Ukraine

Olena Omelchenko, Partner at Ilyashev & Partners, Head of International Trade Practice, PhD in Law Anti-dumping investigations have become one of Ukraine’s key trade defence instruments, particularly since 2014 and following the full-scale war in 2022. Against the backdrop of disrupted supply chains and heightened economic security challenges, this mechanism provides effective protection for domestic industries against unfair competition and remains the primary practical tool for responding to such threats for Ukrainian manufacturers and international businesses operating in Ukraine. Legal Framework During the wartime period, no legislative amendments have been adopted, despite the fact that draft laws aimed at improving investigation procedures in line with international best practices have been pending in Parliament for several years. As a result, the protection of Ukrainian producers against unfair dumping imports continues to be based on the Law of Ukraine “On Protection of the National Producer against Dumped Imports”, the WTO Agreement on Implementation of Article VI of GATT 1994 (the WTO Anti-Dumping Agreement), and the case law of the WTO Dispute Settlement Body. Note: Ukraine is a WTO member and its anti-dumping procedures are in line with the WTO Anti-Dumping Agreement. Key Authorities Involved The key authorities remain the Ministry of Economy, Environment and Agriculture of Ukraine (the Ministry of Economy) and the Interdepartmental Commission on International Trade (the Commission or ICIT). The composition of the Commission is approved by the Cabinet of Ministers of Ukraine and is currently represented at a higher decision-making level, including heads and deputy heads of key ministries, the State Customs Service of Ukraine, the Antimonopoly Committee of Ukraine, as well as, subject to consent, the Security Service of Ukraine and the Deputy Head of the Office of the President of Ukraine responsible for economic affairs. Procedure Initiation The initiation of an anti-dumping investigation is preceded by a lengthy and often complex preparatory phase, which begins with a preliminary market assessment. Legal advisers analyse import structures, pricing behaviour, product characteristics, the condition of the domestic industry, and the economic indicators of potential applicants. In cases where the number of producers is significant and they are not united within an industry association, the consolidation of producers itself may become the most time-consuming stage – in some instances taking longer than the collection of evidence or the drafting of the complaint. Once the producers have reviewed the conclusions of the preliminary assessment, including the associated risks and prospects of the investigation, they decide whether to submit an application to the Ministry of Economy of Ukraine. The preparation of the complaint may take from several weeks to several months, depending on product complexity, the scope of required calculations, and the availability of economic data. During wartime, the evidence-gathering process is further complicated by additional factors – such as the loss of documentation, changes in logistics, and production disruptions – making the role of legal and economic advisers even more critical. Investigation The complaint is submitted to the Ministry of Economy of Ukraine, which conducts an initial review and decides whether the application is sufficiently substantiated. Formally, the law provides that an investigation should be initiated within one month. However, during wartime this timeframe has effectively been extended: most cases are opened no earlier than three to six months, while some complaints may remain under review for more than a year. The Ministry conducts a detailed examination of the submitted materials and frequently requests clarifications, additional documentation, or revised calculations from the applicant. Only where all elements indicating potential dumping and material injury are established does the Ministry submit a proposal to the Interdepartmental Commission on International Trade to initiate an investigation. The Commission’s decision is published in Uriadovyi Kurier (the Government Gazette), after which all interested parties must register within 30 days and submit their evidence. Formally, an investigation may last up to 12 months, with the possibility of extension to 18 months. However, in the realities of wartime such timeframes appear excessively long: Ukrainian producers require swift decisions, while a significant portion of the evidence may change or lose relevance in a rapidly evolving environment. A core element of any anti-dumping investigation remains the demonstration of three mandatory criteria: the existence of dumping, material injury, and a causal link between them. Prior to 2022, the main challenges in establishing causation were largely associated with market fluctuations. Since the outbreak of the war, however, the situation has become fundamentally more complex. The focus has shifted to proving that numerous “other factors” – those unrelated to imports – do not distort the objective picture or neutralise the impact of dumping. The destruction of production facilities, changes in logistics routes, a sharp decline in domestic demand, energy instability, and the relocation of enterprises all create a complex background that must be carefully separated from the actual impact of imports. The ability to correctly identify and isolate these factors has become a decisive element of the evidentiary standard in wartime investigations. Against this backdrop, the requirements for both economic modelling and structural market analysis have significantly increased. As a result, the role of legal advisers has expanded well beyond traditional legal argumentation. It now encompasses market scenario modelling, logistics cost analysis, reconstruction of financial data, assessment of war-related factors, and their separation from dumping effects. Without such a comprehensive approach, the successful demonstration of injury in current conditions is virtually impossible. Imposition of Duties Ukrainian legislation formally allows for the application of provisional anti-dumping measures no earlier than 60 days from the initiation of an investigation. Such measures are imposed for four months and are intended to rapidly stabilise the market in cases of a significant surge in dumped imports. In practice, however, due to legislative shortcomings and the complexity of demonstrating imminent material injury, provisional measures are applied extremely rarely. Definitive anti-dumping duties are generally imposed approximately 13 months after the initiation of an investigation. Recent practice, however, has shown that where a robust evidentiary record is available, cooperation with the Ministry of