landmark EUR 1.25 billion Eurobond issue by Ukraine

Sayenko Kharenko has acted as Ukrainian legal counsel to BNP Paribas, JP Morgan and Raiffeisen Bank International, the joint lead managers of Ukraine’s record-setting EUR 1.25 billion Eurobond issue. The notes have a 10-year tenure and a coupon of 4,375% per annum, which is the lowest pricing for Ukraine’s euro-denominated debt. Sayenko Kharenko’s team was led by Igor Lozenko and

Igor Lozenko

included associates Oles Trachuk, Yurii Dmytrenko, and junior associates Oleksandra Maksymenko and Oleksandr Motin.

AVELLUM advised on Vodafone Ukraine acquisition and Eurobond financings

AVELLUM acted as the Ukrainian legal counsel to J.P. Morgan Securities Plc and Raiffeisen Bank International AG as the arrangers in USD 464 million bridge loan financing for Bakcell’s acquisition of PJSC VF Ukraine structured through purchase from MTS’s wholly-owned subsidiary Allegretto s.a.r.l of its 100% stake in Dutch subsidiary Preludium B.V., the sole shareholder in Vodafone Ukraine; and JP Morgan Securities Plc, Raiffeisen Bank International, Dragon Capital, and ICBC Standard Bank as joint lead managers on Vodafone Ukraine’s Eurobond offering of USD 500 million 5-year 6.2% loan participation notes, the proceeds of which were intended for, among others, the bridge loan’s prepayment. The AVELLUM team was led by senior partner Glib Bondar with support from senior associates Tetiana Mykhailenko and Anastasiya Voronova, and associates Oleg Krainskyi, Anna Mykhalova, and Mariana Veremchuk. Partner Vadim Medvedev, senior associate Anton Zaderyholova, and associate Yelyzaveta Kravtsova provided support on tax issues for the transaction.

www.ujbl.info | The Ukrainian Journal of Business Law | March 2020

CASES MARCH 2020

International Court of Justice obliged Russia to pay USD 50 billion to YUKOS shareholders

The Dutch Court of Appeal has revoked the decision adopted by the court of the lower instance to cancel USD 50 billion payment to shareholders of the now defunct Russian oil giant YUKOS. In April 2016, the Hague District Court revoked the decision adopted by the Permanent Court of Arbitration, which obliged the Russian state to pay indemnification to the shareholders of the company, which was once owned by Mikhail Khodorkovsky. The current decision can be appealed in the Supreme Court of the Netherlands. YUKOS shareholders filed a claim with the International Arbitration in The Hague back in 2005. In 2007, the court drew the conclusion that in the early 2000s YUKOS suffered a large-scale attack in Russia to make the company bankrupt, to seize its assets, and get rid of Khodorkovsky, who was its chairman, from political life. The Dutch court ruling of 2017 is similar to the decision adopted by the European Court of Human Rights in Strasbourg, which in 2014 ruled to recover about EUR 2 billion from Russia in favor of former shareholders in YUKOS. The Constitutional Court of Russia allowed the Russian Federation not to comply with the ECHR ruling by adopting a decision that the relevant ruling of the European Court of Human Rights following the claim filed by former YUKOS shareholders violated the provisions of the Russian Constitution.

Court ordered Google to disclose identity of user who left negative feedback

The Federal Court of Australia ordered Google to disclose personal information of an anonymous user who left a negative comment about the work of a dentist. Dr. Matthew Kabbabe stated that the user, writing under the nickname CBsm 23, advised to “stay away” from the dentist and called the received procedure “extremely improper and uncomfortable”.

The dentist asked Google to remove the feedback and, after being refused, to reveal the identity of the anonymous user, but the company once again declined his request, explaining that “there was no sufficient reason to investigate”. Kabbabe appealed to a court, which allowed him to file a defamation claim and ordered Google to disclose personal information, including names, phone numbers, locations and IP addresses of all users who may be involved in the publishing of the feedback. Google has already said it will not comment on any legal issues in this case.

Ukroboronprom won proceedings against Russian company

The Supreme Court specified that bankrupt banks could not be returned to the market without a relevant decision from the National Bank of Ukraine. Following the ruling by the Grand Chamber, the court’s decision to terminate insolvency is not a reason to suspend the temporary administration operations or to stop the bank’s liquidation procedure, as conducted by the state-run Deposit Guarantee Fund. Moreover, the Chamber concluded that courts of lower instances could not revoke NBU decisions on withdrawal of banks from the market solely on the basis of procedural violations. This court decision is crucial for proceedings pending between the National Bank of Ukraine, the Deposit Guarantee Fund and banks that have previously obtained court decisions that the NBU had declared them insolvent unlawfully.

Tesla granted permission to cut down forest at plant construction site in Germany Ukroboronprom has won the proceedings against a Russian company called AviaFED-Service in the case against the Artem plant. The Russian company demanded of return almost USD 2.3 million for agreements on the production of dual-purpose goods. The issue here is agreements concluded by the companies in 2014. The Russian Avia-FED-Service paid an advance to Artem and sought to recover these funds through a Ukrainian court following a decision adopted by the International Commercial Arbitration Court under the Russian Chamber of Commerce and Industry. Artem appealed to the court that the Russian company has been under Ukrainian sanctions since May 2018. The plant’s representatives also noted that fulfilling the order for the company of the aggressor state could threaten national security. A reminder that the Artem plant is part of Ukroboronprom and is a strategic manufacturer of air-to-air guided missiles, automated complexes for preparation and maintenance of aviation guided weapons of destruction, anti-tank guided missiles, as well as devices and equipment for aviation aircraft.

Deposit Guarantee Fund wins Ukrinbank case

The Grand Chamber of the Supreme Court, which considered a claim by Ukrincom to acknowledge it the successor to the bankrupt Ukrinbank, refused to uphold the claimant.

March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

On 15 February the Supreme Administrative Court of Berlin-Brandenburg ordered the suspension of tree felling on the outskirts of Berlin, where American electric car manufacturer Tesla planned to build its first Gigafactory plant in Europe, for the period required for the appeal against the court decision, which was filed by activists, to be considered. Tesla is building a large plant in Grunheide and plans to start producing electric vehicles in 2021. Following criticism from environmental groups, the company has already announced various measures to relocate wildlife from the affected areas. Tesla must relocate “forest ants, reptilians and five bats” from the area. The car maker has also promised to hang 400 birdhouses to mitigate the affect of forest devastation on bird habitats. However, on 20 February the Supreme Administrative Court of Berlin-Brandenburg rejected urgent claims filed by two environmental associations stating that the authorities had no right to grant Tesla permission to clear the forest, which the company has already started. The court’s ruling is not subject to appeal.

www.ujbl.info | The Ukrainian Journal of Business Law | March 2020

DRAFT MARCH 2020

Parliament took step towards exempting self-employed persons from UST payment

object of UST accrual is defined as income received, as stated in the explanatory note. Following the opinion of the parliamentary budget committee, the Ministry of Finance noted the risks of reducing the revenue side of the Pension Fund and the Social Insurance Fund budgets in the event of the draft being adopted in its final reading.

Legalization of lobbying activities in Ukraine proposed The Verkhovna Rada adopted Draft Law No. 2166, which established exemption of persons conducting independent professional activity from making unified social tax payments. Under current legislation, unified social taxpayers are divided into individual entrepreneurs and persons conducting independent professional activity. Establishing the obligation of UST payment without income does not meet the legal purpose of state regulation of this type of relationship and is inconsistent within the context of the Law itself, where the

The Draft Law On State Registration of Lobbying Entities and Lobbying Activities Conduct in Ukraine has been registered in Parliament. The document is intended to legalize lobbying activities in Ukraine and create a register of lobbying companies and lobbyADVERTISEMENT

March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

ists enabling anyone who so wishes to receive information on their activities for free. The Draft Law determines lobbying as the activity of an individual or a legal entity carried out from the time of state registration and for a monetary reward according to the terms of a concluded agreement on lobbying services, aimed at fulfilling the terms and provisions of such an agreement, as well as preparation, planning, coordination, research, other auxiliary activities, which are intended to fulfil the terms and provision of the agreement on provision of lobbying services when conducted. Moreover, the Draft establishes the definition of a person who has the right to be a subject of lobbying, rights and obligations of lobbying entities, mechanisms and tools for conducting such activities. The law also envisages mechanisms for monitoring activities in relation to lobbying entities. Amongst other things it establishes criminal liability for the provision of false information in the electronic registry of lobbyists. According to the Draft, lobbying organizations cannot be financed from the state budget of Ukraine.

www.ujbl.info | The Ukrainian Journal of Business Law | March 2020

LAW DIGEST MARCH 2020

Parliament cut rental fee for mining amber

Cabinet of Ministers approved Regulations on Financial Supervision Office

Analytics. Its remit will be to conduct risk analysis in relation to management of state resources followed by delivery of monitoring activities on high-risk transactions, to make it possible to move to the automation of processes and data processing in the information and analytical systems of the Financial Supervision Office.

National Bank allowed banks not to disclose all data on services for another 3 months The Verkhovna Rada adopted Draft Law No. 2441 in the second reading on establishing a rental fee for amber production by reducing the fee from 25% to 10%. The law also establishes a transition period until the end of 2020, during which the production cost will come to 5% of the value of extracted amber, and not 10%. By the end of 2021, the rental fee will be 8%.

Penalties for violating labor law reduced

President Volodymyr Zelensky signed Draft law No. 1233 into law, which commutes penalties for employers violating the Labor Code. The law introduces amendments to Article 265 of the Labor Code of Ukraine. Thus, instead of imposing a fine on employers who hired an employee without a labor contract, registered an employee as a part-time one when he/she actually was working full-time, or paid wages without accruing and paying a Unified Contribution for Compulsory State Social Insurance and taxes, the issuing of a written warning is proposed. If the same violation is repeated within one year, then such an employer will be subject to a fine of four times the minimum wage established by the law at the time of discovery of the violation for each employee in relation to whom the violation is committed. Fines for refusing to pay the minimum wage to employees called up for military service are also reduced. The relevant fine will be double the minimum wage. If the employer does not allow an inspection related to fulfillment of labor law requirements to be carried out, it is proposed to impose a fine in the amount of eight times the minimum wage. All other violations of labor law requirements will be subject to a written warning issued for employers. If within a year from the date of discovery of a violation such a violation is repeated, then the employer will be fined the sum of the minimum wage.

The Cabinet of Ministers has approved the Regulations on the Financial Supervision Office, which defines the main tasks, functions and powers of the new body. It is noted that the Financial Supervision Office will, among other things, carry out monitoring activities inside ministries, other executive authorities, state funds, compulsory state social insurance funds, state-financed institutions and public sector economic entities. Its powers will also cover enterprises, institutions and organizations that receive (received) funds from budgets of all levels, state funds and compulsory state social insurance funds, or that use (used) state or communal property. Monitoring activities will also be conducted for economic entities regardless of their form of incorporation following adoption of a court ruling in criminal proceedings. In particular, the Financial Supervision Office will be responsible for inspecting the following: — use and saving of public financial resources, fixed and other assets, including targeted, efficient and effective use of state and local budget funds; — compliance with legislation at all stages of budget processes related to state and local budgets; — compliance with procurement legislation; — intended use and timely repayment of loans (credits) obtained under state (local) guarantees; — implementation of investment projects and other projects (programs) supported by international organizations; — rightfulness and appropriateness of costs incurred by the beneficiaries (partners) within the framework of implementation of joint operational programs on border and cross-border cooperation; — status and reliability of accounting and financial reporting. The Regulations also envisage the establishment of the Institute of Financial

March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

The National Bank of Ukraine took into account proposals put forward by banks and established an additional three month period of adoption to the new requirements for disclosure of information on services on websites and in advertising. Requirements of banks will come in force from 2 June 2020 (earlier, requirements for websites were due to take effect from 2 March 2020). The main change to be introduced to the websites of banks and advertising is to provide consumers with reliable, truthful, up-to-date and sufficient information about services, full cost, terms of payment and risks. In February– May 2020 the NBU will, in unison with banks, to ensure that from June onwards consumers can easily get comprehensive information about banking services from financial institutions. From 2 June 2020, the National Bank dedicated unit, the Financial Services Consumer Protection Office, will start daily monitoring of websites of banks and advertising, as well as monitoring compliance with information disclosure requirements.

President signed law on single legal entity for Customs and Tax Services

President Volodymyr Zelensky signed a law establishing a new mode of operation for the State Customs and State Tax Services as a single legal entity, following which their territorial bodies will operate not as legal entities but as separate units. The document also establishes the transfer of customs officers to contractual positions, disclosure of impersonal customs information, the possibility of automated customs clearance, and increasing resources to combat smuggling via post.

www.ujbl.info | The Ukrainian Journal of Business Law | March 2020

THE CHAMBER

AmCham Ukraine President Andy Hunder met with U.S. Secretary of State Mike Pompeo

Andy Hunder, President of the American Chamber of Commerce in Ukraine, held a meeting with U.S. Secretary of State Mike Pompeo at the U.S. Embassy in Kyiv on 31 January, to deliver the voice of business in the course of the Secretary’s visit to Ukraine. Andy Hunder thanked Secretary Pompeo and the entire U.S. Department of State for providing support to all AmChams throughout 43 European countries. Mr. Hunder delivered the AmCham Business Climate Survey and provided tangible examples of realities of doing business on the ground, voicing member companies’ success stories. He stressed that the mood of business is upbeat, with 88% of AmCham members seeing increased growth in revenues and 65% increasing investment in Ukraine. “Ukraine is ripe for U.S. investment, and now is the time to invest in Ukraine. There is a need to shift the narrative on U.S.-Ukraine relations to focus on business and investment. Ukraine is going through a massive overhaul and the 600 members of the American Chamber of Commerce are

seeing growth and increased revenues for their business in Ukraine,” Andy Hunder said commenting. The parties also discussed rule of law, further cooperation with the IMF, unlock of the U.S. Export-Import Bank’s (EXIM) full financing capacity, and OPIC’s transformation into the U.S. International Development Finance Corporation (DFC).

March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

Andy Hunder thanked Secretary Pompeo for the constant support that Chargé d’Affaires, a.i. Kristina Kvien and the whole U.S. Embassy team provide to members. The American Chamber of Commerce in Ukraine sees business optimism growing and will continue to help businesses grow in Ukraine throughout 2020.

www.ujbl.info | The Ukrainian Journal of Business Law | March 2020

BIZNEWS MARCH 2020

Infrastructure Rail provider UZ and Deutsche Bahn signed memorandum of understanding and strategic partnership

Ukrzaliznytsia, Deutsche Bahn and its engineering division DB Engineering & Consulting signed a memorandum of understanding and strategic partnership that envisages provision of management and/or technical support by the German side. The document also establishes three stages of cooperation: — stage one: concluding a cooperation agreement on evaluation of UZ activity and development of an action plan. To do this UZ should draw up terms of reference and the desired terms of the agreement. It is noted that this stage should be carried out within 3 months. — stage two: project implementation. In the event of successful completion of stage one, the parties express their intention to enlist German railway personnel for the roadmap’s implementation. According to the document, this stage will last no longer than till 31 December. — stage three: DB E&C support in management. Approximate period for strategic partnership between UZ and DB is 10 years.

Regulatory Apple fined EUR 25 million in France for slowing iPhone

The Consumer Protection Office of France imposed a fine on Apple to the tune of EUR 25 million for failing to notify consumers that iPhone updates will slow down the operation of devices. “When consumers could not reset to an older version of their operating system, many were forced to replace their batteries or even buy a new phone,” said the CEO of the CPO. The case against Apple was considered following a complaint filed by a non-governmental organization claiming that the company was deliberately creating updates slowing its phones to encourage consumers to buy new ones. The investigation found no evidence of “deliberate action in the legal sense of the term”, said an official of the Ministry of Economy. However, consumers were not informed that their phones could be slowed by an iOS update, so Apple was found guilty of misleading. “The fine of EUR 25 million imposed on Apple should clearly remind companies of their responsibility to sell safe and sustainable products to consumers,” said Agnes Pannier-Runacher, Junior Minister at the Ministry of Economy. An Apple spokesman noted that “our goal has always been to create safe products valued by our customers and to ensure iPhone functioning as long as possible is part of it. We are satisfied with the investigation results.”

