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At the end of July, Penny Pritzker, the U.S. Special Representative for Ukraine’s Economic Recovery, visited Ukraine to discuss ways to increase private sector investment and jumpstart Ukraine’s economy.

During her visit, she met with senior Ukrainian officials, including Prime Minister Denys Shmyhal, First Deputy Prime Minister Yuliya Svyrydenko, Minister of Digital Transformation Mykhailo Fedorov, and Minister of Strategic Industries Oleksandr Kamyshin. The meetings emphasized the importance of international cooperation and the role of private capital in Ukraine’s recovery.

Despite the war, Ukraine’s economy has shown remarkable growth. In 2023, GDP grew by 5%, investments increased by 17%, and tax revenues rose by 25%. Over 37,000 new businesses were registered, and the tech sector added 8% more jobs.

The international community’s support will be an important element in Ukraine’s recovery. The G7 leaders have committed to unlocking $50 billion from Russian sovereign assets to fund Ukraine’s military, budget, and reconstruction needs. Additionally, the U.S. has been working with local banks to expand financing for small businesses, which are vital to the Ukrainian economy.

Pritzker, whose term as Special Representative ended in August, outlined a plan for Ukraine’s recovery, dubbed “Ukraine’s Path to Prosperity” in a speech at the Brookings Institution on July 31, 2024.

One of the key elements of this plan involves developing a whole-of-government reconstruction planning capacity. This approach aims to streamline efforts across various sectors, ensuring efficient use of resources and alignment with EU accession requirements. The plan also calls for increasing the number of shovel-ready projects, driving reform and anti-corruption efforts, and mobilizing more capital for investment.

Pritzker’s plan also emphasizes the need for a robust insurance system to protect investments and attract investors at scale. Public and private institutions are encouraged to collaborate with local Ukrainian carriers to develop and scale war risk insurance products.

Furthermore, Pritzker pointed out that Ukraine’s recovery will require the return of its people, including internally displaced persons, refugees, and veterans. She urged the Ukrainian government to prepare for their physical, psychological, and social needs, rebuilding housing and schools and providing mental and physical care for war victims.

Pritzker highlighted a number of attractive sectors for investment:

• Ukraine’s agriculture can feed 400 million people worldwide and has the potential to feed 600 million.
• The functioning Black Sea ports have facilitated exports of agricultural products and metals, boosting the state’s income.
• Energy, construction, transport, logistics, critical minerals, defense, and technology sectors offer attractive investment opportunities.

She also pointed to recent examples of ongoing projects involving US companies, including Westinghouse and Energoatom’s collaboration on the Khmelnytskyi NPP and Amentum’s joint venture with the Ukrainian defense industry. In addition to these projects, in July Ukraine and Northrop Grumman signed a deal to produce medium-caliber ammunition, with both countries aiming to foster more co-production deals. A Memorandum of Understanding was also signed last month between Boeing Defense and the Antonov aircraft company to collaborate on aerial drones.

Pritzker’s plan has been characterized as moving Ukraine from a reliance on donors to a focus on attracting investors and capital. As Pritzker aptly put it, “If we build it, they will come.” A combination of continuing donor support, increased foreign investment, and targeted reforms can help ensure a vibrant and successful Ukrainian economy.

Source: https://www.lexology.com/library/detail.aspx?g=77709112-7081-4d84-b6c7-02d5152bcbad&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2024-08-27&utm_term=

17 major banks have signed a Memorandum regarding bank lending for projects aimed at restoring the country’s power supply infrastructure.

Ukrinform reports that Andriy Pishnyi, Chairman of the National Bank of Ukraine, announced this on his Facebook account.

Pishnyi noted, “Yesterday, 17 signatures were affixed to a document that I consider to be somewhat historic for the banking sector. For the first time (I have been in the banking sector for a long time and do not remember similar precedents), such a highly competitive environment has united for a national purpose, offering a common commercial framework. Not declaratively, but effectively.”

He emphasized that this initiative represents a joint position of banks that collectively hold over 80% of all banking system assets. Their financial offers within this initiative consider the needs of various categories of small, medium, and large businesses.

