Ukraine sits at a crossroads, one road leading toward democracy and prosperity, with Ukraine taking its place among thriving European economies, and another with its great potential constrained by corruption and government mismanagement. Positive change is underway, hard fought macro-economic stability has led to positive growth as the government continues to grind out difficult reforms. In 2017 the Ukrainian Government will have to navigate a number of significant challenges. These include a possible reshuffle of both the ruling coalition in the parliament (Verkhovna Rada) and the government, negotiation of energy supplies to fuel the economy, and continued economic and military aggression from Russia. The Government of Ukraine has focused on efforts to improve Ukraine’s Ease of Doing Business rating, including by advancing deregulation reforms and by standing up a number of investment promotion agencies. The biggest obstacle to Ukraine’s success is endemic corruption, with reformers facing off against powerful vested interests to bring increased transparency and accountability to Ukraine’s business environment. The task ahead remains daunting, and Ukraine continues to look to the United States and Europe for continued support in many spheres.
Positive and Negative Aspects of Ukraine’s Investment Climate
The Ukrainian economy posted real GDP growth of 1.5 percent in 2016, and the IMF forecasts growth of 2.5 percent in 2017. However the government continues to struggle with structural problems. Ukraine’s currency, the hryvnia, remains largely stable even as the National Bank of Ukraine (NBU) has continued to lift administrative controls that it had levied during the post-Euro-Maidan banking crisis. Ukraine produces sufficient basic foodstuffs domestically (albeit with foreign-sourced inputs like seeds), but relies on imports for most consumer goods, gasoline, automobiles, and clothing. Inflation was 14.2 percent year over year as of March 2017 and is expected to decrease to 9 percent by the year end. Meanwhile, Russia’s ban on Ukrainian dairy, chocolate, fruits, and vegetables announced in 2015 has forced Ukraine to undergo a significant reorientation of its export markets. Russia has since fallen behind the EU as Ukraine’s largest export destination; exports to Russia represented only 9.9 percent of Ukraine’s total exports for 2016, down from 24 percent in 2013. On top of an aging infrastructure system already in need of repair, the conflict with Russian led separatists in eastern Ukraine has wrought significant damage to freight rail, mines, and industrial facilities (historically centered in the Donetsk and Luhansk regions). This in turn has severely curtailed Ukraine’s heavy industry exports, a key source of precious foreign currency and middle-class jobs. In March 2017, the Government of Ukraine banned commercial trade with separatist-controlled territories, which have provided coal and industrial inputs to Ukrainian industry and consumers regardless of the conflict in the east. As part of Ukraine’s Association Agreement with the EU, the Deep and Comprehensive Free Trade Area has been in effect since January 1, 2016.
The United States has provided three USD1 billion loan guarantees to the Government of Ukraine since 2014, most recently in September 2016. In March 2015, the International Monetary Fund approved a four-year, USD17.5 billion program for Ukraine. Ukraine’s program envisions difficult but necessary reforms in 2017 including pension and land reform as well as additional anti-corruption measures and privatization of state-owned enterprises. Energy sector reform is ongoing, with key pieces of legislation being passed or drafted by the Rada. In November 2016, the Rada passed the Energy Regulator Law, which finally established an independent energy regulatory commission, but implementation of the law, including rotation of current politically-appointed regulatory commissioners has been behind schedule. The Ministry of Finance launched an electronic VAT refund registry April 1, 2017, a long awaited reform that will bring transparency and efficiency to the VAT returns system. The Rada also passed in its first reading a new Electricity Market Law, which, when finally approved and implemented, will liberalize the power generation sector in Ukraine.
Ukraine’s Key Sectors
Ukraine is an agricultural powerhouse, representing the world’s third-largest grain producer (behind the United States and the European Union) and has been a profitable country for foreign investors. Domestically oriented sectors like construction have traditionally attracted more foreign direct investment than export-oriented manufacturing. Within the manufacturing sector (11th largest steel producer), metallurgy and food processing have attracted investors ahead of machine building and the chemical industry. Even with ongoing reforms to reign in corruption and burdensome regulation, Ukraine is still seen as a difficult place to do business. However, several major U.S. companies are represented here, particularly in the agriculture, consumer goods, and technology sectors.
Ukraine deserves special mention regarding its IT service and software R&D sector – this sector has demonstrated double-digit growth year-over-year. U.S. technology firms conduct R&D activities in Ukraine and an array of local IT outsourcing companies of all types and sizes serve clients worldwide. The export volume of Ukraine’s software development industry increased 15 percent in 2016 (USD2.5 billion in 2015) and is considered the number three export sector. This sector of Ukraine’s economy shows great potential due to the country’s large, skilled workforce.
Key Watch Items: Crimea and Donbas
Investors should note that the situation in both Crimea (unlawfully occupied by Russia in the spring of 2014), and in occupied districts of Donbas remains dire. The investment climate in both of these areas continues to be poor, characterized by a lack of governance, transparency, rule of law, and stability. American companies are prohibited from participating in certain transactions in Crimea, which is subject to sanctions under Executive Order 13685 dated December 19, 2014. Media reports suggest that Crimean “authorities” do not respect property rights and have “nationalized” and/or confiscated a sweeping array of business assets. Crimeans face scheduled blackouts due to a deficit of power generation on the peninsula following the cutoff of Ukrainian electricity in December 2015. Businesses that do operate there report difficult conditions for their personnel as local “authorities” attempt to enforce foreign law and require the adoption of Russian documentation. The situation in the Donbas (portions of Luhansk and Donetsk oblasts) controlled by Russian-backed separatists continues to be volatile. Those businesses remaining in this zone have reported work stoppages, illegal “taxation,” and the kidnapping of company personnel, all at the hands of the Russian-backed separatists. Ukrainian banks have ceased operations in the region, and the Ukrainian Government is unable to provide basic services. The blockade of separatist controlled territory, initially started by volunteers at the end of January but backed by the Ukrainian Government on March 15, bans all trade with separatist-controlled territory. Where previously damaged road and rail systems in the Donbas left businesses with limited or costly means to receive inputs or move product, the government-backed blockade has stopped all movement of goods across the contact line, including coal required for Ukraine’s steel and thermal power plants. In March, separatists seized Ukrainian-registered steel, metallurgical, and energy assets that had been operating on non-government controlled territory, forcing Ukrainian owners to fire staff in order to remain complaint with Ukrainian laws. Ukrainians living in non-government controlled territory report power and water outages due to the conflict, shutoffs because of nonpayment for electricity, and dwindling supplies of coal for power plants.
Table 1: FDI Indicators
|Measure||Year||Index or Rank||Website Address|
|TI Corruption Perceptions index||2016||131 of 176||http://www.transparency.org/news/
|World Bank’s Doing Business Report “Ease of Doing Business”||2017||80 of 190||http://doingbusiness.org/rankings|
|Global Innovation Index||2016||56 of 128||http://globalinnovationindex.org/
|U.S. FDI in partner country ($M USD, stock positions)||2016||USD 712.6||http://www.bea.gov/
|World Bank GNI per capita||2015||USD 2,640||data.worldbank.org/
1. Openness To, and Restrictions Upon, Foreign Investment
Policies toward Foreign Direct Investment
The Government of Ukraine continues to move forward with a reform agenda to improve the investment and business environment. Ukraine rose in the World Bank’s “Doing Business” rankings (see Table 1) to 80 out of 190 countries measured – a three-place improvement since 2015. In the framework of EU-Ukraine Association Agreement, the Government of Ukraine reformed its public procurement to open it to foreign and domestic economic operators on equal terms. The Ministry of Economic Development and Trade runs a special web-portal (www.tender.me.gov.ua ) that provides information about upcoming public procurement. Electronic public procurement became mandatory as of August 1, 2016. The Government of Ukraine continued deregulation efforts, implementing important corporate governance reforms that allowed it to protect minority shareholders’ rights. Exports of 53 groups of dual use goods were exempted from excessive control procedures. Authorities abolished unlawful restriction of the validity term of construction licenses and reduced by three times the length of the procedure for issuing such licenses. In 2017, the Government of Ukraine cancelled 360 outdated regulations, normative acts, instructions, and orders that will allow it to simplify state property leasing procedures, to automate the land evaluation process, and to abolish the cost of some notary services.
Ukrainian legislation provides for national treatment of foreign investors, in line with its World Trade Organization (WTO) commitments. Due in part to conflicts in the body of laws that govern investment and commercial activity in Ukraine, and persistent issues with corruption, foreign investors have found it difficult to pursue cases in Ukrainian courts and often seek arbitration outside of the country.
