Category: Ukraine

  • Typical Requirements for Vertical Concerted Actions Came into Effect

    On 5 December 2017, Typical Requirements for Vertical Concerted Actions of Business Entities (hereinafter the “Typical Requirements”), approved by the Antimonopoly Committee of Ukraine (the “AMC”), became effective.

    According to the Typical Requirements, vertical concerted actions are those carried out between two or more undertakings, each of which

    • acts at a different level of the production or distribution chain, and
    • may purchase, sell or resell certain goods or services.

    Agency agreements are not recognized by the Typical Requirements as vertical concerted actions if agents do not bear significant financial and/or commercial risks as a result of their activities.

    Apart from the concerted actions described below, which are allowed and do not require getting a prior AMC approval, the Typical Requirements also list vertical concerted actions, which are assumed to be anticompetitive and require the AMC approval in order to be carried out. 

    Therefore, vertical concerted actions are allowed and do not require the AMC approval if:

    • the appropriate market shares held by the supplier or buyer do not exceed 30% on the markets they sell or purchase the goods or services on;
    • subject to the preceding paragraph:
      • concerted actions are carried out between an association of undertakings and its members, with the condition that all its members are retailers of goods and if no individual member of the association has a total annual turnover for the preceding fiscal year exceeding EUR 25 million;
      • concerted actions contain provisions which relate to the provision or use by the buyer of intellectual property rights (under certain conditions); and/or
    • concerted actions are carried out between contractor and subcontractor (in certain cases).

    Vertical concerted actions are not allowed and require a prior AMC approval (with some exceptions) if they:

    • are carried out between competing undertakings;
    • include hard-core restrictions (for example, restrictions relating to the determination of sale price, territory or customer group);
    • include a non-compete obligation concluded for the duration of more than 5 years or for an indefinite period;
    • include any obligations forcing the buyer, after termination of the agreement, not to manufacture, purchase, sell or resell goods or services;
    • include any obligations forcing the members of a selective distribution system not to sell the brands of particular competing suppliers; and/or
    • are performed by different (unrelated) undertakings in parallel networks, and such networks cover more than 50% of an appropriate market.

    If there is any doubt as to whether certain vertical concerted actions will be considered as prohibited and such that may require a prior approval from the AMC, the competition legislation provides the possibility for participants of such concerted actions to refer to the AMC for recommendations as to the nature of such actions.

    By Oksana Simonova, Partner, and Olga Mikheieva, Senior Associate, Baker McKenzie Turkey

  • Aequo Advises EBRD on USD 25 Million Loan to Astarta

    Aequo Advises EBRD on USD 25 Million Loan to Astarta

    Aequo has advised the EBRD on matters of Ukrainian law related to its USD 25 million loan to Astarta, a Ukrainian agribusiness operator and sugar producer. 

    The proceeds of the loan will be utilized to develop and modernize the existing grain and sugar production infrastructure.

    In particular, the project involves the construction and acquisition of six grain storage facilities with a total capacity of 480,000 metric tons, and the construction of one sugar storage facility with a total storage capacity of 50,000 metric tons. The new storage facilities will be located in the Poltava and Khmelnitsky regions of Ukraine.

    Aequo lawyers assisted with the drafting and the execution of the financing documentation and issued a legal opinion in favor of EBRD. The firm’s team was supervised by Partner Yulia Kyrpa and included Senior Associate Yevgen Blok.

     

  • Vasil Kisil & Partners Represents Construction Company in Dispute with Kiev City Council

    Vasil Kisil & Partners Represents Construction Company in Dispute with Kiev City Council

    Vasil Kisil & Partners has successfully represented construction-company Rele for the second time in a dispute with the Kiev City Council involving the premature termination of a 49-year land lease agreement. 

    According to VKP, “both the Court of Appeals and the Cassation Court acknowledged that, after finishing the construction and commissioning of the building, a good-faith lessee of the land plot leased out for construction and maintenance of that building is entitled to rescind the land lease agreement. In view that the title to the premises in the building constructed by the lessee and the right to use the land plot has passed to the new owners of the premises in the building, the courts have arrived at the conclusion that the long-term land lease agreement must be prematurely terminated.”

    Thus, the Court rules, the construction company is not obliged to pay the rent for another 30 years for a land plot that it is no longer using.

