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Spinning a coin: Dispute Settlement Mechanism under Free Trade Agreement or the WTO?

The Ukrainian Journal of Business Law
Vol.9 #1-2 January - February 2011

Andrii Zablotskyi, associate with Volkov and Partners
Iryna Polovets, associate with Volkov and Partners
Tetiana Kheruvimova, associate with Volkov and Partners

This article addresses the dispute settlement mechanism under free trade agreements which have flourished in the last few decades, and considers their potential as an effective substitution of WTO dispute settlement mechanism and a tool for reducing potential conflicts of norms and jurisdictions

Currently, the European Union has provided the boldest and perhaps most advanced example of regionalization in the world [1]. Within the framework of the WTO, the European Union has become a major proponent and user of the approach to stipulate specific dispute settlement mechanism as a solution of trade disputes. A fundamental shift occurred with the conclusion of the free trade agreements with Mexico (2000), Chile (2005) and Korea (2010), which incorporate a dispute settlement mechanism. Since 2000, the EU has sought to introduce similar procedures to all ongoing free trade negotiations. Negotiations on the free trade agreement between the European Union and Ukraine (hereinafter — the EU-Ukraine FTA), which began in 2007, are still ongoing. Although information about the course of these talks and their current state is scarce, we also made an attempt to analyze the transformative power on Ukraine in the sphere of dispute settlement taking into consideration previous EU experience...


Ukraines grain export commitments under national legislation and WTO law

Yurydychnyi zhurnal
(Law Magazine) 1 (103) 2011

Tetiana KHERUVIMOVA, Associate with Volkov and Partners Law Firm
Iryna POLOVETS, Associate with Volkov and Partners Law Firm

Definition of “Export restraints”

Specificity of the export restraint institute, hard-to-get initial information, exporting entities trying their best to keep information on conflicts arising during their activity confidential made investigation of the legal aspects of the respective Ukrainian institute unattractive. Analysis of scientific legal literature devoted to the separate aspects of foreign economic activity restraints, showed that there is lack of publications concerning legal regulation issues as for export restrictions.

Presently, national legislation lacks determination of ‘export restraint’ term. First legal definition of this term was provided in the case on subsidies and export restrictions filed against USA. The issue of United States - Measures Treating Exports Restraints concerned conformity of the US laws with the Agreement on Subsidies and Countervailing Measures [1]. Therefore, the term was defined by the Panel as “a border measure that takes the form of a government law or regulation which expressly limits the quantity of exports or places explicit conditions on the circumstances under which exports are permitted, or that takes the form of a government-imposed fee or tax on exports of the products calculated to limit the quantity of exports.” [2]...


Ukraine: the Most Recent Novelties in Export-import Regulatiom of Sugar Market

Ukraine and the World Trade Organization

Andriy Zabolotskyy, lawyer at the Volkov & Partners

The Ukrainian market of agricultural products becomes increasingly overregulated. Following the imposing the quota system on grain exports, the Cabinet of Ministers goes on by planning to make amendments to the Procedure for distributing the tariff quota on imports of raw cane sugar into Ukraine.

Talks about some possible amendments to the above Procedure and preparation of a respective Draft Regulation of the Cabinet of Ministers of Ukraine have been going on since as far back as early September 2010. As per statements by representatives of the Ministry of Economy of Ukraine, the main aim of the development of that document has been the harmonization of the procedure for distributing the quota with the commitments undertaken by Ukraine when acceding to the WTO.

Before the country’s accession to the WTO, the distribution of the quota on imports of raw cane sugar was carried out by means of auctions. As such a mechanism for distribution of quotas is in breach of the relevant WTO norms, among other, Articles II and VIII of GATT 1994, as well as Article 4 of the Agreement on Agriculture, Ukraine has committed not to use any mechanism of conducting auctions for distribution of the quota on import of sugar starting from the date of its accession to the WTO. In addition to the above, the item 136 of the Report of Working Party on the Accession of Ukraine to the WTO explicitly states that Ukraine would adopt a system of allocating raw cane sugar quotas on a first-come first-served basis within three years of the date of its accession...


Appropriateness test

Ukrainian Lawyer
9-10 (93-94) September-October 2010

Roman Drozhanskyi, Volkov and Partners Law Firm

Lately, Julian Assange, previously hardly known by anyone, has broken into the information realm acting in a way that provoked a blow up in the world of diplomacy and journalism. Particularly, the newspapers all over the world published correspondence between American embassies and the State Department on different issues: from special features of French president’s character to course of acts of war in Afghanistan.
Such vast information «leak» has been possible owing to the nature of the Internet, where the freedom can hardly be restricted even by the American government. Official and off-the-record ‘witch-hunt’ by the US triggered off sudden upswing in hacker’s, journalists and average people, whose efforts transformed the documents disseminated by Wikileaks into ever existing in the network.
In my opinion, information of this kind, disclosed through the Internet, has the adverse effect, as it can hinder rather then help American – and not only American – diplomatic officials to work efficiently. Free communication with the sources and possibility to hand down this information to the governments is all part and parcel of the diplomatic duties, and it is hardly possible to imagine international relation on the hole without it.
However, the positive result of the Wikileaks scandal is that it has made possible to watch a reaction of the western governments who used to be proud of freedom of speech as the main achievement of their legal systems. As ever, some governments failed the test for response adequacy and showed hypocrisy – awaited by some critics – where the freedom of speech was used against them...


