FM AmEmbassy. Investment Climate Statement for Ukraine

14 AUG 98 FM AMEMBASSY KIEV

1. SUMMARY.
UKRAINE HAS PUBLICLY STATED IT SEEKS FOREIGN INVESTMENT, BUT THUS FAR IT HAS FAILED TO CREATE AN ATTRACTIVE INVESTMENT CLIMATE, IN SPITE OF RECENT NUMEROUS BUT UNCOORDINATED STEPS IN THAT DIRECTION. IT HAS RECEIVED A CUMULATIVE FOREIGN INVESTMENT OF APPROXIMATELY USD 2.2 BILLION, AMONG THE LOWEST IN THE REGION. COMPANIES ENJOY UNHINDERED TRANSFER OF PROFITS. THE HRYVNYA HAS MAINTAINED RELATIVE EXCHANGE RATE STABILITY UNTIL RECENTLY, BUT IT HAS SHOWN CONSIDERABLE MOVEMENT IN THE LAST TWO WEEKS, FALLING ABOUT FIVE PERCENT IN RELATION TO THE U.S. DOLLAR. UKRAINE'S CURRENT FINANCIAL UNCERTAINTIES CAST DOUBT ON THE GOVERNMENT'S ABILITY TO PREVENT A FURTHER DEVALUATION OF THE HRYVNYA, BUT THE IMP'S LIKELY GRANTING OF AN EFF MAY STAVE OFF A PRECIPITOUS FALL, AND THE HRYVNYA WILL PROBABLY CONTINUE ITS GRADUAL DEPRECIATION OVER THE NEXT YEAR.
2. SINCE GAINING ITS INDEPENDENCE IN 1991, UKRAINE HAS NOT ENGAGED IN ANY KNOWN ACTS OF EXPROPRIATION, BUT SEVERAL INCIDENTS HAVE CAUSED CONCERN. THE INCIDENCE OF BUSINESS DISPUTE CASES HAS LEVELED OFF, BUT BUSINESSES CONTINUE TO CITE THE LACK OF TRANSPARENCY IN UKRAINE'S BUSINESS ENVIRONMENTS THE PROBLEM OF AUTHORITY (OR LACK THEREOF), TAX ISSUES, AND FAILURE TO IMPLEMENT COURT DECISIONS AS PRIMARY PROBLEMS. UNFORTUNATELY, IN SPITE OF THE POSITIVE FORMAL CHARACTER OF UKRAINE'S INTERNATIONAL COMMERCIAL ARBITRATION LAW, DISPUTE SETTLEMENT REMAINS WEAK IN UKRAINE. ONE PARTIALLY SUCCESSFUL METHOD USED FOR THE SETTLEMENT OF INVESTMENT DISPUTES HAS BEEN EMBASSY APPEAL FOR INTERVENTION AT THE HIGHEST LEVELS OF GOVERNMENT -- CLEARLY NOT A VIABLE LONG-TERM SOLUTION. ANOTHER HAS BEEN THROUGH THE NEWLY-CREATED CHAMBER OF INDEPENDENT EXPERTS.
3. THERE ARE NO KNOWN CASES OF PERFORMANCE REQUIREMENTS BEING IMPOSED ON FOREIGN INVESTORS IN UKRAINE. THE RECENTLY ADOPTED CONSTITUTION OF UKRAINE (JUNE 28, 1996) GUARANTEES THE RIGHT TO PRIVATE OWNERSHIP, INCLUDING THE RIGHT TO OWN LAND. FORMALLY, UKRAINE'S INTELLECTUAL PROPERTY RIGHTS (IPR) LAWS LOOK GOOD, BUT ON MAY 1, 1998, UKRAINE WAS PLACED ON THE SPECIAL 301 WATCH LIST BECAUSE COPYRIGHT PIRACY IS EXTENSIVE AND ENFORCEMENT IS MINIMAL, CAUSING SUBSTANTIAL LOSSES TO U.S. INDUSTRY. THE LEGAL ENVIRONMENT IS FAR FROM TRANSPARENT AND THERE ARE STILL MANY REGULATIONS AND PROCEDURES THAT SERVE AS BARRIERS TO ENTRY FOR NEW BUSINESS ESTABLISHMENTS AND UNNECESSARILY INTERFERE WITH THE CONDUCT OF LEGITIMATE BUSINESS ACTIVITY. FOREIGN INVESTORS REGARD UKRAINE'S COMPLEX AND ONEROUS PRODUCT CERTIFICATION SYSTEM AS ONE OF THE MOST SERIOUS OBSTACLES TO TRADE, INVESTMENT, AND ONGOING BUSINESS.
4. WHILE UKRAINE'S FINANCIAL SECTOR IS IN THE EARLY STAGES OF DEVELOPMENT, THE BANKING SECTOR IS ONE OF THE MOST PROGRESSIVE SECTORS IN UKRAINE. UKRAINE CONTINUES TO REMAIN A CASH ECONOMY, BUT A FEW BANKS HAVE STARTED ISSUING CREDIT CARDS. POLITICAL DEMONSTRATIONS AND DISAGREEMENTS IN UKRAINE RARELY INVOLVE VIOLENCE AND ARE GENERALLY RESOLVED PEACEFULLY. INDIVIDUAL COMPLAINTS OF CORRUPTION WITHIN UKRAINIAN MINISTRIES HAVE ALSO SURFACED. UKRAINE HAS A NUMBER OF BILATERAL INVESTMENT AGREEMENTS WITH VARIOUS COUNTRIES, INCLUDING THE U.S. (1996). THE U.S. EXPORT-IMPORT BANK IS CURRENTLY OPEN FOR SHORT-TERM AND MEDIUM-TERM TRANSACTIONS IN UKRAINE. OVERSEAS PRIVATE INVESTMENT CORPORATION (OPIC) RISK INSURANCE AND DIRECT FINANCING PROGRAMS ARE ALSO AVAILABLE TO U.S. INVESTORS IN UKRAINE. UKRAINE HAS A WELL-EDUCATED AND SKILLED LABOR FORCE, WITH A NEARLY 100 PERCENT LITERACY RATE. UNEMPLOYMENT AND UNDEREMPLOYMENT ARE SEVERE PROBLEMS AND OFFICIALLY UNDERSTATED. THE WORLD BANK ESTIMATES THAT THE INFORMAL ECONOMY ACCOUNTS FOR NEARLY HALF OF ESTIMATED TOTAL GDP (OFFICIAL PLUS UNOFFICIAL ECONOMIES). WAGE ARREARS, OFTEN FOR SEVERAL MONTHS OR MORE, ARE COMMON THROUGHOUT THE ECONOMY.
A.L OPENNESS TO FOREIGN INVESTMENT
5.
THE UKRAINIAN GOVERNMENT OFFICIALLY MAINTAINS THAT IT IS ACTIVELY INTERESTED IN CREATING A FREE MARKET ECONOMY AND OPENLY SEEKS FOREIGN INVESTMENT. HOWEVER, UKRAINE IS STRUGGLING THROUGH ITS TRANSITION, HAS BEEN VERY SLOW IN IMPLEMENTING MUCH NEEDED REFORMS, AND HAS FAILED TO ESTABLISH AN INVESTMENT CLIMATE THAT ENCOURAGES BUSINESS AND INVESTMENT. IN 1996, UKRAINE HAD PUBLICLY STATED A NEED FOR USO 40 BILLION IN FOREIGN INVESTMENT FOR THE NEXT FIVE YEARS. IF TAKEN FROM TODAY'S WEAKENED ECONOMIC BASE, THE AMOUNT IS PROBABLY SIGNIFICANTLY HIGHER. THE KEY INVESTMENT SECTORS ARE LIKELY TO BE TELECOMMUNICATIONS, ENERGY, INFRASTRUCTURE, AGRICULTURE, AND THE CHEMICAL INDUSTRY. HOWEVER, UKRAINE HAS RECEIVED A CUMULATIVE TOTAL OF USD 2.178 BILLION THROUGH THE FIRST QUARTER OF 1998 ACCORDING TO THE STATE STATISTICS COMMITTEE, AMONG THE LOWEST IN THE REGION. BY CONTRAST, HUNGARY HAS RECEIVED APPROXIMATELY USD 16 BILLION AND POLAND USD 20 BILLION.
6. ALTHOUGH THE UKRAINIAN GOVERNMENT WANTS FOREIGN INVESTORS, IT HAS HAD DIFFICULTY ADOPTING AND IMPLEMENTING LEGISLATION THAT WOULD ENCOURAGE IT. IT PASSED A FOREIGN INVESTMENT LAW IN APRIL 1996 WHICH GUARANTEED REGISTERED FOREIGN INVESTORS EQUAL TREATMENT WITH LOCAL COMPANIES AND POSSIBLE SPECIAL PRIVILEGES FOR INVESTORS IN THE FOLLOWING GOVERNMENT-DESIGNATED PRIORITY SECTORS: ENERGY DEVELOPMENT, MILITARY CONVERSION, AGRICULTURE AND FOOD PROCESSING, HEALTH CARE, TELECOMMUNICATIONS, TRANSPORTATION, INFORMATION SERVICES, AND BANKING. FURTHERMORE, THE LAW PROVIDED CERTAIN PROTECTIONS, INCLUDING GENERAL GUARANTEES AGAINST EXPROPRIATION, UNHINDERED TRANSFER OF PROFITS AND POST-TAX REVENUES, AND A TEN-YEAR GUARANTEE AGAINST CHANGES IN LEGISLATION THAT AFFECT THESE BASIC PROTECTIONS. HOWEVER, CERTAIN OF ITS PROVISIONS, IN PARTICULAR, A TAX HOLIDAY, WERE SUBSEQUENTLY SUSPENDED BY PARLIAMENT, THUS DAMPING THE INFLOW OF FOREIGN CAPITAL.
7. IN 1997, PRESIDENT KUCHMA CREATED THE FOREIGN INVESTMENT ADVISORY COUNCIL, WITH FOREIGN COMPANY PARTICIPATION, TO ADVISE THE PRESIDENT ON TRADE AND INVESTMENT MATTERS. ITS FIRST MEETING WAS UNPRODUCTIVE, BUT AFTER ITS SECOND MEETING (APRIL 1998), FOREIGN INVESTORS WERE CAUTIOUSLY OPTIMISTIC THAT THE COUNCIL COULD PRODUCE CONSTRUCTIVE RESULTS. ALSO IN APRIL 1998, ECONOMICS MINISTER SUSLOV SIGNED AN ORDER TO OPEN A "HOT LINE" FOR FOREIGN INVESTORS. UKRAINE HAS PASSED A NUMBER OF LAWS AND REGULATIONS ON LICENSING CERTAIN FOREIGN TRADE TRANSACTIONS, PRIVATIZATION INVOLVING FOREIGN INVESTORS, ENERGY AND MINING INVESTMENT, AND TAXATION OF GOODS AND SERVICES IMPORTED BY FOREIGN INVESTORS. IN SOME CASES, THE INTENT WAS TO ATTRACT FOREIGN INVESTMENT; IN OTHERS, THE LAWS WERE CLEARLY PROTECTIONIST. THE U.S.-UKRAINE BILATERAL INVESTMENT TREATY, WHICH TOOK EFFECT ON NOVEMBER 16, 1996, PROVIDES FURTHER PROTECTION FOR U.S. INVESTORS. HOWEVER, THIS IS REGARDED AS A TOOL OF LAST RESORT AND IS NOT VERY PRACTICAL FOR SOLVING EVERYDAY PROBLEMS THAT BUSINESSES CONTINUALLY FACE. INVESTORS HAVE HAD DIFFICULTIES IN REACHING AGREEMENTS WITH INDIVIDUAL ENTERPRISES, IN PART DUE TO OBSTRUCTIONS AT THE REGIONAL OR LOCAL LEVELS, PROBLEMS WITH TAX ENFORCEMENT, THE UNCERTAIN REGULATORY CLIMATE, AND A LACK OF TRANSPARENCY IN THE LEGAL SYSTEM. INDIVIDUAL COMPLAINTS OF CORRUPTION WITHIN UKRAINIAN MINISTRIES HAVE ALSO SURFACED.