The Chairman of the NBU urged, “Entrepreneurs can secure financing for projects such as the construction of solar, wind, and biogas plants, as well as for building gas turbine and gas piston power plants, purchasing industrial batteries, storage devices, and more. There are also offers available for individual entrepreneurs and micro-businesses. This information can be obtained at any branch of the banks that signed the Memorandum.”

He also reminded that during the period of martial law and for one year after its cancellation, the National Bank has established temporary special features for assessing credit risk on specialized loans, which facilitate bank financing of investment projects.

In addition, the regulator has introduced increased liquidity ratios for collateral in the form of equipment intended for use in power supply and distributed energy generation, in cases where such equipment is accepted as collateral for loans granted after June 1, 2024, for the purchase of such equipment.

Pishnyi noted, “At the same time, we are ready to review banks’ requests that arise during the implementation of the Strategy.”

As reported, the Cabinet of Ministers of Ukraine has expanded the scope of the state program “Affordable Loans 5-7-9” to include financing for the decentralization of power generation.

Source: https://www.ukrinform.ua/rubric-vidbudova/3879053-vidnovlenna-energetiki-banki-pidpisali-memorandum-pro-kredituvanna-proektiv.html

Minister Ruslan Strilets discussed this with Jürgen Raimund Keinhorst, a representative of the Bundesumweltministerium (Federal Ministry for the Environment, Nature Conservation, Nuclear Safety, and Consumer Protection).

The Head of the Ministry of Environment thanked the German Government and Steffi Lemke, the German Federal Minister for the Environment, Nature Conservation, Nuclear Safety, and Consumer Protection, for URC2024 in Berlin and the initial financial support of 5 million euros for the International Action Platform.

At the meeting with Jürgen Raimund Keinhorst, they focused on discussing the priority steps for the operation of the Platform for the Green Recovery of Ukraine. Mr. Jürgen presented Germany’s proposals, clearly outlining the functions of the main parties involved.

According to Ruslan Strilets, the priority measures include support for Ukraine by organizations such as UNECE, OECD, and UNEP in areas such as industrial pollution prevention, environmental taxation reform, destruction waste management, biodiversity preservation, increasing resilience to climate change, sustainable wastewater management analysis in Ukraine, enhancing the capacity of local authorities in environmental assessment and monitoring, and analyzing the potential of green jobs for the reintegration of veterans and IDPs.

Ruslan Strilets noted, “I express my gratitude to the German Government and to my colleague Steffi Lemke for their systematic support. There is a lot of work ahead. We need to carefully work out all the details to ensure the Platform operates effectively for Ukraine’s recovery.”

Source: https://mepr.gov.ua/zapusk-u-robotu-mizhnarodnoyi-platformy-dij-dlya-zelenogo-vidnovlennya-ukrayiny-ta-podalsha-pidtrymka-nimechchynoyu-dovkillyevoyi-sfery-ukrayiny/

On 16 July 2024, the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine (“RD4U”) published the long-awaited Rules and Claim Forms for new claims categories. In particular, this allows state- and privately owned legal entities to submit claims (along with relevant evidence) related to damage or destruction of critical and non-critical infrastructure, as well as of residential immovable property.

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Background

In May 2023, following UN Resolution A/RES/ES-11/ 5, titled “Furtherance of remedy and reparation for aggression against Ukraine”, the Council of Europe established the RD4U through an enlarged partial agreement. The RD4U is intended to record all eligible claims for compensation related to damage, loss and injury caused by Russian aggression in Ukraine, including the evidence supporting these claims. In March 2024, the list of Categories of Claims Eligible for Recording was adopted. Since 2 April 2024, only one category of claims has been open for submission – claims by individuals related to damage or destruction of residential immovable property (Category A3.1).

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Details

The Rules and Claim forms that were most recently released open for submission additional categories of claims for individuals who have suffered due to the Russian aggression against Ukraine (involuntary internal displacement; death of an immediate family member; missing immediate family member; and damage or destruction of non-residential immovable property).