Grain quotas in Ukraine: further developments

Vol. 20
November 2010

Iryna Polovets and Tetiana Kheruvimova are Associates with Volkov and Partners

Earlier we have already covered the situation occurred to grain export quotas in Ukraine following the enactment of Decree No. 938 “On confirmation of quota volumes for separate varieties of agricultural products, which exports to be subject to licensing till December 31, 2010” (see: “Ukraine: grain export restriction and WTO rules”). The target of this article is to enlighten readers on the developments after this regulatory act has entered into force.
Particular attention should be given to the situation occurred to quotas allocation procedure. According to the said Decree No. 938 a business entity involved in foreign economic activity has the right to participate in quotas allocation only in case it has obtained a conclusion from the Ministry of Agrarian Policy of Ukraine that certifies traders’ capacity to export agricultural products. As the procedure for issuance of such conclusions originated only on October 28, 2010 that made it, thus, impossible to issue such deeds to grain traders within the period of Oct 20 - Nov 3, the Ministry of Economy announced about the recurrent acceptance of applications till November 18, 2010...


Jurisdictions with Corporate Paradise

Yuridicheskaia Praktika
47 (674) dated 23/11/2010

Focus: Advantages to Use Foreign Companies in Cross-Border Transactions

M&A cross-border transactions have for long become customary in the Ukrainian business and law practices. Plenty of both big and small foreign investors acquire assets in various Ukrainian industries, including construction and service sectors.
Lots of lawyers have already gained grounds in advising in such deals on the sell-side as well as on the buy-side. At the same time, the deal structuring to optimize tax burden and corporate structure is still the issue of concern in the legal community.
One of the most relevant issues in course of cross-border transactions is the use of foreign jurisdictions to ease tax burden or circumvent restrictions imposed by the Ukrainian corporate legislation. The most frequently used for those purposes are the companies registered within the jurisdictions of Cyprus, the British Virgin Islands, the United Kingdom, Switzerland, and the Netherlands etc...

Roman Drozhanskyi is a Partner in Volkov and Partners Law Firm


Trade and Environment: WTO Experience, Lessons for Ukraine

The Ukrainian Journal of Business Law
Vol.8 #10 October 2010

Iryna Polovets
is an attorney assistant with Volkov & Partners

Tetiana Kheruvimova
is an attorney assistant with Volkov & Partners

Interest in the relationship between the environment and trade goes back at least to the early 1970s, when the linkage between both WTO policy areas was established. The issues were then more narrowly framed and discussion was focused on whether pollution abatement costs in industry would significantly alter the patterns of international trade and investment. The level of priority of trade and environment issues increased recently and now it is time for every WTO Member to address the crucial aspects of the trade and environment agenda. The construction of effective national policies should be based on having in view the experience of WTO institutions (CTE, Ministerial Conference) and best practice of the Appellate Body and Panels. Furthermore, environmental issues should be one of the top priorities in negotiations pending between Ukraine and the EU...


Compulsory Licensing in the WTO: Providing Access to Affordable Medicines

The Ukrainian Journal of Business Law
Vol.8 No9 September 2010

It is no secret that Ukraine leads the list of countries with the highest HIV and tuberculosis case rates in Europe. According to the World Health Organization's Global Tuberculosis Control Report 2009, Ukraine had an estimated 46,916 tuberculosis cases in 2007. In the same vein, as UNAIDS reports, approximately 1.5 million people are living with HIV/AIDS in Eastern Europe and Central Asia, 90% of whom live either in the Russian Federation or Ukraine[1]. The next few years will be crucial in the fight against AIDS and tuberculosis, and the trends of epidemic development depend on governmental efforts to overcome the diseases. In this gear the key target of national health policy is to develop a successful drug supply management system to combat fatal epidemics.
One of the possible tools to ensure people have the necessary affordable medicines is to exercise the government's right to grant compulsory licenses, as envisaged by the WTO agreements as well as by national legislation.

Iryna S. Polovets, is an attorney assistant at Volkov Koziakov & Partners
Tatiana O. Kheruvimova, is an attorney assistant at Volkov Koziakov & Partners


AMCU investigation on anticompetitive concerted actions: legal counsel role

Yuridicheskaya praktika
18 (645) dated 04/05/10

Sergii Koziakov, Senior Partner of Volkov Koziakov and Partners
Mykola Podpalov, Paertner of Volkov Koziakov and Partners

The Law of Ukraine, like the law in many other countries, makes provisions for variety of administrative investigations that per se are quasi-judicial procedure.
Following the results thereof, special financial penalties may be applied along with AMCU requirements to take specific additional organizational and administrative actions.
Legislator differentiates ‘concerted actions’ from ‘anticompetitive concerted actions’. The former is defined as conclusion by the subjects of management of the agreements in any form, taking by associations the decisions in any form as well as any other agreed competitive behaviour (activity, inaction) of the subjects of management.
A term ‘anticompetitive concerted actions’ is defined in the Law of Ukraine “On Protection of Economic Competition” and means concerted actions, which led or may lead to non-admission, elimination or limitation of competition. Notably, not all concerted actions are anticompetitive. Thus, the Law prohibits just concerted actions that are considered anticompetitive...



Lawyers-losers in world literature. On the famous writers who used to be lawyers

Yuridicheskya praktika
45 (620) 10/11/09

Once, having discovered a phenomenal author, Mark Aldanov, to myself, it was a real surprise to learn he was a student of Law Department in Kyiv University. My next thought was what’s wrong with looking though the biographies of famous and not widely known authors for whether they were lawyers? And if true, then what kind of lawyers were they? It turned out that plenty of outstanding, eminent, famous and just mature writers used to be lawyers-“losers”...

Sergii KOZIAKOV, attorney at law, senior partner, Volkov, Koziakov and Partners

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