Energy & Natural Resources
On 6 April 2016, the Cabinet of Ministers of Ukraine, through its Resolution No. 277, significantly revised the Procedure for the Issuance of Special Permits for Use of Mineral Resources (itself approved by Resolution No. 615 from 2011). Resolution No. 277 was intended to plug certain regulatory loopholes that allowed the misuse and circumvention of the license issuance tender process.
Whilst we should certainly commend efforts to reduce the footprint of corruption, we also should be mindful of certain “collateral damage” that changes in legislation inevitably bring.
In particular, a very common investment strategy used in most markets — the “farm-in / farm-out” — is essentially now dead in Ukraine.
A farm-out (farm-in) is essentially an agreement between a license holder and a third party which permits that third party to explore and drill in a specified area pursuant to a specific set of contractual obligations.
As implemented in Ukraine, a farm-out arrangement generally took two forms: a joint activity agreement or a transfer of a license to a Ukrainian subsidiary special purpose vehicle to allow for a joint venture arrangement.
With a gas royalty rate of 70%, joint activity agreements are no longer commercially attractive.
The transfer of a license has also now been prohibited by Resolution No. 277.
That means that a Ukrainian gas producer cannot effectively seek financing for a selective part of its asset portfolio and nor can an investor cherry-pick one license or field over another in a Ukrainian producer’s portfolio.
A new revised transparent tender process for new licenses is commendable, but this does not help those private companies that already went through the auction process and are simply looking for ways to bring in much-needed financing. New ideas are needed.
CMS Cameron McKenna consistently proves its market leading positions with a diverse track record of prominent projects in the sector. Apart for being known for its production sharing agreements (PSA) work of the last few years, the office has of late been seen in supporting joint ventures and M&A, compliance, cross-border/wholesale and retail trading, regulatory, finance of municipal projects. Throughout 2015 the Kiev team became increasingly involved in contentious energy work, most notably representing JKX Oil & Gas plcin international arbitration proceedings and enforcement litigation brought against Ukraine under the Energy Charter Treaty over gas market restrictions and punitive taxation measures imposed by Ukraine. The firm also set a precedent of successful vindication of independent natural gas producers’ rights when it challenged a government resolution on the monopolistic right of state-owned Naftogaz of Ukraine to sell gas to the biggest industrial consumers and state-owned companies. The traditional focuson the renewable market remains. Partners Vitaliy Radchenko and Olexander Martinenko are known for their established presence in the sector, with growing activity on the dispute front. The energy team of Daniel Bilak, Olga Belyakova, Volodymyr Kolvakh, Anna Antipova covers a wide range of matters.
Baker & McKenzie stands out for complex advisory for both local and international majors, and extensive track record for multi-jurisdictional energy deals. The Kiev practice benefits from involvement of experienced partners from the CIS and EMEA regions into cross-border projects. The 8-lawyer team, as led by three partners, is notably active throughout mining, oil and gas trading and petrochemicals, LNG, pipelines and distribution networks. The past year was outstanding for involvement in a number of strategic projects for the country and increasing presence on the dispute front. The energy, mining and infrastructure practice group is headed by managing partner Serhiy Piontkovsky. In a recent highlight the team, as led by partner Olyana Gordiyenko, acknowledged for her many years of experience of cross-border corporate/M&A in the oil & gas industry, acted as legal advisor to the EBRD on the corporate governance reform of Naftogaz, the biggest state-owned Ukrainian company in the fuel and energy sector. Partner Ihor Olekhov focuses onenergy and renewable energy sources, PSAs, various aspect of banking and finance transactions, project finance deals in the renewable energy sector, electricity market and energy efficiency projects.
Renowned for its consistent involvement in sound PSA projects, Asters has been regularly enlisted for sectoral corporate and M&A mandates, project related advice and regulatory in oil & gas, electricity, renewable energy markets. The highly-reputed team is especially busy, with its traditional client base consisting of big multinationals, investors and financial institutions. The client list contains, among others, Geo-Alliance, Karpatygaz and the OECD. In the past year, apart from traditional transactional performance, Asters deepened its renewable side. In a recent highlight, the firm advised GESS Consulting Ukraineon implementation of a number of large-scale energy efficiency and renewable energy projects in several Ukrainian cities; acted for KARA Energy Systems in connection with the launch of cooperation with the Ukrteplo group of companies, a leading Ukrainian biomass heat generation company. The team is led by two partners, Armen Khachaturyan and Tamara Lukanina. Yaroslav Petrov, counsel, presents renewable and dispute work.
