Legal framework

Domestic legislation

What is the main domestic legislation as regards trade remedies?

The main domestic legislation regarding trade remedies is as follows:

  • Law No. 959-XII on Foreign Economic Activity, 16 April 1991 (last amended 7 February 2019);
  • Law No. 330-XIV on Protection of Domestic Industry against Dumped Imports, 22 December 1998 (last amended 4 October 2018);
  • Law No. 331-XIV on Protection of Domestic Industry against Subsidised Imports, 22 December 1998 (last amended 4 October 2018); and
  • Law No. 332-XIV on Application of Safeguard Measures against Imports to Ukraine, 22 December 1998 (last amended 4 October 2018).

English translations of these laws, accurate as at January 2013, can be found in Ukraine’s notification to the WTO regarding laws and regulation on trade remedy matters available on the WTO website (G/ADP/N/1/UKR/1/Suppl.1, G/SCM/N/1/UKR/1/Suppl.1 and G/SG/N/1/UKR/1/Suppl.1) at www.wto.org/english/thewto_e/countries_e/ukraine_e.htm.

On 4 October 2018, the law of Ukraine ‘On Amendments to the Customs Code of Ukraine and some other laws of Ukraine regarding the introduction of a “single-window” system and optimisation of control procedures for goods moving across the customs border of Ukraine’ was adopted. Inter alia, this Law provides a uniform single-window system used in all branches of international economic activity and improves the procedure for acquiring of licences for goods that are or may be subject to special (safeguard) duty, anti-dumping duty and countervailing duty.

Furthermore, in March 2018, the Ukrainian government submitted to Parliament five draft laws concerning the reform of trade defence instruments in Ukraine. The draft laws comprise new versions of the laws of Ukraine ‘On Protection from Dumped Imports’, ‘On Protection from Subsidised Imports’ and ‘On Safeguard Measures’, as well as including a draft law ‘On Amendments to the Legislative Acts in the Area of Trade Defence’ and a draft law ‘On Amendments to the Customs Code of Ukraine Concerning Trade Defence’. The draft laws are currently being considered by Committees of the Ukrainian Parliament.

International agreements

In general terms what is your country’s attitude to international trade?

Trade liberalisation at multilateral level

As a WTO member Ukraine has been taking advantage of the WTO negotiating and dispute settlement mechanisms. Since accession to the WTO in 2008 Ukraine has participated in 54 WTO disputes. In nine of these Ukraine has participated as a complainant, in four as a respondent and in 41 as a third party. The current disputes that Ukraine is involved in as complainant are the following:

As complainant:

  • DS499: Russia - Measures Affecting the Importation of Railway Rolling Stock, Railway Switches, other Railway Equipment and Parts Thereof (Panel report under appeal on 27 August 2018);
  • DS512: Russia - Measures Concerning Traffic in Transit (Report(s) adopted, no further action required on 26 April 2019);
  • DS530: Kazakhstan - Anti-dumping Measures on Steel Pipes (in consultations on 19 September 2017);
  • DS532: Russia - Measures Concerning the Importation and Transit of Certain Ukrainian Products (in consultations on 13 October 2017);
  • DS569: Armenia - Anti-Dumping Measures on Steel Pipes (in consultations on 17 October 2018); and
  • DS570: Kyrgyz Republic - Anti-Dumping Measures on Steel Pipes (in consultations on 17 October 2018).

The current disputes that Ukraine is involved in as respondent are the following:

  • DS493: Ukraine - Anti-Dumping Measures on Ammonium Nitrate (complainant - the Russian Federation; Panel report under appeal on 23 August 2018); and
  • DS525: Ukraine - Measures relating to Trade in Goods and Services (complainant - the Russian Federation; in consultations on 19 May 2017).

Moreover, Ukraine has ratified the Trade Facilitation Agreement and acceded to the revised Government Procurement Agreement. Ukraine is also a party to the protocol amending the Agreement on Trade-Related Aspects of Intellectual Property Rights that provides for facilitating access to affordable medicines for poorer countries.

Trade liberalisation at regional level

Since 2014 Ukraine has been a party to the EU-Ukraine Association Agreement. The Association Agreement came into full force on 1 September 2017. The economic part of the Association Agreement establishing the Deep and Comprehensive FTA commenced in January 2016. It was, however, being provisionally applied until both chambers of the Dutch Parliament upheld ratification of the Association Agreement.

The EU-Ukraine Association Agreement provides for political association and economic integration between the parties and includes a ‘deep and comprehensive free trade agreement’ (DCFTA) as an integral part. The Association Agreement was the first example of a new generation of agreements between the EU and Eastern Partnership countries focusing on core reforms, good governance, economic recovery and growth and cooperation in a number of sectors, including energy; transport; environmental protection; industrial cooperation; social development and protection; equal rights; consumer protection; and education, youth and cultural cooperation. Special attention was given to respect for human rights and fundamental freedoms, the rule of law, democracy, market economy and sustainable development. The DCFTA, apart from the liberalisation of services and the elimination of tariffs for most goods, stipulates harmonisation with EU standards, conformity assessment requirements, sanitary and phytosanitary rules, and norms on intellectual property protection, public procurement and competition. The DCFTA also includes specific provisions on trade-related energy matters.

In January 2019, the EU initiated a trade dispute against Ukraine based on the EU-Ukraine Association Agreement (for details, see question 21)

Ukraine has also FTAs with the CIS states (1994), Macedonia (2001), GUAM states (Georgia, Ukraine, Azerbaijan and Moldova) (2002), the EFTA states (2010), Montenegro (2012), Canada (2016) and Israel (2019). Furthermore Ukraine and Turkey anticipate concluding an FTA by the end of 2019.

Ukraine’s trade deal with the EFTA states was the first comprehensive and modern FTA concluded by Ukraine. The FTA covers trade in goods and services, investment, intellectual property rights, government procurement, competition, institutional provisions and dispute settlement.

Ukraine is a party to the Commonwealth of Independent States (CIS) FTA between Armenia, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan and Ukraine. The CIS FTA covers trade in goods. On 19 May 2018, the President of Ukraine signed a decree to withdraw all Ukrainian envoys from the statutory bodies of the Commonwealth of Independent States (CIS).

In addition to the CIS FTA, Ukraine has carried out preferential trade regimes with the CIS countries under bilateral FTAs with Azerbaijan, Armenia, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan and Uzbekistan. The FTA between Ukraine and Russia was suspended in January 2016 to the extent that the EU-Ukraine Association Agreement strengthened their trade ties and Russia decided to suspend the free trade area with Ukraine on the basis of Annex 6 to the CIS FTA. Annex 6 entitles members of the Customs Union to introduce the most-favoured nation (MFN) tariff against imports from another party to the CIS FTA, provided that the preferential trade regimes concluded by the latter party with third countries resulted in an increase in imports to the Customs Union.

The GUAM FTA, although signed in 2002, has not proved to be effective. In March 2017, the GUAM states signed a series of arrangements on fostering the FTA and mutual recognition of certain customs procedures.

