Strengthening Fair Competition
One of the landmark changes of the antitrust law in 2009 is adoption of new restatement of the On the Protection against Unfair Competition Act of Ukraine introducing some crucial amendments to the legal framework of the protection of fair competition in Ukraine. Victoria Ptashnyk, partner and head of the antitrust and competition law practice of Spenser & Kauffmann stresses that substantial changes pertain to extension of the scope ratione materiae of the Act not only to actions, which have negative effect on competition within Ukraine, but also to actions, which might have such effect. The amount of a fine for violating legislation on protection against unfair competition was increased from 3% to 5% of the respective income of business entities received in the year, preceding such violation. Recent enforcement practice of Article 151 of the Unfair Competition Act by the Antimonopoly Committee of Ukraine (AMCU) shows that distribution of misleading information represents one of the most significant and considerable violations of antitrust law. However, until now the AMCU has failed to provide any guidelines or recommendations on the enforcement practice of Article 151, thereby creating an option for legal uncertainty and ambiguity in application thereof. As a matter of practice, dissemination of misleading information occurs mostly in markets where severe competition exists among business entities, i.e. alcohol and pharmaceutical industries, food, financial and banking services, mobile communications, etc.
“Generally introduction of Article 151 of the Unfair Competition Act has positive consequences for protecting customers against non bona fide advertisements and for strengthening fair competition on the Ukrainian market,” the lawyer summed up.
Asters enjoys a reputation as an antitrust heavyweight. Indeed, the deals list constantly indicates vast experience in the entire spectrum of antitrust issues in Ukraine. Asters represented clients in the most high-profile competition cases and investigations involving concerted practices, abuse of dominance, mergers, and unfair competition. In particular, in 2009 the firm’s antitrust team, as headed by Igor Svechkar and Oleksandr Padalka, acted for Telenor in the AMCU investigation into alleged restrictive practices and abuse of dominance; represented Nissan in an unfair competition case; advised on a large number of deals requiring merger clearance in Ukraine such as the USD 41.1 billion Schering-Plough/Merck&Co. merger, acquisition of Chrysler LLC automotive business by Fiat S.p.A.; GlaxoSmithKline’s USD 3.6 billion acquisition of Stiefel Laboratories; Novartis Austria GmbH acquisition of EBEWE Spezial-Pharma Holding GmbH; Alenia Aeronautica S.p.A. and Abu Dhabi Autonomous Systems Investments Co. LLC joint venture, and many others.
Sayenko Kharenko’s competition and antitrust group is one of the largest in Ukraine, thereby enabling it to handle a large number of projects simultaneously. The firm covers every aspect of Ukrainian competition law, including merger control, cartels and other anti-competitive concerted practices, abuse of dominance, unfair competition, sector-specific regulation, private enforcement of competition law and actions for damages. Sayenko Kharenko is known for successfully resolving complex antitrust disputes against multinational companies charged with abuse of dominance and participation in cartels (concerted practices). Over the last year the team advised a number of multinationals on Ukrainian competition law implications of the largest M&A transactions, including Rio Tinto Alcan Inc with respect to the USD 2.025 billion sale to Amcor Limited; PartnerRe Ltd with respect USD 2 billion acquisition of PARIS Re Holdings Limited; CME concerning USD 242 million sale to the American Time Warner, Inc.; Japan Tobacco International on its USD 164 million acquisition of Kannenberg & Cia. Ltd, and Kannenberg, Barker, Hail & Cotton Tabacos Ltd. Vladimir Sayenko, who is highly regarded in the poll, and Dmytriy Taranyk, are the key practitioners.