    The VKP team included Partner Oleg Kachmar, Senior Associate Yuriy Kolos, and Associate Oleksandra Bortman.

     

  • Dispute Duo Debuts at Integrites

    Dispute Duo Debuts at Integrites

    Former Avellum Partner and Head of Dispute Resolution Dmytro Marchukov and Senior Associate Serhii Uvarov have joined Integrites as Partner and Counsel, respectively.

    According to Integrites, “the new team members have extensive expertise in representing international and Ukrainian clients in close to every kind of dispute resolution matters, namely local and cross-border litigation, transnational insolvency and receivership, asset tracing and recovery, fraud investigation, anti-bribery probes, enforcement of mortgages and pledges (including against shareholdings in Ukrainian companies), commercial and investment arbitration under the major institutional and ad hoc rules, as well as recognition and enforcement of foreign judicial and arbitral awards. They have acted for the clients under the ICSID, ICC, SCC, LCIA, UNCITRAL, LMAA, JAMS, ICAC at CCI of the Russian Federation and ICAC at Ukrainian CCI Arbitration Rules. Dmytro Marchukov and Serhii Uvarov have worked on almost two dozens of arbitrations and arbitration-related court proceedings involving sovereigns and quasi-sovereigns. They were also engaged in a number of the Crimea-related investment arbitrations.”

    “We are joining Integrites with lots of enthusiasm,” said Marchukov. “The firm already has partners in its ranks who are very well recognized and respected in dispute resolution. Nonetheless, Serhii and myself do have the necessary experience behind our backs to help the firm reach new heights and gain even more success. Just looking forward to that.”

    “I am delighted to be joining Integrites where I have many friends,” commented Uvarov. “This is also a great challenge. The cross-border dispute resolution and arbitration practices of Integrites are exceptionally strong. We are determined to perfect them even further.”

    “Integrites continues the implementation of the strategy of expanding and strengthening practices, in particular one of the main directions, the practice of dispute resolution, so we are happy to welcome Dmytro Marchukov and Serhii Uvarov to our team,” commented Managing Partner Oleksiy Feliv.

    When contacted for comment, Avellum Managing Partner Mykola Stetsenko explained that, “we of course respect our former colleagues’ decision to move to a different platform, but we do not expect these departures to have any significant impact on our practice. Our core litigation team remains in place and will continue supporting our corporate, finance, tax, and real estate practices. Avellum remains committed to its drive for excellence and strong preference for organic growth. With this in mind, we will be announcing our major promotions later this month.”

     

  • Avellum Advises Deere & Company on Ukrainian Employment Issues Related to Acquisition of Wirtgen Group

    Avellum Advises Deere & Company on Ukrainian Employment Issues Related to Acquisition of Wirtgen Group

    Avellum has advised Deere & Company on Ukrainian employment matters related to its USD 5.2 billion acquisition of the Wirtgen Group.

    Deere announced its acquisition of the Wirtgen Group in December 2017. According to Avellum, “the Wirtgen Group will enhance the size, scale, and stature of Deere’s construction equipment business and will help Deere to continue its global growth.”

    Deere is a NYSE-listed American manufacturer of machinery for the construction, agricultural, forestry sectors, and other field equipment.

    The Wirtgen Group is a road construction equipment manufacturer headquartered in Germany.

    The Avellum team was led by Managing Partner Mykola Stetsenko, supported by Associates Andrii Gumenchuk and Sofiia Kostytska.

     

  • Asters Advises IFC on EUR 30 Million Financing to IMMER Group

    Asters Advises IFC on EUR 30 Million Financing to IMMER Group

    Asters has acted as Ukrainian law counsel to the International Finance Corporation in connection with an over EUR 30 million loan to the IMMER Group, a Eastern European producer of flexible packaging.

    IFC’s financing package includes EUR15 million in debt, mobilized from other lenders. According to Asters: “Designed to support the growth of IMMER Ukrplastic, Ukraine’s largest manufacturer of flexible packaging materials, the project aims to strengthen the competitiveness of local industry, support job creation, and boost the growth of a competitive export-oriented company.”

    Asters team Partner Iryna Pokanay, Counsel Gabriel Aslanian, and Associate Inna Bondarenko.

     

  • Asters Appoints Petrov to Partner

    Asters Appoints Petrov to Partner

    Yaroslav Petrov has been promoted to Partner at Asters in Ukraine.

