UKRAINE: 2007 INVESTMENT CLIMATE STATEMENT

UNCLAS KYIV 000118 SIPDIS SIPDIS STATE FOR EB/IFD/OIA (JNHATCHER) AND EUR/UMB STATE PLEASE PASS TO USTR FOR KLEIN/MOLNAR USDOC FOR 4201/DOC/ITA/MAC/BISNIS USDOC FOR 4231/ITA/OEENIS/NISD/CLUCYCK E.O. 12958: N/A TAGS: EINV ETRD KTDB OPIC USTR UP SUBJECT: UKRAINE: 2007 INVESTMENT CLIMATE STATEMENT REF: A) KYIV 114 B) KYIV 113 C) 2006 STATE 178303 ¶1. Refs A and B contained parts one and two of the 2007 Investment Climate Statement (ICS) for Ukraine. The third and final part of the ICS is below. Text Continued: A.9. Efficient Capital Markets and Portfolio Investment BANKING The Ukrainian banking system consists of the National Bank of Ukraine and commercial banks. The NBU is responsible for monetary policy, licensing of commercial banks, and oversight of their activities. The banking sector plays a still small, but growing role in Ukraine's economy. Bank capital is just over 8% of GDP. Total bank assets in Ukraine are about UAH 310 billion, with total loan assets of UAH 238 billion. Money lending and deposits grew at a fast 52% and 27% respectively in January-October, 2006. Despite rapid growth, bank deposits account for 39% of GDP. Interest rates continued to decline from 16.4% in 2005 to 14.9% in 2006 making credit more accessible. On December 1, 2005, the Rada amended the "Consumer Rights Protection" law in favor of borrowers that lifted the limitation on early loan repayment. There are 166 banks operating in Ukraine, but a handful of banks dominate the market. The top dozen banks control 61% of the loans outstanding and own 42% of the total capital of the system. As the volume of consumer lending more than doubled during 2006, the share of loans exceeding one year increased to 58% of the total loan portfolio of the banking system, up from 53% last year. Non-performing loans were registered at 2% of the total lending portfolio. In January 2002, the law "On Banks and Banking Activity" eliminated discrimination against foreign banks. It entrusted the NBU with issuing banking licenses and includes provisions to prevent money laundering. The NBU sets minimum capital requirements each year to be met by the banks by the year-end. Current minimum capital requirements range from UAH 20.04 million ($4 million) to UAH 133.3 million ($26.3 million). Foreign licensed banks may carry out all the same activities as domestic banks and there is no ceiling on their participation in the banking system. Foreign banks can operate via subsidiaries in Ukraine. On November 16, 2006 the Rada approved an amendment to the law "On Banks and Banking Activity" permitting foreign banks to operate via branch offices. The law anticipates a transition period of five years and sets requirements for branches of foreign banks, including cooperation with Financial Action Task Force and UAH 68.8 million ($13.6 million or EUR 10 million) minimum capital of the branch. Foreign banks have increased their presence in Ukraine's banking sector. The second largest Ukrainian bank, "Aval," was purchased by the Austrian Raiffeisen bank in October 2005 and medium-size UkrSibbank by French BNP Paribas in December 2005. In 2006 European financial groups purchased an additional 10 Ukrainian banks. Foreign banks now account for approximately 25% of bank capital in Ukraine. In May 2002, most provisions of the law "On Systems of Payment and Money Transfer in Ukraine" came into effect, making payments more flexible and modern, including the use of electronic signatures. In July 2001, a law "On Financial Services and State Regulation of Financial Markets in Ukraine" was passed which established legal principles for the provision of financial services and performance of regulatory and supervisory functions. Ukraine remains a cash economy, but the use of credit cards is on the rise. From January through September 2006, the use of credit cards increased by 48% and use of ATM cards increased over 46%, despite persistent credit card/ATM fraud in Ukraine. INSURANCE Currently, based on the 1996 law "On Insurance," only insurance companies registered in Ukraine may carry out insurance operations. There is a lower minimum capital requirement for domestic insurance companies than insurance companies with foreign shareholders. Foreign insurance companies can invest in local companies, but to operate locally they are required to open branch offices. In November 2006, however, the Rada adopted amendments to the law "On Insurance" that give foreign companies the right to operate in Ukraine through affiliates five years after Ukraine accedes to the WTO. CAPITAL MARKETS The legal and regulatory framework, as well as financial disclosure systems for the securities market, continues to lag behind international standards. Basic market infrastructure exists as does a competent regulator, but the legislative basis for capital market operations is weak. Rulings of the Securities and Stock Market State Commission (SSMSC) have insufficient enforcement power and are not always followed by the courts. Investors continue to face low market confidence, high macroeconomic