The Canada-Ukraine Free Trade Agreement (CUFTA) covers trade in goods only. It also includes separate chapters on competition policy, monopolies and state enterprises; e-commerce; intellectual property; government procurement; labour; environment; transparency; and trade-related dispute settlement. CUFTA came into force on 1 August 2017. The Israel-Ukraine Free Trade Agreement was signed in January 2019. It is expected that ratification will take place by the end of 2019. As with the CUFTA, it covers trade in goods only.

On 1 February 2018, Ukraine acceded to the regional Convention on pan-Euro-Mediterranean preferential rules of origin (PEM Convention). The PEM Convention is expected to increase Ukraine’s share of value added and promote FDI and employment.

Trade defence investigations (outside the WTO dispute settlement system)

Government authorities

Which authority or authorities conduct trade defence investigations and impose trade remedies in your jurisdiction?

In Ukraine, trade defence investigations are conducted by:

  • the Ministry of Economic Development and Trade of Ukraine (the Ministry) (www.me.gov.ua); and
  • the Interdepartmental Commission on International Trade (the Commission) (www.me.gov.ua).

The Ministry, through the department that deals with cooperation with the WTO and trade defence matters, is entitled to conduct trade defence investigations, but not to adopt preliminary or final determinations. Upon the results of the conducted investigation the Ministry prepares a report that forms the basis for the Commission to make a determination regarding the imposition or non-imposition of preliminary or final measures.

The Commission makes decisions regarding:

  • the initiation of investigations;
  • positive or negative determinations on dumping, injury and the causal link between them; and
  • the imposition of anti-dumping measures.

The Commission is an interdepartmental body that consists of representatives of various ministries and governmental agencies, such as the Ministry of Economic Development and Trade, the Ministry of Foreign Affairs, the Ministry of Agricultural Policy and Food, the Ministry of Energy and Coal Industry, the Ministry of Infrastructure, the State Fiscal Service and the Antimonopoly Committee. The Minister of Economic Development and Trade is the head of the Commission by virtue of his or her office.

Complaint filing procedure

What is the procedure for domestic industry to start a trade remedies case in your jurisdiction? Can the regulator start an investigation ex officio?

In order to start a trade remedies case, the domestic industry must submit an application to the Ministry of Economic Development and Trade. At the same time, anti-dumping or anti-subsidy investigations can begin, upon an application submitted by trades unions of employees and governmental bodies, if they possess relevant evidence of dumping or subsidisation and material injury. Safeguard investigations can also be initiated upon information collected by the Ministry itself. In practice, however, nearly all trade remedies cases are initiated upon application made by the domestic industry.

The Ministry examines the application and forwards to the Commission a report on the results of such examination with recommendations either to launch the investigation or to deny the application. The Commission will take a decision on whether to initiate a trade remedies investigation generally within the 30-day period from the date of submission of the application.

The application to start an anti-dumping or anti-subsidy investigation shall contain the evidence of dumping or subsidisation, injury and causation. The application shall include the following information:

  • general information regarding the applicant;
  • data on the applicant’s production of the products concerned (by volume and value);
  • a list of all known domestic producers of like products (or associations of domestic producers of like products) and, if possible, of the volume and value of production of like products by these producers;
  • products (including their full description) that are stated to be the subject of dumping or subsidisation and the name of the country (or countries) of origin or export that is the subject of the application; and
  • a list of known exporters, foreign producers and importers of products under investigation.

For anti-dumping investigations:

  • the prices at which products under investigation are sold for consumption in the domestic market of the country or countries of origin or export (or, where such information is available, the prices at which the products are sold from the country of origin or export to a third country or on the constructed value of products); and
  • information on export prices, or prices at which the products are first resold to an independent buyer in the importing country.

For anti-subsidy investigations:

  • evidence with regard to the existence, amount and nature of the subsidy in question, and evidence that a subsidy is actionable; and
  • the volumes and dynamics of allegedly dumped or subsidised imports, and the effect of these imports on prices of like products in the importing country market and the state of the domestic industry.

The application to launch an anti-dumping or anti-subsidy investigation also contains information on public interest.

The application to start a safeguard investigation shall include information regarding the volume and prices of the allegedly increased imports. It normally also includes general data regarding the domestic industry, evidence regarding serious injury caused to the domestic industry, a description of the products concerned, causation and public interest.

The ex officio initiation procedure is not envisaged as such for competent authorities. However, if the executive authority in Ukraine possesses evidence of dumping and injury to the domestic industry the law requires that these materials are forwarded or submitted to the Ministry for assessment and in case of necessity to advise the Commission to initiate an investigation.

The new draft laws on trade defence instruments referred to in question 1 explicitly provide for initiation procedure ex officio. Within this procedure the Ministry will be entitled to recommend upon its own initiative to the Commission to initiate a trade investigation. The Commission must adopt a decision based on the Ministry’s report within 10 days, provided the Ministry’s report is substantiated by the relevant evidence.

Contesting trade remedies

What is the procedure for foreign exporters to defend a trade remedies case in your jurisdiction?

Foreign exporters participate in a trade remedies case as interested parties, but they do not acquire this status automatically. Foreign exporters can enjoy all the rights of the interested parties if they inform the Ministry of their desire to participate in the investigation within the established time limit.

After taking a decision to initiate a trade defence investigation, the Commission publishes a notice in the Official Newspaper (https://ukurier.gov.ua/uk/). The public notice aims to inform all parties concerned, including foreign exporters, about a launched investigation. As standard practice, the notice sets a term of 30 days for the registration of foreign exporters and producers (as well as other parties concerned) as an interested party to the investigation.

Once a company is registered as an interested party, it enjoys all relevant rights prescribed by law to defend its interests, such as submitting commentaries, participating in the hearing, submitting a post-hearing brief and reviewing a case record. If the deadline for registration is missed, the right to enjoy such opportunities is forfeited.

Normally, a public notice also sets a deadline of 60 days (45 days in safeguard investigations) for submitting an initial commentary regarding the investigation. This commentary can be submitted both by interested parties registered with the Ministry and by non-registered parties.

Shortly after the initiation of the investigation, the Ministry sends a questionnaire to known foreign exporters and producers. The Ministry usually considers foreign producers and exporters as being known if they are registered as an interested party. Sometimes the Ministry sends the questionnaire to non-registered foreign exporters. Foreign producers (exporters) usually have to reply to the questionnaire within 37 days from the date of the Ministry’s sending of the questionnaire. They can also request an extension, which is granted by the Ministry in the majority of cases. The standard duration of an extension is two weeks.

In almost every investigation the Ministry holds public hearings with the participation of all interested parties (domestic industry, foreign producers and exporters, embassies of exporting countries, importers etc). After the public hearings, the participants in the hearings submit post-hearing briefs, which are taken into consideration by the Ministry during the investigation.

A foreign producer or exporter also has a right to request consultation with the domestic industry, where both parties can present and discuss their arguments. After the consultation, the written briefs are submitted to the Ministry.

In addition, the Ministry, in the course of the investigation, may send additional requests for information or clarification of previously submitted information.

