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Serhiy PIONTKOVSKY|Baker McKenzie
At present there are four existing Laws on Concessions in Ukraine, including the Law On Concessions of Motor Ways, the Law On Concessions of Energy Assets and the Law On Concessions of Heating, Water and Waste Management Infrastructure. There is also the general framework Law On Public Private Partnerships.
However, existing PPP and concessions laws are quite vague and have a number of vital loopholes with respect to the protection of the rights of investors and creditors, land use entitlements as well as state guarantees on investor’s returns. As a result, until now private investors have been quite reluctant to undertake major concessions in Ukraine.
To address this issue, the new Law On Concessions has been drafted. It was approved by Verkhovna Rada in the first reading in April 2018. However, it has not yet been approved in its final reading.
Under the existing legal framework, infrastructure projects in Ukraine could be implemented in various forms, such as long-term lease, joint venture, joint activity, investment agreement or concession.
In the area of sea ports infrastructure, the government, supported by the World Bank and EBRD, has developed feasibility studies for two pilot projects for concessions of Olvia sea port and Kherson sea port. However, no tenders for the selection of the private investors have been officially announced yet. In 2019 the government also intends to develop the concept and feasibility study for concession of Yuzhniy sea port.
Hutchinson, a Hong Kong operator of container terminals, is considering leasing the assets of Chornomorsk sea port. Earlier in 2018 ArcelorMittal extended the lease of two port terminals in Mykolayiv sea port.
In January 2019 the Ministry of Energy and Coal of Ukraine announced a tender to select a private partner for the PPP Ukraine — EU Energy Bridge Project. This is a milestone project for Ukraine/EU synchronization of electricity grids.
Due to election campaigns in early 2019, concessions and privatization of large state-owned assets has been put on hold. Hopefully, the newly-elected President and new Parliament will resume structural economic reforms, including the reform of management and concessions of state-owned assets. It was announced that a new Government Agency for support of projects in the area of PPP will be established in 2019. It is also expected that after the New Concessions Law comes into effect major concession projects will be launched in motorways, sea terminals, airports, energy infrastructure, water and waste management.
In addition to hosting a market leading energy practice, CMS Cameron McKenna Nabarro Olswang has an experienced team in place in project finance and infrastructure. The office continued to work on several landmark projects in the area of port infrastructure, advising SD Capital on a joint venture with one of the largest port operators, P&O Maritime, that will provide towage services in the Black Sea port of Yuzhniy. Another highlight was advising M.V. Cargo in respect of two parallel loans to finance construction of a new modern grain terminal in the sea port of Yuzhniy. The office is traditionally active on the lender side, demonstrating a robust portfolio of EBRD mandates financing municipal and infrastructure projects across different regions of Ukraine. For example, the team advised the EBRD on a EUR 13 million loan to the communal enterprise Mariupolske Tramvaino-Troleybusne Upravlinnya that will be used for the acquisition of up to 72 low-floor trolleybuses for the city of Mariupol, spare parts and maintenance equipment as well as upgrading the trolleybus depot and rebuilding the catenary network. The respective projects are led under the supervision of Kyiv managing partner Graham Conlon and Bucharest-based English finance partner Simon Dayes, who are supported by Tetyana Dovgan, Kateryna Chechulina and Vyacheslav Ovechkin.
Sayenko Kharenko has considerable transactional capacity and has a constant stream of significant infrastructure development mandates, being present in areas like roads, ports, utilities as well as social infrastructure projects. The team acted as Ukrainian legal counsel to Ukreximbank in connection with the inaugural deal within the USD 1 billion framework agreement between PJSC Ukrainian Railways (Ukrzaliznytsia) and General Electric Transportation on the purchase, modernization and leasing of GE locomotives. The highlight in the area of port infrastructure is counseling P&O Maritime regarding the establishment of a joint venture with Ukrainian investment company SD Capital. The team enjoys a strong roster of banking clients and financial institutions, most recently acted for Bank of America Merrill Lynch and OPIC on sovereign-guaranteed financing to State Enterprise National Nuclear Energy Generating Company Energoatom to construct the centralized spent nuclear fuel storage. EBRD and NEFCO regularly instruct the firm in projects intended to improve energy efficiency and project financing. Andrew Zablotskyi, known for advising big agrarian clients, consistently handles instructions related to trade port issues and state property. Recently-promoted counsel Volodymyr Yaremko is experienced in contentious and regulatory matters under FIDIC contracts, including gained within Beskyd Tunnel and Ukravtodor projects. The industry team is led by partner Nazar Chernyavsky, who heads the majority of complex financing mandates.
