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Assessment of approximation level of the present company, corporate governance, accounting and auditing legislation and existing practices in Ukraine to EU standards and practices,

Arkadiusz Radwan [1] , Alla Nadzon , Viktoria Zdiruk
2014 angielski
Liczba arkuszy: 35,2
704 , Kijów
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  • Ekspertyza/Raport badawczy
Dyscypliny naukowe
Abstrakty ( angielski )
This Study has been produced at the request of Mr Enzo Damiani and prepared by Mr Arkadiusz Radwan (Team Leader), Ms Alla Nadzon and Ms Viktoriia Zdiruk. The purpose of this Study is to review the Ukrainian legislation and practices on company law, corporate governance, accounting and auditing and to examine its current compliance level with the EU law requirements and standards. The Study also provides an update on the main changes in the respective sectors in 2014. Legal developments is a phenomenon that rarely occurs linear. Times of rapid changes are alternated with times of stagnation, reforms are followed by the times of digest. Ukrainian law does not deviate from this pattern. A few points in time over the last nearly 25 years have marked milestones in the process. These points in time are 1991 – the enactment of the Law on Business Association, 2004 – the adoption of Civil Code and Economic Code and 2008 – birth of the new Law on Joint Stock Companies. Now a new impulse for law reform became topical and politically valid: under the Association Agreement between the European Union and Ukraine that was signed in 2014 Ukraine undertook a legal obligation to bring its legislation in line with the requirements of the EU law. This Study contributes to the part of the Association Agreement concerning the company law, corporate governance, accounting and auditing. The global objective of this Report is to improve business climate in Ukraine by aligning its company, corporate governance, accounting and audit legislation with the EU standards and practices. This Report presents the assessment of current approximation level of relevant legislation of Ukraine to the EU Acquis as well as provides recommendations for its further harmonization. In addition, the study reaches out to national jurisdictions of some European countries as well as to the US and attempts to learn from their corporate law reforms. In general, Ukraine has reached a good level of compliance of its company, corporate governance, accounting and auditing legislation with the Acquis. However, the Report has confirmed the existence of dualistic regulations for private relations in Ukraine manifested in parallel operating of the legislative acts based on outdated soviet-time concepts (Economic Code of Ukraine) and relatively new legislation based on European standards (“Law on JointStock Companies”, and Civil Code of Ukraine). In certain respects Ukrainian law has excelled European standards, e.g. it has long implemented rules on related party transactions, whereas it is only now becoming part of the EU legislative agenda. In spite of this generally positive assessment, a number of legislative discrepancies related, inter alia, to the Takeover Directive, Shareholder Rights Directive, Mergers and Divisions Directives, Capital Directive, Directive regarding cross-border mergers of public limited liability companies continue to exist. Also, the modernization of Ukrainian company law appears to have been a selective process – while the law on joint stock companies contains many modern features, the law on limited liability companies remains underdeveloped and fails to adequately address all vital issues of small and medium-sized business organizations. Our main findings with respect to aforementioned objectives include recommendations for the abolishing of outdated Economic Code and overlapping provisions from the other acts (the Law on Business Associations, the Civil Code, the Law on Joint Stock Companies) in order to provide legal certainty for investors and shareholders in Ukraine. Legal framework for private limited liability companies should be put in place in form of a new law which should increase the level of minority protection while at the same time leaving enough space for flexible arrangements that are needed in small and medium sized enterprises. In the sphere of AETS Consortium – December 2014 7 corporate reorganisations (mergers, divisions, spin-offs) and transformations enactment of a new law could be recommended as well. Dual regime for listed and non-listed JSC should be introduced and the exclusive criterion of division into public and private joint stock companies shall be public placement of the shares (not a number of shareholders). Moreover, Shareholder Rights Directive should be implemented with regard to listed companies. Takeover law should be reformed (by implementation of squeeze-out and sell-out rights, lowering the threshold triggering mandatory takeover bid, introducing the break-through rule, improving guarantees for equitable bid price and defining the duties of the board), pre-emptive rights to take up newly issued shares shall be mandatory in all JSC companies and must be provided in the law (ex lege). The terminology of JSCL, the quorum for the validity of GM in JSC, and list of triggering events for appraisal rights should be reconsidered. In the reporting requirements the statement on CG Code to which the listed company adheres shall be added and the 'comply or explain' principle shall be introduced with mandating the corporate governance statement as a part of company’s disclosure. Derivative actions should be facilitated and possibility for arbitration of corporate law disputes should be considered. The project firstly embraced review of the current Ukrainian legislation in the field of company law, corporate governance, accounting and auditing. The review has been conducted in form of approximation tables where article-by-article examination of the applicable laws has been made against the background of the EU law requirements. Whenever possible, the draft EU laws have been also taken account of, in order to possibly make advance or anticipated recommendations, so as to facilitate leapfrogging and learning from earlier experiences of EU law in the member states of the EU. Thus, for proposed solutions and recommendations for Ukraine, foreign laws have been also referred to. Based on the results from this review, a narrative part of analysis has been produced. The narrative part includes also background information on the history and development of Ukrainian law as well as on socio-economic conditions under which it operates. This is important for the theoretical part, where different approaches to law reform and to legal strategies are analysed. This part is important, as it provides an analytical framework explaining choices made with regard to the proposed solutions. The self-enforcing model of corporate law has been chosen and adapted to the conditions of Ukrainian legal and institutional setting, ownership structure and legal heritage. The result of the Study is a comprehensive overview of Ukrainian company law, corporate governance, accounting and auditing indicating internal (intra-systemic) and external (vis-à- vis EU Acquis) inconsistencies as well as providing recommendations for reform. Given the complexity of the fields covered by the study, specific areas will require further elaboration. These areas include in particular: (i) reform of the takeover law, (ii) reform of the law on private limited liability companies, including focus on small business, family business and enterprise succession, (iii) reform of the investor protection in listed companies, in particular in a cross-border setting, (iv) use of alternative dispute resolution in company law, in particular arbitration of corporate disputes. Thus, in addition to proposing ready-to-implement solutions, the Study seeks to provide a roadmap for further actions. It would be wise to consider further studies, seminars and other actions in the aforesaid areas. Recommended actions include also to set-up a panel or expert group bringing together local and international experts so as to work out model laws and other non-binding reference works that based on the authority of experts involved and on the support of the European Union could be internalised by the addressees of this works and be voluntarily implemented as laws or standards in Ukraine and other transitional economies.
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