The past year has been crucial for the Kiev office of Dentons. The team dramatically expanded its clientele with both local and international market players and gained new mandates for handling cross-border energy transactions and complex projects. In addition to its established position in upstream oil and gas and nuclear energy, Dentons increased its presence in the renewable and unconventional hydrocarbons fields, and announced the arrival of Maksym Sysoiev, who, among others, is an experienced practitioner in this area and earned the references of peers. The firm recently advised the OECD on preparation of a road map on implementation of bioenergy projects in Ukraine. The practice is headed by the global partner in the Kiev and New York offices Myron Rabij, who is a US attorney.
In its client representation in 2015, Sayenko Kharenko advised on corporate and regulatory, competition, debt restructuring and dispute resolution, with a clear focus on energy efficiency projects. The firm advised the EBRD on the improvement of regulations governing Energy Performance Contracting (EnPC) for public buildings and implementation of the Energy Service Company (ESCO) concept in Ukraine; and traditionally acted for NEFCO in relation to project financing to Ukrainian enterprises and municipalities aimed at implementing energy-saving technologies. In terms of energy privatization opportunities, the team currently provided legal support to a potential buyer in relation to the anticipated privatization of Centrenergo. The M&A team acted as Ukrainian legal counsel to Infracapital on the acquisition of utility company GGE a.s. from Grafobal Group, a large European energy sector company, and pre-completion restructuring of GGE’s Ukrainian assets. On the dispute side, it advised on force majeure and regulatory issues, and regulatory specifics of foreclosure on the mortgaged property located in the ATO area. Partners Nazar Chernyavsky, Vladimir Sayenko, Tatyana Slipachuk, counsel Konstantin Gribov, and managing associate Yuriy Draganchuk are the core members of the firm’s energy practice.
Arzinger stands out on the market for its strong regulatory capabilities and established presence in international arbitration. The team’s clients include international energy players seeking broad-based support in the country, including mining and development, licensing and contractual issues, project finance, public procurement, acquisitions. Arzinger is also vivid in power plant projects and the renewable sector. In 2015 the international arbitration practice, headed by partner and head of the West Ukrainian branch Markian Malskyy, was boosted by a number of investment arbitrations. Maryna Ilchuk was endorsed during the poll for advice in renewable energy projects. The practice is supervised by the firm’s managing partner, Timur Bondaryev.
The new ambitious market player AEQUO significantly boosted its clients’ portfolio over the past 12 months. The team has been enlisted to handle high-profile and high value cross-border arbitrations of national importance. This multi-faceted practice covers competition, banking and finance, M&A, regulatory advice. AEQUO assisted international experts on advising the regulator on development of new gas tariff methodology in line with Ukraine’s obligations under the Energy Community Treaty for implementing the Third Energy Package. The main points of contact are Denis Lysenko, managing partner, and Anna Babych, corporate and M&A partner. Counsel, Pavlo Byelousov is dedicated to dispute resolution work.
Redcliffe Partners (prior to 1 December 2015 — the Kiev office of Clifford Chance) gained sophisticated expertise acting on deals in up, mid and downstream business as well as energy and renewable energy projects. In 2015 the team advised the world’s largest independent energy trader on regulatory law issues in the energy sector; an independent upstream oil and gas company on conducting legal due diligence relating to potential investment in Ukraine; General Electric on Ukrainian regulatory and competition law matters relating to the USD 13.9 billion acquisition of Alstom’s power business. The firm is traditionally visible on finance and debt restructuring deals in the energy sector, and advised the EBRD on preparing the financing mechanism for the Ukrainian Residential Energy Efficiency Financing Facility. The team currently also acts for international lenders relating to the restructuring of financial obligations of Ukrainian energy sector borrowers. Another noteworthy feature is involvement in efforts to shape policy. Partners Olexiy Soshenko, Dmytro Fedoruk, and counsels Dmytro Orendarets as well as recent hire Zoryana Sozanska-Matviychuk leads Redcliffe’s energy projects.