Weighing heavily over Ukraine’s FDI climate is the lack of progress in reforming Ukraine’s judiciary. The judicial system in Ukraine has never been an independent branch of power. The courts have often been used as an instrument for confrontation between the President and Parliament. The lack of rule of law was one of the driving reasons for the 2014 Revolution of Dignity. Ukrainian civil society continues to demand punishment of judges deliberately involved in illegal decision-making, the guaranteed independence of the judiciary system, and an end to corrupt practices in the system. Judicial reform is an ongoing process; the passage of constitutional amendments on the judiciary in June 2016 was a major step forward, and the competitive selection of justices for the Supreme Court is currently ongoing. The complete overhaul of the judiciary, however, will likely take several more years. Political analysts and media describe the current Rada (Parliament) as pro-European and pro-reform, having made significant strides on urgently needed reforms, including a law strengthening local government and civil service, proposed reforms to public funding of political parties, and numerous pieces of legislation to meet IMF requirements. Additionally, the Rada has passed laws to reduce burdensome business regulations, encourage public-private partnerships, require media ownership transparency, and improve agricultural land policies.
Limits on Foreign Control and Right to Private Ownership and Establishment
Aside from ownership of agricultural land, the regulatory framework for the establishment and operation of business in Ukraine by foreign investors is generally similar to that for domestic investors. However, accreditation of representative offices of foreign companies and their branches significantly lags behind the simplified registration procedures for Ukrainian business. Accreditation by MEDT takes 60 days and typically costs USD2,000. In the case of starting a business (a legal economic entity or private entrepreneur business) non-Ukrainian citizens are also required to receive a Ukrainian registration through the Office of Immigration in the Ministry of Foreign Affairs and to receive a taxpayer identification number through the State Fiscal Service, based on the Cabinet of Ministers of Ukraine Order #779 dated Dec. 10, 2013. Registering a foreign investment is governed by “The Law on Foreign Investments” No139 dated March 06, 2013. Foreign and domestic private entities can establish and own business enterprises and engage in all forms of remunerative activity. All enterprises must be established according to the form and procedure prescribed by law and registered with the appropriate state authorities. Foreign companies are restricted from owning agricultural land, manufacturing carrier rockets, producing bio-ethanol, and some publishing activities. In addition, Ukrainian law authorizes the government to set limits on foreign participation in “strategically important areas,” but the wording is vague and the law is rarely used in practice. Generally, these restrictions limit the maximum permissible percentage of foreign investment into Ukrainian firms in the defense and energy sectors.
Other Investment Policy Reviews
The United Nations Conference on Trade and Development (UNCTAD) so far has not conducted formal reviews of Ukraine’s investment policy. The Organization for Economic Cooperation and Development (OECD) and the World Trade Organization (WTO) conducted formal reviews in 2016. Ukraine’s first trade policy review as a WTO member was conducted in April 2016 and can be found at: https://www.wto.org/english/tratop_e/tpr_e/tp434_e.htm
In 2016, Ukraine’s Central Bank lifted the requirement that three-quarters of all capital coming into the country as foreign investment be converted into the local currency, the hryvnia. On June 22, 2016, the President signed into law a bill that abolishes mandatory state registration of foreign investment. On October 6, 2016, the Parliament adopted a law that mandates notary certification of signatures on documents that introduce changes to documents that are subject to state registration (e.g. a decision of the General Shareholders Meeting) and permits, irrespective of the registered address of legal entities and individual entrepreneurs. The law entered into force on November 2, 2016. In 2016, the government also reduced the time required for VAT registration and eliminated business registration fees. In March 2017, the Parliament adopted legislative amendments abolishing the requirement for legal economic entities and physical economic entities (entrepreneurs) to use official seals, and made progress on promoting minority investor protections by requiring that related-party transactions undergo external review; by introducing remedies in cases where related-party transactions are harmful to the company; and also clarifying ownership and control structures. It also strengthened contract enforcement by introducing a system that allows companies to pay court fees electronically. Meanwhile commercial disputes involving foreign companies in courts still tend to be based on fiscal authorities questioning the legitimacy of contracts and counteragents of foreign companies conducting business in Ukraine. A website for registration of private entrepreneurs and legal entities is available https://poslugy.gov.ua/ and https://online.minjust.gov.ua/dokumenty/choise/ .
Companies are able to submit documents online while the Registrar further shares the data with the State Committee of Statistics of Ukraine, the State Pension Fund, State Fiscal Service, the Employment Insurance Fund, the Social Security Fund, and the Fund for Social Insurance.
In the World Bank’s Doing Business rankings Ukraine placed 80th in terms of ease of doing business, and 20th for ease of starting a business.
As of October 1, 2016 Ukraine’s investments to foreign countries equaled almost USD 6.2 billion.
2. Bilateral Investment Agreements and Taxation Treaties
Ukraine has signed 70 bilateral investment treaties. The Bilateral Investment Treaty between the United States and Ukraine has been in force since1996. The following countries have also signed bilateral investment agreements with Ukraine: Albania (2004), Austria (1996), Argentina (1995), Armenia (1994), Azerbaijan (1997), Belarus (1995), Belgium (2001), Bosnia and Herzegovina (2002), Bulgaria (1994), Brunei (2006), Canada (1994), Chile (1995), China (1992), Cuba (1995), Croatia (1997), the Czech Republic (1994, amended 2010), Denmark (1992), Equatorial Guinea (2005), Egypt (1992), Estonia (1995), Finland (2005), France (1994), Gambia (2006), Georgia (1995), Germany (1993), Great Britain and Ireland (1993), Greece (1994), India (2001), Indonesia (1996), Iran (1996), Israel (1995), Italy (1995), Japan (2015), Jordan (2005), Hungary (1995), Kazakhstan (1994), Congo (2010), Korea (1996), Kuwait (2002), Kyrgyzstan (1993), Latvia (1997), Lebanon (1996), Libya (2001), Lithuania (1994), Macedonia (1998), Morocco (2001), Moldova (1995), Mongolia (1992), Nigeria (2010), the Netherlands (1994), OAE (2003), Oman (2002), Panama (2005), Poland (1993), Portugal (2003), Russia (1998), San Marino (2006), Saudi Arabia (2009), Singapore (2006), Syria (2002), Slovakia (1994), Slovenia (1999), South Korea (1996), Spain (1998), Sweden (1995), Switzerland (1995), Tajikistan (2001), Turkmenistan (1998), Turkey (1996), Uzbekistan (1993), Vietnam (1994), Yugoslavia (2001), and Yemen (2002). In 2016 Ukraine signed a FTA with Canada that is expected to be enacted in summer 2017. It is now negotiating FTAs with Turkey and Israel.
3. Legal Regime
Transparency of the Regulatory System
Ukraine continues to struggle to build a legal system that facilitates easy interaction with the international community. However, Ukraine’s efforts to implement the EU Association Agreement including the Deep and Comprehensive Free Trade Area (DCFTA) which came into effect in January 2016 should help to boost overall transparency and legal certainty as the Government of Ukraine strives to meet EU standards. Post is not aware of any informal regulatory processes managed by nongovernmental organizations or private sector associations Currently, many issues are not dealt with by a single piece of legislation (Note: the 2011 Tax Code is an exception). Various laws remain ambiguous or contradictory, which further complicates matters. Information on existing and draft legislation is available on the Verkhovna Rada and Cabinet of Ministers websites. Often legislative initiatives and draft action plans are published on the corresponding Ministry websites for public commentary, but not all draft legislative initiatives are publicly available.
NGOs, business associations, and international business associations such as American Chamber of Commerce and the European Business Association are able to provide their feedback and to propose amendments to draft legislation and regulations. The legislative branch has some oversight mechanisms to ensure the government follows administrative processes; however, these are often not enforced.
Ukraine is moving in the direction of transparent policies, clear rules, and enhancing fair competition. Improvements include implementation and utilization of the ProZorro system for government procurement, and the introduction of E-Governance. On August, 23, 2016, the Cabinet of Ministers approved an Action Plan for the Deregulation of Business Activities in Ukraine for 2016-2017. The Plan is a strategic road map aimed at making national regulations compliant with European Union standards and global best practices. The Plan contains 112 measures to improve the business environment in different sectors, including agriculture, telecommunication, infrastructure, construction, tax, as well as reforms to state customs procedures, sanitary and veterinary controls.
Among the major expected simplifications the following are the most significant:
- the ability to submit applications to state authorities and obtain permits in electronic form;
- the repeal of certain licenses in the telecoms sector;
- the requirement for the competition authority to provide clear guidance for vertical distribution relations;
- the simplification of employment registration for foreigners;
- the harmonization of construction and engineering standards with EU norms;
- simplification of customs clearance procedures; and
- a decrease in the number of controlling authorities.