Economy is effective, and there are no procedural delays caused by foreign parties, the timeline may be reduced to nine to ten months. Definitive duties are imposed for a period of five years and may be extended following a review if the risk of a resumption of dumped imports persists. In today’s volatile environment – characterised by unstable markets and rapidly shifting trade flows – review proceedings have become a critical tool for safeguarding competition and protecting Ukrainian producers. Judicial Review of Decisions Decisions may be challenged through court proceedings where procedural violations have occurred. Following the liquidation of the Kyiv District Administrative Court in 2022, all such cases were transferred to the Kyiv Regional Administrative Court, with subsequent redistribution to other regional administrative courts. This restructuring has significantly extended the duration of judicial review proceedings. Impact of the War Following the outbreak of the full-scale invasion of Ukraine by the Russian Federation in February 2022, the Ministry of Economy and the Interdepartmental Commission on International Trade were, for almost a year, largely unable to actively pursue anti-dumping investigations. Complaints submitted during this period were typically returned to applicants, while investigations initiated prior to the war were reviewed with significant delays, although they were ultimately concluded with the imposition of anti-dumping measures. The first post-war decisions adopted by the Commission were initiated with the involvement of Ilyashev & Partners, which successfully secured the imposition of anti-dumping duties on silicon-manganese steel wire, coated carbon steel flat products, and glass containers. Market Practice and Landmark Cases The cases reviewed below illustrate how Ukrainian anti-dumping practice has evolved and which approaches define it today. They also reflect the role of Ilyashev & Partners, which over the past decade has been a recognised market leader in trade defence in Ukraine. Our team has initiated the largest number of successful anti-dumping investigations resulting in the imposition of measures and has established a series of key precedents – ranging from record anti-dumping duty rates to the first anti-circumvention proceedings in Ukraine’s history. By combining legal, economic, and industry-specific expertise in a fully integrated manner, we consistently deliver successful outcomes in matters with a systemic impact on Ukrainian industry, shaping contemporary practice of the Interdepartmental Commission on International Trade and the Ministry of Economy of Ukraine. Case 1 – Definitive Anti-Dumping Measures on Imports of Radiators from China and Turkey One of the first truly landmark trade defence decisions adopted after the outbreak of the full-scale war and the effective relaunch of Ukraine’s anti-dumping enforcement mechanism was the decision of the Interdepartmental Commission on International Trade dated 16 April 2025, concerning imports into Ukraine of heating radiators originating from the Republic of Türkiye and the People’s Republic of China. The Commission confirmed that radiator imports were carried out at dumped prices, causing material injury to Ukrainian producers, and imposed definitive anti-dumping duties, differentiated by country of origin: Chinese producers – duty rates ranging from 34.59% to 74.26%, depending on the exporter; Turkish producers – duty rates ranging from 14.22% to 22.93%, also reflecting individual dumping margins. The level and differentiation of the duties reflect both the scale of the violation and the divergent market behaviour of individual exporters in Ukraine. For Ukrainian industry, this decision became a critical precedent: for the first time since the start of the war, a significant dumping threat was successfully established, and the state demonstrated its ability and readiness to respond effectively to external pressure undermining the competitiveness of domestic manufacturers. This case has come to symbolise the revival of Ukraine’s trade defence practice in wartime and has clearly demonstrated the capacity of state authorities to move forward despite unprecedented external challenges. Case 2 – Anti-Dumping Duties on Imports of Fittings from China and Turkey Another key outcome of the wartime period was the completion of an anti-dumping investigation concerning imports of fittings for water supply and heating systems originating from the People’s Republic of China and the Republic of Türkiye. The decision of the Interdepartmental Commission on International Trade dated 7 July 2025 confirmed the systemic nature of dumping and the significant adverse impact of such imports on Ukrainian producers. The investigation established substantial dumping margins, reflected in the definitive duty rates differentiated by country of origin and individual exporters: People’s Republic of China (PRC) – general duty rates ranging from 87.84% to 166.65%, with certain exporters subject to individually calculated rates significantly exceeding average levels; Republic of Türkiye – definitive duty rates ranging from 15.86% to 34.72%, depending on the manufacturer. The exceptionally high rates imposed on imports from the PRC evidenced an abnormal level of price pressure and serious market distortions, while the investigation also identified a material, albeit less pronounced, dumping effect in relation to imports from Türkiye. As a result of these measures, Ukraine succeeded in restoring competitive balance in the fittings market, stabilising prices, and preventing the further displacement of domestic producers by dumped imports. Notably, this case was successfully concluded despite the challenging wartime environment, in which the demonstration of injury and causation, as well as the collection of financial data, was significantly complicated by external factors. Case 3 – Review and Extension of Anti-Dumping Measures on Cement and Clinker In 2019, the International Trade Practice team of Ilyashev & Partners successfully protected the interests of Ukrainian cement producers in an anti-dumping investigation concerning imports into Ukraine of cement originating from the Russian Federation, the Republic of Belarus, and the Republic of Moldova. At its meeting on 21 May 2019, the Interdepartmental Commission on International Trade (ICIT) decided to impose definitive anti-dumping duties for a five-year period on imports of cement into Ukraine, including cement clinker and Portland cement, classified under Ukrainian Customs Tariff (UKT ZED) codes 2523 10 00 00 and 2523 29 00 00. The definitive anti-dumping duty rates were set as follows: 03% on imports of Portland cement and clinker originating from the Republic of Belarus; 46% on imports of Portland cement and clinker originating from