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Gleb Bialyi |EPAP Ukraine
2016 was a year of internal and external conflicts. Ukraine and Russia conducted numerous trade cases against each other. For example, the Eurasian Economic Union (Russia is one of five member states) initiated six trade cases against Ukrainian imports, and Ukraine — four against Russia. Two separate CVD cases were conducted in both countries for the first time.
The Russia — Ukraine fight also continued in the WTO regarding various measures, including anti-dumping, imposed on production imports, restrictions on traffic in transit, etc.
Ukraine has re-oriented the export of its main products, and the EUʼs trade vector facilitated the process. However, sudden re-orientation caused new trade cases against Ukrainian products in India, the EU, Turkey, the USA, etc.
In 2016, trade cases evolved from purely arithmetical (calculation of sales data, cost of production, etc.) to mainly public ones (valuation of national interests, losses for industry). National interests prevailed and caused a domestic contradiction between the interests of national producers and national consumers.
In this regard, the role of a legal counsel is no longer limited to managing legal risks and providing viable and real solutions. The counsel has become a business advisor, a trouble shooter, and a negotiator between business and the Government.
In 2017, we expect further positive development of trade policy in Ukraine: a rise in the exports of Ukrainian products to other international markets; initiation of trade duties’ reviews in the USA, the EU and other countries; participation in new trade cases, including WTO cases. The need to update current Ukrainian trade laws is a priority.
Ivan Kasynyuk | AGA Partners
The export of Ukrainian commodities has beaten another record in 2016, showing 36 million tonnes of delivered grains, which is 12% of the global market. Despite these positive figures, traders have faced problems on international markets, namely low prices and an insignificant margin. It affected the nature of requests coming from business. The flat prices decreased the number of defaults (breaches), where parties illegally avoided proper performance of contracts, which is common during periods of high volatility.
On the other hand, 2016 brought a significant number of international disputes which were related to trade wars in the Black Sea region involving mostly Ukraine, Russia and Turkey. It is worth noting the prohibition of import of certain types of agrarian products to Russian Federation and number of restrictions imposed by Turkey towards Russia, including the recently introduced 130% duty on grain imports.
The newly opened Indian market for Ukrainian grains in 2016 and leaders of growth — Iran, Bangladesh and Thailand has brought additional challenges to lawyers, requiring them to double their efforts and focus on the peculiarities of local regulations and requirements to Ukrainian products. This has led to a significant number of disputes within GAFTA and FOSFA arbitrations, which in most cases govern Ukraine’s exports.
There may be no doubt that 2017 is expected to bring new challenges both on internal and international markets. The anticipated low price season and high liquidity inside Ukraine will cut off many traders or will make them much more effective. Cancellation of the special VAT regime and upcoming land reform will also be among the drivers of the market. Nevertheless, the forecast for 2017 is even more optimistic, with Ukrainian traders expecting to export around 40 million tonnes of grain, which will strengthen Ukraine’s position on international markets and, of course, will have a positive effect on the commodities law practice.
Sayenko Kharenko’s international trade team continually receives market praise for its extensive workflow and human capacities. As a leading market force it acts for both national industry heavyweights and multinational corporations in some of the most significant international matters. Throughout 2016, led by partner Dr.Tatyana Slipachuk, the firm handled more than 30 projects, inter alia, advising on contractual structuring, trade remedies, customs, special sanctions, agency and distribution, franchising, WTO, etc. Recent highlights include representing VITA POLYMERS Poland sp. z.o.o. in safeguard investigation; advising PJSC Borshchagivskiy Chemical-pharmaceutical Plant on termination of special sanctions; acting for Khartsyzsk Pipe Plant, Ilyich Iron and Steel Works in Mariupol and related companies (Metinvest Group) in the sunset review of anti-dumping measures applied to imports into the Eurasian Economic Union of pipes originating in Ukraine. Additionally, the firm advises GEOX HUNGARY KFT on the peculiarities of agency agreements application in Ukraine. Two counsels, Andrew Zablotskyi and Anzhela Makhinova, attract peers’ praise for strong experience. Another team member, Oleksandra Brovko, who is active in trade investigations, was noted as a promising young specialist.
