News (#1-2 January-February 2022)


Supreme Court did not legitimize rail operator’s USD 196 million debt to VR Global Partners

The Supreme Court of Ukraine has invalidated the agreement on the resale of Ukrzaliznytsya’s (Ukrainian Railways) debt to Prominvestbank totaling USD 196 million, which was entered into with VR Global Partners.

Thus, the Supreme Court upheld the decision of the Northern Economic Court of Appeal of 16 September 2021. The appeal was filed to invalidate the sales and purchase agreement on the right of claim entered into between PJSC Prominvestbank and VR Global Partners in relation to the loan agreements of JSC Ukrzaliznytsya (Ukrainian Railways).

Debts owed by Southern Railways and Southwestern Railways to Prominvestbank were considered during the proceedings. The loan agreement worth USD 195.25 million was entered into back in 2011-2012.

In February 2019, the bank assigned the rights of claim to VR Global Partners, L.P.

UZ representatives claim that VR Global Partners, L.P. is not a financial institution within the definitions of Ukrainian legislation and may not, therefore, be a creditor.


Detailed information on claim filed by Chinese investors in Motor Sich case

Chinese investors, dealing with Motor Sich, the Ukrainian company, increased their claims against Ukraine to USD 4.6 billion and filed the full text of the claim to arbitration.

The claims under the lawsuit demand the disbursement payment by Ukraine for alleged violation of fair deal standards and the expropriation of investments against the Agreement between the Governments of Ukraine and the People’s Republic of China on the Promotion and Reciprocal Protection of Investments.

The amount of the claim is USD 4.59 billion. Back in 2020 in the demand for arbitration proceedings, the approximate amount of claims ran to USD 3.6 billion.

The plaintiff in the arbitration proceedings is not Skyrizon, but 6 Chinese citizens. Earlier, the Chinese office of the Global Times reported that the claim was filed by Skyrizon. A reminder that the newspaper is part of the official media of the Chinese Communist Party.

The Hague in the Netherlands was chosen as the place of arbitration. The governing body would be the Permanent Court of Arbitration, The Hague.

A reminder that earlier the Chinese investor dealing with Motor Sich claimed that statements made by the Ukrainian authorities on the possible nationalization of the enterprise were highly inappropriate and threatened to submit new claims.

By his decree, President Volodymyr Zelensky enacted the decision of the National Security and Defense Council of 28 January 2021, which sets special economic sanctions against Chinese investors dealing with Motor Sich.

The US Department of Commerce has imposed sanctions against the Chinese company Skyrizon, an investor in PJSC Motor Sich, by announcing that it is a threat to US national security.

According to reports, two Chinese companies, namely Skyrizon Aircraft and Xinwei Technology Group, were going to buy a stake of more than 50% in Motor Sich. Ukroboronprom remains the holder of a stake of more than 25% in the turbine manufacturer.


Belgian green energy producer appealed to arbitration against Ukraine

SREW N.V., a producer of renewable electricity, has filed claims to international arbitration against Ukraine worth at least EUR 70 million.

This is known from the draft government resolution on the negotiating procedure with regard to  procurement of legal defense services in the case.

The plaintiff insists on a violation of its rights as an investor as set out in the agreement signed between the governments of Ukraine and the Belgium-Luxembourg Economic Union on Promotion and Reciprocal Protection of Investments.

Belgian SREW N.V. is an investor in LLC Dnipro-Bugski Wind Station, Kherson Region, whose capacity is 110 MW.

The company has lodged an appeal to arbitration as it believes that Ukraine “unjustifiably and inconsistently corrupted legislative regulation in the field of renewable energy”. Namely, it relates to the introduction of a demand to pay the book value in full, an additional reduction in the “feed-in tariff”, and an increase in the share of cost reimbursement to settle imbalances in favor of SE Guaranteed Buyer.

The plaintiff notes that legal guarantees in the event of legislative amendments do not comply with the provisions in the
Memorandum of Understanding.


EU court revoked decision to impose EUR 1 billion fine on Intel

The Court of Justice of the European Union has revoked the decision taken by the European Commission in 2009 on the imposition of a EUR 1 billion fine on Intel for distortion of competition.

Following its antitrust investigation, the European Commission concluded that during the period of 2002-2007, Intel created competitive barriers by offering computer manufacturers compensatory discounts subject to the acquisition of all or almost all x86 chips for their finished products.

The amount of the fine imposed by the European regulator on Intel was about 4% of the company’s sales revenue in 2008 and was at that time a record fine in EU history.

On 26 January, the Court of Justice of the European Union ruled that “the analysis presented by the Commission is incomplete and is in no way evidence that the discounts in question could have antitrust effects under the applicable legal standard”.

The Court also noted that it could not find the damage caused by Intel’s practices and, therefore, adopted a verdict to revoke the fine imposed by the European Commission.

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