the Republic of Moldova; 95% on imports of Portland cement and clinker originating from the Russian Federation. The simultaneous imposition of such exceptionally high duty rates on imports from three countries represented an extremely rare outcome in anti-dumping practice and underscored the gravity of the dumping and injury established during the investigation. In 2022, Ilyashev & Partners further defended the interests of Ukrainian cement producers before the Supreme Court of Ukraine, which brought to a close Case No. 640/11242/19 concerning the legality of the anti-dumping duties imposed by the ICIT in May 2019, thereby upholding the measures in full. Subsequently, on 21 May 2025, the Interdepartmental Commission on International Trade adopted Decision No. AD-579/2025/441-01, extending the application of the definitive anti-dumping measures on cement imports from the Russian Federation, the Republic of Belarus, and the Republic of Moldova until 2030. This decision has played a decisive role in restoring fair competition in the Ukrainian cement market, contributing to increased production and sales by domestic manufacturers, job creation, and the preservation and growth of long-term investment in the sector. Cases 4-6 – Ukraine’s First Anti-Circumvention Investigations One of the most precedent-setting developments in Ukraine’s trade defence practice in 2025 was the initiation of the first anti-circumvention investigations in the country’s history. In April 2025, the International Trade Practice team of Ilyashev & Partners initiated three separate proceedings aimed at countering the circumvention of anti-dumping measures imposed on products of Chinese origin. The investigations concerned imports from Malaysia that were declared as Malaysian in origin but, based on factual indicators, were in fact products of Chinese origin. The cases covered the following product categories: steel fasteners, steel wire, and coated flat steel products. These market segments are critically important for Ukraine’s metallurgy and machinery industries, making the identification and documentation of large-scale circumvention schemes strategically vital for preserving a fair competitive environment. All three investigations were initiated on the basis of complaints prepared by Ilyashev & Partners on behalf of Ukrainian producers. The team conducted a comprehensive evidence-gathering exercise, including analysis of trade flows, identification of abrupt shifts in import geography, verification of Malaysia’s actual production capacities, and economic assessment of the likelihood of re-export of Chinese products under the guise of Malaysian origin. This approach enabled the team to convincingly establish the existence of circumvention practices in relation to the anti-dumping measures applied by Ukraine to Chinese exporters. Having reviewed the complaints, the Interdepartmental Commission on International Trade, for the first time in Ukrainian practice, extended the application of the anti-dumping duties imposed on goods originating from the PRC to imports from Malaysia as of the date of initiation of the investigations, rather than upon their conclusion. As a result, Ukraine introduced – again for the first time – a mechanism of “preventive collection” during the investigation period, an instrument widely used in the European Union but not previously implemented in Ukrainian practice. These cases represented a breakthrough in Ukraine’s approach to combating duty circumvention, as: Article 27 of Ukraine’s Anti-Dumping Law was applied in a practical and effective manner for the first time; a precedent was established for the use of advance deposits, an enforcement tool that may now be applied in other sectors; Ukrainian producers received real and immediate protection against transit and misclassification schemes commonly used in international trade. In effect, Ilyashev & Partners initiated a new stage in the development of Ukraine’s anti-dumping policy, aligned with contemporary challenges and the country’s EU integration trajectory. These investigations constitute the first comprehensive Ukrainian cases in which trade defence measures were applied not only against dumping itself, but also against organised circumvention schemes, bringing Ukrainian practice significantly closer to the approaches adopted in the EU and the United States. Conclusion Anti-dumping instruments have become an integral element of Ukraine’s economic strategy in wartime. Amid extreme market volatility, the destruction of logistics infrastructure, and aggressive pricing practices by foreign producers, anti-dumping procedures remain a key mechanism for preserving competition and ensuring the viability of strategically important industrial sectors. The war has significantly complicated the demonstration of material injury and causal link, requiring both applicants and importers to work with broader, more fragmented datasets. Modern investigations demand a substantially higher level of analytical depth from legal advisers, including the reconstruction of financial indicators, market modelling, testing of logistics assumptions, and the separation of war-related factors from the impact of imports. In this environment, firms representing the interests of both domestic producers and importers must be prepared for far more intensive evidentiary work, in which economic analysis and legal argumentation are inextricably linked. Despite the extraordinary challenges, Ukraine’s trade defence system has demonstrated its institutional resilience: the Interdepartmental Commission on International Trade and the Ministry of Economy have continued to adopt decisions, initiate new investigations, and impose definitive measures. The emergence of the first anti-circumvention procedures confirms that Ukraine is capable of responding not only to traditional dumping practices, but also to increasingly sophisticated schemes designed to evade trade remedies. The growing number of cross-border trade disputes and the deep interconnection of global markets are creating new opportunities for international cooperation. The complexity of contemporary cases – from the analysis of global supply chains to the assessment of circumvention risks – naturally opens the door to collaboration with foreign law firms, particularly in the context of global trade disputes and multi-jurisdictional proceedings. In today’s Ukraine, anti-dumping is not merely a legal tool, but a pillar of economic resilience and strategic security. Its importance will continue to grow in the years ahead, as the effectiveness of trade defence investigations will play a decisive role in industrial recovery, investment development, and the protection of critical sectors of the national economy. Ilyashev & Partners is a leading Ukrainian law firm in trade defence and anti-dumping