risk, transitional accounting standards, a lack of accurate company information, and inadequate protection of minority shareholders' rights. Deficiencies in regulations governing operation of registrars led to frequent cases of double registration of shares, resulting in low protection of shareholders' rights. Ukrainian law allows for the following types of securities: -- share securities (shares, investment certificates); -- debt securities (bonds of enterprises, state bonds of Ukraine, bonds of local loans, treasury obligations of Ukraine, savings (depository) certificates, bills of exchange); -- mortgage securities (mortgage bonds, mortgage certificates, mortgages, certificates of funds of operations with real estate); -- privatization securities; -- derivative securities; -- title securities According to the SSMSC, last year there were 139 collective investment institutions, 794 securities traders, 143 custodians, 370 registrars, and 12 self-regulatory organizations (six of which are associations). Nine stock exchanges were registered in Ukraine. A Ukrainian securities industry broker/dealer self-regulatory organization (SRO) and its nationwide electronic trading system (PFTS) is the largest stock exchange with about 97% of secondary onshore trading. PFTS Stock Exchange market capitalization was UAH 125 billion (USD 25 billion) in early 2006. The Ukrainian government is currently considering options to consolidate the remaining, mostly dormant stock exchanges to enhance price transparency, and improve stock exchanges listing standards to establish corporate governance and information disclosure based on international norms. The absence of a central securities depository complicates transparent and efficient transfer of ownership records, protection of ownership rights and clearance and settlement of trades. Although a 1997 law created a state-owned National Depository in 1999 which does not perform depository functions, the market-owned MFS Depository has been operating commercially as the Ukrainian Depository since 1997 in line with current international practice. The Ukrainian government is currently considering reform options to establish a predominately privately owned Ukrainian Central Depository through the merging of two institutions. Principle laws, decrees, and regulations governing Ukraine's capital markets include: the law "On Securities and Stock Exchanges" (1991),replaced in May of 2006 by the law "On Securities and Stock Market' (2006),the law "On Business Associations" (1991),"Presidential Decree on Investment Funds and Investment Companies" (1994),"Law on State Regulation of Securities Markets" (1996),"Amendments to Law on Business Associations" (1996),the law "On National Depository System" (1997),"Law on Accounting and Financial Reporting" (1999),"Bankruptcy Law" (1992) law "On Collective Investment Institutions" (2001),and the "Law on Financial Services" (2001). A law "On Collective Investment Institutions" encourages the creation of mutual funds, introduces the idea of a licensed asset manager, regulates the establishment and operation of subjects of mutual investment, provides guarantees of ownership rights to securities, and protects rights of exchange market participants. The Ukrainian law "On Circulation of Promissory Notes" (2001) provides a framework for the circulation of promissory notes in accordance with the Geneva Convention of 1930. A new law "On Securities and Stock Market" (2006) represents a major improvement over the prior law "On Securities and Stock Exchanges" (1991),especially on the new internationally compliant disclosure requirements for listed companies, issues of transparency of ownership, and the new rules for insider information and insider trading. The law "On Business Associations" is vague and does not support basic shareholders rights and facilitates a large number of corporate governance abuses (including share dilution, asset stripping, and dubious transfer pricing). The law is widely recognized to be inadequate and in need of reform. Recently, Ukraine has witnessed an escalation in corporate hijacking activity. Hijackers generally take advantage of deficient legislation, corrupt courts, and a weak regulatory system to gain control of companies at the expense of rightful shareholders. Typically, predatory groups of shareholders have been able to secure court decisions invalidating or diluting the voting or ownership rights of other investors. Around a dozen such attacks occurred during the year, harming investors, including U.S. companies and shareholders, and damaging the image of Ukraine among foreign investors. The GOU recognizes the seriousness of this problem and has begun to take steps to address it. However, the government has failed to move forward quickly with the draft law "On Joint-Stock Companies," recognized as a key element to better combat corporate hijacking. A.10. Political Violence General parliamentary elections took place in March 2006 without any significant disruptions or violence. The likelihood of future widespread politically inspired violence that would affect