Telecommunications EU aims to limit Huawei access to building of 5G networks

According to EU guidelines made public on 29 January, EU member states have the right either to limit or prevent toxic 5G technology providers from accessing major parts of the telecommunications networks. These guidelines are primarily intended to address the concerns of a number of countries that Chinese companies, namely Huawei Technologies, cooperate with China’s intelligence services, which may cause risks to these countries security if they construct a 5G network. At the same time, the guidelines do not meet US requirements related to a total ban on Huawei. A certain country or company is not specified in the optional recommendations agreed upon with 28 countries of the bloc. The EU considers 5G to be a key way of stimulating economic growth and competing with the USA and China. Huawei, the world’s largest telecommunications equipment manufacturer, competes with Swedish Ericsson and Finnish Nokia. The guidelines aim to make EU countries assess the level of risk of suppliers at national or EU level and permit them to exclude toxic suppliers from the development of the main infrastructure. It is expected that EU countries will implement the guidelines by April and report on the relevant progress by June. On 28 January the United Kingdom decided not to grant Huawei access to a critical “core” of its mobile networks, abolish the company’s right to access strategic sites and to limit its share in 5G network periphery to 35%.

Lifecell reported UAH 1.1 billion of loss despite rise in revenue

Mobile operator Lifecell has reported a net loss of UAH 1.1 billion at the end of 2019, and if compared to 2018, the operator’s losses fell by 14.4%, the company noted in its financial statement. At the same time, the operator’s annual revenue grew 13.6%, up to UAH 5.9 billion. The company explains the revenue increase by growth in profits from the use of mobile Internet due to the ever-increasing traffic use within the network. According to the financial report, Lifecell’s revenues rose by 9.9%, up to UAH 1.56 billion in 4Q 2019. The operator’s active subscriber base grew by 1.4%, up to 7.4 million, while the total number of subscribers fell by 10.1%, to 8.9 million. At the same time, the company started earning 26.2% more per subscriber by increasing its average check to UAH 54. For the active subscriber base, this indicator rose to UAH 71.8 (by 25.3%).

March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

BIZNEWS MARCH 2020

Banking & Finance

Competition

JP Morgan predicts discount rate cut to 7.5% p.a. by year end

AMCU imposed fines of UAH 8.7 billion in 2019

JP Morgan expects the NBU discount rate to fall from the current 13.5% per annum to 11% in January 2020 and to 10% in March, as reported in the Global Emerging Markets Research issued in January. JP Morgan believes that opportunities for further strengthening of the UAH exchange rate are limited. “Despite the attractiveness of real return, we see that prospects for further UAH rate growth are limited as the NBU continues reconstitution of foreign exchange reserves. Moreover, we also consider that the currency is overrated,” the statement adds. The economy is still expected to enjoy 3.8% GDP growth in 2020.

Deposit Guarantee Fund sold banks’ assets worth UAH 265 million

Last week, the Deposit Guarantee Fund sold assets of 11 banks, which are managed by the Fund, for a total amount of UAH 264.72 million. In particular, the following assets were sold: — assets of PJSC VAB Bank worth UAH 234.36 million; — assets of JSC Delta Bank worth UAH 12.72 million; — assets of PJSC CB NADRA worth UAH 8.95 million; — assets of PJSC DIAMANTBANK worth UAH 3.42 million; — assets of PJSC CB Khreschatyk worth UAH 3.31 million; — assets of JSC RODOVID BANK worth UAH 1.42 million. Moreover, assets of the following banks were also sold last week: JSC VTB BANK, PJSC VBR, JSC Bank Finance and Credit, PJSC PLATINUM BANK, PJSC CB Investbank.

The EU and Ukraine signed agreement on allocation of EUR 26 million for small-size farming

In 2019, the Antimonopoly Committee of Ukraine imposed fines of UAH 8.7 billion on companies operating in Ukraine. Despite the large sum of fines, the economic result from AMCU activities for the state totaled UAH 4.3 billion, as some of the fines are being challenged in courts. According to AMCU Chairman Yurii Terentiev, a new branch of law has emerged in Ukraine, an independent new area of legal practice called challenging public procurement.

Sanctions BlaBlaCar halted operations in Crimea due to EU sanctions against Russia

BlaBlaCar, the French carpooling company, has ceased to provide its services in Russian-occupied Crimea occupied as a result of EU sanctions against Russia. At the same time, BlaBlaCar failed to specify when exactly the service stopped its operations in Crimea, but noted that it happened recently. When trying to find a companion to travel to Crimea or in the territory of the peninsula, the company website reports that “the service is not available in this region”. On 13 December 2019, the European Council in Brussels approved the continuation of economic sanctions against Russia.

Asset Recovery

Ukraine and the European Commission signed the agreement, following which the EU will allocate EUR 26 million for development of agriculture and small-size farms in Ukraine. The agreement was signed in Brussels during the 6th meeting of the EU–Ukraine Association Council. The aim of the agreement is to attract EU assistance for the development of a more inclusive and competitive agricultural sector of Ukraine focusing on the growth and sustainable development of small and medium-size farms and of small and medium-size enterprises. Funds will be allocated for supporting land reform by uniting the state land cadastre and the state register of property rights, reform of institutions and the land use system. Funds should also be allocated to institutional and sectoral reforms in the fields of agriculture and rural development, as well as to strengthen value chains in agriculture and to ensure access to funding for small-size farms through implementation of grant programs.

Ukraine ranked among top 5 countries in terms of asset recovery requests

Carrying out ARMA asset discovery and search activities, Ukraine is ranked among top five countries in the world to have filed the largest number of international requests through the Asset Recovery Network. Spain is the leader in terms of the number of requests registered, France is ranked second, and Switzerland is ranked third. Ukraine is ranked in fourth at the end of 2019, leaving the Russian Federation behind, with the latter closing the top 5 world leaders in this field. A reminder that over the past year more than 266,000 items of property and property rights, as well as more than UAH 30 billion in authorized capital, over UAH 3.5 billion in securities, have become the subject of detection and search activities carried out by ARMA.

www.ujbl.info | The Ukrainian Journal of Business Law | March 2020

EXPERT OPINION

International Crimes and Domestic Criminal Law

What are International Crimes?

International crimes include especially dangerous acts violating the fundamental principles and norms of international law, which are of essence to the international community and adversely affect the system of international relations overall, especially during armed conflicts. To minimize the number of victims, international law regulates the conduct of parties to an armed conflict. It defines the actions qualifying as violations of the laws and customs of war. Serious violations of the laws and customs of war also qualify as war crimes. On 8 August 1945, the Charter of the International Military Tribunal â&#x20AC;&#x201D; Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis was adopted in London. This Charter was the first document that classified international crimes; at a later stage, such classification became the basis for other international acts. According to the Charter, international crimes include the following: a) crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; b) war crimes: namely, violations of the laws or customs of war. Such violations include, but are not limited to, murder, illtreatment or deportation to slave labour or for any other purposes of civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or persons on the seas; killing of hostages; plunder of public or private property; wanton destruc-

International crime is a negative social phenomenon detrimental to the development and national security of individual states

S. Riabokon

nternational crime is a negative social phenomenon detrimental to the development and national security of individual states. It has overstepped the borders of states and turned into a serious international threat that requires cooperation between states globally.

March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

Sergiy SMIRNOV is a partner at Sayenko Kharenko

tion of cities, towns or villages, or devastation not justified by military necessity; c) crimes against humanity: namely, murder, extermination, enslavement; deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

EXPERT OPINION INTERNATIONAL CRIME Other international documents that also define the types of international crimes are the four Geneva Conventions of 1949 and their Additional Protocols, which were ratified by most countries, including Ukraine (in 1954). Article 3 — which is common to the said four Geneva Conventions — establishes the provisions addressing the conflicts that are not of an international character. There are various types of such conflicts. In particular, they include traditional civil wars, internal armed conflicts covering the territory of other states, or internal conflicts involving, in addition to the government of a relevant jurisdiction, third states or multinational forces. The said Article 3 establishes fundamental non-derogable rules. It encapsulates the key provisions of the Geneva Conventions and makes them applicable to noninternational conflicts. Under the said Conventions and their Additional Protocols, war crimes and crimes against humanity include the following:

— willful killing; deliberate murder and extermination of non-combatants (including the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population); — enslavement, which means the exercise of any or all of the powers attached to the right of ownership over a person (including trafficking in persons, particularly women and children); — deportation or forcible transfer of population, which means forced displacement from the area in which they are lawfully present, without grounds permitted under international law; — torture, which means the infliction of physical or mental suffering upon a person in custody or under control; — sexual slavery, or any other actions of a similar nature, which cause great suffering, serious damage to physical or mental health. The principle of non-application of the statute of limitations, as set out in the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity of 1968, applies to the said crimes. International crimes also include the following: — the crime of apartheid (separation, isolation) — the policy of racial segregation, discrimination and oppression of ethnic groups; — genocide — actions committed by persons exercising or directing state powers with the intent to destroy, in whole or in part, any national, ethnic, racial or religious group. — racism (racial discrimination) — differentiating in any manner, excluding, limiting or giving preference based on the recognition of a race, color, descent, national or ethnic origin.

International Criminal Court and International Crime

International crimes are prosecuted by multiple international and domestic courts; in particular, by the International Criminal Court, which is seated in The Hague. The International Criminal Court is a standing judicial body that is authorized to exercise jurisdiction over persons for the gravest crimes of international concern and is complementary to the national systems of criminal justice. The International Criminal Court was established pursuant to the Rome Statute (the “Rome Statute”) adopted in 1998. Formally, the Interna-

tional Criminal Court began functioning on 1 July 2002. In addition to war crimes, modern international law defines three more groups of actions as international crimes: aggression, genocide and crimes against humanity. The essential elements of such crimes are set out in multiple conventions, including but not limited to the Rome Statute of the International Criminal Court. In particular, under Article 5 of the Rome Statute, its jurisdiction is limited to the most serious crimes of concern to the international community, specifically: a) the crime of genocide; b) crimes against humanity; c) war crimes; d) the crime of aggression. Crime of genocide For the purpose of the Rome Statute (Article 6), “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, such as: killing the members of a group; causing serious bodily or mental harm to the members of a group; deliberately creating for a group living conditions intended to destroy it in full or in part; imposing measures intended to prevent births within a group; forcibly transferring children of one group to another group. Crimes against humanity Article 7 of the Rome Charter defines “crimes against humanity” as any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization, or any other form of sexual violence of comparable gravity; persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law, in connection with any act within the jurisdiction of the Court; forced disappearance of persons; the crime of apartheid; other inhuman acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health.

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EXPERT OPINION INTERNATIONAL CRIME War crimes The International Criminal Court also has, as already mentioned, jurisdiction over war crimes, in particular when they are committed as part of a plan or policy, or when such crimes are committed on a large scale. A key feature of war crimes is that they are committed in the context of an armed conflict. Crimes against humanity similar in their attributes are committed in the context of organized violence, namely when there is a plan or policy of a large-scale attack on a civilian population. Article 8 of the Rome Statute enshrines actions that may constitute war crimes. In particular, war crimes include: a) grave breaches of the Geneva Conventions of 12 August 1949, namely any of the acts against persons or property protected under the provisions of the relevant Geneva Convention; b) other serious violations of laws and customs applicable in an international armed conflict within the established framework of international law; c) in the case of an armed conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949; d) paragraph (c) applies to armed conflicts not of an international nature and, therefore, does not apply to situations of internal disturbances and tensions such as riots, isolated and sporadic acts of violence, or other acts of a similar nature; e) other serious violations of the laws and customs applicable to armed conflicts of non-international character within the established international law framework. It should be noted that Article 8 of the Rome Statute contains about 50 essential elements of a war crime.

International crime and issues of Ukrainian legislation

At present, the Criminal Code of Ukraine (the CCU) does not clearly provide for any criminal liability for crimes against humanity and for war crimes which constitute a violation of customary — rather than conventional — international humanitarian law. This is a highly sensitive problem in view of Ukraine’s desire for European integration and the obligations undertaken by the State of Ukraine. The Parliamentary Assembly of the Council of Europe has addressed the issue of Ukrainian legislation on at least two occasions (2016 and 2018). In particular, it called on the Ukrainian authorities to “bring the

Creating an efficient investigation system for crimes involving torture and cruelty, inhuman or degrading treatment is one of Ukraine’s priorities in the current situation Criminal Code and the Criminal Procedure Code of Ukraine into line with the provisions of international humanitarian law and criminal law”. As an example, we would suggest looking into Article 438 of the Criminal Code of Ukraine, which contains only a few specific references to war crimes: cruel treatment of prisoners of war or civilians; forced labour for civilians; plunder of national resources in an occupied territory, and application of war methods prohibited by international law. The said Article suggests investigators search for other offences in international treaties approved by the Ukrainian Parliament as binding. Also, the Criminal Code of Ukraine lacks an article addressing forced labour as a type of war crime. Another area of concern is the normative regulation of criminal liability for sexual violence during military actions. For example, during the armed conflict in Donbas, human rights defenders observed such forms of sexual violence as rape, threats of rape, forced prostitution, sterilization, genital mutilation, forced nudity, demonstration of nudity in public, etc. It is important to note that, pursuant to the Decree of the Cabinet of Ministers of Ukraine No. 1393-р, the Action Plan on implementing the National Human Rights Strategy for the period until 2020 (the “National Strategy”) was approved on 23 November 2015. The National Strategy, in particular, provides for actions (including those related to amendments to current legislation) aimed at: a) complying with the provisions of international law to protect the lives of civilians in temporarily occupied territory of Ukraine; b) establishing an effective system to investigate crimes related to torture, cruel, inhuman or degrading treatment or punishment, including forced disappearance of persons. Within implementation of the National Strategy and to fill in the gaps in Ukrain-

March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

ian legislation, human rights organizations and the Ministry of Justice of Ukraine worked together to produce the Draft Law of Ukraine On Amending Certain Legislative Acts to Ensure the Harmonization of Criminal Law with International Law. The provisions of the Draft Law are intended to ensure that so-called substantive offences (genocide, aggression, crimes against humanity and war crimes) are criminalized under international law; to ensure compliance with international obligations on preventing the impunity of such crimes; and to improve the legal regime providing for the maximum criminal liability for torture, as may be established by modern international law. The provisions of the Draft Law as a whole form several conceptual blocks: 1) provisions addressing the autonomous regime of criminal liability for the crimes of aggression, genocide, crimes against humanity, and war crimes: Article 81 of the CCU, amendments to Articles 8, 44, 49, 68, 75, 80, 963 of the CCU, amendments to section XX of the Special Part of the CCU, amendments to the Law of Ukraine On Application of Amnesty in Ukraine; 2) provisions providing for structural changes in the legislation of Ukraine on criminal liability which arise from the previous group — proposed Articles 2361, 2951 of the CCU, proposed Section XX of the Special Part of the CCU; 3) provisions aimed at improving the legal regime of criminal liability for torture — amendments to Articles 44, 49, 68, 75, 80, 963, 127 of the CCU. At present, the said Draft Law has already been passed in the first reading and has been approved as a basis for future legislation. At the same time, on 27 December 2019 one more Draft Law of Ukraine On Amending Certain Legislative Acts on the Implementation of International, Criminal and Humanitarian Law was also registered in the Verkhovna Rada of Ukraine. However, it is important to note that the said Drafts Law of Ukraine will not resolve the international crime problems that have accumulated, given the current political situation and developments in eastern Ukraine, as well as the agreements (the Minsk Agreements) reached within ongoing negotiations. Nevertheless, creating an efficient investigation system for crimes involving torture and cruel, inhuman or degrading treatment is one of Ukraine’s priorities in the current situation. END

www.ujbl.info | The Ukrainian Journal of Business Law | March 2020

IN RE Foreign Powers Investigating Ukrainians

kraine does not seem to be short of anti-corruption cases. However, local law-enforcement authorities are not the only player in Ukrainian anticorruption enforcement. Every now and then foreign authorities start prosecuting Ukraine-related corruption cases. In recent years cases with a Ukrainian nexus have been spotted in Europe, America and even Asia.