law, widely recognised for its expertise in anti-dumping, anti-circumvention and international trade investigations in Ukraine. For more than a decade, the firm has been at the forefront of Ukraine’s trade remedies practice, advising domestic producers and international clients on complex anti-dumping proceedings, WTO-related matters, and cross-border trade disputes involving Ukraine. The firm’s International Trade Practice provides comprehensive legal and economic support throughout the entire lifecycle of trade defence cases, including market and dumping assessments, preparation and filing of anti-dumping complaints, representation before the Ministry of Economy of Ukraine and the Interdepartmental Commission on International Trade (ICIT), judicial review before Ukrainian courts, and sunset and interim reviews. Ilyashev & Partners has initiated and successfully concluded the largest number of anti-dumping investigations in Ukraine, including record anti-dumping duty cases and the first anti-circumvention investigations in Ukraine’s history. The team is particularly known for handling high-stakes trade defence matters in a wartime economy, combining legal analysis, economic modelling, and industry-specific expertise to address dumping, injury, causation, and circumvention risks in volatile markets. The firm regularly advises Ukrainian manufacturers, multinational corporations, investors, and international law firms on trade defence strategy, supply chain risks, import regulation, and compliance with Ukrainian, EU, and WTO trade rules. With deep experience in cross-border trade disputes involving Ukraine, Ilyashev & Partners acts as trusted local counsel in Ukraine for international law firms in complex trade defence and WTO-related disputes. To learn more about Ukraine’s leading anti-dumping and trade defence law firm, please visit the Ilyashev & Partners website or contact Olena Omelchenko directly.  

In its European integration agenda, Ukraine has set itself the ambitious goal of joining the "club of successful countries", which is the unofficial name of the Organisation for Economic Co-operation and Development (hereinafter referred to as the OECD), which brings together 38 of the world's most developed economies and is known for setting basic standards of public governance for states that uphold democratic values. In 2022, Ukraine initiated the process of integrating into the OECD and joining its Working Group on Bribery, a crucial step in this process. One of the necessary steps for joining the organisation is the ratification of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. Ukraine's accession to this anti-corruption convention is an integral part of the negotiations on EU accession, which involves aligning domestic regulations with the framework requirements of the partner countries' criminal legislation, among other things. Criminal liability of legal entities in the context of new anti-corruption legislation   Traditionally, Ukrainian criminal law recognised only natural persons as subjects of crime. However, after ratifying several international treaties, the state undertook to harmonise national legislation with international standards, in particular regarding the prosecution of legal entities. Since 2013, the Criminal Code of Ukraine (hereinafter – the CC of Ukraine) has contained provisions on criminal law measures against legal entities, providing for the possibility of imposing fines, confiscating property, or liquidating a company in the event of certain crimes being committed by its authorised representative on behalf of and in the interests of such a company.   Law of Ukraine No. 4111-IX of 04.12.2024 supplemented Sections XIV-1 of the CC of Ukraine and VI of the Criminal Procedure Code of Ukraine (hereinafter referred to as the CPC of Ukraine) with the aim of implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. The law mentioned above introduces additional tools to combat corruption involving foreign officials. On the one hand, the implementation of the OECD Council's recommendations in this manner is a significant step forward for Ukraine; on the other hand, it poses risks to the business environment that are worth being aware of.   The new provisions potentially expand the scope of liability for legal entities, particularly by allowing for liability without the mandatory simultaneous criminal prosecution of individuals. It creates risks of abuse by pre-trial investigation authorities. Thus, the issue of balancing the effectiveness of anti-corruption control and guarantees of legal certainty for business becomes particularly relevant.   According to the version of the Criminal Code of Ukraine in force until December 2024, criminal law measures could only be applied to a legal entity if there was a fact of a criminal offence committed by an authorised person on its behalf and in its interests. The mandatory criteria in all cases were: 1) conviction of a natural person for one of the crimes provided for in paragraphs 1–6 of Part 1 of Article 96-3 of the Criminal Code of Ukraine; 2) proven connection of this crime with the activities of the legal entity.   Currently, the legislator has deviated from the traditional doctrine, which linked the application of criminal law measures to legal entities with the establishment of the guilt of a natural person. The current CPC of Ukraine has been supplemented by Chapter 37-1, which, along with the general procedure for bringing legal entities to justice, introduces a special procedure, the decisive basis for the application of which is the presence of signs of bribery of foreign officials. In accordance with the new provisions of this procedure, in particular Part 2 of Article 96-3 of the Criminal Code of Ukraine, for the first time, it is possible to apply criminal law measures solely on the basis of the fact of committing a socially dangerous act that falls under the signs of a crime provided for in Articles 209 (legalisation of income), 369 (offer/promise/provision of unlawful benefits), 369-2 (abuse of influence) of the Criminal Code of Ukraine, even without proving the guilt of a specific individual.   The law uses a broader term than criminal offence — "socially dangerous act that falls under the signs of an act provided for in Articles 209, 369, 369-2 of the Criminal Code of Ukraine ...", which allows law enforcement agencies not to prove in court the presence of all elements of a crime (in particular, the identification of a natural person). In our opinion, such a regulation contradicts the principle of presumption of innocence (Article 62 of the Constitution of Ukraine).   