#07-08 July-August 2014

In focus – Competition

Competition policy is the main economic policy domain that shapes business environment in a country. It affects big business, strategic and sensitive markets, eliminating distortions of market power abuse.

Over the last couple of years many pieces of comparative research of Ukrainian competition law with best international practices have shown that legislation was, to a great extent, designed in line with European standards…

With the support of Tax Regulation

“God save you from living in the times of change” is the phrase attributed to ancient Chinese philosopher Confucius, who lived before Christ. However, nothing has changed in several millennia either. Ukrainian business faces poor luck and continues to live in times of change.

The Ministry of Revenue and Taxes of Ukraine existed a bit longer than one year with the status of the national executive authority in charge of state policy in the area of taxation under coordination by the Cabinet of Ministers of Ukraine…

Expert Opinion

Fines Imposed by the Antimonopoly Committee of Ukraine

Oleg V. Akhtyrskyi, Oleksiy V. Soloviov

Over the past several years the Antimonopoly Committee of Ukraine (the AMCU) has significantly strengthened its punitive pressure on businesses in Ukraine. Such cases are numerous, especially in politically sensitive or socially important areas of the Ukrainian economy (e.g. food, retail, electricity & fuel) where the sums of fines have reached millions of EUR.

In 2013 the AMCU imposed UAH 744 million worth of fines (approximately EUR 46 million) for violations of competition laws, which is 1.8 times higher than in 2012...

In Re

The Dissemination of Misleading Information. Ukrainian Practice

Victoria Y. Ptashnyk, Oleksandr P. Medvetskiy

In 2009 Article 15-1 providing responsibility for dissemination of misleading information was introduced to the On Protection against Unfair Competition Act of Ukraine. The investigation of cases of its violation was related to the competence of the Antimonopoly Committee of Ukraine (hereinafter — the AMCU).

According to Article 15-1 of the mentioned Act the dissemination of misleading information shall mean the provision by a business entity, directly or through any other person, to one or several persons or an indefinite number of persons, including in advertisement, of incomplete, inaccurate, unreliable information, in particular, as a result of a selected method of statement, concealment of certain facts or inaccurate wording that affected or may affect the intention of those persons to purchase (order) or dispose of (sell, supply, perform, provide) products, works, and services of such business entity…

Ring-Fencing Concept in Competition Law: Ukraine vs. EU When merger control rules

Olga G. Mikheieva

Approximately 120 jurisdictions around the world have merger control laws on their books, designed to regulate acquisitions on competition law grounds.

The general theory behind merger control laws is that it is better to prevent a company attaining a position of market power, which would facilitate anti-competitive behavior, than to regulate a dominant company post factum. Therefore, various merger control regimes around the world have one common aim — to detect acquisitions that would result in an unacceptable degree of concentration in the market (usually by establishing a requirement for pre-completion notification or clearance) and prohibit or modify them to remove the anti-competitive effect (if they have not yet gone ahead) or remedy them when a transaction that is doubtful from the competition law perspective has been already competed…

Breach of Competition Law through Divulging of Trade Secrets

Vitaliy S. Bakhurinskiy, Artem Y. Ustiugov

Protection against unfair competition in Ukraine is currently at the stage of formation. Although the position regarding clarification competition law compliance and appropriate decision of the Antimonopoly Committee of Ukraine in this area confirm an attempt to educate fair discipline and fair play on the market. Furthermore, given the fact of positive movement toward Ukraine in the legal consciousness of European countries, as well as attempt to translate the experience of developed countries in their activities, it is hoped that Ukrainian security system will summarize relevant experience and eventually reach the most effective form of combating unfair competition…

Global Legal Update

Effect-based Approach in Merger Control

Iryna S. Fomina, Anastasia A. Usova

In today’s dynamic world competition has become a basis for economic development, which has so far been the best booster of economic growth. The last two decades have witnessed an impressive growth of fast developing sectors such as IT, pharmaceuticals, energy, with markets facing a significant intensification of competition. The Antimonopoly Committee of Ukraine (the AMCU) plays an important role in protecting effective competition with a particular focus on merger control, which is evidenced by a notably large number of merger reviews that grows year by year…

Business Lunch

In Search of a Neutral Platform

The request for alternative dispute resolution tends to gain popularity for businesses originated in transitional jurisdictions. Usually, their court systems are weak and do not succeed in terms of credibility.