8. PRIVATIZATION OFFICIALLY STARTED IN 1992 WITH THE ESTABLISHMENT OF THE STATE PROPERTY FUND. PRIVATIZATION MET STRONG BUREAUCRATIC AND PARLIAMENTARY RESISTANCE AND WAS SUSPENDED IN 1994. A PRESIDENTIAL DECREE IN NOVEMBER 1994 INSTITUTED A NEW VOUCHER-BASED MASS PRIVATIZATION PROGRAM (MPP). PRIOR TO 1995, 1200 MEDIUM TO LARGE ENTERPRISES WERE PRIVATIZED THROUGH AN EMPLOYEE LEASE-BUY OUT PROGRAM, WHEREBY EMPLOYEES' LEASES WERE CONVERTED TO OWNERSHIP. BEGINNING IN 1996, VOUCHER SALES BEGAN FOR MEDIUM AND LARGE INDUSTRIAL ENTERPRISES. ON AVERAGE, 20 PERCENT OF THE SHARES IN AN ENTERPRISE WERE SOLD ON A PREFERENTIAL BASIS TO EMPLOYEES; ON AVERAGE, 20 PERCENT WERE SOLD TO THE PUBLIC IN EXCHANGE FOR PRIVATIZATION CERTIFICATES; AND THE BALANCE OF SHARES REMAINING WERE THEN SOLD FOR CASH. THERE WAS NO RESTRICTION ON FOREIGN OWNERSHIP. IN A LIMITED NUMBER OF CASES INVOLVING "STRATEGIC ENTERPRISES," THE STATE RETAINED 26-51 PERCENT OWNERSHIP.
9. FOREIGN PARTIES CAN PARTICIPATE IN PUBLIC AUCTIONS, EITHER AS PRIVATE INVESTORS OR THROUGH INVESTMENT FUNDS; COMPENSATION CERTIFICATE AUCTIONS, HELD MONTHLY, WHICH SELL CERTIFICATES INTRODUCED IN 1996 TO COMPENSATE UKRAINIAN CITIZENS FOR THE ADVERSE EFFECTS OF THE HYPER-INFLATION YEARS; AND TENDERS, ONE TYPE INVOLVING ONLY AN UP-FRONT CASH PURCHASE OF A SHARE PACKAGE IN AN ENTERPRISE, AND A SECOND TYPE WHICH ALSO REQUIRES, IN ADDITION TO THE ABOVE, A COMMITMENT FOR FURTHER INVESTMENT IN THE FUTURE. THE PRIVATIZATION PROGRAM ALSO PROVIDES FOR NON-COMMERCIAL TENDERS, USUALLY CLOSED TO INTERNATIONAL INVESTORS, IN WHICH A STRATEGIC INVESTOR COULD BUY A 25 PERCENT (OCCASIONALLY MORE) BLOCK OF SHARES.
10. TO DATE, MANAGEMENT/EMPLOYEE PURCHASES REMAIN THE MOST POPULAR FORM OF PRIVATIZATION, WITH THE MAJORITY OF SHARES IN MEDIUM AND LARGE ENTERPRISES HELD BY EMPLOYEES AND THE PUBLIC. HOWEVER, MOST OF THESE NEWLY PRIVATIZED ENTERPRISES ARE NOT EASILY RESTRUCTURED: THEIR OWNERSHIP IS TOO DIFFUSE; THEIR SHARES ARE NOT ACTIVELY TRADED IN THE SECONDARY MARKET, DISCOURAGING FURTHER INVESTORS FROM BUYING; AND, IN SOME CASES, THE GOVERNMENT RETAINS A 25 PERCENT-PLUS-ONE BLOCK OF SHARES, PERMITTING IT TO BLOCK RESTRUCTURING IF IT CHOOSES. AS A RESULT, THESE ENTERPRISES CONTINUE TO SUFFER FROM A LACK OF INVESTMENT CAPITAL. THOSE FEW THAT ARE RESTRUCTURING ARE AMONG THE MOST ATTRACTIVE FIRMS, AND THEY ARE JUST BEGINNING THE PROCESS.
11. IN 1997 THE GOVERNMENT PLANNED TO RAISE USD 270 MILLION IN PRIVATIZATION SALES, BUT EVENTUALLY SOLD ONLY USD 75 MILLION. THROUGH JUNE OF 1998, THE GOVERNMENT HAS RAISED USD 62.5 MILLION, LARGELY THROUGH THE HUNDREDS OF SHARE PACKAGES OFFERED ON STOCK MARKET EXCHANGES. TOO HIGH AN ASKING PRICE FOR SHARES OFFERED, AN ASIAN-RUSSIAN FINANCIAL CRISIS FALLOUT ON THE UKRAINIAN STOCK MARKET, AND AN ONEROUS INVESTMENT OBLIGATIONS ACCOMPANYING THE SHARE PACKAGES ARE ALL CONTRIBUTING TO THE LOW PRIVATIZATION SALES. TO DATE, THREE FOURTHS OF ALL MEDIUM AND LARGE ENTERPRISES HAVE BEEN PRIVATIZED - 7,500 OUT OF 10,000. THEY ACCOUNT FOR 62 PERCENT OF UKRAINE'S INDUSTRIAL PRODUCTION AND 50 PERCENT OF UKRAINE'S INDUSTRIAL EMPLOYMENT.
12. IN FEBRUARY 1998 PARLIAMENT ADOPTED ITS ANNUAL PRIVATIZATION PROGRAM, WHICH IS ESSENTIALLY THE SAME AS THE 1997 PROGRAM. IT PROPOSES TO COMPLETE THE PRIVATIZATION OF THE REST OF THE MEDIUM- AND LARGE- SIZED ENTERPRISES IN 1998, WITH THE EXCEPTION OF THOSE ON PARLIAMENT'S "NEGATIVE" LIST, AND RAISE USD 500-600 MILLION IN REVENUE. THE GOVERNMENT ALSO PLANE TO CONTINUE THE PRIVATIZATION OF THE AGRICULTURAL SECTOR, INCLUDING 400 STRATEGIC GRAIN ELEVATORS BY 1999. LAND PRIVATIZATION WILL PROBABLY NOT BE ADDRESSED THIS YEAR. THE GOVERNMENT ALSO PLANS TO PRESENT A LAW TO PARLIAMENT IN 1998 ON PRIVATIZING UKRTELEKOM (THE STATE TELEPHONE MONOPOLY). IN GENERAL, THE PRIVATIZATION PROGRAM HAS REACHED A CRITICAL STAGE. THE GOVERNMENT MUST NOW DEBATE WHETHER OR NOT TO SELL ALL OR PART OF ITS SHARE HOLDINGS IN THE MOST STRATEGIC MEDIUM AND LARGE ENTERPRISES. THIS DEBATE, AND THE CONTINUING WEAK STOCK MARKET, HAS SLOWED DOWN THE SALE OF THE STRATEGIC ENTERPRISES. ON A POSITIVE NOTE, THE GOVERNMENT HAS JUST APPROVED A NEW TENDER REGULATION FOR INTERNATIONAL ADVISORS, ACCORDING TO WHICH THE GOVERNMENT WILL HIRE INVESTMENT BROKERS (INCLUDING FOREIGN) TO ADVISE ON, AND CONDUCT, THE SALE OF PARTICULAR STRATEGIC ENTERPRISES.
13. THERE ARE NO DISCRIMINATORY OR EXCESSIVELY ONEROUS VISA, RESIDENCE, OR WORK PERMIT REQUIREMENTS THAT INHIBIT FOREIGN INVESTORS IN UKRAINE. ALTHOUGH THE GOVERNMENT HAS REDUCED MANY SUBSIDIES PROVIDED TO STATE-OWNED INDUSTRIES, THEY STILL REMAIN QUITE SIGNIFICANT. FOR THE MOST PART, THESE SUBSIDIES APPEAR NOT TO BE SPECIFICALLY DESIGNED TO PROVIDE DIRECT OR INDIRECT SUPPORT FOR EXPORTS, BUT RATHER TO MAINTAIN FULL EMPLOYMENT AND PRODUCTION. THE GOVERNMENT DOES NOT TARGET EXPORT SUBSIDIES SPECIFICALLY TO SMALL BUSINESS. IN CONJUNCTION WITH ITS APPLICATION TO JOIN THE WORLD TRADE ORGANIZATION, UKRAINE IS NEGOTIATING TO JOIN THE WTO SUBSIDIES CODE.
A.2 CONVERSION AND TRANSFER POLICIES
14.
THE APRIL 1996 FOREIGN INVESTMENT LAW GUARANTEES FOREIGN INVESTORS THE "UNHINDERED TRANSFER" OF PROFITS, REVENUES, AND OTHER PROCEEDS IN FOREIGN CURRENCY AFTER COVERING TAXES AND OTHER MANDATORY PAYMENTS. THE NEW CURRENCY, THE HRYVNYA, INTRODUCED IN SEPTEMBER 1996, IS TRADED IN UKRAINE AGAINST THE U.S. DOLLAR AND OTHER CURRENCIES AT A RATE OF ROUGHLY 2.1 HRYVNYA PER DOLLAR, AS OF JULY 1998. THE HRYVNYA HAS KEPT ITS EXCHANGE RATE STABILITY WITHIN ITS CORRIDOR (CURRENTLY 1.95-2.25 UAH TO THE DOLLAR) SINCE IT WAS ISSUED, AND THE CENTRAL BANK INTENDS TO MAINTAIN THE HRYVNYA WITHIN THAT CORRIDOR DURING I998. HOWEVER, THE CURRENT FINANCIAL UNCERTAINTIES IN UKRAINE AND INSTABILITY IN ASIAN AND RUSSIAN FINANCIAL MARKETS HAVE MADE MAINTENANCE OF THE EXCHANGE RATE MORE DIFFICULT. UKRAINE'S OWN CURRENT FINANCIAL UNCERTAINTIES CAST ADDITIONAL DOUBT ON THE GOVERNMENT'S ABILITY TO PREVENT A FURTHER DEVALUATION OF THE HRYVNYA, BUT THE IMP'S LIKELY GRANTING OF AN EFF MAY STAVE OFF A PRECIPITOUS FALL, AND THE HRYVNYA WILL PROBABLY CONTINUE ITS GRADUAL DEPRECIATION OVER THE NEXT YEAR.
15. THERE IS CURRENTLY NO LIMITATION ON THE FREQUENCY OF REPATRIATION OF EARNINGS (FORMERLY IT WAS ALLOWED ONLY ONCE A YEAR). IN GENERAL, FOREIGN EXCHANGE IS READILY AVAILABLE AT MARKET-DETERMINED RATES, AND INVESTORS CAN CONVERT THEIR EARNINGS INTO FOREIGN CURRENCY THROUGH THEIR COMMERCIAL BANK AT THE INTERBANK CURRENCY EXCHANGERS (UICEX) DAILY AUCTION. ACCORDING TO THE CORPORATE INCOME TAX LAW, ADOPTED IN NOVEMBER 1997, A 15 PERCENT REPATRIATION TAX IS CHARGED ON TRANSFERS OF FOREIGN CURRENCY ABROAD, EXCEPT FOR TRANSFERS TO THOSE COUNTRIES WHICH SIGNED A BILATERAL AGREEMENT WITH UKRAINE ON AVOIDING DOUBLE TAXATION. IN THE LATTER CASE, THE TAX RATE IS DEFINED BY THE BILATERAL AGREEMENT. CURRENTLY THERE IS NO U.S.- UKRAINE BILATERAL TAX AGREEMENT, PENDING UKRAINE'S ADEQUATE RESOLUTION OF THE ISSUE OF SECRET BANK ACCOUNTS. THERE CURRENTLY IS NO LIMITATION ON THE FREQUENCY OF SUCH TRANSACTIONS. THERE IS NO PARALLEL CURRENCY MARKET IN UKRAINE. THE EMBASSY PURCHASES LOCAL CURRENCY AT THE COMMERCIAL RATE FROM A VARIETY OF LOCAL COMMERCIAL BANKS.
