Antitrust / Competition
In 2015, the Ukrainian competition law enforcer (AMCU) was busy with additional pressures caused by staff optimisation. The newly-appointed management focused, among other things, on power and gas, FMCG and pharma retail, utilities, and domestic air services sectors. The majority of enforcement actions related to abuse of dominance, cartels and a fair share of unfair competition cases. A number of clients continue to apply for the amnesty announced by the AMCU for past non-notified mergers, which will last until 15 September 2016. The number of AMCU decisions which were appealed against in courts was not significant as the courts are currently reluctant to second-guess the Committee.
The major recent achievement was the passing of merger control reform laws aimed at aligning the Ukrainian regime with EU rules. From 18 May 2016, the two sets of reshaped statutory thresholds will come into force, whose expected effect is to capture higher value transactions with closer nexus to Ukraine rather than sweeping deals with remote ties to Ukraine.
The number of Phase II reviews is expected to increase as the AMCU will look into concentrations having real impact on the Ukrainian market with emphasis on substantive analysis. A fast track review will be introduced for certain low-impact transactions. More straightforward notification and disclosure rules are expected to be adopted by the AMCU soon. The Committee became more transparent by publishing its decisions and by adopting fining guidelines so making the AMCU’s approach to penalties more predictable. Notably, the AMCU is preparing for full scale introduction of state aid rules in 2017.
Some issues still remain to be resolved. For example, a target is still taken as a part of the seller’s group for calculating the thresholds, ancillary restraints (e.g. non-compete clauses) are still cleared separately from a merger notification, and the courts are not authorised to review a fine or remedy imposed by the AMCU.
For 2016, we expect the role of legal counsel to become more complex in merger filings with additional emphasis on substantive analysis with use of economics experts. Given the AMCU’s scrutiny, the volume of work related to dominance abuse, cartel investigations and public procurement disputes will also increase and the parties will appeal against more of the AMCU’s decisions given the increasing sums of fines.
As the undisputed leader of the Ukrainian competition law market, Asters is the largest team in terms of scope of work and human capacities. This is the only competition team in the country with three dedicated partners on board. The top practice possesses broad experience in the entire spectrum of antitrust and competition issues including merger control, compliance, unfair competition matters, investigations. Of late the team has acted for Actavis plc and Allergan, Inc. in the USD 66 billion acquisition by Actavis plc of control over Allergan, Inc; obtained merger and antitrust clearances for three-part inter-conditional transaction between GlaxoSmithKline plc and Novartis AG; obtained merger clearance for the acquisition by General Electric Company of Alstom’s Thermal & Renewable Power and Grid businesses; and handled many other significant mandates. Among significant public clients are AC Nielsen Ukraine, Teva Pharmaceutical Industries Ltd, GlaxoSmithKline plc, Allergan plc, Philip Morris, Siemens, Mars, Cisco Systems, Alstom, Clariant, GE, KKR, Evonik Industries, Vivendi and others. Igor Svechkar, partner, is a hugely respected figure on the market, serving as an eminent leader. Alexey Pustovit, partner, has an outstanding record of advising Ukrainian and international clients. Oleksandr Voznyuk, partner, enjoys incredible support from the market insiders, and is called among the most experienced practitioners with a solid background in both public service and private legal practice.
Long-standing Sayenko Kharenko’s competition team retains a leading position in the market. Traditionally active in advising on merger control issues, in 2015 the team handled over 100 mergers and non-compete filings with the Ukrainian competition authorities for cross-border M&A deals. The firm has also represented a number of the worldwide leading companies in relation to unfair competition and anticompetitive concerted practices investigations before the AMCU. The key highlights include advice on Ukrainian competition law issues related to the GBP 47 billion acquisition of BG Group plc by Royal Dutch Shell plc; USD 32 billion three-part inter-conditional transaction between GlaxoSmithKline plc and Novartis AG; USD 17 billion acquisition of Sigma-Aldrich Corporation by Merck KGaA. The client representation on cartel and unfair competition issues include a wide range of international and local businesses in chemical, pharmaceutical, tobacco, consumer goods, pulp and paper, energy, etc. The core competition team members include counsel Maksym Nazarenko and senior associate Valentyna Hvozd. The prominent individual — partner Vladimir Sayenko, ishighly referred as a core rainmaker. Dmitry Taranyk, partner, is another highly referenced individual.