foreign property interests remains relatively low. A.11.a Corruption Corruption pervades all levels of society and government and all spheres of economic activity in Ukraine and is a major obstacle to foreign direct investment. President Yushchenko has made combating corruption a top priority, and Ukraine's new government under Prime Minister Viktor Yanukovych has affirmed its commitment to anti-corruption efforts, although much remains to be accomplished. Ukraine improved on Transparency International's Year 2006 Corruption Perception Index (CPI),which was published in November 2006. The country moved up to 99th place in 2006 on the list of the 163 countries from 107th place out of 158 countries in 2005 and from 122nd place out of 145 countries in 2004. In 2006, Transparency International rated Ukraine at 2.8 points on the CPI's 10-point scale, an improvement over the 2005 rating of 2.6 points. Corruption stems from a number of factors: a lack of institutional traditions of transparent decision-making and societal understanding of the importance of corporate governance and transparency. Low public sector salaries fuel corruption in local administrative bodies such as the highway police and tax administration as well as in the education system. Miniscule salaries in the medical system mean that the state guarantee of "free medical care" has been largely supplanted by a system of informal payments where patients are expected to make extra payments to receive treatment. High-level corruption ranges from misuse of government resources and tax evasion to non- transparent privatization and procurement procedures. In short, corruption impacts the daily lives of Ukraine's citizens and important decisions taken at the state level. Ukraine's prosecution of corruption is based on the law "On Combating Corruption," which was passed in October 1995. The law is rarely enforced, and on the rare occasions it is enforced, it is normally aimed at lower- or mid-level state employees. In January 2006, the President Yushchenko signed a decree requiring Ukraine to honor its obligations to the Council of Europe, which include several anti- corruption provisions. In September 2006, the President signed a separate decree adopting a national anti- corruption strategy that directs all branches of government to support these efforts. In October 2006, the President submitted to the Rada a package of draft laws on anti- corruption and ratification instruments for the Council of Europe Criminal Law Convention on Corruption. Ukraine in 2006 adopted a Threshold Country program under the U.S. Millennium Challenge Corporation aimed at preventing corruption. This two-year program will provide about $45 million in assistance to reform the judiciary, reduce regulatory problems, institute internal assets declaration and inspector generals, enhance civil society monitoring of corruption, and reduce corruption in higher education admissions through standardized testing. Although government action is still limited, fundamental changes have taken place in the GOU's attitude towards corruption. Gone are the days when GOU officials refused to admit that corruption existed in Ukraine. Government and Rada officials now openly discuss the problem of corruption with USG contacts and with the press and public at large. In March 2005, Ukraine ratified the Council of Europe Civil Law Convention on Corruption and became a member of the Council of Europe's Group of States Against Corruption (GRECO). Ukraine has not yet ratified the Council of Europe Criminal Law Convention on Corruption, signed in January 1999, or the UN Anticorruption Convention, signed in December 2003. Ukraine is not party to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. RULE OF LAW As discussed above, improvement of the ability of investors to protect their property and contractual rights is crucial to the investment climate. The judicial system needs to be reformed and its independence strengthened. Enforcement of court decisions also is lacking. A.11.b. Bilateral Investment Agreements BILATERAL INVESTMENT AGREEMENTS The Bilateral Investment Treaty between the United States and Ukraine came into force on November 16, 1996. The following countries have also signed bilateral investment agreements with Ukraine: Albania (2004),Austria (1996), Argentina (1995),Armenia (1994),Azerbaijan (1997), Belarus (1995),Bulgaria (1994),Brunei (2006),Canada (1994),Chile (1995),China (1992),Cuba (1995),Croatia (1997),the Czech Republic (1994),Denmark (1992),Egypt (1992),Estonia (1995),Finland (1992),France (1994), Gambia (2006),Georgia (1995),Germany (1993),Greece (1994),Indonesia (1996),Iran (1996),Israel (1995),Italy (1993),Hungary (1995),Kazakhstan (1994),Kyrgyzstan (1993),Latvia (1997),Lebanon (1996),Lithuania (1994), Macedonia (1998),Moldova (1995),Mongolia (1992),the Netherlands (1994),Panama (2005),Poland (1993),Russia (1998),Saudi Arabia (2003),Slovakia (1994),Slovenia (1999),South Korea (1996),Spain (1998),Sweden (1995), Switzerland (1995),Turkmenistan (1998),Turkey (1996),UK (1993),Uzbekistan (1993),Vietnam (1994),Yugoslavia (2001),Yemen (2002).. A.11.c. OPIC and Other Investment Insurance Programs The U.S.