US Foreign Corrupt Practices Act

The FCPA is well known to readers interested in business and compliance, and there is lots of overview material available, so we won’t spend much time discussing it. However, we cannot omit it in an article with such a headline. In simple terms, the FCPA is the US law penalizing companies with a US nexus for bribing foreign officials all over the world. Thus, it is applicable in cases when such bribery takes place in Ukraine. There are a few cases involving Ukrainian nexus that have invoked the US FCPA: Teva Pharmaceuticals, ADM, IBM, Affinia Group, Analogic Corporation. It is no wonder as the US, armed with FCPA regulations and acting through Securities and Exchange Commission and Department of Justice, is known as a major player in prosecuting cases abroad. As an example of FCPA enforcement, in 2013 Archer Daniels Midland (ADM) and its Ukrainian unit pleaded guilty to violating the FCPA. According to the plea agreement between 2002 and 2008 about USD 22 million were paid to third parties to be further provided as bribes for Ukrainian tax officials to secure value-added tax refunds. Different mechanisms were created

Sergiy GREBENYUK is a partner at Asters

Orest STASIUK is a counsel at Asters

to provide the payments, including artificially inflating contracts or faking them. For instance, according to DOJ files, one of the instruments invoked was overpaying the third-party vendor for commodities. Another included purchasing unnecessary insurance policies so as to generate extra funds. Following the FCPA investigation, the company paid a total of USD 54.3 million to the US government.

prosecutors going after Ukrainian individuals

Another, less known part of US enforcement, are attempts of US prosecutors to hold liable foreign-based individuals under the FCPA in the event of alleged bribery with a US nexus. Because of complicated political and jurisdictional elements in the case of Ukrainian businessman Dmytro Firtash we won’t discuss it in detail, though this is an example of such an attempt by US prosecutors. Another example of such an attempt is the case of EDAPS, a consortium focused on security & identity products. In 2014 two Ukrainian owners of EDAPS faced charges of corruption in the USA. The US prosecutor alleged that Ukrainians obtained benefit for their business via alleged bribing of an employee of the ICAO (International Civil Aviation Organization — a UN agency, dealing with, inter alia, standardizing identity documents). The case was pushed back as the defense invoked a jurisdiction aspect, as the defendants were not US citizens and the ICAO was not of American origin. The prosecution pursued allegations that donations made by the US government to the

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ICAO could be viewed as an appropriate US nexus. The approach of the prosecutors was heavily criticized by the judge, who dismissed the charges and stressed that there had been no US nexus and the defendants were foreigners.

Kazakhstan and Croatia — bribery in Ukrainian arms trading

America may remain the best known global enforcement power, but it’s not the sole country pursuing corruption-related charges against Ukrainians. In the middle of December 2012 devastating headlines hit the Kazakh press: a Kazakh military aircraft crashed, taking the lives of 27 individuals on board, including several state officials. A rapid investigation uncovered reasons for the crash, including equipment failure. Before long two Ukrainian officials were arrested in Kazakh airport — head of a department at Ukrspetsexport (Ukrainian state-owned entity specializing in the sale of Ukrainian weapons) and his deputy. Ukrspetsexport was the contractor who repaired the Kazakh aircraft before the crash. Kazakhstan was on the rush to punish those linked to the tragedy — two Ukrainian officials were sentenced in a couple of months (July 2013) with a jail term of 6.5 years. The verdicts revealed the allegations, that between 2011 and 2013 Ukrainian officials had given circa USD 1.5 million in bribes to Kazakh authorities to obtain fruitful contracts for repairs of Kazakh aircraft, including a USD 500,000 bribe for the contract, which presumably preceded the crash. From the Kazakh side, one of the officials was sentenced to 11 years in prison for taking the bribe.

IN RE ANTI-CORRUPTION Later in 2014 a similar investigation was launched in Croatia. Although Ukrainians did not face any charges, the indictments within the case revealed that employees of Ukrspetsexport had allegedly bribed an official of the Croatian Defense Ministry to obtain a contract on aircraft repair worth EUR 17.6 million. According to the files of the Croatian case the jets were never duly repaired and some of them were taken out of service.

debarment

When it comes to alternative types of enforcement, it is worth noticing the debarment system of development banks. Debarment is an administrative sanction, imposed by the World Bank on companies or individuals engaged in adverse practices (i.e. corruption, fraud, coercion, collusion or obstruction) regarding the projects financed by the World Bank. Application of debarment means that an individual or a company will not be able to work in the World Bank’s financed projects. To be practical, we provided an example of the World Bank enforcement regarding Ukrainian companies. In 2016 the World Bank released information regarding debarments in the case of Incom (Information Computer Systems) — 22.5 years of debarment for Incom, 6 and 7 years of debarment for other companies involved, and debarments for officials of the above entities. According to the information disclosed the World Bank Integrity Vice Presidency (INT) revealed that Incom had paid bribes and had engaged in collusive and corrupt behavior in relation to the awarding of three IT contracts worth approximately USD 43 million. It is notable that this was one of the largest debarments in the history of World Bank enforcement. A major part of the harsh punishment was attributed not only to underlying collusive and corrupt behavior, but to the fact of multiple attempts made to obstruct the World Bank’s investigation.

Switzerland — money

laundering case brought for trial

Another trend we noticed in recent years is that foreign prosecutors institute investigations having focused on money laundering of alleged proceeds of corruption upon receipt of information about a crime allegedly committed in Ukraine. An example of a Swiss investigation on money laundering, which originated

S. Riabokon

World Bank

Bribe in Ukraine — trial in the US

The overall tendency for extending jurisdictions and creating new venues for more enforcement overseas is clear

from Ukraine, is a case related to tenders of the state-owned company Enerhoatom. The case includes a couple of episodes, one of which concerns the alleged use of influence of Ukrainian official to ensure that a Czech company won Ukrainian public procurements on the buying of equipment for Enerhoatom. It is alleged that in return the Czech company transferred 15-20% of the value of tender prices to an offshore company controlled by a Ukrainian official. While the criminal cases opened in the Czech Republic and Austria focused on their citizens involved in the alleged schemes, Switzerland opened a case against the Ukrainian official on money laundering charges, since the accounts of the offshore company were located in Swiss banks. In December 2019, Swiss prosecutors transferred the case to a court, accusing the Ukrainian official of laundering EUR 2.8 million.

Last, but not least, should we expect new cases and more enforcement? Recent legislative proposals in the US suggest that we should. In 2019 the Foreign Extortion Prevention Act (FEPA) was submitted to the US Congress. The changes suggest criminalizing the bribery of foreign officials, requiring no nexus of an official to the USA. If adopted, foreign officials would be liable for extortion, request, receipt or consent to receive a bribe for abuse of office with punishment by a fine or imprisonment for up to two years. Experts discuss that one of the goals of the FEPA is to protect US businesses from extortion of bribes abroad. If the new law is adopted, a bribe may well become a headache not only for companies, but also for officials. And this makes sense, since for US law-enforcement there will be only one venue of identification of a possible violation, namely the report of the company in question. Although the FEPA initiative raises a wide range of questions regarding its implementation (i.e. how to identify a violation; how to collect evidence in another jurisdiction; how to ensure adequate rights for defense; how such “universal jurisdiction” will comply with human rights standards) and its approval is currently pending, it clearly shows the overall tendency for extending jurisdictions and creating new venues for more enforcement overseas.

www.ujbl.info | The Ukrainian Journal of Business Law | March 2020

END

IN RE Request to Remove Information Regarding a Person from Interpol’s Database

ver the last six years the activities of Interpol in Ukraine have been making big news, which is, first and foremost, due to a number of politicians and officials fleeing its territory, and due to the efforts made by Ukrainian law-enforcement authorities to locate them using this organization’s channels and means. The main function of Interpol is to create and maintain various information bases through the assistance of which law-enforcement agencies of 194 member countries may cooperate. As Interpol officials confirm, National Bureaus sometimes abuse their rights when submitting requests for publishing information in the organization’s databases. This results in violation of the rights of certain persons, especially in case of publication of “red notices” stipulating for detention in any Interpol member country as of persons avoiding criminal liability, with the possibility of their subsequent extradition. It is for the protection of individual persons from such abuses that Interpol’s Rules on the Processing of Data establish the procedure for the removal of information about an individual person from the organization’s database. As far as the types of alerts (notices) are concerned, there are eight (8) of them in total, seven (7) of which are color-coded depending on their purpose: — red — to seek the location and arrest of persons avoiding criminal liability with the possibility of his/her further extradition; — blue — to collect additional information about a person or find a person who is of interest to a pre-trial investigation; — green — to provide warning about a person’s criminal activities, i.e. information about potential offenders; — yellow — to help locate a missing person or identify a person who is unable to identify himself/herself;

Over the last six years the activities of Interpol in Ukraine have been making big news

— black — to seek information on unidentified bodies; — purple — to seek or provide information on modus operandi, objects, devices and concealment methods used by criminals; — orange — to warn of an event, a person, an object or a process representing a serious and imminent threat to public safety. As long as the “red notice” is the most burdensome in terms of imposing restrictions on the rights of a person, which actually means putting a person’s name on the international wanted list, the article further analyzes the grounds for removing this type of notice from Interpol’s information base. The General Secretariat of Interpol (hereinafter — the “General Secretariat”) is the body responsible for publishing information in Interpol’s databases and removing such information from such databases. In its turn, the Commission for the Control of Interpol’s Files is the body responsible for ensuring that the processing of personal data by the General Secretariat complies with the applicable rules of Interpol. The said Commission expressly reviews requests for the removal of data from

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Denys NIENOV is an attorney at law at Ilyashev & Partners

Interpol’s Information System and makes decisions to be carried out by the General Secretariat. The publication of the “red notice” implies going through the following stages: — serving a request by investigator/ prosecutor to the National Bureau; — verification of the request for compliance with international acts conducted by the National Bureau; — further to successful completion of verification, the National Bureau submits the request to the General Secretariat; — follow-up verification of the request by the General Secretariat; — the publication of the “red notice” by the General Secretariat with the provision of information to member countries. It is possible to find out about the publication of a “red notice” regarding a person by sending a request to the General Secretariat, since only a small part of such alerts is published on Interpol’s official web-site. Interpol’s Rules on the Processing of Data stipulate no special requirements as to the form and content of the request for the removal of information from Interpol’s database (hereinafter — the Request) except that the request must be drafted in one of Interpol’s working languages: English, Spanish, French or Arabic, and accompanied by the completed special application form posted on Interpol’s website, including copies of documents in chronological order which justify the request. Starting their work on the request, the attorneys must hold a discussion with the principal, during which they verify the information to be included in the document: the person’s biographical data (in chronological order), the nature of the criminal prosecution, the main procedural violations in the course of its execution, motives for persecution (political, religious, economic, etc.), documents confirming the said information and the contact persons

IN RE who possess the documents/information. It is also important to support the arguments of the request by publication of reputable mass media sources, first and foremost, sources from the USA, GB and European Union. Of great importance in the process of provision of reasoning of the request are references to violations of the Convention for the Protection of Human Rights and Fundamental Freedoms and of the precedents of the European Court of Human Rights during the investigation of criminal proceedings. The main reasons for the removal of the publication of “red notice” include the following: 1. a request by the National Central Bureau or international entity didn’t comply with Interpol’s rules, specifically with Articles 2(1) and 3 of its Constitution, as well as with the obligations imposed on the requesting entity under international law. According to Articles 3 of the Constitution it is strictly forbidden for the Organization to undertake any intervention or activities of a political, military, religious or racial character. For example, to confirm the political nature of persecution, which is one of the most common reasons for removing information from databases, an attorney may refer to the principal’s participation in elections, rallies, his holding a membership in a political party, principal’s holding a political post (minister, etc.) in the executive authorities, performance of activities that stirred public outcry or resulted in any conflict with the country’s circles of power or their representatives. In particular, membership in the Communist Party of Ukraine, which is currently prohibited by Ukrainian legislation, can suggest that persecution is of a political nature. 2. the request for extradition was not received by the competent authority within a period of one month (in accordance with the Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Cases of 22 January 1993) or other terms provided for by the relevant international treaties, from the date of the person being placed under detention. 3. provision of insufficient information about the person. 4. provision of insufficient court-related information, including information about the criminal activities of the wanted person, including the time and place of alleged criminal actions. 5. no reference to the effective decision to detention/arrest of a person.

S. Riabokon

INTERPOL

The General Secretariat of Interpol is the body responsible for publishing information in Interpol’s databases and removing such information from such databases

6. no reference to particular provisions of criminal legislation (indicating the wording provided by law) that were violated by the person. 7. procedural violations of the legislation of the requesting State (for example, violations of the procedure of serving the notice of suspicion, unreasonable nature of the suspicion, violation of the rights of a person during the process of making procedural decisions in criminal proceedings, other procedural violations established by court decisions). The Commission for the Control of Interpol’s Files adopts a decision on a request for deletion of data within nine months from the date on which the request was declared admissible.

The Commission for the Control of Interpol’s Files may decide that the circumstances of a particular request warrant an extension of that time limit. Any such extension shall be reasonable, promptly communicated to the General Secretariat, the source of data and the applicant, and shall also be explained in the decision itself. The written decision of the Commission for the Control of Interpol’s Files will be provided to the General Secretariat within one month from the date on which the decision was made. The General Secretariat shall implement a decision within one month from the date on which it was received, unless it seeks further clarifications required for implementation of a decision. In the latter case, the General Secretariat shall proceed with the implementation within one month from the date on which the clarifications were received. Applications for the review of decisions made by the Commission for the Control of Interpol’s Files can be made only when they are based on the discovery of facts which could have led the Commission for the Control of Interpol’s Files to draw a different conclusion if that fact had been known at the time when the request was being processed. Applications for review must be made within six months after discovery of such a fact. END

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AVER LEX

COVER STORY

Useful Mechanism The white-collar crime practice is gaining a more internationalized flavor along with the overall international nature of business and law. With the new wave of criminal proceedings in our country, criminal defense attorneys face the necessity to apply the procedures of international cooperation, extradition and wanted lists. Olga Prosyanyuk and Vitaliy Serdyuk, partners of Kyiv-based AVER LEX attorneys at law are confident that the quality of work is crucial for both sides, prosecution and defense, when it turns to usage of these special mechanisms. Referring to recent practice, both outlined that the State of Ukraine often abuses possibilities provided by Interpol because of the deep background of political prosecutions.

UJBL In which areas is international cooperation in criminal procedure present? Olga Prosyanyuk: The first association with the term “international cooperation” is usually linked to the procedure of an international wanted list and extradition. However, application of international cooperation between the states is much broader. Ukrainian law, in addition to what was specified, envisages a number of quite effective mechanisms for the carrying out of procedural actions by one state, which are required for effective pre-trial investigation, trial or enforcement of a verdict. Notably, international cooperation should not be viewed solely in the context of criminal prosecution or conviction of an individual. In practice, we have come across situations when international legal assistance from another state ensured compliance with human rights. The Criminal Procedure Code of Ukraine determines the scope of international cooperation during criminal proceedings, which includes delivery of documents, performance of certain procedural actions, extradition of persons, who committed a criminal offense, temporary transfer of persons, transfer of criminal prosecution, transfer of convicted persons and enforcement of verdicts.

In practice, in addition to the extradition procedure we believe that delivery of procedural documents and carrying out questioning are truly useful mechanisms.

UJBL How would you describe international cooperation development trends for achieving the tasks of criminal justice? What influences them? Vitaliy Serdyuk: The use of international cooperation in criminal proceedings is no longer a little known practice. Taking into consideration the large number of cases, based on political persecution, and cases in which one of the elements is registered in a foreign jurisdiction, lawyers are increasingly faced with the need to defend or represent interests as part of procedural actions carried out within the procedure of international legal assistance. This is primarily about the situation when Ukraine is the initiator of international cooperation. In these cases as well, the law seems to have foreseen everything in detail, although the factual use of international legal assistance, duration of the procedure and its success often depend on political will, the position taken by the leaders of law-enforcement agencies and Ukraine’s relations with a specific country (which is involved in particular international cooperation).

March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

These conclusions, however, can only be drawn on the basis of the results of practice of law. At the same time, Prosecutor-General’s Office, NABU, Ministry of Justice are the competent Ukrainian agencies authorized to carry out international cooperation. Their work should have provided an opportunity to outline the trends and follow statistics. However, detailed statistics of the results of work in the area of international cooperation in criminal proceedings do not provide too much insight. It is, for the most part, either non-existent on the websites of the corresponding agency, or is provided in a very limited form — the figures that make it impossible to draw any conclusions regarding the subject matter of international legal assistance, its duration, etc.

UJBL Which countries are most closely

involved in this cooperation? What are the reasons behind it? V. S.: International cooperation in criminal proceedings is carried out by Ukraine pursuant to multilateral and bilateral international treaties. In the event that there is no international agreement or treaty, international legal assistance can be provided on the basis of a request of another state or on the basis of reciprocity.

