Of course, we will not tell about the daily struggle of Don Quixote against windmills and we cannot answer all the rhetorical questions. But it is not necessary. It is necessary to bear in mind that everything has its consequences, so let us highlight the legal effects.

One says that over 70 vessels are delayed in the Ukrainian sea ports, some are staying in zone of active hostilities, some are staying idle with colossal losses incurred, some were damaged by Russian missiles, while some became the subject of so-called nationalization in the quasi-republics of Donbas.

 We will deviate from the canons of a standard article written by lawyers, and we will not give you millions of ready-made solutions in exchange for your soul, so, let us be honest: there is no ready-made solution. Having analyzed the situation, followed by analysis of our clients’ cases, we understood that there are many options how to move and where to move, but the principal issue is to move. Only in case of taking active measures now, we can talk about the expected reimbursement of losses in the future. Of course, there is an investment in fairness, compensation and healthy risk: why not?!

 Our position is the following:

 1. WE SUPPORT THE TRIAL IN UKRAINE

All torts that have occurred and are occurring to recover the above damages are territorially related to Ukraine. The jurisdiction of the Ukrainian court is determined by the law and by lots of positive factors:

 -Absence of immunity of the Russian Federation.

Judicial immunity shall mean non-jurisdiction of a state without its consent to the courts of another state. No claims are usually submitted against the state to foreign courts unless such state voluntarily prescribes jurisdiction of foreign courts. Such a rule is legally enshrined in Ukraine, but, surprisingly, blatant disregard of all laws and regulations on the part of the Russian Federation caused disregard of its immunity as a state on the part of Ukraine. For example, the Resolution of the Cassation Civil; Court at the Supreme Court of Ukraine dated April 14, 2022, under case No. 308/9708/19 indicates that after the outbreak of the war in Ukraine in 2014, the court of Ukraine, having considered case where the Russian Federation is identified as the defendant, has the right to ignore immunity of this country and to consider cases upon reimbursement of damages incurred by natural person due to military aggression of the Russian Federation, based on a lawsuit filed against this foreign country. Certainly, there are and will be many nuances, but the practice in Ukraine is formed in such a way that the affected business (both Ukrainian and foreign ones) can freely file to the Ukrainian court a claim on damage recovery from the Russian Federation.

 -Relative ease (as compared to the ECtHR or foreign jurisdictions) of forming the evidence base.

We strongly recommend the need to record circumstances in all possible ways: taking photos and videos, analyzing and recording the aggressor’s news, witness statements, notes of protest, inspection reports, notifications of relevant state institutions, and support from non-governmental organizations. Meantime, in such case there is a clear procedure as to what should and should not be done, so we are trying to develop individual instructions for such actions.

In Ukraine, it is possible to determine and confirm correctly the cost of losses, with relevant specialists engaged. Losses in the maritime industry are quite an interesting story; therefore, standard examinations, which are easy to find and organize in some more popular disputes, may be more difficult in matters of shipowners’ losses, but our practice shows that it is also quite possible. However, it can be either cost study with regards to all the possible vessel specifications or research both with and without an option of the actual property inspection.

 -Applying the pretrial investigation to relevant bodies on commission of a criminal offense.

This responsibility shall be borne by the Security Service of Ukraine; in such cases, we are not saying that we should immediately expect a quick result, but recognition of a person as a victim in the above criminal proceedings is a must-have. Furthermore, in case of applying to the Ukrainian court, it is possible to secure legal synergy by using evidence both in the framework of judicial proceedings and in the framework of criminal proceedings.

 In a nutshell, application to the Ukrainian court is necessary, because it looks like an actual mechanism for obtaining a court decision on charging actual or potential damages.

 2. WE MEAN NOT ONLY ACTUALLY INCURRED LOSSES

Forced idle stay. Any task can be performed if it is set clearly and correctly, so in such case all that we need is to prove the lost profit, i.e. income that the shipowner could (should have) received under normal circumstances if its right had not been violated.

 Of course, although the question is difficult, it is vital when the evidence base is clearly formed. If we assume that we will be able to provide charter parties covering the period of the vessel forced idle stay, correspondence with all counterparties concerning the impossibility to fulfill obligations, business plans for 2022 with calculation of expected income, statements of audit companies regarding the company’s profit for previous years, expert opinions/audit assessments of the lost profit, hereby we state that everything is possible and even a little more!

 3. ENFORCEMENT OF THE DECISION: HERE RHETORICAL QUESTIONS ALSO AROSE

We, like all Ukrainians, are waiting for actual political and economic levers to be fixed for such payments. We expect that it may be the following:

1. Enforcement in Ukraine. Let us assume that it will be a state fund covering the above costs at the expense of reparations from the aggressor or financial assistance from our partners; it can also be a direct collection of funds at the expense of Russian property or assets. For example, to develop a plan of measures for the post-war reconstruction and development of Ukraine, the National Council of the President of Ukraine for Recovery of Ukraine from Consequences of the War was founded on April 21, 2022. This is a consultative and advisory body aimed to overcome the consequences of the military invasion of the Russian Federation. Therefore, its work is going on and we are expecting actual measures to be taken shortly.

B) Assets of the Russian Federation or some its residents (of course, it is possible too!) abroad. The decision of the Ukrainian court can be recognized and enforced abroad under the procedure provided by international conventions, and bilateral agreements, as well as based on the principle of reciprocity, depending on the jurisdiction. We recommend recognizing and enforcing the decision in the jurisdiction where assets of the Russian Federation were seized.

 It may concern also the seizure of assets of the Russian Federation in the territories controlled thereby (either Autonomous Republic of Crimea or quasi-republics in Eastern Ukraine) since there is already a positive practice of international authorities upon recognizing the option to seize assets of the Russian Federation there; although de jure the aforesaid territories are treated as a part of Ukraine, they are controlled by the Russian Federation. Therefore, assets located there may also be subject to foreclosure.

If you imagine it all as a big pie, it will be finite, so we propose you start right now so that you could expect indeed for a well-deserved piece when this war ends (or even earlier!), because we, like you, want to defeat Russia on the battlefield – namely, on law battlefield where we can do it in the best way! We know that there are much more ways, and this question is lying much deeper.

 We are aware of possible applications to a foreign court, such as the US court. However, the US courts generally do not consider claims against a foreign government for actions that occur outside the USA. Congress is planning some legislative changes, but this is only a matter of potential debate.

 We also discussed ways of filing applications to the European Court of Human Rights, but we emphasize that the Russian Federation has already been excluded from the Council of Europe, while the ECtHR can consider such applications in cases when the violation of the Convention for the Protection of Human Rights and Fundamental Freedoms occurred before September 16, 2022. Therefore, apart from moral satisfaction and recognition of violations at the international level (that is, reputational points), actual damage recovery is not yet visible.

 We have already recommended investment arbitration to our clients, as we already have experience in cases regarding the occupation of Crimea. But we should mean that it is a specialized institution whereto you can apply in limited cases, that is, only in respect of violations committed at the territories effectively controlled by the Russian Federation, but I hope you will take my word for it since there are lots of nuances that we will be happy to discuss.

 We are ready to fight together with you. We are not going just to leave it all! We simply cannot leave it all! Here is our expertise, here are your cases, and here is the well-deserved result in the form of damage recovery from the Russian Federation.