The Ukrainian Journal of Business Law

[http://ukrainianlawfirms.com] Counse link ANTIKA Law Firm 12, Khreshchatyk street, 2-nd floor, Kyiv , 01001 , Ukraine Phone: +38 (044) 390 09 20 Fax: +38 (044) 390 09 21 office@antikalaw.com.ua www.antikalaw.com.ua/en Arzinger Senator Business Center, 32/2 Moskovska street, 10th floor, Kyiv , 01010 , Ukraine Phone: +38 (044) 390 55 33 Fax: +38 (044) 390 55 40 mail@arzinger.ua www.arzinger.ua Asters Leonardo Business Center, 14th floor, 19-21 Bohdana Khmelnytskoho St., Kyiv , 01030 , Ukraine Phone: +380 44 230 6000 Fax: +380 44 230 6001 info@asterslaw.com www.asterslaw.com DLF attorneys-at-law Torus Business Centre, 17d Hlybochytska Street, Kyiv , 04050 , Ukraine Phone: +380 44 384 24 54 Fax: +380 44 384 24 55 info@dlf.ua www.dlf.ua GOLAW 19B Instytutska Street, Office 29, Kyiv , 01021 , Ukraine Phone: +38 (044) 581 12 20 Phone: +38 (044) 581 12 21 Fax: +38 (044) 581 12 22 info@golaw.ua www.golaw.ua Ilyashev & Partners 11 Kudryavska Str, Kyiv , 04053 , Ukraine Phone: +38 (044) 494 19 19 Fax: +38 (044) 494 19 99 office@attorneys.ua www.attorneys.ua Inyurpolis law firm (ILF) 14-A †Skrypnyka Street, Kharkov , 61057 , Ukraine Phone: +38†(057)†728 00 00 Fax: +38†(057)†714 06 28 office@ilf-ua.com www.ilf-ua.com Konnov & Sozanovsky 23 Shota Rustaveli Street, Suite 3, Kiev , 01019 , Ukraine Phone: +380 (0) 44 490-5400 Fax: +380 (0) 44 490-5490 info@konnov.com www.konnov.com LCF Law Group 47 Volodymyrska street, Office 3, Kyiv , 01034 , Ukraine Phone: +38 (044) 455 88 87 Fax: +38 (044) 502 55 23 info@lcfgroup.com.ua www.lcfgroup.com.ua/en/ Sayenko Kharenko 10 Muzeyny Provulok, 7th floor, Kyiv , 01001 , Ukraine Phone: +380 44 499 6000 Fax: +380 44 499 6250 info@sk.ua www.sk.ua CURRENT ISSUE ( November-December 2020 ) In focus – Asset Recovery Given the highly multinational nature of business and investment vehicles, asset tracing and recovery matters are becoming more and more cross-border. Ukraine is notably in the very mainstream of this trend. But these actions are still expected to be complicated, time consuming and costly. Little progress has been made to recover public assets from top officials who fraudently hid assets overseas. In turn, the situation in the corporate sector is more predictable and there are still some success stories. In light of the Covid-induced recession there is likely to be a significant rise in insolvency cases in coming years. Expert Opinion Investment into Chasing Debtors: Ukrainian Realities Volodymyr Yaremko, Yaroslava Franck Chasing debtors can be a tricky task, which sometimes requires a lot of resources to cover asset tracing, litigation, enforcement, and other costs. It can be especially burdensome if the debtorТs assets are scattered across the world or a contract at stake provides for expensive dispute resolution forums. That is why the idea of getting investments to finance dispute resolution has been on the table for a while in Ukraine. In Re How to Enforce an Arbitral Award Against a Ukrainian Company Going Bankrupt Dmytro Monastyrskyi, Oleksii Hlovatskyi The complicated economic situation and military activity in industrial Eastern Ukraine has brought a large number of Ukrainian companies operating in the region to insolvency. Needless to say, recurring economic shocks and multiple other factors can also pose bankruptcy risks for businesses not directly affected by the war. Companies engaged in commercial relations with foreign partners typically prefer to resolve disputes via international commercial arbitration. A situation that a foreign business may face is winning an arbitration proceeding and having an arbitral award against a company starting insolvency proceeding in Ukraine, which makes it considerably harder to achieve actual recovery. So, letТs have a look at what a foreign creditor should undertake to enforce oneТs arbitral award in this situation. Rediscovering Vicarious Liability as an Effective Tool in Ukrainian Insolvency Law Oksana Volynets Ukraine and Ukrainian businesses continue to face considerable economic challenges and, as a result, the level of asset and debt misappropriation remains high. Creditors and affected parties have to apply all available instruments in order to recover the fullest extent possible. Given the recent codification of insolvency laws and judicial practice already developed, the application of vicarious (secondary) liability, being the liability of the shareholders and other parties that may be held liable for the debtorТs debts, might become an efficient tool to be aware of when it comes to debt recovery. Some insights into practical considerations on applying this type of liability are provided in this article. BankТs Nonperforming Exposures Strategy Ч Reflecting on COVID-19 Pandemic Challenges Michael Shomin The ongoing COVID-19 pandemic significantly effects business activity and the level of nonperforming loans in the banks portfolios as a consequence. Banks must respond in a timely manner to economic problems caused by pandemic restrictions when it comes to effective management of nonperforming loans (NPL). The Bank’s Supervisory Counsel is responsible for setting up a Nonperforming Exposures Strategy which establishes strategic objectives for the timebound reduction of NPLs over realistic but sufficiently ambitious horizons in a clear, credible and feasible manner for each relevant portfolio, which seems to be quite a complicated task during a pandemic. News Deals AVELLUM and Sayenko Kharenko acted on† USD 333 million Eurobond issue and cash tender offer by Metinvest Sayenko Kharenko acted as advisor on sale of Ukrainian railway operator to Glencore EVERLEGAL acted as a legal counsel†to UDP Renewables Sayenko Kharenko Ч legal adviser on 800 MW wind farm project EPC contract Cases Courts wrote off