Moreover, the provisions of paragraph 6 of part 2 of Article 96-3 of the Criminal Code expressly stipulate that, to apply measures to a legal entity in the event of corruption involving foreign officials, it is not necessary to identify the specific person who committed the act. This construction contravenes the fundamental principles of criminal law, where liability is personal and punishment for an act is only possible if guilt is proven.   It is also worth noting the vagueness and excessive generality of the wording enshrined in both the previous and new provisions of Article 96-3 of the Criminal Code, according to which the basis for bringing a company to justice is the failure of an authorised person to fulfil their duties to take measures to prevent corruption. In the absence of proper regulatory and procedural consolidation of compliance mechanisms, the question arises as to what measures are being referred to. Without precise regulation of the scope, nature, and form of such "compliance control", business entities may be held liable even in cases where there is no direct link between the actions of an employee and the organisation. In addition, there is no mechanism for the official implementation or monitoring of compliance obligations through independent institutions. It opens the door to selective criminal prosecution and creates additional obstacles to economic activity.   In general, the provisions of Article 96-3 of the Criminal Code of Ukraine, as amended on 4 December 2024, provide an overly broad and vague basis for interpreting the grounds for applying criminal law measures to legal entities. It creates the potential for the unfair use of these measures in the struggle between business competitors. For example, a report to the law enforcement authorities that an authorised representative of a competitor has provided an unlawful benefit to a foreign official may be sufficient grounds for applying criminal law measures against a competing company.   Criminal proceedings under special procedure: grounds and risks   The grounds for criminal proceedings against legal entities under special procedure are rather ambiguous. According to Article 483-1 of the Criminal Procedure Code of Ukraine, criminal proceedings may be conducted under a special procedure (i.e., separately from proceedings against a natural person) on the basis of a prosecutor's decision or a court ruling. In this case, one of the following conditions must be met: 1) conducting proceedings separately against a legal entity cannot adversely affect the completeness of the pre-trial investigation and court proceedings against a natural person; 2) there is a final conviction, a decision to close criminal proceedings, or the application of medical or educational measures against an authorised representative of the company who acted on its behalf and/or in its interests; 3) the death of the suspect, accused or authorised representative of the company acting on its behalf and/or in its interests, in respect of whom sufficient evidence has been gathered to notify them of suspicion of committing a criminal offence, but who has not been notified of suspicion due to their death; 4) if the pre-trial investigation and/or court proceedings are impossible due to circumstances that effectively prevent the proceedings (in particular, the evasion of the suspect, accused or authorised person who acted on behalf of and/or in the interests of the legal entity from the investigation or court, serious illness of such a person, diplomatic immunity or special legal status of such a person, or refusal of a foreign state to extradite such a person, etc.), provided that this does not adversely affect the completeness and objectivity of the pre-trial investigation and court proceedings in relation to the natural person.   The wording is evaluative in nature, allowing for a broad scope of discretion on the part of the prosecutor. In other words, we see that the prosecutor is effectively allowed to assess, at their own discretion, whether or not the investigation of a natural person will be prejudiced by the conduct of separate criminal proceedings against a legal entity.   Due to the rare application of criminal law measures to legal entities by courts in the past, in particular due to the complexity of proving the connection between the actions of an authorised person and the interests of the company, it can be predicted that decisions on the possibility of conducting separate investigations against legal entities (without the need to establish and prove the guilt of a natural person) will now be popular among prosecutors.   The question arises as to the future practical application of such grounds for criminal proceedings under a special procedure, such as the existence of a decision to close criminal proceedings against an authorised representative of a company who acted on behalf of and/or in the interests of the company. Given the wording of paragraph 2 of part 2 of Article 483-1 and the provisions of paragraphs 1 and 2 of part 1 of Article 284 of the CPC of Ukraine, criminal proceedings against a legal entity are possible even after the closure of a case against an individual due to the absence of a criminal offence or the elements of a crime in their actions. This creates a certain conflict, which allows a legal entity to be held liable even in the absence of a proven crime on the part of a natural person, thereby increasing the risks of abuse and pressure on businesses.   In addition, the provision of paragraph 4 of part 2 of Article 483-1 of the CPC, which equates a person acting on behalf of a legal entity and "evading" the investigation with an accused or suspect, even without official status or a summons to the investigating authority, is controversial. This construction allows a legal entity to be held liable even in so-called "factual" cases.   Criminal law measures against legal entities in cases of bribery "with a foreign element"   Previously, in parallel with the criminal prosecution of a natural person, the following criminal law measures could be applied to a legal entity: fines, confiscation of property, and liquidation.   Currently, this list has been supplemented with additional (non-financial) criminal law measures that may be applied based on the results of criminal proceedings in a special procedure (without establishing the guilt of a natural person). Among the positive aspects, it is worth noting that liquidation and confiscation of a legal entity's property are not applicable in the above cases. Among the negative aspects is that the duration of the measures may vary from 6 months to 3 years, depending on the court's decision.   At the same time, Article 96-10-1 of the Criminal Code of Ukraine provides for a relatively long list of non-financial measures, which are divided into two groups: (1) temporary restrictions on the conduct of activities and (2) temporary restrictions on the acquisition of rights and benefits.   