REALWorld Law

To what extent would an architect, another designer, the building contractor or any subcontractor have liability for any physical damage or economic loss suffered by the end-user(s) of a completed development? Can such liability be excluded in any way?

Construction issues in Ukraine are regulated by a number of laws, subordinate legislation (on state and local levels) as well as by different construction regulations which are not legally binding, but are widely used in practice.

At state level, the main sources of construction law are as follows:

• The Civil Code of Ukraine No. 435-IV, dated 16 January 2003 and Commercial Code of Ukraine No. 436-IV, dated 16 January 2003
• The Law of Ukraine ‘On the Regulation of Town Planning Activity’ No. 3038-VI, dated 17 February 2011
• The Law of Ukraine ‘On Basics of Town Planning’ No. 2780-XII, dated 16 November 1992
• The Law of Ukraine ‘On Architectural Activity’ No. 687-XIV, dated 20 May 1999, and
• ‘General Conditions for Conclusion and Execution of Contractor's Agreements in Capital Construction’ approved by the Resolution of the Cabinet of Ministers of Ukraine No. 668, dated 1 August 2005

Following Ukraine's ratification of the EU Association Agreement, on 16 September 2014, current legislative initiatives in Ukraine are aimed at the further deregulation and simplification of the construction permit system in line with European legislation and practice.

Last modified 22 Mar 2024

To what extent would an architect, another designer, the building contractor or any subcontractor have liability for any physical damage or economic loss suffered by the end-user(s) of a completed development? Can such liability be excluded in any way?

Recently the Ukrainian government initiated the reform of construction licensing providing for transition from licensing the construction companies to granting qualifying certificates to professionals engaged into construction. Procedure for issuing construction licenses was cancelled and since 18 March 2020 no construction licenses can be issued.

Still licenses are still required until new amendments are implemented into core Ukrainian laws regarding to licensing.  Licences issued before March 2020 remain in force. Currently only carrying out of certain construction works (general construction and installation works, construction of infrastructure and transport objects) which are classified as works related to construction of objects with medium (II class) and essential consequences (III class) require construction license. In order to be entitled to carry out such construction works a contractor must hold the relevant licence (new licenses cannot be issued at the moment). Design and engineering works related to construction of objects with medium and essential consequences are not subject to licensing and only require the availability of appropriate certificate.

Additionally, those who directly carry out separate construction, design and engineering works related to construction of objects with non-essential consequences are required to be properly qualified to carry out such works, as confirmed by certificates of qualification.

On 17 January 2017 Ukrainian Parliament adopted the law introducing amendments to town-planning legislation, which came into force on 10 June 2017. According to introduced amendments, all buildings are now divided into three classes of consequences instead of five categories of complexity: I class – buildings with non-essential consequences, II class – buildings with medium consequences and III class – buildings with essential consequences.

Most official permissions and consents necessary for the commencement of works (including input data for planning, examination of planning documentation, permit for performance of construction works, etc) must be obtained by the developer (the party procuring the work and having rights to the relevant plot of land).

Last modified 22 Mar 2024

To what extent would an architect, another designer, the building contractor or any subcontractor have liability for any physical damage or economic loss suffered by the end-user(s) of a completed development? Can such liability be excluded in any way?

General issues and concepts for health and safety on construction sites are determined in Ukraine by the Law of Ukraine ‘On the Protection of Labour’ No. 2694-XII, dated 14 October 1992 and the Law of Ukraine ‘On the Approval of the National Initiative for the Improvement of the State of Safety, Health  and Manufacturing Sectors for 2014-2018’ No. 178-VII, dated 4 April 2013 (the ‘Initiative’).

The Initiative envisages that Ukrainian legislation in the sphere of health and safety protection should be brought into compliance with EU regulations and contains general guidelines to be followed in order to achieve this. More specific rules are laid down in regulations, eg State Construction Regulations or State Sanitary Regulations. It should be noted that important international conventions on health and safety in construction (eg Convention of International Organization of Labour No. 167, dated 20 June 1988 on Safety and Construction Health) have still not been ratified by Ukraine.