A.3 EXPROPRIATION AND COMPENSATION
16.
SINCE GAINING ITS INDEPENDENCE IN 1991, UKRAINE HAS NOT ENGAGED IN ANY KNOWN ACTS OF EXPROPRIATION OF FOREIGN INVESTMENTS OR PROPERTY. UNDER THE 1996 LAW ON FOREIGN INVESTMENT, A QUALIFIED FOREIGN INVESTOR IS PROVIDED GUARANTEES AGAINST NATIONALIZATION, EXCEPT IN CASES OF NATIONAL EMERGENCIES, ACCIDENTS, OR EPIDEMICS. INSUFFICIENT TIME HAS PASSED TO JUDGE THE ADEQUACY OF THIS LAW IN CASES WHERE COMPENSATION WAS DUE. HOWEVER, SOME INCIDENTS HAVE CAUSED CONCERN: IN ONE CASE, TO MEET THE TERMS OF A GOVERNMENT DIRECTIVE, A UKRAINIAN TELEVISION COMPANY UNILATERALLY ABROGATED ITS 10-YEAR CONTRACT WITH ITS U.S. BUSINESS PARTNER AND REMOVED ITS PROGRAMMING FROM THE AIR.
A.4 DISPUTE SETTLEMENT
17.
AS THE NUMBER OF FOREIGN INVESTMENTS HAS GROWN OVER THE PAST TWO YEARS, SO TOO HAS THE INCIDENCE OF DISPUTES. THE EMBASSY HAS BEEN INVOLVED IN NUMEROUS ADVOCACY CASES ON BEHALF OF AMERICAN INVESTORS WHO HAVE BEEN THE VICTIMS OF A VARIETY OF ABUSES, INCLUDING OVERZEALOUS TAX COLLECTION, SUDDEN AND DRASTIC TARIFF HIKES, ABROGATION OF VALID CONTRACTS AND LICENSES, AND OUTRIGHT CORRUPTION.
18. AT THE HEART OF THE CURRENT DISPUTES IS THE LACK OF TRANSPARENCY IN UKRAINE'S BUSINESS ENVIRONMENT, THE PROBLEM OF AUTHORITY (OR LACK THEREOF), AND NON- IMPLEMENTATION OF DECISIONS. UKRAINIAN LAWS AND REGULATIONS ARE VAGUE AND OPEN TO CONSIDERABLE LEEWAY IN INTERPRETATION, PROVIDING AMPLE CORRUPTION OPPORTUNITIES FOR OFFICIALS AT EVERY BUREAUCRATIC LAYER. XENOPHOBIA ATTITUDES, ESPECIALLY AT THE REGIONAL LEVEL, ALSO PLAY A ROLE AS FOREIGN INVESTORS ARE ALL TOO OFTEN SEEN AS COMPETITORS OF LOCAL FIRMS AND THEIR GOVERNMENT "SPONSORS." THE EMBASSY AND U.S. BUSINESSES RECOGNIZE THAT KEY HIGH-LEVEL UKRAINIAN GOVERNMENT OFFICIALS IN KYIV (DEPUTY PRIME MINISTER TYHYPKO, NATIONAL AGENCY FOR RECONSTRUCTION AND EUROPEAN INTEGRATION CHAIRMAN SHPEK, AND MINISTER OF FOREIGN ECONOMIC RELATIONS AND TRADE OSYKA ARE USUALLY MENTIONED) ARE AWARE OF THE PROBLEMS AND ARE SENSITIVE TO THE NEEDS OF FOREIGN COMPANIES. THE DIFFICULTY LIES IN THE RELATIVE INDEPENDENCE OF ACTION OF THE MIDDLE LEVELS OF THE BUREAUCRACY. THERE ARE SIMPLY TOO MANY OFFICIALS, BOTH IN THE VARIOUS LAYERS OF GOVERNMENT AND AT THE ENTERPRISE LEVEL, WHO HAVE A STRONG, VESTED INTEREST IN THE STATUS QUO AND SEE FOREIGN FIRMS AS A THREAT TO THEIR CURRENT POSITIONS.
19. A COMMON THREAD THAT HAS EMERGED IN SEVERAL INVESTMENT DISPUTES INVOLVING U.S. COMPANIES IS WORTH NOTING. IN THESE CASES, AMERICAN FIRMS, WHICH HAVE OPERATED FOR SEVERAL YEARS IN JOINT VENTURES WITH A UKRAINIAN FIRM, EXPERIENCE DIFFICULTIES ONCE THE JV STARTS SHOWING A PROFIT. ONCE IT BECOMES CLEAR THAT THE FIRM HAS ESTABLISHED ITSELF ON THE UKRAINIAN MARKET, THE UKRAINIAN PARTNER ATTEMPTS, THROUGH VARIOUS ILLEGAL OR SEMI-LEGAL MEANS, TO FORCE THE AMERICAN PARTNER OUT OF THE DEAL. THE UKRAINIAN PARTNER CONTINUES OPERATIONS USING THE JV COMPANY NAME, PRODUCT BRAND NAMES, LOGO, AND OTHER INTELLECTUAL PROPERTY, SOMETIMES RESORTING TO THREATS OF PHYSICAL VIOLENCE TOWARD THE FORMER PARTNER IF THE PARTNER DOES NOT "GO AWAY."
20. IN FEBRUARY 1994, UKRAINE ENACTED AN INTERNATIONAL COMMERCIAL ARBITRATION LAW. THE LAW PARALLELS COMMERCIAL ARBITRATION LAWS SET FORTH BY THE UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW AND IS THEREFORE IN ACCORDANCE WITH INTERNATIONAL STANDARDS. THE LAW COVERS A WIDE RANGE OF INTERNATIONAL COMMERCIAL TRANSACTIONS, REFLECTS THE PRINCIPLES OF EQUALITY AND FAIR TREATMENT OF PARTIES, PROVIDES FOR A SUPPORTIVE RELATIONSHIP BETWEEN THE COURTS AND ARBITRATION TRIBUNALS, AND INCLUDES BASIC PROVISIONS FOR THE FUNCTIONING OF ARBITRATION PROCEEDINGS WHERE THE PARTIES THEMSELVES HAVE NOT MADE NECESSARY PROVISIONS. ACCORDING TO UKRAINE'S LAW ON FOREIGN INVESTMENT, DISPUTES BETWEEN U.S. INVESTORS AND THE STATE ARE TO BE CONSIDERED BY UKRAINIAN COURTS OF ARBITRATION. UKRAINE IS A MEMBER OF THE NEW YORK CONVENTION OF 1958 ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRATION AWARDS.
21. THE FIRST MEETING OF PRESIDENT KUCHMA'S FOREIGN INVESTMENT ADVISORY COUNCIL TOOK PLACE IN OCTOBER 1997, CHAIRED BY PRESIDENT LEONID KUCHMA AND ATTENDED BY NUMEROUS HIGH-LEVEL UKRAINIAN GOVERNMENT OFFICIALS AND CEO'S OF HIGH PROFILE FOREIGN COMPANIES. THE COUNCIL DISCUSSED A NUMBER OF ISSUES OF CONCERN TO FOREIGN INVESTORS IN UKRAINE AND FORMED WORKING GROUPS WHICH WILL PRESENT THEIR RESULTS AT THE SECOND MEETING IN 1998. IN ADDITION, THE PRESIDENT FORMED A COUNCIL OF INDEPENDENT EXPERTS, CONSISTING OF UKRAINIAN AND FOREIGN LEGAL EXPERTS, DESIGNED TO SERVE AS A NON- BINDING ARBITRATION FORUM CAPABLE OF RENDERING AN IMPARTIAL OPINION ON DISPUTE CASES BROUGHT BEFORE IT. IT PROVED EXTREMELY SUCCESSFUL IN RESOLVING ONE U.S. BUSINESS DISPUTE CASE IN 1998.
22. THE GOVERNMENT HAS A DRAFT CIVIL CODE WHICH HAS PASSED THE FIRST READING IN PARLIAMENT. IT REPRESENTS THE FIRST MODERN CIVIL CODE IN YEARS AND CONTAINS MODERN COMMERCIAL LAW PROVISIONS. THE PRESIDENT ALSO SIGNED A BANKRUPTCY DECREE, PUBLISHED IN JULY 1998, WHICH ESTABLISHES A MORE SIMPLIFIED BANKRUPTCY PROCEDURE.
23. UNFORTUNATELY, IN SPITE OF THE POSITIVE FORMAL CHARACTER OF THESE LAWS AND MEASURES, DISPUTE SETTLEMENT REMAINS WEAK IN UKRAINE. MOST U.S. BUSINESSES AVOID THE COURT SYSTEM BECAUSE THE LOCAL AND NATIONAL COURT SYSTEM IS BURDENSOME AND HIGHLY UNPREDICTABLE. EVEN WHEN FIRMS RECEIVE FAVORABLE RULINGS FROM UKRAINIAN COURTS, THERE IS RARELY ANY EFFECTIVE MECHANISM IN PLACE TO ENFORCE THE DECISION. ONE PARTIALLY SUCCESSFUL METHOD USED FOR THE SETTLEMENT OF INVESTMENT DISPUTES HAS BEEN EMBASSY APPEAL FOR INTERVENTION AT THE HIGHEST LEVELS OF GOVERNMENT -- CLEARLY NOT A VIABLE LONG-TERM SOLUTION. ANOTHER HAS BEEN THROUGH THE NEWLY-CREATED CHAMBER OF INDEPENDENT EXPERTS.
A.5 PERFORMANCE REQUIREMENTS/INCENTIVES
24.
THERE ARE NO KNOWN CASES OF PERFORMANCE REQUIREMENTS BEING IMPOSED ON FOREIGN INVESTORS IN UKRAINE. UKRAINE MODIFIED IT FOREIGN INVESTMENT LAW OF 1996, THEREBY REMOVING CERTAIN TAX BREAKS PREVIOUSLY ACCORDED FOREIGN INVESTORS, EQUALIZING TAX TREATMENT OF FOREIGN AND DOMESTIC INVESTORS. THE SCOPE AND THE ABILITY TO MAKE FOREIGN INVESTMENTS WAS ALSO STRENGTHENED. THERE ARE NO TAX BREAKS PROVIDED FOR IN THE NEW LAW, BUT THE FOREIGN INVESTOR IS GRANTED A NUMBER OF GUARANTEES, THE MOST IMPORTANT BEING UNHINDERED AND IMMEDIATE REPATRIATION OF PROFITS. THE NEW LAW DOES AWAY WITH MINIMUM FOREIGN CAPITALIZATION REQUIREMENTS AND THE FOREIGN OWNERSHIP THRESHOLD WAS LOWERED TO 10 PERCENT (FROM 20 PERCENT) OF A COMPANY'S AUTHORIZED CHARTER FUND TO QUALIFY AS A FOREIGN INVESTMENT. IN ADDITION, THE USD 50,000 IN-KIND OR USD 500,000 IN-CASH CAPITALIZATION REQUIREMENT IS NO LONGER NECESSARY. FOREIGN INVESTORS ARE STILL EXEMPTED FROM CUSTOMS DUTIES FOR ANY IN-KIND CONTRIBUTION IMPORTED INTO UKRAINE FOR THE COMPANY'S CHARTER FUND. SOME RESTRICTIONS APPLY, HOWEVER, AND IMPORT DUTIES MUST BE PAID IF THE ENTERPRISE SELLS, TRANSFERS, OR OTHERWISE DISPOSES OF THE CONTRIBUTED PROPERTY FOR ANY REASON.