In April 2015 renowned professional Antonina Yaholnyk established CLACIS, an independent competition law advisory boutique. The boutique is designed as a “one-stop-shop” platform for CIS backed competition law matters on the regional level. With an impressive workflow of merger filings mandates, throughout 2015 the team acted for Alcoa Inc., the largest U.S. aluminum producer, in its planned USD 2.85 billion acquisition of UK aerospace-components maker Firth Rixson Ltd; represented ArcelorMittal and CLN Group in merger clearance for establishing a joint venture; acted for MHP and Dnister Agro in merger clearance for the acquisition by PJSC MHP of Dnister Agro (agricultural assets). It is noteworthy that the team worked on obtaining CIS merger control approvals and general competition law advisory for several JVs in Ukraine and in the CIS region with leading business representatives European Bearings Corporation, a Russian leader in bearing production. At present CLACIS represents The Timken Company, US based global bearing producer, in the second phase competition law investigation. Another landmark work is supporting MasterCard in a competition law matter in Ukraine, Russia and Kazakhstan. Antonina Yaholnyk, foundingpartner is among the top esteemed practitioners on the market. The key team member is Kateryna Tkachenko, who successfully represents clients in terms of market investigations and competition law cases, especially in unfair competition law matters. In October the team was strengthened with the arrival of Olga Prytyla from the AMCU.
Established in 2015 the AEQUO teamhas rapidly occupied its niche on the market and continued to win new mandates from existing and new clients. The firm’s workload has covered a wide range of issues, namely highly sophisticated merger control matters, abuse of dominance, cartel cases and high value disputes. For example, over the past year the dedicated team provided advice to George Soros’s Ukrainian Redevelopment Fund on the acquisition of a significant equity stake in Ciklum Holding Limited; obtained merger clearance for the establishment of the joint venture between Sidel and Amcor; represented Perrigo Company LLC (Ireland) in connection with large hostile takeover by pharmaceutical company Mylan. The team is also known for representing Novus in an alleged cartel case and is currently challenging a decision adopted by the AMCU. The market player impresses with the list of its international clientele that contains names like 21st Century Fox, Tetra Laval, Schneider Electric, Apollo Global Management, NCH Capital, Fairfax Financial, Apax Funds, and others. In July 2015 partner and practice head Mariya Nizhnik was appointed the State Commissioner of the Antimonopoly Committee of Ukraine. Denis Lysenko, managing partner, has taken over the role as head of practice. Sergey Denisenko, counsel, is highly active across the firm’s projects and is endorsed by market insiders for his strong practice dedication.
The traditionally well-versedcompetition practice of DLA Piper Ukraine demonstrates a diverse offering encompassing merger control, antitrust and strategic competition advice, anti-competitive concerted practices, abuse of dominance; commercial agreements and trade practices (distribution, marketing, merchandising, tendering procedures), competition compliance audits, representation in competition investigations; competition litigation. Thus, in 2015 the team provided full legal support in obtaining clearance from the AMCU for shareholders of Pharma Start LLC in connection with the sale of a 100% stake in Pharma Start to Acino Pharma AG; advised Comverse Inc for the purchase of Acision, a privately-held UK company. Another notable representation covered acting for a global pharmaceutical company during a market investigation undertaken by the AMCU with regard to concerted actions and price regulations for pharmaceutical products on the Ukrainian market. Among the notable public clients are Pharma Start LLC, Comverse, Inc., Ferrero International S.A., Mondelez Ukraine, Pfizer, Bacardi, Sanofi-Aventis. Galyna Zagorodniuk, recently promoted to partner, ishighly respected for her considerable experience.
