1. Openness To, and Restrictions Upon, Foreign Investment
Policies Toward Foreign Direct Investment
The government of Ukraine (GoU) actively seeks to attract FDI. In 2014, the GoU established the National Investment Council as a consultative and advisory body under the president, and in 2016 the Ukrainian government established an investment promotion office UkraineInvest, with a mandate to attract and support FDI. UkraineInvest’s mission is to provide a one-stop shop for investors by helping them find and/or initiate a project and then guiding them through any necessary regulatory processes. UkraineInvest is also the primary point of contact for companies applying for tax and operational benefits under the newly enacted investment incentive law, “On State Support of Investment Projects with Significant Investments.”
The Business Ombudsman Council of Ukraine is as an advisory body under the Cabinet of Ministers that provides a forum for domestic or foreign businesses to file complaints about unjust treatment by government officials and state-owned enterprises. In June 2020, a draft law #3607 “On the Establishment of the Business Ombudsman Institution in Ukraine” was registered, which would significantly expand the institution’s authorities to investigate complaints.
Limits on Foreign Control and Right to Private Ownership and Establishment
The regulatory framework for the establishment and operation of businesses in Ukraine by foreign investors is generally similar to that for domestic investors. Registering a foreign investment is governed by “The Law on Foreign Investments” (1996), although according to the Law “On amendments to some legislative acts of Ukraine to abolish the obligation of state registration of foreign investments” (2016), registration is not mandatory. However, Article 395 of the Economic Code of Ukraine states that unregistered foreign investments will lose key legal guarantees. These guarantees include, the transfer of profits and income resulting from investment in Ukraine, the right to issue a permanent residence permit, a ban on nationalization, etc. Before registering their business, non-Ukrainian citizens must register with the Office of Immigration in the Ministry of Foreign Affairs and receive a taxpayer identification number through the State Fiscal Service. Legislation adopted in October 2019 reduced the cost of accreditation for foreign representative offices (excluding Russian businesses) from $2,500 to one minimum monthly wage (which in 2020 was approximately $180) and the timeframe from 60 to 20 days. The Ministry of Economic Development, Trade, and Agriculture issues these accreditations.
Foreign and domestic private entities can engage in all forms of remunerative activity, with some exceptions: foreign companies are restricted from owning agricultural land, producing bioethanol, and some publishing activities. In addition, Ukrainian law authorizes the government to set limits on foreign participation in state-owned enterprises, although the definition of “foreign participation” is vague, and the law is rarely used in practice. Certain critical infrastructure, especially in the energy sector, is precluded by law from private ownership and therefore not available to foreign investors. This includes the gas transmission system, electricity grids, and various plants and factories. While the authorities currently review merger and acquisition investments on competition grounds, the government is developing a mechanism for investment review on security grounds. On February 3, 2021 a draft Law # 5011 “On Foreign Investments in Economic Entities of Strategic Importance for the National Security of Ukraine” was registered in the Parliament. If enacted, the bill is expected to introduce a system for assessing the impact of foreign investments on national interests and security of the state.
Other Investment Policy Reviews
The Organization for Economic Cooperation and Development (OECD) and the World Trade Organization (WTO) conducted formal reviews in 2016, and can be found at OECD: http://www.oecd.org/investment/oecd-investment-policy-reviews-ukraine-2016-9789264257368-en.htm; WTO: https://www.wto.org/english/tratop_e/tpr_e/tp434_e.htm.
Ukraine has taken major steps to improve the ease of doing business over the past five years, helping it move up seven spots in the World Bank’s 2020 Doing Business Ranking from 71st place in 2019 to 64th. This was Ukraine’s largest annual leap since 2014 and the highest ranking the country has ever received. Ukraine demonstrated improvements in six out of the ten indicators the World Bank assesses, scoring the highest in categories such as “starting a business” and “dealing with construction permits.” However, an investor sentiment survey conducted by one of the largest private industry associations in Ukraine at the end of 2020 found a majority of its member company respondents felt the overall investment climate in Ukraine was declining. Companies cited corruption as one of the top reasons for this perceived downward movement in Ukraine’s investment climate. (Please note that the World Bank has put the 2021 Doing Business Rankings on hold until at least mid-2021).
The investor sentiment survey can be found at: https://eba.com.ua/wp content/uploads/2020/11/2020_ForeignInvestorSurvey_Presentation_en.pdf
Private entrepreneurs and legal entities can register online at https://poslugy.gov.ua/ and https://online.minjust.gov.ua/dokumenty/choise/. These online registrations systems are not commonly used because it is difficult to submit the required documents online. Once a company is registered with the State Registrar, its data is transferred by the registrar to the relevant state authorities, such as 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. Registering a joint-stock company or a limited liability company takes approximately six days.
As of January of 2020, Ukraine’s investments in foreign countries totaled approximately $3.5 billion, according to data provided by the National Bank of Ukraine. Outward investment for legal entities and private entrepreneurs registered in Ukraine are capped of EUR 2 million ($2.2 million) per year.