Antika Law Firm is primarily known for its extensive work in PSA projects over the last couple of years. The three-partner team is also among the most vivid legal advisors in energy saving, energy efficiency, EPC, and implementation of utilities projects. That is, it is often enlisted by the World Bank and EBRD. Among the latest projects of the firm is representing International Resources Group in a USAID project on development and implementation of the ESCO mechanism in the public buildings sector in Kiev. The firm recently represented Esan Minerals Ukraine Ltd, a Turkish company working in the subsoil use sector, in their day-to-day operations in Ukraine. Among the dispute highlights of the firm are debt recovery under lease and sublease agreements, the sale and purchase agreement as well as disputes regarding license agreements, tax and customs disputes, damage recovery. Alexey Kot is known for landmark PSAs and Joint Operating Agreement projects in 2012-2014 as well as for his corporate work in the sector. Alexander Burtovoy commands extensive project finance experience in energy efficiency and saving projects. Dispute work is performed by litigation partner Andrey Kuznetsov, including valuable input by senior associate Maxim Korchagin.
Ilyashev & Partners climbs to being a widely-referenced firm for its wide scope dispute resolution work. Its list of clients includes UkrGaz, UkrGazEnergo, LetterOne Group, Black Iron Inc., Hydro Energy Holding, Group DF. In March 2015 the firm enhanced its network of offices by establishing a branch in Moscow. The landmark assignment of the firm is its representation of UkrGazEnergo in two major disputes with National JSC Naftogaz of Ukraine. Another litigation of note is representation of RGK Trading (Group DF) in a USD 62 million dispute with Odessa Port Plant on payment recovery for supplied gas. Milkhail Ilyashev, managing partner, heads the practice.
Avellum, the prominent Ukrainian corporate and finance team, is at the forefront of complex transactions. In the past year the firm received instructions across various fields, namely mineral exploration and production, petroleum and gas, power generation, electricity distribution. The firm guided by managing partner Mykola Stetsenko, is a preferable legal counsel to the major local industrial heavyweights. The team of finance partner Glib Bondar advised DTEK and Ferrexpo on the exchange offers of their outstanding notes; and advised the EBRD on 3-year USD 300 million guaranteed renewable facility to NJSC Naftogaz for gas purchases from European contractors.
Egorov Puginsky Afanasiev & Partners advises large CIS-based and international companies on the operations of the wholesale and retail electricity markets, as well as on acquisitions and sales of energy assets. In 2015, the team advised a major European gas transformation company on aspects of Ukrainian law of contemplated natural gas reverse supplies to Ukraine from the EU; and advised one major international oil company in connection with contemplated joint activity in the Ukrainian retail market for refined oil products. The Kiev team led by managing partner Serhii Sviriba advised and supported a major supplier of petroleum products during tax amnesty proceedings. The office is also active on the front of finance and restructuring mandates guided by Roman Stepanenko. Partner Markiyan Kliuchkovskyi is in charge of international arbitration practice. Among others, the client base includes Iskander Energy Corporation, Regal Petroleum, EBRD. Other highlights of the team in 2015 included providing regulatory advice on a greenfield project involving wind-energy production in Ukraine.
The Kiev office of Wolf Theiss has been an important player in the downstream oil field sector. The team advised AMIC Energy Management GmbH on the contemplated acquisition of one of the largest petrol station chains operating under the LUKOIL brand. Apart from its M&A work, the office also acted for one of the largest energy companies in South-Eastern Europe on various aspects of petrol derivatives trading activities on the Danube River. Taras Dumych, Kiev managing partner, is noted by the market for his experience in advising upstream and downstream companies.
Vasil Kisil & Partners performs a scope of investments, acquisitions and project finance workload, and its traditionally strong expertise in energy-related dispute resolution. In 2015 the firm became increasingly active in the renewable sector, electricity supply issues, energy efficiency. The firm is involved in a long-term project advising Hubei Changyang Hongxin Industrial Group Co., Ltd,China’s largest producer of electrolytic manganese on developing a manganese deposit in Ukraine. With its renowned strong litigation capabilities, the dispute team was enlisted for representing Shell in a series of cases initiated by Ukrainian claimants seeking invalidation of decisions of local municipalities approving the PSA and agreement itself; as well as in tax disputes regarding the right to an automatic VAT refund. Oleg Alyoshin, partner, has a focus on international arbitration for oil and gas clients; and Alexander Borodkin, partner, covers real estate, construction, infrastructure, exploration and development, with a recent focus on alternative energy.
