• Anastasia USOVA | Redcliffe Partners

    Important antitrust developments were seen in 2017 and the first half of 2018. The Vertical Block Exemption Regulation was adopted by the Antimonopoly Committee of Ukraine to bring more clarity to the assessment of anti-competitive effects of vertical restraints. However, many issues remain grey areas, and we saw a rise in the number of requests from businesses for the review of distribution schemes for compliance with antitrust requirements. Another highlight was the introduction of the state aid system in Ukraine, which was efficiently developed by the AMCU within an impressively short timescale. State aid controls open up new opportunities for business to challenge state aid measures which may distort competition. Since the EU-Ukraine Association Agreement explicitly requires that state aid rules be interpreted in view of the EU’s regulations, guidelines and case law, this is an area where, due to the knowledge of the ever-evolving EU acquis, antitrust experts can create added value for in-house lawyers.

    The wind of antitrust change will continue to blow as a number of vital legislative changes are in the pipeline: introduction of the settlement procedure, development of efficiency leniency programme, and improvements in the fair process and procedural rights of the parties are pending adoption by the Ukrainian Parliament. Furthermore, the AMCU is working on new guidelines regarding the definition of relevant market and dominant position of undertakings, as well as on updating existing rules on the calculation of fines.

    As for antitrust enforcement, records have been broken regarding the sums of individual fines imposed for taking part in vertical concerted practices (over EUR 2 million), misleading information (EUR 630,000) and for failing to provide requested information (EUR 54,000). Business, in particular, is awaiting decisions on appeals in three cases regarding alleged anticompetitive concerted practices between certain pharmaceutical suppliers and the largest Ukrainian distributors.
    The outcomes of these appeals will have an impact on the legal certainty of manufacturers in the application of off-invoice rebates, bonuses and other marketing instruments in the promotion of their products.

    Cartels and other types of anticompetitive agreements will remain an enforcement priority of the AMCU for 2018. In this context, companies should not underestimate the antitrust risks of information exchanges, or the gathering and use of competitive-sensitive data. Petrol and diesel markets, aviation fuel markets, mobile services, banking and payment processing services will be among the sectors of heightened scrutiny. Furthermore, the AMCU recently announced its plans to launch a sector enquiry into the food and non-food retail sector, one of several areas the AMCU will focus on in its agenda for the future. It is hoped that economic analysis will play a bigger role in the AMCU’s future enforcement on vertical restraints, and potential anti-competitive effects will be weighed against improved distribution efficiencies and related pro-competitive benefits.

Implicitly recognized as a market-leading antitrust and competition practice, Asters has the largest team with a total of four partners on board. The firm offers a full-scope advice, being at the forefront of the significant merger control mandates, resonant investigations and litigation. The firm became a hub for merger control advice of global M&A and joint ventures. Throughout 2017 the team acted on obtaining new merger clearance for The Dow Chemical Company in USD 130 billion merger with E.I. du Pont de Nemours and Company; represented Bayer AG on the Ukrainian competition aspects in USD 66 billion acquisition of control over Monsanto Company; assisted in obtaining merger clearance for the merger of Clariant AG and Huntsman Corporation. The team is customarily involved in key antitrust investigations in the most sensitive sectors. For example,represents Bayer LLC on the Antimonopoly Committee of Ukraine (AMCU) sector investigation on the market for distribution of pharmaceutical products. This past year the team continued its record of litigations, and successfully represented ACNielsen in a dispute challenging an AMCU decision on trade chains cartel. Another ongoing significant representation is the case Sanofi in the commercial court appealing against an AMCU decision on investigation of the pharmaceutical product distribution market. Igor Svechkar is known as the #1 antitrust lawyer in Ukraine. The reputed name of Oleksandr Voznyuk isreferred for depth practice knowledge and involvement in the most sophisticated representations. Alexey Pustovit advises oncartel and concerted practices. IP partner Julia Semeniy contributes on projects requiring expertise of intellectual property and competition.