Although the new measures are labeled as "non-financial", their impact can result in significant financial losses and even lead to the shutdown of the business as a whole. For example, restrictions on the use of licences and special permits for the use of subsoil resources for up to 3 years can halt the operation of a business operating in a regulated sector and remove the company from a particular market.   Another problem is that the law of 4 December 2024 does not provide a mechanism for compensating legal entities that may suffer from the illegal or unjustified application of criminal law measures (e.g., in the form of restrictions on participation in tenders or advertising their activities). This creates an imbalance: if a company is unjustifiably held liable, it risks significant reputational, financial, and operational losses without any real possibility of obtaining compensation.   Gaps in the regulation of mechanisms for the procedural participation of a legal entity's representative and the resolution of procedural issues relating to the enforcement of court decisions   The provision of Article 483-7 of the CPC of Ukraine deserves special attention. It provides for the possibility of considering a motion for temporary restrictions on a legal entity without its participation. At first glance, this appears to be an exception that should only apply in cases where there is a real and proven threat, such as a change in constituent documents, liquidation of the company, or alienation of assets. The idea is clear - to prevent the loss or removal of property that may become evidence or the subject of a future judgment.   However, in practice, this rule opens up a highly vulnerable field to abuse. The investigating judge or court is given too much discretion. They can make decisions without representatives of the company itself, which effectively becomes a hostage to the process, without even having the opportunity to express their position. Moreover, there is an urgent need for legislative regulation of the supervisory authority's functional role in the implementation of court decisions regarding the application of criminal law measures to legal entities under a special procedure. For example, it is currently unclear how situations involving temporary restrictions on a legal entity's activities, such as prohibiting it from producing and distributing advertising about its own activities, participating in social dialogue bodies, or engaging in sponsorship, are regulated. Neither the Criminal Enforcement Code of Ukraine nor any other document currently contains provisions that clearly define the powers of such a body in the sphere of control over the implementation of the measures mentioned above, which creates a legal vacuum that needs to be filled urgently, since it became possible to bring a legal entity to justice under a special procedure more than six months ago.   Conclusions   Preventing double standards in criminal law is a key condition for effectively combating corruption. The asymmetry between the regulation of "export" and domestic corruption undermines legal certainty, creates room for abuse, and risks pressure on business. Bringing legal entities to justice without proving the guilt of specific individuals contradicts the principles of subjective guilt and individualisation of responsibility. An effective solution is to integrate mechanisms for the liability of legal entities into a unified criminal law system, supplemented by mandatory compliance programmes and internal controls, which will simultaneously strengthen the rule of law and preserve economic stability.     Author: Igor Glushko, Partner at GOLAW, Head of Criminal Law and White Collar Defence practice, Attorney at law

Which transactions require merger clearance? If the transaction constitutes “concentration” under Ukrainian law, merger clearance may be required. The definition of “concentration” includes different types of transactions: (1) merger or acquisition; (2) acquisition of control (direct or indirect); (3) joint ventures. However, not every concentration requires merger clearance. Only concentrations exceeding financial thresholds are notifiable. What are the mandatory filing thresholds? Concentration requires merger clearance if one of two alternative tests is triggered. Test 1: the combined global assets or turnover of all parties exceed EUR 30 million; and the assets or turnover in Ukraine of each of at least two parties exceed EUR 4 million. Test 2: the assets or turnover in Ukraine of at least one party exceed EUR 8 million; and the global turnover of at least one other party exceeds EUR 150 million. All thresholds are calculated on a group-wide basis for the preceding financial year. Which transactions are exempt from merger clearance? The following transactions are excluded from the definition of “concentration” and are not notifiable: within-group transactions, where control within the group is established in accordance with Ukrainian merger control rules; creation of a joint venture that will not operate as an autonomous economic entity on a lasting basis (such a transaction is considered a “concerted practice”); acquisition of shares by a financial or securities institution for resale within one year, provided it does not exercise voting rights in the governing bodies; acquisition of control over an entity or its part by a bankruptcy trustee or state authority official; acquisition of assets or shares by a financial institution under a restructuring plan, with resale within two years; and acquisition of assets or shares by a bank through foreclosure on collateral, with resale within one year, provided it does not exercise voting rights in the governing bodies or use the assets. Also, under martial law, an acquisition of control by a state-owned company (with 50% or more state participation – meaning that a private investor may hold up to 50%) or its controlled entities over energy or utility companies is not regarded as a “concentration”, provided that the acquisition aims to prevent or eliminate emergencies or disruptions in the supply of energy, heat, water, or gas. How are foreign-to-foreign transactions treated under Ukrainian merger control rules? Foreign-to-foreign transactions may trigger Ukrainian merger control filing requirements if the parties exceed the relevant financial thresholds. Accordingly, even in the absence of sales, assets, or a local presence in Ukraine, notification may still be required. However, under martial law and for 90 days thereafter, foreign-to-foreign transactions aimed at the development and implementation of technologies, as well as the manufacture of military and dual-use products in Ukraine that meet certain criteria, are exempt from the obligation to obtain merger clearance and may be carried out. Which authority is responsible for issuing merger clearance in Ukraine? The