Judge of the Economic Court of Kyiv Stashkiv R.B. declared a bank guarantee unenforceable in a high-profile case involving the participation of Alliance Bank in a scheme that caused damage to the state company NEK Ukrenergo by 1 billion hryvnia.
We are talking about the circumstances of the criminal investigation completed by the National Anti-Corruption Bureau of Ukraine, in which the owner of the United Energy company affiliated with I. Kolomoisky, officials of Ukrenergo and Chairman of the Board of Alliance Bank Yulia Frolova are accused of seizing electrical energy from NEC Ukrenergo during martial law ” and legalization of funds received from its sale.
In this scheme, Alliance Bank acted as a guarantor of payment to United Energy for the electricity taken from the Ukrainian electrical system. When the country's largest electricity trader did not fulfill the terms of the contract in March 2022 and Ukrenergo turned to the guarantor bank, Alliance Bank refused to fulfill its guarantee obligations and filed a lawsuit against NEC Ukrenergo for “recognition of the bank guarantee as such that it is not subject to fulfillment and recognition of the bank’s obligations as terminated.”
Let us remind you that this is a systematic and, unfortunately, successful practice of Alliance Bank, through many years of litigation, to seek the cancellation of its obligations under bank guarantees to government institutions and enterprises. Among the victims: the Ministry of Defense and NJSC Naftogaz.
The paradox of the decision of the Economic Court in case No. 910/16479/23 on recognizing the bank guarantee of Alliance Bank as such that it is not enforceable is that in December 2022, the same Economic Court of Kiev, on the claim of NEC Ukrenergo, already accepted a decision according to which Alliance Bank had to pay 1 billion 113 million hryvnia to the state company under the same bank guarantee. However, the state never received the money - the decision is being challenged by Alliance Bank and the Northern Court of Appeal has not been able to consider this case on its merits for a year and a half due to manipulation of the trial by the bank's lawyers.
According to the materials of case No. 910/3268/22, which was considered in 2022, the only evidence from Alliance Bank that the guarantee was not enforceable was the statement that Ukrenergo submitted claims for payment of the bank guarantee untimely and in an inappropriate form. However, then the court came to the conclusion that in March 2022, Ukrenergo did not miss the deadline for filing the claim, despite the fact that all branches, including the Central Office of Alliance Bank, were closed. Data from the official website of Alliance Bank confirms not only this fact, but also the fact that the only task of the bank’s management at the beginning of the war was to obtain the maximum loan from the National Bank. According to the decision of the shareholders meeting, which took place on March 3, 2022, it was planned to receive a loan of 7 billion hryvnia.
This decision of the shareholders' meeting, in contrast to the guarantee obligations to Ukrenergo, was fulfilled by the management of Alliance Bank. Alliance Bank, the 26th largest in Ukraine, received from the NBU in 2022 the largest loan among private financial institutions, exceeding 2 billion hryvnia. Today, Alliance Bank's debt to the NBU amounts to 700 million hryvnia.
One of the grounds for the decision of the Economic Court in 2022 was the fact of partial payment by Alliance Bank under the bank guarantee issued in favor of Ukrenergo, which confirmed the recognition of the financial institution’s obligations. The amount of partial payment amounted to 133 million hryvnia. Why the facts proven in 2022 were not taken into account by the Economic Court in 2024 is still unknown, because the court has not yet published the full text of the decision. However, the 2024 decision to recognize the bank guarantee of Alliance Bank as not yet payable raises the question: does Ukrenergo now have not only losses of a billion hryvnia, but also a debt to a participant in the criminal scheme?
The next hearing in the case of Ukrenergo versus Alliance Bank will take place in the Northern Economic Court of Appeal on April 25. This time, representatives of NABU should take part in the consideration of the case. It seems that today the participation of NABU is the only chance that the judicial system will adhere to procedural deadlines and defend the interests of the state in the confrontation with businessmen who have been stealing it with impunity for years, even despite the war. After all, today the Ukrainian energy sector, under the attacks of Russian missiles, has lost almost 80 percent of its generating capacity and is forced to pay for the import of electricity and ask for external help in order to prevent another blackout. At the same time, the operator of the Ukrainian electricity grid, Ukrenergo, may lose more than a billion public funds.