-Ukraine Overseas Private Investment Corporation (OPIC) Agreement was signed in Washington on May 6, 1992. OPIC halted support for projects in Ukraine in 1999, however, after OPIC and the Government failed to reach agreement on reimbursement to OPIC for its payment of a claim by a U.S. business whose investment had been expropriated. Although OPIC resumed activities in Ukraine, based on progress in negotiations, it again suspended activities in 2006, but efforts to find a resolution continued. On July 20, 2002 the Board of the U.S. Export-Import bank opened facilities for short and medium-term (up to seven years) lending for commercial, and sub-sovereign projects. Ukraine is a member of the Multilateral Investment Guarantee Agency (MIGA). In 2005 MIGA issued an $18.1 million guarantee to Raiffeisen Bank of Austria to provide coverage against the risks of transfer restriction and expropriation its subordinated shareholder loan to Joint Stock Commercial Raiffeisen Bank Ukraine. A.11.d. Labor LABOR AVAILABILITY Ukraine has a well-educated and skilled labor force with nearly a 100% literacy rate. The official (registered) unemployment level is low, 2.3% as of November 2006, but these figures are misleading. Most experts agree that reported unemployment is understated: the real unemployment rate is estimated to be 7.4 %. WAGES Wages in Ukraine are very low by Western standards but increased significantly over the past year. In November 2006, the nominal average monthly wage in Ukraine was UAH 1073.10 ($214),up 19.7% from UAH 896.58 ($178) in November 2005 and up 66.6% from UAH 644.27 ($128) in November 2004. Real wages grew by 20% between January and October 2006. The highest wages are in the financial and aviation sectors while the lowest wages were paid to agricultural and public health workers. MINIMUM WAGE The minimum monthly wage was increased in December 2006 to UAH 400 ($80),up from UAH 375 ($75) in 2005. According to Ukrainian legislation, the minimum wage is adjusted whenever consumer price increases reach 5%. The draft 2007 state budget stipulated further gradual increases of the minimum wage to UAH 450 ($90) by the end of 2007. PENSIONS On January 1, 2004 Ukraine implemented a comprehensive pension reform program, based on international standards, which established a three-pillar system: Pillar I, a solidarity system, Pillar II, a mandatory accumulation system, and Pillar III, a voluntary private pension system. The solidarity system, Pillar I, implemented the standard under which retirement payouts are determined on the basis of the individual's labor records and contributions. Despite the major reform, the Pillar I system is complex with low retirement ages (60 for men and 55 for woman), full retirement benefits based on 20 years of service for woman and 25 years for service for men, and many special early retirement provisions. Pillar II, the Mandatory Accumulation System, is to be funded by pension contributions made by individuals and employers. However, the 2003 legislation provided that Pillar II would be introduced only if the following conditions are met: -- Stable economic growth of at least 2% of GDP per annum for two consecutive years; -- The Pension Fund of Ukraine budget is balanced; -- The specific legislation for implementation of Pillar II is adopted; and -- Experience with the operation of private pension funds. Currently the conditions for the introduction of Pillar II have been met. The "Draft Law on Implementing the Accumulation System of the Mandatory State Pension Insurance and Amending Certain Laws of Ukraine" has been drafted and it is currently expected that the draft Law will be submitted to the Verkhovna Rada in early 2007. The draft Law provides for a gradual phase-in of employee contributions starting with 2% in 2009 and increasing by 1% per year reaching the maximum 7% provided by the draft Law in 2014. Pillar III, voluntary private pension funds, began actual operations in September 2005, following the adoption of the required normative acts by the Financial Services Regulator in January 2005. For the last year the development of private pension funds is quite positive, showing a 24% increase in the last six months. According to the Financial Services Regulator, Private Pension Fund assets have increased by an average 48 percent per fiscal quarter, since becoming available in 2005. In Q1 2005, assets under management of Private Pension Funds were approximately $2.65 million, by Q2 2006 assets had reached approximately $18.75 million, and by Q4 2006 assets are projected to reach $41.07 million. Unfortunately, due to the lack of financial instruments in Ukraine, assets of private pension funds continue to be invested primarily in bank deposits, which do not meet the long-term portfolio needs of these funds. If the situation continues, it can easily be argued that private pension funds will not meet the payout requirements of future pensioners. Major impediments for the future development of the pension