Depending on the designated use of a building (eg an industrial facility) some rules relating to health and safety may be applicable to the operation of that building after completion of the construction works.

Last modified 22 Mar 2024

To what extent would an architect, another designer, the building contractor or any subcontractor have liability for any physical damage or economic loss suffered by the end-user(s) of a completed development? Can such liability be excluded in any way?

Provisions dealing with environmental issues in construction are contained in a number of environmental laws, specifically, Law of Ukraine ‘On Protection of Environment’ No. 1264-XII, dated 25 June 1991, Law of Ukraine ‘On Wastes’ No. 187/98-BP dated 5 March 1998, Law of Ukraine ‘On Protection of the Atmosphere’ No. 2707-XII, dated 16 October 1992, Law of Ukraine ‘On Environmental Impact Assessment’ No. 2059-VIII, dated 23 May 2017 and Law of Ukraine ‘On Ecological Audit’ No. 1862-IV, dated 24 June 2004.

On 22 June 2017, the Ukrainian parliament passed the Law of Ukraine ‘On Energy Efficiency of Buildings’, which is based on concepts elaborated in Directive 2010/31/EU. Most provisions of the law came into force on 23 July 2018, while rules related to mandatory certification of buildings came into force on 1 July 2019. According to the Law ‘On Energy Efficiency of Buildings’, the energy efficiency is a feature of a building characterizing the amount of energy needed for creating proper conditions for dwelling in such building. The energy efficiency of a building is determined based ‘Methodology for determination of buildings energy efficiency’, which was adopted by the Ministry of Regional Development and Construction of Ukraine on 11 July 2018. This methodology was elaborated with consideration of requirements of legislative acts of European Union, Energy Community and harmonized European standards in the sphere of energy efficiency.

From 1 July 2019, the energy efficiency certification is required to confirm that a building meets the energy efficiency requirements. Such certification is mandatory for:

1. buildings under construction: new buildings, reconstruction and/or capital repairs of buildings, with medium and significant consequences, that are almost all residential and commercial buildings except for residential houses up to 4 floors high and buildings, where not more than 50 persons are located permanently or 100 persons – temporarily;
2. state-owned buildings with heated area more than 250 sqm, which are occupied by a public authority and frequently visited by public;
3. buildings with heated area more than 250 sqm, which are occupied by a municipal authority (in case of their thermic modernization); and
4. buildings, where the thermic modernization is financed by public funds.

Following such certification, the energy certificate should be issued, which is effective for the term of 10 years. The energy certificate is a part of design documentation and should be issued before the commissioning. The detailed procedure for energy certification is described in ‘Procedure of energy efficiency certification and forms of energy certificate’ which was adopted by the Cabinet of Ministers of Ukraine on 11 July 2018.

In addition, on 18 December 2017, the Law of Ukraine ‘On Assessment of Environmental Impact’ came into force. According to this law, construction permits related to construction of objects, which have impact or may have impact (the list of such objects is provided in the Law and includes chemical enterprises, crude oil refineries, drilling works, agricultural enterprises, complex infrastructure objects etc.) cannot be issued prior to conducting an environmental impact assessment and the approval of that report.

Last modified 22 Mar 2024

To what extent would an architect, another designer, the building contractor or any subcontractor have liability for any physical damage or economic loss suffered by the end-user(s) of a completed development? Can such liability be excluded in any way?

For the period of construction, developers in Ukraine usually enter into temporary agreements with utility suppliers (water, electricity, sewerage etc) to secure the construction site with the utility services necessary for its construction needs. After completion of the construction works, the company which owns or manages the building enters into permanent agreements with utility suppliers.