Halychyna’s 1.2 billion debt to Ukreximbank Uber won appeal on continuing its operations in London European Commission challenges decision of European Court of Justice to cancel fine imposed on Apple Draft Draft law on debt repayment of Ukrnafta and compensation to Naftogaz E-residency with income tax at 5% is offered to foreign IT specialists. Draft law on self-regulatory organizations registered in Parliament Parliament decided to regulate activities of debt collectors and set requirements Biznews COVID-19 IMF estimated global damages incurred by corona crisis at USD 30 trillion Trade Policy WTO allowed EU to introduce duties worth USD 4 billion on US goods following Boeing case Digitalization Microsoft to invest USD 1 billion in building data centers in Greece Ministry of Digital Transformation will cooperate with Microsoft in field of digital transformation Agriculture EU approved agricultural policy reform Electronics Apple lost USD 100 billion due to postponement of iPhone presentation Oil & Gas Polish oil and gas company signed an agreement on gas production in Ukraine Mobile Applications Tinder and Spotify created coalition against AppStore Law digest President of Ukraine signed law on a moratorium on state-financed institutions bankruptcy Zelensky signed decree aimed at attracting Belarus IT specialists Terms of bilateral agreements in electricity market altered Double-entry e-visa for foreigners: new visa arrangement rules Chamber News AmCham Ukraine wins European Creative Network Award 2020 AmCham Ukraine has been announced WINNER of the 2020 AmChams in Europe (ACE) Creative Network Award. The Leadership in Times of Crisis project has been recognized as the best creative network project among AmChams in 43 countries. AmCham Ukraine launched the† Leadership in Times of Crisis project †in April 2020 to give members a platform to communicate the new realities of work, how to lead during uncertainty, inform about how businesses have been impacted, and share their experience on how companies help local communities during the COVID-19 pandemic. Cover Story Navigating Complexity Asset recovery litigation became truly internationalized as business preferred to hold assets across multiple jurisdictions. Arisen conflicts and fraud provide a huge challenge for getting access to justice and enforcing awards. We have invited James Hart and Serhii Nyzhnyi , partners of Hillmont Partners, to discuss the process and effective strategies of asset recovery in Ukrainian realities, essential legal tools in key jurisdictions, their experience in navigating complex cross-border matters, as well as the prospects of third-party litigation funding. Global Legal Update The Practical Aspects of English Law Governed International Arbitrations Iryna†Fedorovych Despite Brexit, England remains the preferred forum for arbitration, usually being a predominant choice in cross-border contracts, even when the governing law of the contract has no relation to the country. According to the LCIAТs 2019 Annual Casework Report, England is the most frequently chosen arbitral seat (89%) and English law remains the most frequently chosen law, governing 81% of arbitrations administered pursuant to LCIA Rules. Argument Legal, Documentation and Insolvency Issues of OTC Derivatives Dmytro Pshenychniuk, Viktoriia Luganska The development of a robust local financial market is one of the priorities for Ukraine as this would pave the way for the rapid growth of the national economy, providing borrowers with an alternative funding source in addition to bank lending. This article discusses main features of over-the-counter (OTC) derivative documentation and certain legal issues raised by the Law of Ukraine On Capital Markets and Organised Commodity Markets , which will come into force from 1 July 2021, except for specific close-out netting provisions which came into effect from 16 August 2020. No Promises, No Forgiveness: The Prospects of Foreign Investors in International Arbitration against Ukraine Olha Horodniuk Over the past few years, due to establishment of favourable conditions for the development of the renewable energy sector, the number of Ukrainian electricity producers from renewable energy sources (RES) has rapidly increased. Also, numerous investments have been attracted into the RES market. However, as of now, an open question remains as to whether such favourable conditions justify the goals and whether they eventually appeared to be burdensome for Ukraine. Legal Analysis of the State of Land Reform in Ukraine from the Standpoint of Landowners Rostyslav Nykitenko Ukraine is a country with a unique natural resource. In terms of the countryТs total area of agricultural land, Ukraine is number one in Europe and accounts for 30% of all agricultural land in the EU. Of course, having such potential, the agricultural sector is a priority area of development, but it is only in recent years that Ukraine has begun to expand the capabilities of the agricultural sector. Crux Legal Digest Over the course of several months we`ve carefully monitored legislation amendments and new initiatives to select the ones which could well have the most significant impact on business and the economy. To name a few, Draft Laws No. 4167 On Prevention, Reduction and Control of Industrial Pollution; No. 3637 On Virtual Assets †and the amendments to the Bankruptcy Code of Ukraine that have recently come into force. The UJBL editorial team asked our experts to share their points of view on the above-mentioned and other important issues. † Subscribe Subscribe to The Ukrainian Journal of Business Law right now and enjoy the most relevant issues on doing business in Ukraine on your device or in print. All this for just USD 9.99 a month. 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