A.6 RIGHT TO PRIVATE OWNERSHIP AND ESTABLISHMENT
25.
THE CONSTITUTION OF UKRAINE (JUNE 28, 1996) GUARANTEES THE RIGHT TO PRIVATE OWNERSHIPS INCLUDING THE RIGHT TO OWN LAND. IN ADDITION, UKRAINE'S LAW ON OWNERSHIP, WHICH WAS ONE OF THE COUNTRY'S FIRST MAJOR PARLIAMENTARY MEASURES, SPECIFICALLY RECOGNIZES PRIVATE OWNERSHIP AND INCLUDES UKRAINIAN RESIDENTS, FOREIGN INDIVIDUALS, AND FOREIGN LEGAL ENTITIES AMONG THOSE ENTITIES ABLE TO OWN PROPERTY IN UKRAINE. MOREOVER, THE LAW PERMITS OWNERS OF PROPERTY (INCLUDING FOREIGN INVESTORS AND JOINT VENTURES) TO USE SUCH PROPERTY FOR COMMERCIAL PURPOSES, TO LEASE PROPERTY, AND TO KEEP THE REVENUES, PROFITS, AND PRODUCTION DERIVED FROM ITS USE. THE LAW ON OWNERSHIP DOES NOT, HOWEVER, ESTABLISH A COMPREHENSIVE REGIME REGULATING THE RIGHTS OF OWNERSHIP AND THE MECHANISMS FOR THEIR TRANSFER. SOME DIFFICULTIES HAVE ALSO ARISEN OVER FOREIGN ACQUISITION OF MAJORITY CONTROL OF ENTERPRISES, WITH THE GOVERNMENT OR THE CURRENT MANAGEMENT CONTINUING TO EXERCISE EFFECTIVE CONTROL OR VETO POWER OVER COMPANY DECISIONS.
26. THE LAND CODE PASSED IN 1992 CONTAINED A SIX-YEAR MORATORIUM (NOT A BAN) ON AGRICULTURAL LAND SALES - WHICH STARTED THE MOMENT THE PARCEL OF LAND BECAME PRIVATELY OWNED. IN 1997 THE MINISTRY OF JUSTICE DETERMINED THAT THIS MORATORIUM APPLIED ONLY TO LAND SUPPLIED TO FARMERS FROM DISTRICT OR REGIONAL (OBLAST OR RAION) RESERVES, UNDER A 1992 PROGRAM INITIATED BY THE GOVERNMENT TO CREATE PRIVATE FARMS. THERE ARE NOW SOME 35,900 SUCH FARMS, AND THEY OCCUPY ABOUT 2 PERCENT OF THE LAND. THE MINISTRY OF JUSTICE'S DECISION SPECIFICALLY EXCLUDES FROM THE MORATORIUM LAND OBTAINED FROM COLLECTIVE AGRICULTURAL ENTERPRISES (FORMER COLLECTIVE FARMS) AS INDIVIDUAL LAND SHARES OR LAND TITLES. THESE PARCELS REPRESENT 70 PERCENT OR MORE OF THE FARM LAND IN THE COUNTRY.
A.7 PROTECTION OF PROPERTY RIGHTS
27.
ISSUES RELATING TO THE OWNERSHIP, USE, AND DISPOSAL OF RIGHTS AND INTERESTS IN LAND ARE REGULATED BY THE LAND CODE OF UKRAINE, ADOPTED IN 1992. THE LAND CODE WAS ADOPTED FOUR YEARS BEFORE THE CONSTITUTION (1996) AND IS INCONSISTENT WITH IT IN SOME OF ITS PROVISIONS. ALTHOUGH THE LAND CODE FACILITATED WIDESPREAD PRIVATE OWNERSHIP OF RESIDENTIAL AND DACHA PLOTS, IT REMAINS UNCLEAR AND CONFLICTING REGARDING LAND OWNERSHIP BY PRIVATE LEGAL ENTITIES (BUSINESSES). SUBSEQUENT PRESIDENTIAL DECREES, MOST IMPORTANTLY "ON THE PRIVATIZATION AND LEASE OF NON-AGRICULTURAL LAND PARCELS FOR ENTREPRENEURIAL ACTIVITY," DATED JULY 1995, HAVE ATTEMPTED TO RECTIFY THIS SITUATION AND HAVE OPENED THE WAY FOR PRIVATE ENTERPRISES TO OWN LAND. ALTHOUGH COMPREHENSIVE REVISION OF THE LAND CODE IS ULTIMATELY NECESSARY, PROGRESSIVE MUNICIPALITIES ARE BEGINNING TO PRIVATIZE LAND UNDER ENTERPRISES THROUGH EXECUTION AND REGISTRATION OF SALE AGREEMENTS.
28. UKRAINE HAS ALREADY ESTABLISHED A COMPREHENSIVE LEGISLATIVE SYSTEM FOR THE PROTECTION OF INTELLECTUAL PROPERTY RIGHTS. AS A SUCCESSOR STATE TO THE FORMER SOVIET UNION, UKRAINE IS A MEMBER OF THE UNIVERSAL COPYRIGHT CONVENTION (MAY 1973), AND THE CONVENTION ESTABLISHING THE WORLD INTELLECTUAL PROPERTY ORGANIZATION - WIPO (APRIL 1970). AFTER INDEPENDENCE, UKRAINE BECAME A SIGNATORY TO A NUMBER OF AGREEMENTS, INCLUDING: PARIS CONVENTION FOR THE PROTECTION OF INDUSTRIAL PROPERTY (1991); MADRID AGREEMENT CONCERNING THE INTERNATIONAL REGISTRATION OF MARKS (1991); PATENT COOPERATION TREATY (1991); AGREEMENT ON THE MEASURES BELATED TO THE PROTECTION OF INDUSTRIAL PROPERTY AND THE ESTABLISHMENT OF THE INTERSTATE COUNCIL FOR THE PROTECTION OF INDUSTRIAL PROPERTY IN THE CIS (1993); INTERNATIONAL CONVENTION FOR THE PROTECTION OF NEW VARIETIES OF PLANTS (1995); BORNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS (1995); TRADEMARK LAW TREATY (1996); AND THE BUDAPEST TREATY ON THE INTERNATIONAL RECOGNITION OF THE DEPOSIT OF MICROORGANISMS FOR THE PURPOSE OF PATENT PROCEDURES (1997).
29. IN ADDITION, UKRAINE HAS LAWS ON THE PROTECTION OF RIGHTS IN INVENTIONS AND UTILITY MODELS (1993); ON THE PROTECTION OF RIGHTS IN INDUSTRIAL DESIGNS (1993); ON THE PROTECTION OF RIGHTS IN MARKS FOR GOODS AND SERVICES (1993); AND ON THE PROTECTION OF PLANT VARIETY RIGHTS (1993). IT HAS A NUMBER OF DRAFT LAWS RANGING FROM THE PROTECTION OF GEOGRAPHIC PLACE NAMES TO THE PROTECTION OF SOFTWARE.
30. ON MAY 1. 1998, UKRAINE WAS PLACED ON THE SPECIAL 301 WATCH LIST BECAUSE COPYRIGHT PIRACY IS EXTENSIVE AND ENFORCEMENT IS MINIMAL, CAUSING SUBSTANTIAL LOSSES TO U.S. INDUSTRY. UKRAINE DOES NOT PROVIDE RETROACTIVE PROTECTION FOR SOUND RECORDINGS, NOR FOR WORKS CREATED PRIOR TO 1973. IT HAS INADEQUATE CRIMINAL PENALTIES FOR COPYRIGHT PIRACY AND NONE FOR INFRINGEMENT. ADMINISTRATIVE LIABILITY, IN THE FORM OF FINES AND/OR CONFISCATION OF PRODUCTS, EQUIPMENT, AND RAW MATERIALS, MAY BE SOUGHT IN THE EVENT THAT AN INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IS ACCOMPANIED BY UNFAIR COMPETITION ON THE PART OF THE INFRINGER. HOWEVER, FINES ARE INSIGNIFICANT, AND THE LAW DOES NOT GIVE THE POLICE OR CUSTOMS THE AUTHORITY TO CONDUCT SEIZURE OR EX PARTE SEARCHES. COMPOUNDING THE SITUATION, THE JUDGES UNDERSTAND LITTLE OR NOTHING ABOUT IPR, SHOULD A CASE MAKE IT TO COURT.
A.8 TRANSPARENCY OF THE REGULATORY SYSTEM
31.
UKRAINE'S DOMESTIC PRODUCTION STANDARDS AND CERTIFICATION REQUIREMENTS APPLY EQUALLY TO DOMESTICALLY-PRODUCED AND IMPORTED PRODUCTS. PRODUCT TESTING AND CERTIFICATION GENERALLY RELATES TO TECHNICAL, SAFETY, AND ENVIRONMENTAL STANDARDS, AS WELL AS EFFICACY STANDARDS WITH REGARD TO PHARMACEUTICAL AND VETERINARY PRODUCTS. AT A MINIMUM, IMPORTS TO UKRAINE ARE REQUIRED TO MEET THE CERTIFICATION STANDARDS OF THEIR COUNTRY OF ORIGIN. IN CASES WHERE UKRAINIAN STANDARDS ARE NOT ESTABLISHED, COUNTRY OF ORIGIN STANDARDS MAY PREVAIL.
32. UKRAINE IS MOVING INCREASINGLY TO A MARKET- ORIENTED SYSTEM. HOWEVER, THE LEGAL ENVIRONMENT IS FAR FROM TRANSPARENT AND THERE ARE STILL MANY REGULATIONS AND PROCEDURES THAT SERVE AS BARRIERS TO ENTRY FOR NEW BUSINESS ESTABLISHMENTS.
33. FOREIGN INVESTORS REGARD UKRAINE'S PRODUCTION CERTIFICATION SYSTEM AS ONE OF THE MOST SERIOUS OBSTACLES TO TRADE, INVESTMENT, AND ONGOING BUSINESS, AND MANY CONSIDER UKRAINE'S SYSTEM TO BE FAR MORE DIFFICULT THAN RUSSIA'S. IN SPITE OF THE FACT THAT UKRAINE RECENTLY LOWERED THE OVERALL NUMBER OF LICENSES FROM 112 TO 42, MANY STILL CONSIDER THIS LOWER NUMBER TO BE EXCESSIVE. THE BUREAUCRATIC PROCEDURES FOR OBTAINING VARIOUS PERMITS, LICENSES, ETC., ARE COMPLEX AND UNPREDICTABLE, BURDENSOME AND DUPLICATIVE; THEY CREATE CONFUSION, SIGNIFICANTLY RAISE THE COST OF DOING BUSINESS IN UKRAINE, PROVIDE OPPORTUNITIES FOR CORRUPTION, AND DRIVE MUCH ACTIVITY INTO THE BURGEONING SHADOW ECONOMY.
34. THE NUMEROUS CERTIFICATION BODIES AROUND UKRAINE EFFECTIVELY OPERATE AS INDEPENDENT ENTITIES, OFTEN WITH MONOPOLISTIC POSITIONS. FURTHERMORE, THESE AGENCIES WORK ON A PRIVATE PROFIT BASIS, RETAINING 80 PERCENT OF THE PROFITS DERIVED FROM CERTIFICATION FEES AND RETURNING ONLY 20 PERCENT TO THE STATE. PRICING RULES EXIST, BUT THEY ARE TOO VAGUE TO BE ENFORCED, AND THE STATE STANDARDS COMMITTEE (THE CENTRAL GOVERNING BODY) DOES NOT HAVE PROPER SUPERVISION OVER THE VARIOUS BODIES. MUCH OF THE LEGISLATIVE AND INTERPRETIVE WORK IS LEFT TO DIFFERENT AGENCIES, WITH LITTLE OR NO COORDINATION. FOR MANY PRODUCTS, MULTIPLE AGENCIES ARE INVOLVED IN THE CERTIFICATION PROCESS, AND OFTEN MULTIPLE CERTIFICATES ARE REQUIRED. LOCAL, REGIONAL AND MUNICIPAL AUTHORITIES OFTEN REQUIRE ADDITIONAL DOCUMENTATION BEYOND THAT REQUIRED BY CENTRAL AGENCIES.