On 20 September 2020 Ukrainian Parliament passed the law that amended the Law of Ukraine ‘On the Regulation of Town Planning Activity’. From 1 January 2020 till 1 January 2021 there is a transition period during which developers of residential and commercial projects shall pay share investment contribution for settlement's infrastructure under reduced rates (construction of industrial objects is released from paying such contribution). From 1 January 2021 all constructions projects will be released from paying the above contribution.

Last modified 22 Mar 2024

To what extent would an architect, another designer, the building contractor or any subcontractor have liability for any physical damage or economic loss suffered by the end-user(s) of a completed development? Can such liability be excluded in any way?

The contracts for carrying out building works should contain the mandatory terms and conditions prescribed by the Civil Code of Ukraine, the Commercial Code of Ukraine and the General Conditions of Conclusion and Execution of Contractor's Agreements in Capital Construction approved by the Resolution of the Cabinet of Ministers of Ukraine No. 668 dated 1 August 2005, in particular names and details of the parties, the place and date of the execution of the contract, the contractual price, terms for commencement and completion of works and rights and responsibilities of the parties. Any contract which lacks the mandatory provisions envisaged by the law, may be declared invalid by the court.

Last modified 22 Mar 2024

To what extent would an architect, another designer, the building contractor or any subcontractor have liability for any physical damage or economic loss suffered by the end-user(s) of a completed development? Can such liability be excluded in any way?

The Ministry of Development of Communities and Territories of Ukraine (was renamed from the Ministry of Regional Development and Construction of Ukraine in August 2019) as well as the Cabinet of Ministers of Ukraine are the main bodies which produce standard form contracts for use in the construction and engineering sectors. The Standard Contractor's Agreement in Capital Construction approved by the Order of the Ministry of Construction, Architecture and Housing of Ukraine No. 3, dated 27 October 2005, is the main standard form of construction contract recommended for use in construction matters. Generally, the parties are free to choose any other form of contract provided it contains all the mandatory provisions envisaged by the law.

International contracts, such as FIDIC contracts, may be used in Ukraine subject to adaptation to mandatory Ukrainian legislative requirements. Due to this fact, FIDIC contracts are rarely used in Ukraine (except for public infrastructure projects financed by international financial institutions). At the end of 2016, the Cabinet of Ministers of Ukraine adopted Decree No. 1065, which determined the status of the engineer in course of construction of public roads, which simplified adaptation of FIDIC contracts to Ukrainian law. According to the above Decree, the engineer performs its functions with regard to terms and conditions of the relevant FIDIC contract.

Last modified 22 Mar 2024

To what extent would an architect, another designer, the building contractor or any subcontractor have liability for any physical damage or economic loss suffered by the end-user(s) of a completed development? Can such liability be excluded in any way?

The main parties to a construction or engineering contract in Ukraine are:

• Developer – the party procuring the work and having rights to the relevant plot of land, and
• Contractor – the party carrying out construction or engineering works

If the parties use a single general contract, a contractor may sub-contract the performance of separate works. The general contractor remains responsible to the developer for the carrying out of all works, including those carried out by sub-contractors. The parties are also entitled to enter into a multilateral construction/engineering contract.

Last modified 22 Mar 2024

To what extent would an architect, another designer, the building contractor or any subcontractor have liability for any physical damage or economic loss suffered by the end-user(s) of a completed development? Can such liability be excluded in any way?

Ukrainian legislation provides that the contractor is usually liable for accidental destruction or damage to the facilities which are in the process of construction and materials or equipment of the developer or any third parties located on the construction site. However, the allocation of those risks between developer, contractor and sub-contractor could be separately agreed between the parties.

The contractor usually bears the risk of injury to its employees which takes place on the construction site and, in some cases, injuries to third parties (if such injuries took place on the construction site due to the contractor's fault).

The contractor also bears contractual risks connected with breaches of the terms of the construction/engineering contract, such as delays in performance of the construction works or incomplete performance of works.

