Prior to the onset of the COVID-19 epidemic, Ukraine’s economy had significantly improved in the years since the severe financial crisis and near collapse of the banking system triggered by Russia’s military intervention in 2014. Hard-won reforms had brought macro-economic stability and some improvements to the business environment. The April 2019 election of President Zelenskyy, who campaigned on a platform of ending the conflict with Russia, eliminating corruption, and adopting economic policies that deliver European standards of growth and opportunity, further improved the economic outlook for Ukraine. As part of this revolution at the ballot box, 80 percent of the Rada (parliament) was replaced and the president’s party, Servant of the People, won a majority of seats. The government and the Rada then set out to pursue the new president’s ambitious reform agenda, and passed approximately 100 laws in 100 days, including dozens to improve the business environment and attract international investment. This new “turbo regime” also took on controversial economic reforms, such as lifting the moratorium on the sale of agricultural land.
Ukraine’s economic recovery nevertheless remains fragile as it continues to struggle to overcome years of corruption and government mismanagement, and as vested interests and oligarchic influences continue to manipulate public policy for personal gain. The latter has jeopardized a new IMF assistance program, which is the linchpin for international financial support for Ukraine and a crucial factor in maintaining investor confidence in the country. Moreover, the President’s decision to completely overhaul the Cabinet on March 6, 2020 raised concerns over the future of the reforms and the power oligarchs continue to wield. It also resulted in a lot of uncertainty just as Ukraine began to face the immense public health and economic challenges brought on by an unanticipated global health pandemic. Due to COVID-19, external demand for Ukrainian goods is collapsing and internal measures to reduce the spread of coronavirus have had a major disruptive impact on both domestic production and consumption. The IMF forecasts that Ukraine’s GDP will contract by 7.7 percent in 2020.
Ukraine has significant investment potential given its large consumer market, highly educated and cost-competitive work force, and abundant natural resources. Ukraine’s Association Agreement with the EU gives Ukraine preferential market access and is accelerating Ukraine’s economic integration with the EU. U.S. companies have found success in Ukraine, particularly in the agriculture, consumer goods, and technology sectors. Ukraine is an agricultural powerhouse, and is the world’s third-largest grain exporter. Ukraine’s IT service and software R&D sectors show great potential due to the country’s large, skilled workforce.
Foreign direct investment (FDI) remains low, however, with net inflow in 2019 equaling only two percent of GDP. Foreign investors cite corruption in the judiciary, poor infrastructure, powerful vested interests, and weak protection of property rights as some of the major challenges to doing business. The conflict with Russia also continues to impede greater investment in Ukraine. In the Russia-controlled areas in the Donbas region of Ukraine, the conflict with Russia-led forces has resulted in significant damage to freight rail, mines, and industrial facilities. Investors should note that the situation in both Crimea (unlawfully occupied by Russia since the spring of 2014) and in occupied areas of Donbas remains dire. U.S. sanctions prohibit U.S. companies from participating in most transactions involving Crimea.
1. Openness To, and Restrictions Upon, Foreign Investment
Policies Towards Foreign Direct Investment
The government of Ukraine actively seeks FDI. In 2014, the National Investment Council was established 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. Ukraine also established a Business Ombudsman in 2015 to provide a forum for domestic or foreign businesses to file complaints about unjust treatment by state or municipal authorities, state-owned or controlled companies, or their officials. Ukraine has made attracting investment a top priority for 2020. Accordingly, this year it launched various incentive programs to increase investment. President Zelenskyy has remarked on multiple occasions about his desire to have an ongoing dialogue with investors and has arranged various meetings with Ukrainian businesses and foreign business associations such as the American Chamber of Commerce and the European Business Association.
Limits on Foreign Control and Right to Private Ownership and Establishment
The regulatory framework for the establishment and operation of business 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” (2013). 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. The accreditation process for representative offices of foreign companies and their branches is has been historically slower and more costly than the simplified registration process for Ukrainian businesses. Legislation was adopted in November 2019, however, that reduced the cost of accreditation for foreign representative offices (excluding Russian businesses) from $2,500 to one minimum monthly wage (which in 2019 was approximately $70) 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 bio-ethanol, 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. Ukraine currently reviews merger and acquisition investments only on competition grounds, but is considering a mechanism for investment review on security grounds. According to Ukraine’s investment promotion office, UkraineInvest, foreign direct investments are reviewed on an ad hoc basis by the Cabinet of Ministers if concerns arise, but there is no formal process in place.