Egorov Puginsky Afanasiev & Partners Ukraine (EPAP Ukraine) has a consistent following among major metallurgical and chemical producers. In 2016 the team demonstrated strong performance in trade remedies with a vivid record of external investigations. In particular, EPAP Ukraine represents Ukrainian ferroalloy producers in several different investigations against exports of ferrosilicomanganese from Ukraine to Eurasian Economic Union countries, the countries of the Gulf Cooperation Council, and the Republic of Korea; and within the administrative review of anti-dumping duty against imports to the USA of SiMn originating from Ukraine. Another important recent highlight included representing a leading international chemical producer in an anti-dumping investigation against the import of UAN to Ukraine. Gleb Bialyi, partner and head of international trade, is recognized for his strong track record in trade remedies. Anton Sintsov, associate, is present throughout the firm’s projects.
Ilyashev & Partners develops its international trade practice with new instructions on representation in anti-dumping and safeguard investigations, licensing issues, sanctions, market access, customs. The firm currently handles representation of ROSHEN, Kharkiv Biscuit Factory PJSC, Confectionery Company AVK, PJSC Poltavakonditer, in the anti-dumping investigation against import into Ukraine of confectionery from the Russian Federation. Another important case was acting for UAN in a safeguard investigation against import into Ukraine of pliable porous plates, blocks and sheets from polyurethane foams irrespective of the country of origin. The firm’s client list includes ArcelorMittal Kryvyi Rih, AGC Glass Company, Noble Group, Ukrplastic, FSC More, OSCAR Production Group. Olena Omelchenko is primarily focused on trade law and earned solid feedback from peers.
Given the bright presence in the agricultural sector, AGA Partners is consistently active across international trade in commodities, which involves transportation of goods by sea, and most of them are subject to international arbitration dispute resolution. The team stands out for possessing a solid portfolio of Ukrainian agribusiness companies among its clients, which include ViOil Industrial Group, MHP, COFCO Agri, ADM, NCH, State Food and Grain Corporation of Ukraine and Ukrlandfarming. The compact team is the major reference point in niche advisory of commodities, and its three partners are in charge of subsequent mandates — Aminat Suleymanova, Ivan Kasynyuk and Irina Moroz.
ARBITRADE is customarily actively involved in international trade in commodities. A large portion of work involved drafting of contracts and structuring of transactions. For example, in 2016 the team was engaged in the structuring of a complex high-value transaction for a long-standing client, EFKO-Trade LLC (Russia) — an exclusive agreement for transshipment at a terminal complex at Taman sea port. The team was also involved in the drafting of other agreements, including contracts for purchase of soybean meal from a Brazilian seller, palm oil from Malaysia and rice from Pakistan. Other clients include Bunge S.A., Exoil S.A., the State Enterprise State Food and Grain Corporation of Ukraine, Tenfore, Stolmina and others. On the contentious side, ARBITRADE has received several positive high value awards in specialized commodities arbitrations during the course of 2016. Moved of counsel Yulia Chernykh is experienced in the consulting and dispute areas.
Integrites replenished its expertise into the separate trade and commodities practice with the arrival of new London-based partner Ivanna Dorichenko (who previously worked in Clyde & Co). The firm presently commands both contentious and transactional capabilities, having among its clients commodity producers, trading houses, state corporations and other commodity interests. In the list of clients, amongst others, are Astarta, ADM, Promising International, Allseeds, Agrogeneration. In the past year Ivanna Dorichenko assisted the State Food and Grain Corporation of Ukraine in the resolution of a trade dispute with UK buyers and Indian/Pakistani receivers due to allegations of inferior quality of shipped cargo. Additionally, the firm has established a trade finance offering guided by partner Vsevolod Volkov. International arbitration partner Olena Perepelynska acts throughout contentious projects of the new practice.
Praised for its extensive global trade network, Baker McKenzie has a well-versed international commercial and trade practice. The team has experience in developing and implementing compliance programs for its operations around the world. The office’s workflow includes a wide array of instruction, in particular, on Ukraine’s obligations under the WTO, international treaties implications, supply contracts, export control regulations, sanctions, public procurement, customs issues. Two partners, Serhiy Chorny and Ihor Olekhov, are in charge of the practice. The team includes Hanna Shtepa, Maksym Hlotov, Ganna Smyrnova.
