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Hot Practice in Ukraine: Oleksiy Didkovskiy on Asters' International Arbitration and Cross-Border Litigation Practice

Hot Practice in Ukraine: Oleksiy Didkovskiy on Asters' International Arbitration and Cross-Border Litigation Practice

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The International Arbitration and Cross-Border Litigation practice has taken center stage for Asters in Ukraine according to Co-Managing Partner Oleksiy Didkovskiy, with work driven by the war and the pandemic and a focus on state and quasi-state clients.

CEELM: Over the past year, what specific work or mandates have occupied your time?

Didkovskiy: Our focus has been intensely trained on representing state and quasi-state entities, such as state companies and banks, which have long been our clients. This focus has only sharpened with the ongoing war and the preceding pandemic, as these crises have made private litigation less appealing and feasible. Our work mainly involves complex legal disputes arising from bilateral investment treaties, especially in cases against the Russian Federation related to its actions in Crimea and the eastern territories of Ukraine.

We've continued to represent the state of Ukraine in two major ongoing disputes against Russia: OschadBank v. Russia and PrivatBank v. Russia, both under the auspices of the Permanent Court of Arbitration. These cases involve substantial claims for compensation due to Russia's illegal annexation of Crimea, asserting significant economic losses and breaches of international law. We are also acting as local legal counsel for Ukraine in a landmark USD 3 billion Eurobond dispute with Russia in the English courts.

CEELM: Can you provide more details on these disputes?

Didkovskiy: The OschadBank and PrivatBank cases are seminal, not just for their high stakes but for their broader implications on international legal norms. OschadBank is seeking compensation for the expropriation of its assets following Crimea's annexation – a direct violation of the bilateral investment treaty between Ukraine and Russia. Similarly, PrivatBank has filed a USD 1 billion claim related to the loss of its banking facilities and investments in Crimea, tagged under the same treaty violations. As to the USD 3 billion bond dispute, in March 2023, the UK Supreme Court ruled for a full public trial, allowing Ukraine to defend the claim on grounds of duress due to Russia's threats of aggression in 2013 and subsequent behavior.

Additionally, we handle cases defending the Ukrainian government against investment disputes, such as Misen Energy and Igor Boyko v. Ukraine. These cases typically revolve around alleged breaches of treaty obligations by Ukraine and require a robust defense strategy that navigates complex international legal principles.

CEELM: What insights have you gained from defending both the state and investors in these disputes?

Didkovskiy: Representing both sides has provided us with a unique vantage point to understand and anticipate the arguments and strategies employed across the table. This dual perspective is invaluable, particularly in investment arbitration where nuanced legal and factual issues are at play. It enhances our strategic planning and execution in both defending and asserting claims in complex disputes.

CEELM: Aside from these cases, how significant is your pro bono work?

Didkovskiy: Our pro bono efforts are a cornerstone of our practice. We've been representing the State of Ukraine in the European Court of Human Rights, challenging the widespread human rights violations perpetrated by Russia during its full-scale invasion. These proceedings address the damages and seek accountability for the breaches of international law committed by Russia, which is crucial not only for legal redress but also for historical documentation and future deterrence.

CEELM: How are you bolstering your team to handle these increasing challenges?

Didkovskiy: This year, we've made significant additions and promotions within our team to enhance our capabilities. Oksana Legka and Oleksandr Volkov were promoted to Partner positions, bringing their extensive expertise in multi-jurisdictional litigation and international arbitration to the forefront of our practice. Additionally, Andriy Stetsenko joined us as a Counsel, bringing over a decade of experience in contentious matters including international commercial and investment arbitration.

In 2023, we also experienced a poignant departure. Markiyan Kliuchkovskyi left his partnership at our firm to lead the International Register of Damage Caused by the Aggression of the Russian Federation against Ukraine – a testament to our firm's deep involvement and commitment to addressing the consequences of international conflicts.

CEELM: How do you expect the practice and your work to evolve in the next 12 months?

Didkovskiy: We anticipate an increase in both the scope and number of cases. The ongoing geopolitical tensions and the evolving international response to Russia's actions are likely to generate new legal challenges. We expect to continue growing our involvement in investment disputes and state defense cases, alongside handling significant non-performing loan portfolios for state banks, which have spiked in number due to the economic impacts of the pandemic and war.

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