Prof. Dr. Nataliia Mazaraki

Edited Works

Mediation in the Lawyer's Professional Activities. Textbook, 2. ed., Odesa 2024, 490 pp. (together with Nataliia Krestovskaya, Luiza Romanadze).

Books and Monographs

Scientific and Practical Commentary on the Law of Ukraine "On Mediation", RATIO Publishing House, Kyiv 2024, 100 pp. (together with L. Romanadze et al.).

The Guide: European Rules of Competition, State University of Trade and Economics, Kyiv 2024, 528 pp. (together with Hanna Douginets et al.).

Contributions to Collected Editions, Commentaries, Handbooks and Encyclopaedias

The "New Normal" in Competition—Filling the Gaps of Ukrainian Competition Law in the Digital Economy Age, in: Heiko Richter (ed.), Competition and Intellectual Property Law in Ukraine (MPI Studies on Intellectual Property and Competition Law, 31), Springer, Berlin; Heidelberg 2023, 147 - 171 (together with Anzhelika Gerasymenko). DOI

• This chapter analyses the current state of and perspectives on Ukrainian competition law and policy development to help meet the challenges arising from the evolution of the modern digital economy. It provides the technological and social framework of competition in the twenty-first century, which is substantially determined by the strategic behavior of e-platforms, a fact that holds true for economies worldwide, including Ukraine. This chapter provides a review of some Ukrainian markets marked by the presence of e-platforms. Such a framework provides the range of competition-related challenges, including those to vertical competition, market definition and procompetitive data management. Some of these challenges can be met partially with the current Ukrainian competition law, while others need the latter to be further developed. The authors suggest the introduction of the concept of vertical competition into the legislation; the development and adoption of a new methodology of market definition that accounts for the challenges of multisided contracting, zero-pricing and network effects, etc.; the management of killer-acquisitions through keeping the pre-reform merger control thresholds in the digital sphere; the cooperation of the Antimonopoly Committee of Ukraine and the National Commission for the State Regulation of Electronic Communications, Radiofrequency Spectrum and the Provision of Postal Services (NCEC) in granting gatekeeper status to e-platforms and regulating their impact on competition. This kind of regulatory cooperation does not replace the need for the soft regulation of data management, multihoming and self-preferencing, but enlarges it.

Journal Articles

Gatekeeper's obligations under the DMA, Foreign Trade: Economics, Finance, Law 137, 6 (2024), 4 - 19 (together with Andrii Zhybak).

• The misuse of economic power by digital giants has highlighted the problem of distortion of competition in the online services market and the ineffectiveness of traditional competition law. This was the impetus for the adoption of the Digital Markets Act, which aims to specifically regulate the digital sector by establishing rules that ensure competitiveness and fairness in the EU internal market. The research hypothesis is to confirm the benefits of the ex ante obligations imposed by the DMA on online platforms with gatekeeper status in terms of strengthening fairness and competition, as well as ensuring the rights of business users and consumers in the digital sector of the economy. The purpose of the study is the functional description of the obligations of online platforms with gatekeeper status and the determination of prospects for their implementation. To achieve this goal, the method of doctrinal analysis was used, which helped to reveal the legal nature and peculiarities of the Digital Markets Act in general, as well as the gatekeeper obligations in particular. Ex ante obligations, as behavioral means of legal protection of the EU market against negative business practices, are aimed at preventing potentially undesirable behavior of gatekeepers, and also promote and protect intra- and cross-platform competition. It has been proven that the asymmetry of ex ante regulation, the competitiveness and fairness of digital markets as the goal of regulation, and the self-executing nature of obligations testify to the novelty of the regulatory regime introduced by the Digital Markets Act. Granting the European Commission a wide range of powers to monitor the compliance of online platforms with their obligations adds flexibility to the regulatory instrument, which, at the same time, requires further development in order to be significantly different from traditional competition law.

"Evergreening" Pharmaceutical Patents in the Triangle of Intellectual Property Law, Competition Law and Human Rights, Pravo UA 1 (2024), 246 - 255 (together with Larysa L. Neskorozhena).