Ukraine has taken major steps forward to facilitate the ease of doing business, and it moved up seven spots in the World Bank’s 2020 Doing Business Ranking from 71th place in 2019 to 64th. This is Ukraine’s largest annual leap since 2014 and the highest ranking the country has ever received. The country 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.” Legislation adopted in October 2019 on “Encouraging Investment Activity in Ukraine,” which abolished outdated and inefficient regulations, improved the protection of minority investors’ rights, and increased lending options for businesses is expected to further facilitate doing business in Ukraine.
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 December 1, 2019, Ukraine’s investments in foreign countries totaled approximately $6.5 billion, according to data provided by the State Statistics Service of Ukraine. Individuals are limited to investing a maximum of EUR 50,000 ($56,000) abroad per year, and any investment exceeding this cap requires a license from the National Bank of Ukraine. Legal entities and private entrepreneurs registered in Ukraine have a cap of EUR 2 million ($2.24 million) per year.
In February 2017, Ukraine signed an intergovernmental agreement with the United States to facilitate reporting under the U.S. Foreign Account Tax Compliance Act (FATCA). The agreement was ratified by the Ukrainian parliament on October 29, 2019 and entered into force November 18, 2019.
In February 2019, the Ukrainian Parliament passed the Law “On Ratification of Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI).” The law went into effect on December 1, 2019, following Ukraine’s registration of MLI ratification with the OECD’s Secretary-General in August. Application of the MLI is aimed at combating abuse in bilateral tax treaties in a synchronized and efficient way by amending approximately 40 of Ukraine’s bilateral tax treaties (Covered Tax Agreements or CTAs).
3. Legal Regime
Transparency of the Regulatory System
Ukraine is working towards building a transparent, consistent regulatory environment. Regulatory regimes in Ukraine are 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 and other bribes. The country, however, is generally moving in the right direction towards clearer rules and fair competition. Ukraine’s efforts to implement its EU Association Agreement, including the Deep and Comprehensive Free Trade Area (DCFTA), should help boost overall transparency and legal certainty as Ukraine strives to establish legal and regulatory systems that are consistent with international norms. Continued deregulation is also one of Ukraine’s key commitments under its IMF program.
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. The relevant ministry or regulatory agency is required by law 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. The Ministry of Economy announced in November 2019 that Ukraine is working to launch a pilot program to create an electronic platform on which it could publicize all draft regulatory measures, accept public comments, and provide responses to those comments. Information on 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. Ukraine’s notification of draft text to the WTO for comment has significantly improved in the past few years, but there have been instances where the draft text was submitted relatively late in the legislative process after it had already passed the first reading in the Parliament. Ukraine has committed to continue improving its process of notifying all proposed regulatory changes to the WTO and its process for reviewing and responding to comments to these notifications
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 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 are 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. Ukraine is ranked 105 out of 141 countries with regard to judicial independence by the Global Competitiveness Index report 2018-2019 (up twelve spots from the 2017-2018 report).
Laws and Regulations on Foreign Direct Investment
The Law of Ukraine 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 Amendments to Some Laws to Remove Obstacles for Attracting Foreign Investments” and Law “On Amendments to Certain Legislative Acts of Ukraine on Encouraging Investment Activity in Ukraine.” 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, competition advocacy within the government, and formulating competition policy.
Expropriation and Compensation
Current legislation permits legal expropriation of property in certain criminal proceedings or in cases of failure to fulfil investment obligations during privatization procedures. Additionally, the Law “On Legal Regime of Martial Law” and the Law “On Confiscation of Property During Legal Regime of Martial Law” 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. As of early 2019, the Embassy was tracking approximately 20 active disputes, some very protracted. 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.
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 “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 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 a turning point for Ukrainian bankruptcy law reform, in October 2018 the Ukrainian parliament adopted the Code of Bankruptcy Proceedings to replace the existing bankruptcy law that had been in force since 1992. The law took effect in October 2019. The new law improves 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 maters. The law also improves the procedures for selling debtors’ assets by introducing online auctions. In addition, the law removes a requirement for asset collection through courts or enforcement services before insolvency proceedings can begin. This eases the debt collection process and reduces the cost for lawyers and court fees for creditors. The new bankruptcy code also provides additional protection of creditors’ interests whose claims are secured by a pledge and determines the conditions for claiming their rights to the pledged collateral.
