Judges Recuse Themselves from TIU Canada Case Against Nikopol Ferroalloy Plant

The three judges hearing the case of the illegal disconnection of TIU Canada's solar station by the Nikopol Ferroalloy Plant ("NFZ") recused themselves today. On Friday, attorneys for TIU Canada filed a motion to dismiss the judges due to concerns over the judges relationship to the US government sanctioned oligarch Igor Kolomoyskyi.

The judges have all previously ruled in favor of Kolomoyskyi against Ukraine's state-owned Privatbank in another court decision1.

The three judges that ruled in favor of Kolomoyskyi were V.A. Korsack, O.V. Popikova, and O.O. Yevsikov. While TIU Canada's motion was declined, the judges then proceeded to recuse themselves voluntarily from the case. This means a new slate of judges will be appointed and a new court date scheduled.

"Today was a small victory in a larger war. We will continue our fight for justice under the law" said TIU Canada President Michael Yurkovich. Yurkovich added, "Ukraine must protect foreign investors from oligarch attacks or abandon any hope of attracting real investors."

This follows 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 from Voice of America2, the Washington Times3, and other major media.

During his visit to Kyiv on May 6, 2021, US Secretary of State Tony Blinken said, "Ukraine faces two challenges. It faces external aggression from Russia; but it also faces internal aggression from corruption, from oligarchs who put their interests ahead of the interests of the Ukrainian people. And Russia uses that internal aggression for its own purposes as well."

The 10.5 MW solar power plant 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 ultimate beneficial owners ("UBO's") fully accountable under the law. The ultimate beneficial owners of the NFZ are Igor Kolomoyskyi, Gennadiy Bogolyubov, and Viktor Pinchuk.

A number of respected diplomats, Senators, 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 Kolomoyskyi's shafting of a pioneering Canadian renewables investor".

M.P. 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, M.P. Garnett Genuis, M.P. Heather McPherson, and M.P. James Maloney have also spoken in support of TIU Canada and are monitoring the court case.

The Nikopol solar power plant owned by TIU Canada is on land leased 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 the grid 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 UBO's 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. No work has been conducted for over 5 months on the substation.

The case is viewed as a test of the 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 cancelled the disclosure requirements for public officials.

TIU Canada is a leading Canadian-based solar energy producer, which has been working in Ukraine since 2016. The company commissioned a 10.5 megawatt solar power plant in Nikopol, Ukraine, in January 2018, and an 13.5 megawatt solar station in the Mykolayiv region in April 2019. An additional 33 megawatts of solar power generation has been commissioned in the Odesa region, for a total of 56 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.