• https://doi.org/10.32782/LAW.UA.2024.1.37

Criterion of Full Functionality as a Determinant of the Mode of Market Power Concentration, Foreign Trade: Economics, Finance, Law 132, 1 (2024), 60 - 74 (together with Anzhelika Gerasymenko). DOI

• The article examines the institution of joint ventures in the context of competition law. Depending on the strategy of interaction chosen by the parents of the joint venture and the focus on control or coordination relations, joint ventures may generate heterogeneous risks for the competitive environment. They should be investigated and controlled under different procedures: the proce­dure for controlling the concentration of economic entities or the procedure for controlling concerted actions of economic entities. Guided by the institu­tional analysis of the methods of market power concentration and the European experience of com­petition policy (law-making and law enforcement), the authors of the article propose, test and find confirmation of the hypothesis regarding the ability of the criterion of the full-functionality of a joint ventureʼs economic activity to determine the method of market power concentration chosen by its founders and, ultimately, to determine the application of the control proce­dures corresponding to it. In parti­cular, full-functionality is a sign of the concentration of business entities as opposed to their concerted actions. The introduction of the full-functionality criterion into Ukrainian legislation on the protection of economic competition is, on the one hand, a step closer to the EU acquis, and on the other hand, a way to increase the efficiency of antitrust control procedures. The article also suggests ways to improve further the practice of applying the relevant criterion as a lever for switching the antimonopoly control regimes depending on the method of market power concentration.

Creating an Effective Mediation Scheme for Business-Related Human Rights Abuses: The Case of Ukraine, Business and Human Rights Journal: Special Issue: Business and Human Rights in Central and Eastern Europe. Region in Transition 9, 1 (2024), 129 - 149 (together with Tetiana Tsuvina). DOI

• Non-judicial remedies for corporate human rights abuses have a viable and complementary role to judicial remedies in mature jurisdictions, although in Ukraine the ‘bouquet’ of effective remedies is more of a still-life. The national mediation community is gaining momentum and the authors argue that mediation may take place within state-based non-judicial remedies when institutionalized by the office of the Ombudsman. The objective of this article is to scrutinize the rule of law, access to justice, and the effectiveness criteria of the UNGPs with regard to mediation. The authors conclude that mediation can meet all of the effectiveness criteria requirements and special effort should be devoted to addressing the challenges of power imbalances between parties, the confidential nature of mediation and the public demand for transparency, to ensure that mediation outcomes are in accord with internationally recognized human rights. Based on the findings, the authors suggest that a state-based business and human rights mediation scheme, in line with the UNGPs’ effectiveness criteria, should have its own three pillars, namely, accessibility, availability and awareness, with quality assurance as its cornerstone.

Europeanization, Regional Cooperation and the Challenges of Legal Transplants in Competition Law, Kluwer Competition Law Blog 2023 (together with Kati Cseres).

• https://competitionlawblog.kluwercompetitionlaw.com/2023/06/12/europeanization-regional-cooperation-and-the-challenges-of-legal-transplants-in-competition-law/

Main Developments in Competition Law and Policy 2022 – Ukraine, Kluwer Competition Law Blog 2023 (together with Anzhelika Gerasymenko).

• https://competitionlawblog.kluwercompetitionlaw.com/2023/03/22/main-developments-in-competition-law-and-policy-2022-ukraine/

Competition Law Enforcement in Ukraine: Challenges from On-Line Giants, Yearbook of Antitrust and Regulatory Studies 15, 26 (2022), 57 - 74 (together with Anzhelika Gerasymenko).

• Le droit de la concurrence, l’économie et la politique sont confrontés à une métamorphose réglementaire due à l’essor de l’économie numérique. Les juridictions des États-Unis, de la Chine et de l’UE ont annoncé et introduit partiellement des changements systémiques dans leurs cadres juridiques de la concurrence pour suivre le rythme des développements technologiques. Le Comité anti-monopole de l’Ukraine suit le principe des ‘trois singes’, il ne voit aucune plate-forme en ligne, n’entend aucune plate-forme en ligne, ne parle d’aucune plate-forme en ligne. En conséquence, rien n’a été entrepris, ni même annoncé. La structure du papier est double. Premièrement, il analyse le contexte économique et les caractéristiques de l’économie numérique et montre pourquoi les instruments disponibles d’application de la concurrence sont inefficaces. La deuxième partie de l’article montre pourquoi le cadre juridique ukrainien actuel de la concurrence est (in)capable de faire face aux défis des géants en ligne. En ce qui concerne la nécessité de recalibrer les approches réglementaires sur les marchés numériques, l’Ukraine est confrontée au dilemme de la bonne combinaison ex ante et ex post.
• Competition law, economics and policy are facing a regulatory metamorphosis due to the rise of the digital economy. US, China and EU jurisdictions have announced and partially introduced systemic changes to their competition law frameworks to keep pace with technological developments. The Antimonopoly Committee of Ukraine is following the principle of ‘three monkeys’, it sees no on-line platforms, hears no on-line platforms, speaks of no on-line platforms, so nothing has been undertaken or even announced. The paper is twofold. Firstly, it analyses the economic background and features of the digital economy and shows why the available instruments of competition enforcement are ineffective. The second part of the paper shows why the current Ukrainian competition law framework is (in)capable of dealing with challenges posed by on-line giants. Regarding the need for a recalibration of regulatory approaches in digital markets, Ukraine faces the dilemma of a proper combination of ex ante and ex post measures.

