#11-12 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 debtors 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, lets have a look at what a foreign creditor should undertake to enforce ones 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 debtors 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.

Banks Nonperforming Exposures Strategy 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 counselto UDP Renewables

Sayenko Kharenko 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 theLeadership in Times of Crisis projectin 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

IrynaFedorovych

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 LCIAs 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 countrys 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.

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