Sayenko Kharenko keeps its antitrust and competition practice on the growth track, being a full-circle offering with a significant market share. Apart from being traditionally active in advising on merger control issues for domestic and internationally significant transactions, the firm is a preferred counsel for representation in unfair competition and anticompetitive concerted practices investigations before the Antimonopoly Committee of Ukraine. Recent highlights include  obtaining merger clearance for the USD 130 billion merger of DuPOnt and Dow Chemical; USD 73 billion merger of Linde and Praxair, Inc.; acquisition of Stada by Cinven and Bain Capital. The core competition team includes two counsels Maksym Nazarenko and Valentyna Hvozd. Reputable partner Vladimir Sayenko has headed the team for many years, and specializes in M&A, corporate, competition and securities law.

With its consistent development over the last couple of years, AEQUO confidently enhances its strong positions as a full-service competition practice law firm. The team showcases notable expertise in investigations including alleged cartels in several industry sectors, merger control and concerted actions approvals, and actively expands competition compliance and public procurement workflow. The practice team works closely with the firm’s corporate and M&A practice supporting subsequent mandates, and also represents blue chip clients in connection with global deals. Selected highlights of the past year included acting for Apollo Management, L.P. in acquisition of control over Lumileds Holdings B.V. from Philips Group; representing Dragon Capital on obtaining merger clearance for acquisition of Eurasia and Prime business centers in Kyiv. The firm supports Epicentr K during a probe of the Ukrainian DIY market conducted by the regulator, and focused on vertical relations of the retailer with suppliers and customers; acted for ERC Group’s wholesale distributors in connection with investigation on the wholesale distribution market for mobile phones. It was notable that the firm represented the leading Ukrainian road construction company in the AMCU in the procedure on challenging public procurement procedures (road maintenances works) organized by Ukravtodor. Managing partner Denis Lysenko, a broad expertise practitioner, heads the team. Sergey Denisenko, counsel, explicitly develops the practice and is deeply involved in project work. Yevgen Blok, senior associate, is another important team member.

Arzinger possesses a wide ranging practice spanning merger clearances, AMCU investigations and litigation, public procurement, general advisory and compliance. The firm has a wealth of practice in unfair competition, abusive dominance and unilateral practices, concerted actions, and operates throughout pharmaceutical, agro, energy, telecoms, FMCG. Recent landmark representations includes acting for ALKE Insaat Sanayi ve Ticaret A.S. before the AMCU as the body of appeal in the field of public procurement. On the merger control front, Arzinger supported Leroy Merlin in obtaining merger clearance for the leasing of premises intended for its new DIY store. With its well-established positions in the pharmaceutical industry, the firm is extremely preferred by market players for representation in sector related investigations and subsequent litigation. Another area of recent growth is state aid. Apart from extended offering, the practice team has been completed by a series of significant hires. The practice is co-led by two partners, Timur Bondaryev, spacious practitioner, and Lana Sinichkina, highly vivid in legislative initiatives, and known for deep engagement in advising life science clients. The name of Oleksander Dyakulych, senior associate, who joined from SCM, is also known on the market.

The competition and antitrust practice group of Baker McKenzie is best known for merger control work for prominent global transactions, empowered by the firm’s global presence. With its impressive international clientele, the office comes active across advising on implications of various vertical arrangements with Ukrainian customers, as well as investigations by the AMCU. Among the notable highlights are representing Monsanto Company in connection with preparation of a merger control filing relating to its global merger with Bayer AG; assisting Lonza Group AG on Ukrainian merger control aspects with respect to its acquisition of Capsugel; advising Tata Chemicals in a merger control filing relating to sale of its urea business to Yara International; representing Monsanto Company in obtaining merger control filing relating to the disposal of Precision Planting business to AGCO Corporation. Partner Oksana Simonova got good reviews of peers for successful management of practice.

AVELLUM retains its focus onmerger control mandates driven by flourishing corporate and M&A track record. The firm has acted for Saggarco Ltd in obtaining a merger control clearance in the acquisition of a stake in PJSC Marfin Bank from Cyprus Popular Bank Public Co Ltd; obtained merger control clearance for acquisition of Karavan Hypermarket chain by Auchan Group; advised AGCO Group on Ukrainian merger control and concerted actions clearances for acquisition of Precision Planting LLC and assets owned by Monsanto Argentina S.R.L. and Monsanto do Brasil Ltd. Managing partner Mykola Stetsenko oversees the practice. Yaroslav Medvediev, senior associate, focuses on the competition aspects of M&A.