In addition, the following categories are now open for the state of Ukraine, state-owned entities and private legal persons (categories B1.1 – B1.4 and C1.1 – C1.4):

• Damage or destruction of critical infrastructure,
• Damage or destruction of non-critical infrastructure,
• Damage or destruction of residential immovable property – residential areas, and
• Damage or destruction of residential immovable property – common use areas.

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Legal persons can only submit their claims via Diia through representatives. To this end the RD4U adopted “Rules on the Use of Representatives”, which among other matters, regulate the rules for representation of legal persons. They provide that an individual who is recorded in the registry of legal persons as having general authority to act for and on behalf of that legal person (such as a director or a chairperson) shall be considered its “Principal Representative” and shall have the authority to submit claims on behalf of that legal person. Principal Representatives may appoint other representatives to submit claims on behalf of the legal person by issuing Digital Authority in Diia. Such Digital Authority cannot be subdelegated further.

The general procedure for submitting a claim form by a legal person can be summarised in the following steps:

• A representative should be appointed or identified through Diia.
• The representative should select and fill in the relevant claim form on Diia. Although claims may be submitted both in Ukrainian and English, it is advisable to submit the claim in English.
• The representative must attach the following to the selected claim form: • Proof of identity and authority to act on behalf of the claimant • Proof of ownership of the property • Information on how the property was damaged or destroyed • Description and assessment of the damage and destruction • Information on the approximate amount of the claim
  
  It is particularly important that documents submitted should include detailed (and to the extent possible, complete) evidence of damage / destruction, as well as of the quantum of the claim. The rules and claim forms do not provide for any specific requirements as to the type and / or form of evidence that must be submitted. This should be decided on a case-by-case basis. Amendment of the claim or filing additional evidence is possible only until the RD4U Executive Director forwards the respective claim to the RD4U Board.
• Upon completion of submission, the claimant will receive a confirmation of submission through Diia, which contains a unique claimant number, claim number and an automatically generated list of information and evidence submitted with the claim. This serves as confirmation of the completion of the Claim and the date of its submission to the RD4U.
• The RD4U will process and review the claim and its supporting evidence and then decide whether the claim is to be entered into the register. The decision of the RD4U will be communicated in the prescribed manner via Diia.

It is expected that the RD4U will begin accepting these new claims in August 2024, marking a significant step forward in addressing the extensive damage caused by Russian aggression and providing a structured means for affected parties to seek redress.

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Limitations and exclusions

1. Temporal and territorial limits

For a claim to be recognized as admissible and recorded in the RD4U, it must meet three conditions. First, the destruction, damage or loss must occur on or after 24 February 2022. Second, the incident must have taken place within the internationally recognized borders of Ukraine, including its territorial waters. Third, the destruction, damage or loss must have resulted from internationally wrongful acts committed by Russia in or against Ukraine.

2. Relevant Categories

To date, the RD4U has approved and released rules and claim forms pertaining to many – but not all – categories of claims. Additional claim forms are expected to be adopted soon, after which the respective categories of claims will become open for submission. These will include forms for damage or destruction of non-residential immovable property; loss of historic, cultural, and religious heritage; business and other economic losses (including loss of control of property in temporarily occupied territories); and humanitarian expenditures.

3. The mandate of the RD4U

The role of the RD4U is solely to record claims for reparations; it will not examine or evaluate the claims on their merits, assess their value or order any payments. These functions will be performed by a future international compensation mechanism that is yet to be established. The RD4U is the first step towards creating this mechanism, and its mandate includes facilitating ongoing efforts for its establishment. The first meeting on the creation of an international instrument to establish a Claims Commission for Ukraine took place on 9-10 July 2024. This Claims Commission will be tasked with examining compensation claims submitted to and recorded by the RD4U, assessing the claims and supporting evidence and determining the compensation amount due in each case.

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Although the RD4U is not the final step in receiving reparations, it is highly advisable to file a claim once the relevant category becomes open for submission.