The international law firm DLA Piper exerts a powerful influence among operators of the infrastructure sector, and houses a dedicated project, energy and infrastructure practice group in Kyiv. The firm has recognized competitive strength, namely its high-profile international client base. To name a few, BMUB (The Federal Minister for the Environment, Nature Conservation, and Nuclear Safety), Hutchison, Toshiba, Alpine Bau, Strabag, Dredging International. The office has been mandated by Hutchison Westports Limited, the world’s leading port operator, on its expansion to Ukraine and development of container terminal facilities at Chornomorsk Port on the Black Sea. The mandate involved advice on structuring, real estate, tax and finance matters, including the legal regime for public-private partnerships and concession deals in Ukraine. This past year was also noted for its flourishing activity in energy projects, as the group regularly acted on financing of construction of renewable energy plants, investment structuring and M&A deals. The practice workflow is divided between two partners, Oleksandr Kurdydyk (banking and finance, energy) and Natalia Kochergina (real estate, construction).
Baker McKenzie has an influential and powerful presence in large industrial projects in Ukraine. The Kyiv office is a point of choice for big-ticket mandates, operating on M&A and infrastructure assets transactions, project development and financing. Clientele includes foreign and local investors, extending their presence in terminals. The firm acted as a legal counsel to the EBRD in connection with the contemplated reform of privatization laws in Ukraine, which is crucial for the sector. The practice is headed by Serhiy Piontkovsky, co-managing partner and head of real estate and construction. The focus of Andrii Moskalyk, counsel, is corporate, private M&A and infrastructure projects.
Arzinger is a traditional port of choice for supporting engineering and construction projects operating across sectors as energy and waste management, transport, ports and terminals. The firm has a client following of contractors, infrastructure operators, investors and financial institutions. The well-established network of offices, namely Kyiv, Odesa, Lviv adds to the firm’s presence in different regions and good experience of clients’ representations before authorities of different levels. The South Ukrainian branch is active in Odesa, Mykolayiv, Kherson and Zaporizhzhya Regions, and showcases a presence in port infrastructure and related regulatory assignments. The practice is led by the firm’s managing partner, Timur Bondaryev, supported by the team of Olga Ivanova, Bohdan Shmorhun and Vitaliy Urum. In September 2018 Odesa-based partner Andriy Selyutin moved in-house to Metinvest Engineering.
With a remarkable roster of transport and industrial clients, Asters is known for its transactional capabilities and strong competition practice. Most recently the firm, guided by senior partner Armen Khachaturyan, provided legal support to GE Ukraine and GE Transportation on contractual, regulatory and currency control legislation in relation to execution of a Framework Agreement with Ukrzaliznytsia and agreement on supply of 30 GE Evolution Series freight locomotives to Ukreximbank and their subsequent transfer to rail operator Ukrzaliznytsia under a financial lease agreement. The firm regularly acts on significant capital markets and financing mandates related to the sector.
AVELLUM is in the main known for complex transactional work, most recently covering such industry sectors as transportation, defense, critical energy, waste, and healthcare. The firm is regularly mandated by the public sector and financial institutions, extending funds for Ukrainian borrowers for infrastructure projects. Among the soundest representations in 2018 was acting as a legal counsel to Ukrzaliznytsia in a USD 1 billion collaboration with General Electric Company, including supply of locomotives through a financial lease agreement with Ukreximbank. The team advised the Ukrainian Ministry of Finance on the financing for the purchase of more than 25 Airbus helicopters for the National Guard, the State Border Guard Service, the State Emergency Service and the National Police of Ukraine. A significant share of the firm’s workload covers corporate and M&A, asset deals, regulatory, real estate and construction matters. Mykola Stetsenko, Glib Bondar and Yuriy Nechayev act as lead partners for infrastructure projects. Maksym Maksymenko, counsel, is another vivid practitioner directly involved in this practice.