35. THE EXISTING SYSTEM OF RULES AND NORMS, BASED ON SOVIET PRACTICE, ENCOURAGE RIGID FORMALITY, INFLEXIBILITY, AND AN ABSENCE OF JUSTICE IN THE PROCEDURES. UNDER THESE RULES, EXTREMELY WIDE POWERS ARE GIVEN TO THE CERTIFICATION BODIES, WITH LITTLE CONTROL OVER, OR RESPONSIBILITY FOR, DECISIONS TAKEN, PERMITTING THE INTRODUCTION OR MODIFICATION OF PROCEDURES WITHOUT PROPER CONSIDERATION OF THE APPLICANT'S RIGHTS. THE APPLICANT HAS FEW MEANS TO APPEAL AGAINST AN UNFAVORABLE DECISION, FURTHER AGGRAVATED BY LIMITED ACCESS TO EXISTING PROCEDURES, NORMS AND RULES.
36. U.S. BUSINESSES IN UKRAINE REPEATEDLY COMPLAIN THAT THERE IS A LACK OF CLEAR REGULATIONS, THE SYSTEM IS NOT TRANSPARENT, THE REGISTRATION SCHEMES ARE UNFEASIBLE FOR MASS TRADE, THE REQUIREMENTS ARE CONSTANTLY CHANGING AND UNEVENLY ENFORCED, THERE IS A LACK OF PROCEDURAL FLEXIBILITY, THE IMPORT LICENSE PROCEDURES ARE OVERLY COMPLEX AND LENGTHY, AND THE CERTIFICATION AND LICENSING FEES ARE INORDINATELY HIGH. WHILE THE LAW MAY STIPULATE FORMAL EQUALITY OF TREATMENT OF BOTH NATIONAL AND FOREIGN COMPANIES, U.S. BUSINESSES ARE LEFT WITH A VERY STRONG IMPRESSION THAT THE LAWS ARE NOT APPLIED EQUALLY AND THAT, IN FACT, THERE IS A DISCRIMINATION AGAINST FOREIGN COMPANIES.
37. THERE IS MUCH DISCUSSION OF REGULATORY REFORM, BUT TO DATE LITTLE CONCRETE PROGRESS (THE ONLY CITED INSTANCE IS THE LOWERING OF THE NUMBER OF LICENSES TO 42). AT PRESENT, THERE ARE NO EFFECTIVE MECHANISMS TO RESOLVE BUSINESS DISPUTE CASES. ON OCCASION, DISPUTES OVER INTERNATIONAL BUSINESS ARRANGEMENTS HAVE BEEN SETTLED ONLY AFTER PRESIDENT KUCHMA OR OTHER NATIONAL LEADERS HAVE BECOME INVOLVED AND A SPECIAL LAW OR DECREE ENACTED TO COVER THE BUSINESS ARRANGEMENT.
A.9 EFFICIENCY OF CAPITAL MARKETS AND PORTFOLIO INVESTMENT
38.
UKRAINE'S FINANCIAL SECTOR IS IN THE EARLY STAGES OF DEVELOPMENT. NEVERTHELESS, IN CONTRAST TO MANY OTHER SECTORS OF THE UKRAINIAN ECONOMY, THERE HAS BEEN REAL PROGRESS IN STRUCTURAL REFORM OVER THE LAST YEAR IN THE BANKING SECTOR. DEVELOPMENT OF EFFICIENT CAPITAL MARKETS HAS BEEN A PRIMARY AREA OF EMPHASIS OF INTERNATIONAL ASSISTANCE, INCLUDINQ FROM THE U.S. AS OF JUNE 1998, THE BANKING SYSTEM CONSISTED OF 227 BANKS WITH TOTAL ASSETS OF USD 12 BILLION. NINE BANKS DOMINATE THE SECTOR, WITH THE THREE LARGEST BEING UKRAYINA BANK, PROMINVESTBANK, AND SAVINGS BANK. THE NATIONAL BANK OF UKRAINE (NBU) HAS BOTH THE SUPERVISORY AND MONETARY POWERS OF A CENTRAL BANK.
39. ALL UKRAINIAN BANKS FORMALLY CONVERTED TO INTERNATIONAL ACCOUNTING STANDARDS ON JANUARY 1 1998. THE GOVERNMENT PASSED A NUMBER OF NEW REGULATIONS, SUCH AS LOAN-LOSS PROVISIONING, LOAN CLASSIFICATION AND LENDING TO INSIDERS, WHICH ARE IN LINE WITH WESTERN PRACTICE. THE NATIONAL BANK HAS INCREASED THE NUMBER AND QUALITY OF ITS BANK INSPECTIONS. UKRAINE HAS A WELL-DEVELOPED ELECTRONIC FUNDS PAYMENT SYSTEM AND LIBERAL REGULATIONS WITH NO QUANTITATIVE LIMITS FOR FOREIGN BANK PARTICIPATION. FOREIGN BANKS MAY CARRY OUT THE SAME ACTIVITIES AS DOMESTIC BANKS. IN SEPTEMBER 1998, UKRAINE WILL BEGIN A COMPREHENSIVE EXAMINATION OF ITS LARGEST BANKS, WHICH COULD LEAD TO STRATEGIC RESTRUCTURING, WITH U.S.A.I.O. PLAYING A CRUCIAL ROLE. IN ADDITION, UKRAINE IS PREPARING A NATIONAL BANK LAW AND A LAW ON BANKS AND BANKING, WHICH WOULD GIVE THE NATIONAL BANK THE ENFORCEMENT AUTHORITY IT NEEDS TO EXERCISE BANK REGULATION. A DEPOSIT INSURANCE LAW SHOULD ALSO BE ENACTED THIS YEAR, ALONG WITH PLANS TO DEVELOP A DEPOSIT FUND. IN APRIL 1998, THE NATIONAL BANK ELIMINATED ITS 15 PERCENT CEILING ON FOREIGN BANKS' STATUTORY CAPITAL.
40. FOREIGN BANKS HAVE BEEN SLOW TO ENTER UKRAINE. CREDIT LYONNAIS (PRANCE) BEGAN FULL BANKING OPERATIONS IN 1994, FOLLOWED BY DEUTSCHE BANK, DRESDNER BANK, COMMERZBANK, WESTDEUTSCHE, BANQUE DE FRANCE, MAGYAR KULKERESKEDELMI BANK, AND BANQUE DE CAIRE. CITIBANK ALSO BEGAN OPERATIONS THIS YEAR AND PRESENTLY IS THE ONLY U.S. BANK WITH A REPRESENTATIVE OFFICE IN KIEV. SIX BANKS HAVE 100 PERCENT FOREIGN CAPITALIZATION: ING BARINGS (NETHERLANDS), CS FIRST BOSTON (SWISS), SOCIETE GENERALE (FRENCH), CREDIT LYONNAIS (FRENCH), INKOM BANK (RUSSIAN), AND BANK KREDITOVO-OEPOZITOWIY (POLAND).
41. PROBLEMS STILL PERSIST. ALTHOUGH A NUMBER OF MEASURES WERE INTRODUCED TO MAKE IT EASIER TO IDENTIFY BAD LOANS AND AVOID POSSIBLE CRISES, MANY BANKS STILL HAVE A LARGE NUMBER OF BAD LOANS. THEY CONTINUE TO LACK SUFFICIENT RESOURCES TO PROVIDE CREDIT, AND SO ARE NOT A MAJOR SOURCE OF INVESTMENT FUNDS. LOANS THAT ARE MADE ARE SHORT-TERM AND AT HIGH INTEREST. UKRAINE IS TRYING TO INTEGRATE RAPIDLY INTO INTERNATIONAL FINANCIAL MARKETS WHILE ITS OWN FINANCIAL INFRASTRUCTURE IS STILL UNDERDEVELOPED AND FRAGILE, AND DURING A TIME OF GENERAL FINANCIAL CONCERN DUE TO THE ASIAN CRISIS AND RUSSIA'S FINANCIAL UNCERTAINTY. THEREFORE, THERE IS AN INCREASED DANGER OF A SYSTEMIC BANKING CRISIS WHICH COULD AFFECT GOOD BANKS AS WELL AS BAD, JEOPARDIZING UKRAINE'S EFFORTS TO REFORM ITS ECONOMY.
42. IN JUNE 1991, THE PARLIAMENT OF THE THEN UKRAINIAN SOVIET SOCIALIST REPUBLIC APPROVED A LAW ON SECURITIES AND THE STOCK MARKET, WHICH MARKED THE BIRTH OF A UKRAINIAN CAPITAL MARKET. THE LAW OUTLINED THE EXISTENCE OF THE FOLLOWING TYPES OF SECURITIES: STOCKS (REGISTERED, BEARER, PREFERRED, AND COMMON), GOVERNMENT SECURITIES, GENERAL OBLIGATIONS/BONDS, CORPORATE BONDS, SAVINGS CERTIFICATES, AND PROMISSORY NOTES. LATER DECREES AND AMENDMENTS ADOPTED FROM 1991 TO 1995 ADDED BOND COUPONS, LOAN CERTIFICATES, BANK ORDERS, SAVINGS BOOKS, AND PRIVATIZATION CERTIFICATES. IN JUNE 1995 THE STATE SECURITIES AND STOCK MARKET COMMISSION WAS ESTABLISHED, HAVING ADMINISTRATIVE AND DISCIPLINARY POWERS OVER ISSUERS, INVESTMENT FUNDS, BROKERS AND TRADING ACTIVITIES. VIRTUALLY ALL OF THE REPORTED SECONDARY MARKET ACTIVITY IS CONDUCTED THROUGH THE NATIONWIDE ELECTRONIC TRADING SYSTEM FOR THE SELF- REGULATORY ORGANIZATION OF "PFTS" (UKRAINIAN OVER-THE- COUNTER TRADING SYSTEM). OTHER MARKETS EXIST, INCLUDINQ THE UKRAINIAN STOCK EXCHANGE AND THE DONETSK EXCHANGE, BUT MOST TRADING (ABOUT 75 PERCENT) IS NOT REPORTED TO ANY LICENSED MARKET (PFTS OR EXCHANGE). 1997 SAW DRAMATIC GROWTH IN UKRAINE'S STOCK MARKET AS WESTERN PORTFOLIO INVESTMENT FLOWED TO UKRAINE, MAKING KYIV THE FIFTH LARGEST EMERGING EQUITY MARKET IN EASTERN EUROPE AND THE CIS. NEVERTHELESS, INVESTORS FACE NUMEROUS PROBLEMS, INCLUDINQ INCOMPATIBLE ACCOUNTING STANDARDS, LACK OF ACCURATE COMPANY INFORMATION, AND INADEQUATE PROTECTION OF MINORITY SHAREHOLDERS' RIGHTS.
43. UKRAINE CONTINUES TO REMAIN A CASH ECONOMY, BUT A FEW BANKS HAVE STARTED ISSUING CREDIT CARDS (MASTERCARD AND VISA). THE NEW UKRCARD SYSTEM IS READY FOR SPEEDY ELECTRONIC PAYMENT AND PAPERLESS CASHTRANSFERS BUT LACKS THE USD 500 MILLION NEEDED T INSTALL THE NECESSARY STATE-OF-THE-ART EQUIPMENT.
A. 10 POLITICAL VIOLENCE
44.