Source: https://www.integrites.com/uk/publications/new-rules-and-claim-forms-approved-for-registering-damage-caused-by-russian-aggression-against-ukraine/

ECONOMY INTERNATIONAL ACTIVITY

Ukraine and the United Nations Industrial Development Organization (UNIDO) have started implementation of the Program for the Green Recovery of Ukraine’s Industry for 2024-2028. The solemn ceremony of signing the Program took place in Vienna on June 28, 2024. Nadiya Bighun, the Deputy Minister of Economy of Ukraine, signed the program on behalf of Ukraine, while Yuko Yasunaga, the Deputy Director General and Managing Director of the Directorate of Corporate Services and Operations, signed it on behalf of UNIDO.

The program determines a strategic vision for transformational and sustainable recovery of Ukraine’s industry, guided by the Sustainable Development Agenda till 2030, adopted by the UN General Assembly on September 25, 2015, in particular. Sustainable Development Goal 9 “Industry, Innovation and Infrastructure”. In addition, the program is aligned with the Government of Ukraine’s early recovery priorities, policy reform vision and national sectoral strategies.

Nadiya Bigun reported at the signing ceremony, “Ukraine has a great potential for industrial development. We are grateful to UNIDO for such an opportunity to realize this potential and to develop a greener and more sustainable industrialization. We highly appreciate the constant support by UNIDO and welcome the further strengthening of our cooperation in the framework of the new program, as well as initiation of new joint activities to support Ukraine in these difficult times”.

In order to fulfill UNIDO’s mandate under unique circumstances for Ukraine, the Organization has developed a special program for the green recovery of industry, which covers three key areas of activity:

• Creating opportunities for people
• Business support and investment attraction
• Promotion of the green economy.

Yuko Yasunaga reported at the signing ceremony, “We are very happy to have such a strong partnership with the Ministry of Economy of Ukraine. We are confident that this collaboration will bring about truly transformative changes in the country’s industry, promoting growth and prosperity as it recovers from the devastating effects of the ongoing war”.

During the last year, UNIDO intensified its efforts in Ukraine and achieved important results, which allowed to expand joint activities quickly and effectively. In particular, UNIDO carried out a comprehensive diagnostic study of the Ukrainian industry which provides important output data and unique analysis at the micro, meso and macro levels. With the support of various development and funding partners, UNIDO has launched new activities in the following areas:

1. production of prostheses by means of 3D printing;
2. expansion of economic opportunities of women and youth;
3. development of institutional capacity, including at the municipal level;
4. quality infrastructure;
5. power supply;
6. circular economy;
7. food industry;
8. robotics and artificial intelligence.

Now UNIDO, in cooperation with the Ministry of Economy of Ukraine and the Ministry of Economy, Trade and Industry of Japan, has been drafting a large-scale project that will facilitate transfer of technologies in a series of important industries. The Government of Ukraine and UNIDO are aimed at further cooperation in order to build partnerships and to mobilize resources for achieving the goals of the Green Industry Recovery Program of Ukraine for 2024-2028.

Source: https://www.kmu.gov.ua/news/ukraina-ta-unido-pidpysaly-prohramu-zelenoho-vidnovlennia-promyslovosti-ukrainy-na-2024-2028-roky

Mechanism: Investment arbitration
Grounds

Bilateral investment treaties with the Russian Federation, in particular, the Bilateral Investment Treaty between Ukraine and the Russian Federation, dated 27 November 1998, and international law.

Type of damage to be compensated and assessment of damage
Direct and indirect losses, i.e.:

• the full market value of assets affected by the actions of the Russian Federation;
• lost profits that would have been accrued in the ordinary course of business but for the irregularity

Furthermore, moral damage caused to the investor’s person, including compensating damage that led to mental suffering, insults to feelings, humiliation, shame, degradation, loss of social standing or damage to credit or reputation.

Damage is assessed according to international standards, which means a more comprehensive amount of compensation is awarded.

Decision perspectives

Since 2014, the practice of considering investor cases against the Russian Federation related to the occupation of the Crimean Peninsula has been formed on the basis of the international legal concept of “effective control”.

