Lawyers are looking for mechanisms to guarantee compensation for the losses inflicted by the aggressor on Ukrainian business, according to the results of a poll conducted by Interfax-Ukraine.
“The topic of losses and compensation is one of the most relevant among business and the legal community. Now, there is not a single guaranteed algorithm or tool for obtaining such compensation. Actually, not only Ukraine, but the whole world, for the first time in the last few decades, met with such a large-scale military conflict,” partner at Sayenko Kharenko law firm Olena Sukmanova said.
In her opinion, there may be two sources of such compensation in the future. In particular, these are compensations that can be paid to citizens and businesses by the Ukrainian state on the basis of specially adopted regulations, and compensations based on decisions of international or Ukrainian courts.
“In both cases, especially for businesses, it is very important to have enough evidence of damage and its causes,” the lawyer said.
In turn, Hleb Bialy, partner at Asters law firm, said that there is still no clear sequence of actions to record losses.
In particular, the procedure for determining the damage and damage caused to Ukraine due to the armed aggression of the Russian Federation, approved on March 22 by the Cabinet of Ministers, contains a definition of the concept of losses for individuals and legal entities, the state, as well as a list of types of damage in 18 areas, but does not regulate the issue of sequence actions to record them.
“Each case of damage can be unique depending on the nature and extent of the damage, the activities of the enterprise, etc. That is why it is very difficult to talk about a single clear algorithm of actions for recording them,” Bialy said.
He conditionally divided the sequence of recording the damage into three separate blocks: the state before the injury, the circumstances of the injury and the state after the injury.
Bialy advises, in case of damage, to record it as early as possible and as detailed as possible, indicating the source of evidence and information about the person who recorded it, to carry out the proper identification of witnesses, and also to trace the chain of evidence owners from the moment they are received to the moment they are submitted to the competent authority.
In addition, the lawyer recommends ensuring the authenticity of the evidence, not changing the evidence after it has been recorded, and taking care of the security of the evidence, providing for the creation of backup copies of it.
Bialy said that Ukrainian legislation lacks a clearly defined methodology for recording losses for intangible assets, as well as intellectual property.
“In our opinion, the best option for recording such losses may be to carry out actions that are usually performed when considering litigation – this may be an examination in the relevant areas or an independent assessment, etc.,” he said.
For their part, the experts of the law company Ri Group also said that a detailed and complete list and description of the damaged destroyed property will significantly speed up and facilitate the procedure for compensating for damages. In addition, they recommend collecting title documents for the property and making copies of them.
“You should not count on a projectile, bomb or rocket to bypass you. The enemy is acting insidiously and directs his aggression precisely at the civilian population. First of all, we advise you to collect title documents for property right now, as well as find checks, receipts, warranty certificates for household appliances, equipment, furniture, etc., make copies of them. It is better to keep all documents in one place with you,” Ri Group said.
The company believes that a detailed description with video and photography of real estate, vehicles, etc., to record the current state of the property, can be useful in establishing the market value of the property in the event of its destruction and will facilitate its assessment by an expert appraiser.
Lawyers of Ri Group advise in case of damage to property from enemy shelling, call the employees of the State Emergency Service to eliminate the consequences and draw up an appropriate act, get a copy of it, file a complaint about the crime with law enforcement agencies, providing evidence of property destruction, and get an extract from the unified register of pretrial investigations.
If the local administration is working, file an application for drawing up an act of inspection of housing and / or draw up an act of destruction on your own with neighbors and make photo and video recording of the destruction.
As reported, Gennady Borisichev, the founder of the Konkor law firm, believes that business should not only talk about compensation for the damage caused to it as a result of the Russian aggression, but also about compensation for all the damage caused. The lawyer drew attention to the fact that when assessing damage, it is necessary to follow government decree No. 326 of March 20, which establishes the procedure for determining the damage and damage caused to Ukraine as a result of the armed aggression of the Russian Federation.
The lawyer emphasized that in the near future it is expected to adopt an appropriate methodology for assessing harm and approving acts to fix it.
In addition, he noted the need for a correct legal characterization of the actions resulting in damage, as this would affect the prospects for redress.
“War is not an ‘event’ such as a natural disaster or accident, nor is it a private conflict that results in harm. Business harm is just one of those severe consequences of war. Which, in turn, entitles a business to receive the status of the victim. That is, the use of such a legal approach allows us to involve the law enforcement agencies of the state in fixing the damage. This method of fixing the damage when assessing evidence both in Ukraine and in foreign jurisdictions will have certain advantages and allows you to attract the state to the side of the victim, “the lawyer explained .
Borisichev also stressed that the problem of compensation for damages caused by Russian aggression is not a common well-established practice for law firms, and there is no mechanism for enforcing decisions on claims for damages against the Russian Federation.