Establishment and licensing procedures have been simplified. The Investment Promotion Office was created as a one-stop-shop to attract and embed investments. Progress in tax reform over the last two years has resulted in greater tax transparency and more efficient and effective tax administration.
Ukrainian regulatory institutions are still characterized by a high degree of favoritism in the decisions of government officials, poor judicial independence, weak protection of property rights and minority shareholders’ interests, highly irregular payments and bribes, burdensome government regulation, an inefficient legal framework in settling disputes and challenging regulations, poor ethical behavior of firms.
The World Economic Forum’s 2016/2017 Global Competitiveness Index ranked Ukraine 85 of 138 countries overall, 74 of 138 in terms of burden of Government regulation, and 99 of 138 in terms of the Transparency of Government policy making.
According to the World Economic Forum the top 10 most problematic factors for doing business in Ukraine are corruption, policy instability, inflation, inefficient government, bureaucracy, access to financing, government instability, tax rates, tax regulations, and foreign currency regulations.
International Regulatory Considerations
While Ukraine is not a member of the EU, it is working to harmonize its export standards to meet EU requirements in order to facilitate access to EU markets. Ukraine, as a WTO member, has a commitment to adhere to the general regime of transparency of regulations affecting trade.
Legal System and Judicial Independence
The legal system in Ukraine is based on a civil system of codified laws passed by the parliamentary body, the Rada. In the event of a commercial dispute, a foreign investor may seek recourse through a number of institutions. Generally, the Foreign Investment Law provides that a dispute between a foreign investor and the state of Ukraine must be settled in the Ukrainian courts, unless otherwise provided by international treaties. Ukraine’s judicial system consists of the Constitutional Court and the courts of general jurisdiction. The Constitutional Court has exclusive jurisdiction over interpretation of the Constitution and acts as final arbiter on constitutional issues (note: the Constitutional Court previously had authority over interpretation of the laws of Ukraine as well, but a 2017 reform narrowed jurisdiction to interpretation of the Constitution only).
Courts of general jurisdiction are organized by territory and specialty and include: local courts; appellate courts; specialized high courts for civil and criminal cases; and supreme courts. Local courts are either courts of general jurisdiction (including military courts) or specialized courts (i.e. commercial and administrative courts). Local commercial courts exercise jurisdiction over commercial and corporate disputes, while local administrative courts administer justice in legal disputes connected with state government and municipalities, with the exception of military disputes.
Commercial courts accept jurisdiction over disputes between legal entities, including foreign legal entities, Ukrainian legal entities, and individual entrepreneurs, arising out of the conclusion, modification, termination, and performance of commercial agreements (including privatization). Commercial courts are also in charge of administering bankruptcy cases and certain cases initiated by the Antimonopoly Committee of Ukraine and the Accounting Chamber. Under the Constitution of Ukraine, the Supreme Court heads the judicial system and has the power to review decisions of all three branches of the court system.
The judicial system is independent of the executive branch; however, extensive corruption exists throughout the court system, and the judiciary provides an opening for outside influence. Among the major problems of the Ukrainian judicial system are its overall lack of capacity and the existence of prosecutorial influence on judges. Ukraine is ranked 129 out of 140 countries with regard to judicial independence by the Global Competitiveness Index report 2016-2017 (up three spots since the 2015-2016 report).
In general, regulations are appealable, but it depends on the nature and origin of the regulation to determine whether it is appealable in the national court system.
Laws and Regulations on Foreign Direct Investment
The Law of Ukraine on Investment Activity (1991) establishes the general principles for investment. In addition, the following laws and regulations pertain to foreign investment: Law “On the Foreign Investment Regime” (1996); Law “On the Protection of Foreign Investment” (1991); Cabinet of Ministers Resolution, “On the Procedure for the State Registration of Foreign Investment” (1996); Law “On Production-Sharing Agreements,” (1999), amended in 2012; The Land Code (2001); National Bank of Ukraine Resolution “On Regulation of Foreign Investing in Ukraine” (2005); Law “On Amending Certain Laws of Ukraine with the Purpose of Overcoming Negative Impacts of the Financial Crisis” (2009); Tax Code (2010) with 2016 amendments to improve investment climate; Law “On Public-Private Partnerships” (2010); Law “On Preparation and Implementation of Investment Projects Based on the Principle of the Single Registration Window,” (enacted 2012); Customs Code (2012); Law “On Industrial Parks” (2012), Law ”On Amending Certain Laws of Ukraine with the Purpose of Increasing Protection of Investor Rights” (May 2015).
Competition and Anti-Trust Laws
The Anti-Monopoly Committee of Ukraine (AMCU) is responsible for reviewing transactions for competition related concerns.
Expropriation and Compensation
According to current legislation, legal expropriation of property is permitted in certain criminal proceedings or in cases of failure to fulfil investment obligations during privatization procedures. Private property may be legally expropriated for military purposes given the special regime in place due to ongoing military action in eastern Ukraine. Such operations are regulated by the law “On Defense of Ukraine,” the law “On Legal Regulation of Emergency State,” and Martial Law.
The 2013 Law on Amendments to Criminal Code and Criminal Procedural Code of Ukraine (http://zakon4.rada.gov.ua/laws/show/222-18 ) introduced special confiscation, which could be applied against third parties in criminal proceeding, both physical and legal entities. A court must order special confiscation during adoption of a court ruling in criminal proceedings. Introduction of special confiscation is controversial: it could contradict existing legislative provisions and create space for abuse within criminal proceedings.
Post has not received any claims from U.S. companies on cases of expropriation. Since there is no known history of discrimination of U.S. persons in terms of expropriation, it is difficult to point out high-risk sectors prone to expropriation actions.
ICSID Convention and New York Convention
Ukraine is a Party to both the International Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID) and the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards. On October 20, 2015, the Government of Ukraine submitted a formal UN communication, noting that Ukraine’s ability to implement its obligations under the New York Convention in the occupied territories of Crimea, Donetsk and Luhansk is limited and not guaranteed until Ukraine regains effective control from the Russian Federation. The full text of the communication is available at: C.N.597.2015.TREATIES-XXII.1 of 20 October 2015 .
The procedure for recognition and enforcement of foreign arbitral awards in Ukraine is regulated by the following legislative acts:
- The Law of Ukraine “On International Commercial Arbitration” (ICAL, 1994). The Law is almost a literal translation of the UNCITRAL Model Law.
- The Code of Civil Procedure of Ukraine (CPC, 2004). Pursuant to Article 390 of the CPC, Ukrainian courts shall enforce foreign court decisions provided that: recognition and enforcement are stipulated under an international treaty ratified by the Verkhovna Rada of Ukraine (Parliament); or on the basis of the reciprocity principle under an ad hoc agreement with a foreign country, whose court decision shall be enforced in Ukraine.
- http://zakon0.rada.gov.ua/laws/show/1618-15 (Article 390 of the Civil Procedure Code of Ukraine)
- http://zakon2.rada.gov.ua/laws/show/4002-12 (Law of Ukraine “On International Commercial Arbitration”)
Investor-State Dispute Settlement
American investors have made claims under the United States-Ukraine Bilateral Investment Treaty (BIT). The Embassy only tracks disputes at the request of U.S. businesses or individuals involved in the case, and cannot provide a comprehensive number for all investment disputes involving U.S. or other foreign investors in Ukraine over the past 10 years. Investment disputes are a significant problem, however. As of early 2017, the Embassy was aware of 30 active disputes, some very protracted, involving U.S. businesses or individuals. Going back 10 years, the Embassy has tracked almost 100 disputes involving a U.S. business or individual. The majority of disputes are related to customs and tax issues, or corporate raids.
ICAL limits the jurisdiction of international arbitration tribunals to civil law disputes arising from international economic operations (provided that the commercial enterprise of at least one party exists outside of Ukraine), disputes between international organizations and enterprises with foreign investments in Ukraine, and intracompany disputes of these enterprises. ICAL does not address foreign arbitral awards issued against the government.
- www.rada.gov.ua (in Ukrainian)
- www.ucci.org.ua/en/arb.html (in English)
Extrajudicial action against foreign investors in the form of official acts of government (e.g. unwarranted inspections, investigations, fines) and illegitimate acts by private parties (e.g. corporate raiding) has been and remains fairly common in Ukraine. The current Ukrainian government has made it a stated priority to improve the business environment and attract more foreign investment, however, progress is uneven.