POLITICAL DEMONSTRATIONS AND DISAGREEMENTS IN UKRAINE RARELY INVOLVE VIOLENCE AND ARE GENERALLY RESOLVED PEACEFULLY.
A. 11 CORRUPTION
45.
CORRUPTION PERVADES MUCH OF UKRAINE'S CIVIL SERVICE AND REQULATORY SYSTEM, ACCORDING TO MANY PRESS ARTICLES AND FOREIGN BUSINESS COMPLAINTS. CONFLICT OF INTEREST IS A POORLY-DEVELOPED CONCEPT AT THIS POINT, AND MANY BUREAUCRATS RETAIN THEIR COMMERCIAL INTERESTS WHILE IN POWER. CORRUPTION CAN ALSO BE INSTITUTIONAL TO THE EXTENT THAT CERTAIN GOVERNMENT ENTITIES MAY OWN OR HAVE CLOSE TIES TO BUSINESSES THAT COMPETE WITH THOSE THAT THEY REGULATE (I.E., CUSTOMS BROKERS, TESTING LABS, ETC.). GOVERNMENT ENTITIES ALSO USE MEANS THAT ARE OFF THE BALANCE SHEET TO PAY FOR OPERATIONS AND EXPENSES NOT FUNDED BY THE STATE BUDGET. A COMPLICATED AND NON-TRANSPARENT REGULATORY SYSTEM HAS ALSO ENCOURAGED PETTY CORRUPTION AT ALL LEVELS OF GOVERNMENT. A PROFESSIONAL ADMINISTRATIVE CLASS IS DEVELOPING SLOWLY, DUE IN PART TO THE LOW SALARIES OF SUCH PROFESSIONALS, EVEN AT VERY SENIOR LEVELS. RECOGNIZING THE PROBLEM, PRESIDENT KUCHMA ISSUED A DECREE IN APRIL 1997 ESTABLISHING A NATIONAL PROGRAM AGAINST CORRUPTION, BUT ITS RESULTS ARE YET TO BE SEEN.
B. BILATERAL INVESTMENT AGREEMENTS
46.
THE BILATERAL INVESTMENT TREATY BETWEEN THE UNITED STATES AND UKRAINE ENTERED INTO FORCE ON NOVEMBER 16, 1996. THE FOLLOWING COUNTRIES HAVE ALSO SIGNED BILATERAL INVESTMENT AGREEMENTS WITH UKRAINE: CANADA (1994), PRANCE (1994), GERMANY (1993), ITALY (1993), BULGARIA (1994), THE CZECH REPUBLIC (1994), HUNGARY (1995), POLAND (1993), SLOVAKIA (1994), ARMENIA (1994), ESTONIA (1995), GEORGIA (1995), KAZAKHSTAN (1994), KYRGYZSTAN (1993), LITHUANIA (1994), MOLDOVA (1995), UZBEKISTAN (1993), THE PEOPLE'S REPUBLIC OF CHINA (1992), CUBA (1995), EQYPT (1992), GREECE (1994), ISRAEL (1995), AND MONGOLIA (1992). THE AGREEMENT WITH CHINA HAS A FIVE-YEAR TERM. ALL OF THE OTHERS HAVE A TERM OF TEN OR MORE YEARS. UKRAINE HAS ALSO ENTERED INTO BILATERAL TREATIES WITH AZERBAIJAN, BELARUS, RUSSIA, AND TURKMENISTAN. THESE TREATIES COVER CUSTOMS DUTIES, BUT NOT VAT OR EXCISE TAX, WITH THE EXCEPTION OF THE TREATY WITH BELARUS. IN DECEMBER 1997, RUSSIA AND UKRAINE AGREED TO A MUTUAL EXEMPTION ON VALUE-ADDED TAX. UKRAINIAN EXPORTS TO RUSSIA ARE EXPECTED TO INCREASE 20-25 PERCENT AS A RESULT.
C. OPIC AND OTHER INVESTMENT INSURANCE PROGRAMS
47.
THE U.S. EXPORT-IMPORT BANK IS CURRENTLY OPEN FOR SHORT-TERM AND MEDIUM-TERM TRANSACTIONS IN UKRAINE. OVERSEAS PRIVATE INVESTMENT CORPORATION (OPIC) RISK INSURANCE AND DIRECT FINANCING PROGRAMS ARE ALSO AVAILABLE TO U.S. INVESTORS IN UKRAINE. THE U.S.- UKRAINE OPIC AGREEMENT WAS SIGNED IN WASHINGTON ON MAY 6, 1992. THE AGREEMENT ENABLES THE U.S. TO PROVIDE INVESTMENT INSURANCE, PROJECT FINANCING, AND A VARIOUS INVESTOR SERVICES TO PRIVATE U.S. INVESTORS FOR SOUND BUSINESS PROJECTS IN UKRAINE. SINCE THE SIGNING, OPIC HAS SINCE LEAD SEVERAL INVESTMENT MISSIONS TO UKRAINE AND HOSTED SEVERAL REVERSE INVESTMENT MISSIONS BY UKRAINIAN BUSINESS REPRESENTATIVES TO THE UNITED STATES. OPIC RISK INSURANCE AND DIRECT FINANCING PROGRAMS ARE AVAILABLE TO U.S. INVESTORS IN UKRAINE. SINCE JANUARY 1994, OPIC HAS APPROVED INVESTMENT INSURANCE TOTALING MORE THAN USD 34 MILLION FOR THREE PROJECTS IN UKRAINE: INCLUDINQ THE RECONSTRUCTION OF THE RICHARD-CASTLE HOTEL (USD 15.5 MILLION), GENERATION UKRAINE, INC. (OFFICE BUILDING CONSTRUCTION AND MANAGEMENT - USD 0.4 MILLION), AND ALLIANT TECHSYSTEMS' DEFENSE CONVERSION EFFORTS (USD 19.2 MILLION). OPIC HAS ALSO FACILITATED CONFERENCES AND EXCHANGES BETWEEN THE TWO COUNTRIES TO INCREASE BUSINESS RELATIONS.
48. THE MULTILATERAL INVESTMENT GUARANTEE AGENCY (MIGA) IS AN INDEPENDENT MEMBER OF THE WORLD BANK GROUP, WHICH PROVIDES GUARANTEES AGAINST POLITICAL RISK TO FOREIGN INVESTORS IN CONNECTION WITH NEW INVESTMENT IN MEMBER DEVELOPING COUNTRIES. FORMS OF INVESTMENT WHICH CAN BE COVERED BY MIGA INCLUDE EQUITY, LOANS, LOAN GUARANTEES, AND LOANS MADE BY FINANCIAL INSTITUTIONS (AS LONG AS MIGA IS ALSO INSURING PART OF THE FOREIGN EQUITY IN THE PROJECT ENTERPRISE). CERTAIN NON-EQUITY DIRECT INVESTMENTS MAY ALSO BE ELIGIBLE, SUCH AS TECHNICAL AND MANAGEMENT CONTRACTS AND FRANCHISING AND LICENSING AGREEMENTS.
D. LABOR
49.
UKRAINE HAS A WELL-EDUCATED AND SKILLED LABOR FORCE, WITH A NEARLY 100 PERCENT LITERACY RATE. ALTHOUGH THE REPORTED UNEMPLOYMENT LEVEL IS LOW (2.9 PERCENT AS OF JUNE 1998), MOST EXPERTS AGREE THAT: (1) REPORTED UNEMPLOYMENT IS UNDERSTATED, (2) UNDEREMPLOYMENT AT STATE ENTERPRISES CONTINUES, AND (3) EMPLOYMENT IN THE INFORMAL SECTOR ACCOUNTS FOR A GROWING, BUT DIFFICULT TO MEASURE, SHARE OF THE TOTAL LABOR FORCE. THE WORLD BANK ESTIMATES THAT THE INFORMAL ECONOMY ACCOUNTS FOR NEARLY HALF OF ESTIMATED TOTAL COP (OFFICIAL PLUS UNOFFICIAL ECONOMIES). SOME UKRAINIAN ESTIMATES CLAIM THAT THE INFORMAL SECTOR ACCOUNTS FOR 60 PERCENT OF UKRAINE'S ECONOMIC ACTIVITY. WAGE ARREARS, OFTEN FOR SEVERAL MONTHS OR MORE, ARE COMMON THROUGHOUT THE ECONOMY. PLANT MANAGERS CONTINUE TO SEE EMPLOYMENT OF THEIR WORK FORCE AS A KEY PRIORITY AND FOREIGN INVESTORS MAY ENCOUNTER RESISTANCE IN TRIMMING A PROJECT'S WORK FORCE TO AN EFFICIENT LEVEL. A FURTHER COMPLICATION IN BUSINESS ARRANGEMENTS IS THE UKRAINIAN ENTERPRISE'S CONTINUING RESPONSIBILITY FOR HOUSING AND MUCH OF THE OTHER SOCIAL INFRASTRUCTURE SUSTAINING THEIR WORKERS. THIS SOCIAL BURDEN CAN BECOME A REAL ISSUE IN BUSINESS NEGOTIATIONS.
50. UKRAINE'S INDUSTRIAL INHERITANCE FROM THE FORMER SOVIET UNION, PARTICULARLY ITS MILITARY-INDUSTRIAL COMPLEX, HAS PRODUCED EXCELLENT SPECIALISTS, ENGINEERS, AND PROGRAMMERS. HOWEVER, THESE SPECIALTIES RARELY WERE COMMERCIALIZED IN THE SOVIET COMMAND ECONOMY, LEAVING MANY UKRAINIANS POORLY-EQUIPPED FOR THE DEMANDS OF DYNAMIC, INFORMATION-BASED COMMERCE. HOMO SOVIETICUS, OR SOVIET MAN, HAS LEFT A DISTINCT IMPRESSION ON UKRAINE'S WORKING-AGE POPULATION. THE SOVIET COMMAND-ADMINISTRATIVE SYSTEM DISCOURAGED CREATIVITY AND ENTREPRENEURIAL SPIRIT, INHIBITING THE GROWTH OF BUSINESS IN UKRAINE. UKRAINIAN WORKERS, IN THE BLUE-COLLAR AND WHITE-COLLAR SECTORS, MORE OFTEN THAN NOT RESPOND TO STOP-DOWNS MANAGEMENT PRACTICES. INDEED, ONE OF UKRAINE'S MOST IMPORTANT GOALS WILL BE TO RE-TRAIN ENTIRE GENERATIONS OF ITS WORKERS IN ORDER TO COMPETE IN THE FAST-PACED WORLD OF HIGH-TECHNOLOGY PRODUCTION AND MODERN MANAGEMENT METHODS AND PRACTICES.
51. INDEPENDENCE AND SUBSEQUENT LACK OF ECONOMIC REFORM HAVE TAKEN ITS TOLL ON WAGES IN UKRAINE. IN 1990, THE AVERAGE WAGES IN RUSSIA AND UKRAINE WERE VIRTUALLY EQUAL. BY 1994, THE REAL WAGE IN UKRAINE AMOUNTED TO ONLY 48 PERCENT OF THAT IN RUSSIA, INCREASING GRADUALLY TO 71 PERCENT BEFORE FALLING BACK TO 60 PERCENT IN 1996-1997. WAGES CONTINUE TO REMAIN VERY LOW BY WESTERN STANDARDS,. THE NOMINAL AVERAGE WAGE HOVERS AT ABOUT USO 80 PER MONTH AS OF MAY 1998. WHILE THIS REPRESENTS ABOUT 78 PERCENT OF REAL WAGE EARNINGS COMPARED WITH DECEMBER 1995, WAGES HAVE HELD RELATIVELY STEADY IN REAL TERMS SINCE 1996. MANY UKRAINIANS ARE FORCED TO WORK SECOND AND THIRD UNOFFICIAL JOBS TO MAKE ENDS MEET, THEREBY MAKING UP A VAST PORTION OF THE SHADOW ECONOMY. OFFICIAL UNEMPLOYMENT IS 2.3 PERCENT (AT THE END OF 1997), BUT THE INTERNATIONAL LABOR ORGANIZATION HAS PLACED THIS FIGURE AS HIGH AS 34 PERCENT WHEN INCLUDING WORKERS ON UNPAID/INVOLUNTARY LEAVE AND UNREPORTED SEPARATIONS. SLOW MOVEMENT ON PRIVATIZATION AND AN UNWILLINGNESS OF LARGER ENTERPRISES TO REDUCE STAFF HAS NEGATIVELY EFFECTED THE LABOR MARKET'S ABILITY TO RESPOND TO NEW MARKET CONDITIONS. A SIGNIFICANT PART OF THE UKRAINIAN LABOR FORCE HAS MIGRATED TO THE SHADOW ECONOMY, TAKING UP SERVICE JOBS SUCH AS TAXI DRIVERS, WAITERS, AND TRADERS -- ANYTHING TO ENSURE ECONOMIC SURVIVAL. THE LAST TWO YEARS HAVE SEEN AN INCREASE IN WAGE ARREARS, IN SOME CASES BY AS MUCH AS A YEAR AND A HALF.