All information submitted to the Ministry by an interested party shall be sent promptly by this interested party to all other participants in the investigation. The interested parties are also entitled to review the public case record in the Ministry. In practice, interested parties can comment on written information submitted by other interested parties.

The period of an anti-dumping or anti-subsidy investigation shall not exceed one year from the date of publication of the notice on its initiation. The Commission may prolong the term of an investigation for up to 18 months. The duration of a safeguard investigation shall not exceed 270 days from the date of initiation of such investigation. Under extraordinary circumstances this term may be extended by the Commission to up to 330 days.

WTO rules

Are the WTO rules on trade remedies applied in national law?

Ukraine belongs to a group of countries where international treaties ratified by parliament become a part of domestic legislation. In particular, pursuant to article 9 of the Constitution of Ukraine, international treaties that are in force and agreed to be binding by parliament are part of domestic legislation. Article 19.1 of the Law on International Treaties of Ukraine additionally says that international agreements ratified by parliament are a part of domestic legislation and shall be applied under the procedure provided for the norms of domestic legislation. Furthermore, if the international agreement, duly ratified by parliament, sets rules other than those envisaged in Ukrainian legislation, the rules of the international agreement shall apply (article 19.2 of the Law on International Treaties of Ukraine).

Thus, WTO trade remedies agreements have direct effect in Ukraine. They are applied by the Ministry in the course of the investigation along with domestic trade remedies laws (ie, the Ministry refers directly to WTO rules in its requests, letters and reports). If there is a contradiction between a domestic rule and a corresponding WTO rule, the latter shall be applied. Finally, the compliance of national measures with international treaties ratified by the Ukrainian parliament can be challenged before national courts.

Foreign producers and exporters often refer to WTO trade remedies agreements while presenting their position before the investigating authority in the course of investigations. They can also litigate final or preliminary determinations on the imposition of trade remedy measures before national courts, invoking provisions of the WTO Agreements.

Appeal

What is the appeal procedure for an unfavourable trade remedies decision? Is appeal available for all decisions? How likely is an appeal to succeed?

Any final or preliminary determination in a trade remedies case can be challenged in the administrative court within 30 days after the imposition of an unfavourable measure. Trade remedies cases are often quite complicated and their consideration may continue for several years, due to the fact that the Ukrainian judicial system is composed of three instances (first instance courts, appeal courts and cassation courts). However, the complainant, in accordance with the procedural codes, has the possibility to submit a request for injunctive relief in order to stop the execution of the unfavourable trade remedies decision.

Review of duties/quotas

How and when can an affected party seek a review of the duty or quota? What is the procedure and time frame for obtaining a refund of overcharged duties? Can interest be claimed?

Review

Foreign producers or exporters can seek a review of anti-dumping or countervailing duty measures after one year from their date of application. Such a request shall be submitted to the Ministry and should provide sufficient evidence and proof of the necessity of an interim review. The interim review shall be launched if the request proves that:

  • continuation of application of anti-dumping or countervailing duty measures is no longer necessary for the prevention of dumping or subsidisation;
  • continuation or resumption of injury is unlikely, should the anti-dumping or countervailing duty measures be cancelled or altered; or
  • applied anti-dumping or countervailing duty measures are not or shall not be sufficient for the prevention of dumping or subsidisation that causes injury.

In the course of the interim review, the Ministry examines whether the circumstances of dumping or subsidisation and injury have changed considerably, whether the applied measures have had the desired effect and whether there is prevention of injury previously established during the original investigation.

The domestic anti-dumping and countervailing duties law also provides for expiry review and newcomers’ review.

Refund

Importers may apply for a refund of anti-dumping or countervailing duties, provided an importer proves, and the Commission takes a decision that, the margin of dumping or subsidisation on the basis of which the rate of the duty has been calculated was decreased to a zero rate or a lower rate than the initially calculated margin of dumping.

The application for refund is submitted to the State Fiscal Service. The application shall be supplemented with documents confirming importation of goods into Ukraine, their customs clearance and payment of the anti-dumping or countervailing duty within six months from the date of accepting the Commission’s decision on imposition of the duty. The Fiscal Service shall immediately forward the application to the Ministry. A copy of the application shall also be sent to the Commission and the Ministry of Finance of Ukraine.

The Commission, on the proposal of the Ministry, shall consider the application together with the conclusions of the Fiscal Service and the Ministry of Finance of Ukraine. The Commission shall take a decision based on the results of such consideration. The Commission may also take a decision on initiation of an interim review of the anti-dumping or countervailing measures.

The Commission shall generally take a decision regarding a refund within 12 months, but not later than 18 months from the date of submission by an importer of the application. The Ministry of Finance of Ukraine shall refund the stipulated amounts within 90 days of the date of making a relevant decision by the Commission.

Compliance strategies

What are the practical strategies for complying with an anti-dumping/countervailing/safeguard duty or quota?

If a trade remedies measure is imposed, foreign producers or exporters can challenge the determination with the national courts or seek review of anti-dumping or countervailing duties measures not earlier than a year after the measures are imposed. If targeted foreign producers have factories in several countries, they may consider shipping into Ukraine products of different origin (in the case of anti-dumping or countervailing duty measures). In the case of anti-dumping, companies whose products are under investigation may also voluntary undertake to review their prices or cease exports at dumped prices to settle an investigation.

Customs duties

Normal rates and notification requirements

Where are normal customs duty rates for your jurisdiction listed? Is there an exemption for low-value shipments, if so, at what level? Is there a binding tariff information system or similar in place? Are there prior notification requirements for imports?

The Ukrainian Classification of Commodities of Foreign Economic Activity is based on the six-digit Commodity Description and Coding System (used for the purpose of accounting for the exports and imports of goods), which is developed on the basis of the Harmonized Commodity Description and Coding System. Under the classification, goods are codified in sections, groups, trade positions and sub-positions, and their names and digital codes are unified and assigned with respective tariff rates. Customs duty rates are listed in Law No. 584-VII on Customs Tariff, 19 September 2013. As a WTO member, Ukraine is subject to the goods schedule indicating bound rates. The information on binding tariffs and applied rates can be accessed at www.wto.org/english/thewto_e/countries_e/ukraine_e.htm. No prior notification is needed for imports under Ukrainian legislation.

Ukrainian laws provide for tariff preferences to e-commerce imports. Since 1 July 2019, amendments to the Tax Code of Ukraine have come into force that decrease the tax-free maximum threshold to a total invoice value of the shipment not exceeding €100 per person and total customs value of the shipment not exceeding €150 per legal entity (article 196.1.17 of the Tax Code Of Ukraine).

Under the Customs Code of Ukraine the import duty-free threshold amounts to an invoice value of €150 (artIcle 374.6 of the Customs Code of Ukraine). Shipments with an invoice value ranging between €150 and €10,000 are subject to a 10 per cent import duty plus VAT (in the amount of 20 per cent) enshrined in the Tax Code of Ukraine (article 374.7 of the Customs Code of Ukraine).

Special rates and preferential treatment

Where are special tariff rates, such as under free trade agreements or preferential tariffs, and countries that are given preference listed?