International Commercial Arbitration and Foreign Courts
In 2004 Ukraine adopted the Law of Ukraine “On Arbitration Courts,” which describes arbitration as one of the alternative dispute resolution tools.
Particularly, Articles 1 and 5 of the Law stipulates that parties can now refer most of their commercial or civil-law disputes to courts of arbitration, which are non-state bodies. Article 51 stipulates that awards of the aforementioned courts of arbitration are final, and Article 57 stipulates that they can be subject to mandatory enforcement via a competent state court.
The Embassy, however, is not aware to what extent arbitration is used by the business community.
Ukraine’s International Commercial Arbitration Court (ICAC) and Maritime Arbitration Commission at the Ukrainian Chamber of Commerce and Industry are both annexed to the ICAL, which itself is a near-direct translation of the UNCITRAL model law. ICAL distributes the functions of arbitration assistance and supervision between the district courts and the President of the Chamber of Commerce and Industry of Ukraine for both ad hoc and institutional arbitrations. Purely domestic arbitration is governed by the Law of Ukraine “On Arbitration Courts” (2004). Local courts are obliged to recognize and enforce foreign arbitral awards under ICAL and the CPC, per Ukraine’s obligations under the ICSID and the New York Convention of 1958. However, the reliability, consistency and timeliness of implementation are unknown. The Embassy is not aware of any investment disputes that have involved SOEs.
In 2016, Ukraine ranked 150 on the ease of resolving insolvency indicator of Doing Business, having dropped from 141 in the previous year (next-to-last among European and Central Asian countries). Resolving insolvency in Ukraine takes 2.9 years on average and costs 42 percent of the debtor’s estate (no change from 2015), and the average recovery rate is 7.5 cents on the dollar (compared with 8.3 last year). In 2016, the Ukrainian government has missed two deadlines to meet its stated commitment under its current IMF “program” to enact amendments to reform its insolvency regime, which the IMF has identified as a priority reform for improving Ukraine’s business climate. The insolvency framework does not require approval by creditors for selection or appointment of an insolvency representative, nor does it require approval by creditors for sale of substantial assets of the debtor. The creditor does not have the right to request information from the insolvency representative, and provides that a debtor has the right to object to decisions accepting or rejecting creditors’ claims.
The relevant laws pertaining to bankruptcy are:
4. Industrial Policies
Foreign investors are exempt from customs duties for any in-kind contribution imported into Ukraine for the company’s charter fund. Some restrictions do apply and import duties must be paid if the enterprise sells, transfers, or otherwise disposes of the property. From January 1, 2013, through January 1, 2018, Ukraine provides a zero percent Corporate Profit Tax (CPT) on income from projects resulting in job creation in qualifying industries, including high-tech, eco-friendly, and manufacturing and export-oriented industries. The incentive is granted for new projects as well as reconstruction or upgrades to existing enterprises, under certain conditions related to the value of the investment, the number of jobs created, and salary levels. Ukraine also offers generous depreciation rates for most fixed assets, including property, plant, and equipment for both foreign and domestic investors.
Foreign Trade Zones/Free Ports/Trade Facilitation
Ukraine does not maintain special or free economic zones (SEZs-FEZs).
Performance and Data Localization Requirements
Ukraine has no forced localization policies or requirements for foreign IT providers to turn over any source code or provide backdoors into hardware or software applications. Ukraine’s overall regulation of IT infrastructure and Internet Service Providers is largely free and unregulated. Unfortunately internet piracy is rampant and the use of unlicensed software is widespread even within the government.
The regulatory framework in Ukraine is generally aligned with Convention for the Protection of Individuals with regard to Automated Processing of Personal Data of 1981 adopted by the Council of Europe. In 2011 Ukraine adopted a law on protection of personal data. The law is based on the framework EU Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data, but provides a more detailed legislative base for data protection in Ukraine. The fundamental principle applicable to personal data processing under the law is that all steps in data collection, storage and processing must have the consent of the data subject. Personal data may also be transferred to foreign personal data processors on the condition that their countries have a sufficient level of data protection, presumably comparable to Directive 95/46/EC; the relevant permit; and the recipient uses the personal data for the same purposes for which it was collected.
The law also prohibits processing of personal data relevant to (i) race, ethnic origin and nationality; (ii) political, philosophical and religious beliefs; (iii) membership in political parties and other organizations; (iii) health; (iv) sexual life; (v) biometrical data; (vi) genetic data. Those categories of personal data are sometimes identified as “sensitive data”. The Law provides, however, for a number of cases when processing of sensitive data is allowed, including cases when (i) individual provides its explicit consent to processing of its sensitive data; and (ii) processing of sensitive data is required within the framework of labor relations; and (iii) sensitive data was made public by the individual. Additional legislation on protection of personal data consists of the Constitution of Ukraine, the laws of Ukraine “On Information”, “On Protection of Information in Informational and Telecommunication Systems”, other laws and normative and legal acts.
Government Agencies involved in personal data protection are:
- The Ukrainian Parliament’s Commissioner for Human Rights (regarding control over processing of personal data);
- The State Service of Ukraine on Personal Data Protection (which was deprived of its controlling functions and now retains only general advisory powers);
- The State Service of Ukraine for Special Communications and Information Protection (regarding protection of e-signatures and other encrypted information);
- The National Commission for State Regulation of Communications and Information (regarding issues related to regulation of internet access).
5. Protection of Property Rights
Ukraine has a regulatory framework protecting property interests, as well as mortgages and liens. The record system is generally reliable and maintained by the Ministry of Justice. Still, judicial reform is needed to ensure efficient enforcement of property rights. The Land Cadaster Law of July 2012 provided for a single land registry; its 2013 launch marked an improvement in land ownership protection. According to the Ministry of Agrarian Policy, the Land Cadaster is only 20 percent utilized and the Ministry has started a comprehensive land audit. Ukrainian media estimate that five percent of land in Ukraine does not have clear title. Ukraine decreased in its rating in registering property in the World Bank Ease of Doing Business ratings from #62 in 2016 to #63 in 2017.
Intellectual Property Rights
Ukraine was designated a Priority Foreign Country in 2013 in the United States Trade Representative’s (USTR) Special 301 Report due to the lack of progress in the issues outlined below. USTR changed Ukraine’s designation in the 2014-2016 Special 301 report to the Priority Watch List – an improvement. While the Government of Ukraine has demonstrated some limited progress in IPR reforms to date, Ukraine continues to have serious IPR challenges. For example, Ukraine is host to some of the largest internet pirate sites in the world. Further, a number of rogue collecting societies continue to freely operate in Ukraine, collecting royalties but not distributing those royalties to any legitimate rights holders. Industry representatives estimate that the majority of broadcast and public performance market places are unlicensed. In addition to digital piracy, Ukraine’s many open-air markets continue to sell illegally copied music, films, and entertainment software. In the area of software piracy, the Government of Ukraine has begun limited efforts to license the business software it uses, but admits that 40 to 80 percent of the software used in government ministries and enterprises remains unlicensed.
Collection Management: Ukraine has recognized that it has a significant problem with the operation of illegal or “rogue” collecting societies, i.e. organizations that collect royalties by falsely claiming they are authorized to do so. Such organizations tend to operate without adequate transparency and rarely disburse sufficient funds that they collect to the rights holders entitled to the royalties. The government has not prosecuted anyone – not even societies that the Government of Ukraine determined were collecting money without the necessary authorization. Despite some government efforts to shut them down, 15 rogue CMOs continue to operate in Ukraine, collecting royalties without distributing any of those royalties to legitimate rights holders. The MPAA estimates that more than 90 percent of Ukraine’s broadcast and public performance market places are unlicensed. Governments of Ukraine officials, however, say that this is because broadcasters do not pay into the current corrupt system of royalty collections. New legislation, which is expected to bring a new face to collection management in Ukraine and comply with Ukraine’s international obligations, is currently being redrafted by the World Intellectual Property Organization (WIPO) in cooperation with the MEDT. MEDT expects this draft to be ready for review by the international community in 2017. Until this draft is passed, the existing CMO legislation will remain in place.
Software Piracy: The Government of Ukraine acknowledges that a significant percentage of the software used by the government itself is unlicensed. The most recent industry data identify Ukraine as having a higher software piracy rate than almost all other countries on the Special 301 Priority Watch List. Ukraine acknowledges the need for the government to use legal software, and has issued repeated official documents calling for such legalization as far back as 2002. In general, the situation in Ukraine remains challenging, with minor progress. Government of Ukraine officials report an incremental legalization of software among a number of agencies and services in the past year amounting to the legalization of approximately 20,000 systems.