E. FOREIGN TRADE ZONES/FREE PORTS
52.
THE FREE EXPERIMENTAL ECONOMIC ZONE (FEEZ) SYVASH, IN THE KRASNOPEREKOPSK DISTRICT, IS OPERATING. THE SUPERVISORY COUNCIL UNDER THE CABINET OF MINISTERS HAS RECEIVED 27 PROJECTS FOR USD 48.4 BILLION, 18 OF WHICH HAVE BEEN APPROVED. REAL INVESTMENTS ACCOUNT FOR USD 10 MILLION. THE FEEZ HELPED TO STOP THE INDUSTRIAL DECLINE IN THE KRASNODEREKOPSK DISTRICT, ELIMINATED WAGE ARREARS, REDUCED PENSION ARREARS TO JUST ONE MONTH IN 1997, AND BROUGHT IN A SURPLUS DISTRICT BUDGET. THE FEEZ HAS OPENED REPRESENTATION OFFICES IN SYMFEROPOL, KYIV, AND MOSCOW, WITH ONE SOON TO BE OPENED IN SCANDINAVIA; AND ADDITIONAL OFFICES IN SEVASTOPOL, ZAPORIZHIA, AND FEODOSIA.
53. PRESIDENT KUCHMA ISSUED TWO DECREES IN JUNE 1998 ON THE CREATION OF TWO ADDITIONAL ECONOMIC ZONES IN DONETSK AND SLAVUTYCH. IN ADDITION, THE CABINET OF MINISTERS HAS DETERMINED THE LOCATION OF A FEEZ PLANNED FOR AZOV, TO BE SITUATED NEAR THE TRADING PORT OF MARIUPOL.
F.L FOREIGN DIRECT INVESTMENT STATISTICS
54.
ACCORDING TO UKRAINIAN STATISTICS, CUMULATIVE FOREIGN INVESTMENT THROUGH THE FIRST QUARTER OF 1998 WAS APPROXIMATELY USD 2.2 BILLION (OF WHICH USD 759.2 MILLION WAS INVESTED IN 1997). THE COUNTRIES WITH THE LARGEST AMOUNTS OF FOREIGN INVESTMENT IN UKRAINE WERE: THE UNITED STATES (USD 426.2 MILLION OR 19.6 PERCENT), THE NETHERLANDS ( USD 220.2 MILLION OR 10.1 PERCENT), GERMANY (USD 184.2 MILLION OR 8.5 PERCENT), CYPRUS (USD 156.2 MILLION OR 7.2 PERCENT), RUSSIA (USD 154.9 MILLION OR 7.1 PERCENT), AND GREAT BRITAIN (USD 151.4 MILLION OR 7 PERCENT). THE SECTORS THAT WERE THE MOST ATTRACTIVE FOR INVESTORS INCLUDED THE FOOD INDUSTRY (USD 460.4 MILLION); DOMESTIC TRADE (USD 358.8 MILLION); CREDIT, FINANCE, AND INSURANCE (USD 198.8 MILLION); MACHINE BUILDING AND METALWORKING (USD 172.0 MILLION); AND THE CHEMICAL INDUSTRY (USD 138.0 MILLION), AND CONSTRUCTION (USD 90.6 MILLION).
F.2 MAJOR FOREIGN INVESTORS
55.
AS OF JUNE 1998, THE MAJOR FOREIGN INVESTMENTS MADE IN UKRAINE WERE CHANNELED INTO: (A) TELECOMMUNICATIONS -- UTEL [A LONG-DISTANCE AND INTERNATIONAL TELEPHONE SERVICES JOINT VENTURE WITH FOREIGN SHAREHOLDERS AT&T (USA), PTT TELECOM (NETHERLANDS), AND DEUTSCHE BUNDESPOST TELECOM (GERMANY)] AND THE UMC JOINT VENTURE [WITH CONTRIBUTIONS FROM PTT TELECOM, DEUTSCHE BUNDESPOST TELECOM, AND TELECOM DENMARK (DENMARK)]; (B) TOBACCO -- BAT INDUSTRIES, R.J. REYNOLDS, PHILIP MORRIS, AND REEMSTMA; SOFT DRINKS -- COCA-COLA AND PEPSICO; (D) FOOD PROCESSING - CARGILL, KRAFT JACOBS SUCHARD; (E) CONSUMER GOODS - PROCTER & GAMBLE; (F) DETERGENTS - PROCTER & GAMBLE; (Q) ENERGY (OIL & GAS); AND (H) THE CONSTRUCTION SECTOR.
56. ONE OF THE MAJOR INVESTMENT PROJECTS IN THE UKRAINIAN TELECOMMUNICATIONS IS UTEL. UTEL'S FOUNDING PARTNERS ARE UKRTELECOM (51 PERCENT), AT&T USA (19.5 PERCENT), DEUTSCHE TELECOM (19.5 PERCENT), AND PTT TELECOM OF THE NETHERLANDS (10 PERCENT). BY THE END OF 1997, UTEL HAD INVESTED MORE THAN USD 160 MILLION INTO THE DEVELOPMENT OF COMMUNICATIONS NETWORKS IN UKRAINE. TODAY, UTEL IS A MAJOR LONG-DISTANCE OPERATOR IN UKRAINE WITH 1,487 EMPLOYEES, 23 AFFILIATE OFFICES IN THE OBLASTS OF UKRAINE AND THE AUTONOMOUS REPUBLIC OF CRIMEA. UTEL'S TOTAL REVENUES EXCEEDED USD 312 MILLION IN 1997, WITH A NET PROFIT OF USD 34 MILLION FOR THE YEAR, UP FROM USD 27 MILLION IN 1996. THUS FAR, UTEL HAS RE-INVESTED ALL PROFITS INTO THE DEVELOPMENT OF UKRAINE'S TELECOMMUNICATIONS INFRASTRUCTURE.
57. UKRAINIAN MOBILE COMMUNICATIONS (UMC) WAS OFFICIALLY REGISTERED IN UKRAINE ON NOVEMBER 11, 1992. THE CO-FOUNDERS OF THIS JOINT VENTURE ARE THE MINISTRY OF COMMUNICATIONS OF UKRAINE, REPRESENTED BY UKRTELECOM (51 PERCENT), PTT TELECOM OF THE NETHERLANDS (16.33 PERCENT), TELECOM DENMARK (16.33 PERCENT), AND DBP TELECOM OF GERMANY (16.33 PERCENT). TODAY, UMC CONTROLS 90 PERCENT OF THE CELLULAR MARKET. UMC IS COMMITTED TO INVESTING UP TO USD 1 BILLION IN A GSM 900 CELLULAR NETWORK THAT WILL OPERATE ACROSS UKRAINE.
58. GOLDEN TELECOM IS A TRADEMARK OF JV BANKOMZVYAZOK, FOUNDED IN 1996 BY GLOBAL TELESYSTEMS GROUP OF THE U.S.(49 PERCENT) AND BANKOMSERVICE OF UKRAINE (51 PERCENT). THE COMPANY HAS INVESTED USO 16 MILLION INTO A MOBILE NETWORK AND PLANS TO INVEST AN ADDITIONAL USD 50 MILLION TO EXPAND ITS OPERATIONS TO OTHER CITIES. CURRENTLY, GOLDEN TELECOM PROVIDES ROAMING SERVICES WITH SWITZERLAND AND GREAT BRITAIN. GOLDEN TELECOM HAS ALSO STARTED OFFERING PREMIUM BUSINESS LONG DISTANCE LINES IN KYIV.
59. TELESYSTEMS OF UKRAINE IS A JOINT VENTURE ESTABLISHED BY QUALCOMM CORPORATION (49 PERCENT), THE UKRAINIAN COMPANY RHUTA-FARM (41.1 PERCENT), AND UKRTELECOM (9.9 PERCENT). QUALCOMM HAS COMPLETED FREQUENCY RESEARCH AND PERFORMED PREPARATORY WORK IN ORDER TO INTRODUCE COMA TECHNOLOGY TO UKRAINE. AS A RESULT OF THESE ACTIVITIES, THE CABINET OF MINISTERS OF UKRAINE ISSUED A RESOLUTION BY WHICH COMA WAS ADOPTED AS AN INTERNATIONAL STANDARD FOR THE DEVELOPMENT OF UKRAINIAN NETWORKS. IN APRIL 1997, THE MINISTRY OF COMMUNICATIONS AWARDED TELESYSTEMS OF UKRAINE A LICENSE FOR USE OF THE 800 MHZ BAND TO DEPLOY A CDMA (IS-95) FIXED WIRELESS NETWORK. TELESYSTEMS HAS INVESTED USD 22 MILLION INTO THE DEVELOPMENT OF THIS NETWORK WITH THE TOTAL COST OF THE PROJECT ESTIMATED TO BE USD 200 MILLION.
60. UKRAINIAN WAVE IS A JOINT VENTURE ESTABLISHED TO PROVIDE A FIXED AND PORTABLE WIRELESS NETWORK FOR THE CITY AND OBLAST OF LVIV. WESTERN INVESTORS IN THE PROJECT ARE COMMUNICATIONS TECHNOLOGIES (U.S.) HELLOTE (GREECE), AND HUGHES NETWORK SYSTEMS (U.S.). LOCAL INVESTORS ARE LVIVTELECOM (THE STATE-OWNED, LOCAL WIRELINE OPERATOR), LVIV RAILWAYS (THE STATE-OWNED OPERATOR OF RAILROADS IN WESTERN UKRAINE), AND A PRIVATE ELECTRICAL ENGINEERING AND DESIGN FIRM CALLED RENAISSANCE DR. THE EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT (EBRD) HAS AGREED TO PROVIDE DEBT FINANCING FOR THIS PROJECT IN LVIV. AFTER EXPANDING TO OTHER AREAS OF THE COUNTRY, UKRAINIAN WAVE PLANE TO HAVE A NATION WIDE TDMA NETWORK WORTH USD 100 MILLION WITHIN FIVE YEARS. THE INITIAL INVESTMENT WILL AMOUNT TO USD 27 MILLION AND THE COMPANY PLANS TO START INSTALLING THE NETWORK IN I998.
61. THE ITALIAN COMPANY ELSACOM IS IMPLEMENTING A GLOBAL STAR SATELLITE COMMUNICATIONS PROJECT IN UKRAINE. A BRAND NEW CENTER FOR SATELLITE COMMUNICATIONS HAS BEEN BUILT FOR THIS PROJECT NEAR THE CITY OF KYIV.