Dentons handles a robust mixture of energy and infrastructure work, and enjoys a stream of big-ticket projects. Given the firm’s strong following of agrarian and energy clients, the office is enlisted by advising respective infrastructural investments, asset acquisitions in Ukraine, energy plants construction and respective regulatory work. The firm is mandated by Grand Solutions for advising on a USD 2 billion project to build the fourth metro line in the Ukrainian capital. Strategic energy infrastructure projects are the firm’s strength. Oleg Batyuk, managing partner, leads the practice.
Eterna Law is mainly focused on port infrastructure and investment in development of terminals, and has further expertise in road and aviation infrastructure regulations. The client profile includes dredging, agrarian and infrastructure companies. Corporate advisory on investments and further construction support, tenders and procurements, lease and GR are also part of the practice remit. One long-lasting project is advising Prime Investments on establishing a joint venture with Hutchinson Ports on a potential USD 1 billion investment in Ukraine’s port infrastructure. Partner Oleh Malskyy is in charge of infrastructure work.
Gramatskiy & Partners has a solid portfolio of municipal and transport infrastructure projects, and a very well-established practice of real estate, construction and land law, often referred for structuring investments and general corporate and commercial matters. Among the firm’s ongoing landmark infrastructure projects is a vital project for Kyiv to rebuild downtown European Square; full legal support of Seven Hills in the USD 300 million construction of a modern Business Park with a developed infrastructure near Boryspil Airport along Boryspil highway. Most recently the firm advised Luxon LLC on construction of the Platform residential complex with the surrounding entertainment infrastructure called Art-Zavod Platforma. The team’s core members are Igor Reutov, Mykola Voitovich, Roman Pozhodzhuk, Denis Boginich as led by Ernest Gramatskiy.
Supporting the building of commercial real estate, industrial, energy and transport infrastructure objects is one of the core mainstays at INTEGRITES, a full-service law firm with a well-established dedicated presence on the market. In 2018 its team demonstrated a robust increase in energy infrastructure work which spans renewables, gas pipeline and transit facilities. The firm is instructed by NBT, a Norwegian wind farm developer, on the construction of a wind farm and other issues. The firm has a well-versed international arbitration and cross-border litigation team, and achieved victory in a long-lasting arbitration, where it represented the interests of a major global ammonia transiter. Dr. Oleksiy Feliv, managing partner, leads the practice, and is ably supported by Gennadii Roschepii, senior associate.
Vasil Kisil & Partners combines its reputation in the real estate and construction area with infrastructure projects. In view of shifting responsibility for local public roads from State Agency of Automobile Roads of Ukraine (Ukravtodor) to regional state administrations from 2018 the firm advises DuPont Pioneer (USA) on new possibilities to build a road in cooperation with Poltava Regional State Administration. The firm advises railway cars operator and logistics company Amadeus Marine in Odesa Sea Port on matters related to their corporate structuring and legal separation of the railway operation business and port terminal business. The firm has a roster of agrarian, banking, investment and energy clients carrying out industrial infrastructure projects in Ukraine. The firm acts for Corteva Agriscience, an agricultural division of DowDuPont, to develop the road infrastructure in Dykanka district at a location of the company’s production facility. Real estate partner Alexander Borodkin leads the practice.
AEQUO develops its experience in complex deals in the infrastructure sector. The firm, as guided by corporate and M&A partner Anna Babych, advised Posco Daewoo on acquisition of a grain export terminal located in Mykolayiv. This past year the firm expanded its client profile with companies in the transport sector.