    Petrov, who focuses on energy law projects and dispute resolution, joined Asters as an associate in June 2010 and was promoted to Counsel in July 2014. He holds a Master’s of Law degree from the Donetsk National University and an LL.M. in International Arbitration from Stockholm University.

    Asters Senior Partner Armen Khachaturyan comments, “Yaroslav Petrov is well regarded by colleagues and peers for his pro-active professional skills and business development talents. This valuable addition enhances Asters partnership even further raising the firm’s diversity and capability in providing the best service our clients deserve.”

     

  • Sayenko Kharenko Advises Toronto-Kyiv on Restructuring with of Alfa-Bank Loan

    Sayenko Kharenko Advises Toronto-Kyiv on Restructuring with of Alfa-Bank Loan

    Sayenko Kharenko has advised PJSC Toronto-Kyiv on the complex restructuring of a cross-border syndicated loan facility from PJSC Alfa-Bank raised to develop the Toronto-Kyiv Business Center located in downtown Kyiv.

    With the amount of restructured debt of approximately USD 100 million, the deal is reported to be the biggest financial restructuring completed under the recently enacted Financial Restructuring Law of Ukraine.

    The Toronto-Kyiv Complex, which is located in the heart of the historical & business district in Kyiv, consists of Class A office premises, retail space, restaurant areas, five floors of underground parking, and a Holiday Inn Kyiv hotel, managed by the InterContinental Hotels Group.

    Sayenko Kharenko’s team was led by Counsel Oleksandr Nikolaichyk assisted by Associates Daryna Dashkevych, Oksana Daskaliuk, and Mykhailo Grynyshyn, under the general supervision of Partner Michael Kharenko. Partner Nazar Chernyavsky and Counsel Anton Korobeynikov advised on the application of financial restructuring procedures under the new law.

     

  • CMS and Sayenko Kharenko Advise on Black Sea Port Joint Venture

    CMS and Sayenko Kharenko Advise on Black Sea Port Joint Venture

    CMS Cameron McKenna Nabarro Olswang in Kyiv has announced that it advised SD Capital on English and Ukrainian law aspects of a joint venture transaction involving towage services in Ukraine’s Black Sea port of Yuzhnyi. P&O Maritime was advised on English law by Clyde & Co. and on Ukrainian law by Sayenko Kharenko. 

    As part of the transaction, P&O acquired control over the Ukrainian harbor towage company LB Shipping. 

    P&O Maritime is owned by DP World Group — one of the worlds’ largest port operators. The deal was signed by Andrey Stavnitser, SD Capital Partner, and DP World Group‘s Chairman and CEO, Sultan Ahmed Bin Sulayem, in November 2017 after a visit by Ukrainian President Petro Poroshenko to DP World Group‘s headquarters in the UAE.

    The CMS team was led by Kyiv Managing Partner Graham Conlon and Senior Associate Tetyana Dovgan and included Vitalii Mainarovych, Olga Belyakova, Natalia Nakonechna, Olena Basanska, Diana Pysarenko (all in Kyiv) and Christian Delgado (in Amsterdam).

    The Sayenko Kharenko team was led by Partner Vladimir Sayenko, supported by Counsels Maksym Nazarenko, Oleksandr Nikolaichyk and Alina Plyushch, and Associates Denis Dutchak and Mykhailo Grynyshyn.

     

  • Arbitrade Advises Low Cost Airline Company Entering the Ukrainian Market

    Arbitrade Advises Low Cost Airline Company Entering the Ukrainian Market

    Arbitrade advised Italian discount airline Ernest Airlines during its entry into the Ukrainian market.

    The firm reports that its team “provided a wide range of legal services to Ernest S.p.A in connection with the start of its activity in Ukraine, namely: providing advice on Ukrainian law, checking the air carriage rules and privacy policy of Ernest S.p.A for compliance with Ukrainian law, participating in negotiations with its counter-parties, and providing legal support in relation to the conclusion of agreements.”

    Ernest S.p.A., which has been active on the European market since 2015, commenced its activity in Ukraine in October 2017 with the introduction of flights from the Danylo Halytskyi International Airport in Lviv to Milan and Naples. By the end of the current year the air carrier plans to launch a number of new flights from Kyiv and Lviv.