Cyber Dimension of Hybrid Wars: Escaping a 'Grey Zone' of International Law to Adress Economic Damages, Baltic Journal of Economic Studies 8, 2 (2022), 115 - 120 (together with Yulia Honcharova). DOI

• The subject of the article is the international and national legal aspects of compensation for economic damages caused by cyber attacks. The purpose of the article is to contribute to the ongoing debate on attribution and liability for malicious and destructive cyber activity. Cyber attacks have become a global problem facing the international community, posing enormous risks to the stability of international security, economic and social development, and the safety and well-being of individuals. Cyber attacks have proven to be numerous problems for domestic and international law – international humanitarian law, human rights law, the law of armed conflict – how to counter the actions of hybrid warfare by legal means, what are the remedies for losses due to cyber attacks. This article examines cyber attacks to show how the international community is moving toward responsible behavior by states in cyberspace, protecting civilians and critical infrastructure. The article's methodology is based on doctrinal legal research in this area, as well as international legal instruments, in order to examine how economic damages should be paid to victims of malicious acts in cyberspace. The difficulty of attributing cyber attacks has been analyzed to show that perpetrators evade responsibility, a separate problem for international law. It is concluded that international law, as it currently stands, provides little legal basis for substantive guidance on responsible state behavior in cyberspace, the necessary levels of attribution to establish state or non-state responsibility for cyber attacks. Economic losses from cyber attacks can be covered by insurance schemes, although analysis has shown that they do not work because insurers argue that cyber attacks exclude military risk insurance clauses that exclude coverage, which is reasonable, although it leaves victims of cyber attacks without the ability to recover damages. The paper supplements current research with a comprehensive analysis of legal and economic issues and calls for the development of an appropriate strategic environment, legal and infrastructural framework. The need for a joint international framework is emphasized, as civil liability under national law is hardly possible because cyber attacks are predominantly transnational in nature. A joint structure is also needed to prevent, deter and respond to state-sponsored cyber attacks.

Foreign Direct Investment Screening: Between Scylla and Charybdis, Foreign trade: economics, finance,law 123, 4 (2022), 4 - 13 (together with Yuliia Honcharova). DOI

• Introduction. Foreign investments can be both a condition for prosperity in the recipient state and carry significant risks for national interests and economic security. That is why the unconditional openness to international investments declared by the states of the world is compensated by mecha­nisms for managing the corresponding risks, which most often take the form of screening mechanisms for foreign investments.
  
  Problem. The conflict between considerations of necessity, the quality of foreign investments, and considerations of national security and public order is Scylla and Charybdis for modern legislators who are trying to build balanced mechanisms of state control. But domestic scientists do not pay enough attention to this issue.
  
  The aim of the article: changes in the direction of policy formation of Ukraine regarding the introduction of screening of direct foreign investments through the prism of the practice of the European Union and ensuring its own national interests.
  
  Results. Developed and developing countries have introduced new or strengthened existing screening mechanisms for foreign direct investment, establishing new regulatory requirements for investors, expanding the range of economic sectors subject to monitoring, and providing additional powers to regulatory authorities. The main criteria for screening foreign direct investments - national security and public order – are given a new and expanded interpretation in different jurisdictions, which carries the risks of increasing the volume of foreign investments.
  
  Conclusions. Screening mechanisms of direct foreign investments are traditionally built on the principles of transparency, non-discrimination, reasonableness, objectivity, and confidentiality, which allows to neutralize to a certain extent the negative effect of such a regulatory obstacle. Ukrainian legislators have at their disposal significant foreign experience in the introduction of foreign direct investment screening and can implement best practices and protect Ukraine’s national interests. The introduction of the foreign direct investment screening mechanism is accompanied by certain challenges and risks, to overcome which thorough project work and highly professional training of personnel for the implementation of the foreign direct investment screening mechanism is necessary.

Research Papers

Roadmap: Implementation of Court-Connected Mediation in Ukraine. Council of Europe, 2023, 37 pp. (together with Luiza Romanadze et al.).

• https://drive.google.com/file/d/1v5ZhD8C3erNJkoz_WfO2-CZdOOL3QHJL/view

Post-war Mediation in Ukraine: Needs Assessment Report with Recommendations, 2023, 46 pp., 28.04.2023 (together with Ales Zalar et al.).