Lidings client seminar 2013 (in English)

321 views

Published on

Our annual roundup for clients on major changes in Russian law - Civil code and court reforms, migration laws etc.

Published in: Business
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
321
On SlideShare
0
From Embeds
0
Number of Embeds
6
Actions
Shares
0
Downloads
4
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

Lidings client seminar 2013 (in English)

  1. 1. October 2013, Moscow Andrey Zelenin Partner, Head of Dispute Resolution Sergey Patrakeev Counsel, Co-head of Real Estate Vadim Konyushkevich Senior associate, Corporate LIDINGS SEMINAR ON RECENT CHANGES TO THE RUSSIAN LEGISLATION Leading the Way in Russian Law
  2. 2. ABOUT LIDINGS Lidings is leading legal advisor in the Russian market providing unparalleled legal advice to international companies – leaders in their industry sectors, operating in Russia and the CIS on a wide range of business and legal matters The Firm’s offices in Moscow and St. Petersburg comprise more than 25 lawyers Leading the Way in Russian Law
  3. 3. PRACTICE AREAS BANKING AND FINANCE CORPORATE AND M&A DISPUTE RESOLUTION EMPLOYMENT GOVERNMENT RELATIONS INTELLECTUAL PROPERTY REAL ESTATE AND CONSTRUCTION TAX AND CUSTOMS Leading the Way in Russian Law
  4. 4. * This is a snapshot only of the companies Lidings offers comprehensive legal services to. For further information about our expertise please refer to the Lidings website www.lidings.com LEGAL ADVICE TO FOREIGN BUSINESSES Over 90% of the Firm’s clients are multinational companies and corporations Lidings is currently advising over 350 international companies form 35 countries worldwide with special focus on the companies from pharmaceutical, automotive, aviation, financial, and energy sectors Leading the Way in Russian Law
  5. 5. * Leading Russian and international directories recommend Lidings in key practice areas highlighting its expertise in advising foreign businesses in Russia RECOGNITION “Recommended legal adviser in all key practice areas” The Legal 500 EMEA, 2013 “Recommended legal adviser in Banking and Finance” IFLR1000, 2012 “Best Law Firm in Real Estate and Dispute Resolution in Russia” ACQ Finance, 2012 “Best Life Sciences practice in Russia” Who is Who Legal, 2012 “TOP-20 leading Russian law firms” PRAVO.RU, 2011 “Second place in the rating of the most visible Russian law firms” Martindale-Hubbell, 2011 “TOP-15 leading M&A advisers in Russia” Mergermarket, 2011 Leading the Way in Russian Law “Foreign Business Advisory Law Firm of the Year in Russia” ACQ Finance, 2010
  6. 6. LAWYERS Lidings’ lawyers are highly skilled multilingual legal experts who hold degrees from the best institutions in Russia and abroad Their expert knowledge of Russian legislation and of the intricacies of Russia’s unique business culture has built up Lidings’ reputation as one of the top law firms in the nation Leading the Way in Russian Law
  7. 7. GEOGRAPHIC RANGE Our lawyers act for a broad spectrum of foreign companies operating throughout Russia and CIS. Geographic range of our services covers the most dynamic regions of Russia and the CIS including: Moscow and the Moscow region, St. Petersburg and the Leningrad region, Krasnodar region, Bryansk region, Samara region, Tver region, Kaliningrad region, the Republic of Bashkortostan, Tatarstan, Sverdlovsk region, and other major regional centers Leading the Way in Russian Law
  8. 8. CORPORATE MATTERS Leading the Way in Russian Law
  9. 9. GENERAL INFORMATION ON THE REVIEW OF THE CIVIL CODE The policy document underlying the review – The Concept of Development of the Civil Legislation The Concept was developed on the basis of the Decree of the President of the Russian Federation dated 18 July 2008 № 1108 "On improvement of the Civil Code of the Russian Federation", approved at a meeting of the Council on the codification and improvement of the civil legislation dated 07 October 2009. Leading the Way in Russian Law
  10. 10. GENERAL INFORMATION ON THE REVIEW OF THE CIVIL CODE MAIN GOALS OF THE REFORM Bringing the provisions of the Civil Code in accordance with the current market requirements Ensuring the stability of the civil legislation Reflection of the court practice concerning application of the Civil Code Bringing the provisions of the Civil Code in accordance with the provisions of the European law Achievement of uniformity in regulation of civil relations in CIS countries Leading the Way in Russian Law Legislative draft № 47538-6 “On amendments to the first, second, third and fourth parts of the Civil Code of the Russian Federation and in distinctive legislative acts of the Russian Federation has been divided into separate legislative drafts which are enacted in blocks
