Hillmont Partners and Squire Patton Boggs Co-Hosted Webinar on Protecting Investments in the Renewable Energy Sector in Ukraine

On 24 June 2020, Hillmont Partners and Squire Patton Boggs, supported by Energy Club and A7 Capital, co-hosted a special online session entitled ‘Protecting Your Investments: Options for Investors in the Renewable Energy Sector’ to address the key practical aspects of existent legal remedies to protect assets and investors’ rights in Ukraine.

Tetiana Mylenka, Counsel at Hillmont Partners, Head of the firm’s Energy Practice, acted as a headline expert speaker and moderator of the webinar. She opened the online session with an overview of the major developments impacting investments in the renewable energy sector (RES). As an immediate participant of the negotiations between RES investor and the Government of Ukraine, Tetiana spoke about key expectations that RES businesses had in Ukraine in relation to the recently signed Memorandum of Understanding with the Government of Ukraine. Tetiana provided her analysis of the draft law on feed-in tariff restructuring No. 3658 of 15 June 2020 and highlighted a number of guarantees available under effective legislation to the foreign investors and producers of electricity from renewables.

José Feris, Partner with International Dispute Resolution Practice Group at Squire Patton Boggs, Paris office, spoke about potential for arbitration against Ukraine and provided insights on the remedies available to RES Investors under the Energy Charter Treaty (ECT) and Bilateral Investment Treaties (BITs). He also explained key issues in respect to recognition, enforcement and payment of an arbitral award.

According to John Branson, Partner with International Dispute Resolution Practice Group at Squire Patton Boggs, New York office, recent years have seen a dramatic increase in the number of arbitrations brought under the ECT, as host-states have taken actions similar to those now being contemplated by Ukraine against wind and solar producers. He outlined the phases and timing of an investment arbitration and explained what damages may be claimed and how collective claims can be used to reduce costs.

Bohdan Novyk, lawyer at Hillmont Partners, provided an overview of the remedies available under Ukrainian law, including filing a lawsuit to the Commercial Court of Ukraine, filing a constitutional complaint to the Constitutional Court of Ukraine, and lodging an application with the European Court of Human Rights.

The findings of the Ukraine RES Market Survey, which was conducted in partnership with Energy Club and A7 Capital, were presented by Tetiana Mylenka. Our respondents included local and international RES investors, as well as covered those businesses currently operating outside Ukraine but considering entering the market. As highlighted in the responses, the situation with the anticipated feed-in tariff cuts negatively affected 90% of businesses participating in the research and brought them damages roughly estimated at EUR 5-20 million. Two thirds of the respondents reported they hadn’t yet developed a strategy to deal with the “green” tariff restructuring and not yet decided on the legal remedies to use, while the rest confirmed they were ready to defend their rights in local and international courts.

Watch a recording of the webinar at  https://youtu.be/vR5O3qjTbVA

The presentation of the webinar can be downloaded at https://bit.ly/3e9592R

The presentation of the findings of the Ukraine RES Market Survey can be downloaded at https://bit.ly/2Wh31A5

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