Internet Piracy: The United States has repeatedly raised its strong concerns about the significant and growing piracy of copyrighted content. Online piracy has significant consequences for both the Ukrainian market and for international trade. There was not a single online piracy-related conviction in Ukraine in 2016 under existing statutes. In March 2017, the Parliament passed a law “On State Support to Cinematography” that provides for Internet Service Provider (ISP) liability and a system of notice and take down. Pending signature by the President, it would be a great improvement over the current chaotic, unregulated online environment in Ukraine.
Patents and Trademarks: Trademarked and copyrighted goods must be registered for a fee in the Customs Service’s rights holder database in order to be guaranteed protection. Counterfeit goods, including products containing protected trademarks, remain readily available. Counterfeit apparel is common. Most counterfeit goods are not produced in Ukraine. The amount of counterfeit pesticides on the market continues to increase, now accounting for a significant percentage of the market, according to industry. Industry has reported that criminal prosecution for counterfeiting crimes are stalled and ineffective, and that seized goods are not disposed of or released in a timely manner. Additionally, large amounts of counterfeit products and pirated goods are still openly sold in physical markets in Ukraine. Finally, patents for plants have also recently come under threat – specifically, industry have reported alleged breeder rights infringement for illicitly appropriated plant materials found in Ukraine.
Judicial System for IPR Protection: Civil IPR lawsuits remain rare because of a general lack of confidence in Ukraine’s legal system, and because few judges are properly trained in IPR law. Law enforcement officials and industry also complain that too many IPR cases result only in small fines, which do not deter illegal activity. In some cases, infringing companies have won dubious and nontransparent court decisions that appear to violate the patent and trademark rights of other companies.
6. Financial Sector
Capital Markets and Portfolio Investment
The capital market for portfolio investment is small and lacks liquidity. The local institutional investment sector, including private pension investment, is weak. A foreign investor needs to open an account in a bank operating in Ukraine or act via a local trader in order to make a portfolio investment. With its September 2014 resolution, the NBU temporarily banned the transfer of receipts from the sale of securities of Ukrainian issuers into foreign currency, with the exception of securities traded at stock exchanges. The measure was supposed to expire in June 2016, but still remains in place as of April 1 2017.
Ukraine has nine operational privately-owned stock exchanges (down from 10 in 2015), with the largest trade volumes conducted at four major exchanges. These exchanges operate largely in compliance with international best practices, and there is increasing competition in the sector. 89.16 percent of securities trading at Ukraine’s exchanges were transactions with government bonds. The remaining transactions were with NBU depository certificates, corporate bonds, shares, derivatives, or investment certificates. However, the total amount of trade in shares in 2016 did not even reach one percent of GDP. The remaining exchanges are largely “pocket exchanges” that rely on revenue from sales of state-owned enterprises.
There are no legal restrictions on the free flow of financial resources needed to support growth in the product/factor markets. Credit is largely allocated on market terms and foreign investors are able to get credit on the local market, utilizing a variety of credit instruments. However, the market environment has long lacked transparency; enforcement of key laws and regulations has been weak; and investors, both domestic and foreign, continue to face significant uncertainty.
Money and Banking System
In the wake of a post-Maidan banking sector crisis, the NBU implemented a significant banking sector clean-up, shuttering more than 80 banks for insolvency or for money laundering activities. The NBU continued efforts to clean up the sector through 2016 culminating with the successful nationalization of systemically vital PrivatBank –Ukraine’s largest lender and deposit holder. The December 2016 nationalization was an important step to safeguard Ukraine’s financial stability. As of the end of 2016, 96 active banks remained in the system, down from 163 in 2014. The NBU estimates the total assets of Ukraine’s banking sector at USD52.8 billion. The top 20 banks account for 88 percent of the sector’s assets (around USD46 billion). After the nationalization of PrivatBank, Ukraine’s four state-owned banks control 59.4 percent of individual deposits, 46.3 percent of legal entities funds, 52.5 percent of total banking assets, 48.1 percent of credits issued to legal entities, 29.2 percent of credits issues to individuals, 76.7 percent of Government bonds, 74 percent of all payments cards, and 60 percent of state banks’ branch networks (see the Chart 1 below).
In 2016 Ukrainian banks recorded losses of UAH 160 billion (USD6 billion) which stifled the availability of credit to Ukrainian households and businesses. Banks’ portfolio of loans to individuals decreased by UAH 3 billion (USD111 million) in hryvnia-denominated loans and by USD660 million in foreign-currency-denominated loans. Total hryvnia-denominated business lending portfolio increased by UAH 75 billion (USD2.8 billion), though decreased in foreign currency-denominated loans by USD4.2 billion. NBU stress tests have revealed that the share of non-performing loans (NPL) today is around 50 percent of the total loan portfolio of Ukrainian banks. Overall the quality of banking oversight is improving as the NBU strengthens prudential capital requirements for the sector and works to unwind related party lending positions.
Foreign-licensed banks may carry out all activities conducted by domestic banks, and there is no ceiling on participation in the banking system, including operating via subsidiaries. A foreign company can open a bank account in Ukraine for the purposes of investment operations. Otherwise it needs to register a representative office in Ukraine. A nonresident private person can open a bank account in Ukraine.
Legislation aimed at protecting businesses from hostile takeovers or “raids” pertains to both domestic and foreign companies.
Foreign Exchange and Remittances
In 2016, the National Bank of Ukraine gradually relaxed currency controls and restrictions on dividend repatriation that were put in place to stabilize the hyrvnia in the post-Maidan economic crisis. It allowed repatriation of foreign investments dividends for 2014-2015 totaling less than USD1 million or 10 percent of the total dividends amount (whichever is larger) per month, with a cap of USD5 million if ten percent of dividends exceeded that amount. Further, the NBU is considering allowing the dividends repatriation for the years preceding 2014 as well as those earned in 2016. According to the NBU’s management, the Central Bank will assess the amounts based on regular input from the banks in order to design the appropriate schedule for future repatriations. Also, NBU has reduced the share of foreign currency received from abroad subject to mandatory conversion into Ukrainian hryvnia from 75 percent to 65 percent. The conversion requirement applies to proceeds in major convertible currencies (including USD, EUR, GBP and CHF) and Russian rubles received from abroad by legal entities (excluding Ukrainian banks) and individual entrepreneurs. Proceeds in the above-mentioned foreign currencies credited to accounts of joint ventures opened with the Ukrainian banks, or accounts opened by the Ukrainian residents outside of Ukraine, are also subject to mandatory conversion. The requirement does not cover certain types of transfers, including foreign investment, proceeds received by the state or under state-guaranteed instruments, borrowings from international financial institutions in which Ukraine is a member, funds in correspondent accounts, and deposits of foreign banks with Ukrainian banks, etc. In February 2017, the NBU announced its intent to decrease the mandatory foreign currency sales share from 65 to 50 percent, and to fully cancel this requirement in future. Other changes to currency control restrictions include:
- Maximum amount of cash foreign currency or precious metals that an individual may purchase in one bank during one banking day was increased from the equivalent of UAH6,000 to the equivalent of UAH12,000.
- The permitted amount of withdrawal by a bank’s client of foreign currency or bank metals from their accounts was increased to UAH100,000 per day.
- The restriction on the withdrawal of cash in hryvnia from bank accounts has been completely removed (previously a UAH500,000 daily limit).
- The limit on currency purchases for firms that have banking deposits was raised from USD10,000 to USD25,000 (and to USD100,000 in February 2017).
- Hard currency purchases to make advance payments over USD50,000, which previously required pre-approval from the National Bank of Ukraine, have become subject to NBU control after completion of the transaction.
- In December 2016, the Parliament cancelled a mandatory two percent pension tax levied on all foreign currency purchases.
In addition, the NBU has shortened the term of advance application for the purchase of hard currency on the interbank market from two days (T+2 regime) to one day (T+1 regime.) The operation itself still requires the approval from NBU in order to prevent non-productive capital outflow.
A number of restrictions, however, still remain in place: a prohibition on early repayment of cross-border loans by Ukrainian borrowers (excluding export-credit agency loans); a ban on repatriation of proceeds from sale of Ukrainian securities and shares in limited liability companies by foreign investors; and a ban of foreign currency purchase of more than USD 500,000 in hard currency if using loans in hryvnia that also require a letter of credit confirmation.
Sovereign Wealth Funds
Ukraine does not maintain or operate a sovereign wealth fund.
