Article: “Obstacles are guaranteed”

In the new issue, especially for Legal Practice, Artem Semenyshyn, Director of the Solar Energy Association of Ukraine, and Olga Savchenko, Partner of Altelaw Law Firm, Chair of the ACEU Legal Committee, published an article entitled “Obstacles Guaranteed”.

At the end of March 2020, the first serious crisis of non-payment arose in the field of renewable energy. The state unilaterally retrospectively changed the terms of contracts and reduced tariffs, especially for solar power plants, guaranteeing the resumption of payments in full, which did not happen. Litigation of fairly simple receivables with the Guaranteed Buyer, initiated by RES producers, which has become a challenge for the judiciary and a test of common sense for the energy industry.

In this article, experts propose to analyze what procedural strategies were used against producers of renewable energy sources, which led to delays in payments for electricity for already executed enforcement proceedings.
What exactly were the actions:

  • Absence of representatives of the “Guaranteed Buyer” at the first court hearing as a result of the postponement of the hearing with justification for compliance with quarantine conditions.
  • Late submission of documents, which postponed the date of the meeting for another month.
  • Involvement of third parties, such as the Cabinet of Ministers of Ukraine, NKREKP, NEC “Ukrenergo”.
  • Refusal of the “Guaranteed Buyer” to pay the court fee, without which the procedural movement is impossible.
  • Appeal against the refusal to defer the execution of a court decision.
    As a result, as of the beginning of November 2021, more than 150 lawsuits were filed by RES producers against the Guaranteed Buyer in the amount of almost UAH 1.7 billion. Of these, the appellate court fully supported 48, partially satisfied 20 (the reason for partial satisfaction is a different interpretation of Article 233 of the Civil Code). The Supreme Court considered and left, as before, the decision of the first instance or the decision of the second on 5 lawsuits. The amount of the court fee paid by the “Guaranteed Buyer” irrevocably to the state budget in the first and second instances is over UAH 23.8 million.

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