The Kiev office of Baker & McKenzie has a solid reputation in the area of merger control clearance as well as competition law. The team headed by partner Antonina Yaholnyk includes associates Kateryna Tkachenko and Yuliya Chernyshova. 2009 was noted for projects in merger control approval for the office’s clients: ArcelorMittal Netherlands for the acquisition of interest in Uttam Galva Steels Limited; global fertilizers producer and Bundeskartellamt (Germany) for the acquisition of interest in Odessa Port Plant, a state monopoly, in the privatization tender procedure; ArcelorMittal for the acquisition of interest in a group of Russian coal mines; Providence Equity Partners VI International L.P. for the acquisition of interest in JSC Volia; acting for leading Ukrainian developers, including XXI Century, to obtain retrospective merger control clearances from the AMCU for the groups’ establishment in terms of preparation for or after IPO procedures. The team had a number of projects in the regulatory area. For example, advising ArcelorMittal on competition law matters related to abuse of dominant position by OJSC Zaporizhya Ferroalloy Plan regarding supply for ferroalloys and other related cases; acting for ArcelorMittal against a dominant undertaking abusing its dominant position by applying excessive pricing, and anticompetitive conduct by state authorities on issues of licensing, etc.
In 2009 Vasil Kisil & Partners provided legal support to a number of international and domestic business groups in obtaining merger clearances, including Dell/Perot Systems Corporation, Santander/IIG; Tetra Laval/Scanima and Energy Standard Fund which acquired well-known Ukrainian monopolists, such as ZaporozhTransformator and SUPER, Lugansk Energy Interconnection Company and Operation electricity network enterprise Central energy company; Ukrrichflot Shipping Company and Sevmorzavod, Sumy Frunze NPO and Drill Collars and Kellys Plant. The highly skilled antitrust team has represented clients with the AMCU in courts in a number of proceedings related to alleged anti-competitive concerted actions of price fixing and abuse of monopolistic position, including the Ukraine-based subsidiary of a global energy and petrochemical company, a global agrochemicals manufacturer and a national Ukrainian telecommunication services provider. Denis Lysenko and Oleksiy Filatov, partners, Mariya Nizhnik and Andriy Stelmashchuk, counselors, are highly experienced professionals in the competition and antitrust field.
CMS Cameron McKenna in Ukraine covers investigation cases, merger control activities and regulatory issues. As a consequence of the involvement in M&A deals, the antitrust practitioners accomplished a large amount of merger control work: advised Abris Capital Partners on the acquisition of a supermarket chain in western Ukraine; advised a major European FMCG company with regard to its acquisition of a leading Italian producer of beverage equipment. The lawyers advised a major Japanese corporation on public procurement rules in Ukraine; represented a major concrete producer in investigation of concerted actions, etc. Olexander Martinenko, senior partner and head of commercial practice group occupies strong positions among Ukrainian antitrust practitioners. Olga Belyakova and Nataliya Nakonechna handled a significant amount of antitrust work.
Konnov & Sozanovsky comes highly recognized for its advice in antitrust issues in terms of various complicated business transactions. In 2009 the team led by partner Alexey Pustovit acted as a Ukrainian legal counsel to Access Industries, a group of holding companies active principally in the oil, petrochemicals, coal, aluminium, power and real estate sectors, and to ProChemie Holding Limited, a holding company within the PCH Group, on issues of Ukrainian merger control law, including obtaining permission of the Antimonopoly Committee of Ukraine for the establishment of joint control over LyondellBasell Industries AF S.C.A., a manufacturer and supplier of polymers, fuels, and petrochemicals. Among the recent work is also an advice to NFI Empik Media & Fashion S.A. on the issues of Ukrainian merger control law ion course of several transactions, as well as Lion Capital LLP, the managing company of several private equity investment funds for the purpose of increasing their value over the period of Lion’s ownership, and the issues of Ukrainian merger control law.
DLA Piper’s antitrust practice in Ukraine was significantly strengthened by the arrival of Arthur Kotenko, partner, who joined the Kiev office in October 2008. In 2009 the team provided competition law support to the United Coal Company (USA) being acquired by Metinvest, advised on obtaining the approval of AMCU, and assisted in dealing with regulatory issues. The team also represented Sibur, the leader of Russian petrochemicals, in a tender announced for the sale of the Odessa Port Plant in the course of privatization in terms of preparing a tender package, legal support was provided in negotiations with the State Property Fund of Ukraine as the seller, structuring the deal in all aspects, including currency control regulations, and obtaining the necessary permit from the AMCU. Arthur Kotenko and Natalia Pakhomovska are the key practitioners.