62. R.J. REYNOLDS (BRITISH-AMERICAN TOBACCO COMPANY) SECURED LOCAL MANUFACTURING FACILITIES THROUGH THE ESTABLISHMENT OF JOINT VENTURES WITH TWO UKRAINIAN TOBACCO FACTORIES. RJR TOBACCO-KREMENCHUK WAS OFFICIALLY INAUGURATED IN MAY 1993, WITH RJR TOBACCO- LVIV FOLLOWING SUIT IN NOVEMBER 1993. THE JOINT STOCK COMPANY R.J. REYNOLDS TOBACCO-KYIV EXCLUSIVELY MANAGES THE SALES OF CIGARETTES PRODUCED DOMESTICALLY. AS OF MAY 1998, THE COMPANY'S TOTAL INVESTMENT IN UKRAINE AMOUNTED TO APPROXIMATELY USD 25 MILLION.
63. COCA-COLA AMATIL, A GLOBAL PARTNER OF THE COCA- COLA COMPANY, HAS GAINED WIDESPREAD ACCEPTANCE OF COCA- COLA PRODUCTS IN UKRAINE SINCE ITS REGISTRATION IN JULY 1994. IT HAS ENJOYED SUCCESS DUE TO STRONG LOCAL MANUFACTURING AND MARKETING EFFORTS. COCA-COLA AMATIL HAS BECOME ONE OF THE LARGEST INVESTORS IN UKRAINE, WITH INVESTMENTS OF USD 200 MILLION. THE COMPANY EMPLOYS 2,000 LOCAL EMPLOYEES, HAS COMPLETED CONSTRUCTION OF THE COMPANY'S FIRST FACTORY IN THE CITY OF LVIV, AND A SECOND PRODUCTION FACILITY IN BROVARY (KYIV OBLAST). COCA-COLA AMATIL CONTINUES TO BE VERY POSITIVE ABOUT FUTURE BUSINESS PROSPECTS IN UKRAINE.
64. A NEW PEPSICO PRODUCTION LINE BEGAN OPERATION IN LATE 1996 AT THE ROSY BUKOVYNY PLANT IN CHERNIVTSI. PEPSICO HAS PRODUCTION LINES IN 10 CITIES AND PLANE TO BUILD TWO NEW PLANTS IN OR NEAR THE CITIES OF KYIV AND DNIPROPETROVSK. CURRENTLY, PEPSICO PRODUCTS HAVE A 20- 22 PERCENT SHARE OF THE UKRAINIAN SOFT DRINK MARKET.
65. CARGILL (U.S.) HAS MADE A LONG-TERM INVESTMENT COMMITMENT TO UKRAINE'S AGRICULTURAL SECTOR. CARGILL'S INVESTMENTS TO-DATE ARE APPROXIMATELY USD 100 MILLION. THE INVESTMENTS INCLUDE: THE CONSTRUCTION OF A SUNFLOWER SEED CRUSHING PLANT, THE CONSTRUCTION OF A GRAIN TERMINAL IN PORT YUZHNY, PRIVATIZATION AND RECONSTRUCTION OF GRAIN ELEVATORS, PRODUCTION AND DISTRIBUTION OF BLENDED MINERAL FERTILIZERS, AND AGRICULTURAL PRODUCTION ON THE BASIS OF ADVANCED TECHNOLOGIES DEVELOPED BY CARQILL WORLDWIDE OVER ITS CENTURY-AND-A-HALF HISTORY.
66. IN AUGUST 1995, KRAFT GENERAL FOODS INTERNATIONAL (USA) PURCHASED AN 88.4 PERCENT STAKE IN THE STATE- OWNED TROSTYANETS-BASED (SUMY OBLAST) UKRAINA CHOCOLATE FACTORY FOR USD 25 MILLION. THE REMAINING SHARES ARE BEING SOLD TO THE FACTORY'S EMPLOYEES.
67. MIDNIGHT SUN INC. (SWEDEN) ESTABLISHED THE JOINT VENTURE "SOUTH FOOD INC." TO PRODUCE KETCHUP AND CANNED VEGETABLES UNDER THE "CHUMAK" BRAND NAME IN JULY 1996. AS OF JANUARY 1998, MIDNIGHT SUN INC. HAS INVESTED USD 4.5 MILLION IN UKRAINE. CURRENTLY, "CHUMAK" TOMATO SAUCE HAS A 13 PERCENT SHARE OF THE UKRAINIAN MARKET.
68. IN 1996, SLAVUTYCH ESTABLISHED A JOINT VENTURE WITH BALTIC BEVERAGES AB, WHICH HOLDS A CONTROLLING STAKE IN SLAVUTYCH AND HAS INVESTED AN ESTIMATED USO 30 MILLION IN THIS VENTURE. IN MAY 1998, SLAVUTYCH STARTED ITS NEW FERMENTING PLANT, WHICH WILL INCREASE ANNUAL CAPACITY FROM 7 MILLION TO 10 MILLION DECALITERS. BALTIC BEVERAGES HOLDING AB, FINANCED THE NEW PLANT'S EQUIPMENT INSTALLATION.
69. PROCTER & GAMBLE (P&G) BEGAN LIMITED OPERATIONS IN UKRAINE IN LATE 1993, AND RAPIDLY EXPANDED ITS OPERATIONS IN MID-1995. SINCE 1995, P&G HAS INVESTED USD 48 MILLION, LAUNCHED SEVERAL CONSUMER BRANDS, AND CURRENTLY HAS 15 PRODUCTS ON SALE IN UKRAINE. THE COMPANY HAS ESTABLISHED A WIDE DISTRIBUTOR NETWORK THROUGHOUT UKRAINE AND OPERATES A WAREHOUSE NEAR KYIV. P&G PLANE TO DOUBLE ITS ANNUAL UKRAINIAN SALES IN THE NEXT FISCAL YEAR AND WOULD LIKE TO ACHIEVE USD 200 MILLION IN SALES BY THE YEAR 2000. P&G INTENDS TO UPGRADE THE COMPANY'S TAMBRANDS FACTORY IN BORYSPIL, THE COMPANY'S MAIN PRODUCER OF WOMEN'S HYGIENIC PRODUCTS FOR EUROPE. INVESTMENTS WILL ALSO BE CHANNELED INTO MANUFACTURING NEW PRODUCTS AND INCREASING BRAND MARKETING ACTIVITIES. THE COMPANY IS INVESTING HEAVILY IN ITS DISTRIBUTORS AND IT ANTICIPATES 6-LO REGIONAL DISTRIBUTORS DELIVERING TO APPROXIMATELY 50,000 STORES AND EMPLOYING 1,200 PEOPLE.
70. THE POLTAVA PETROLEUM COMPANY (PPC), A JOINT VENTURE BETWEEN THE UKRAINIAN GOVERNMENT (THE STATE PROPERTY FUND AND UKRGASPROM'S SUBSIDIARY POLTAVAGASPROM) AND JKX OIL & GAS OF U.K. (49 PERCENT), WAS REGISTERED IN JANUARY 1994. IN APRIL 1995, THE EBRD GRANTED PPC A LOAN OF USD 8 MILLION, THE BANK'S FIRST INVESTMENT IN THE UKRAINIAN ENERGY SECTOR. IN 1997, THE COMPANY PUMPED 340 MILLION CUBIC METERS OF GAS (NEARLY 2 PERCENT OF UKRAINE'S TOTAL GAS PRODUCTION) TO ITS GAS DEPOSITORIES. THAT SAME YEAR, PPC'S EXTRACTED 10,655 BARRELS OF OIL A DAY, UP FROM 7,900 BARRELS IN 1996.
71. THE UKRAINIAN STATE COMPANY CHORNOMORNAFTOGAS (WHOSE SHARES ARE NOW MANAGED BY THE NEWLY-CREATED NATIONAL JSC NAFTOGAS) AND RUSSIAN JSC GASPROM SIGNED AN AGREEMENT ESTABLISHING A JOINT VENTURE THAT WILL EXTRACT OIL AND NATURAL GAS ON THE AZOV AND BLACK SEA SHELVES. THE JOINT VENTURE PLANS TO INCREASE OIL AND GAS EXTRACTION ON THE AZOV AND BLACK SEA SHELVES BY 300 PERCENT ANNUALLY (FROM 800 MILLION CUBIC METERS OF GAS TO 2.4 BILLION CUBIC METERS AND 80,000 TONS TO 240,000 TONS OF HYDROCARBONS.) ACCORDING TO INDUSTRY SPECIALISTS, THE AZOV-BLACK SEA REGION DEPOSITS CONTAIN APPROXIMATELY 1.5 BILLION TONE OF CONVENTIONAL FUEL.
72. NORTHLAND POWER, A LEADING CANADIAN PRIVATE POWER DEVELOPER, HAS BEEN WORKING WITH THE MINISTRY OF ENERGY SINCE 1991 ON MODERNIZING THE DARNYTSIA POWER AND DISTRICT HEATING PLANT IN KYIV. IN MAY 1997 NORTHLAND POWER (51 PERCENT), THE STATE PROPERTY FUND (35 PERCENT) AND THE DARNYTSIA WORKERS COLLECTIVELY (14 PERCENT) FORMED A JOINT VENTURE COMPANY, UKR-CAN POWER, TO UNDERTAKE THE RECONSTRUCTION AND MODERNIZATION OF THE PROJECT AS WELL AS TO MANAGE AND OPERATE THE FACILITY. UKR-CAN POWER WILL SELL ELECTRICITY ON A LONG-TERM CONTRACT TO THE ENERGY MARKET, SELL HEAT AND HOT WATER TO RESIDENTIAL AND COMMERCIAL ORGANIZATIONS, AND STEAM TO SEVERAL INDUSTRIAL USERS. IT WILL PURCHASE FUEL ON A LONG-TERM CONTRACT FROM THE NATIONAL GAS DISTRIBUTION COMPANY, UKRGASPROM. AFTER THE RECONSTRUCTION PROJECT IS COMPLETED AND ALL PROJECT DEBT AND ADEQUATE COMPENSATION REPAID TO THE INVESTOR, NORTHLAND POWER WILL RELINQUISH ITS INTEREST IN THE JV TO THE UKRAINIAN PARTNERS. THIS IS PLANNED TO OCCUR 15 YEARS FROM THE DATE OF COMMISSIONING OF THE MODERNIZATION PROJECT. THE ESTIMATED COST OF THE PROJECT IS USD 150 MILLION.
73. THE U.S.-LED JOINT VENTURE KYIV-ATLANTIC UKRAINE CONSTRUCTED AN INTEGRATED AGRI-SERVICE CENTER IN MYRONIVKA (KYIV OBLAST). THE PROJECT RECEIVED USD 20 MILLION IN FOREIGN INVESTMENT, INCLUDING A USD 16 MILLION EBRD LOAN. THE CENTER INCLUDES A MIXED FEED PLANT (50,000 METRIC TONE PER YEAR), AN OIL SEED PROCESSING PLANT (50,000 METRIC TONS PER YEAR), AND A GRAIN ELEVATOR (50,000 METRIC TONS PER YEAR).
74. MCDONALD'S UKRAINE LTD., WITH 100 PERCENT FOREIGN INVESTMENTS WAS OFFICIALLY REGISTERED IN DECEMBER 1995. MCDONALD'S OPENED ITS FIRST RESTAURANT ON MAY 24, 1997, AND 10 ADDITIONAL RESTAURANTS SINCE (SEVEN IN KYIV, TWO IN KHARKIV, AND ONE IN DNIPROPETROVSK). AS OF MAY 1998, MCDONALD'S HAD INVESTED USO 23.5 MILLION IN UKRAINE AND PLANE TO BUILD 85 RESTAURANTS DURING THE NEXT 5 YEARS, WITH THE TOTAL INVESTMENT OF MORE THAN USO 100 MILLION.
This report is provided courtesy of the Business Information Service for the Newly Independent States (BISNIS)

FM AmEmbassy. Investment Climate Statement for Ukraine 14 AUG 98 FM AMEMBASSY KIEV



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