industry in Ukraine include: (i) fiscal imbalances resulting from 2004-2005 revisions of Pillar I; (ii) lack of quality investments on the Ukrainian capital market that need to become available to the pillar II and III; and (iii) weaknesses in the regulatory and supervisory framework. Also there is an important relationship between the development of a pension industry in Ukraine and development of the stock market with respect of market capitalization and value traded. LABOR/MANAGEMENT RELATIONS Ukrainian workers are generally accustomed to "top-down" management practices and therefore usually do not demonstrate initiative. A younger, more independent-minded generation is slowly moving into the workforce, and it is becoming easier to find professional personnel who function independently. Although investors may encounter government resistance to trimming the work force to an efficient level, across-the- board demands to maintain employment levels are disappearing. Ukrainian enterprises often still maintain much of the social infrastructure of their immediate community (schools for local children, cafeterias, and medical facilities). While many local officials are willing to work with businesses to identify social services that an enterprise must support, such arrangements should be clearly spelled out before investments are started. A.11.e. Foreign Trade Zones/ Free Ports Until 2005 Ukraine maintained two forms of Special Economic Zone (SEZs): 11 Free Economic Zones (FEZs) and 9 Priority Development Territories (PDTs). On March 23 2005, a law "On the Amendments to 2005 Budget of Ukraine" cancelled all tax privileges (i.e. land tax, corporate income tax, import duty, and VAT on imports) to SEZs that had been meant to encourage investment and production of goods for export. The IMF and the World Bank had repeatedly expressed concern about tax evasion and smuggling in the zones, strongly supported the elimination of tax exemptions, and urged the GOU to resist pressures to reopen the tax loopholes closed in the 2005 budget amendments. In cases of foreign direct investment, where the investing firms had met the conditions for the privileges, the IMF and the World Bank suggested that the GOU determine whether compensation may be due to some investors. The new government of Prime Minister Yanukovych has announced its intention to re-establish some tax and customs privileges for investors and export processors located within SEZs, through draft amendments to the Law of Ukraine "On General Principle of Creation and Functioning Special Economic Zones," and stated it would develop a compensation mechanism for investors who suffered from the 2005 cancellation. The GOU states that the main goal of this law is to improve the investment climate in Ukraine and to launch new, export oriented, innovative projects. The draft law provides investors in SEZs with tax privileges, including investment (profits) tax credits and duty-free imports of equipment. The GOU asserts that the newly constituted SEZs will operate in compliance with WTO provisions. By year's end, no action was taken to re- establish the SEZs, and the planned privileges were not defined. FREE PORTS Porto-Franco FEZ in Odessa Port was a free port until all FEZ privileges were cancelled by the 2005 budget. The draft law "On General Principle of Creation and Functioning Special Economic Zones" anticipates tax privilege renewal for the Odessa Port. In total, Ukraine has 20 seaports and 10 river ports located on the Black Sea, the Sea of Azov, and the Danube, Yuzhniy Bug, and Dnipro rivers. They are currently under the authority of the Ministry of Transportation's Department of Sea and River Transport. All seaports are state-owned with the exception of a small port that belongs to the Mykolayiv Alumina Plant. All river ports are open or closed joint-stock companies. A.11.f. Foreign Direct Investment Statistics FOREIGN DIRECT INVESTMENT According to Ukraine's State Statistics Committee, as of October 2006 the total stock of FDI in Ukraine was $19.9 billion, or $424 per capita. This was a 22.3% increase from the end of 2005, when the total stock of FDI stood at $16.4 billion, or $341 per capita, and a 136% increase from January 2005, when FDI was only $8.4 billion. Mittal Steel's October 2005 purchase of the Kryvorizhstal Steel Mill represented a major inflow of FDI, at $4.8 billion, into Ukraine. Purchases of Ukrainian banks by European banks represented another major inflow of foreign direct investment in 2005 and 2006. FDI BY COUNTRY As of October 1, 2006 Ukraine's major investors included: Germany (28.6% of total FDI),Cyprus (11%),Austria (8.3%), the United Kingdom (7.6%),the United States (7%),the Netherlands (6.9%),British Virgin Islands (4.0%),and Russia (4.6%). Cyprus is a popular offshore destination for Ukrainian and Russian enterprises. FDI BY INDUSTRY SECTOR DESTINATION Over the first 9 months of 2006, 10.5% of new FDI went to the financial industry, 10.0% -- to domestic trade, 7.2% -- to real estate, 6.9 % -- to the metallurgy sector, and 6.2% -- to food processing. End Text. TAYLOR