Sales of state assets through privatization procedures are still a high priority means of attracting private investments into the Ukrainian economy. The state has constantly changed privatization-related concepts and legislation for more than twenty years: the domination of “lease with an option to purchase” in the first half of the 90s was replaced by a total sale of small privatization objects. Then there was the so-called “mass” privatization of shares of “medium-sized” and “large” enterprises through property privatization certificates and with the involvement of trust companies and investment funds. The State subsequently focused on individual privatization through “commercial” and “non-commercial” tenders of shares.
When it comes to privatization of enterprises of strategic importance for the economy and security of Ukraine, you should pay attention to the use of the most complicated alienation procedures, i. e. tenders of controlling interest providing for fixed obligations of buyers. Today winners of such tenders are determined based on prices offered by bidders. This approach to the determination of winners does not exclude increased attention of a tender committee to tender offers regarding the investment development programme of an enterprise.
Individual privatization requires detailed analysis, development of agreement strategy, drafting of complex documents and balanced decision-making. To ensure the quality of privatization, the State Property Fund of Ukraine involves external advisers in the organization of individual privatization projects more and more often. This approach assumes an obligation to engage professional advisers to the potential buyer as well.
The AGRECA law firm has extensive expertise in planning private investments and protecting them in the course of state assets privatization. Firm partners’ significant work experience in the State Property Fund of Ukraine, the ongoing monitoring of privatization legislation, and active participation of our lawyers in various expert groups allow the firm to plan and provide professional legal support of privatization tenders of any complexity.
The firm provides legal services on privatization not only in the preparation and participation in privatization tenders, but also during the post-privatization period. According to the applicable legislation, privatization authorities control the fulfilment of contractual obligations by an investor for five years after the date of conclusion of a sale and purchase agreement. In the event of default on obligations, privatization authorities may impose sanctions up to termination of the purchase and sale agreement. Under such controls, investors often have to conduct difficult negotiations as well as prove their case in the court. Our lawyers have an extensive experience in representing investors in the course of performance of purchase and sale agreements, and handling court cases related to challenging privatization agreements, including claims of the state concerning the fulfilment of the buyer’s contractual obligations.
Our lawyers can also provide a high level support to privatization projects on the seller’s side, i. e. the State Property Fund of Ukraine. We are ready to provide fair and effective privatization of enterprises based on the principles of equal rights, transparency and impartiality.
We are ready to provide the following professional legal services on privatization:
- preparation of legal opinions concerning privatization (general data on the legislation, privatization procedures and law enforcement practices of privatization authorities, fiscal, law enforcement and judicial authorities, assessment of tender conditions, time-limits and risks);
- representation of interests in the course of participation in privatization tenders (strategy development, legal audit of the object, project planning, preparation of legal documents for participation in a tender, negotiations, and execution of the agreement);
- representation of the buyer’s interests under the agreements on purchase and sale of state-owned property in the post-privatization period (i. e. the five-year period of monitoring of the performance of investment commitments);
- business structuring during the post-privatization period (organization of the first general meeting after privatization, drafting of a new version of the company’s articles of association and internal documents);
- representation of interests at the executive authorities and civil, commercial and administrative courts in cases relating to privatization;
- support of privatization projects on the seller’s party (legal audit, pre-privatization preparation of an object for sale, preparation of conditions of tender including a tender documentation, negotiations with potential buyers and/or the winner of the tender, assistance in the conclusion of a purchase and sale agreement).
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