Under the sea or how investment projects are buried

Long ago, back in my Toronto student days, I participated in the first Ukrainian-language production of the play “Out at Sea” by the Polish playwright Slawomir Mrozek, a recognized master of the theatre of absurd. I had to play the part of Fat, who tries to organize and justify the cannibal eating of one of his two brothers in misfortune on a raft barely afloat in the open sea. I don’t remember my exact lines, but there was a lot of prosecutorial talk about the law and universal justice, which required sacrificing one of my fellow passengers (and to ensure a safe future for myself).
Now I act as a Business Ombudsman (without any food claims) and had the opportunity to take part in a meeting of the Temporary Special Commission of the Verkhovna Rada on investments protection, particularly the marine terminal project and pier of the Risoil company in the city of Chornomorsk, Odesa Oblast. However, the course of the discussion, particularly speeches of the law enforcement officers – immediately brought back absurd theatrical past reminiscences.
There is an already built and ready-to-use port complex constructed by Risoil, with Headquarters in Switzerland. There is a tail of criminal cases built on formal claims against the investor and the city council. Everyone somehow agreed that there is a dualism and contradiction between the land and water legislation of Ukraine. But when the head of the Temporary investigation Commission (TIC) Halyna Yanchenko and the vast majority of People’s Deputies – regardless of factional affiliation – insisted on strategic economic interests of Ukraine (including the implementation of the presidential grain initiative), the National Police, the Security Service of Ukraine and the Prosecutor’s Office stood up for the application of the letter of the law in criminal proceedings. Despite the fact that many articles of laws and by-laws were cited, no one could refer to a specific provision of the law that was violated, as well as presence of direct or at least indirect criminal intent of those who built the port complex or contributed to it. In the worst case, it was about alleged oversights, ambiguous interpretation, or abstractly shown potential losses of the state from communal, rather than state (but yet public), registration of a leased land plot, at the same time being on the seabed in the port’s water area.
Risoil is one of the “long-playing” complaints in the work of the Business Ombudsman Council. Here are a number of key “diseases” of the Ukrainian business climate:
● Collisions of legislation (water and land) not coordinated by state bodies for the success of the investment project but utilized as levers of pressure and obstruction.
● Procedural automatism, where it is difficult to stop the criminal investigation “infernal machine” once launched (by a newly formed public organization or a competitor);
● Excessive criminalization of misunderstandings. There is a Civil Code at one’s disposal for clarifying ownership or damages compensation issues.
● Legal uncertainty due to court decisions ignorance. In the Risoil case, there was a decision of the highest instance – the Supreme Court – in 2020. And now, having rearranged commas and titles, everything is being investigated over again.
All this would be just an unpleasant supplement to a long history of investments that fell victim to Ukrainian law enforcement agencies, if it were not for the urgent national need to launch maximum export opportunities now. Besides, similar proceedings – where, even in the absence of criminal intent, a deceptive purpose of restoring legality at the bottom of the sea is pursued – directly or indirectly threaten other Ukrainian port complexes.
And the thing of crucial importance: a country where multi-year and sometimes repeated criminal proceedings are launched for every different reading of the cadastre or water law, will never be rebuilt – neither by external nor internal efforts. For the great, vital job of Reconstruction after the Victory, both business and law enforcement bodies must become part of a new – literally constructive – social contract. I am convinced, People’s Deputies efforts from TIC are aimed at this, this is the essence of the Business Ombudsman Council’s mission, and we need impulses from the highest leadership of the state to complete it. So that Ukrainians and their international partners could build the future with certainty – on the ground, at the bottom of the sea, and – why not – in outer space.
Roman Waschuk, Business Ombudsman