In 2016 at Eterna Law many instructions were centered on market access advisory, trade regimes, WTO regulations and trade remedies. The firm advises Krym-Cement on changing the trade regime in line with the change in the legal status of Crimea, as well as regulations of the Customs Union/Eurasian Economic Commission; Yablunevyy Dar (TM Galicia) on matters related to the EU trade regime, free trade agreement negotiations, export market access. Traditionally, the practice is overseen by Oleh Malskyy, corporate and M&A partner.
Asters maintains expertise in an extensive range of international transactions and contractual structuring; and features advice on regulatory and customs issues, export and import control mandates, transit and transportation, food safety, consumer protection, labeling, trade regimes, and trade disputes. The firm is regularly seen in setting up comprehensive trade, distribution, manufacturing structures with a blanket range of regulatory, customs and tax issues relating to trade; and is regularly instructed on a broad range of commercial agreements, including supply, license, distribution, franchise, etc. The client base of Asters traditionally stands out for solid international names, among others; Molson Coors, L’OREAL, ED&F MAN. Three partners, Svitlana Chepurna, Oleksiy Didkovskiy and Alexey Khomyakov, manage project workflow.
AEQUO renders advice on contractual structuring of complex foreign trade transactions, customs and tax, export control, product safety, technical regulations. The firm advised a leading Norwegian producer of food supplements called Natural Pharmaceuticals on trade and customs aspects of the free trade agreement between Ukraine and the EFTA countries; a leading European manufacturer of IT equipment on export of complex IT equipment to Ukraine. The team is headed by managing partner Denis Lysenko, while partner Anna Babych leads the commercial practice. Associates Oleksandr Tereshchenko and Vasyl Mishchenko are team members.
Benefiting from its global experience, Attorneys Association PwC Legal renders support to import/export operations of Ukrainian business and handles restructuring solutions in the international trade area from legal, customs and tax perspectives. In particular, PwC assisted JOY Global (Poland) with importation of mining equipment into Ukraine. The team is noted for development legislation aimed on customs simplifications for reliable businesses (known as the Authorized Economic Operator Institution). Practice head Denis Shendryk, senior manager, specialises in developing international trade solutions for multinational and local clients, resolving disputes with the customs authorities and introducing internal compliance procedures.
Gramatskiy & Partners is customarily well-versed for comprehensive support of cross-border trade, export and import control, customs and market access, currency regimes. The team structures supply operations for a wide variety of items, including soft commodities and especially complicated technological equipment. The clients include international logistics, freight, stevedores, as well as traders, exporters and importers, trade finance institutions and banks. The 8-lawyer practice team is guided by Andrii Trembich.
Attorneys’ Association Gestors is hired mostly for representation in trade investigations. The market knows the name of associate partner Yaroslav Snigur, who is focused on anti-dumping and safeguard proceedings. In June 2016 Anna Zvolikevych joined as a partner and became an official representative in Brussels. She deals with EU regulatory policy issues such as international trade, market access, WTO rules, trade defense instruments.
Arzinger’s industry-wise equipped expertise in trade includes structuring commercial relations, cross-border supply, customs, regulatory. The firm advises on EU regulatory issues, market issues and sanctions. Andriy Selyutin, partner and head of the Odesa branch, managed trade advice.
Interlegal, the Odesa-based niche law firm focused on maritime and shipping, acts on trade related instructions of clients. In particular, the firm represented the interests of a regular client, Duglas Alliance Ltd, under a special equipment supply contract signed for the purpose of construction works.
LeGran.TT, the Odesa-based practice, has a maritime law and international trade focus. In the client portfolio are domestic and foreign cargo interests, vessels’ owners, importers and exporters. The team has expertise in economic sanctions controls, exports procedures, WTO legislation and shipping law. The firm supported Datcross Enterprises LLP, an international wine trade company, on its partnership with a Moldovan wine brand, including developing of international sale-purchase agreements for Moldovan wine for further export to China. Clients include Transship, Black Sea Commodities Ltd, Marine-Trans, Vtormetexport, Vernon Shipping Ltd., METALSUKRAINE Corp. Managing partner Tatiana Titarenko is the primary contact.
Market players single out commodities expertise of Hill Dickinson, an international commercial law outfit that works a great deal on the Ukrainian market.
The Dnipro-headquartered Dynasty Law Firm handles structuring of commercial schemes and cross-border trade contracts.