  11. 11. GENERAL PROVISIONS OF THE CIVIL CODE ENACTING THE PRINCIPLE OF GOOD FAITH AVOIDANCE OF LAW Art. 10 of the Civil Code is complemented by the concept of “action to circumvent the law with illegal purpose, or other deliberate bad faith exercise of civil rights” Avoidance of law is now qualified as abuse of rights Leading the Way in Russian Law
  12. 12. GENERAL PROVISIONS OF THE CIVIL CODE CUSTOM IS THE SOURCE OF LAW Para 1 Article 5 of the Civil Code fixes a broader definition of “custom” (without pointing out the specific scope of its application) Custom is the source of law The examples of customs – sources of law formed in different areas of activity, for example, local custom allowing free gathering of mushrooms or free fishing Leading the Way in Russian Law
  13. 13. GENERAL PROVISIONS OF THE CIVIL CODE CORPORATE RELATIONS THE SUBJECT OF CIVIL LAW REGULATION The subject of regulation is "corporate relations“, i.e. ones connected with participation in corporate organizations and managing them (Article 2 of the Civil Code) Corporate relations belong to the category of civil law, not public law The inclusion of these relations in the subject of regulation by civil law confirms the role of the Civil Code as the basis of the entire regulatory system of legal entities Leading the Way in Russian Law
  14. 14. GENERAL PROVISIONS OF THE CIVIL CODE STATE REGISTRATION OF RIGHTS IN REAL ESTATE GENERAL PROVISIONS ON REGISTRATION Inclusion of a new Article 81 “State registration of rights in real estate” in the Civil Code Introduction of state registration of rights, restrictions and burdens not only for real estate but also of other types of property in cases provided by law Competence of Federal Service of State Registration, Cadastral and Mapping has been increased to include a review of applicant’s authorities, legality of grounds for registration, legality of transaction, if the right to property arises or terminates on the basis of notarized transaction Leading the Way in Russian Law
  15. 15. GENERAL PROVISIONS OF THE CIVIL CODE STATE REGISTRATION OF ESTATES IN REAL ESTATE CANCELLATION OF STATE REGISTRATION OF CERTAIN TYPES OF CONTRACTS Since 01 March 2013 the following transactions are not subject to state registration: Sale of residential premises (Article 558 of Civil Code) Sale of enterprise (Article 560 of Civil Code) Gift contract of real estate (Article 574 of Civil Code) Annuity agreement providing for alienation of real estate (Article 584 of Civil Code) Leading the Way in Russian Law
  16. 16. TRANSACTIONS AND AGENCY THE CONCEPT OF LEGALLY SIGNIFICANT MESSAGES (NOTIFICATIONS, DECLARATIONS AND OTHERS) Amendments in effect since 01 September 2013 Article 165.1 of the Civil Code has introduced the concept of legally significant messages (notifications, declarations and others), which are associated with the occurrence of civil law related consequences for a person Messages are deemed to be received from the moment of their delivery. If the recipient did not receive or read them by circumstances under his control, the message is still considered to be delivered Special procedure of exchange of the messages can result from custom or practice Leading the Way in Russian Law The emergence of this article has great practical importance to the participants of civil relations, particularly with respect to consent to the transaction, the exchange of offer and acceptance, communication of information about the subject of the transaction to the other side
  17. 17. TRANSACTIONS AND AGENCY THE GROUNDS OF DECLARING TRANSACTIONS AS VOID The frames of the consequences of the transactions invalidity have been clarified with the aim to reduce the opportunity for recognition of transactions void. There is no longer a presumption of nullity of a transaction which violates the requirements of the law (Article 168 of the Civil Code). Such a deal would now be recognized as voidable, unless otherwise provided by law Challenging a transaction becomes more complicated: the list of persons who may apply with such a claim is limited. Until recently a claim that the transaction is void could be brought by any interested person. Now the legislator has limited the possibility to use invalidation as a way out of the legal relations Leading the Way in Russian Law
  18. 18. TRANSACTIONS AND AGENCY THE GROUNDS OF DECLARING TRANSACTIONS AS VOID The court will verify presence of actual violation of the rights and legitimate interests of the plaintiff by the transaction. Now we need to wait for new court practice on the issue in order to assess the impact of this amendment A transaction may be declared void only if a certain set of conditions are met: - - if the transaction infringes public interest or the rights and legitimate interests of third parties Leading the Way in Russian Law if the transaction violates the requirements of the law or other legal act the transaction is not voidable under the law