Magisters are known for advising on matters related to cross-border merger clearances and domestic regulatory competition issues. Among the recent highlights is coverage of antitrust law issues regarding producer SSL, which completed the acquisition of a major distributor of condoms in Ukraine. Magisters team was led by Andrew Mac, managing partner of the Kiev office, and included associates Oleg Boichuk, Alexandra Yevstafyeva and Tatyana Khandazhevskaya.
Schoenherr Ukraine is active in antitrust projects with a cross-border element. The team, which is headed by Ilona Zekely, represented Albert Ballin KG in the indirect USD 6.6 billion acquisition of shares in Hapag-Lloyd AG; obtained merger clearance control representing Kaidoz AB, a company comprising DeAgostini Group, in USD 42.3 million acquisition of shares in Zodiak Television AB; represented Raiffeisen Group in the planned bundling of the respective shares of RWA Genossenschaft and R-H in BayWa in a jointly held company.
The antitrust practice of Spenser & Kauffmann law firm is seen to be a substantial area in the list of recent projects. In 2009 the team led by Victoria Ptashnyk rendered receipt of an AMCU permit on acquisition of equity of Ynivermag Centralnyy LLC (Belorus) by Sovremennye Roznichnye Technologii LLC (Belorus); delivered advice on obtaining an AMCU permit on acquisition by PPF Group N. V. (the Netherlands) of equity of Pachata Limited that resulted in acquiring in excess of 50% of votes in the supreme management body of Pachata Limited.
While Volkov Koziakov & Partners handles a wide range of competition law, its primary focus is antitrust issues of M&A transactions and high-profile investigations of the AMCU in the pharmaceuticals sphere. The firm recently advised the General Motors Company on the acquisition of assets of Delphi Corporation and large Ukrainian agricultural companies on acquisition of poultry farming companies. The practice is headed by Sergii Koziakov, including Nataliia Isakhanova and Mykola Podpalov.
The legal practice of Deloitte in Ukraine covers advice on antitrust matters and included concentration permits of the Antimonopoly Committee of Ukraine for major international clients entering the Ukrainian market. The recent highlight is the appropriate permit within the framework of an M&A deal related to a major chemical company. Oleksiy Katasonov, Dmytro Pavlenko and Volodymyr Kutsenko are engaged in antitrust projects.
Andriy Kravets & Partners law firm has extensive experience of advising on various aspects of antitrust and competition law. The firm’s professionals regularly assist clients in merger filings and handle obtaining AMCU permits with respect to local and international M&A transactions, corporate restructuring, establishment of holding companies and joint ventures in Ukraine. The list of accomplished projects in 2009 includes representation of Euroventures Ukraine and ICD Group on a merger control side. Partner Vladyslav Lyaskovskiy is highly regarded as the firm’s leading lawyer in this area, advising both Ukrainian and international clients.
Gvozdiy & Oberkovych law team is experienced in M&A transactions and regularly handles antitrust clearances and investigations. The firm’s antitrust and competition work in 2009 covered a variety of law issues, including concentration, concerted actions, mergers and acquisitions and joint ventures. Among other assignments, the firm’s lawyers led by partners Valentyn Gvozdiy and Sergiy Oberkovych assisted a number of foreign investors in obtaining merger clearances with the AMCU in M&A-related transactions. Recent highlights include advising British investors acting through Pelpusztai MG KFT in USD 9.5 and USD 7.5 million acquisitions of agricultural companies and supporting Mosaic Investment in the USD 2.5 million acquisition of assets in Ukraine. The firm also represented Riora company in a dispute with the AMCU on invalidation of preventive means on unfair competition assigned by the Committee.