Unlike the EU, Ukraine has no generalised scheme of preferences, and consequently only those countries having FTAs with Ukraine can benefit from preferential tariffs. At the time of writing, Ukraine has FTAs with the EU, CIS countries (except for Russia since 2016), Macedonia, Georgia, Montenegro, the EFTA states and Canada, and is concluding an FTA with Israel (currently signed, but not yet ratified). Ukraine is also negotiating an with FTA with Turkey.

Import duty is differentiated in respect of the goods originating from countries that are members of customs unions with Ukraine or which form free trade zones with it. In case of the introduction of any special preferential customs procedure in accordance with international treaties ratified by the parliament of Ukraine, the preferential rates of import duty set by the customs tariff of Ukraine shall be applied.

Preferential rates of import duty set by the customs tariff of Ukraine shall be applied for goods originating from Ukraine or member countries of the WTO or the countries with which Ukraine has entered into bilateral or regional agreements under MFN treatment.

How can GSP treatment for a product be obtained or removed?

Ukraine does not grant GSP treatment to any country. Only countries subject to FTAs with Ukraine have preferential tariffs. In order to benefit from the regime, the company concerned must provide the customs authorities with a valid certificate of origin confirming that the product is produced in the territory of the FTA member state. In the case of the Agreement on Free Trade Area of 2011 between Ukraine and other CIS countries, tariff rates on imports are mainly eliminated, and export duties are fixed with a further reduction. Generally, all tariff rates and other trade liberalisation measures are prescribed and fixed in respective trade agreements. For instance, the EU-Ukraine Association Agreement also contains in its annexes the schedules of tariff rates on imports and exports, and other measures subject to implementation and execution with respect to preferential trade regime.

Is there a duty suspension regime in place? How can duty suspension be obtained?

Ukraine has no system where the company concerned can submit a request for a duty suspension regime. A general system of duty exemption is determined, however, by the Customs Code of Ukraine (article 282), where the goods subject to exemption are listed. Among such goods are means of transport for commercial use, raw materials, and oil engaged in scheduled international transportation of goods or passengers (or both), as well as items necessary for their normal operation, Ukrainian currency, foreign currency, securities, goods that are imported within the framework of international technical assistance under international treaties, goods for product-sharing agreements, archival documents, several types of pharmaceutical products, equipment for the purpose of alternative energy, and goods and items paid for at the expense of grants (sub-grants) provided, for example, under the programme of the Global Fund to Fight AIDS, Tuberculosis and Malaria in Ukraine.

In May 2015, the President of Ukraine signed laws providing amendments to the Customs Code and Tax Code of Ukraine prescribing exemption of defence products from import duties. The exemptions apply to components (materials, components, parts, equipment and component parts) that are imported into Ukraine for use in the production of defence products if the customer of such products is the state. At the same time, these products are not exempted from import duty if they originate or are imported from the territory of a country recognised as an occupying state or aggressor in relation to Ukraine under the law.

Besides that, items such as goods imported into the customs territory of Ukraine within the framework of international technical assistance in accordance with international treaties, goods (raw materials, products, machinery and equipment) coming to Ukraine under international technical assistance given on a free and irrevocable basis for further service, preparation for decommissioning, and decommissioning of power-generating units of the Chernobyl nuclear power plant, goods or items paid for at the expense of grants (sub-grants) provided under the programme of the Global Fund to Fight AIDS, Tuberculosis and Malaria in Ukraine, goods treated as humanitarian aid and goods imported into the customs territory of Ukraine to the address of the Red Cross Society of Ukraine are subject to exemption from specific types of duties.

Furthermore, there exists a temporary admission regime (article 103 of the Customs Code of Ukraine). Goods subject to this regime shall be fully or partially exempted from payment of import duties. The list of such goods is prescribed in articles 105 and 189 of the Customs Code of Ukraine and in Annexes В.1-В.9, С and D of the convention on temporary admission.

Challenge

Where can customs decisions be challenged in your jurisdiction? What are the procedures?

The Customs Code of Ukraine No. 4495-VI of 13 March 2012 (the Customs Code), has been in force since 1 June 2012 (last amended 4 April 2018). With regard to challenging the actions of customs authorities, the Customs Code envisages two types of appeal. The first is pre-trial appeal of the decisions, acts and omissions of the customs authorities, and the second (article 29 of the Customs Code) is a judicial procedure, which is regulated by separate law. Article 29 states also that if the decisions, acts or omissions by a state fiscal authority or its officials are appealed both at a supreme authority (superior public official) and in court and the court initiates a legal proceeding, such appeal shall no longer be proceeded by the said supreme authority (superior public official). Article 24 of the Customs Code contains the list of decisions, acts and omissions that may be challenged. Moreover, in comparison to the previous version of the Customs Code, such list includes not only particular decisions of customs authorities on the customs issues that may be challenged, but also the decisions that satisfy or refuse to satisfy the complaints of legal or natural persons.

Decisions, acts and omissions may be appealed to higher authorities and officials. Superior public officials in respect of the officials and other employees of the state fiscal authorities are the chief executives of those authorities. Higher authorities are the following:

  • for customs officials - the heads of the customs authorities;
  • for customs posts - the head of that branch of customs posts;
  • for customs of the specialised customs authorities and customs organisations - the State Fiscal Service; and
  • for the State Fiscal Service - the Ministry of Finance of Ukraine.

Requirements regarding the form and content of the complaints, the terms of their submission, and the procedure and terms for their consideration, as well as liability for illegal actions related to submission and consideration of the complaints, are determined by the Law of Ukraine No. 393/96-BP on Public Appeals. A duly submitted complaint on the decision, act or omission of the customs authority shall be considered for not more than one month (may be urgently or within 15 days), but may be extended to up to 45 days. Moreover, the term of consideration may be even shorter if the citizen duly substantiates the reason. A complaint shall be submitted within one year after the decision is adopted, but not later than one month after notification of the decision. The judicial procedure implies filing the case before the relevant administrative court.

Trade barriers

Government authorities

What government office handles complaints from domestic exporters against foreign trade barriers at the WTO or under other agreements?

Normally, the Ministry is responsible for handling complaints against trade barriers and relevant WTO issues. In 2014, the Cabinet of Ministers of Ukraine with its Regulation No. 550 appointed the Deputy Minister of Economy - Trade Representative of Ukraine. The Trade Representative, among other things, deals with issues of ensuring the promotion of the economic interests of Ukraine in European and global markets and the coordination of trade missions abroad, and provides for analysis of status and trends of international trade, proposals concerning priorities of Ukraine’s trade policy development, the impact of trade remedies on trade development and proposals for improving the efficiency of their usage to achieve economic growth. The most important objective of the Trade Representative with respect to the WTO and foreign trade barriers is that the Trade Representative is in charge of monitoring WTO members’ compliance with their WTO commitments in order to efficiently and timely protect the rights and interests of Ukraine and its enterprises. To this end the Trade Representative provides for such actions as, inter alia, identification of the facts or the threat of application by foreign countries, customs unions or economic groups, anti-dumping, countervailing and safeguard measures with respect to products originating in Ukraine, and the conducting of investigations to establish the facts of discriminatory or hostile actions by other states, customs unions or economic groups with respect to the legitimate rights and interests of the foreign economic activity of Ukraine.