AVER LEX

AVER LEX Year of establishment: 2012 Location: Kyiv, Ukraine Number of partners/lawyers: 5/35 CORE PRACTICE AREAS Criminal Law/White-Collar Crime Litigation Tax

www.ujbl.info | The Ukrainian Journal of Business Law | March 2020

AVER LEX

COVER STORY

The most frequent are rejections of extradition requests related to a person whose extradition is requested by Ukrainian agencies, being granted citizenship of the country, where such person was detained. Many such rejections are related to the discovery of elements of political persecution. All of the above points to either a lack of substantiation of the position of Ukrainian law-enforcement agencies (Ministry of Justice), insufficient body of evidence, poor communication and the failure to monitor data on an ongoing situation.

There have been cases when requests by Ukraine have been rejected due to the absence of the body of evidence, which also points to the level of quality of work According to the data of Ukraine’s Ministry of Justice regarding the list of bilateral and multilateral international agreements in the sphere of legal assistance and legal cooperation, Ukraine has legal grounds for cooperation in civil and criminal cases with 195 countries. Furthermore, news on the signing of new agreements on mutual legal assistance is published on a regular basis. Once again, the fragmented nature of information about the results of work of government agencies in the sphere of international cooperation makes it impossible to determine the list of states with which Ukraine has the most effective international cooperation. However, based on publicly available information, we can conclude that these are mainly countries on the Eurasian continent. In cases from the practice of our legal team, in particular, the Russian Federation, Republic of Panama, Republic of Cyprus, Republic of Latvia, USA, Republic of Belarus were involved in international cooperation with Ukraine.

UJBL Do you believe that mistakes

have been made in Ukraine’s activity regarding cooperation for the investigation of cases containing an international element? O. P.: The procedure of international cooperation consists of many components, formalities and several levels of verification. But in a situation when our lawenforcement agencies are “chasing” specific reports, indicators or a specific task to complete something as fast as possible, it does have an impact on the quality of work. Also, it seems that Ukrainian lawenforcement agencies do not have a worked-out consistency of work within the framework of international cooperation. In particular, this is related to coming to agreement with another party on the terms of this work. For example, regarding extradition, there have been cases when requests by Ukraine have been rejected due to the absence of the body of evidence, which also points to the level of quality of work.

March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

UJBL How successful is the involvement of Interpol and issue of Red Notices, both in the context of Ukraine and the world? What does this success depend on? How substantial could the political factor be in this? V. S.: First and foremost, Interpol deals with several categories of cases, such as search of a person with the objective of extradition, providing information about potential offenders, search for missing persons, etc. There are a total of eight types of notifications (enquiries) that Interpol deals with. The search for a person with the objective of extradition is the most popular and most discussed type of notification. Speaking in the context of the fight against crime on a global level, the involvement of Interpol in the search for a person is an effective mechanism for finding and detaining the wanted person and application of the extradition procedure. This mechanism is also frequently used by Ukraine. However, in cases when states abuse the possibilities of Interpol and use the agency to persecute people usually no results can be expected. Specifically, the Constitution of Interpol prohibits the agency to interfere in cases of a political, military, religious or racial nature. Interpol observes this rule strictly. The conclusion can be drawn that in recent years Ukraine has started to abuse the possibilities provided by Interpol and received many rejections due to the discovery of elements of political persecution. For example, in 2015, Interpol removed the fourth President of Ukraine, Viktor Yanukovych, from its wanted list. This work, however, is carried out way overly publicly, accompanied by PR stunts by the leaders of law-enforce-

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ment agencies, dismissals and sweeps of entire teams of government agencies. If the legal defense is effective, it is possible to discover mistakes and political motivation in the prosecution of specific officials in the work of law-enforcement agencies. As a result, many rejections from Interpol were received in respect to requests for issuing Red Notices.

UJBL What are the opportunities avail-

able for using the “in absentia” procedure in a case in relation to the international wanted list, and how do Ukrainian law-enforcement bodies solve the situation when Interpol refuses to issue a Red Notice? O. P.: For the “in absentia” procedure, it is once again mandatory for a person to be on the international wanted list. Previously, to simplify criminal prosecution of some former top government officials, a special temporary procedure was adopted in Ukrainian legislation for the “in absentia” pre-trial investigation and trial. This was, so to say, a simplified procedure in which the international search was not mandatory. However, since the National Bureau of Investigations began its operation on 27 November 2018, the specified procedure was abolished that now placing a person on an international wanted list is a mandatory condition for a court to grant permission for the “in absentia” pre-trial investigation. At the same time, Interpol is issuing more and more rejections to requests for issuing Red Notices (as it is prohibited for Interpol to interfere in cases of a political, military, religious or racial nature). Although the Criminal Procedure Code of Ukraine does not provide a direct definition of the term “international search” (international wanted list), the Instruction on the Procedure of the Use of the Possibilities of the National Central Bureau of Interpol by law-enforcement agencies in the prevention, solving and investigation of crimes envisages that an international search is carried out with the use of the channels and means that Interpol has. At the same time, Ukrainian law-enforcement agencies come up with ways of getting around international searches. Specifically, there is a new trend among law-enforcement agencies of issuing internationally wanted notices on the basis

Interpol is issuing more and more rejections to requests for issuing Red Notices (as it is prohibited for Interpol to interfere in cases of a political, military, religious or racial nature) of a resolution issued by an investigator or public prosecutor. We believe this position of law-enforcement agencies is very wrong and violates the rights of citizens. We would like to stress that a resolution issued by an investigator or public prosecutor alone does not constitute fact that a person has been placed on an international wanted list. Only Interpol has the right to issue a wanted notice and this position should be defended in court.

UJBL What are the key nuances in cli-

ent representation in cases with an international element? What is important for the defense in such cases? O. P.: International legal assistance involves time, numerous formalities and extremely high requirements for the confirmation of arguments with evidence. Also, political relations between countries impact international legal assistance. So, there are many nuances in total.

When there is an international element in a case, the defense must be ready for the pre-trial investigation to be suspended for observance of the terms of the investigation by investigation agencies. V. S.: Sometimes execution of a request of law-enforcement agencies on international legal assistance takes a year or more. In such case, an attorney can remind the law-enforcement agencies to address the state that is considering the request by asking them to ensure a quicker response. If a client resides in another country and procedural actions in his regard are carried out with the use of international legal assistance, the defense counsel must, naturally, control this process. The easiest way to do this is through letters of enquiry from the attorney on provision of information. Also, in case lawenforcement agencies refuse to ensure the client’s rights within the procedure of international legal assistance, the defense

www.ujbl.info | The Ukrainian Journal of Business Law | March 2020

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Furthermore, in circumstances when a person is subject to political persecution in Ukraine, has already been granted citizenship or temporary asylum in another state, but wants to prove that they are not absconding and that they are innocent, the mechanism of questioning within the procedure of international legal assistance should be used for implementing the goal in question.

Questioning within the framework of international legal assistance can be used where there is an important witness in the case who resides in a different state and who, for reasons beyond his/her control, cannot come to give testimony can oblige the law-enforcement agency to do so by challenging the corresponding inaction or refusal with the investigating judge. In international cooperation the states that place the request and provide legal assistance play the key role. However, the defense must take steps to monitor the procedure.

UJBL How effective is cooperation in

the part on the delivery of documents and questioning of people who are currently abroad? Please provide some examples if possible. O. P.: The Criminal Procedure Code of Ukraine and international laws envisage the possibility of delivering documents and carrying out questioning through the use of international legal assistance. This takes place by sending the corresponding request with substantiation of the man-

ner of legal assistance together with confirming documents. Questioning within the framework of international legal assistance can be used where there is an important witness in the case who resides in a different state and who, for reasons beyond his/ her control, cannot come to give testimony. This often happens in cases where foreign companies, banks, state officials are involved. There is also one more thing about state officials. If they have diplomatic status, it is necessary first to prove that they give their agreement to be questioned. We also had a case when there was a murder attempt against a person in Ukraine and this person had real fear for his life. The questioning was carried out in court via a video conference with the use of international legal assistance of the Russian Federation.

March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

V. S.: There may be the question that since international legal assistance requires some time, why not use ordinary video conference by, for example, using Skype? The law, however, established a procedure for procedural actions involving persons, residing on the territory of another state and that procedure is international legal assistance. The Convention for the Protection of Human Rights and Fundamental Freedoms enshrines the right to be immediately and in detail informed about the nature and reasons of an accusation made against a person. The only legal way for ensuring this right via law-enforcement agencies with regard to a person who is not in Ukraine is by sending procedural documents within the international legal assistance procedure.

UJBL What has been the level of international cooperation with Russia since 2014, and where is it at today? V. S.: Political relations between Ukraine and Russia do not impact international cooperation in the area of criminal justice. Back in 2016, our law firm represented the interests of the 4th President of Ukraine as a witness in criminal proceedings in the course of the questioning via a video conference with the use of international legal assistance of the Russian Federation. O. P.: In accordance with the official statements of then top officials of the Prosecutor-General’s Office the extradition procedure with Russia is used. In particular, according to data published in September 2018, Ukraine and Russia are extraditing persons not at the level prior to 2014, but around 100 persons are extradited from country to country every year. At the same time, there is information in open sources, that in 2018-2019, the Prosecutor-General’s Office of Ukraine extradited 13 persons (6 in 2018, 7 in 2019) to Russia based on approved requests on extradition. END

www.ujbl.info | The Ukrainian Journal of Business Law | March 2020

ARGUMENT The Role and Challenges of the Whistleblower System in the Corporate Sector

he concept of the “whistleblower” (WB) system, also known as a hotline, has different meanings and interpretations. Put simply, this is the most powerful way of communicating and providing feedback on a company’s operations. In the corporate sector, and especially in international companies, this is an essential internal tool that can immediately highlight any violations or wrongdoings that may occur within the organization. Moreover, this system is highly effective not only as a means of detecting something that has already happened, but also as a preventative measure against fraud or other integrity-related issues. In order to make it effective, end users of this system should be independent departments directly accountable to shareholders or the Supervisory Board depending on the size of the organization. According to the 2018 ACFE Report to the Nations, if a company has a proper WB system, up to 46% of all occupational fraud is discovered through it. This percentage and statistical data are mostly based on surveys in international companies, but it is not a common practice in the CIS region, especially among locally-owned businesses. For local businessmen and employees, it is sometimes difficult to understand the value of this channel and why it needs to be established and used. In respect of shareholders in small and medium businesses, the following thought process is very common: “Since I have ‘trusted management’ and security, and sometimes even an internal audit, there is no benefit in having an additional protection/ detection line that brings extra expenses.” As for employees, there are psychological issues related to a perception that effects the usage of this tool. The word “whistleblower” can have a negative connotation because of association with such

If a company has a proper WB system, up to 46% of all occupational fraud is discovered through it

derogatory terms as “stool pigeon” or “snitch”. However, this attitude from both sides should be reconsidered given the facts and statistics proving the positive and important role of WB in the sustainability and growth of each business. An organization is a complex organism with a lot of processes, information flows and interaction of numerous elements. The overall efficiency of an organization depends on the effectiveness of its operation at all levels. The bigger the organization, the harder it is to control and measure its performance, even if it has an internal and external audit as well as an internal control department. Employees at various hierarchy levels often have their own agendas. They try to use available resources for personal gain and hide it in the least controlled, unmonitored processes that have fallen out of the “watch list” of the above-mentioned functions or which are mired down in technical difficulties so numerous that they can easily deceive external supervisors. As a result, large internal schemes can continue undetected for years, significantly reducing the overall effectiveness of a business.

March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

Nikolay KOLESNIKOV, ACCA, CIA, CFE, partner at COSA

A properly implemented WB system can help to uncover the facts that have been missed by an internal or external auditor, security or compliance functions. The main idea behind it is that one cannot have an independent controller or “watcher” at all levels and for all employees and processes, because the cost would be prohibitively high and any such business model would be ineffective. To solve these issues, employees must have the right to express concerns, anonymously and directly, if something goes wrong. After all, there are always people inside or outside the organization who are aware of non-compliance practices in a company. To implement this, employees and any relevant external parties must be provided with the tools to report about issues (how to do it?), motivated to do it (why do it?) and guaranteed safety. Let’s consider all three elements: 1) Tools. It depends on the size of the organization and the amount of subsidiaries and employees, but in general there should be an appropriately complex IT system containing a variety of communication channels such as email, telephone, and website, for proper recording, tracking and resolving of incoming issues. 2) Motivation. Regular training and education sessions for employees and external parties are required to help them understand that any inefficiency caused by internal wrongdoing will, one way or another, influence all of them. For internal employees, this can take the form of bonus cuts, non-transparent advancement or even absence of promotion, closing of “ineffective” departments or subsidiaries, etc. For external parties, it can be the loss of a contract due to unfair bidding. Some companies have tried introducing additional remuneration for reported wrongdoings, but this leads to additional risks like “false reporting”. Consequently, this practice is very uncommon in the corporate sector.

ARGUMENT WHISTLEBLOWER SYSTEM 3) Safety. Due to the high sensitivity of information, which can influence people occupying different positions within a company, guaranteeing the protection and anonymity of the informer is of paramount importance. Furthermore, it is crucial to have a proper internal policy and guidelines explaining everything mentioned above in detail, in order to make this communication channel as well as all the processes behind it more understandable and transparent. However, this is just the first step to success. The next challenge is related to operations. At this stage, the most important task is to show that all relevant incoming information has been properly considered and that all required and appropriate decisions have been taken. If you motivate employees to report, build a communication channel and guarantee safety, but then your team fails to respond, investigate or take action, all trust in this channel will be lost very quickly. Therefore, you need an

The WB system is a very powerful tool that helps to increase effectiveness and assurance in business operations

appropriate internal infrastructure consisting of the following: â&#x20AC;&#x201D; Persons who will collect all incoming allegations. â&#x20AC;&#x201D; Persons who will lead investigations and prepare reports.

â&#x20AC;&#x201D; Persons who will be in charge of making and implementing decisions based on confirmed allegations. Apart from the above, all companies need to be aware of the fact that once all employees and external parties understand that this channel works, they will try to use it to resolve almost all their issues. For example, sometimes an employee can have a hidden agenda behind accusing their manager of being a corrupt and unethical person. In actuality, such an employee may be trying to harm his or her superior, because of a recent negative assessment of their work which has cut their bonuses significantly. Thus, proper investigation of all incoming allegations is an essential part of the WB system. By way of conclusion, the WB system is a very powerful tool that helps to increase effectiveness and assurance in business operations, but only if it is created and used in a systematic way as a key element of corporate governance. END

www.ujbl.info | The Ukrainian Journal of Business Law | March 2020

ARGUMENT Maritime Piracy as International Crime and its Influence on Shipping

Iryna RADKOVSKA is a lawyer at Sergeyevs’ Law Office

espite the fact that piracy has a long history, it still exists and is growing. Actually, in the late 1800s piracy was recognized as the first international crime, and pirates were declared “hostes humani generis” (enemies of humanity). While hundreds of years ago pirates united into small groups only, today piracy is a form of organized crime and has a number of large criminal networks at local, state and international levels involved not only in piracy but in other transnational crimes, such as smuggling, arm trafficking, money laundering, corruption, etc. Piracy hot spots also change and expand from the Caribbean to the Strait of Malacca, the South China Sea, the Gulf of Guinea, off the coast of Somalia into the Indian Ocean and the Red Sea (Gulf of Aden).Therefore, maritime piracy is a threat to international peace and security, economic prosperity not only of corporations or entities in the marine industry but to ordinary consumers.