The Kiev office of DLA Piper enjoys the capabilities of the global network andspecific industry experience that includes planning, development, financing and permitting, concession as well as legislative, political and regulatory issues. The first Ukrainian Gas Stock Exchange was among the landmark projects set up. The team is regularly enlisted for advising on arranging financing to big energy company DTEK and recently represented a shareholder of a business in the gas sector of Ukraine with regard to sale of part of its share to DTEK. Oleksandr Kurdydyk, partner, is the main contact.
AstapovLawyers* international law group operates alongside its offices in Ukraine, Russia and Kazakhstan, which empowers the firm for cross-border mandates. Under the guidance of corporate and M&A partner Oleh Malskyy, the firm handled representation of Rolls-Royce in a deal with Siemens on the USD 1.32 billion acquisition of gas turbine and compressor business; and provided competition law advisory in Ukraine for RWE AG and in sale of its oil and gas production unit to the investment vehicle set up by Russia’s Alfa Group conglomerate. Among the recent clients’ assignments worth mentioning are corporate and privatization issues, advice concerning the vague status of Crimea, regulatory matters, pricing and distribution, sanctions.
FCLEX is noted for its extensive advisory to mining and processing enterprises, energy and generating companies. The largest iron ore producers in Europe — Ferrexpo — is a standing client, with the largest Ukrainian mining complexes; energy companies: Bilotserkivska and Komsomolska. Among the latest notable projects is advising Ferrexpo Eristovo Mining on the construction of Ukraine’s first trans-regional pulpline for a total amount of USD 500 million. The most significant dispute highlight is the dispute with local government on cancelling the decision banning development of Ferrexpo Belanovo Mining. The tax team supervised three large-scale tax disputes in the energy sector. The practice involves three partners — Viktor Barsuk, Vyacheslav Kraglevych and Taras Poshyvanyuk.
LCF Law Group, a local firm with stronglitigation capabilities, demonstrated extension of its caseload for oil and gas clients. For example, the team under the guidance of Anna Ogrenchuk, managing partner, represented Boston Industrial Corporation L. P. in an equity stake recognition dispute; and acted for Ares Systems Ltd (Great Britain) in a series of comprehensive corporate litigations. Other significant clients of the group include Arab Energy Alliance UA LLC, Blue River investments Ltd, Carpatsky Petroleum Corporation.
In 2015 the energy practice of Integrites received development incentives with the arrival of the team from Gide Loyrette Nouel. Recent projects encompass natural resources, electricity transactions, oil and gas, as well as renewable energy. Among long lasting projects is acting as counsel to Alpiq Group, a pan- European energy Swiss provider of energy generation and trading, on corporate and regulatory matters. Integrites continued to support international financial institutions on their micro-loans projects aimed at helping Ukrainian small businesses to develop energy efficient products. Renewable energy was another key driver of the practice. Partner Vsevolod Volkov leads the energy team. Recently arrived partners Oleksiy Feliv and Oleh Zahnitko became key practitioners.
The new market player Jeantet, a French international law firm that took over the Kiev office of Gide Loyrette Nouel in November of 2015, received at its disposal the corporate, M&A and antitrust expertise of the dedicated practice team. Led by Illya Tkachuk the team provided advice to ACP Europeacross a number of complex legal aspects including corporate, tax, real estate and regulatory relating to the acquisition of a production unit in Ukraine and its further reconstruction and modernization to a full-scale CO2 production plant. Bertrand Barrier is head of Jeantet Ukraine.
Throughout 2015 EY handled legal and tax support to clients in connection with winding up operations in Ukraine; high-end advice on taxation of upstream oil and gas sector in various jurisdictions; participated in the development of the first National Ukrainian Extractive Industries Transparency Initiative Report for the Ministry of Energy of Ukraine. Partners Vladimir Kotenko and Albert Sych are the core contacts. Peers singled out Andriy Moskalyk (joined EY as a senior associate from Clifford Chance) for his experience inenergy regulatory matters and M&A.