The Trade Representative also performs the function of the representative of Ukraine to the WTO and the Black Sea Trade and Development Bank, and reports directly to the Minister of Economic Development and Trade. The Trade Representative ensures the predictability and transparency of Ukraine’s trade policy.

Within the structure of the Ministry of Economic Development and Trade there is an independent structural unit - the trade defence department. This has a division for domestic market protection and a division on the protection of trade interests on foreign markets. Its objectives include measures to protect the interests of Ukrainian businesses in anti-dumping, countervailing and safeguard investigations carried out by foreign states with respect to Ukrainian products; protecting the rights and interests of Ukraine in the trade and economic sphere, using WTO instruments and international agreements of Ukraine; and representation of Ukraine at the WTO Dispute Settlement Body.

In 2017, the Cabinet of Ministers of Ukraine by its Resolution established the International Trade Council as an interim consultative and advisory body of the Cabinet of Ministers of Ukraine. It is composed of the heads of the highest executive Institutions, including the Minister of Economic Development and Trade and the Deputy Minister of Economy - Trade Representative of Ukraine. Among the main objectives of the Council are the formation and implementation of the basic principles and position of the Ukrainian side on issues arising within the framework of membership in the World Trade Organization; solving of problematic issues of Ukraine’s cooperation within the framework of this organisation, as well as participation of Ukraine in activities within the framework of the World Trade Organization; and determination of ways and mechanisms of dispute settlement related to the protection of the rights and interests of Ukraine in the trade and economic sphere, including within the framework of the World Trade Organization.

The Ministry’s home page is www.me.gov.ua. In addition, the Ministry of Justice of Ukraine (www.minjust.gov.ua) has the authority to represent Ukraine in foreign and international courts and jurisdictional authorities. Consequently, if the WTO dispute enters the stage of panel establishment and composition, the Ministry of Justice cooperates with the Ministry of Economic Development and Trade.

Complaint filing procedure

What is the procedure for filing a complaint against a foreign trade barrier?

The company concerned addresses the respective department within the Ministry (through the particular department and Trade Representative) with a letter outlining the scope of the trade barrier. The general term of response to the complaint letter of the concerned company is one month. Upon examination of the complaint, the Ministry may either initiate a meeting with the company to discuss the barrier in question or refuse to initiate the proceedings. If the complaint is well grounded, the Trade Representative may initiate the establishment of working groups to prepare draft legal acts on this issue or to convene meetings regarding the particular trade and foreign economic issues concerned.

Moreover, in early June 2016, the government of Ukraine adopted the procedure of protection of the trade and economic rights and interest of Ukraine within the framework of the WTO. The procedure is approved by a Decree of the Cabinet of Ministers of Ukraine of 1 June 2016 No. 346. If the interested authorities or diplomatic missions of Ukraine reveal any measures taken by other economies being inconsistent with the WTO commitments, they must respectively inform the Ministry of Economic Development and Trade of these measures within five days. Along the same lines, the interested organisations (companies) must submit the relevant communication to the Ministry, providing formal requisites of the companies as well as sufficient evidence and materials supporting the alleged violation. Upon considering the communications, the Ministry may either find this allegation substantiated and decide on the establishment of an interdepartmental working group or find the allegation groundless.

The interdepartmental working group is responsible for cooperation between interested authorities and interested organisations; it elaborates on and submits to the Ministry possible mechanisms and instruments of settlement concerning the trade-distortive measures faced by interested Ukrainian authorities and organisations; it participates in the drafting and preparation of documents and materials pursuant to the procedures prescribed by the Dispute Settlement Understanding of the WTO; and it submits to the Ministry the recommendations on engagement of legal and economic advisers and independent experts in the consultations or dispute settlement or both. The interdepartmental working group is jointly headed by the Minister of Economic Development and Trade of Ukraine and the Trade Representative of Ukraine.

Grounds for investigation

What will the authority consider when deciding whether to begin an investigation?

Formally, the Ministry of Economic Development and Trade firstly considers whether the application contains all sufficient grounds for initiating the WTO case. Furthermore, the authority normally considers trade policy and relations with the member imposing the trade barrier, the volume of production, the export or import of the subject merchandise, and the injury that is caused by the trade barrier. A particular role in this process is performed by the Trade Representative of Ukraine, who deals with issues of analysis, proposals and recommendations concerning illegitimate foreign trade barriers. In accordance with article 4.19 of Regulation No. 550 of the Cabinet of Ministers of Ukraine of 16 October 2014, it may initiate special investigations concerning such measure.

Measures against foreign trade barriers

What measures outside the WTO may the authority unilaterally take against a foreign trade barrier? Are any such measures currently in force?

Ordinary procedure against non-WTO members

Ukraine may find the facts of discriminatory or hostile actions of non-WTO members. The procedure for finding such facts (or their absence) is set forth in the Law on Foreign Economic Activity and in the Order of Conducting Investigations Aimed at Establishing Facts of Discriminatory and/or Hostile Actions of Other States, Customs Unions or Economic Groups Concerning Legitimate Rights and Interests of Business Entities of Ukraine, adopted by Decree No. 2120 of the Cabinet of Ministers of Ukraine, 22 November 1999. Such an investigation is conducted by the Ministry of Economic Development and Trade of Ukraine (it may be initiated by the Trade Representative) upon application of a business entity or executive agency of Ukraine, which may be submitted to the Ministry, to the office of the Trade Representative, or through trade missions and diplomatic and consular institutions. Upon receipt of a duly executed application followed by evidence and documents and in accordance with Order No. 2120, the Ministry conducts an investigation lasting 60 days. The Ministry submits its report on the results of the investigation to the Interdepartmental Commission on International Trade for making a decision on the presence or absence of facts of discriminatory actions. The decision of the Commission is published in the official gazette. The applicant may withdraw the application. In this case, the application is deemed as not submitted.

According to the Law on Foreign Economic Activity, Ukraine may introduce such measures in the form of partial or full trade embargo, cancellation of MFN status and special preferential regime, imposition of special duties and quotas, foreign economic operations licensing etc.

‘Fast-track’ procedure against a state recognised as an aggressor or occupant

Since December 2015, the Cabinet of Ministers of Ukraine is entitled to take unilateral countermeasures against a state that is recognised as an aggressor or occupant (articles 9 and 29 of the Law on Foreign Economic Activity). Herewith, such measures can be taken pursuant to the decision of the Cabinet of Ministers of Ukraine without completing the previous investigation and consultation stages.

Private-sector support

What support does the government expect from the private sector to bring a WTO case?