3. Legal Regime
Transparency of the Regulatory System
Regulatory regimes in Ukraine are often characterized by outdated, contradictory, and burdensome regulations, a high degree of arbitrariness and favoritism in decisions by government officials, weak protection of property rights, and irregular payments. Since 2014, however, the country has been generally moving toward clearer rules and fair competition. Ukraine’s efforts to implement its EU Association Agreement, including the Deep and Comprehensive Free Trade Area (DCFTA), should continue to help boost overall transparency and legal certainty as Ukraine strives to establish legal and regulatory systems that are consistent with international norms.
The formulation of regulations falls solely under the purview of the government. In Ukraine there are no regulatory processes managed by non-governmental organizations or private sector associations. According to the Law “On the Principles of State Regulatory Policy in the Sphere of Economic Activity” (2004), the relevant ministry or regulatory agency is required to publish draft text of proposed regulations on its website for review and comment for at least one month but not more than three months. Along with the draft text, the governmental body must include a data-based assessment justifying the need for the regulation and analyzing its potential impact. The ministry or agency receives comments via its website, at public meetings, and through targeted outreach to stakeholders. The comments received are generally not made public. At the end of the consultation period, the relevant ministry or regulator may publish the results on its website. Often, however, final draft legislative initiatives are not publicly available or they reappear in dramatically different form. In 2020, the Ministry of Economy successfully launched an electronic platform (https://techreg.in.ua/main/), on which it is publicizing all draft regulatory measures, accepting public comments, and providing responses to those comments. Information on draft laws and existing legislation is available on the Verkhovna Rada (parliament) and Cabinet of Ministers websites.
Public finances and debt obligations are transparent. Budget documents and information on debt obligations are widely and easily accessible to the general public, including online. Budget documents provide a mostly full picture of the government’s planned expenditures and revenue streams. Information on debt obligations is publicly available, and is published as part of the budget document on the Parliament’s website. Information on the status of sovereign and guaranteed debt is published and updated on a monthly basis on the Finance Ministry’s website. Statistics are broken down by type of debt, type of creditor, and type of currency.
International Regulatory Considerations
Ukraine is not a member of the EU, but it is working to approximate many of its standards to meet EU requirements and facilitate access to EU markets. As Ukraine drafts laws, it often incorporates or references EU norms and standards. Ukraine is a member of the WTO and a signatory to the WTO Trade Facilitation Agreement. The Ministry of Economic Development, Trade and Agriculture (MEDTA) is responsible for notifying all draft technical regulations to the WTO Committee on Technical Barriers to Trade. Despite occasional delays in submitting draft legislation to the WTO, Ukraine’s notification of draft texts to the WTO for comment has improved in the past few years.
Legal System and Judicial Independence
The legal system in Ukraine is based on a civil system of codified laws passed by parliamentary body, the Verkhovna Rada. Contracts related to foreign investments fall within the jurisdiction of a system of specialized commercial courts. 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 for by international treaties.
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 the Supreme Court. Commercial and contract law in Ukraine is codified in the Commercial Code and Civil Code. There is a three-tier system of specialized commercial courts with first and appellate instances and the Commercial Cassation Court of the Supreme Court as the highest instance. Local courts are either courts of general jurisdiction 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. Regulations and enforcement actions are subject to appeal with no exceptions within terms prescribed in procedural codes and are adjudicated in the national (general) court system.
The judicial system is independent of the executive branch; however, extensive corruption in the court system 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 executive and prosecutorial influence on judges. In surveys of their members, two major business associations identified the lack of effectiveness and integrity in Ukraine’s judicial system as top impediments to greater investment in the country.
Laws and Regulations on Foreign Direct Investment
The Law on Investment Activity (1991) established the general principles for investment and was subsequently followed by additional legislative acts to facilitate foreign investment, most recently the law “On State Support of Investment Projects with Significant Investments” and subsequent amending legislation granting further tax and customs benefits for major investors. 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. The website of Ukraine’s Investment Promotion Office (https://ukraineinvest.com/) provides relevant laws, rules, procedures, and reporting requirements for potential investors.
Competition and Anti-Trust Laws
The Antimonopoly Committee of Ukraine (AMCU) is the Ukrainian state authority for protection of economic competition. AMCU’s functions include investigating and prosecuting anticompetitive conduct, granting permissions for mergers and acquisitions, considering applications regarding violations of public procurement as an appeal body, monitoring the state aid system, conducting competition advocacy within the government, and formulating competition policy. AMCU decisions can be appealed to Ukraine’s economic courts of first instance, and then to the central appellate court and in some cases the Supreme Court.
Expropriation and Compensation
Current legislation permits legal expropriation of property in certain criminal proceedings or in cases of failure to fulfill investment obligations during privatization procedures. Additionally, the Law “On Legal Regime of Martial Law” (2015) and the Law “On Confiscation of Property During Legal Regime of Martial Law” (2013) allow voluntary or forced expropriations for military purposes with compensation to be provided either immediately or following cancellation of the “special regime/martial law.”
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 on International Commercial Arbitration (ICAL, 1994). ICAL 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; 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.
