Kyiv Appeal’s Court Postpones Case of Illegal Disconnection Against TIU Canada

For Immediate Release:

(Kyiv, Ukraine) – Today the Northern Appellate Commercial Court of Kyiv postponed the hearing of the illegal disconnection of the TIU Canada solar station in Nikopol, until July 26 at 3:30 PM.  The reason given was the failure of one of the defendants to show up for court.  In addition, one of the judges recused himself from the case in the morning and was replaced.  This follows a postponement last month due to the recusal from the case of the previous three-judge panel.  TIU Canada filed a motion to dismiss the previous slate of judges.  The appeal is based on a January 26 decision by the Kyiv Commercial Court to reject the claims of an illegal disconnection despite overwhelming evidence presented by TIU Canada’s legal team.  The case is a bellwether of Ukraine’s investment environment for foreign business and is attracting international attention. 

“We will not rest in our pursuit of fairness, rule of law, and fighting corruption,” said TIU Canada President Michael Yurkovich.  He added, “The West is watching this case closely because it is a test of whether or not foreign investors in Ukraine can be protected from raider attacks by oligarchs”.  The court case number is 910/3844/20 and the judges are O. Gavruliuk, Y. Ponomarenko and the presiding judge is O. Maydanevych.

The 10.5 MW solar station was disconnected from the electricity grid by NFZ on March 2, 2020, despite the fact that Ukrainian law prevents electricity producers from being disconnected from the energy grid without obtaining the range of all the necessary permissions.  TIU Canada is seeking an immediate reconnection to the electricity grid and plans to hold the NFZ and its shareholders fully accountable under the law. The main shareholders of the Nikopol Ferroalloy Plant are Igor Kolomoyskyi, Gennadiy Bogolyubov, and Viktor Pinchuk.

A number of respected diplomats and Members of Parliament commented on the case. Roman Washcuk who served as Canada’s Ambassador to Ukraine (2014-2019) said, “Ukraine deserves external support, especially now. But it also needs to deal with internal threats, such as oligarch Kolomoysky”.

MP Yvan Baker, who is the Chairman of the Canada-Ukraine Parliamentary Friendship Group said, “If Ukraine is to attract the foreign investment needed to grow its economy, offer prosperity to Ukrainians and secure its sovereignty, rule of law must be reinforced and corruption eliminated. Some of the developments around TIU Canada’s investment in Ukraine are deeply concerning”.

Senator Peter Harder stated, “Rule of law and holding oligarchs accountable is paramount to Ukraine attracting the foreign investment it desperately needs. The people of Ukraine deserve tangible progress on both fronts”.  Other Members of the Canadian Parliament including Senator Peter Boehm, Garnett Genuis, Heather McPherson, and James Maloney have also spoken in support of TIU Canada and are monitoring the court case.

The Nikopol solar station owned by TIU Canada is on land leased long-term from the city of Nikopol. The solar plant connects to a substation on the grounds of the NFZ. On December 23, 2019, TIU Canada received a letter from the General Director of the NFZ, that they would be disconnecting the TIU Canada connection to grids via the substation on the grounds of the NFZ in order to make ‘repairs.’ The NFZ stated that they would begin the repairs after February 29, 2020, and TIU Canada immediately contacted the NFZ to seek solutions to avoid any disconnection. However, despite multiple discussions, the NFZ management and shareholders proceeded with disconnecting TIU Canada from the substation on the morning of March 2, 2020. This illegal disconnection has caused more than 1.5 million Euros of damage to TIU Canada already and increases daily.

The case is viewed as a test of Zelensky’s administration’s commitment to protecting foreign investors. It should be noted that on July 3, 2019, while speaking to the Economic Club of Canada, Ukrainian President Volodymyr Zelensky praised the work of TIU Canada at the Toronto Ukraine Reforms Conference. He said, “We think about the future, that is why green energy will be one of the key sectors of our economy during the upcoming years. I know that we have here Canadian company TIU that already successfully works in this area. We are grateful to them for this – please, follow their example”.

Unfortunately, this court ruling is just the latest in a series of setbacks for foreign investors in Ukraine.  Last year Ukraine received only $400 million in foreign direct investment due to the lack of rule of law, widespread corruption, and the Covid pandemic.  The corruption situation was exacerbated last year due to a kangaroo court ruling by Ukraine’s Constitutional Court which canceled the disclosure requirements for public officials. 

TIU Canada is owned by the Calgary-based Refraction Asset Management, has been working in Ukraine since 2016, and is a leading solar energy producer. The company commissioned a 10 ½ megawatt solar energy plant in Nikopol, Ukraine, in January 2018, and an 11-megawatt solar station in the Mykolayiv region in April 2019. An additional 33 megawatts of solar electricity production have been commissioned in the Odesa region, for a total of 54 megawatts nationwide. TIU Canada has invested more than $65 million in Ukrainian solar energy over the last four years and was the first investor in Ukraine under the Canadian Ukrainian Free Trade Agreement (CUFTA).

TIU Canada directly and through its subcontractors employs more than 30 people in Ukraine whose jobs are now threatened by this illegal disconnection.