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. In the 2020 World Bank’s Doing Business Report Ukraine ranked 146 out of 190 in the “resolving insolvency” subcategory, one spot lower than last year’s ranking of 145. Ukraine’s low ranking is driven by a low recovery rate and the high costs associated with recovering funds from insolvent firms by creditors.
4. Industrial Policies
The Ukrainian government has made attracting investment a top priority. As part of this effort, Ukraine has introduced various investment incentives in the past months. Ukraine now offers a government manager for each investor who invests $100 million or more. The manager will be available 24/7 to assist the investor with cutting through red tape and resolving obstacles to doing business. The investor will also have direct investment agreement with the national government that permits the investors to pursue international arbitration for violations of property rights. Additionally, any investor who invests $10 million or more in a large-scale privatization project will not have to pay income taxes for five years. The government 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 are still 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 are rare and subject to budgetary restrictions.
Foreign Trade Zones/Free Ports/Trade Facilitation
Ukraine does not maintain special or free economic zones.
Performance and Data Localization Requirements
An employer is free to employ a foreign national as long as the employer has obtained a work permit for this person. The law of Ukraine “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 and that 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 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.
In 2015, Ukraine eliminated the local content requirement associated with its renewable energy feed-in tariffs, but replaced it with a bonus payment conditioned on the use of local materials in the construction of renewable energy projects. A renewable auction law replaced the feed-in tariff regime in 2019, and it does not include a local content requirement. 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. Overall, 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 in compliance with the EU’s General Data Protection Regulation (GDPR), but this 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. Foreign nationals can lease land, but there is a moratorium on the sale of agricultural land that prevents them from acquiring land. Ukrainian media estimates that five percent of land in Ukraine does not have clear title. 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 Special 301 Report since 2015 due to the widespread use of unlicensed software, the transshipment and sale of counterfeit goods, rampant Internet piracy, and the unfair and nontransparent system of collective management organizations (CMOs) found in Ukraine. In the past few years, Ukraine has made significant strides in establishing the necessary legal framework to ensure adequate and effective protection of IPR and has actively engaged various stakeholders, including the United States and the EU. In addition, President Zelenskyy has identified the improvement of IPR protection as a priority for the coming year, as he hopes to attract investment by leading high-tech and entertainment companies.
In the past year, Ukraine’s cyber police have significantly ramped up efforts to investigate online piracy crimes, resulting in the closure of major illegal video streaming sites. In April 2019, the cyber police launched a nationwide anti-piracy operation that focused on identifying and investigating the owners of illicit websites. The anti-piracy operation has resulted in the identification of operators and shutdown of thirty-five video streaming sites, including Kinogo, which received approximately 100,000 hits daily.
Ukraine has also passed various key pieces of IPR legislation, including the Law “On Amendments to the Customs Code of Ukraine Concerning Protection of IPR during the Movement of Goods through the Customs Border of Ukraine,” which aims to bring Ukrainian IPR border measures in line with EU regulations and contains provisions to improve the protection of copyrights and trademarks at the border. Following the adoption of the Law “On Efficient Management of Property Rights of Rights Holders in the Sphere of Copyright and/or Related Rights,” Ukraine began reform the accreditation process of CMOs to reduce the number of rogue CMOs and ensure proper distribution of royalties. Consequently, CMOs now must undergo vigorous competition to be accredited. In recognition of these efforts, a third of the Globalized System of Preferences (GSP) benefits suspended in 2017 were reinstated in October 2019.