Investor-State Dispute Settlement
Many of Ukraine’s bilateral investment treaties recognize binding international arbitration of investment disputes. Claims under the Bilateral Investment Treaty (BIT) between the United States and Ukraine by American investors are rare. 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. Such disputes are a significant problem, however, both in fact and in terms of public perception. The Embassy is currently aware of one case pending in the International Center for Settlement of Investment Disputes in Washington, DC.
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 intra-company disputes of these enterprises. ICAL does not address foreign arbitral awards issued against the government.
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) occur in Ukraine. The Ukrainian government has made it a stated priority to improve the business environment, end corporate raiding, and attract more foreign investment. In 2019, the Ukrainian Parliament passed legislation aimed to end corporate raidership: the Law “On Amendments to Certain Legislative Acts of Ukraine on Property Rights Protection,” and the Law “On Amendments to the Land Code of Ukraine and Other Legislative Acts on Counteracting Raiding.”
International Commercial Arbitration and Foreign Courts
The Law on Arbitration Courts (2004) stipulates that parties can 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.
Ukraine’s International Commercial Arbitration Court (ICAC) and the 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. 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.
In October 2019, a new Code of Bankruptcy Proceedings took effect, replacing bankruptcy law that had been in force since 1992. The new law strengthened creditors’ rights by allowing them to select their bankruptcy administrator, decide the starting prices of debtor assets at auction, and participate in other asset sales matters. The law also improved the procedures for selling debtors’ assets by introducing online auctions and removed a requirement for asset collection through courts or enforcement services before insolvency proceedings can begin, easing the debt collection process and reducing legal costs for creditors. The new bankruptcy code also provides additional protection of secured creditors.
In November 2020, the government proposed additional technical amendments to the Code which are pending consideration in parliament
Bankruptcy is not criminalized in Ukraine. The Criminal Code of Ukraine, however, does criminalize: 1) intentionally making an entity bankrupt and 2) distorting certain financial data in order to conceal the insolvency of a financial institution. The World Bank’s 2020 Doing Business Report ranked Ukraine 146th out of 190 in the “resolving insolvency” subcategory, down from 145th in 2019. Ukraine’s low ranking is driven by a low recovery rate and the high cost of recovering funds from insolvent firms by creditors.
4. Industrial Policies
The GoU has made attracting investment a top priority. As part of this effort, in December 2020, the Rada passed the law “On State Support of Investment Projects with Significant Investments,” giving new financial and operational incentives to companies that invest at least EUR 20 million in one of a dozen predefined industries. The GoU will appoint a manager for qualifying investors who will help them communicate with the authorities and navigate government bureaucracy, permits, and regulations. The companies will also receive a number of tax and customs exemptions as well as favorable access to land and necessary infrastructure. UkraineInvest will take the lead on helping companies identify potential projects and signing an agreement with the GoU. The agreement will permit investors to pursue international arbitration for violations of property rights. The government has also launched a program that offers loans to Ukrainian micro and small enterprises at discounted rates of five, seven, or nine percent.
Previous incentives, such as generous depreciation rates for most fixed assets, including property, plant, and equipment for investors, are still in place. Moreover, foreign investors remain 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. The government does not have a practice of jointly financing foreign direct investment projects, and the issuance of government guarantees is rare and subject to budgetary restrictions.
Foreign Trade Zones/Free Ports/Trade Facilitation
Ukraine does not currently maintain special or free economic zones.
Performance and Data Localization Requirements
An employer may employ a foreign national as long as the employer has obtained a work permit for this person. The law “On Employment of the Population” sets forth the procedure for issuing work permits to foreigners. Authorities issue work permits on a case-by-case basis, for a particular applicant and a particular position in a company. A work permit is normally issued for the period of employment indicated in the employment contract, but for not more than one year. A work permit can be renewed for the same term, for an unlimited number of times and free of charge.
A foreign citizen with a valid work permit who spends more than 90 days within a 180-day period in Ukraine, can obtain a temporary residence certificate. As of June 1, 2018, temporary residence certificates are now contactless electronic cards with biometric data. The new permits are generally issued for the term of an individual’s work permit. There are also no age or nationality restrictions on who can be a manager or company director in the private sector.
Citizens of EU countries, the United States, Canada, Japan and some other countries do not require a visa to enter Ukraine for a stay of up to 90 days within a 180-day period. Individuals who are planning to get a temporary residence permit in Ukraine due to work must obtain a long-term type D visa. The list of countries and respective visa requirements are available on the website of the Ministry of Foreign Affairs of Ukraine (http://mfa.gov.ua/en). There are no reports from foreign investors and their employees of excessively onerous visa requirements inhibiting their mobility. Russian citizens have reported difficulties and heightened scrutiny when arranging travel to Ukraine. Additionally, people who previously traveled to Russian-occupied Crimea since 2014 have been reported being denied entry to Ukraine.
Under Article II, clause 6 of the Bilateral Investment Treaty between the United States and Ukraine, neither Party shall impose performance requirements as a condition of establishment, expansion, or maintenance of investments, which require or enforce commitments to export goods produced, or which specify that goods or services must be purchased locally, or which impose any other similar requirements.