Antimonopoly Committee of Ukraine (AMC) is the primary state body responsible for protecting competition, reviewing transactions, and issuing merger clearance. If the AMC prohibits a concentration, the Cabinet of Ministers of Ukraine may override its decision if the positive effects for the public interest outweigh the negative impact on competition. When should parties submit notification? The parties can submit a notification at any time, but they should obtain merger clearance before closing the transaction. However, if the parties conduct concentration via competitive procedures (bidding, auctions, contests, tenders, etc.), they may submit the notification either before the procedure starts or within thirty days after the winner is announced. What are the key procedural deadlines in Ukraine’s merger control review process? Standard review Preview period – up to 15 calendar days. The AMC checks whether the notification and accompanying documents comply with formal requirements. Substantive review (Phase I) – up to 30 calendar days. The AMC assesses whether the concentration can be approved or whether there are grounds for prohibition% if there are no grounds for prohibition and there are no restrictions under sanctions law, the AMC issues merger clearance within Phase I; clearance is also deemed granted if, by the end of Phase I, the AMC has not initiated Phase II. In-depth review (Phase II) – up to 3 months. Initiated if there are grounds for prohibition. The AMC conducts a comprehensive analysis of the transaction and its impact on competition, collects opinions of competitors, consumers, experts, and other relevant parties, and conducts surveys. Total duration: up to 45 calendar days (preview and Phase I); up to 4,5 months with Phase II. Fast-Track review Combined preview and substantive review – up to 25 calendar days from filing. Available if: only one party carries out activities in Ukraine; or combined share of the parties does not exceed 15 per cent on the relevant market, and 20 per cent on vertically related markets. In practice, however, the AMC may still apply the standard procedure even if fast-track conditions are formally met. For example, where a party has not previously undergone review, the AMC may consider notification under standard review and require disclosure of the group’s formation history, including dates of acquisition and incorporation, as well as details of earlier transactions. Under what conditions does the AMC approve a transaction? The AMC approves a transaction (concentration) when it determines that the transaction does not result in monopolisation or a substantial restriction of competition in the relevant market. If the AMC identifies potential adverse effects on competition, it may still approve the transaction provided that the parties propose remedies that eliminate those effects. The AMC does not grant merger clearance if Ukrainian sanction legislation prohibits the transaction. What financial penalties apply for failure to notify of a transaction? Failure to notify of a transaction (concentration) may result in a fine of up to 5% of the group’s annual turnover for the last reporting year. The actual amount of the fine may vary significantly depending on whether the violation leads to monopolisation or a substantial restriction of competition. In addition, the AMC may consider aggravating or mitigating factors when determining the final amount of the fine. For example, monopolisation or restriction of competition across more than two regions of Ukraine, or repeated violations, may be treated as aggravating factors. Conversely, filing for clearance before the formal investigation begins, active cooperation with the AMC, and mitigation of adverse effects are considered mitigating factors that may reduce the fine. What should parties take into account before filing? Before submitting a merger filing to the AMC, the parties should carefully consider the following: screen for Ukrainian sanctions – conduct a thorough check to confirm that none of the parties to the transaction (concentration), including their ultimate beneficial owners, are subject to Ukrainian sanctions; assess activities in russia and belarus – verify whether any of the groups involved conduct business in russia and belarus. If so, collect information on their exit plans and timelines; identify control relationships – prepare detailed information on all control links between entities, each entity’s corporate details and actual business activities; define relevant markets and market shares – clearly define the relevant market and calculate the parties’ market shares. This is essential, particularly to assess eligibility for a fast-track review; prepare required documents – ensure all documents are duly apostilled (legalised) and notarised, where applicable. These include powers of attorney for representatives, documents confirming ultimate beneficial owners (if any), evidence of funding availability, extracts from business registers, and any other documents required. AUTHORS: Oleksandr Melnyk, Partner at GOLAW, Head of Corporate and M&A practice, Attorney at law Yevhenii Ahashkov, Senior Associate at Corporate and M&A practice at GOLAW Yaroslav Maltsev, Paralegal at Corporate and M&A practice at GOLAW

In today’s unpredictable world, businesses often face circumstances that disrupt contractual performance. Whether it’s war, sanctions, pandemic, or skyrocketing costs, many turn to legal safety nets such as force majeure and hardship to mitigate the consequences. Yet, in Ukraine, commercial actors often conflate the two doctrines, leading to uncertainty and practical difficulties in their application. For international companies entering into contracts under Ukrainian law or working with Ukrainian partners, drawing a clear boundary between these concepts is vital step in safeguarding their interests when the unexpected strikes. At first glance, force majeure and hardship appear to address the same circumstances – both dealing with extraordinary events that disrupt contractual performance. However, in the eyes of the law, they are fundamentally distinct mechanisms, each with its own requirements and consequences. Understanding which applies to your situation is critical, as it can determine whether non-performance is legally excused or constitutes breach of contract. What is force majeure? Under Article 141 of the Law of Ukraine “On the Chambers of Commerce and Industry”, force majeure (Ukrainian: obstavyny neperebornoi syly or “circumstance of irresistible force”) is defined as extraordinary and unavoidable circumstances that make it objectively impossible for the affected party to perform its contractual obligations. Classic examples include armed conflicts, natural disasters, or government-imposed restrictions, such as quarantines or export bans. Further