Commonly, to bring a WTO case the companies concerned should be prepared to handle lawyers’ fees, translations and supporting documents containing, inter alia, all necessary information about the facts and statistics concerning the alleged violation, the foreign state competent authority allegedly violating the rules and procedures etc. Having prepared the position paper, companies address the Ministry and the Trade Representative with the issue. Trade statistics are compiled by the State Statistics Committee. More rarely, the Ministry engages other state enterprises, including expert institutions or economic research institutes. The fees for such state enterprises’ services are expected to be borne by the company concerned. As transparency in relations and permanent dialogue between business and the government act as a cornerstone in the protection of the private sector’s interests, in pursuing such goals in Ukraine special trade councils help to establish such communication

Notable non-tariff barriers

What notable trade barriers other than retaliatory measures does your country impose on imports?

Every year the government of Ukraine compiles the list of products subject to an import/export licensing and quotas regime. The list of such products for 2019 can be found in Regulation No. 1136 of the Cabinet of Ministers of Ukraine dated 27 December 2018 (available at: https://zakon.rada.gov.ua/laws/show/1136-2018-%D0%BF).

In practice, one of the most notable barriers for imports may be regarded as the practical determination of the customs valuation of goods. Although the WTO Customs Valuation Agreement has direct effect in Ukraine and the provisions of the Customs Code of Ukraine incorporate the procedures for customs valuation, importers face the problem of declaring higher prices for goods than their transaction value.

Export controls

General controls

What general controls are imposed on exports?

The following general requirements must be fulfilled to export products from Ukraine:

  • exporters shall provide customs authorities with the required set of documents for exporting products (customs declaration; invoices; contracts; specifications; certificate of origin; bill of lading; documents confirming payment of customs fees and duties; and various certificates, if it may be necessary for specific products (phytosanitary certificate, ecological certificate, permission to import (export) or to transit the narcotic drugs, psychotropic substances or precursors of narcotic drugs and psychotropic substances, veterinary certificate etc));
  • exporters shall settle customs payments, if any are envisaged by the legislation current on the day of exportation. The notion of ‘customs payments’ includes customs duties, VAT and excise duty (article 4.27 of the Customs Code of Ukraine);
  • exported products are subject to a zero VAT rate (article 195 of the Tax Code of Ukraine) and are not subject to excise tax (article 213 of the Tax Code of Ukraine);
  • export customs duties can be introduced by laws passed by the Ukrainian parliament. Currently, Ukraine applies export duties to barley; ferrous alloy scrap metal; non-ferrous scrap metal and semi-processed products with that use; waste and scrap of ferrous metal; seed grains of certain sunflowers; and livestock and certain leather primary products; and
  • exporters shall fulfil the requirements of non-tariff regulation if any are envisaged by legislation on the day of exportation (eg, licensing or certification).

An exporter shall be registered with a local customs office in order to perform export transactions.

In addition, pursuant to the Law on Foreign Economic Activity, it is generally prohibited in Ukraine to export the following:

  • goods considered part of the national, historical, archaeological or cultural heritage of the Ukrainian people;
  • natural resources that are exhausted, if this limitation also applies to the internal consumption or production;
  • products that infringe intellectual property rights;
  • goods subject to Resolutions of the UN Security Council regarding limitations or embargoes on supplying with goods in the proper state;
  • timber and lumber of valuable and rare breeds of trees; and
  • postal parcels that could pose a threat to life and health.

In January 2019, the EU requested consultations with Ukraine under the EU-Ukraine Association Agreement on Ukraine’s export ban on unprocessed wood. The consultations did not resolve the dispute. On 21 June, the EU submitted a request for panel establishment. This is the first EU FTA-based dispute to reach the panel stage. The full text of the request is available at: http://trade.ec.europa.eu/doclib/docs/2019/june/tradoc_157943.pdf.

Ukrainian exporters must comply with currency restrictions prescribed in Resolutions of the Board of National Bank of Ukraine. These restrictions are claimed by exporters to have substantial trade-restrictive effects. Notably, the National Bank of Ukraine required exporters to surrender about 50 per cent of their foreign currency proceeds. Under Ukrainian laws, the settlement period for exporters-residents’ revenue in import-export transactions did not exceed 180 days.

Nevertheless, at the beginning of 2019 the National Bank of Ukraine approved a new currency regulation system and unveiled a road map for currency liberalisation. Starting from February 2019, for example, the deadline for settlement of import-export contracts has been extended to up to 365 days.

In addition, Ukrainian exporters face constant difficulties with VAT returns, which are subject to burdensome administration and have become a systemic problem of the domestic tax system.

Government authorities

Which authorities handle the controls?

Export controls are predominantly handled by the following authorities:

  • the Parliament of Ukraine (iportal.rada.gov.ua);
  • the Cabinet of Ministers of Ukraine (www.kmu.gov.ua);
  • the National Bank of Ukraine (www.bank.gov.ua);
  • the Ministry of Economic Development and Trade of Ukraine (www.me.gov.ua);
  • Deputy Minister of Economic Development and Trade - Trade Representative of Ukraine (www.me.gov.ua);
  • the State Fiscal Service (minrd.gov.ua);
  • the Interdepartmental Commission on International Trade;
  • the State Service of Export Control of Ukraine (www.dsecu.gov.ua);
  • the State Food Safety and Consumer Protection Service of Ukraine (www.consumer.gov.ua); and
  • the National Standardisation Body of Ukraine - Ukrainian National Research and Educational Center for Standardisation, Certification and Quality (www.ukrndnc.org.ua).
Special controls

Are separate controls imposed on specific products? Is a licence required to export such products? Give details.

Export controls are predominantly handled by the following authorities:

  • the Parliament of Ukraine (iportal.rada.gov.ua);
  • the Cabinet of Ministers of Ukraine (www.kmu.gov.ua);
  • the National Bank of Ukraine (www.bank.gov.ua);
  • the Ministry of Economic Development and Trade of Ukraine (www.me.gov.ua);
  • the Deputy Minister of Economic Development and Trade - Trade Representative of Ukraine (www.me.gov.ua);
  • the State Fiscal Service (minrd.gov.ua);
  • the Interdepartmental Commission on International Trade;
  • the State Service of Export Control of Ukraine (www.dsecu.gov.ua);
  • the State Food Safety and Consumer Protection Service of Ukraine (www.consumer.gov.ua); and
  • the National Standardisation Body of Ukraine - Ukrainian National Research and Educational Center for Standardisation, Certification and Quality (www.ukrndnc.org.ua).
Supply chain security

Has your jurisdiction implemented the WCO’s SAFE Framework of Standards? Does it have an AEO programme or similar?

On 13 March 2012, the Ukrainian parliament passed a new version of the Customs Code of Ukraine in order to implement the WCO’s SAFE Framework of Standards into domestic customs legislation and harmonise it with several international treaties (in particular, the International Convention on the Simplification and Harmonization of Customs Procedures, the Convention on Temporary Admission and the Customs Convention on the International Transport of Goods under Cover of TIR Carnets).

According to the Compendium of AEO Programmes (2012), the Authorised Economic Operator (AEO) programme has not yet been introduced in Ukraine; however, there are developments regarding this matter at governmental and parliamentary level. At the end of 2014, the State Fiscal Service of Ukraine developed amendments to the Customs Code of Ukraine in order to simplify the procedure of goods registration, in particular within the framework of further implementation of the AEO programmes.