Arbitral tribunals that have heard cases involving Crimean assets have developed an approach to the application of investment treaties outside the territory over which a state exercises its legitimate sovereignty. The “Crimean cases” can be extrapolated to the East and South of Ukraine, over which Russia currently exercises de facto control, or which have recently been formally annexed by Russia.

Given this practice of investment arbitration, the development of public international law and its application, the prospect exists of positive decisions in favour of Ukrainian investors.

Recognition and enforcement of a decision

Investment arbitral awards are recognised and enforced without hindrance in virtually any jurisdiction on the basis of the New York Convention, to which almost all the world’s nation states are a party.

It is also possible to “sell” an arbitral award at a discount to specialised funds, which means that the arbitral award can be monetised quickly.

Term – from 3 to 5 years

Mechanism: Ukrainian courts

Grounds

Ukrainian legislation.

Type of damage to be compensated and assessment of damage

Direct and indirect losses, as well as non-pecuniary damage.

An assessment of damage is carried out according to national standards, which are based on more conservative methods of damage assessment, which means a lower amount of compensation awarded

Decision perspectives

Since 2022, Ukraine has been developing a practice where courts satisfy claims for damages from the Russian Federation, arguing against the Russian Federation’s judicial immunity on the grounds of its gross violation of international law.

Recognition and enforcement of a decision

A significant drawback of Ukrainian court decisions is the lack of a practical mechanism for their recognition and enforcement, and therefore for the recovery of compensation due to the apparent judicial immunity of the Russian Federation.

Term – several months

Mechanism: International Register of Damage Caused by the Armed Aggression of the Russian Federation (Register)

Grounds

The Register was established pursuant to Resolution CM/Res (2023)3 “On the Establishment of an Enlarged Partial Agreement on the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine” at the Summit of Heads of State and Government of the Council of Europe, held on 16-17 May 2023 in Reykjavik, Iceland.

The Register is part of the International Compensation Mechanism, which provides for the establishment of a Claims Commission and a Compensation Fund.

The Register does not review the merits of the claims received, does not assess their value, and does not make any payments. These will be the functions of the Commission and the Compensation Fund.

Type of damage to be compensated

The application to the Register may be submitted by legal entities (including foreign entities), individuals, and the state of Ukraine (including state authorities and state-owned enterprises).

The initial launch of the Register is focused on only one category – damage or destruction of residential real estate of individuals, so only individuals can apply for it.

Subsequently, redress will be available in respect of:

• deprivation of health and life, torture
• economic losses, loss of property and income
• the forced displacement of persons.

Legal entities may file claims for damage or destruction of property and other assets, claims for compensation for other economic losses, such as loss of control over property in the temporarily occupied territories, relocation (evacuation) of business, and humanitarian aid costs.

Damage caused after 24 February 2022 on the territory of Ukraine within its internationally recognised borders, which also extend to its territorial waters, is compensated.

Application procedure

An application is submitted through the Diia portal at no cost.

Applicants will be required to provide information identifying them along with evidence to prove the respective loss, damage or injury. The Register will cooperate with the Government of Ukraine to provide support to claimants in submitting their claims.

There are no time limits for submitting an application to the Register. It is presently unclear when the next stages of the mechanism will be created.

Mechanism: National programme “eRestoration” (eVidnovlennia)

Grounds

The Law of Ukraine “On Compensation for Damage and Destruction of Certain Categories of Real Estate as a Result of Hostilities, Terrorist Attacks, Sabotage Caused by the Armed Aggression of the Russian Federation against Ukraine and the State Register of Property Damaged and Destroyed as a Result of Hostilities, Terrorist Attacks, Sabotage Caused by the Armed Aggression of the Russian Federation against Ukraine”.

Types of property for which compensation is provided and assessment of the amount of compensation

The programme provides compensation for property destroyed or damaged after 24 February 2022, located on the territory of Ukraine, where no active hostilities are taking place and not in the temporarily occupied territories.