Ukraine’s parliament is considering legislation that would give domestic producers preference in government tenders if they can demonstrate at least 30 percent local content. U.S. officials have raised concerns that the law, if passed, will unfairly discriminate against U.S. companies. In 2019, a renewable auction law replaced Ukraine’s feed-in tariff regime, eliminating any local content requirements or preferences. 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 IT infrastructure and Internet Service Providers are largely unregulated. There are no legal measures preventing or impeding companies from transmitting business-related data outside of Ukraine. In terms of data storage and protection requirements, the EU–Ukraine Association Agreement requires Ukraine to revise legislation to bring it into compliance with the EU’s General Data Protection Regulation (GDPR), but implementation is still in progress.
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. On March 31, 2020, Ukraine’s parliament adopted a law lifting the moratorium on the sale of agricultural land, effective July 1, 2021, and established new regulations for the land market. The sale of state- and municipality-owned agricultural land will remain banned, meaning that in practice, the total initial market of land will be the 28 million hectares originally privatized in the 1990s. The law limits the purchase of land to individuals who are citizens of Ukraine until January 1, 2024; until that date, each Ukrainian citizen can buy up to 100 hectares of agricultural land. After January 1, 2024, Ukrainian legal entities (companies) will also be allowed to buy , up to 10,000 hectares of land. The law establishes that a national referendum will be necessary to determine whether foreigners may purchase agricultural land in the future. Foreign nationals may lease land. The State Land Cadaster system has assessed that 27 percent of Ukraine’s 43.8 million hectares of agricultural land does not have a clear ownership title. The State Service of Ukraine for Geodesy, Cartography and Cadaster (StateGeoCadaster) is working to identify ownership of this land. Sector experts believe the StateGeoCadaster will reduce the untitled portion of land to 18 percent by January 1, 2022. Unoccupied property can become communal property only by court decision following a request from the local body authorized to manage real estate property. The request can only be made a year after the property was registered as unoccupied.
Intellectual Property Rights
Ukraine has a long history of inadequate enforcement and protection of intellectual property rights (IPR). Ukraine has been listed on the Priority Watch List of the U.S Trade Representative’s (USTR’s) Special 301 Report since 2015 due to the use of unlicensed software within the government, Internet piracy, and an inadequate system of collective management organizations (CMOs). However, in the past few years, Ukraine has made strides toward establishing the necessary legal framework to improve protection of IPR and has actively engaged various stakeholders, including the United States and the EU.
To combat online piracy, the Cyber Division of the National Police has continued to increase the size of its Department for Combating Crimes in the Sphere of Illegal Content and Telecommunications (DCCSICT), which now has 70 officers across Ukraine, including 15 in Kyiv. In 2020, DCCSICT shut down 41 sites selling and distributing copyrighted materials and initiated 84 criminal proceedings against operators of the sites. To cut off funding from sites that promote piracy, the Cyber Police launched investigations into the advertising firms that provide the websites significant amounts of their income. However, a lack of resources and inadequate laws governing Ukraine’s notice and takedown system limit the effectiveness of the Cyber Police’s efforts.
Numerous hurdles exist for rights holders in seeking to flag pirated content or counterfeit goods. Moreover, legal and regulatory red tape makes investigations cumbersome, and penalties for violators are often too inconsequential to deter future violations. The Ministry of Economy is currently drafting a law which, if passed, will help address many of the inadequacies in Ukraine’s online IP protection regime.
In December 2020, the government of Ukraine finalized the selection process for the accreditation of collective management organizations (CMO), which should further improve Ukraine’s system of collecting and distributing music royalties. Currently, CMOs operate in six of eight spheres of musical works defined by the GoU. Industry stakeholders report that within these six spheres there has been a noticeable increase in the amount of royalties collected and distributed in 2020.
In July 2020, Ukraine increased compliance with commitments under the EU Association Agreement by passing a new law on patent reform, bringing Ukraine’s patent regime closer to the European Patent Convention. Some pharmaceutical companies have raised concerns that the law will restrict the patentability of several specified compounds. In July 2020, the Rada also passed a law establishing the National Intellectual Property Agency (NIPA), which will unify the administration of IP policy and some IP policymaking into a single body. The new agency will review and issue patents and trademarks, train IPR examiners, hear appeals on patent and trademark claims, and support the drafting of IPR policy and regulations.
As noted in USTR’s 2020 Notorious Markets Report, the availability of counterfeit goods in large physical marketplaces has considerably fallen in recent years with the notable exception of the Seventh Kilometer Market in Odessa. However, the decline of counterfeit goods in these physical markets corresponds with an increase of counterfeit goods in Ukrainian online marketplaces. In 2020, the State Customs Service of Ukraine (SCS) carried out thousands of inspections resulting in the suspension of over 1,900 shipments; however, the total value of counterfeit goods seized in 2020 amounted to less than $200,000. This represents a significant drop from the over $1 million worth of goods seized in the second half of 2019. Observers from major trade organizations attribute the lack of goods seized to a lack of adequate enforcement by customs officers.