Usually a construction and engineering contract will include a force majeure clause envisaging circumstances/events deemed to be force majeure. Normally it is stipulated that if a force-majeure event continues to exist for a period of time agreed by the parties (eg three months), the parties are entitled to terminate the construction contract.

Last modified 22 Mar 2024

To what extent would an architect, another designer, the building contractor or any subcontractor have liability for any physical damage or economic loss suffered by the end-user(s) of a completed development? Can such liability be excluded in any way?

Public-private partnerships (PPPs) are not common in Ukraine. Relations between state/local bodies and developers are usually formalized by other legal instruments (eg investment agreements or joint activity agreements).

In 2010, the Ukrainian Parliament adopted the Law of Ukraine ‘On PublicPrivate Partnerships’ which sets out a list of activities for which PPP structures may be used, the main functions and forms of a PPP etc. However, in practice PPPs are rarely used in Ukraine (this form of collaboration was used in the construction of projects related to the EURO 2012 Football Championship and is currently used in complex infrastructure projects).

However, on 24 May 2016 the Law of Ukraine ‘On Amendments to Certain Laws of Ukraine regarding Lifting of the Regulatory Barriers for Development of Public Private Partnership and Stimulation of Investments in Ukraine’ entered into force. The aforesaid law broadened the list of privileges and guarantees for private partners (eg now the private partners can acquire into their ownership the objects created by them in course of PPP; the objects of PPP can also be in joint ownership of the public and private partners; disputes arising out of agreements on PPP concluded with participation of non-residents can be resolved by an international arbitral tribunal; in case of early termination of an agreement on PPP through fault of the public partner, the public partner is obliged to compensate to the private partner investments, non-reimbursed within the term of such agreement and damages, occurred due to early termination of the agreement on PPP).

Last modified 22 Mar 2024

To what extent would an architect, another designer, the building contractor or any subcontractor have liability for any physical damage or economic loss suffered by the end-user(s) of a completed development? Can such liability be excluded in any way?

Under Ukrainian law it is possible for parties to construction contracts to enter into a 'fixed price contract'. Ukrainian law provides for certain cases where the contractor is entitled to demand an increase in the price fixed in the contract (however, such demands are not automatically binding on the developer).

Last modified 22 Mar 2024

To what extent would an architect, another designer, the building contractor or any subcontractor have liability for any physical damage or economic loss suffered by the end-user(s) of a completed development? Can such liability be excluded in any way?

Under Ukrainian law, the party that responsible for entering into an insurance agreement with regard to the building under construction or the construction works, may be agreed by the parties to the construction contract. In practice in Ukraine, the parties to construction contracts usually agree on the type of insurance on a case-by-case basis.

Last modified 22 Mar 2024

To what extent would an architect, another designer, the building contractor or any subcontractor have liability for any physical damage or economic loss suffered by the end-user(s) of a completed development? Can such liability be excluded in any way?

As a rule, security documents, such as bank guarantees and guarantees from the parent or any third party company are used in Ukraine. Surety agreements are commonly used as well.

Last modified 22 Mar 2024

To what extent would an architect, another designer, the building contractor or any subcontractor have liability for any physical damage or economic loss suffered by the end-user(s) of a completed development? Can such liability be excluded in any way?

Generally, most construction contracts in Ukraine contain a clause providing for advance payments that should be paid to the contractor before the commencement of construction works. The rest of the contract price is usually divided into payments that are made on completion of specific stages of the construction works or periodically (eg monthly). The final retention payment is usually paid within one to two years after the completion of construction (after the expiration of the construction guarantee period).

Last modified 22 Mar 2024

To what extent would an architect, another designer, the building contractor or any subcontractor have liability for any physical damage or economic loss suffered by the end-user(s) of a completed development? Can such liability be excluded in any way?

Under Ukrainian law, the parties may agree a fixed time/date for completion of works as well as agree on the responsibility and consequences of a breach in a construction contract.

