Businesses should talk not only about compensation for the damage caused to them due to the Russian aggression, but also about compensation for all the damage caused, Hennadiy Borysychev, founder of the Konkor law firm, has said.
“Please note that damage is only part of such a concept as harm, in particular, harm caused by Russian aggression. Damage includes not only direct losses, but also additional costs, lost profits, and there is also moral damage. For example, for legal person it is real to prove the existence of moral damage caused, in particular, due to the loss of non-property assets, goodwill and others,” he told Interfax-Ukraine.
The lawyer said that for each of these types of damage there are specific features of recording – the collection of evidence about the existence of the fact of damage and its size. At the same time, it is important to clearly establish all types of damage caused and prove both the very fact of the existence of damage and its size.
“It is important to consider and prove all components of the damage caused in a complex, that is, in interconnection. It is a mistake to break down the recording and assessment of the amount of damage for separate objects of one business that suffered damage, since a business (enterprise) is a property complex, and includes both property, and non-property assets,” he said.
Borysychev drew attention to the fact that when assessing the damage, it is necessary to follow the government resolution No. 326 dated March 20, which sets the procedure for determining the damage and damage caused to Ukraine as a result of the armed aggression of the Russian Federation.
The lawyer said that in the near future it is expected to adopt an appropriate methodology for assessing harm and approving acts for recording it.
In addition, Borysychev pointed out the need for a correct legal qualification of the actions that caused damage, which will affect the prospects for compensation.
“War is not an “event” like a natural disaster or accident, and not a private conflict, as a result of which harm is caused. Harm caused to a business is exactly the type of harm that refers to such grave consequences of war, which in turn entitles a business to receive the status of a victim. That is, the application of such a legal approach allows us to involve the law enforcement agencies of the state in recording the damage. This method of recording the damage when assessing evidence both in Ukraine and in foreign jurisdictions will have certain advantages and allows attracting the state to the side of the victim,” the lawyer said.
Borysychev drew attention to the fact that the problem of compensation for damages caused by Russian aggression is not a common well-established practice for law firms. At the same time, an important point is the lack of a mechanism for enforcing decisions on claims for damages against the Russian Federation.
“This problem is extraordinary and has not yet been solved anywhere in the world, it requires the development of law enforcement practice. Ukrainian courts have positive experience in claims against the Russian Federation, there is positive experience in arbitration, but an important nuance has not yet been taken into account – the mechanism for executing such decisions,” he said.
Borysychev said that earlier the Konkor law firm won the right to the status of a victim due to Russian aggression several years before the start of the second hot stage of the war on February 24.
“Now our solutions and experience in this area have become relevant and unprecedented,” he said.
The lawyer said that among foreign jurisdictions, the most promising for the restoration of the violated rights of war victims are the jurisdictions of the UK, the United States and Canada.
He said that the law firm will focus on the development and implementation of the legal mechanism in Ukrainian courts.
Borysychev said that at present, the current issues are the adoption of a law on compensation for damage to victims of Russian aggression in Ukraine and the creation of a common accessible mechanism for all categories of victims in Ukraine to obtain the status of victims and compensation for damage.