Ukraine is a member of the World Intellectual Property Organization (WIPO) and is party to the Berne Convention, the Paris Convention, the Patent Cooperation Treaty, the WIPO Copyright Treaty, and the WIPO Performances and Phonograms Treaty. For additional information about national laws and points of contact at local IP offices, please see WIPO’s country profiles at http://www.wipo.int/directory/en/.
6. Financial Sector
Capital Markets and Portfolio Investment
The Ukrainian government encourages foreign portfolio investment in Ukraine, but Ukraine’s capital and commodity markets remain underdeveloped. Ukraine’s capital market consists of markets for stocks and for commodities. Liquidity is limited and investors have few investment options. The financial market includes ten stock exchanges, a settlement center, two depositories, and a securities market regulator. Government bonds constitute 95 percent of the trades. A few corporate securities are listed, but the volume of their trades is insignificant. With limited exceptions, only Ukrainian-licensed securities traders may handle securities transactions. In January 2020, China’s Bohai Commodity Exchange acquired a 49.9% stake in one of Ukraine’s leading stock exchanges, JSC PFTS Stock Exchange. The commodity market in Ukraine does not have a transparent regulatory framework.
The regulator of Ukraine’s capital market, the National Securities and Stock Market Commission, lacks financial and operational independence and is not a signatory to the Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information of the International Organization of Securities Commissions. Ukraine has been a member of the International Organization of Securities Commissions (IOSCO) since 1996. In February 2021, a new draft law “On the National commission on securities and stock exchanges” was registered in parliament and is pending consideration. The law would strengthen the independence and institutional capacity of the Securities Commission and facilitate compliance with IOSCO standards. Ukraine committed to adoption of the law as part of its IMF program. In November 2019, Ukraine adopted the so-called “Split” law to regulate the non-banking financial services sector. The law, which entered into force on July 1, 2020, transitions Ukraine from a sectoral regulatory model to an integrated model, and lays the foundation for the full development of consumer rights protections and market conduct regulations in the financial markets. The law dissolved the National Commission for State Regulation of Financial Services Markets and split up its regulatory functions between the National Bank of Ukraine and the National Securities and Stock Market Commission. The National Bank of Ukraine now supervises and regulates the insurance market, leasing and factoring companies, credit unions, credit bureaus, pawnshops and other financial companies, while the National Securities and Stock Market Commission regulates private funds, including pension funds, construction financing, and real estate transactions.
For many years, Ukrainian capital markets have struggled due to significant gaps and inconsistencies in the regulatory framework. In June 2020, parliament passed the law “On amendments to certain laws regarding facilitating investments and new financial instruments,” aimed at restarting Ukrainian capital markets. The law will bring Ukrainian legislation in line with key provisions of EU laws on capital markets (MiFID II, MiFIR, EMIR, the Settlement Finality Directive, and the Financial Collateral Directive), create a framework for updated capital markets’ infrastructure, and regulate commodity markets and derivatives. The law is expected to have a transformative effect on Ukraine’s capital markets as it provides for new financial instruments for savings and investment, new tools for risk management, and new requirements for market transparency. The law is expected to enter into force on July 1, 2021.
Credit is largely allocated on market terms, and foreign investors are able to get credit on the local market through a variety of credit instruments.
Money and Banking System
Ukraine’s banking sector has seen remarkable progress following the 2014-2015 crisis thanks in large part to banking sector cleanup, which resulted in the closure of over 100 banks for insolvency or money laundering activities, and the professionalization of Ukraine’s central bank, the National Bank of Ukraine. At the end 2020, 73 solvent banks were operating in Ukraine.
Partly due to the Covid-19 pandemic, the number of unprofitable banks ticked up in 2020. Eight banks were unprofitable in 2020 compared to six in 2019, and two banks were declared insolvent due to non-compliance with capital requirements. The banking sector in Ukraine reported net profit of UAH 41.3 billion ($1.4 billion) for 2020, roughly a quarter of the profit reported in 2019. State-owned PrivatBank accounted for more than half of the banking sector’s total profits. In 2020, banks’ total assets increased by 22 percent to UAH 1.8 trillion ($64 billion), the total amount of loans decreased by 6.8 percent to UAH 963 billion ($34 billion), while total obligations increased by 24.6 percent to UAH 1.6 trillion ($21 billion).
Non-performing loans (NPL) decreased from 48.4 percent in 2019 to 41 percent in 2020 but remain one of the biggest unresolved issues in the banking sector. State-owned banks wrote off UAH 30.6 billion ($1.1 billion) in local currency loans and $3.1 billion in dollar-denominated loans in 2020, reducing their share of NPLs from 63.5 percent to 57.4 percent. The share of NPLs in foreign commercial banks decreased from 16 percent to 12.3 percent, and in Ukrainian commercial banks from 18.6 percent to 14.6 percent. Greater oversight by the National Financial Stability Council, along with the National Bank’s new criteria for writing off distressed assets, has improved the banks’ NPL strategies.
Foreign-owned banks may carry out all activities conducted by domestic banks, and there are no restrictions on their 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. A foreign investor may open an account in a bank operating in Ukraine and transfer in funds for further investment or invest directly into an account of a Ukrainian resident company.