clarification is provided in paragraph 6.9 of the Regulation on Certification of Force Majeure Circumstances by the Ukrainian Chamber of Commerce and Industry (approved by Resolution of the Presidium of the UCCI dated 18 December 2014, No. 44(5)), which outlines four cumulative criteria that must be met for an event to qualify as force majeure: 1. Extraordinary nature – The event is exceptional and beyond the control of the parties; 2. Unpredictability – The occurrence or consequences of the event could not reasonably have been foreseen, particularly at the time of concluding the relevant contract or prior to the obligation’s due date; 3. Inevitability (Irresistibility) – The occurrence and/or its consequences are unavoidable despite the exercise of due care and diligence; 4. Causal link – There must be a direct causal connection between the event and the impossibility of performing a specific contractual or legal obligation (under contract, statute, regulation, or decision of a local authority). Crucially, simply invoking force majeure is not sufficient to safeguard a party from liability or contractual penalties. To rely effectively on this legal mechanism, the affected party must: 1. Obtain a certificate of force majeure from the Chamber of Commerce and Industry of Ukraine confirming that the specific event qualifies as force majeure in the context of the relevant contract and in relation to the affected party. Note: The Supreme Court of Ukraine has clarified that the general certificate issued by the Chamber of Commerce and Industry of Ukraine on 28 February 2022, which recognized the russian armed aggression as a force majeure event, does not in itself exempt parties from liability for non-performance. The Court held that such general certificate, addressed “to whom it may concern,” lacks the necessary link to a specific contract or obligation, and does not constitute sufficient proof to justify non-performance without additional evidence demonstrating the impact of the unforeseen event on a specific contractual obligation. 2. Demonstrate a clear causal link between force majeure event and the party’s inability to fulfill its contractual obligations. 3. Establish that no reasonable alternative means of fulfilling the contractual obligation were available. The party must prove that, even with additional effort or expense, fulfilling the obligation was objectively impossible under the circumstances. What is hardship? Hardship – legally referred to as a material change in circumstances under Article 652 of the Civil Code of Ukraine – is a significant change of the conditions that the parties relied upon at the time of contracting. A change is considered material if, had it been foreseen, the parties would not have entered into the contract at all, or would have done so on significantly different terms. As clarified by the Supreme Court of Ukraine, hardship must stem from external factors unrelated to the conduct of the parties and must arise independently of their legal relationship. According to the Court`s case law, in order to qualify as hardship, the event must meet all four legal criteria: 1. Be Unforeseeable – The change could not have been reasonably anticipated at the time the contract was concluded. 2. Be Unavoidable – The affected party could not have prevented or mitigated the consequences of the change through reasonable efforts (due diligence). 3. Disrupt Contractual Balance – The change significantly distorts the contractual equilibrium, significantly diminishing the value of performance expected by one party. 4. Provide No Assumption of Risk – The affected party did not, either contractually or customarily, bear the risk of such a change. Common examples include sharp increase in cost of raw materials, hyperinflation, significant changes in legislation, etc. Importantly, in order to benefit from the hardship mechanism, the affected party has to proactively raise the issue and seek to re-negotiate the terms of the contract – either directly with the counterparty or by initiating judicial proceeding. If the opposing party files a claim for non-performance before hardship is invoked, the affected party loses the opportunity to rely on it as a legal basis for modifying or terminating the contract. So, what is the difference? As recently confirmed by the Supreme Court, the difference between the two concepts lies in both degree of disruption and legal consequence that follow: 1. Force majeure renders the performance of contractual obligations objectively impossible – where no amount of effort or financial outlay can overcome the barrier hindering the performance of the obligations. Hardship, by contrast, arises where performance of a contractual obligation remains objectively possible, but has become excessively burdensome or economically impractical for the affected party due to fundamental change in circumstances. 2. Force majeure affects the timing and feasibility of performance and exempts the affected party from liability for non-performance during the force majeure period. Hardship, on the other hand, does not release the party from performance or liability. Instead, it provides the affected party grounds for seeking modification or termination of the contract in order to restore the balance of interests that has been disrupted by the unforeseen changes. Legal consequences It is crucial to distinguish the legal consequences of the two doctrines. When properly invoked, the doctrine of force majeure can shield the affected party from liability, relieving it of penalties or fines arising from non-performance. In contrast, hardship does not exempt a party from liability for non-performance. Instead, it gives a legal foundation to seek revision or termination of the contract – either though negotiations with the counterparty or by applying to the court. In essence, force majeure is aimed to safeguard an affected party against the consequences of non-performance, while hardship offers a pathway to reshape a contract in light of fundamentally changed circumstances. What this means for your business With the Supreme Court providing clear guidance the application of the two doctrines under Ukrainian law, it is more important than ever for business owners to understand the distinction – especially since misinterpretation is likely to result in lost opportunities for legal protection. At Koziakov and Partners, we specialize in helping businesses navigate these legal complexities. Whether you need to invoke force majeure, renegotiate a contract under hardship, or defend against contractual claims, our team is here to protect your interests. If your business is facing contractual challenges due to unforeseen events or shifting market realities, we are here to guide you in choosing the best course of action and safeguard your commercial interests.