KPMG Ukraine is notably present across issues of corporate and business restructuring, obtaining finance, regulatory work. The Kiev office delivers legal and tax support to Martifer Solar UA in operational business in Ukraine and acted for Andritz Hydro GmbH in setting up a business presence. Oksana Olekhova and Yuriy Katser are guided by tax and legal partner Sergey Popov.
The compact local team of Lexwell & Partners as led by Andrey Kolupaev, is a consistent choice for corporate assignments from CRH Group, Naftogaz Ukraine, VS Energy Group. Notably, the firm advised Naftogaz on restoration of control over PJSC Ukrnafta.
EVERLEGAL, the new Ukrainian team, combined the expertise of its partners gained during their participation in a number of oil and gas projects in recent years. Evheniy Deyneko, ex-counsel in the Kiev office of Clifford Chance and the firm’s managing partner, is referred for extensive corporate and M&A work in the sector. At present the team is guided by partner Andriy Olenyuk, who was engaged in preparing the draft law aimed at ensuring transparency of extraction industries in Ukraine. Currently the firm advises a number of investors on their investments in renewable energy projects.
GOLAW (previously known as Gvozdiy & Oberkovych) handles project finance projects, investments and is seen particularly in the renewable sector, namely solar plant development. Among the firm’s known public long-lasting projects is the Donegal FRS — Krasyliv Bio Power Plant in Ukraine on project finance and corporate matters. The practice is led by partner Sergiy Oberkovych.
Gramatskiy & Partners is a vivid local firm for comprehensive infrastructure and development projects; diverse instructions in the utilities field, electricity production and distribution. Among the recent highlights are legal support of gas equipment modernization by its long standing client SNT Group and a reconstruction project from Promkabel- Electrica LLC. Throughout the past year the team also acted on production and distribution of biofuels and energy saving technologies, and prepared several mining companies for merger. Mykhailo Soroka leads the 6-lawyer team.
Apart from strong tax litigation record for sectoral clients, International Legal Center EUCON headed by Yaroslav Romanchuk, enhanced its representation in the electricity field. Thus, the team handled a series of litigations for Interklas LLC. Key figures are Yevgen Petrenko and Volodymyr Bevza.
WTS Tax Legal Consulting advises on the tax aspects of exploration and development of the minerals deposits, use of the natural resources projects; issues of compliance with mining, land and environmental legislation. Partners Alexander Minin, Maxim Oleksiyuk, Alexander Shemiatkin guide the work in the sector.
The rapidly developing white-collar crime practice at Juscutum, as led by Denys Ovcharov, arranged legal support of DTEK Energy in a case against law-enforcement on releasing a coal cargo detained at Odessa Customs.
Mr. Toms studied at Yale Law School (J.D., editor of the Yale Law Journal), Washington and Lee University (B.A., magna cum laude) Phi Beta Kappa and Cambridge University (Magdalene College — Law Tripos). As an undergraduate, he also studied Soviet Studies for a year at the Institut d’Etudes Politiques de Paris.
Bate C. Toms is the Managing Partner of B.C. Toms & Co, which 25 years ago was the first western law firm to open an office in Ukraine. He has since handled the legal work for many of the most significant transactions in Ukraine, including the largest acquisitions in the oil and gas and agricultural sectors. He recently acted as the sole Ukrainian legal expert for the largest arbitration ever involving Ukraine, at the Permanent Court of Arbitration at The Hague, based on claims for Ukrainian law violations occurring during a corporate raid.
Mr. Toms has also handled the legal work for the first IPO, and many other large IPO’s, for Ukrainian companies, a number of significant loans for Ukraine and the first successful foreign bank (EBRD) led Ukrainian project financing, as well as many of Ukraine’s largest real estate acquisitions and land development and oil and gas projects. B.C. Toms & Co handles the legal work for a number of important agricultural companies. Prior to founding his firm, Mr. Toms was a partner for many years in London at a major multinational law firm.
He has written numerous articles on Ukrainian law and is the principal author of the ICC book “Doing Business with Ukraine”. In addition, he is the Ukrainian editor of the Journal of International Banking Law (JIBL) and the International Energy Law Review (IELR) and is the Chairman of the British Ukrainian Chamber of Commerce (“BUCC”) and the Yale Club of Ukraine.
Agriculture, Energy, Real Estate and Construction and related M&A, Project Finance, Litigation and Arbitration
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