The competition law boutique CLACIS provides regional coverage throughout an established network in Ukraine, Russia and Kazakhstan.1 The firm is focused on investigations, merger control approvals, distribution and contract related antitrust issues, compliance. The team acts for telecommunications, banking and finance, investment, industrial clients. CLACIS consistently represents major multinationals working in the region in various continuous competition law cases, such as MasterCard, ArcelorMital, British American Tobacco, etc. Antonina Yaholnyk, founding partner, is a long-standing competition lawyer with a good reputation and acclaimed for her deep practice. Kateryna Tkachenko left the firm to continue her career in the public sector.

With its established international network CMS Cameron McKenna Nabarro Olswang traditionally preserves good strength in merger control issues, general antitrust compliance and unfair competition. Amongst notable highlights of the past year is representing SD Capital on competition matters regarding a joint venture with P&O Maritime for certain merit services in the Ukrainian Black Sea port of Yuzhniy. The firm also renders advice on competition issues in commercial arrangements and competition compliance. Two dedicated partners, Olexander Martinenko and Olga Belyakova, are recognized on the market.

Dentons competition group works in close cooperation with other offices, and is best known for advising on competition/antitrust matters within cross border M&A transactions and complex corporate restructurings. The office rapidly expanded its compliance offering, and currently acts on structuring and implementing compliance programs. Known for its industry-wise approach, the firm has been particularly active in agricultural, energy, luxury, consumer products, hotels and leisure, automotive sectors. Among illustrative latest projects is advising Adecco Group on Ukrainian merger clearance with regard to the sale of a Ukrainian subsidiary; CEFC Hainan International Holding Co., Ltdon its acquisition of a majority stake in KMG International; Cub Energy Inc. in respect to a joint venture with Czech company Nafta International. Partner Volodymyr Monastyrskyy splits his time between competition, corporate and employment, and is especially regarded for compliance knowledge.

The Ukrainian office of DLA Piper possesses a fully-fledged competition law practice, encompassing complex investigations, merger control advice within M&A, shareholders’ agreements, JVs. The practice team has a number of significant representations in cases of anticompetitive concerted actions. The team maintains increasing activity acrosspharmaceuticals, healthcare, IT, manufacturing, FMCG and hospitality sectors. Over the previous year the team provided legal support in obtaining merger control clearance and permit for concerted actions on a deal involving Takeda Pharmaceuticals and Unipharm, Inc; acted for Spika, subsidiary of Michelin and Vilmorin & Cie, subsidiary of Limagrain, in the joint acquisition of Exotic Systems. The firm is regularly instructed to give advice on competition law matters arising in distribution agreements and on competition compliance policies. Practice head Galyna Zagorodniuk is well known in the antitrust market and maintains a broad practice, also practicing corporate and M&A.

Ilyashev & Partners has a consistent record of merger clearance work, and handle representation in unfair competition and abuse of dominance cases. Amongst notable highlights is representing LetterOne Group in obtaining merger clearance for acquisition of E.ON; providing merger clearance work with regard to acquisition by Kazkommertsbank of shares in BTA Bank Kazakhstan and NJSIC Oranta. The team represents Biopharma in an  investigation by the AMCU on abuse of dominance; acted for Ukrtatnafta in the investigation concerning violations in the stock auctions of oil and gas liquids sale. Long-standing market practitioner Oleksandr Fefelov is practice head.

INTEGRITES has a commanding presence in merger clearance mandates, unfair competition cases, representation in investigations and appealing decisions adopted by the regulator. The firm excels its industrial focus, and enhances its presence in aviation, agrarian, energy, pharmaceuticals, real estate and construction sectors. Notably, the firm acted as a legal counsel to Mandarin Plaza in obtaining merger clearance for acquisition of LLC Ukrsotsbudinvest; acted for United Company Rusal in getting approval for merger with another company in Ukraine; advised ErgoPack LLC considering the alleged violation of antitrust legislation in the form of unfair competition. Pavlo Loginov and Serhiy Shershun, counsels, are the core individuals. A recent addition at the firm is new counsel Sergey Lakhno, who previously worked at the AMCU.