7. State-Owned Enterprises
The Government of Ukraine has 1,833 operating SOEs out of 3,350 registered SOEs, with output amounting to around 10 percent of GDP. Nonetheless, according to the Ministry of Economic Development and Trade (MEDT), the state sector is one of the largest in Europe. The SOEs, which are defined as companies in which the state owns at least 50 percent +1 share, employ 900,000 people. SOEs are active in areas such as energy, machine-building, and infrastructure. Companies include Turboatom, a producer of energy turbines, energy generator Centerenergo and energy company Naftogaz, which, along with its subsidiaries – domestic oil producer Ukrnafta and UkrGasVydubuvannia (UGV) – hold substantial shares of their respective markets. There is no common public list of all SOEs in Ukraine. Each Ministry publishes the list of SOEs under its management. The sector is inefficient and often unprofitable. According to MEDT the cumulative loss of top 100 state-owned companies decreased from UAH 119 billion in 2014 (USD5.5 billion) to UAH 42.6 billion (USD1.95 billion) in 2015. On February 18, 2016, the Parliament approved legislation increasing corporate governance standards for SOEs, providing for mandatory independent audits of SOEs, and requiring the results be published.
On March 10, 2017, the Cabinet of Ministers adopted procedures for the creation of independent supervisory boards in SOEs . The procedures are aimed at creating supervisory boards that will independently form long-term strategies for SOEs; appoint management officers; evaluate work and elect an independent auditor; and reduce political interference in the work of SOEs. According to the procedures, independent supervisory boards must be created in state owned enterprises and economic entities with state ownership over 50 percent, as well as assets of over UAH2 billion (USD74 million) and net profit of UAH1.5 billion (USD55.5 million) generated in the previous year. Other unitary companies and businesses can create independent supervisory boards at the discretion of their management.
SOEs purchase and supply goods and services to private firms, including foreign firms. Transparency of procurement by SOEs has increased markedly after the April 2014 amendments to the procurement legislation, which obliged SOEs to follow procurement regulations. On March 16, 2016, Ukraine ratified the WTO Government Procurement Agreement. The majority of SOEs rely on government subsidies to function, and cannot directly compete with private firms. Most of the SOEs capable of making a profit have already been privatized, leaving mainly inefficient firms in government hands. The Government of Ukraine has heavily subsidized its state-owned enterprises (especially in the coal mining, rail transportation, gas, and communal heating sectors) and has supported debts of many SOEs with sovereign loan guarantees. In 2014 and 2015, the Ukrainian government tightened its enforcement and improved the budget discipline of many SOEs. SOE access to extensions of tax payment deadlines remains nontransparent, especially where SOEs are directed to sell their products at below-market prices.
SOE senior managers traditionally report directly to the relevant ministry, which has had the authority to appoint the firm’s management. Ukrainian law specifies that the ministries are not permitted to interfere with the daily economic activities of an SOE, but anecdotal reports indicate that this restriction is often ignored. Ministries have the power to decide on the creation, reorganization, and liquidation of SOEs; adopt and enforce SOE charters; conclude and cancel contracts with SOE executives; grant permission to the State Property Fund to create joint ventures with state property; and prepare proposals to divide state property between the national and municipal levels. March 2015 amendments to the Law on Joint-Stock companies enabled owners of 50 percent+1 share in a company to call shareholder meetings. This will allow the state to increase managerial control over certain SOEs, where private minority shareholders were able to gain managerial control, most notably at UkrNafta, the domestic oil producer. Judicial reform is long overdue in Ukraine and an efficient system of protection of investor rights is lacking, including in disputes involving SOEs.
The government is looking into further expanding the list of companies slated for privatization in order to increase management efficiencies. The current legislation, amended in 2016, allows the State Property Fund to hire foreign advisors, increases transparency of asset evaluation procedures, removes the mandatory requirement to sell 5-10 percent of a privatized entity via a securities exchange, and bans Russian and off-shore companies from participating in privatization in Ukraine.
The State Property Fund (SPF) oversees privatizations. Privatization rules generally apply to both foreign and domestic investors, and, in theory, a relatively level playing field exists. Observers note numerous instances of past privatizations adjusted to fit a pre-selected bidder. The new government has made statements that there will be no revisions of past privatizations. Still, some court cases have surfaced wherein private companies are challenging earlier privatizations.
The government has developed a list of SOEs to privatize in 2017. There are a number of reasons, however, why the SPF cannot start preparations for these privatizations, including: some SOEs are eligible or prioritized for privatization; delay in transmission of SOEs from their Ministries to the SPF; poor SOE condition; a lack of demand for minority shareholdings; and a delay in the adoption of laws that would accelerate privatization to international standards. At the same time, SPF, with MEDT and international partners, developed (still under review) a new privatization law that would replace the current seven laws that partially cover the privatization process. The new law introduces a penalty for delaying asset transfers by the Ministries to SPF; and reducing the bidding security deposit from 5-25 percent to five percent. The deadline for due diligence and applications is extended up to 180 days. A legal bar, instead of the current informal one, against Russian participation was introduced. According to the new law there will be only two categories of privatizations – large and small. Large privatization will include approximately 50 companies of strategic importance with minimum criteria UAH2 billion assets and UAH1.5 billion in cash. The sale of large privatization companies will be outsourced to an advisor, who will provide to SPF the starting price, documentation, and due diligence. Then this package will go to a Tender Commission created by SPF which includes representatives from corresponding Ministries and organizations. The Commission is regulated by SPF’s order only, not by law or by the Cabinet of Ministers. The Commission can stop the privatization process, or can approve a starting price by vote (requires a quorum/majority of votes) and sends the decision to Cabinet of Ministers for further actions. The Commission can only increase the starting price, not lower it.
In 2014 the budget received from privatization approximately UAH 447 million (USD37.6 million), in 2015 – UAH 167 million (USD7.65 million), and in 2016 – UAH 189 million (USD7.39 million).
8. Responsible Business Conduct
There is limited but growing awareness in Ukraine of internationally accepted standards for responsible business conduct (RBC), including corporate social responsibility (CSR). Primary drivers for the introduction of these standards have been Ukraine’s vibrant civil society, international companies and investment, and efforts by business associations such as the American Chamber of Commerce and the European Business Association. For example, NGOs such as the East Europe Foundation and UN Global Compact Initiative have worked to educate Ukrainian companies on the potential long-term benefits of CSR, while the American Chamber of Commerce promulgates general standards of conduct for all member companies in Ukraine (approximately 600) that reinforce RBC principles.
The government has made it a stated priority to create a more coherent, business-friendly investment environment based on internationally accepted standards, to include labor rights, consumer protection, environmental protections, and other principles that fall under RBC. The legal and regulatory framework, as well as the government’s capacity to implement and enforce it, is still very much a work in progress. The Government of Ukraine has put in place corporate governance standards to protect shareholders; however those are voluntary rather than mandatory.
On March 15, 2017, Ukraine became the 47th country to adhere to the OECD Declaration and Decisions on International Investment and Multinational Enterprises . On March 27, Ukraine signed the OECD agreement to strengthen investment climate .
There are independent NGOs, investment funds, worker organizations/unions, or business associations promoting or monitoring RBC. Post is aware of the NGO Center “Development of Corporate social responsibility” (CSR) http://csr-ukraine.org/ along with joint projects on development of CSR involving NGOs and charity organizations. The Embassy is not aware of cases of sanctions or restrictions on such activities.
Ukraine has been a member of the Extractive Industries Transparency Initiative (EITI) since 2013. Participation by companies in the country is still voluntary, however. A recent legislative initiative mandating participation in EITI failed to pass the Parliament by only a few votes and will likely be put to vote again. Ukraine has not joined the Voluntary Principles on Security and Human Rights.
Ukraine’s anti-corruption legislation consists of the following key legislation and resolutions:
- Constitution of Ukraine;
- Cabinet of Ministers’ Resolution of June 13, 2000 No950 «On approval of the Procedure of execution of official investigation regarding state or local officials”;
- Cabinet of Ministers Resolution of April 29, 2015 No265 «On approval of the State program on realization of state anti-corruption policy in Ukraine (Anticorruption strategy) for 2015 – 2017»;
- Cabinet of Ministers Resolution of February 11, 2016 No65 «On approval of ethics rules for public officials»;
- Criminal Code of Ukraine, Chapter XVII, «Crimes in the sphere of public and professional activity, linked with the provision of public services»;
- Criminal and procedural code of Ukraine;
- Law of Ukraine “On organizational and legal basics of fight against organized crime” of June 30, 1993 No3341-XII;
- Law of Ukraine «On amendments to certain laws of Ukraine regarding bringing of the national legislation into compliance with the standards of the Criminal convention on fight against corruption” of April 18, 2013 No221-VII (amendments to articles 354, 368, 369, 370 of the criminal Code of Ukraine);
- Law of Ukraine «On amendments to certain legal acts of Ukraine regarding the realization of the state anticorruption policy» of May 14, 2013 No224-VII;
- Law of Ukraine «On amendments to certain laws of Ukraine regarding the responsibility for corruption crimes» of April 7, 2011 No3207-VI;
- Order of the Ministry of Justice of Ukraine of June 23, 2010 No1380/5 «On approval of methodology of anticorruption expertise of legislative drafts»;
- Law of Ukraine «On citizens’ appeals» of October 2, 1996 No393/96-VR;
- Law of Ukraine «On public service» of December 16, 1993 No3723-XII;
- Law of Ukraine «On access to public information» of January 13, 2011 No2939-VI;
- Law of Ukraine «On basics of the state anticorruption policy in Ukraine (Anticorruption strategy) for 2014 – 2017» of October 14, 2014 No1699-VII;
- Law of Ukraine «On corruption prevention» of October 14, 2014 No1700-VII;
- Law of Ukraine «On National Anticorruption Bureau of Ukraine » of October 14, 2014 No1698-VII.