EY Ukraine possesses infrastructure and public-private partnership (PPP) as one of its key practice areas, which works in close cooperation with other service lines. Notably, the office acts as the local legal counsel for ongoing pilot concession projects in Kherson and Olvia seaports, and is involved in preparing a feasibility study and transaction support. Another highlight is a project initiated by a private investor, one of the leading Ukrainian aviation fuel companies, and EY prepared a feasibility study for implementing a PPP project at one Ukrainian airport. The key figures for project work are Albert Sych and Bogdan Malnev.
Ilyashev & Partners has an established network of offices that maintains a vivid presence in dispute resolution and bankruptcy, and raised its profile of specific competition matters. Its client roster takes in banks, ports, airlines, agrarian, engineering and construction companies, inland transportation and ship repair companies. The well-known highlight is ongoing representation of German Corporation for International Cooperation (GIZ) on structuring relations with recipients of technical aid for construction and reconstruction of social infrastructure in Eastern Ukraine. The firm represented Bunge and COFCO in administrative disputes. Managing partner Mikhail Ilyashev is the core contact.
ILF Law Firm has a sharp focus on healthcare infrastructure, and is currently a lead counsel for reorganizations across 18 regions of Ukraine. Being involved in giving advice on healthcare reform, ILF is proficient in the area of GR. Energy efficiency in communal enterprises is another key service. Tetyana Gavrysh and Serhiy Silchenko are the key figures.
Regional Counsels: Port Infrastructure
ANK Law Office is a major legal counsel with all-around expertise in ports and terminals infrastructure. The Odesa-based firm is enlisted for projects across the country’s main sea ports. The firm is involved in a long-lasting project to develop the existing container terminal at Quarantine Mole of Odesa Sea Port, including construction of the wave breakwater, conducting of dredging works, where it acts for the subsidiary company Container Terminal Odesa. In a recent highlight its dedicated team rendered legal support to Delta-Wilmar CIS during fulfillment of a project on construction of a soya processing plant, transshipment of oil seed meals and grain to Yuzhniy sea port, as well as a new berth in the port’s water area; JV Risoil Terminal, a member of Risoil Group, on construction of the berth for PANAMAX type vessels in the water area of Chornomorsk sea port. China Harbour Engineering Company hired the team to support its projects at the Yuzhniy and Chornomorsk sea ports. The team consists of Dmitrii Kolodiazhniy, Iryna Nogina and Alexey Luboshets and is led by experienced practitioner Alexander Kifak.
The Odesa-based law firm Jurline is known for large-scale infrastructural projects on the terminals of TIS Group, the largest dry cargo port in Ukraine, rendering legal support at all stages of their development. The firm’s unique projects include supporting the first private railway station in Ukraine constructed by TIS terminals, and ongoing support of a new line. One more important highlight is legal support of construction and launch of a terminal of M.V. Cargo in Yuzhniy sea port; constructing and launching several transshipment complexes together with ArcelorMittal on the territory of TIS-Container Terminal. The firm is also proficient in tax disputes in the area of port infrastructure. Partners Volodymyr Zubar and Oleg Kutateladze handle projects. Maxim Kapelist has been named by peers for his strong presence in the market.
Given the successful development of its maritime profile, Legrant law company keeps its sharp focus on advising on port infrastructure projects in Odesa. The most recent highlight includes representing a group of private investors in the reconstruction of the Odesa-port railway station. The team is the preferred choice of Ukrainian port operators, including MetalsUkraine Corp, Novolog and Novotech-Terminal. Tatyana Titarenko is the main point of contact.
Interlegal, a renowned Odesa-based maritime law counsel, has dedicated experience in ports and terminals. This past year its legal expertise was enhanced by technical and financial expertise provided by consulting company MTBS (Maritime & Transport Business Solutions). The firms agreed on joint work on infrastructure PPP projects under the brand name MTBS Ukraine. The first joint project was the development of a feasibility assessment and tender documentation for pilot concession bidding in the sea ports of Kherson and Olvia. Arthur Nitsevych acted as lead partner with Rachid Bouda providing a key contribution.