• Single-family houses,
• Manor houses, summer houses, cottages
• Blocked houses with separate apartments with their own entrance
• Apartments in apartment buildings, but only if the common areas are not damaged.

The amount of compensation is determined by the Commission for consideration of issues related to compensation for destroyed real estate separately for each damaged object in accordance with a special checklist for determining the amount of compensation for the restoration of a damaged real estate object, which is filled in based on the results of the inspection of such an object. The amount of compensation will not exceed UAH 500,000.

Application procedure

The application is submitted through the Diia portal at no cost.

Submission of the application is preceded by the submission of an information notice on damaged and destroyed real estate through Diia, or through an administrative service centre. The procedure for submitting such a notification is established by the CMU’s Resolution of 26 March 2022, No. 380.

It is important that the damaged object is registered in the State Register of Property Rights to real estate.

Term of obtaining compensation – up to 1 year

Conclusions and practical aspects

Investment arbitration

• Text possibility of obtaining the fullest amount of compensation for the damage caused
• a high probability of recognition and enforcement of a judgment based on international conventions
• the possibility of attracting investment funds (TPFs) that finance participation in investment arbitration, covering the costs of such arbitrations in exchange for a share of the proceeds of future arbitration awards
• terms of 3 to 5 years
• the cost ranges from EUR 3.5 to 6.5 million

Ukrainian courts

• a claim for compensation for damage caused by the Russia’s armed aggression is filed with a Ukrainian court free of charge
• since 2022, a practice has been established to satisfy claims for compensation for damage caused by the war
• the lack of a practical mechanism for the recognition and enforcement of Ukrainian court decisions, given the apparent judicial immunity of the Russian Federation

International Register of Damage Caused by Russia’s Armed Aggression Against Ukraine

• submitting an application is cost-free through the Diia portal
• when submitting an application to the Register, applicants must submit evidence that identifies them and evidence that confirms the existence of the given harm
• this represents only the first step in the creation of the International Compensation Mechanism; accordingly, it will take some time before the mechanism is fully operational
• damage caused only after 24 February 2022 on the internationally recognised territories of Ukraine is compensated
• at present, only individuals can file claims for the destruction of residential property; however, later it will be possible to file claims for compensation for economic losses, income and other property
• when deciding on the admissibility of an application, the Register Board may take into account decisions by national or international courts, but is not obliged to do so.1 This means that the submission of an application and participation in investment arbitration do not interfere with each other and are parallel processes

National programme “eRestoration” (eVidnovlennia)

• submitting an application is cost-free through the Diia portal
• when submitting an application to the Register, applicants must submit evidence that identifies them and evidence that confirms the existence of the given harm
• this represents only the first step in the creation of the International Compensation Mechanism; accordingly, it will take some time before the mechanism is fully operational
• damage caused only after 24 February 2022 on the internationally recognised territories of Ukraine is compensated
• at present, only individuals can file claims for the destruction of residential property; however, later it will be possible to file claims for compensation for economic losses, income and other property
• when deciding on the admissibility of an application, the Register Board may take into account decisions by national or international courts, but is not obliged to do so.1 This means that the submission of an application and participation in investment arbitration do not interfere with each other and are parallel processes

Conclusion

When assessing the above mechanisms, investment arbitration claims appear to be the most effective way to compensate for damage, as there are virtually no restrictions on the damage for which compensation can be obtained, and a high probability exists of the recognition and enforcement of this decision in a foreign country where the assets of the aggressor state are located. Despite the significant costs of investment arbitration and the lengthy timeframes, an investment arbitral award can be enforced in almost any jurisdiction. The high cost of investment arbitration can be covered by TPFs, which have recently shown an increasing interest in financing investment claims. Ultimately, the aggressor state (the Russian Federation) will almost certainly seek to return to a civilised framework of global relations. Therefore, in order to restore international relations and the country’s position in the international community, Russia will need to comply with the decisions of international arbitration tribunals.

Source: https://www.lexology.com/library/detail.aspx?g=85c948fb-c22d-4102-b9d3-24f8be1d913c&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2024-06-07&utm_term=