Additional progress still needs to be made in Ukraine in terms of IPR protection, and enforcement of IPR remains poor. Due to this weak enforcement, online markets that facilitate the sale and distribution of counterfeit goods continue to operate in Ukraine. Industry reports that large quantities of allegedly counterfeit goods are readily available in these online marketplaces and that the process to remove the listings of these items is cumbersome and ineffective. Sales of counterfeit goods in physical marketplaces continue to be widespread as well. The Notorious Markets List identifies that one of the largest counterfeit markets in Europe, with around 6,000 merchants, is the 7th Kilometer Market in Odessa. Law enforcement authorities do not perform raids or seizures at this market according to stakeholders and local media. The Troyeshchyna and Petrivka markets in Kyiv, and the Khmelnytskiy market and Barabasova market in Kharkiv, also sell high volumes of counterfeit goods. Customs authorities reported 20 cases of illegal trade of counterfeit goods in 2019 that were valued at over a million dollars. Moreover, the use of unlicensed software by state-owned enterprises (SOEs) and certain governmental bodies remains an issue. Many initiatives to improve the protection of IPR, such as the adoption of several key pieces of legislation on copyrights, trademarks, and patents, the establishment of an IP office and a specialized IP court, and the accreditation of legitimate CMOs, are still under way.
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 the capital market is underdeveloped. Ukraine’s capital market consists of two separate sectors: a stock market and a commodity market. Liquidity is limited and investors have limited investment options. The stock market includes ten stock exchanges and a settlement center. Government bonds constitute 95 percent of the trades. A few corporate securities are listed, but the volume of their trades is insignificant. Only Ukrainian-licensed securities traders may handle securities transactions, though there are limited exceptions. 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. It includes hundreds of commodity exchanges, and other participants that are not licensed or subject to any supervision.
The regulator of Ukraine’s capital market, the National Securities and Stock Market Commission, lacks financial and operational independence and, therefore, Ukraine is not a signatory of the Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information of the International Organization of Securities Commissions. Legislation to strengthen the independence of the Securities Commission was submitted to the Parliament but has not yet passed. In November 2019, Ukraine adopted the so-called “Split” law, which regulates the non-banking financial services sector. According to the law, the National Bank of Ukraine will supervise and regulate the insurance market, leasing and factoring companies, credit unions, credit bureaus, pawnshops and other financial companies, while the National Securities and Stock Market Commission will regulate private funds, including: pension funds, construction financing, and real estate transactions. The law provides for a transition period through June 30, 2020.
Ukraine has restrictions in place on payments and transfers for current international transactions. However, legislation adopted in 2018 on currency regulations came into effect in February 2019 that has begun to loosen some of these restrictions. Ongoing currency liberalization, along with the legislation and regulatory reform, should facilitate foreign investments into securities, including corporate ones. 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, though interest rates remain high. The credit 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
Ukraine’s banking sector has seen remarkable progress following the 2014-2015 crisis thanks in large part to the authorities’ banking sector cleanup, which resulted in the closure of over 100 banks for insolvency or money laundering activities, as well as sound policies from Ukraine’s independent central bank, the National Bank of Ukraine. The number of unprofitable banks has steadily decreased in the past few years; only six banks were unprofitable in 2019 compared to 13 in 2018. The banking sector nearly tripled 2018’s record high net profit of UAH 21.7 billion ($775 million), reporting a cumulative profit of UAH 60 billion ($2.4 billion) for 2019. State-owned PrivatBank earned half of the total profits in the banking system. Interests were the main source of the total profit. Foreign banks’ profits amounted to UAH 18.5 billion ($740 million) in 2019.
Non-performing loans, however, remain one of the biggest unresolved issues of the banking sector accounting for 48.4 percent of loans in 2019. State-owned banks hold nearly 75 percent of total NPLs. Moreover, the penetration of banking services in Ukraine remains low, as only approximately 63 percent of Ukrainians have a banking account. There are approximately 75 banks operating in Ukraine, with the top 20 banks accounting for 92 percent of net assets in 2019. As of end-2019, the banking sector’s net assets amounted to UAH 1.49 trillion ($57 billion).
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. A foreign investor may open an account in a bank operating in Ukraine and transfer in funds for further investment or invest directly to an account of a Ukrainian resident company. In 2017, the National Bank of Ukraine began allowing foreign investors to use escrow accounts to make investments in Ukraine.
Foreign Exchange and Remittances
The National Bank of Ukraine (NBU) in 2019 continued to liberalize currency controls and restrictions on repatriating funds, which had been put in place to stabilize the Ukrainian foreign exchange market during the 2014 economic crisis. In February 2019, the Law “On Currency and Currency Transactions,” came into effect, marking the start of the most radical overhaul of the country’s currency environment in over a quarter of a century. Under the new law, individuals can purchase foreign currency online and against credit money. Individuals can transfer up to EUR 50,000 ($55,000) abroad every year, with the daily limit raised to $5500 from $1800. Even though many restrictions for foreign currency transactions have been loosened, the new regulations still require Ukrainian banks to verify most foreign currency transactions. This rule applies to a majority of cross-border payments by Ukrainian residents.
