Ukraine: Corporate reorganization during the ongoing war
Russia’s full-scale invasion has seriously affected business within Ukraine. The National Bank of Ukraine (NBU) estimated that, as of May 2022, capital losses from the destruction of enterprises, residential buildings and infrastructure amounted to US$100 billion – equivalent to 50 percent of the country’s GDP for 2021.
However, despite continued challenges, disrupted business processes are largely back on track, and some sectors, such as information technology, are even showing growth.
Below are key considerations that should be taken into account today during a global reorganization transaction involving businesses in Ukraine.
Corporate registration actions
The corporate reorganization process in Ukraine generally requires certain changes, such as share transfer, change of management bodies, entity name and amount of share capital, to be introduced to the company’s state company register.
During the first months of martial law in Ukraine, state registration for a number of actions was restricted. These restrictions have since been lifted, and all state registration services are being provided in full scope.
Access to state registers was suspended in temporarily occupied territories of Ukraine. Registration actions with respect to assets and entities located in such territories have since been performed by authorized state registrars (including private notaries) in unoccupied regions of Ukraine.
Currency control restrictions
In February 2022, the National Bank of Ukraine adopted a resolution regulating the operation of the country’s banking system in light of the war in Ukraine. The resolution introduced a number of restrictions, including prohibition of the cross-border transfer of foreign currency outside Ukraine (subject to exceptions) and prohibition of monetary transactions with counterparties located, registered or residing in Russia or Belarus.
Despite continued challenges, disrupted business processes are largely back on track.
As the situation in Ukraine changes, the NBU continues to amend currency control restrictions – there have been more than 30 updates at the time of writing. Effective currency control restrictions should be monitored if any cross-border payments involving Ukraine are to be performed.
Pursuant to the Ukrainian Sanctions Law, sanctions may be sectoral (ie, imposed on another country or indefinite persons engaged in certain type of activity) or personal (ie, related to particular foreign legal entities; legal entities controlled by a foreign legal entity; non-resident individuals; foreign individuals; stateless individuals; and organizations involved in terrorism).
While sectoral sanctions are ultimately approved by the Parliament of Ukraine, personal sanctions are enacted through resolutions penned by the State National Security and Defense Council of Ukraine and are subsequently approved by decrees signed by the President of Ukraine.
To date, no sectoral sanctions have been approved by the Parliament of Ukraine. However, after being adopted in September 2015, numerous personal sanctions have been approved or renewed by the Security Council.
Should a global corporate reorganization project involve individuals or entities with connection to Russia or Belarus, it is important to check the Ukrainian sanctions lists along with those adopted in the EU, UK and US.
Expropriation and nationalization
During martial law, Ukrainian courts are allowed to expropriate without compensation the assets of a sanctioned person whose property is blocked by Ukrainian sanctions.
In addition, in March 2022, a Ukrainian law entitled “On the Basic Principles of Forcible Seizure of Objects of Property Rights of the Russian Federation and its Residents in Ukraine” came into effect. The law introduced a procedure for forcible seizure (ie, nationalization) of property owned directly or indirectly by Russia in Ukraine, regardless of whether or not the property was blocked by sanctions.
Welcome to Crossroads – ICR Insights
Crossroads – ICR Insights is our series of short-read articles designed to assist organizations considering an international corporate reorganization (ICR). Each country-specific, solutions-based brief will answer a key consideration during a global transaction such as carveouts, spinoffs, acquisitions and dispositions, pre- and post-acquisition integration, or legal entity rationalization. Visit Crossroads – ICR Insights to view the entire collection or sign up to be notified of new postings. Have an idea of a topic or interested in discussing further? Email ICRCrossroads@dlapiper.com.*Alla Kozachenko is a partner at Kinstellar in Ukraine. You may reach her via firstname.lastname@example.org.