Legal definition of piracy

There are a number of legal definitions of piracy contained, inter alia, in the United Nations Convention on the Law of the Sea (the UNCLOS) dated 10 December 1982 and the United Nations Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (the SCUA) of 10 March 1988. According to Article 101 of the UNCLOS, piracy consists of any of the following acts: “(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act

Yuriy SERGEYEV is a managing partner at Sergeyevs’ Law Office

Despite the fact that piracy has a long history, it still exists and is growing

of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts that make it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b)”1. In turn, the SCUA does not operate the word “piracy”, however Article 3 thereof states the following: “Any person commits an offence if that person unlawfully and intentionally: 1) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or 2) performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship; or 3) destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship; or 4) places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship; or 5) destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if any such act is likely to endanger safe navigation of a ship; or 6) communicates information which he knows to be false, thereby endangering the safe

The United Nations Convention on the Law of the Sea dated 10 December 1982

March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

navigation of a ship; or 7) injures or kills any person, in connection with the commission or the attempted commission of any of the offences set out in sub-paragraph (a) to (f)”2. National legislation also contains a definition of the crime of piracy. In accordance with Article 446 of the Criminal Code of Ukraine of 5 April 2001, “piracy is the use of a vessel, whether armed or not, for capturing any other sea or river vessel, and violence, robbery or any other hostile actions against the crew or passengers of such vessel, for the purpose of pecuniary compensation or any other personal benefits”3. As can be seen, this definition is quite weak and needs to be harmonized with those provided by International Acts. In accordance with the principle of legality, to be applicable for a criminal judicial system a clear definition of the crime of piracy should be drafted. The crime should be defined from a consensus development from the definitions provided by the UNCLOS and the CSUA. An exhaustive definition would include aspects from both conventions, although it may not include them completely. For instance, the UNCLOS’s determination emphasizes violence, detention and robbery, while the CSUA’s definition focuses on damage or destruction of a ship or cargo and endangerment of the safe navigation of a ship.

Economic impact

In 1981 the International Chamber of Commerce established its specialized division, which is called the International Maritime Bureau, which is a non-profit organization, aiming to act as “a focal point in the fight against all types of maritime crime and

2 The United Nations Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation dated 10 March 1988 3 The Criminal Code of Ukraine of 5 April 2001

ARGUMENT PIRACY malpractice”4. In October 1992 outrage in the shipping industry at the alarming growth in piracy prompted the creation of the IMB Piracy Reporting Centre in Kuala Lumpur, Malaysia. The main services of the PRC are: “issuing daily status reports on piracy and armed robbery to ships via broadcasts on the Inmarsat-C SafetyNET service; reporting piracy and armed robbery at sea incidents to law enforcement and the IMO; helping local law-enforcement to apprehend pirates and assist in bringing them to justice; providing updates on pirate activity via the Internet”5. The services of the PRC are provided free of charge to all ships irrespective of their ownership of flag. By posting information on the Internet, ship-owners and authorities ashore as well as ships at sea can access these updates and make decisions and assess risks associated with certain sea areas. For the period from 1 January 2019 to 30 September 2019 the PRC received reports on 119 incidents of piracy (hereinafter — all statistics are taken from The International Chamber of Commerce International Maritime Bureau Piracy and Armed Robbery Against Ships Report for the period from 1 January to 30 September 2019). This compares to 156 incidents for the respective period in 2018. These include 99 actual attacks and 20 attempted attacks. The distribution of the attacks as per regions is as follows: Africa (53), SE Asia (35), America (23), East Asia (5) and Indian Sub-Continent (3). There are top 5 locations of actual and attempted attacks: Nigeria (29), Indonesia (20), Malaysia (10), Venezuela (6), Peru (5) and Cameroon (5). The most dangerous port is Lagos (Nigeria), where 11 incidents were reported. So, piracy is a widespread crime. The majority of attacks were against the following types of ships: Tanker Chem/ Product (32), Bulk Carrier (30), Tanker Crude Oil (15), Container (12), General Cargo (7). As to the nationalities of vessels which are the most frequently attacked, the statistics are as follows: Marshall Islands (22), Liberia (18), Singapore (17), Panama (10), Malta (8). Regarding managing countries whose vessels were attacked most commonly, there are Singapore (20), Greece (18) and Germany (10). The human cost is also high. The PRC reports that for the mentioned period as a result of piracy attacks 70 crew members were kidnapped, 49 were taken hostage, 4 were The International Chamber of Commerce International Maritime Bureau Piracy And Armed Robbery Against Ships Report for the period from 1 January to 30 September 2019 5 Ditto

Piracy has turned into a more complicated and organized criminal enterprise

threatened, 6 were injured, 3 were assaulted and 1 was killed. The number of crew members taken hostage had reduced from 112 in 2018 to 49 in 2019. However, the number of crew members kidnapped from vessels rose from 39 in 2018 to 70 in 2019. According to the State of Maritime Piracy 2017 Report, as prepared by One Earth Future’s “Oceans Beyond Piracy” program, the sum of USD 1.4 billion was economic costs from Somali piracy alone. Among piracy-associated reasons for that are: insurance costs; employment of security officers and the purchase of special security equipment for ships transiting through piracy hot spots; increased costs for fuel caused by the need to move at faster speeds or modify the route to avoid pirate attacks; funds for ransoms; this list is endless. Therefore, the direct consequence is increasing the costs of products and services due to rising costs of transportation. Thus, the economic impact of piracy is felt not only by corporations or entities in the marine industry but by ordinary consumers.

Prosecution

Despite the fact that in the years of drafting of the Rome Statute piracy showed its relapse, and it was initially proposed to be included within the jurisdiction of permanent international criminal court, it was not included in the Statute. The reasoning is that its aim is personal gain and it is not a crime committed by state actors. However, the present involvement of government officials (for instance, in Somalia or Southern Asia) in the piracy network is evidence that state actors can also participate in crimes, even indirectly. According to the Rome Statute, the

The Rome Statute dated 17 July 1998 The United Nations Security Council Resolution No. 2077 dated 21 November 2012 8 The Rome Statute dated 17 July 1998 6

International Criminal Court (hereinafter — ICC) is established to investigate and punish crimes that “threaten the peace, security and well-being of the world”6. Actually, piracy has now gone far beyond being directed merely for personal gain. It is committed on a large scale and impacts global security and the well-being of humanity. The prosecution of piracy is permitted under universal jurisdiction, with the exception being crimes committed in territorial waters. Despite the fact that the United Nations Security Council Resolution No. 2077 of 21 November 2012 permits states to enter Somali territorial waters to pursue and capture pirates7, this is not an option. Thus, the prosecution and investigation of acts of piracy committed in the territorial waters of other countries is still a challenge. In the light of the rising number of acts of piracy in recent years, practitioners and scholars discuss the possibility of prosecuting pirates who commit crimes beyond the territory of states. One such option is the adoption of an amendment to the Rome Statute. In accordance with Article 121 thereof, “any State Party may propose amendments thereto”8. However, it must be taken into account that the ICC is the court of last instance. It would be part of a global justice system dealing with piracy, but not the only court to have jurisdiction over it. In the event of failure to adopt a new, specific crime of piracy to the Rome Statute, it would be possible for the ICC to prosecute crimes of piracy under any of the current crimes provided in the Rome Statute. For example, crimes against humanity (Article 7). Piracy began years ago as random events. However, the organized nature of attacks developed significantly, and piracy attacks are no longer spontaneous. This crime is not just about the theft of a ship, but all the accompanying crimes, such as hostagetaking, kidnapping, infliction of grave injuries, torture and even murder. The impact of piracy is felt not only by its direct victims, experiencing physical and mental suffering, the growth and spread of this crime creates an effect that stretches beyond oceans and borders. Consumers pay more for goods and services as prices rise proportionally to cover higher shipping costs. Piracy has turned into a more complicated and organized criminal enterprise. It engages a business-like approach and involves pirates, financial backers, government corruption and, possibly, even links to terrorist groups. Therefore, it is inevitable to take action to investigate and punish piracy crimes effectively.

www.ujbl.info | The Ukrainian Journal of Business Law | March 2020

END

ARGUMENT A Case For Setting Up Ukraine International Financial Centre

very nation has guaranteed its people the basic right to economic development, sustainable growth and a better life. Developed nations can fulfil this promise, whereas developing nations struggle hard to achieve these objectives. It is the availability of finance that ultimately paves the way for economic growth and development. Developed nations can tap the global funds with ease because they have robust legal systems, with effective enforcement mechanisms that guarantee much-needed protection to international investors. Developing nations lack such a system and are not able to tap global funds with great ease. They seem to rely heavily on aid from international donor agencies that follow very stringent guidelines and may not be amenable to finance most development projects. Due to the sheer paucity of available finance, developing nations take longer than usual to fulfil their part of the promise.

Tapping global funds

The nations that succeed in effectively tapping the global funds are bound to achieve rapid economic growth. Rapid economic growth is needed in the context of developing nations, including Ukraine. Such growth could be achieved if developing nations adopt dual and mixed legal systems, akin to the common law system, providing a sense of guarantee and comfort to international investors. In the context of Ukraine, we need to adopt a common set of financial rules and regulations, enforced by independent common law courts, with a mix of local and foreign judges. The judgments shall be enforced by local courts all over Ukraine. This shall motivate institutional investors as well as ultra-high net-worth individuals to invest their funds in development projects that are crucial to economic growth and the development of Ukraine.

Every nation has guaranteed its people the basic right to economic development, sustainable growth and a better life

Dubai’s success story

Dubai followed this approach and is today regarded as the global hub for international trade and investment. In 2004, the Government of Dubai formed the Dubai International Financial Centre, which is an offshore financial center situated in mainland Dubai, UAE. It is governed by its own laws and regulations, founded essentially on common law principles. The DIFC has its own courts, with a mix of local and foreign judges. Its decisions are enforced in the UAE by local courts, without any challenge. The English courts of the DIFC and local Arabic courts in Dubai operate side-byside. Both are courts of competent jurisdiction and can enforce each other’s decisions in their respective jurisdictions. The DIFC is regarded as an independent jurisdiction, distinct and separate from mainland Dubai. Thus, in Dubai, foreign investors have the option to choose between an English legal system and/or a local Arabic legal system. This has given huge impetus to economic growth and development in Dubai. There is no compromise in respect of national sovereignty, as all laws and all judgements of the English courts of DIFC are

March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

Syed Mujtaba HUSSAIN is the Managing Partner of Emirates Legal

subject to the UAE’s Constitution. Investors have generally made investments subject to the laws of the DIFC. The success of the DIFC can be measured from the available statistics, which shows that in 2018 Dubai recorded a 41% year-on-year growth in FDI amounting to USD 10.5 billion, as opposed to an inflow of USD 4.5 billion in 2011. In 2019, the inflow of FDI reached close to USD 18.5 billion. The DIFC and independent common law courts were established in 2004. Ever since then investors have flocked Dubai, deployed their investments in various infrastructure and development projects, thereby participating in the growth and development of the UAE. Today, the DIFC has grown as a leading global financial center catering not only to the UAE, but also to the Middle East, South Asia and SouthEast Asia.

Abu Dhabi follows the Dubai story

Following the success of the DIFC, the government of Abu Dhabi in 2013 established the Abu Dhabi Global Market, which is an offshore financial center, founded on the basis of the DIFC. It has an independent judiciary comprising of English judges. The judgments of the ADGM Courts may be enforced anywhere in Abu Dhabi, as well as in the UAE, along the lines of the DIFC. Local courts do not have the power to set aside any judgment of common law courts, either in Dubai or in Abu Dhabi.

Kazakhstan follows the UAE

Inspired by the success stories of Dubai and Abu Dhabi, Kazakhstan in 2018 established the Astana International Financial Centre based on the Dubai model. The AIFC has its own laws and regulations based on the English common law, very similar to the laws of the DIFC. It has its own common law courts, comprising essentially of all judges

ARGUMENT FINANCE drawn from the United Kingdom. The judgments of the AIFC Courts can be enforced anywhere in mainland Kazakhstan, and local courts do not have the power to set aside its judgment. Like Dubai, the enforcement of the AIFC Court judgments is done by the local courts, as per the applicable local laws of mainland Kazakhstan. The AIFC was established in 2018 and has attracted 330 companies, including leading foreign banks, investment companies, other financial service firms and law firms. The most impressive part about the AIFC is that the Government of Kazakhstan is open to subject itself to the AIFC Laws in respect of contracts to be carried out by foreign investors. The implication of Government subjecting itself to AIFC laws is that it is bound by its decisions. The decision of AIFC Courts is final and binding on all parties, subject to the process of appeal embodied in the AIFC Court Law. This has made Kazakhstan the most attractive place for foreign investment in the Central Asian region, comparable to Dubai and Abu Dhabi.

The story of Ukraine

The lessons that can be learnt from the success stories of Dubai, Abu Dhabi and Kazakhstan are that the tapping of global funds could be more effectively achieved by establishing an offshore financial center, with an effective court system based on common law principles, which is generally preferred by foreign investors. A dual or a mixed legal system that incorporates requirements of the local laws and addresses the needs and requirements of foreign investors is the need of the hour. Adopting such a system does not mean surrendering a nation’s sovereignty, as the new legal system only addresses financial transactions, whereas all other civil and criminal matters are addressed by applicable local laws. Apparently, there is no conflict, and experience suggests that mixed legal systems have promoted growth and development, even in the context of Europe. The European Union itself is a mixed legal system. The choice that Ukraine needs to make is to do away with its reliance for development funds on donor agencies and instead focus on creating a new financial institution, affording foreign institutional and private investors a platform to co-invest and pool in their funds. These funds would ultimately be utilized towards achieving economic growth and development. Current FDI figures in the context of Ukraine do not reveal a promising story. In 2014, FDI inflow of USD 300 million (equiva-

Ukraine needs to come out of the financial turbulence created by the external headwinds and the only way it can do so is by setting up its own financial center based on the Dubai model

lent to 0.2% of GDP) was attracted on a net basis, which is a multi-year low. The inward stock of FDI declined by about USD 15 billion to USD 63.8 billion (48.4% of GDP) over the year. From 2017 until the middle of 2019, the FDI inflow in Ukraine did not even pass USD 1 billion. It was only towards the end of October 2019 that an FDI inflow of USD 1.4 billion was recorded. Significant amounts of private capital as well as long-term oriented FDI inflows are needed to achieve external stabilization in Ukraine. Unless external financing increases, domestic investments will not benefit, as the borrowing and funding costs will be very high. As such, reconstruction of the Ukrainian economy shall largely depend on how rapidly it’s to attract foreign capital.

Now’s the time for change

Ukraine has, all these years, relied on investment from European markets, largely ignoring the critical fact that a little over USD 1 trillion is held in the Gulf Cooperation Council Region by institutional and private investors. The current fragile institutional environment that exists in Ukraine needs to be supplemented by a more robust financial and legal infrastructure to improve the availability of finance that would ultimately pave the way for rapid economic development. The idea is to supplement regional liquidity and create a more efficient allocation of capital and investment that would benefit the state and foreign investors alike. Ukraine needs to shift its focus towards GCC countries. The only way to motivate and convince private and institutional in-

vestors in the GCC region is to highlight investment opportunities and develop a legal structure that supports a more efficient and sophisticated form of financing. It is in this context that a case for setting up an offshore Ukraine International Financial Center needs to be examined by lawmakers, and with a sense of urgency. The external stabilization of Ukraine can be successfully achieved by reducing external debt, and such reduction is only possible when there is a large inflow of FDI into the country. Ukraine needs to come out of the financial turbulence created by the external headwinds and the only way it can do so is by setting up its own financial center based on the Dubai model, with independent common law courts, comprising a mix of local and foreign judges that would provide the much needed confidence to the potential investors seeking investment opportunities in the region.

Setting-up the Ukraine International Financial Centre

Traditionally, a country should think of setting up an International Financial Centre if it faces the following four problems, namely: (a) its private finances are minimal; (b) financial systems are underdeveloped; (c) there is low level of private credit on deposit; and (d) the cost of borrowing is very high. In the case of Ukraine it appears that all four problems are prevalent and in large measure. Private finance is needed to finance the public infrastructure and build up the private sector. So as to tap this private finance, International Financial Centres play an important role by providing investors with secure jurisdictions, financing structures and tax neutrality. This is particularly true in the context of Ukraine, where financing difficulties are the most acute and the need for risk mitigation is the highest. If Ukraine succeeds in providing investors with a safe and a secure investment regime that meets international requirements, with an effective enforcement mechanism, there will be a huge inflow of FDI. As a reference point, the level of finance channeled through International Financial Centres to developed nations reached an estimated USD 1.6 trillion between 2007 and 2014. This led to an increase of USD 400 billion in GDP and USD 100 billion in tax revenue of developing countries during the period (IFC and Developmental Finance Report 2019: Judith Tyson).