- Law of Ukraine “On amending certain laws of Ukraine determining the final beneficiaries of legal entities and politically exposed persons” of October 14, 2014 No1701-VII.
Ukraine has made progress toward reducing corruption in government procurement and developing law enforcement agencies to fight official corruption, but its economy still struggles under the burden of widespread corruption. Ukraine ranked 131 among 176 countries in Transparency International’s Corruption Perception Index 2016, and its score in the perceived level of public sector corruption was 29 out of 100. This marked a two-point improvement over Ukraine’s 2015 score, which Transparency International attributed to the launch of the e-declaration system that allows Ukrainians to see the assets of politicians and senior civil servants (discussed below).
As reported in the previous report, Ukraine has established several new anti-corruption agencies: the National Anticorruption Bureau (NABU), the Special Anti-corruption Prosecutor (SAPO), and the National Agency on Prevention of Corruption (NAPC). NABU has gained a reputation for independence, but the NAPC is widely viewed as poorly managed and politically pliable. The first results of NABU’s work as of the end 2016 include 25 new criminal cases that have been referred to the courts; 245 cases under investigation; and 100 persons notified of suspicion of their involvement in committing corruption related crimes. UAH411 million, USD75.45 million and Euro7.1 million have reportedly been confiscated. In addition, two property complexes, 94 plots of land, 50 non-residential buildings, 37 apartments, and 35 vehicles including two aircraft, have also been seized. NABU arrested the State Fiscal Service commissioner Roman Nasirov; court proceedings are pending. Anti-corruption activists have complained that despite political leaders voicing their commitment to fight corruption, Ukrainian prosecutorial bodies have failed to fully prosecute a single major corruption case since the 2014 Revolution of Dignity.
In 2016, Ukraine launched the “e-asset declaration” system whereby public officials must submit electronic asset declarations allowing Ukrainians to see the assets of politicians and senior civil servants through a public website. Nearly 1 million Ukrainian officials, including virtually all top leaders and members of parliament, submitted e-Declarations for 2016 by April 1, 2017. In January, the National Anti-corruption Bureau of Ukraine (NABU) opened the investigations of 25 government officials based on submitted 2015 e-Declarations.
On March 27, President Poroshenko signed into law vague amendments to the “Law on Prevention of Corruption” which require non-governmental anti-corruption activists and program beneficiaries to file their own e-Declarations. Activists fear this could undermine their anti-corruption advocacy and be used to launch politically-targeted investigations.
To ensure the long-term success of the fight against corruption, Ukraine took some steps to improve the functioning of organizations with a high risk of corruption, including agencies in the judiciary, public procurement, and state-owned enterprises, among others. The public e-procurement system, ProZorro, www.prozorro.gov.ua (which means “transparent” in Ukrainian), which was launched as a pilot project in 2015, has brought increased transparency and efficiency to public procurement. Public agencies, including defense, police, customs, health, infrastructure and energy, have awarded more than 85,000 tenders through the ProZorro system as of July 2016. As of August 1, 2016, all contracting entities are obliged to use e-procurement for all purchases, above- and below-threshold.
Ukraine participates in international anti-corruption initiatives. In 2005, Ukraine ratified the Council of Europe Civil Law Convention on Corruption and became a member of the Council of Europe’s Group of States against Corruption (GRECO). GRECO concluded its Joint First and Second Rounds of Evaluation of Ukraine and published its report in 2007 and Third Round Evaluation Report was published in 2011. The fourth evaluation was launched in 2012.
Ukraine also participates in the OECD Anticorruption Network for Eastern Europe and Central Asia. Parliament passed laws to ratify the Council of Europe Criminal Law Convention on Corruption, signed in 1999, and the UN Anticorruption Convention, signed in 2003. However, ratification of these Conventions will come into effect only when additional implementing legislation is adopted. Ukraine is not party to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
Resources to Report Corruption
The National Anti-Corruption Bureau, established in October 2014, is the appropriate resource for the reporting of corruption.
Government of Ukraine contact for combating corruption:
Mr. Artem Sytnyk, Director
National Anti-Corruption Bureau
3, Vasyl Surikov St, Kyiv, Ukraine 03035
firstname.lastname@example.org or electronic form for corruption reporting http://nabu.gov.ua/povidomlennya-pro-kryminalne-pravoporushennya
Contact at Transparency International:
Mr. Yaroslav Yuchyshyn
Transparency International Ukraine
01024, Kyiv, 2A provulok Kostia Hordiienka, 1st floor
10. Political and Security Environment
The conflict between the Ukrainian government and Russian-backed separatists in Donetsk and Luhansk oblasts continued in 2016. Individuals in separatist controlled territories are subject to political violence at the hands of so-called authorities. There are also widespread reports of civilian casualties as the fighting occurs in and around civilian areas. Ukraine lacks control over its border in parts of Donetsk and Luhansk, allowing for the free flow of soldiers and weapons from Russia. Russia continues its illegal occupation of the Autonomous Republic of Crimea and the City of Sevastopol.
There have been sporadic protests and demonstrations during 2016 against the government, mainly evoking populist messaging against economic conditions in the country. These protests, however, have proceeded peacefully and there were few instances of violence, with the exception of targeted assassinations, including a prominent journalist and a former Russian government official. Politically, the country’s ruling coalition remains in power, albeit needing support of specific opposition parties to garner votes for legislation in the country’s parliament. Opposition figures and new political movements increased during 2016, but these movements have yet to significantly alter the country’s political landscape.
11. Labor Policies and Practices
Ukraine has a well-educated and skilled labor force of about 26 million people with a nearly 100 percent literacy rate. As of October 2016, the unemployment rate of the population aged 15-70 (ILO methodology) averaged 9.2 percent, and the unemployment rate of the population of working age individuals (ILO methodology) averaged 9.5 percent, although unemployment in some regions, particularly in western Ukraine and central Ukraine, was significantly higher. As of December 2016, the State Employment Service registered 390,800 unemployed people and 317,100 unemployed people received state assistance. According to official statistics, which count only those registered to receive unemployment benefits, unemployment was only 1.5 percent in December 2016. In December 2016, the unemployment insurance allotted to each worker amounted to UAH 1997 (USD75). Throughout 2016 unemployment continued, increasing in the industrial eastern regions, and many big enterprises faced lay-offs due to severe economic challenges, including the loss of access to Russian and CIS markets. In addition, some enterprises were destroyed, robbed, dismantled, and shipped to Russian territory.
Wages in Ukraine remain low by Western standards. In December 2016, the nominal average monthly wage increased by 23.8 percent year-on-year to UAH 6475 (USD240), while the real average wage increased by 11.6 percent year-on-year during the same period. The highest wages are traditionally in the financial and aviation sectors; the lowest wages are paid to agricultural and public health workers. As of January 1, 2017, total wage arrears in Ukraine stood at UAH 1.79 billion (USD66.33 million), with about 73.7 percent of wage arrears accumulated in the industrial sector and 9.9 percent in transportation, storage, postal and courier activities. More than 50 percent of the wage arrears were in eastern Ukraine, specifically in Luhansk (23.0 percent), Donetsk (14.7 percent) and Kharkiv (12.9 percent) regions.