Foreign Exchange and Remittances
The National Bank of Ukraine (NBU) continued in 2020 to liberalize currency controls, which had been put in place to stabilize the Ukrainian foreign exchange market during the 2014 economic crisis. Under the law “On Currency and Currency Transactions”, which entered into force in February 2019, individuals can purchase foreign currency online and on credit. The National Bank increased the cap for currency transfers by individuals from EUR 50,000 in December 2019 to EUR 200,000 in February 2021. The daily limit was raised to UAH 399.9 thousand (or the USD/EUR equivalent). Currency transfers abroad for legal entities are capped at EUR 2 million a year. The cap includes any outward investments. According its currency liberalization road map, one of NBU’s priorities is to eliminate foreign currency transfer limits for individuals. Even though many restrictions for foreign currency transactions have been loosened, the new regulations still require Ukrainian banks to monitor most foreign currency transactions.
In 2019, the NBU abolished all restrictions related to the repatriation of dividends. The NBU also cancelled the mandatory sale of foreign currency proceeds by businesses from June 2019. In addition, it removed the hryvnia reserve requirement banks had to keep for foreign currency purchases, and it now allows unlimited daily purchase of foreign currency by individuals through banks, financial institutions, and via online banking.
The NBU now allows transactions from Ukrainian bank accounts opened by non-resident legal entities. Foreign companies can open, and make payments from, current accounts as well as accumulate and buy foreign currencies using these accounts.
The NBU has developed a road map for removing currency restrictions with the goal of reaching a full capital flow regime. The roadmap is publicly available on the NBU’s website in both Ukrainian and English:
Further liberalization is contingent on implementation of BEPS legislation and general macro-economic conditions.
The NBU has a floating exchange rate regime, although the NBU may carry out currency interventions to meet two objectives: reducing excessive currency fluctuations and replenishment of international reserves.
In 2020, the National Bank of Ukraine doubled the limit for some retail foreign currency remittances, including for investment abroad or foreign deposits, to EUR 200,000 ($230,000) per year. As long as they comply with the limit, individuals are permitted to remit foreign currency (or the national currency hryvnia) abroad or to current accounts of corporate nonresidents in Ukraine. The transactions allowed include: investing abroad, depositing funds into one’s own accounts abroad, transferring funds under life insurance agreements, or making loans to nonresidents. In 2020, individuals transferred about EUR 274 million ($315 million) abroad. The NBU aims to completely remove the limit on international investments by individuals, subject to the full adoption and implementation of the BEPS legislation.
Sovereign Wealth Funds
Ukraine does not maintain or operate a sovereign wealth fund.
7. State-Owned Enterprises
The Government of Ukraine operates 1,600 state-owned enterprises (SOEs) out of 3,358 registered SOEs, with an economic output of approximately ten percent of GDP. While the government lists 3,358 enterprises, more than 1,700 of them no longer operate as functioning businesses. SOEs in Ukraine are defined as companies in which the state owns at least 50-percent plus one share. SOEs are active in areas such as energy, machine-building, and infrastructure. Some of the companies have significant environmental problems, legacy legal issues, or oligarchs as minority owners.
There is no common public list of all SOEs in Ukraine and each ministry publishes a list of SOEs under its respective management. The Ministry of Economic Development and Trade periodically updates information on annual financial reports of significant SOEs (100 of the largest SOEs), which it publishes on the ministry website.
Ukraine’s law on corporate governance requires SOEs to publicize annual financial reports and disclosures on official websites, including information on financial indicators, company officials, transactions, etc. The law also stipulates that SOEs publish their annual financial statements and audits, though a review of SOE financial statements and audits showed that SOEs did not rigorously adhere to the law. Independent and government board members were selected in 2020 in certain strategic SOEs in the defense sector. Since late 2019, some rollbacks of corporate governance protections at SOEs have been observed, especially in SOEs in the energy and infrastructure sectors, such as Naftogaz, Ukrenergo, and Energoatom.
In April 2020, the Cabinet of Ministers introduced a cap on the salaries of heads of executive bodies and members of supervisory boards of SOEs of $1,740 a month. The limitation was nominally introduced for the duration of the COVID-19 lockdown period. The move followed similar lowered pay caps for Ukraine’s ministers and their deputies. Critics worried the salary cap would lead to the loss of crucial talent and necessary expertise. In October 2020, the government canceled the cap on wages of SOE managers, including members of executive bodies and the restoration of supervisory board member pay to the levels determined by earlier contracts/agreements. The end of the temporary limitation was followed by several failed attempts to pass legislation to introduce permanent caps on wages of civil servants and SOEs.
SOE senior managers traditionally report directly to the ministry overseeing the relevant SOE’s area of expertise. Ukrainian law specifies that ministries are not permitted to interfere with the daily economic activities of an SOE, but numerous anecdotal reports indicate that ministries and vested interests ignore this restriction. The Cabinet of Ministers has the power to decide on the creation, reorganization, and liquidation of SOEs, and to adopt and enforce SOE charters. It can delegate this authority to the ministry charged with supervising the SOE. The Cabinet of Ministers may also delegate to ministries the permission to create joint ventures with state property and prepare proposals to divide state property between the national and municipal levels.