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ARGUMENT FINANCE This goal can be attained if weak domestic institutions are replaced by strong institutions like IFCs, following the universally accepted standards for investment that are prevalent in developed countries. By setting up such an International Financial Centre, Ukraine will be able to achieve significant GDP growth, as well as job creation. This is because sectors such as infrastructure and financial services contribute significantly to GDP growth, while the agricultural and manufacturing sectors are important for creating jobs. UIFC will be able to meet these objectives by tapping into global funds needed for achieving economic growth and development. As such, Ukraine needs to create an offshore financial center in Kyiv (UIFC), with its own laws and regulations modelled on the rules and regulations applicable in the DIFC (Dubai). The UIFC should have its own common law courts with foreign judges, who will work alongside local judges, as in Dubai, without disturbing the existing legal system.

Ukraine needs to create an offshore financial center in Kyiv, with its own laws and regulations modelled on the rules and regulations applicable in the DIFC (Dubai)

The proposed common law legal system shall be specific to foreign investments and shall be subject to the Constitution of Ukraine. All other aspects relating to civil and criminal laws shall be governed by local laws. In this way Ukraine, without affecting its present legal system, would be able to create a new financial system governed by ADVERTISEMENT

March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

its own laws and regulations, incorporating all international provisions and practices proposed by global regulatory bodies. This new system will restore the confidence of investors and provide for an effective investment regime, providing the necessary development capital needed to rebuild Ukraine. Two choices lie with the people of Ukraine: (a) either to seek development finance from international donors, subject to their terms and conditions; and/or (b) create a strong domestic institution, namely the UIFC, which would foster economic growth and act as an effective tool in tapping global funds. If, Dubai, Abu Dhabi, Kazakhstan, Singapore, Hong Kong and Japan were able to succeed in achieving economic growth and development using International Financial Centres, there is little reason for us to doubt the success of Ukraine, especially when it has huge natural resources and a wealth of human capital. The time to act is now. END

www.ujbl.info | The Ukrainian Journal of Business Law | March 2020

BIZ LUNCH

Healthy Competition

he Velvet Revolution took place in Armenia in 2018, which changed the country and society. After a period of calm watching the course of the new political leaders in power, international investors confirm strong interest in the country. The legal market went through a clear out, which is irreversible when healthy, intense competition takes place. Vardan Stepanyan, managing partner of K&P Law Firm, explained the background of ongoing changes in Armenia, which obviously come from a mindset shift rather than purely legislative reforms.

UJBL How would you describe the legal market in Armenia? How competitive is it? Vardan Stepanyan: In my opinion, the market has not yet shaped itself to the full extent. I would describe it as one that is still developing: there are quite significant gaps to be filled; and there is a range of services for which there is still no demand. New players rarely appear lately. Earlier, new “starlet” firms entered the market, which immediately forced intense rivalry on the market.

UJBL Were they local law firms? V. S.: Yes, they were local firms and associations. Sometimes they appeared through hidden lobbying on the part of state authorities and by various big companies and corporations. But the last five years showed greater stabilization. New players rarely appear, while influential law firms demonstrated sustainable growth. If you look at the ratings of leading agencies for the past five years, you will see the same companies getting there, and their places remain virtually unchanged. Moreover, one of the main characteristic features of our market is the complete absence of international law firms. There are no renowned international brands here that would create a competitive advantage in the eyes of foreign clients merely by their presence. At the same time, the Armenian market is multi-levelled, and competition is carried out within these levels. It is worth noting that competition has been quite tough lately. However, we do not really feel that other companies are aggressively soliciting our clients, just the other way

around. In the context of fair competition, everything is developing quite steadily.

UJBL Are there Russian law firms on the market? V. S.: No, there aren’t. There are local companies which have offices in Moscow, but they operate on the Armenian internal market. Their presence in Moscow is just an additional bonus, as they do not have a recognized brand outside of Armenia. UJBL If we talk about the legal departments of audit firms, to what extent is competition observed on their part? V. S.: The Big Four, Grant Thornton and BDO are represented in Armenia. Some of them, for example, Grant Thornton and EY, have sufficiently professional legal units. Nevertheless, the main direction of their business activities is still audit and account-

March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

ing services, taxes, consulting, other services in the financial sector. We are aware of their presence, but they do not enter the market of purely legal services. For example, we are currently involved in a large project where we are responsible for the legal part, and one of the international audit firms is responsible for the audit and financial ones. By and large, they provide legal services in unison with their core audit services. A minor exception could be made regarding Grant Thornton, which displays particular activity but it is still quite small compared to purely legal companies.

UJBL To what changes after the Velvet Revolution of 2018 would you draw attention to? V. S.: In fact, the revolution changed the country to a great extent, from the political, social, and economic points of view.

BIZ LUNCH Naturally, these changes could not be left unnoticed by the legal market. Before the revolution, the market was mostly free and of little interest to the top state authorities and oligarchs. Therefore, the changes were not so dramatic compared to other fields. These can roughly be divided into two types. Firstly, after the revolution, the legal market is still in a state of cleanup of all kinds of unscrupulous players. There was a considerable layer of lawyers who participated in corruption transactions, which was within the framework of the then regular rules of the game. Currently, they are simply left without work as the level of corruption has fallen quite drastically. We rarely hear about corruption in courts and the executive authorities. Recently, for example, it took us only five days to carry out basic registration of a property division. This was unthinkable earlier without making arrangements or issuing an appeal to a court. There was another pool of unscrupulous firms that had strong competitive advantages as a result of protection from top government echelons. But now they’re forced to compete with the others on an equal footing without any special privileges. In my opinion, this shakeout has had an extremely positive effect on the market. As for the other part of changes that took place, they are due to changes in the economy. Following the revolution, the market became freer. For example, earlier certain privileged businessmen had the right to import certain goods, and the system was built in such a way that if someone dared to import the same goods, such person would have “problems”, for example, delays at customs. Everything was divvied up. Following the revolution, this issue disappeared itself. Everyone imports whatever they want. The Customs Service works relatively quickly and without any particular issues. This is because Armenia is a tiny country, and it needs no effort to provide impetus from above to allow everyone to work as they should. All monopolists who enjoyed preferences and who, basically, only formally required legal services, turned into ordinary market players without any advantages over other participants. Therefore, if a business operates in a competitive environment the services of lawyers become highly demanded. Consequently, the demand for legal services in the commercial sector has grown. I would even note that not only on the part of large businesses, but also on part of medium and small businesses. Moreover, I would draw your attention to the great demand for criminal lawyers. Many cases have been initiated, some of which are

high-profile ones. For example, related to the former president of Armenia. Our client had an inquiry on a criminal case when, as a result of misappropriation and abuse by employees, company property suffered losses. We tried to find a criminal lawyer, but they were all overloaded with work. Therefore, many colleagues who worked in the civil area went through retraining for criminal cases. We also had to work in the criminal field, although this is not our profile.

UJBL Do you see increased attention on the part of international investors in the country following all these events? V. S.: The situation is that they never rush, but calmly observe how the market is developing and what risks they might bear. I remember very well that we had a slack period regarding international projects for half a year after the revolution. Even those projects that were about to be initiated were postponed. It was because they carefully observed the new leadership, where it will go, whether there will be internal disturbances. But the situation has now stabilized. Our activities in the past 7-8 months support the idea regarding both our current cases and the number and quality of new requests. If nothing supernatural happens to Armenia this progress will continue over the next few years. UJBL Do local law firms grow due to such increased demand? V. S.: Right now, we are ready to hire 3-4 lawyers, but there is simply no supply. We cannot find the lawyers we need. And this is a common problem for our entire market. There is competition for qualified personnel, preferably having a Western education, and these are really rare. Therefore, even if we wanted to expand, it would not be an easy task to accomplish. There are a lot of ordinary mid-level specialists, but we are interested in people who can manage projects independently and can make decisions. UJBL If we mention reforms, how do they affect your work? Are law firms involved in the relevant processes? Is there the practice when Armenian firms draw up laws and lobby them in every way? V. S.: In fact, there have been no significant changes in legislation over the past two years. This is related to the fact that the problems of Armenia were not because of bad legislation, but because the latter was poorly applied and not implemented. The current authorities focused their efforts precisely on solving problems by applying all the good laws we have.

The operational profile of law firms in Armenia is, as elsewhere, such that we have to monitor changes constantly, even some kind of draft changes. But Armenian law firms don’t have sufficient resources for active and ongoing participation in the drafting of legislation. For example, if we are asked to draw up a law we like, I can’t imagine how we will manage this in terms of time. Ten years ago we had an experience when an international company asked us to come up with a draft law, but back then it was a paid job and we had resources for such legislative activity. I think that legislative drafting by law firms in Ukraine should be lobbied, and partially paid by market players affected by these changes in one way or another. We, just like other law firms, simply cannot physically allocate any resources just to make the country better. Just at the beginning of last year, we had a case when the government initiated the introduction of changes to the Tax Code, following which all providers of legal services became subject to VAT. Currently, companies become subject to VAT if their turnover exceeds a certain set sum, while small and private lawyers are exempt from this tax. This discussion caused a tremendous response from the public, organized reaction on the part of lawyers, including companies that work with VAT. However, they should have benefited from these changes as they deprive lawyers that do not pay VAT of a competitive advantage. This advantage is especially noticeable if you work with foreign companies for which intra-Armenian VAT is a complete waste of money. However, colleagues showed solidarity, the response was severe, and the government was forced to repeal this change. It can be said that if the matter concerns the specific interests of lawyers who are attorneys, they become very active. But when it comes to other industries and no payment for legislation drafting services and amendments to it, legislative changes are usually introduced without the participation of law firms.

UJBL What services are the most sought after? What do you expect in the near future? V. S.: Currently, the services of legal representation in civil, administrative and, in particular, criminal proceedings, are in special demand. We can say that changes in the judicial system and its increased credibility entail a higher number of appeals to the court. Earlier, especially for large-scale cases, parties tried to persuade each other through the authorities or to solve the issue directly. And

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BIZ LUNCH now we see a clear tendency to transfer disputes into the legal channel — to the courts. This is because the forecasts for attracting foreign investment are, in general, quite positive. Accordingly, there will be demand for legal advisers in M&A and corporate law areas. There is also great potential in Armenia for growth in the securities market, and this issue is being discussed in government to create a powerful tool for attracting foreign investment. There are very few highly specialized lawyers in the securities market. The demand for such specialists will sky rocket. I would like to note that over the past two years, the Armenian real estate market has grown quite dramatically. It is the result of the industry’s deregulation. Therefore, along with the market’s development, the demand for specialists in real estate transactions will also grow.

UJBL You mentioned that there are many administrative disputes in the country. How often does the corporate sector go into litigation with the state, and what is the outcome of such cases? V. S.: Quite serious changes have also taken place in this behalf. We have recently communicated with colleagues. Their client had an audit conducted by the tax inspectorate, following which the client was charged an absolutely fantastic amount of money. They challenged the amount not even in court, but in the tax inspectorate itself, namely, in its appellate instance. The tax inspectorate cancelled its act by 90% of the sum. It was impossible earlier, except by using not entirely legal mechanisms. I recently found interesting information about the administrative court’s workload, and its workload is full till the end of 2021... Everything is logical: when the judicial system’s credibility increases, the number of lawsuits also increases, especially against the state.

UJBL With which law firms do Armenian lawyers have to work most often: from Russia, CIS countries, USA or the United Kingdom? V. S.: We cooperate with almost all major markets — that is, the EU, USA, China, CIS countries, including Russia. State corporations and banks represent Russian business in Armenia, and they work with the same persons. Nevertheless, we work more often with branches of international companies located in Russia. For example, there were several projects with Dentons and Herbert Smith Freehills, which

Vardan Stepanyan and Olga Usenko are quite active. Since international companies are not represented on our market, if they face Armenian issues, they resolve these through their Russian offices. Over the last year, the number of requests from China has risen. But I cannot help but note that they look for the cheapest option, and even before they agree on the amount, they already require some preliminary advisory opinions, after which they may not even hire. We had several projects with the Chinese a long time ago, and all of them exceeded the cap initially specified by us. Companies from the USA are currently quite active. Americans are very comfortable to work with. They are friendly, committed, have a “pay on the same day” basis, and always follow the arrangements precisely. For example, we have a project with a state corporation as well as several financing programs in Armenia. Talking of Europe, we work a lot with the United Kingdom and France, which are quite active on the Armenian market. In particular, we currently work with a large French hypermarket and a large AustrianGerman investment fund.

UJBL What about Ukrainian clients? Do you get requests from them? V. S.: Unfortunately, we do not have much work from Ukraine. Since we, represented by me, are present in Ukraine, we cooperate in the main with Ukrainian companies on projects in Ukraine itself. And I should note that this is very successful experience.

March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

To be honest, the last time we received a work request from Ukraine in relation to projects in Armenia was three years ago. Armenia and Ukraine are countries that accept investments themselves, but do not invest in other states. Nevertheless, I think we have potential due to historical ties and the considerable turnover in goods. There are many Ukrainian goods in Armenia: Roshen, by the way, is our number one in its sector (ed. — laughs), vodka products are also in high demand. And since there is trade, there will be legal cases sooner or later.

UJBL What was the most interesting project in your practice lately in terms of legal work? V. S.: Perhaps it would sound standard, but it was a project for the Menu Group company in Ukraine — acquisition of a Ukrainian company. It was a very interesting transaction, as it involved lawyers from six countries at the same time — Cyprus, Lithuania, Ukraine, Armenia, the United Kingdom, and Latvia. This was due to the fact that both the seller and the buyer had rather complex corporate structures. Although the buyer himself was historically from Armenia, his company was registered in England. We communicated with all the lawyers at the same time and received various kinds of interesting information on particular aspects. Moreover, any project related to Ukraine is always somehow special for us. END

www.ujbl.info | The Ukrainian Journal of Business Law | March 2020

CRUX

Legal Digest During the past month the UJBL editorial team has monitored draft laws, amendments and other legislative initiatives that appeared to be highly significant in the juridical field. To name a few, the “land market law” that is currently occupying Parliament’s time, the adopted Draft Law No. 1210 On Deoffshorization and Improving the Administration of Taxation, and several acts of the National Bank of Ukraine. We asked lawyers to provide their expert opinions on these and other important issues below.

What is included in government Draft law No. 0010 On Joining the Agreement on the Development of Multimodal Transport TRACECA? What are its main provisions?

SERGEY NEDELKO, Attorney at Law, Ilyashev & Partners On 21 November 2019 a group of Members of Parliament registered Draft Law No.0010 On Joining the Agreement on the Development of Multimodal Transport TRACECA. On 14 February 2020 the Parliamentary Transport Committee recommended adoption of the Draft in its final edition and ratification of the Agreement.

The Agreement was signed on 16 June 2009 in Cholpon-Ata (Kyrgyz Republic). TRACECA (Transport Corridor Europe-Caucasus-Asia) is an international transport program involving the European Union and 12 member States of the Eastern European, Caucasian and Central Asian region. The aim of TRACECA is to develop a transport corridor from Europe to Central Asia through the Black Sea, Caucasus and Caspian Sea bypassing Russia and reviving the Great Silk Road. The Agreement’s provisions create the environment for improving the carriage in the TRACECA region, as well as for simplifying the procedures for performing multimodal transportation, assuming use of several modes

of transport. The document regulates relations between transport organizations, MT operators, shippers, consignees, other individuals and legal entities, acting on behalf of the cargo owner whilst the performance of multimodal freight transportation defines the rights, duties and responsibilities of each party. One of the main novels of the Agreement is establishing a single (unified) MT document either negotiable or non-negotiable form, which shall prove the MT contract has been duly signed by the parties and the MT operator has accepted the goods for carriage. This can be a consignment note of MT, MT waybill and other legally accepted form, whose content is established by the Agreement (nature and condi-

March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

tions of goods, freight amount, name of consignee and consignor, place of charging and discharging, terms of delivery, etc.). For example, now the freight-forwarding companies widely use so-called “house bill of lading”, assuming carriage by sea and some land transport mode, which is deemed to be a kind of MT documents. The parties will, via the TRACECA, elaborate and approve the unified form. The Agreement should increase the competitive advantage of the Ukrainian transport system, promote the development of transit potential and increase the export of Ukraine’s transport services, which fully correspond to Ukraine’s National Transport Strategy for the period till 2030.

CRUX LEGAL DIGEST What are the main amendments provided by Draft Law No. 1210? What changes can business expect once it has become law?