Since its establishment in Ukraine, Kinstellar has already been engaged in a series of projects in agriculture, aviation, defence, financial institutions, food and beverages, energy, industrials, real estate, tobacco industries. The scope of practice generated expertise includes merger control, anti-competitive concerted practices, abuse of dominant position, unfair competition, public procurement. Some recent landmark projects include advising Marazzi Group S.r.l. in connection with obtaining merger control clearances for acquisition of Emilceramica S.r.l. and Emil Russia LLC; assisting a minority shareholder of a large Ukrainian agricultural company in USD 40 million ICC arbitration in a complex and large dispute related to private enforcement of competition law and compensation of damages. Kostiantyn Likarchuk, managing partner, heads the practice.

Marchenko Danevych exhibits notable expertiseof complex cases at the crossroads of competition, life sciences, IP and dispute resolution. The firm has a steady workflow of merger clearances, and is especially boosting its standing in competition investigations (cartels, abuse of dominance, unfair competition and state aid). With exceptionally strong positions in the area of life science, the team is constantly enlisted for advising on contract and behavior compliance. The firm stands out for developing unique expertise of investor-state disputes as a remedy for an arbitrary fine imposed by the AMCU. The firm successfully represented a Top 10 global pharmaceutical company in a landmark alleged cartel case (in terms of investigation on Ukrainian pharma market), and advised of related post-case matters. Another highlight is representing Nova Poshta in the first Ukrainian state aid case. Other selected projects include extensive support Man with obtaining a post-merger clearance in a complex transaction that provided a multi-cross-border merger of Man Wah Group and Home Group; Eli Lilly on cooperation with distributors and the client’s pricing policy; AbbVie on antitrust aspects of a potential rejection of a distributorship request; NEXT Retail on unfair competition aspects related to illegal usage of a client’s trademark by a local online and brick and mortar shop. Oleksandr Aleksyeyenko is leadpartner, expanding the firm’s  presence in sophisticated landmark cases.

Redcliffe Partners is rapidly becoming a vivid market player with the arrival of dedicated counsel Anastasia Usova (previously worked with Asters), and completion of the practice team with other associates. In 2017 the firm won several large mandates for merger filings in cross-border M&A and JV transactions. Recent notable projects include advising a Chinese consortium in obtaining merger clearance for the acquisition of Robert Bosch GmbH’s Starter Motors and Generators (SG) business; assisting Stahl Lux in obtaining merger and concerted practices clearances for acquisition of the Leather Chemicals business of BASF SE; acting for PZU in acquisition of control over Bank Polska Kasa Opieki Spółka Akcyjna; supporting Grupo Bimbo in acquisition East Balt Bakeries from the private equity fund One Equity Partners. The team’s coverage spans abuse of dominance, cartels, commercial and pricing practices, state aid as well as on unfair competition issues. Dmytro Fedoruk, partner, supervises the practice. Anastasia Usovais known on the market and has been noted for a highly active year in the firm.

Throughout the past year Vasil Kisil & Partners saw its competition practice grow with explicit development of its workload and capacity. The firm boosts involvement in investigations and disputes. The industry coverage includes the energy sector, pharmaceuticals, tobacco and alcohol, banking and financial services. Among illustrative recent projects is representing Shell Ukraine in antitrust litigation challenging a decision adopted by the AMCU that found it and several other fuel retailers guilty of restricting competition by aligning prices together with setting unclear discount systems. Other highlights included advising Malteurop on Ukrainian merger control regulations related to taking sylos in sublease; acting for Robert Bosch on the managing committee of its franchisees to exclude risks of allegations in concerted practices or anticompetitive information exchange, as well as on unfair competition and regulatory risks related to its advertising campaign. Anna Sisetska, partner, leads the practice.

