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Standing concern

Standing concern

Under Ukrainian law, Ukrainian borrowers may receive financing from lenders, which are not banks or financial institutions, only in the form of "borrowings", but not "loans". Borrowings and loans are similar but still different types of transactions in Ukraine. "Borrowings" are frequently used as financing instruments between affiliated foreign entities (which would normally be corporate loans in other jurisdictions). However, the Exemption appears to apply only to surety's payments in connection with loans, but not "borrowings". Consequently, payments under such suretyships with respect to borrowings appear to remain subject to obtainment of an NBU's individual license. As reasonability of such a conclusion is not persuasive, further clarifications of the NBU may help to finalize this matter.

Background

The licensing regime for the surety payments was introduced by the NBU in accordance with its formal clarification letter dated 15 November 2010 (the "Letter). In the Letter the NBU explained that in order to make a payment to a foreign lender a Ukrainian surety had to obtain an individual license from the NBU unless the surety was an authorized bank or financial institution. Although the Letter technically did not create new binding rules but rather contained the NBU's interpretation of the then effective currency law, Ukrainian banks used to strictly follow the approach stated in the Letter while servicing payments under suretyships executed both prior to and after the date of the NBU's Letter.


For further information please contact

Armen Khachaturyan
Senior Partner