NATALIIA MUSIIENKO, Senior Associate, KPMG Law Ukraine On 3 December 2019 the Ukrainian Parliament finally adopted Draft Law No.1210 On Deoffshorization and Improving the Administration of Taxation. This is one of the most discussed laws that was

adopted within the auspices of fulfillment by Ukraine of EU international obligations. Without any doubt, the most important changes are implementing CFC rules, improving transfer pricing rules and introducing the Principal Purpose Test. A significant part of the proposed changes is related to administration of taxation. In particular, creation of the Board of Appeal for the purpose of pretrial consideration of taxpayers claims is contemplated. As of today there is a single-level system of pre-trial appeal (i.e. claims made by taxpayers against tax

notification-decisions are considered by the State Tax Service). After the provisions of Law No.1210 have come into force, there will be a two-tier system as the Board of Appeal will consider claims in certain cases, as specified by Law No.1210. The document also introduces changes to permanent establishment status, legitimization of quarterly adjustment of scheduling the tax audits, new interpretation of guilt of individuals and increases the terms for conducting tax audits. The rapidly drafted text of Law No.1210 stipulates many technical errors that may re-

main in the final version (the final text isn’t available yet). However, the provisions of Law No.1210 are progressive overall, and some of them will meet possible difficulties in implementation (in view of administration and control). It is obvious that new categories of tax disputes are unavoidable due to introduction of new points of intersection between private and public interests. Considering such significant changes, business is weighing up all the pros and cons of the new law in view of time and human resources required in the new model of tax administration.

On 16 January 2020 the Ukrainian Parliament adopted Draft Gambling Law No. 2285-д in the first reading. What are the main provisions of the Draft?

PAVLO BYELOUSOV, Partner, AEQUO New rules for gambling industry have always been on the agenda for the Ukrainian government since the total gambling ban glibly introduced by the Verkhovna Rada of Ukraine in June 2009. Funnily enough, the 2009 Gambling Ban Law provides the gambling ban was introduced until the adoption of new law permiting the conducting of the gambling business in special gambling zones. For this purpose, the 2009 Gambling Ban Law has obliged the Cabinet of Ministers of Ukraine to draft and to introduce for consideration of the Verkhovna Rada a

new gambling law, but this task took more than a decade. In December 2019, Parliament failed to adopt the Government’s Draft Law On Gambling Business. However, on 16 January 2020, Parliament adopted Draft Law No. 2285-д On state Regulation of Activities Concerning the Organization and Conducting of Gambling in the first reading. It is expected that Draft Gambling Law No. 2285-д will be considered in the second reading during the next session in Spring 2020. The key highlights of the Draft as adopted in the first hearing are as follows: — Casinos (including online), slot machine halls, betting (including online), online poker and state lotteries are again allowed in Ukraine. — A special commission is to be established to regulate gambling activities, issue licenses and certify gambling equipment as well as to set

an online gambling monitoring system to ensure compliance with the law. — A limit is to be set on number of licenses to be issued per each type of gambling activity and gambling equipment. — New gambling licenses’ duration — 5 years. — Restriction of gambling advertisement. — Ban to grant a license to gambling operators which have a Russian Federation’s resident as their ultimate beneficiary owner. In contrast to the December 2019 Draft as proposed by the Government, Draft Gambling Law No. 2285-д has tighten certain restrictions by allowing gambling spots in 5-star hotels only and by raising the player’s and gambling facility employee’s age from 18 to 21. Draft Gambling Law No. 2285-д sets forth the following annual license fees for each type of gambling activity and equipment:

— casino — ca. USD 11 million for a casino in a 5-star hotel with more than 200 rooms and ca. USD 23 million for a casino in a 5-star hotel with less than 200 rooms (for casinos located in Kyiv) and half as much respectively for casinos located in other settlements; — slot machine hall — ca. USD 145,000; — betting activity — ca. USD 24.3 million; — organization of online casino — ca. USD 2.4 million; — organization of online poker — ca. USD 485,000; — organization of lotteries — to be determined by auction, where the starting price is set by the special commission at no less than ca. USD 14.7 million); — betting spot — ca. USD 15,000; — gambling table — ca. USD 34,000 for a gambling table and ca. USD 68,000 for a gambling table with a roulette ring; — slot machine — ca. USD 1,166.

www.ujbl.info | The Ukrainian Journal of Business Law | March 2020

CRUX LEGAL DIGEST On 31 January the National Bank of Ukraine aligned the disclosure of banking secrets with the current legislature by its Decision No.13. How would you evaluate such amendments and what might be the consequences for banks, individuals and entities?

SERGIY GREBENYUK, Partner, Asters If simplified, the amendments of the National Bank of Ukraine widened the powers of law-enforcement bodies to access information held by banks without a court order. The above amendments reflected recent legislative changes adopted by Parliament on 31 October 2019 having harmonized legislation and relevant by-laws of the NBU. The most important change is that law-enforcement bodies

are now empowered to request disclosure of bank secrecy not only in respect of legal entities and entrepreneurs (as has been the case), but also in respect of physical persons. Furthermore in addition to information about bank transactions, certain authorities now can obtain information about accounts, deposits, deals, and bank transactions irrespective of whether a legal entity or physical person has an account in the bank. The list is exhaustive, and if the authorities want to receive more information they must apply for a court order. The banks now are in a tricky situation; between a rock and a hard place. They are under obligation to follow lawful requests made by the abovementioned authorities. On the one hand, failure to do so will

result in administrative sanctions. On the other, if the bank discloses banking secrets in response to an unlawful or incomplete request, this may also result in sanctions. We consider that the harmonization of laws and by-laws of the NBU is a positive sign in general. Furthermore, these changes should save time and resources for law-enforcement agencies, enabling them to focus on investigating and establishing the truth. Before the amendments were adopted, it had been necessary to prepare a reasoned motion, to submit it to judge, attend the hearing, convince the judge and then enforce the decision. However, taking into account local realities, the widening of powers of law-enforcement to access banking secrets

may have some negative consequences: — without judicial control and necessity to provide an explanation as to why the information is required, the authorities may ask for information just to start so-called fishing expeditions (a non-specific search for information, especially incriminating information); — the law doesn’t provide for an option for the client of the bank to learn about this fact and initiate defense (before the amendments, it had been possible, to some extent, to find the relevant decisions adopted by courts in the court register); — from the practical point of view, it is very complicated to bring to account those agencies at fault for collecting surplus information that contains banking secrecy.

On 6 February Parliament began to consider the so-called “land market law”, Draft Law No. 2178-10. What amendments are crucial, how do they change the current draft, and what are the prospects for it to be adopted in full in the near future?

ALEXANDRA FEDOTOVA, Partner, ADER HABER On 6 February 2020 Verkhovna Rada of Ukraine started consideration of the Draft Law of Ukraine On Amending some Legislative Acts of Ukraine Regarding the Circulation of Agricultural Land, No.2178-10.

Over 4,000 amendments were submitted to the Draft Law. As of the morning of 20 February 2020 around 500 amendments had been considered. All of them weren’t adopted. The following should be noted with regard to the meaning of the amendments. Many amendments are similar in content (some are even identical). Some of them are of a purely declarative nature, such as prioritizing lease over sale. There are amendments offering to grant the right to acquire ownership to agricultural land through mortgage via all types of financial institutions, and not only to banks.

There are proposals that are directed to limit the right to own agricultural land one more time without any proper justification, such as to prohibit transferring into lease agricultural land whose designated purpose is “individual farming”. Some amendments propose to prohibit the changing of the designated purpose for some period of time or even without limitation, or to introduce payment for selling land plots acquired through privatization within a certain period of time. There are proposals (i) to alienate or transfer into usage municipal or state land plots only after the agricultural pass-

March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

port has been drawn up; (ii) to envisage the strategic fund of agricultural land in every region in the size of 20% of respective land; (iii) to maximize the minimum term of lease of agricultural land to 14 years. The Verkhovna Rada of Ukraine is working only on the Draft Law as of now. Based on such an approach our estimation is that the Draft Law will be adopted and the submission of such numbers of amendments was only a technical decision to delay adoption of the Draft Law, but not to change its sense. he current moratorium on the sale of agricultural land is expected to be lifted in early October 2020.

CRUX LEGAL DIGEST The NBU and the National Commission for State Regulation of Financial Services Market signed the Memorandum of cooperation for implementation of the “Split” law. What exactly is included in the Memorandum, and how reasonable might such cooperation be?

OLEKSANDER PLOTNIKOV, Partner, Arzinger As is well-known, the “Split” law will come into effect on 1 July 2020. It provides for liquidation of the National Commission for State Regulation of Financial Services Market and transfer of regulatory and supervisory functions, particularly to the National Bank of Ukraine. Specifically, the NBU will regulate and supervise in-

surance, leasing and factoring companies, pawnshops, the Ukrainian Bureau of Credit History, etc. For the purpose of carrying out certain provisions of the “Split” law, on 7 February 2020, the NBU and the National Commission executed the Memorandum on Coordination and Cooperation which, amongst other things, envisages: 1) creation of an interagency working group; 2) access for the NBU to the National Commission’s database; 3) transfer of documents and other related information by the National Commission to the NBU;

4) an obligation by the National Commission to pass information on market participants on the NBU’s request; and 5) exchanging of experience. The signing of the memorandum is a positive sign towards fruitful cooperation between state authorities, which will facilitate more coordinated, efficient and smoother transfer of powers from the National Commission to the NBU. At the same time, it’s very important to ensure that along with transfer of powers, the NBU will obtain sufficient expertise necessary for it to fulfill its duties in relation to new financial services. The NBU has been working on mak-

ing preparations for future changes and gaining required competence. As a result, the NBU has created two new departments and adjusted the structure of several existing departments in order to cover the non-banking financial sector and issued a white paper on regulating the objectives for the non-banking financial sector. By 1 July 2020 new departments will be working on proposals regarding necessary legislative changes and improvement of processes. The efforts of both authorities give us hope that the “Split” will become a good example of efficient cooperation between state authorities for the benefit of market players.

Draft Law No. 2258 was adopted in its first reading on 4 February. How might this Draft influence IP regulation, and what results should be expected if the Draft comes into force?

ANASTASIA KAZANKINA, Attorney-at-Law, Doubinsky & Osharova I must note that in overall terms, Draft Law No. 2258 regarding stepping up IP right

protection, protection of trademark and industrial design rights and combating patent trolling, contains many useful and progressive provisions. My favorite is one that provides for legal protection for unregistered designs. This article is the result of the implementation of provisions in the EU-Ukraine Association Agreement, and is a great instrument that must and will be used for the country’s fashion industry. At a time when trends come and go in a flash, standard registration of

a design can be unnecessary and cost ineffective. The second great thing is the possibility to obtain compensation for infringement of a third person’s right as a result of registration of a design that does not respond to the criteria of legal protection. This provision is long-awaited and has great potential. First, it redresses injustice when the copyright owner can easily obtain compensation without even proving the intention of the violator at that time when the owner of the

design had no opportunity to prove any losses. Court practice even has cases when a person tried to protect his copyright to a design just to get some appropriate compensation. Combining this option with the possibility of opposing registration through the Chamber of Appeals of the Ministry for Development of Economy, Trade and Agriculture of Ukraine, we can say that measures for combatting patent trolling have finally been provided for.

www.ujbl.info | The Ukrainian Journal of Business Law | March 2020

CRUX LEGAL DIGEST On 10 February the National Bank of Ukraine published its Draft decision on cashless settlements. What is included in the Draft, how relevant is it, and how would you comment on its main provisions?

TETIANA MYKHAILENKO, Senior Associate, AVELLUM On 10 February 2020, the National Bank of Ukraine published Draft Amendments to the Instruction on Cashless Settlements in Ukraine in the National Currency. The Draft Amendments are aimed at optimizing the procedure for transferring salaries to the bank accounts

of employees that have been opened in different banks. Previously, on 5 August 2019, the NBU introduced the International Bank Account Number (IBAN) in Ukraine. As per the Draft Amendments, employers will be able to form a salary statement for all employees indicating their bank account numbers in IBAN format and their identification codes/numbers instead of forming separate payment orders for all employees and indicating the full range of payment details. Once the employer’s servicing bank receives the money from the employer, it will transfer salaries to the employees based on the salary statement from the employer and the bank’s own payment documents.

Although Ukrainian legislation allows employees to choose their servicing banks, in practice employers often do not cooperate and refuse to accept the employees’ requests to get their salaries in a bank different from the one that the employer regularly works with due to additional paperwork needed from employers. It is for this reason that most companies use so-called “salary projects”, whereby the employer signs an agreement with the bank and all employees receive salaries on their accounts at such a bank. The NBU expects that, once adopted, the Draft Amendments will enable individuals to receive salaries/remuneration on the

March 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

bank accounts of their choice. This should, in turn, stimulate positive competition between Ukrainian banks, broaden the range of banking services and enhance customer service. In addition, the Draft Amendments propose technical amendments aimed at harmonizing the Instruction with recent legislative amendments, in particular the Bankruptcy Code of Ukraine and amendments to the Law of Ukraine On Preventing and Counteracting Legalisation (Laundering) of the Proceeds of Crime, Terrorism Financing, and Financing of Proliferation of Weapons of Mass Destruction. If adopted, the Draft Amendments will take effect from 28 April 2020.

PROMART CONFERENCE

▶MARCH 2020 CONFERENCES DATE

NAME OF CONFERENCE

ORGANIZER

LOCATION

6 March

Women’s Leadership Forum

Ukrainian Bar Association

Kyiv, Ukraine

11-13 March

Crisis, Resilience & Emergency Preparedness 2020 Marcus Evans

Sydney, Australia

13 March

II UBA Customs and International Trade Forum

Ukrainian Bar Association

Kyiv, Ukraine

16-17 March

Brands in Society: Their Influence and Responsibility

International Trademark Association

New York, New York, USA

19-20 March

First International Family Law Conference

Ukrainian Bar Association

Kyiv, Ukraine

19-21 March

4th T.R.A.D.E. Annual Conference

AIJA

Porto , Portugal

20 March

International Criminal Law Forum

Yuridicheskaya Practika Publishing

Kyiv, Ukraine

20 March

II Kharkiv Legal Business Forum

Ukrainian Bar Association

Kharkiv, Ukraine

24 March

The International Schuldschein and Corporate Debt Forum 2020

Euromoney Conferences

Frankfurt, Germany

24-25 March

12th Advanced Conference on Customs Compliance

London, Great Britain

25 March

REDF Saudi Housing Finance Conference 2020

Euromoney Conferences

Riyadh, Saudi Arabia

25-27 March

12th Annual Real Estate Investments Conference

International Bar Association

Amsterdam, The Netherlands

26-27 March

XVI UBA Legal Services Market Development Forum

Ukrainian Bar Association

Kyiv, Ukraine

26-27 March

5th Mergers and Acquisitions in the Technology Sector Conference

International Trademark Association Barcelona, Spain

31 March

Ukrainian Transport Infrastructure Forum

Strategy Council

Kyiv, Ukraine

www.ujbl.info | The Ukrainian Journal of Business Law | January — February 2020

PROMART

LAW DIRECTORY FIRM

HOURLY RATES LANGUAGES

PRACTICE AREAS

MAJOR CLIENTS

Antitrust & Competition, Bankruptcy & Restructuring, Banking and Finance, Capital Markets, Commercial, Corporate, Dispute Resolution (Litigation and International Arbitration), Energy and Natural Resources, Intellectual Property, International Trade, Labor and Employment, Mergers and Acquisitions, Private Сlients, Real Estate & Construction, Tax

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.

WND Ukrainian Russian English

Senator Business Сenter, 15th floor, 32/2 Moskovska Street Kyiv, 01010, Ukraine Tel: +380 44 490 9100 E-mail: office@aequo.ua www.aequo.ua

Антимонопольне та конкурентне право, банківське та фінансове право, банкрутство та реструктуризація, вирішення спорів (судова практика та міжнародний арбітраж), енергетика та природні ресурси, злиття і поглинання, інтелектуальна власність, комерційне право, корпоративне право, міжнародна торгівля, нерухомість і будівництво, оподаткування, праця та зайнятість, приватні клієнти, ринки капіталу

ІНР Українська Російська Англійська

Бізнес-центр «Сенатор», 15 поверх, вул. Московська, 32/2, Київ, 01010, Україна Тел: +380 44 490 9100 E-mail: office@aequo.ua www.aequo.ua

A full range of dispute resolution services: corporate disputes, banking disputes, recovery of bad debts, enforcement proceedings, bankruptcy practice, Alekseev, Boyarchukov and commercial disputes, and clients’ protection Partners in courts of general jurisdiction, as well as in foreign courts and international arbitration tribunals. As well as criminal law and taxation issues.