Arzinger law office is mostly known for its industrial approach and the past year was very active in pharmaceutical and healthcare, retail, FMCG, agrarian, banking sectors. The scope of work covers merger control, unfair competition, compliance, vertical and distribution agreements, tenders, representation in investigations. The highlights of the previous year were covering advice on Ukrainian competition law issues related to the USD 600 million acquisition by Imerys of business S&B; advising the EBRD in connection with the establishment of a joint venture with Soufflet Agriculture S.A.S. Presently the practice is led by Timur Bondaryev, managing partner, and Lana Sinichkina, partner, both active in contributing to reform of Ukrainian competition law.
CMS Cameron McKenna is a long-standing practice with a strong international following for merger control advice in terms of M&A, JVs establishment and corporate restructuring; structuring commercial arrangement from antitrust perspective. The Kiev office is present in a range of industries, handling assignments of agrarian and food industries, manufacturing, finance, etc. Senior partner Olexander Martinenko, renowned general practitioner, is especially highly esteemed for handling competition projects. Olga Belyakova, recently promoted partner, is known for her deep involvement in practice. Nataliya Nakonechna and Mykola Heletiy make up the core team.
The Kiev office of Baker & McKenzie is regularly seen handling competition work for big multinational public and private companies in connection with merger control, unfair competition, competition aspects of IPO and private placement. In 2015 the practice group advised Unilever U.K. Holdings Limited in two merger control filings in connection with the direct acquisition of REN Limited and REN USA Inc.; assisted in a joint acquisition by Avista Capital Partners and Nordic Capital of 100% of LLC Pharma Start; advised Rozetka UA in acquisition of LLC OTK Europlus and sale of a minority stake to a leading private equity fund focusing on Ukraine. The Kiev team gained particular expertise in advising clients, especially from the pharma sector, as well as consumer goods companies, on the implications of various vertical arrangements with Ukrainian customers. Partner Oksana Simonova leads the office’s competition and pharmaceuticals practice groups. The team includes Olga Mikheieva and Nataliya Kovalyova.
Egorov Puginsky Afanasiev & Partners Ukraine team, guided by partner Oksana Ilchenko, continues to provide local and international clients with comprehensive competition law advice including merger and concerted actions clearances and related investigations, investigations of the alleged abuse of dominant position, unfair competition, and competition aspects of commercial arrangements (e.g., exclusive distribution agreements). The firm was recently instructed to assist Kemira Oyj with obtaining merger clearance with the AMCU for the acquisition of the paper chemical business of AkzoNobel; advised Nokia Corporation in connection with obtaining regulatory clearance for the acquisition of Alcatel-Lucent. The firm also advised one of the world’s leading farm equipment manufacturers on the competition aspects of distribution arrangement with Ukrainian dealers. Partners Oleg Boichuk and Ilona Zekely, an Austrian lawyer, are important team members.
Ilyashev & Partners develops and broadens its offering on various matters of antitrust law in Ukraine and abroad, inter alia, merger clearance work, anticompetitive practices, public procurement. Amongst notable highlights of the past 12 months is advising Letter One Group in the acquisition of the German company RWE Dea AG and assisting PZU S.A. in the acquisition of shares in Alior Bank. The firm is also present in some investigations conducted by the AMCU. Oleksandr Fefelov, the head of antitrust and competition practice, is a point of reference named by peers.
Avellum obtains merger control mandates, competition aspects of distribution arrangements and regulation, antitrust due diligence. In 2015 the team, as led by managing partner Mykola Stetsenko, acted for Mohawk Industries, Inc. in obtaining merger clearance in the USD 1.2 billion acquisition of IVC Group.