After the recognition of the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) in the 1970s by the U.S. and the Soviet Union as a neutral forum for dispute resolution, the SCC expanded its services in international commercial arbitration. Today, the SCC enjoys the status of one of the most frequently used international arbitration institutions in the world. We asked Annette Magnusson, Secretary General of the Arbitration Institute of the SCC, to share her vision of the SCC role in the CIS region…

Cover Story

Igor Svechkar – Competition on the Radar

Since a wide-ranging course on the changing rules of the game for business in Ukraine has been launched, competition law issues appear on the radar as an essential priority of developing a favorable investment climate in the country. For many years the public discussion around numerous reasonable incentives received distinctive prospects to be adopted. We discussed these and many other issues recently with Igor Svechkar, partner of Asters law firm, who has been a top practitioner in this practice for the last decade…

Venue

Insight of Intellectual Property in Ukraine

Yuridicheskaya Practika Publishing, in unison with the State Intellectual Property Service of Ukraine, held I Intellectual Property Forum 2014 on 26 June 2014 at the Premier Palace Hotel in Kiev. The scale of the event was impressive: lawyers, who specialize in protecting the rights of intellectual property, in-house lawyers, patent attorneys, court experts, judges, representatives of the state bodies. All of them attended the forum. Patent and Law Agency Doubinsky & Osharova and IP and Law Firm  Pakharenko & Partners became general partners of the event…

Crux

Legal Pitfalls in Crimea

Considering the current situation in Crimea, in particular circumstances influenced on doing business there, it is clear that there are more questions than answers despite legislative settlements undertaken from both the Ukrainian and Russian sides. At present only the optimists retain confidence in doing business in the territory of the Crimean peninsula in line with the usual civilized rules. Perhaps, for the Ukrainian side the incurring of damages and reservation of right of ownership and other rights of property are the most pressing issues. And the range of pitfalls grows all the time…

 

Kyrylo Antonov

Losses associated with occupation of Crimea by the Russian Federation include:

  1. Loss of income resulting from impossibility to carry out entrepreneurial activity in the previous volumes (including due to the application by civilized nations of sanctions in respect of goods originating from the occupied territories). These losses are mostly export-oriented enterprises, whose counterparties are customers from different countries of the world…

 

Dmytro Shemelin

Although the Verkhovna Rada did its best to provide the relevant legislative framework for the transfer of cases from Crimean courts to courts on the “mainland”, in practice, the consideration of the transferred court cases is difficult.

First, for a Crimean resident it is very difficult to have his or her case record transferred to the receiving Ukrainian court. Crimean courts, which are now under the control of the Russian state, are naturally reluctant to cooperate…

 

Tymofey Sykorskiy

Legal regulation of Ukrainian companies in Crimea raises a number of questions.

Commercial activity in Crimea includes various spheres, each of them regulated using various methods. For instance, real estate transactions in Crimea were de-facto paralyzed, any alienation of such real estate outside of the peninsula is risky.

According to Article 13 of the On Ensuring the Rights and Freedoms of Citizens and on Legal Regime on the Temporarily Occupied Territory of Ukraine Act of Ukraine, economic activities in Crimea are regulated by the law…

 

Larysa Vrublevska

After the annexation of Crimea, many taxpayers faced numerous challenges: how to work, how to make payments and where to pay taxes?

In order to continue their operations, the Ministry of Revenue and Taxes suggested that all companies that have decided to stay within the jurisdiction of Ukrainian legislation should re-register and replace their current location with any other region of Ukraine. All Crimean branches of Ukrainian companies will be re-registered at the location of their parent companies…

 

Natalia Meshcheriakova

The Federal Intellectual Property Service states that according to the provision of the On Admission of the Republic of Crimea to the Russian Federation Act any natural or legal entity that resides or locates in Crimea and is an owner of the intellectual property rights that have been registered before 18 March 2014 in Ukraine has the right to appeal to the Federal Intellectual Property Service in order to declare one’s exclusive rights on the territory of the Russian Federation.

However, it provokes solid troubles as lots of trademarks that have been registered by Crimean enterprises or individuals are similar to the trademarks registered in the Russian Federation prior to Ukrainian registrations…

 

Andriy Zhupanyn

Despite the fact that Ukraine has adopted a number of legislative initiatives aimed at creating a possibility to move business from Crimea, it is clear that immovable property is inseparable from its location. Considering this local regulations and Russian legislation are important to the owners of real estate in Crimea.

First of all, Russia recognizes the private property of Ukrainian citizens, foreign companies and legal entities established under the Acts of Ukraine…

 

Yevgen Porada

The current situation in Crimea raised a number of issues in the banking area, including protection of depositors’ rights. This is a well known fact that currently the governmental bodies and state institutions of Ukraine are notable to fully perform their duties in Crimea. Since the banking system cannot operate currently without effective government control, on 6 May 2014 the National Bank of Ukraine (the NBU) adopted its Regulation No.260 which expressly obliged all Ukrainian banks to close their existing branches and divisions in Crimea within one month, prohibited opening new branches and divisions there, and prohibited Ukrainian banks from providing any financial services in Crime through their commercial agents…

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