Most SOEs rely on government subsidies to function and cannot directly compete with private firms. Several SOEs capable of making a profit have already been privatized, and the result has been that the most inefficient firms have remained in government hands. The Ukrainian government continues to heavily subsidize state-owned enterprises (especially in the coal mining, rail transportation, gas, and communal heating sectors) and has sometimes paid outstanding debts of some SOEs with sovereign loan guarantees. SOE access to extensions of tax payment deadlines remains nontransparent, especially where SOEs are directed to sell their products at below-market prices.
On March 30, 2021, parliament passed in its final reading the bill cancelling the laws blocking the privatization of large SOEs. Auctions for 22 large SOEs slated for privatization should now start in the second half of 2021. The government has also approved a list of smaller-scale SOEs to put up for sale in 2020. Ukraine netted $75 million from 419 small-scale privatization auctions in 2020, including $41 million generated by the sale of Kyiv’s Dnipro Hotel.
Starting in 2019, Ukraine’s government has vowed to implement a series of major privatization reforms, including a dramatic reduction of the number of SOEs deemed strategic and exempt from sale. In October 2019, the government nullified legislation from 1999 banning the privatization of a lengthy list of state assets. On March 30, 2021, parliament passed in its first reading a draft law establishing a list of 659 SOEs that are exempt from privatization. Included in the list are energy and defense companies, natural monopolies like the state railway and postal service, forestry facilities, and entities with social value in the culture, sports, science, and education sectors. In February 2020, as part of an effort to reform state-owned companies, the government started the legislative process to permit partial privatization of some previously excluded SOEs, including Naftogaz, MainGasPipelines of Ukraine, UkrTransGaz, UkrNafta, Ukrgasvydobuvannya, Ukrzaliznytsia, and UkrPoshta. The United States has provided significant technical assistance to Ukraine to support an open and transparent privatization process.
The State Property Fund oversees privatizations in Ukraine. The rules on privatization apply to foreign and domestic investors and, theoretically, establish a level playing field. However, observers have pointed to numerous instances in past privatizations where vested interests have influenced the process to fit a pre-selected bidder. Despite these concerns, the government has stated that there would be no revisions of past privatizations, but there are ongoing court cases wherein private companies are challenging earlier privatizations.
8. Responsible Business Conduct
There is limited but growing awareness in Ukraine of internationally accepted standards for responsible business conduct, including corporate social responsibility. Primary drivers for the introduction of these standards have been Ukraine’s vibrant civil society, international companies and investors, and efforts by business associations such as the American Chamber of Commerce and the European Business Association. The government of Ukraine has put in place corporate governance standards to protect shareholders; however, these are voluntary.
In 2017, Ukraine became the 47th country to adhere to the OECD Declaration and Decisions on International Investment and Multinational Enterprises, which provides recommendations on responsible business conduct. Ukraine established its National Contact Point to promote these guidelines for Multinational Enterprises under the Ministry of Economic Development and Trade (http://ncp.gov.ua/?lang=en). On May 31, 2018, Ukraine adopted and agreed to support and monitor implementation of the OECD Due Diligence Guidance for Responsible Business Conduct. There are also independent NGOs, such Center for the Development of Corporate Social Responsibility, as well as investment funds, worker organization and unions, and business associations promoting or monitoring responsible business conduct. There are no reported restrictions on their activities aimed at promoting responsible business conduct.
Ukraine has been a member of the Extractive Industries Transparency Initiative (EITI) since 2013. Participation by companies in Ukraine, however, remains voluntary. Ukraine has not joined the Voluntary Principles on Security and Human Rights.
Department of State
Department of Labor
Ukraine has numerous laws to combat corruption by public officials, and following the Revolution of Dignity in 2014, the government launched new anti-corruption institutions, including the National Anti-Corruption Bureau (NABU), to investigate corruption by public officials, the Special Anti-Corruption Prosecutor’s Office (SAPO), the National Agency for Prevention of Corruption (NAPC), and the High Anti-Corruption Court (HACC).
In fall 2020, Ukraine’s Constitutional Court struck down certain provisions of the Law of Ukraine about NABU and the Law on Corruption Prevention (in particular, provisions on e-declarations and on the powers of the National Agency on Corruption Prevention (NACP) related to their verification) as unconstitutional. The Constitutional Court is also considering cases challenging the constitutionality of the HACC and the Deposit Guarantee Fund. These rulings have been criticized by the government as corruptly influenced; they have also created new obstacles to new disbursements under the IMF, World Bank and EU assistance programs. The government and parliament are in discussions with international partners on draft legislation that would restore those aspects Ukraine’s institutional anti-corruption infrastructure struck down by the Court.