PJSC “FUIB”, Ukrgasbank, Ukrsotsbank, National Bank of Ukraine, DISCOVERY DRILLING EQUIPMENT, NOVUS, BEEF, SEC Karavan, PJSC State Food and Grain Corporation of Ukraine, PJSC Prominvestbank, PJSC Kyivmiskbud, UKRBUD, ZINTECO

Ukrainian, Russian, English, French

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

Алєксєєв, Боярчуков та партнери

Повний спектр послуг з урегулювання спорів: корпоративні спори, банківські спори, стягнення проблемної заборгованості, виконавче провадження, практика банкрутства, господарські спори, та захист клієнтів, як в судах загальної юрисдикції, так і в іноземних судових органах і міжнародних арбітражних трибуналах. А також кримінальне законодавство та питання оподаткування.

ПАТ «ПУМБ», АБ «Укргазбанк», ПАТ «Укрсоцбанк», Національний Банк України, DISCOVERY DRILLING EQUIPMENT, NOVUS, BEEF, ТРЦ «Караван», ПАТ «Державна продовольчо-зернова корпорація України», ПАТ «Промінвестбанк», ПрАТ «Київміськбуд», «УКРБУД», ZINTECO

Українська, Російська, Англійська, Французька

вул. Шота Руставелі, 11 Київ, 01001, Україна Тел.: +38 044 235 88 77 E-mail: office@abp.kiev.ua www.abp.kiev.ua

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

Leading Ukrainian and foreign companies

WND Ukrainian Russian English

12 Khreschatyk Street, 2 Floor, Kiev, 01001, Ukraine Tel.: +38 044 390 0920 Fax: +38 044 390 0921 office@antikalaw.com.ua www.antikalaw.com.ua

Корпоративне право, злиття та поглинання, банківське та фінансове право, арбітраж, енергетика, антимонопольне право, приватні клієнти, земля та нерухомість, конкурентне право, вирішення спорів, юридична експертиза, інфраструктура та логістика, державно-приватне партнерство та взаємодія з держорганами

Провідні українські та іноземні компанії

ІНР Українська Російська Англійська

вул. Хрещатик, 12, 2-й поверх, м. Київ, 01001, Україна Тел.: +38 044 390 0920 Факс: +38 044 390 0921 office@antikalaw.com.ua www.antikalaw.com.ua

Banking and Finance, Capital Markets, Corporate, Commercial, Competition and Antitrust, International Trade, Dispute Resolution, Environmental, M&A, IP, Labor & Employment, Real Estate, Restructuring & Insolvency, Securities, Taxation, Telecommunications

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

WND English Ukrainian Russian

Leonardo Business Center, 19-21 Bohdana Khmelnytskoho Street, Kiev, 01030, Ukraine Tel.: +380 44 230 6000 Fax: +380 44 230 6001 E-mail: info@asterslaw.com www.asterslaw.com

Банківське та фінансове право, ринки капіталу, корпоративне і комерційне право, антимонопольне право, міжнародна торгівля, вирішення спорів, охорона довкілля, злиття та поглинання, інтелектуальна власність, трудове право, нерухомість, реструктуризація та неплатоспроможність, цінні папери, оподаткування, телекомунікаційне право

Транснаціональні корпорації та провідні українські компанії, фінансові установи, органи державної влади і міжнародні організації

ІНР Англійська Українська Російська

Бізнес-центр «Леонардо», вул. Богдана Хмельницького 19-21, Київ, 01030, Україна Тел.: +380 44 230 6000 Факс: +380 44 230 6001 E-mail: info@asterslaw.com www.asterslaw.com

Aequo

Antika

Юридична фірма «Антіка»

Asters

Астерс

January — February 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

ADDRESS

PROMART

LAW DIRECTORY FIRM

AVELLUM

Baker McKenzie

Бейкер Макензі

Doubinsky & Osharova

Дубинський і Ошарова

EQUITY

PRACTICE AREAS

MAJOR CLIENTS

HOURLY RATES LANGUAGES

ADDRESS

Arbitration; Banking and Finance; Capital Markets; Corporate/M&A; Competition; Cross-Border and Local Litigation, Dispute Resolution; Employment; Fraud Investigation, Asset Tracing and Recovery; Projects, Energy and Infrastructure; Real Estate; Restructurings and Insolvency; Tax

AGCO, Boehringer Ingelheim GmbH, Сenterenergo, Česká exportní banka, a. s., City of Kyiv, Coast2Coast, Deere & Company, Deutsche Beteiligungs AG, EBRD, Ferrexpo plc, ILTA Commodities S.A., ING Bank N.V., Karavan Group, Kernel Holding S.A., MHP S.A., Ministry of Finance of Ukraine, PJSC “Commercial Bank “Center”, Uber, UniCredit Leasing S.p.A.

WND English Ukrainian Russian

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; ринки капіталу; корпоративне право та M&А; конкурентне право; вирішення спорів в міжнародних та українських судах; трудове право; розслідування шахрайства, розшук та повернення активів; проекти, енергетика та інфраструктура; нерухомість; реструктуризація та банкрутство; податки

AGCO, Boehringer Ingelheim GmbH, Česká exportní banka, a. s., Coast2Coast, Deere & Company, Deutsche Beteiligungs AG, Ferrexpo plc, ILTA Commodities S.A., ING Bank N.V., Kernel Holding S.A., MHP S.A., Uber, UniCredit Leasing S.p.A., група Караван, ЄБРР, ПАО «Центрэнерго», Міністерство фінансів України, місто Київ, ПАТ «Комерційний Банк «Центр»

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

Antitrust & Competition, Banking & Finance, Corporate, including M&A and Securities, Compliance, Dispute Resolution, Employment Law, Insurance, Intellectual Property, International & Commercial, IT and Communications, International Trade, Major Projects and Project Finance, Real Estate and Construction, Tax and Customs

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

WND English Ukrainian Russian

Renaissance Business Center 24 Bulvarno-Kudriavska (Vorovskoho) 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 (Воровського), 24 Київ ,01054, Україна Тел.: +380 44 590 0101 Факс: +380 44 590 0110 E-mail: Kyiv@bakermckenzie.com www.bakermckenzie.com/ ukraine

A full range of intellectual property services: acquirement of IP rights; maintenance in force of granted documents and recordal of assignment of rights; enforcement of IP rights and suppression of unfair competition; advisory services in the field of IP rights

Leading foreign and local companies

WND English Ukrainian Russian

110 Zhilyanska Street, 01032 Kyiv, Ukraine Tel.: +38 (044) 490 5454 Fax: +38 (044) 490 5460 E-mail: info@iplaw.com.ua www.iplaw.com.ua

Повний спектр послуг в галузі права інтелектуальної власності: набуття прав інтелектуальної власності; підтримання чинності охоронних документів і реєстрація поступки прав; захист прав інтелектуальної власності та припинення недобросовісної конкуренції; консультаційні послуги

Провідні іноземні та національні компанії

ІНР Англійська, Українська, Російська

вул. Жилянська 110, м. Київ, 01032, Україна Тел.: +38 (044) 490 5454 Факс: +38 (044) 490 5460 E-mail: info@iplaw.com.ua www.iplaw.com.ua

Litigation; Banking and Finance; Restructuring and Bankruptcy; Corporate and M&A; Tax Disputes; Real Estate; Labor; Intellectual Property; Criminal Law; Enforcement Proceedings

Leading foreign and Ukrainian companies, including: Ferrexpo AG, Concorde Capital, Azovmash, NEST Corp., ACME Color, Helen Marlen Group, KristalBank, NorYards AS, Arterium Corp., AutoKraz, IC ”Omega”, SOTA Cinema Group and others

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

Провідні іноземні та українські компанії: Ferrexpo AG, Concorde Capital, Азовмаш, Корпорація НЕСТ, ACME Color, Helen Marlen Group, «КРИСТАЛБАНК», NorYards AS, Корпорація «Артеріум», АвтоКрАЗ, СК «Омега», SOTA Cinema Group та інші

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

www.ujbl.info | The Ukrainian Journal of Business Law | January — February 2020

PROMART

LAW DIRECTORY FIRM

AL GROUP

EUCON Legal Group

ДИЧНА ГРУПА

ДИЧЕСКАЯ ГРУППА

EUCON Юридична Група

PA PRAWNICZA

ДИЧНА ГРУПА ИДИЧНА ГРУПА

PRACTICE AREAS

MAJOR CLIENTS

HOURLY RATES LANGUAGES

Corporate law, Tax law, Transfer Pricing, Labor law, Criminal law/ Economic Crime, Mergers and Acquisitions, Competition law, Intellectual Property, Due Diligence, Administrative law, Land law

Leading international companies, indigenous companies, financial institutions

English, Polish, Ukrainian, Russian

33 T. Shevchenka Blvd., Office 12, Kiev, 01032, Ukraine Tel./fax: +380 44 238 09 44 Tel./fax: +380 44 238 04 13 E-mail: info@euconlaw.com.

Корпоративне право, Податкове право, Трансфертне ціноутворення, Трудове право, Кримінальне право/ економічні злочини, Злиття та поглинання, Антимонопольне /конкурентне право, Інтелектуальна власність, Юридичний аудит, Адміністративне право, Земельне право

Провідні міжнародні компанії, національні компанії, фінансові установи

Англійська, Польська, Українська, Російська

Україна , 01032, м. Київ, бульв. Т. Шевченка, 33, офіс 12 Тел./Факс: +380 44 238 09 44 Тел./Факс: +380 44 238 04 13 E-mail: info@euconlaw.com.

Corporate and M&A, Banking & Finance, Dispute Resolution, Tax, FinTech, Investment, Agro & Land, Energy

FUIB, PIB, Credit Dnepr, East One, SCM, UkrLandFarming, Mriya, Zeppelin Ukraine, Smart-Holding

English, Ukrainian, Russian

52 Bohdan Khmelnytsky Str., Kyiv, 01030, Ukraine, +380 (44) 364 9191 office@evris.law www.evris.law

Корпоративне право та M&A, Банківське та фінансове право, Вирішення спорів, Податкове право, ФінТех, інвестиційні проекти, Аграрне та земельне право, Енергетика

ПУМБ, ПІБ, Кредит Дніпро, East One, СКМ, UkrLandFarming, Агрохолдинг «Мрія», Цеппелін Україна, СмартХолдинг

Українська Російська Англійська

Вул. Богдана Хмельницького 52, Київ, 01030, Україна +380 (44) 364 9191 office@evris.law www.evris.law

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 Fax.: +380 44 581 1222 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 Факс: +380 44 581 1222 E-mail: info@golaw.ua www.golaw.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

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

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

Evris

Евріс

GOLAW

Konnov & Sozanovsky

Коннов і Созановський

ADDRESS

January — February 2020 | The Ukrainian Journal of Business Law | www.ujbl.info

PROMART

LAW DIRECTORY FIRM

MAJOR CLIENTS

Litigation, Banking and Finance, Bankruptcy and Restructuring, International Arbitration, Corporate Law, Tax Law, Business Protection, Intellectual Property

VR Global Partners, Alfa-Bank, Prominvestbank, FUIB, AVK Confectionery Company, Bunge Ukraine, FOZZY GROUP, TNT Express Worldwide, MRIYA Agro Holding, Spike Trade, Humana People to People, Deposit Guarantee Fund, Ministry of Justice of Ukraine, FC Vesta, FC Kontraktovyi Dim (EasyPay), OTP Bank, Universal Bank, Allianz Ukraine, Yuria-Pharm, Avtosojuz, IMMER Ukrplastic

WND English, German, French, Ukrainian, Russian

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

Cудова практика, банківське і фінансове право, банкрутство, міжнародний арбітраж, корпоративне право, податкове право, захист бізнесу, інтелектуальна власність

VR Global Partners, Альфа-Банк, Промінвестбанк, ПУМБ, Кондитерська група «АВК», Bunge Ukraine, FOZZY GROUP, TNT Express Worldwide, МРІЯ Агрохолдинг, Spike Trade, Humana People to People, ФГВФО, Mіністерство юстиції України, ФК «Веста», ФК «Контрактивий дім» (EasyPay), OTP Bank, Universal Bank, Альянс Україна, Юрія-Фарм, Автосоюз, IMMER Ukrplastic

ІНР Англійська, Німецька, Французька, Українська, Російська

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

Antitrust and Competition, Financial Services, Commercial Contracts, FCPA/UK Bribery Act and Anticorruption, Corporate, International Dispute Resolution, International Trade and Export Controls, Intellectual Property and Technology, Labor and Employment Law, Litigation, Mergers and Acquisitions, Private Equity and Venture Capital, Real Estate, Tax Strategy and Benefits

Accenture, Carlsberg Ukraine, ContourGlobal, Furshet, Group DF, Lufthansa Ukraine, Vodafone Ukraine, Orithil, Ukrainian Construction Company, UniCredit Bank, United Capital Partners, Velti, Winner Imports Ukraine, Boeing

WND Ukrainian Russian English German

12 Khreschatyk Street, Kiev, 01001, Ukraine Tel.: +380 44 591 3100, Fax: +380 44 591 3115 salkom@salkom.kiev.ua www.salkom.ua

Банківське та фінансове право, вирішення міжнародних спорів, дотримання антикорупційних норм (FCPA/ UK Bribery Act), злиття і поглинання, інтелектуальна власність, конкурентне право, контрактне право, корпоративне право, міжнародна торгівля та експортний контроль, нерухомість, податки, приватний і венчурний капітал, представництво в судах, трудове право

Accenture, Карлсберг Україна, Контур Глобал, Фуршет, Group DF, Люфтганза Україна, Vodafone Україна, Orithil, Українська будівельна компанія, УніКредіт Банк, United Capital Partners, Велті, Віннер Імпортс Україна, Boeing

ІНР Українська Російська Англійська Німецька

вул. Хрещатик, 12 Київ, 01001, Україна Тел.: +380 44 591 3100, Факс: +380 44 591 3115 www.salkom.ua

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 Str., 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

LCF LAW GROUP

Salkom in association with Squire Patton Boggs

«Салком» в асоціації з Сквайр Паттон Боггс

Sergeyevs’ Law Office

Юридичне бюро Сергєєвих

HOURLY RATES LANGUAGES

PRACTICE AREAS

ADDRESS

www.ujbl.info | The Ukrainian Journal of Business Law | January — February 2020

PROMART

INFORMATION FOR WRITERS

Writing for the UJBL Guidelines for Authors

Index to Advertisers in UJBL

As a service to our readers and advertisers, we are 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. • Author’s Personal Info Please include phone and fax numbers, e-mail, and a brief biographical note with the author’s professional status. We also need the author’s photo for the publication. • Style 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. • Editing 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.

The Ukrainian Journal of Business Law 25А "L" Dehtyarivska Street, Kiev, 04119, Ukraine Telephone: +38 (0)44 495-2727, Telefax: +38 (0)44 495-2727 E-mail: editor@ujbl.info

listing the advertisers and their page numbers.

Antika 37 Asters outside back cover AVER LEX 1 EQUITY 13 Gryphon 41 Ilyashev & Partners inside front cover LCF Law Group inside back cover Legal Awards 2020 5 Legal High School 9 Moris 11 Restructuring and Bankruptcy Forum 19 Salkom 7 Task Force 47 The Ukrainian Investment Roadshow in New York 8 The Ukrainian Journal of Business Law 3 Ukrainian Arbitration Forum 36 Ukrainian Attorney 12 Ukrainian Law Firms 2020. A Handbook for Foreign Clients 46 Ukrainian Transport Infrastructure Forum 31 VII International Tax Forum 29

▶2020 EDITORIAL CALENDAR

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

Banking & Finance

closed

March

International Crime

closed

April

Intellectual Property

closed

26 March

May

M&A

3 April

27 April

June

Access to Justice

4 May

27 May

July — August

IT and Telecommunications

3 June

26 June

September

Real Estate and Land

3 August

27 August

October

Investment Regulation

3 September

25 September

November

English Law

2 October

26 October

December

Asset Recovery

3 November

27 November

Back Issues & Subscriptions 52

Back issues and subscriptions may be obtained from Yuridicheskaya Practika Publishing, 25А, "L" Dehtyarivska Street, Kiev, 04119, 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 Kiev and other major cities.

January — February 2020 | The Ukrainian Journal of Business Law | www.ujbl.info