In 2015, Ukraine also ratified the WTO Trade Facilitation Agreement and EU-Ukraine Association Agreement. Both agreements, inter alia, provide for objectives to ensure additional measures to simplify trade procedures for entities satisfying certain criteria, in other words, authorised economic operators. In pursuit of the agreements mentioned, on 25 April 2016, the Ukraine government approved the draft law prepared by the Ministry of Finance of Ukraine on the implementation in Ukraine of the AEO Institute. The draft law provides for issuance by the competent authorities of certificates of two types - regarding security and safety or regarding simplification of customs procedures. To receive such preferences, applicants must show impeccable financial solvency, appropriate record-keeping, compliance with customs legislation and taxation rules, and a business reputation.

After its proper approximation and adoption, the above-mentioned draft law will permit the mutual recognition of AEOs by Ukraine and the EU.

At present, this draft law is at the stage of reviewing and updating.

Applicable countries

Where is information on countries subject to export controls listed?

Among other functions, the State Export Control Service of Ukraine takes measures to implement the decisions of the Security Council to establish or cancel an embargo on the export of goods. It also provides for the monitoring and analysis of exports from Ukraine and the exchange of relevant information on exports of particular categories of goods with the relevant authorities of foreign states and international organisations.

Countries subject to export controls are defined by regulations adopted by the Cabinet of Ministers of Ukraine. These regulations are based on Resolutions of the UN Security Council. For instance, the Resolution of the Cabinet of Ministers of Ukraine No. 302 on Implementation of the Resolutions adopted by the Security Council of the UN regarding Libya, 18 April 2012, was passed to fulfil Resolutions No. 1970 dated 26 February 2011, No. 1973 dated 17 March 2011, No. 2009 dated 16 September 2011, No. 2016 dated 27 October 2011, No. 2017 dated 31 October 2011 and No. 2022 dated 2 December 2011, or Order No. 359p of the Cabinet of Ministers of Ukraine on implementation of the Resolution UN Security Council No. 2231 dated 20 June 2015 regarding Iran.

Within the context of Russian military actions against Ukraine and the occupation of Crimea, the National Security and Defence Council of Ukraine, in its decision of 27 August 2014, prohibited exports to the Russian Federation of military and dual-use production.

The countries currently subject to export controls are listed on the UN website. This list can also be found on the website of the State Service of Export Controls of Ukraine with the indication of the relevant Resolutions of the UN Security Council and the Regulations of the Cabinet of Ministers of Ukraine.

Named persons and institutions

Does your jurisdiction have a scheme restricting or banning exports to named persons and institutions abroad? Give details.

The Law of Ukraine No. 1644-VII on Sanctions, 14 August 2014 (the Law on Sanctions), provides for such a possibility in the form of the restriction of economic operations. The Law on Sanctions is described in detail in questions 28-30. The Law on Sanctions was amended on 17 December 2017. ThIs law permits the National Security and Defence Council to impose sanctions on specified persons by submission of the Parliament of Ukraine (parliament), the President of Ukraine, the Cabinet of Ministers of Ukraine, the National Bank of Ukraine and the Security Service of Ukraine.

Penalties

What are the possible penalties for violation of export controls?

The penalty for violation of export controls is a fine, as envisaged by Ukrainian legislation. Individual licensing and temporary suspension of foreign economic activity as penalties were withdrawn from the Law of Ukraine ‘On Foreign Economic Activity’ in early 2019.

The penalty may be imposed by the Ministry upon request of the fiscal authorities, National Bank of Ukraine, the Antimonopoly Committee of Ukraine, the Security Service of Ukraine and other authorities, or on the basis of a court ruling.

Financial and other sanctions and trade embargoes

Government authorities

What government offices impose sanctions and embargoes?

The Law on Foreign Economic Activity authorises the parliament of Ukraine to introduce trade embargoes (complete or partial) and to cancel MFN treatment or special preferential treatment as a trade sanction in response to the discriminatory or hostile acts of other states. Other types of sanctions regarding exporters and importers can be also applied by cabinet ministers of Ukraine (ie, the introduction of licensing) and the Commission (ie, the introduction of extra duties or quotas).

At the same time, the law says that if Ukraine and the state that acted in a discriminatory or hostile manner towards Ukraine are members of the same international intergovernmental organisation, consideration and settlement of the dispute is carried out in accordance with the rules and procedures of such organisation. In other words, Ukraine cannot introduce these trade sanctions in response to allegedly discriminatory or hostile actions by WTO members; it must submit the matter to the WTO dispute settlement procedure.

In addition, the Law on Sanctions provides for the imposition of special economic and other restrictive measures - sanctions. In accordance with article 5 of this law, proposals concerning the implication, cancellation and alteration of sanctions may be submitted to the National Security and Defence Council of Ukraine by the parliament of Ukraine, the President of Ukraine, the Cabinet of Ministers of Ukraine, the National Bank of Ukraine and the Security Service of Ukraine. A decision on the application, cancellation and amendment to sanctions against a foreign state or an undefined group of individuals of a certain type of activity (sectoral sanctions), shall be adopted by the National Security and Defence Council of Ukraine and come into effect following the decree of the President of Ukraine. Such decision is to be approved within 48 hours from the date of issuing of the President’s decree by the Supreme Council of Ukraine. The decision enters into force from the moment of adoption by the parliament of Ukraine and is mandatory for execution. In addition, the National Bank of Ukraine (NBU) is entitled to adopt special currency regulations.

On 19 May 2017, Russia challenged at the WTO certain trade restrictions that had been imposed by Ukraine due to protection of its national security interests (DS525). Russia’s Request of Consultations covers, inter alia, the import ban on Russian products as well as financial and economic sanctions against Russian individuals and companies. The parties are likely to proceed to the panel stage.

Applicable countries

What countries are currently the subject of sanctions or embargoes by your country?

According to article 29 of the Law of Ukraine on Foreign Economic Activity of Ukraine, Ukraine can enforce a complete or partial embargo in response to the discrimination or unfriendly actions of other countries, customs unions or economic groups.

Currently no countries are subject to trade embargoes by Ukraine (except for those introduced based on the Resolutions of the Security Council of the United Nations). The countries currently subject to export controls are listed on the website of the UN.

Moreover, as mentioned in question 18, Ukraine has been applying import bans for certain products from the Russian Federation starting from January 2016 until 31 December 2019, and has prohibited exports to the Russian Federation of military and dual-use production for military end use of this production by the Russian Federation. Notably, the Decree of the Cabinet of Ministers of Ukraine No. 1147 of 30 December 2015 provides for a list of products originated from Russia that are prohibited from importing to Ukraine. The products range from confectionery to small grain crops, soya sauce, tomato sauce, fresh and preserved fish and fish roe. The Ukrainian version of the list (last amended on 22 April 2019) is available at: http://zakon3.rada.gov.ua/laws/show/1147-2015-%D0%BF/paran10#n10. The Cabinet of Ministers of Ukraine each year extends the term of validity of the Decree and updates it.

Specific individuals and companies

Are individuals or specific companies subject to financial sanctions?