The government began drafting legislation to criminalize the falsification of customs records, and is preparing to launch an agency-wide reform initiative to detect and address internal corruption. Beginning in 2017, the State Border Guard Service (SBGS) reformed ten of its border crossing points, including five along the Polish border and five international airports, using a personnel and process reform model that has been expanded to SBGS Command Staff promotions and is being considered within the State Customs Service. The National Police of Ukraine is also redesigning its approach to addressing corruption nationwide and within its ranks by standing up a new General Inspectorate Unit.
Foreign businesses, including U.S. companies, continue to identify corruption in many sectors as a significant obstacle to FDI. Reform of public procurement has been a relative success story, with the introduction of the online ProZorro system providing transparency for most procurement. Parliament is currently reviewing draft legislation to reform the defense procurement process, pending amendments made to the Law on State Secrets, which will declassify the process. The energy sector has seen some improvements, including reforms at the large oil and gas SOE Naftogaz, but participants in the sector continue to raise concerns. Government interference in the corporate governance of Naftogaz is a persistent concern and has now spread to Ukrenergo, Energoatom, and Ukrhydroenergo, among others. There are allegations of corruption at specific SOEs in a variety of sectors, as well as allegations that external corrupt forces interfere regularly in SOE operations.
There are several NGOs actively involved in investigating corruption and advocating for anti-corruption measures.
Resources to Report Corruption
NABU, established in October 2014, is the appropriate resource for the reporting of high-level corruption.
Government of Ukraine contact for combating corruption:
National Anti-Corruption Bureau
3, Vasyl Surikov St, Kyiv, Ukraine 03035
Corruption Reporting eForm: http://nabu.gov.ua/povidomlennya-pro-kryminalne-pravoporushennya
Contact at Transparency International:
Mr. Andriy Borovyk
Transparency International Ukraine
37-41 Sichovykh Striltsiv Street, 5th floor,
Kyiv, Ukraine 04053+38(044) 360-52-42
10. Political and Security Environment
Russia’s military aggression entered its eighth year in the eastern oblasts of Donetsk and Luhansk, as did its illegal occupation of Crimea. Residents of Russia-controlled areas are subject to political violence at the hands of Russia’s proxy authorities. Civilian casualties in eastern Ukraine from landmines, shelling, and small arms fire have decreased steadily since 2017, but continued to occur. Infrastructure for water, gas, and electricity remained at risk of conflict-related damage, and fighting routinely disrupted maintenance of aging facilities, thereby threatening essential service delivery to populated areas. Russia-led forces control approximately 400 km of Ukraine’s international border with Russia through which Russia supplies and equips its proxy forces, which receive logistical and command support from Russian Army soldiers. Russia continued its illegal occupation of the Autonomous Republic of Crimea and the City of Sevastopol, and reports of political violence, repression, and religious persecution continue.
Since the 2019 Ukrainian presidential and parliamentary elections, the new administration’s efforts to take measurable steps toward peace, anti-corruption initiatives, and integration into Western institutions have faced push back from vested interests However, the government has demonstrated its commitment to reform in the face of adverse court decisions overturning key reform legislation. The president has rallied his party’s majority in parliament to adopt laws to address many of these court decisions, but more needs to be done. Protests in support of judicial reform drew up to 10,000 people in late February 2021.
11. Labor Policies and Practices
Ukraine has a well-educated and skilled labor force of about 20 million people with a nearly 100-percent literacy rate. Ukraine has a reported population of 41.9 million people as of January 2021. Ukraine’s official unemployment rate was 9.3 percent in Q3 2020, although unemployment in some regions, particularly in rural areas, remained significantly higher. According to the government’s statistics, there were about 1.64 million unemployed workers in Q3 2020. However, only 25 percent were officially registered with the State Employment Service. Wages in Ukraine remain low by Western standards. In January 2021, the minimum monthly wage was raised to UAH 6000 ($215) from UAH 4,723 ($193). The real average monthly wage increased by 10.2 percent year-on-year to UAH 14,179 ($506). The highest wages are traditionally in the financial and aviation sectors; the lowest wages are paid to food service and public health workers.
Following unrest in Belarus, the Zelenskyy administration issue a decree obligating the Cabinet of Ministers to streamline the immigration and registration process for highly qualified IT specialists and entrepreneurs fleeing Belarus. The GoU estimated that, by March 2021, nearly 40 companies and 2,000 new IT specialists from Belarus had relocated to Ukraine.
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 industry 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. The independence of unions from government or employer control, however, has been disputed by certain labor groups. Independent trade unions alleged that the country’s largest trade union confederation, the Federation of Trade Unions of Ukraine (FPU), enjoyed a cozy relationship with employers and members of some political parties. Unions not affiliated with the FPU were denied a share of disputed trade union assets inherited by the FPU from Soviet-era unions.
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 respects this right. The law does not extend the right to strike to personnel of the Prosecutor General’s Office, 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 State Labor Service is responsible for enforcing labor laws, although the number of planned and unplanned inspections is low. Experts assess the number to be inadequate relative to the size of the Ukrainian economy. The National Mediation and Reconciliation Service (NMRS) is responsible for mediating labor disputes. According to official Ukrainian statistics, during 2020 the NMRS resolved 377 labor disputes that involved 1.4 million employees and 6,778 economic entities.