Last modified 22 Mar 2024

To what extent would an architect, another designer, the building contractor or any subcontractor have liability for any physical damage or economic loss suffered by the end-user(s) of a completed development? Can such liability be excluded in any way?

As a general rule, all variations to the specification for engineering or construction works must be agreed by the parties.

According to Ukrainian legislation, if the contractor discovers the necessity for extra works that are not envisaged by the design documentation, the contractor is obliged to inform the developer about the issue. If the developer fails to decide whether it is necessary to carry out those works within a reasonable time, the contractor is entitled to suspend execution of construction works. In case of emergency (eg if non-performance of such works could entail damage to the construction works or other damage), additional works can be performed by the contractor without prior consent from the developer.

Additionally, under the Civil Code of Ukraine, a developer is entitled to amend a design documentation at any time provided that additional works necessary due to such amendments would not exceed 10 percent of the estimated price of the construction works stipulated by the design documentation prior to amendment.

Last modified 22 Mar 2024

To what extent would an architect, another designer, the building contractor or any subcontractor have liability for any physical damage or economic loss suffered by the end-user(s) of a completed development? Can such liability be excluded in any way?

In Ukraine, completion of building works is defined by the construction contract and design documentation which also defines what has to be achieved before 'completion' of those works. Notwithstanding this principle, the law and construction regulations require that the building may be commissioned on completion of all works envisaged by the relevant design documentation (although façade and site landscaping works may be completed after the commissioning if that occurs during the winter). In the construction contract and design documentation the parties usually agree on a wider scope of works to be completed before the new construction is handed over to the customer.

The commissioning of the building/other facility is certified by the local Inspectorate of Construction and Architecture Control (the state authority with responsibility for construction issues) or the architectural department of the municipality (for the area in which the relevant building/other facility is located) by means of the issuance of a Certificate of Compliance (for technically complex projects) or registration of a Declaration of the Readiness for Use of a Completed Construction Project (for technically simple projects). The completion of construction works envisaged in the construction contract is usually certified by execution of the act of acceptance of the completed works/facility between the client for the works, the general contractor and other contractors.

Last modified 22 Mar 2024

To what extent would an architect, another designer, the building contractor or any subcontractor have liability for any physical damage or economic loss suffered by the end-user(s) of a completed development? Can such liability be excluded in any way?

Construction disputes between companies are settled in commercial courts. Disputes with the participation of individuals are settled in courts of general jurisdiction. Disputes involving state/municipal authorities and disputes relating to challenging the acts/powers of such bodies are settled by the administrative courts. Decisions of courts of first instance can be appealed to the courts of appeal and ultimately to the Supreme Court.

Last modified 22 Mar 2024

To what extent would an architect, another designer, the building contractor or any subcontractor have liability for any physical damage or economic loss suffered by the end-user(s) of a completed development? Can such liability be excluded in any way?

Generally, construction disputes in Ukraine are resolved in state courts (commercial courts and courts of general jurisdiction) or in arbitration courts (if the parties have included an arbitration clause in the construction contract). As a rule, arbitration secures faster and sometimes a more objective settlement of disputes in comparison with the courts of general jurisdiction. Notwithstanding this, in order to enforce the arbitration decision, the party must refer to the local court of general jurisdiction.

Last modified 22 Mar 2024

To what extent would an architect, another designer, the building contractor or any subcontractor have liability for any physical damage or economic loss suffered by the end-user(s) of a completed development? Can such liability be excluded in any way?

Ukrainian law does not provide for any obligatory forms of ADR to be used in construction dispute resolution. A pre-court procedure settling disputes (by means of submitting a claim and having it reviewed by the party at fault) is envisaged by the Ukrainian Code of Commercial Procedure, but this procedure is not compulsory provided that the parties have not agreed otherwise. Other forms of ADR are rarely used in Ukraine.

Last modified 22 Mar 2024