On January 26-27, 2012 the II Competition Forum of Ukraine was held in Kiev under official support of the Antimonopoly Committee of Ukraine (AMCU). The Forum was organized by Centralex Events. Arzinger Law Office sponsored the event. The Association for Resistance to Unfair Competition (ARUC) provided information support to the Forum.

Arzinger’s Senior Partner, President of ARUC Sergiy Shklyar delivered a presentation in the fifth panel on combating unfair competition. Mr. Shklyar devoted his report “Infringement of Honest Rules and Customs in Competition – Legislation and Law Enforcement Practice in Ukraine in a Comparative Perspective” to the interpretation of the concept of “honest custom in business practice” in proving facts of unfair competition in the worldwide practice and in Ukraine.

Thus, according to the legislation established in Ukraine anticompetitive acts are qualified under Article 1 of the Law of Ukraine “On Protection from Unfair Competition” as acts in competition that violate honest customs in business practices. Thus, the courts require evidence to prove the existence, content and source of such business customs. Nevertheless, in the opinion of Mr. Shklyar, such approaches of courts overstate the standards of proof of anticompetitive acts, since in most cases business customs and rules are not recorded in acts of legislation or other documents, but are postulates that are implicitly understood and taken into account by trade participants (e.g. the “prudent man rule”, the “bona fides rule” etc.). Most countries with special laws to define “honest business custom in trade” use such subjective categories as “honest trade practices” (Belgium, Luxembourg), “the principle of good faith” (Spain, Switzerland), “good morals” (Germany, Greece, Poland). For the lack of specific legislation the courts determine fair competition through the word combinations “the principles of honesty and fair dealing” or “the morals of the marketplace” (USA). To determine the “honesty” of business customs in the consideration of similar cases, courts use the data obtained from polls of “reasonable customer audience” or market players.

At the end of his speech Mr. Shklyar expressed his hope that the Ukrainian courts would adopt the best international practices in dealing with such cases and treat the essence of a dispute less formally. He also suggested his vision of solving the problem of interpretation and application of valuation categories and concepts in competition law in general.

The Competition Forum of Ukraine is a platform for discussing major trends in the field of competition protection in the markets of Ukraine, CIS and EU and for exchange of international experience in the competition enforcement. This year’s forum was attended by such distinguished experts in the field of competition as Chairman of the Antimonopoly Committee of Ukraine Vasyl Tsushko, Head of Russian Federal Antimonopoly Service Igor Artemyev, Chairman of the Interstate Council for Antimonopoly Policy (ICAP), President of the Republic of Kazakhstan Agency for Protection of Competition Mazhit Esenbayev, Chairman of the Bulgarian Competition Protection Commission Petko Nikolov and a representative of the European Commission’s Competition Directorate General Sam Peters.

Within two days the forum participants discussed topical issues of competition law enforcement, issues of cooperation between competition authorities and sector regulators to ensure the development of competition, control of economic concentration, specifics of the application of leniency programs for cartel participants as well as resistance to anti-unfair competition.

On  January 26, 2011 a working meeting of representatives of the non-commercial partnership Promoting Competition in the CIS with the heads of competition authorities of Kazakhstan (M. Esenbayev), Russia (I. Artemyev) and Ukraine (V. Tsushko) as well as the head of the ICAP Secretariat (A. Usmanov) was held in the framework of the II Competition Forum of Ukraine.