Financial sanctions on individuals or companies (such as freezing assets, a ban on entry to a country and embargoes on weapons) can be introduced in fulfilment of a relevant decision of the UN Security Council.

In accordance with article 1 of the Law on Sanctions, sanctions may be imposed by Ukraine on a foreign state, a foreign legal entity, a legal entity that is controlled by a foreign entity or individual, non-resident foreigners, stateless persons and entities engaged in terrorist activities. Sanctions may be imposed in response to potential threats to national interests, national security, sovereignty and the territorial integrity of Ukraine or any other state, occupation of the territory of Ukraine or any other state, following violations of the Universal Declaration of Human Rights, the Charter of the United Nations under the resolutions of the General Assembly and the Security Council of the United Nations, or decisions and regulations of the Council of the European Union. Economic sanctions may take the form of trade operations blocking and account freezing; partial restriction or full suspension of transit, flights and transportation through Ukraine; cancellation or suspension of licences; and suspension of economic and financial obligations etc.

The Decision of the National Security and Defence Council of Ukraine as of 28 April 2017 (enacted by the Decree of President of Ukraine as of 15 May 2017 No. 133/2017) (last amended on 19 March 2019) (http://zakon3.rada.gov.ua/laws/show/n0004525-17/paran2#n2) is the latest version of the list of natural and legal persons subject to sanctions. The document includes, among other things, such sanctions as the prohibition on moving capital out of the territory of Ukraine; the prohibition on state purchase contracts on goods, works and services with entities; and the freezing of assets of particular persons. Following the adoption of this document, the previous decisions of the National Security and Defence Council lost their validity.

Other relevant issues

Other trade remedies and controls

Describe any trade remedy measures, import or export controls not covered above that are particular to your jurisdiction.

Within the framework of the EU-Ukraine Association Agreement the EU cancelled tariffs for more than 84 per cent of food products and provided tariff quotas for 36 Ukrainian agricultural products. However, on the one hand, some tariff quotas were met by Ukraine within half a year; in particular, the quota for honey was met this year within three days. On the other hand some quotas remained unfulfilled. According to the data for 2018, Ukrainian exporters fully met their quotas for 15 products. Consequently, the extension of EU tariff-rate quotas for agricultural products from Ukraine is one of the compelling issues that both sides have been negotiating since the EU-Ukraine free trade area started to apply. On 4 July 2017, the European Parliament backed additional tariff quotas for Ukrainian products.

UPDATE & TRENDS

Recent developments

Are there any emerging trends or hot topics in trade and customs law and policy in your jurisdiction?What effects are Brexit, the withdrawal of the US from TPP, the slowdown of TTIP, RCEP; and negotiations of FTAs (such as the EU–Japan Free Trade Agreement) expected to have on your jurisdiction?

Key developments32 Are there any emerging trends or hot topics in trade and customs law and policy in your jurisdiction?Export promotion

At the end of 2018, the PJSC Export-Credit Agency was established as a legal entity.

At present, a number of measures are being taken to ensure the fulfillment of the main tasks of the PJSC Export-Credit Agency, defined by its Charter, in order to stimulate a large-scale expansion of exports of goods (including works and services) of Ukrainian origin, including the development and approval of the relevant regulatory framework of the Agency.

Reform of trade defence instruments in Ukraine

In March 2018, the Ukrainian government submitted to Parliament five draft laws concerning the reform of trade defence instruments in Ukraine. The draft laws comprise new versions of the laws of Ukraine ‘On Protection from Dumped Imports’, ‘On Protection from Subsidised Imports’ and ‘On Safeguard Measures, as well as the draft laws ‘On Amendments to the Legislative Acts in the Area of Trade Defence’ and ‘On Amendments to the Customs Code of Ukraine Concerning Trade Defence. The draft laws are currently being considered by Parliament.

This reform has been necessary for a long time. The current Ukrainian trade remedies legislation was adopted in 1998, 10 years before Ukraine acceded to the WTO.

When it comes to trade investigations in Ukraine, certain systemic problems exist. Many of them were articulated in the WTO dispute filed by Japan against Ukraine over safeguard measures on passenger cars (DS468). The lack of transparency is an important problem here, be it initiation of the investigation, or application of measures.

The new draft laws provide for significant improvement applicable to all three types of trade investigations. The most important changes are exemplified below by proposed rules concerning anti-dumping proceeding.

1 Enhancement of procedural transparency

1.1 The draft law introduces a new compulsory stage: within eight months (for anti-dumping and anti-subsidy investigations) and six months (for safeguard investigations) from the date the investigation was launched, the Ministry of Economic Development and Trade must prepare a preliminary report and send it to the Commission;

1.2 The draft law obliges the Ministry to disclose to interested parties its calculations of dumping margin and injury margin;

1.3 The draft law also obliges the Ministry to prepare and send to interested parties a non-confidential version of important procedural documents, such as the Ministry’s preliminary report on the results of the investigation, the Ministry’s determinations on substantial facts and circumstances and information about the Commission’s final decision;

1.4 The interested parties will get electronic access to non-confidential materials during the investigation;

1.5 The draft law specifies the requirements for information to be provided by interested parties at the request of the Ministry; failure to comply with these requirements may lead to non-incorporation of relevant information in the proceeding materials; and

1.6 If any information submitted by any interested party is rejected during the investigation, the Ministry shall immediately provide the party with an explanation for the reasons that have led to arguments being accepted or rejected, and give an opportunity to submit additional information.

2 Improvement of some procedural issues and increase in predictability of application of trade remedies

2.1 The draft law regulates in detail the procedure of ex officio initiation of the trade investigations by the Ministry;

2.2 The procedure and grounds for extending the Ministry’s deadlines will be better regulated;

2.3 The draft law provides for a detailed mechanism for the application of preliminary measures, review procedure, consultations and hearings, acceptance of price undertakings from exporters of the product subject to anti-dumping investigation, grounds for extending the scope of products subject to anti-dumping measures and suspension of anti-dumping measures;

2.4 The draft law contains a chapter on anti-circumvention investigations;

2.5 The draft law introduces disciplines on the provision of financial guarantees in specific cases (ie, preliminary measures application, anti-circumvention investigations, and surveillance and regional surveillance measures); and

2.6 The draft law governs internal procedure concerning the implementation of WTO Panel and Appellate Body reports.

3 Composition and functions of the Interdepartmental Commission on International Trade

3.1 Pursuant to the current laws, the composition of the Commission is approved by the Cabinet of Ministers of Ukraine upon the proposal of the Minister of Economic Development and Trade. According to the draft laws, the members of the Commission will be appointed by the Minister of Economic Development and Trade of Ukraine;

3.2 Pursuant to the current laws, the Commission may take its decisions exclusively at meetings. The draft laws provide for more flexibility and allow the Commission’s decisions to be made after the members sign them in working order; and

3.3 The draft law considerably extends the list of decisions that may be taken by the Commission, given that the new draft law regulates in detail the review procedure for anti-dumping measures, the expansion of the product scope subject to anti-dumping measures and the provision of financial guarantees in specific cases.