The NBU has abolished all restrictions related to the repatriation of dividends. As of July 2019, dividends can be paid to a foreign investor’s account in Ukraine or abroad without limits and for any year. The NBU also cancelled the mandatory sale of 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. In September 2019, the NBU cancelled a monthly EUR 5 million limit for the repatriation of proceeds received by a foreign investor from selling shares of a Ukrainian company, decreasing its charter capital or withdrawing investment from a Ukrainian company. A cap on the repatriation of the above-specified proceeds of foreign investment was introduced by the NBU back in 2014 in order to restrict the outflow of capital from Ukraine. 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 its website in both Ukrainian and English. Further liberalization is contingent on implementation of BEPS legislation and general macro-economic conditions.
The NBU has had a floating exchange rate policy for the last five years, though the NBU carries out currency interventions to meet two objectives: reducing excessive currency fluctuations and replenishment of international reserves.
In December 2019, the central bank of Ukraine doubled the e-limit for some retail foreign currency remittances, including for investment abroad or foreign deposits, to EUR 100,000 ($110,000) per year. As long as they comply with the e-limit, individuals are permitted to remit foreign currency (or the national currency hryvnia) abroad or to current accounts of corporate nonresidents in Ukraine opened in order to meet liabilities to nonresidents under health insurance agreements, invest abroad, deposit funds to their accounts outside Ukraine, or issue a foreign currency loan to a nonresident.
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 which the state owns at least 50 percent +1 share. SOEs are active in areas such as energy, machine-building, and infrastructure. More than half of the SOEs are small and inefficient, with ties to corrupt interests, illegal shadow owners, and Soviet-era management practices, which are the real barriers to privatization. Some of the companies have significant environmental problems, legacy legal issues, or oligarchs as minority owners—all issues that could keep foreign investors away.
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 2018 in certain strategic SOEs, including Naftogaz, Ukrzaliznytsia, Ukrenergorynok, Ukrposhta, and Ukrenergo. In 2019, the government continued its corporate governance reform efforts, and created independent supervisory boards in strategic SOEs in the defense industry. These long overdue reforms were an important step towards improving the management, efficiency, and responsiveness of the companies. 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.
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.
The Government of Ukraine approved a revised list of 21 SOEs designated for large privatization on January 16, 2019. The government also approved a list of smaller-scale SOEs to put up for sale in 2019. Despite an ambitious annual plan, the budget received only UAH 0.5 billion ($20 million) from privatization, which was 3.1 percent of the original plan for 2019. Influence from vested interests led to the government’s decision to cancel the sale in late 2019 of Centrenergo despite a promising start to the process. In 2019, several advisors appointed to supervise the privatization of SOEs designated for sale fell victim to legal challenges launched by vested interests. In 2020, the government unblocked the advisor assignments, allowing the privatization processes to continue. Nonetheless, Ukraine’s failure to complete a single major privatization in three years raises concern about the government’s commitment to privatization.
Ukraine’s new 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. As a first step, the Ukrainian Parliament voted in October 2019 to nullify legislation from 1999 banning the privatization of a lengthy list of state assets. Over the next year, the Cabinet of Ministers will have to create a new list designating which companies the state should control. Objects of strategic infrastructure, such as defense enterprises, public broadcasting, cultural and social importance, will still be barred from the privatization. In February 2020 as part af 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 (UZ) and UkrPoshta. The United States has provided significant technical assistance to Ukraine to support an open and transparent privatization process.
The State Property Fund (SPC) 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 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, is still voluntary. Ukraine has not joined the Voluntary Principles on Security and Human Rights.
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), and the National Agency for Prevention of Corruption (NAPC). In addition, legislation was adopted that mandated that public officials declare their assets on a publicly viewable online system. These new institutions, however, have had an uneven track record. After the successful 2016 launch of the asset declaration system for public officials, the NAPC failed to fulfill its mandate to verify officials’ declarations and to fairly manage political party finance reporting until being rebooted following the election of President Zelenskyy in April 2019. NABU and SAPO have taken 245 corruption cases to court since 2015, including indictments of high-level officials, but had failed to obtain a single conviction as cases became mired in court proceedings until the launch of the High Anti-Corruption Court in September 2019.