ADER HABER (the team was previously part of Spenser & Kauffmann) continues to facilitate its antitrust practice, rendering competition advice related to M&A and corporate transactions, foreign investment entries, unfair competition, advertising and marketing. Among the fast-growing offering of the practice is development of competition compliance programs. In 2017 the practice received a sharpened industry-wise focus, while the firm excelled in adding assignments from the agribusiness, IT, retail and FMCG, food and beverages, real estate and construction sectors. Some recent highlights include advising NYVA NVP, a major Ukrainian winery producer, in four antitrust disputes over identification of signs of unfair competition; supporting Nestle Ukraine regarding measures applicable to the unfair competitors of a client; representing N Bolshakova design studio with regard to measures applicable to unfair competitors. The standout feature of the practice is conducting assignments on the intersection of unfair competition and IP. Tatiana Kharebava, counsel, has been extremely active in the market since joining the firm.

Throughout 2017 Wolf Theiss advised on Ukrainian competition law issues, assisting in obtaining merger and concerted actions clearances in Ukraine. The Kyiv office often acts with its European network in terms of regional M&A evolving several jurisdictions. Selected highlights of the past year include advising Lukoil International GmbH on the indirect sale of 60% of shares in the oil and gas Karpatnaftokhim LLC to an individual; Uponor GmbH on protection from unfair competition at the AMCU; Bain Capital on merger control issues related to the acquisition of Sealed Air Diversey Care division. Olga Ivlyeva is the practice head.

Legal Alliance Company possesses extensive experience in its principal industry focus — pharmaceuticals and healthcare. The majority of projects in 2017 touched upon investigations, anticompetitive concerted actions, abuse of dominance and unfair competition, with the firm also standing out for the increasing number of queries related to protecting clients in public procurement procedures. The team’s recent achievements include obtaining a positive conclusion from the AMCU to qualify concerted actions on the pharmaceutical market. Andrii Gorbatenko, practice head, has been noted for deep expertise in pharmaceutical antitrust.

Ante Law Firm is known primarily for advising clients in the aviation sector, and of late has been demonstrating a growing following from pharmaceutical areas. The team acts regarding public procurement conflicts and unfair competition practice cases. In the past year Ante represented the interests of airlines in all AMCU activities in the aviation market, and advised on airport fees and other antitrust issues; acted for Zdravo and Technomedex group during public procurement litigations. Andriy Guck, partner, leads the practice.

ECOVIS Bondar & Bondar centers its practice on antimonopoly clearance in connection with M&A and various cases related to competitive market regulations, working primarily in aviation and real estate clients. The firm advised its established client, Ukraine International Airlines, in three lawsuits against Lviv Airport and the Ministry of Infrastructure of Ukraine and competition compliance. The list of recent clients also includes INTERAVIA LLC, Aerohandling, LLC Mriya. The key individual is Oleksandra Nikitina, a partner at the firm.

GOLAW is getting more active in advising on regulatory and competition compliance, obtaining approvals for concentration and public procurement. The team is active in the retail fashion area. Most recently the firm represented the interests of the Ukrainian Sea and Port Service with regards to complaints about public procurement. Sergiy Oberkovych supervises the practice.

Jurline, an Odessa-based law firm regularly deals with obtainment of permissions for concentration as a part of corporate restructuring of the companies. The firm has a well-established niche in the wine business, and provided antitrust clearance for receiving 100% of shares in one of the largest wine producing companies in Ukraine. Oleksiy Ryazanov is head of practice.

ADS Legal Group, competition boutique, acts predominantly for domestic clients. The firm’s recent remit has taken in obtaining merger clearance for concentrations, anticompetitive concerted actions and unfair competition. Special focus is put on giving advice on procurement procedures. The practice is guided by partner Oleksandr Bondarchuk.

Alexey Kot, managing partner of ANTIKA Law Firm, a reputable practitioner in antitrust/competition, received praise from peers for his scientific achievements and thorough approach.

In 2017 ePravo as lead Vitalii Vlasiuk, represented Khimfarminvest, DR Energy Group, DR Group in appeals against the decisions of the Antimonopoly Committee.

1 Law office of Grigoriy Chernushev joined the firm’s network in Russia in 2017.