Minimum Wage: The monthly minimum wage was UAH1,378 (USD51) from January 1 through April 30, 2016. The monthly minimum wage rose to UAH1,450 (USD54) on May 1, 2016 and to UAH1,600 (USD59) on December 1. As of January 1, 2017, the minimum wage for private-sector workers increased to UAH3,200 (USD119). The hourly minimum wage was UAH 8.29 (USD0.31) from January through April, and rose to UAH8.69 (USD0.32) on May 1, 2016, and again to UAH 9.29 (USD.034) on December 1. Some workers in the informal sector received wages below the established minimum. The poverty level rose during the year from UAH1,330 (USD49) per month to UAH1,399 (USD52) during the year. According to the 2017 State budget, the subsistence level per person per month from January 1, 2017 is UAH1,544 (USD57), from May 1 – UAH1624 (USD60), and from December 1 – UAH1700 (USD63).
Labor/Management Relations: Ukrainian law allows workers to organize, and unions are prevalent in most industries. The law provides most workers with the right to form and join independent unions and to bargain collectively without previous authorization. By law, trade unions are equal, and a union’s establishment does not require government permission. Within classic sectors of the economy, sector-specific collective bargaining agreements involve representative employers’ associations (e.g., chemical employers), sector trade unions, and some participation of the government through the Ministry of Social Policy. Such agreements can also take place at the regional level. According to Ukraine’s Statistics Service, 79.8 percent of employees were covered by collective bargaining agreements in 2014.
The independence of unions from government or employer control, however, was disputed. Independent trade unions alleged that the country’s largest trade union confederation, the FPU, enjoyed a cozy relationship with employers and members of some political parties. Unions that were not affiliated with the FPU were denied a share of disputed trade union assets inherited by the FPU from Soviet-era unions. There were cases of workers, who renounced membership in an FPU-affiliated union and joined a new union, facing loss of pay, undesirable work assignments, and dismissal.
The law sets 16 as the minimum age for most employment. Children who are 15 years of age may perform “light work” with a parent’s consent, but the law does not clearly define the term. The law allows children to do some forms of work beginning at age 14 as part of an apprenticeship in the context of vocational training. The most frequent violations of labor law for minors related to their work in hazardous conditions, long workdays, failure to maintain work records, and delayed salary payments.
During 2016, the State Labor Service and its predecessor, the State Labor Inspectorate, was responsible for enforcing labor laws. Inspectors were limited in number and funding. Although the Government of Ukraine renewed planned and unplanned labor inspections in 2016, the number of completed inspections continued to fall, and experts assessed the number to be inadequate relative to the size of the Ukrainian economy.
The law provides for the right to strike “to defend one’s economic and social interests,” as long as strikes do not jeopardize national security, public health, or the rights and liberties of others; the government generally respected this right. It does not extend the right to strike to personnel of the PGO, the judiciary, armed forces, security services, law enforcement agencies, the transportation sector, or public servants. Workers who strike in prohibited sectors may receive prison terms of up to three years.
The law established the National Mediation and Reconciliation Service (NMRS) to mediate labor disputes. According to official statistics, during 2016 the Service resolved 106 labor disputes: one – national, two – territorial, 103 – enterprise level, involving 2.1 million employees and 11,466 economic entities. 16.8 percent of the disputes were related to wage arrears, 11 percent – to the violations of employment and dismissal process, seven percent – to labor safety, etc. In 2016 National Mediation and Reconciliation Service mediated four strikes and 139 social protest actions that had mostly economic demands.
12. OPIC and Other Investment Insurance Programs
The U.S.-Ukraine Overseas Private Investment Corporation (OPIC) Agreement was signed in Washington in 1992. OPIC resolved a long-standing dispute in 2009, and restored its programs in Ukraine after an extended hiatus. In 2010 OPIC concluded an agreement enabling the Ukrainian Development Network (UDN) to serve as an originator for a growing alliance with the private sector designed to support small and medium-sized enterprises expanding into emerging markets overseas. OPIC currently provides political risk insurance to several U.S. companies operating in Ukraine and has the capacity to insure other U.S. eligible investors if such coverage was sought. In 2002, the Board of the U.S. Export-Import bank opened facilities for short and medium-term (up to seven years) lending for commercial and sub-sovereign projects. Ukraine is a member of the Multilateral Investment Guarantee Agency (MIGA). OPIC has an active pipeline of projects in Ukraine across various sectors. OPIC’s pipeline of projects in Ukraine through FY 2016 and 2017 included several projects for a total of USD865 million, with a number of potential projects in the early stages.
13. Foreign Direct Investment and Foreign Portfolio Investment Statistics
UkrStat official data, as of January 1, 2017, the total stock of FDI in Ukraine was USD47.777 billion or approximately USD1,121 per capita, representing a 17.0 percent growth y-o-y. The majority of Ukraine’s 2016 FDI was generated by foreign parent companies recapitalizing subsidiary banks in Ukraine.
FDI by Country
In 2016, Ukraine’s major investors, accounting for 70 percent of investments included: Russian Federation (37.8 percent of FDI), Cyprus (9.7 percent), Great Britain (9.2 percent), the Netherlands (5.8 percent), Austria (5.7 percent), Italy (4.8 percent), Hungary (4.3 percent), the British Virgin Islands (3.2 percent), Switzerland (2.5 percent), and Turkey (2.3 percent). U.S. investment comprised 1.9 percent of FDI in 2016. Many Ukrainian and Russian enterprises continue to channel investments through Cyprus due to a favorable bilateral tax treaty. In 2012, Ukraine and Cyprus signed a Double Taxation Convention to replace the bilateral agreement dating from 1982. Under the new treaty, which was ratified by the Parliament in July 2013 and entered into force in August 2013, most income earned in Cyprus is taxed between 5 and 15 percent, reducing the tax gap between the two countries. While the Government of Ukraine announced plans to introduce a 12 percent tax on the operations of companies registered in offshore countries (in order to increase collections to the Pension Fund), Cyprus was not included on this list.
FDI by Industry Sector Destination
64.1 percent of FDI in Ukraine went to the financial and insurance sector to facilitate recapitalization of foreign banks; 11.9 percent of FDI went to trade and auto repairs, and 10.8 percent – to industry.
FDI from Ukraine
As of October 1, 2016, Ukraine’s FDI to other countries equaled almost USD6.237 billion. 93.4 percent of Ukrainian investment (USD5.825 billion) is reported as moving through Cyprus (the revised OECD Benchmark Definition of FDI is designed to filter out such detours or round-tripping through tax havens; FDI statistics may thus be more informative in future reports). Russia is generally observed to be the chief destination of actual Ukrainian FDI, while official statistics ranks it as second destination with 2.2 percent of FDI from Ukraine, Latvia has 1.1 percent, the British Virgin Islands the British Virgin Islands – 0.8 percent, Poland – 0.8 percent.
Ukraine’s Macroeconomic Indicators:
- GDP, 2016 USD93.275 billion (9.8)
- GDP, 2015 USD90.62 billion (-31 percent)
- GDP, 2014 USD131.8 billion (-28 percent)
- GDP, 2013 USD182 billion (+3 percent)
- GDP per capita 2015 USD2,081 (-29 percent)
- GDP per capita, 2014 USD2,964 (-24 percent)
- GDP per capita, 2013 USD3,900 (+4 percent)
Table 2: Key Macroeconomic Data, U.S. FDI in Host Country/Economy
|USG or International Statistical Source||USG or International Source of Data:
BEA; IMF; Eurostat; UNCTAD, Other
|Host Country Gross Domestic Product (GDP) ($M USD)||2016||USD 79.6 bln||2016||USD 90.62 bln||http://www.worldbank.org/
|Foreign Direct Investment||Host Country
|USG or International Statistical Source||USG or international Source of Data:
BEA; IMF; Eurostat; UNCTAD, Other
|U.S. FDI in Partner Country ($M USD, stock positions)||2016||USD 712.6||N/A||N/A||BEA data available at http://bea.gov/international/direct_investment_
|Host Country’s FDI in the United States ($M USD, stock positions)||N/A||N/A||N/A||N/A||N/A|
|Total Inbound Stock of FDI as % Host GDP||N/A||N/A||N/A||N/A||N/A|
Table 3: Sources and Destination of FDI
|Direct Investment from/in Counterpart Economy Data|
|From Top Five Sources/To Top Five Destinations as of October 1, 2016 (U.S. Dollars, Millions)|
|Inward Direct Investment||Outward Direct Investment|
|Total Inward||Amount||100%||Total Outward||Amount||100%|
|“0” reflects amounts rounded to +/- USD 500,000.|
Table 4: Sources of Portfolio Investment
|Portfolio Investment Assets, June 2016|
|Top Five Partners (Millions, U.S. Dollars)|
|Total||Equity Securities||Total Debt Securities|
|All Countries||165||100%||All Countries||70||100%||All Countries||95||100%|
14. Contact for More Information
U.S. Embassy Kyiv, Ukraine