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 success story, with the introduction of the online ProZorro system providing transparency for most procurement, except in the defense sector, which remains non-transparent and allegedly a continuing source of corruption. The Ukrainian parliament is currently reviewing draft legislation to reform the defense procurement process and likely will adopt the bill in the coming months. However, declassification of the process will be largely contingent on amendments made to the Law on State Secrets. The energy sector has seen some improvements, including reforms at the large oil and gas SOE Naftogaz, but participants in the sector continue to complain of significant and sometimes insurmountable corruption. 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 a number of NGOs actively involved in investigating corruption and advocating for anti-corruption measures. In 2017, the Parliament passed a law with broad requirements for non-governmental individuals engaged in anti-corruption activities to file public asset declarations.
Resources to Report Corruption
NABU, established in October 2014, is the appropriate resource for the reporting of high-level corruption.
Contact at Transparency International:
Mr. Andriy Borovyk
Transparency International Ukraine
2A provulok Kostia Hordiienka, 1st floor, Kyiv, Ukraine 01024
+38(044) 360-52-42 firstname.lastname@example.org
10. Political and Security Environment
Russia’s military aggression entered its sixth year in the eastern oblasts of Donetsk and Luhansk, as did its illegal occupation of the Crimean peninsula. 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 with some regularity. 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, who 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.
The 2019 presidential elections, and subsequent early parliamentary elections fundamentally reformatted Ukraine’s political space, bringing to power a new political party with little prior governance experience. The new parliament initially adopted rapid legal changes, but the perceived lack of a coherent strategy lead to growing social dissatisfaction. Presidential dissatisfaction with progress on reform and economic performance led to the replacement of the Presidential Chief of Staff and a complete overhaul of the Cabinet in the spring of 2020. The president remains personally popular, but popularity for the parliament and the Cabinet has declined. Protests have been limited to those against “capitulation” to Russia, especially in October 2019, and more recently against specific legislation such as land reform. Protests have decreased as COVID-19-related quarantine restrictions on large public gatherings have been implemented.
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 in January 2020. Ukraine’s official unemployment rate was 8.1 percent in 2019 although unemployment in some regions, particularly in western Ukraine, remained significantly higher. According to the government’s statistics, there were about 2.68 million unemployed workers by Q3 2019. However, only 20 percent were officially registered with the State Employment Service. Wages in Ukraine remain low by Western standards. In January 2020, the minimum monthly wage increased to 4723 UAH ($193) from 4173 UAH ($155) in January 2019. The real average monthly wage increased by 15.1 percent year-on-year to 12,264 UAH ($503). The highest wages are traditionally in the financial and aviation sectors; the lowest wages are paid to food service and public health workers.
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. 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. 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 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. It 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. Inspectors were limited in number and funding. Although Ukraine renewed planned and unplanned labor inspections, 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 National Mediation and Reconciliation Service (NMRS) is responsible for mediating labor disputes. According to official Ukrainian statistics, during 2019 the NMRS resolved 370 labor disputes that involved 1.5 million employees and 6,798 economic entities.
12. U.S. International Development Finance Corporation (DFC) and Other Investment Insurance Programs
The U.S.-Ukraine Overseas Private Investment Corporation (OPIC) Agreement was signed in Washington in 1992. OPIC, now the U.S. International Development Finance Corporation (DFC), 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. Ukraine is a member of the Multilateral Investment Guarantee Agency (MIGA). DFC has an active pipeline of projects in Ukraine across various sectors. There are currently 20 DFC projects in Ukraine with a value of $983 million. The new administration has expressed significant interest in increasing DFC financing in Ukraine, particularly in infrastructure and energy as well as in the eastern part of the country.
13. Foreign Direct Investment and Foreign Portfolio Investment Statistics
Table 2: Key Macroeconomic Data, U.S. FDI in Host Country/Economy
Host Country Statistical source*
USG or international statistical source
USG or International Source of Data:
BEA; IMF; Eurostat; UNCTAD, Other
Host Country Gross Domestic Product (GDP) ($M USD)