Dentons is observed to extend its practice and commends coverage of a wide range of competition/antitrust matters within cross border M&A transactions and complex corporate restructuring; advising on abuse of dominance, concerted actions and compliance. The growing clientele industry-wise encompasses the telecom, energy, luxury, hotel and leisure and MLM sectors. In 2015 the Kiev office advised IK Investment Partners in obtaining Ukrainian merger clearance for acquisiton, through Palmyra Sp. z o.o., via a tender offer of up to 100% of Ferro S.A. Borys Schwarzer is the key practitioner, and Volodymyr Monastyrskyy is a contact partner.
Vasil Kisil & Partners re-booted its antitrust and competition practice with merger control work, advice on anticompetitive concerted actions and abuse of market dominance, investigations, and commercial agreements. The firm’s clientele consists of energy and mining, retail, IT, pharma, investment sectors. Among the notable matters in the recent caseload of the firm is advising Billa Ukraine in a cartel investigation and further ongoing court proceeding on challenging the AMCU’s decision (the AMCU has found eighteen operators of FMCG retail chains guilty of concerted practices in the form of information). Anna Sisetska, counsel, became a key competition practitioner in the firm.
As part of the magic circle, the legal team of Redcliffe Partners (prior to 1 December 2015 — the Kiev office of Clifford Chance) has been mandated for the largest cross-border M&A deals involving Ukrainian assets, offering seamless antitrust and merger clearance advice relating to such projects. Selected highlights in 2015 include advising General Electric on obtaining merger clearance relating to USD 13.9 billion acquisition of Alstom’s power business; Hearst Corporation on the Ukrainian competition law matters relating to USD 2 billion acquisition of Fitch Group; Mondelez International on competition law matters related to the demerger of its coffee business. Advice on cartels, state procurements, abuse of dominance and antitrust compliance fall within the firm’s remit. Partner Dmytro Fedoruk and senior associate Natalia Gerus lead the practice.
New market player EVERLEGAL, a domestic law firm, enjoys strong expertise of its main performers. The practice is co-headed by Yevheniy Deyneko, managing partner and Ulyana Khromyak, of counsel. Among the clientele are international corporations and private equity houses, as well as global law firms. In terms of industries, the firm focuses on pharma, IT, agro, energy, banking and finance. Some recent mandates included advising a world-leading digital industrial company on complex antitrust issues in connection with its acquisition of power and grid business and formation of a joint venture; a leading online retailer in acquisition of control over another online retailer’s business via an asset deal.
Integrites maintains flourishing activity in obtaining merger clearances and concerted actions approvals, review of corporate structures as to compliance with antitrust laws. The firm also represents clients in antitrust investigations, preparing and adapting compliance manuals. Among the latest highlights is obtaining merger clearances and concerted actions approvals for Archer Daniels Midland Company, Nova Poshta, Farmak as well as advising Master & Dynamic and Aspen Pharmacare Holdings Ltd on antitrust compliance issues. The list of selected clients includes Iron Mountain Inc., Malbi, IATA and Rockwool. The rapidly growing practice is led by a notable partner by the name of Oleksandr Aleksyeyenko.
Wolf Theiss retains the lion’s share of merger control work that comes from the firm’s M&A track. As an example, the Kiev team acted for AMIC Energy Management GmbH, in obtaining merger clearance for the direct acquisition of LUKOIL-Ukraine, a 100% company with foreign investments; obtained merger clearance in connection with indirect acquisition (as part of a global transaction) in an Ukrainian company involved in the provision of IT services by Emeram Capital Partners GmbH. Olga Ivlyeva leads the practice.
ANTIKA Law Firm is known for the expertise of its team and especially its managing partner Alexey Kot. The recent work highlight is advising on purchase of shares of a bank and obtaining a permit for concentration. Senior associate Alexander Tretiakov inputs the team.