Merger control work makes up a large portion of the work of Lavrynovych & Partners team. In 2009 the accomplished legal coverage on antitrust included the acquisition of 65% of equity in Invitel (Denmark) by Hungarian Telekom (Netherlands) and acquisition of CJSC Dnepropetrovsk brewery Dnieper in SCM Limited by Soufflet Group. Maksym Lavrynovych concentrates on this practice.
Jurimex law firms develop its antitrust practice in line with assisting its clients in M&A transactions. Svetlana Yazykova, senior associate, is a key practitioner and recent expertise includes obtaining the approval of the AMCU for Intralot S.A. to buy a stake in a Greek company.
Lexwell & Partners handled projects regarding unfair competition proceedings and provided legal counseling covering antitrust issues for structuring relations of an automobile distributor with its official dealers. Andrei Kolupaev, Igor Nagai and Yuriy Katser cover the bulk of the firm’s competition work.
In January 2009 Noerr Stiefenhofer Lutz successfully obtained a permit to engage in a concentration from the Antimonopoly Committee of Ukraine in support of the purchase of the Belle Group (UK) by the French Altrad S.A. (Altrad Group). Dr. Mansur Pour Rafsendjani and Kathrin Westermann led the team.
The recent antitrust practice of the Paritet Law Firm encompasses advising a developer company from Eastern Europe on economic concentration raised from the purchase-sale of corporate rights in Ukraine and represented LLC Morion in connection with data submission of the AMCU’s requests. Maksym Sysoiev and Yuliya Cherkashina are the firm’s main antitrust practitioners.
The Kiev office of Wolf Theiss, headed by Gennady Khareyn, was active in antitrust matters related to M&A transaction support. The past year in the Ukrainian market was notable for representing the Oracle Corporation in obtaining an AMCU permit for the USD 7.4 billion purchase of stock in the statutory capital of Sum Microsystems and Czech power company, CEZ in merger control for the purchase of the Albanian power distributor OSSH.
ENGARDE’s associates are experienced in counseling on various issues of Ukrainian antitrust and competition law with respect to cross-border mergers and acquisitions, joint ventures and competitive effects of business agreements by Ukrainian companies and foreign investors. Notable representations of 2009 include advising on obtaining merger clearances with the Antimonopoly Committee of Ukraine and European antimonopoly authorities in relation to the USD 20 billion acquisition of Metinvest Holding B.V. by Energies Investment Ltd; USD 500 million acquisition of the Amstor retail chain by Smart Holding B.V.; establishment of the USD 268 million vertically integrated shipbuilding holding company Smart Maritime B.V. headquartered in Europe; corporate restructuring and establishment of the USD 90 million holding company Veres Group B.V. headquartered in Europe. Senior partner Andriy Vyshnevsky and counsels Roman Ognevyuk and Irina Drofenko are highly experienced professionals in this area.
INTEGRITES’ antitrust practice experienced a strong boost in 2009. The firm’s competition team was involved in a broad range of competition and regulatory matters before the AMCU, including consultancy regarding potential acquisitions and other deals structuring, as well as providing respective risk assessments of transactions and contracts. INTEGRITES was also engaged in a project related to protection from unfair competition and abuse of a dominant position on various markets. The firm’s competition team includes Vyacheslav Korchev, Oleksandr Aleksyeyenko and Artur Yalovyy.
The recent experience of the Kiev office of Peterka & Partners includes comprehensive advisory services to ISA Praha a.s., a Czech producer of adverts and elements for sales support, on the corporate restructuring of its affiliates in Ukraine, including approval of a merger by the antitrust authority. The practice is led by Monika Simunkova Hoskova.
The recent highlight of Solodko & Partners includes projects on obtaining merger clearance. In particular, Elena Sotnik was involved in advising pharmaceutical companies on various matters in this area.
Alexandrov & Partners focused on antitrust work within the framework of establishing a joint venture in the grain business. Ievgen Ilarionov and Ruslana Muzychko are named in this regard.