Being dedicated to the pharmaceutical industry, Legal Alliance Company provides industry specific competition offering. The recent caseload concerned anticompetitive concerted actions regarding medicinal products supply, unfair competition, and commercial agreements. The team is notably active in advising on TV advertising. In the past year the firm supported Berlin-Chemie AG in a case related to violation of legislation on economic competition through anticompetitive concerted actions; protected AIPM Ukraine in a case against Pro-Pharma Agency on distribution of TV advertisement containing violations in the field of unfair competition. Andrii Gorbatenko, associate partner, and Lidiya Sangarovskaya-Gurlach, senior associate, are the core practitioners. Illya Kostin, partner, supervises the firm’s practice.
Jeantet is a French international law firm launched in Ukraine in November 2015 by taking over the Kiev office of Gide Loyrette Nouel. The team inherited Gide’s strong expertise. In November 2015 Jeantet advised Ansaldo Energia on the acquisitionof Alstom advanced gas turbine business. Oleksiy Soloviov is the main point of contact.
Occupying its aviation niche on the market, ECOVIS Bondar & Bondar continued advisingUkraine International Airlines with regard to alleged violations of Ukrainian competition law on the Ukrainian aviation fuel market and on obtaining clearance from the AMCU for concerted actions related to cooperation with KLM Royal Dutch Airlines. Another notable case involved representing LLC Interavia on Ukrainian competition law issues in connection with protection of the company’s interests in Boryspil International Airport. Oleksandra Nikitina, partner, and Olena Kravtsova, senior associate, handle the respective workflow.
WTS Tax Legal Consulting advises clients in the area of the antitrust and competition law and accompanies restructuring projects, M&A, obtains approvals from the competition authority for concentration and concerted actions. The firm frequently advises on unfair competition issues and monitors packaging models, food labels and non-food products, advertising drafts, terms of advertising campaigns and labeling of products with a discount. Other areas of advice include competition aspects of distribution and projects in the agrarian sector. Maxim Oleksiyuk and Alexander Shemiatkin are leading partners.
FCLEX covers competition law matters within the framework of the firm’s comprehensive corporate projects and dispute settlement. In 2015the firm advised PJSC Zaporozhtransformator when it contested the decision of the AMCU to prohibit it from taking part in procurement for 3 years. The firm was also recently involved in a dispute on cancellation of a tender in connection with violation of procurement regulation where it defended Telecommunication technology. The practice is headed by partner Andriy Nikitin.
Acquisitions-related mandates in the agrarian sector have been a key focus of Law Offices of OMP. The team provided complex support for the owners of Agrokultura Holding in exchange of assets of its group of subsidiaries for MHP S.A. Russian group of subsidiaries; advised Makaronna factory PJSC on the sale of a plant; assisted Prometey Group in its purchase of an elevator complex in Mykolaiv Region. The 6-lawyer team is guided by Yaroslav Sverdlichenko, partner.
Over the past year the competition team of KPMG Ukraine, as led by Tetiana Zamorska and Yuriy Katser, covered merger control issues related to both domestic and foreign transactions. For example, providing legal advice to Soudal Holding NV in the acquisition of an EU construction materials manufacturer; one of the leading European construction materials manufacturer in the acquisition of a Latvian construction materials manufacturer.
In the last year EY was centred on merger clearance work and recently obtained merger and concerted actions clearance for Horizon Capital’s acquisition of control over Rozetka group; advised on antitrust matters at the pre-transaction restructuring stage and full support in the acquisition of a water filter manufacturer holding a significant market share in Ukraine by a EU group specializing in water treatment technologies. Albert Sych, Borys Lobovyk and Bogdan Malnev are actively involved in practice.
Throughout 2015 Peterka & Partners assisted Soufflet Group in obtaining antitrust and merger clearances, as well as in accomplishment of local formalities related to the consolidation of all of Soufflet’s existing and future silo and seed plant business in a new company called International Grains Silos. Tatiana Timchenko, partner, is the director of the Ukrainian office.
Kharkov-based Shkrebets & Partners is a vivid litigation force in the region. The firm recently, as supervised by managing partner Eugene Shkrebets, representedthe interests ofNovobud-Komfort in a dispute with the territorial department of the Ukrainian competition authority in Kharkov Region.