  19. 19. TRANSACTIONS AND AGENCY THE GROUNDS OF ADMITTANCE OF TRANSACTION AS VOID The concept of “error in essentia” has been introduced. It refers to the Party's obvious typographical errors, misconceptions about the nature or subject of the transaction, etc. The meaning of fraud includes "the intentional omission of the circumstances of which person acting in good faith had to inform based on the terms of turnover The three-year limitation period for claims for the invalidation of the transaction and application its consequences shall not exceed 10 years from the date of commencement of the transaction. This time limit begins to run from the date when the person knew or should have known about the beginning of execution of the transaction Leading the Way in Russian Law
  20. 20. TRANSACTIONS AND AGENCY THE GROUNDS OF ADMITTANCE OF TRANSACTION AS VOID General limitation period has not changed and equals to 3 years. However now it is calculated from the date the person became aware of the violation of his rights and of who is the proper defendant. A similar position was expressed in paragraph 12 of the Information Letter of the Supreme Court of the Russian Federation of 13.11.2008 "Review of court practice on some issues related to the recovery of property from illegal possession." Now, the limitation period is limited to 10 years as an absolute period, which should have a positive impact on the practice Leading the Way in Russian Law
  21. 21. TRANSACTIONS AND AGENCY INTRODUCTION OF A GENERAL RULE ON PRELIMINARY OR SUBSEQUENT CONSENT FOR CONCLUSION OF TRANSACTION In a preliminary consent for the transaction the following elements must be clearly defined: subject of the transaction for conclusion of which consent is given, including its parties, substantial terms or a method of their establishment The subsequent consent (approval) to a must be specific. Silence is no longer considered as consent to the transaction or its approval Leading the Way in Russian Law
  22. 22. TRANSACTIONS AND AGENCY DECISIONS OF MEETINGS The Civil Code amended Chapter 9.1, devoted to issues of resolutions of general meetings Legal consequences arise from the decisions of the meeting of members of the legal entity, as well as co-owners, creditors in bankruptcy, etc. Decision of the meeting shall be deemed adopted if it receives the majority of the meeting participants votes The provisions of the Civil Code establish a number of requirements to the minutes of the meeting Leading the Way in Russian Law
  23. 23. TRANSACTIONS AND AGENCY DECISIONS OF MEETINGS The Civil Code provides for the grounds for recognition of decisions of meetings as invalid and a general principle of them being voidable unless the law establishes they are void (by analogy with the transactions) Decision of the meeting is void, if it is rendered on a issue which is not included in the agenda, in the absence of a quorum on the issue, beyond the scope of competence of the meeting or if it is contrary to the principles of public order and morality (Article 181.5 of the Civil Code) The existing company laws, i.e. Federal laws dated 08 February 1998 № 14 -FZ "On Limited Liability Companies" and dated 26 December 1995 № 208- FZ "On Joint Stock Companies" ( Para 1, Article 181.1 of the Civil Code) will have a priority in regulating the corporate meetings Leading the Way in Russian Law
  24. 24. TRANSACTIONS AND AGENCY THE CONCEPTS OF UNLIMITED AND IRREVOCABLE POWERS OF ATTORNEY The Civil Code for the first time introduces the concept of “irrevocable power of attorney”. Irrevocable power of attorney: - is a method to secure the performance of the beneficiary obligations towards the representative; - may be issued to a representative in connection with business activities; - is subject to mandatory notarization The authority under an irrevocable power of attorney can not be transferred to a third party. The terms of its cancellation can be stipulated in the text of the power of attorney itself Leading the Way in Russian Law The term of the power of attorney can be unlimited (formerly – 3 years). If no term is indicated it is valid within 1 year
  25. 25. TRANSACTIONS AND AGENCY THE CONCEPTS OF UNLIMITED AND IRREVOCABLE POWERS OF ATTORNEY Additional methods for protection of rights and legal interests under transaction committed by unauthorized person (Article 183 of the Civil Code): A party to the transaction will have the right to refuse from it until the approval of the transaction, if such a party became aware of the absence of authority of representative to commit the transaction or abuse of his authority. The counterparty to a transaction concluded with an unauthorized person is entitled to request the other party, whether it is going to approve the deal. If it refuses to approve the deal or its response is not received within a reasonable time period, the other party may request the unauthorized representative to fulfill the transaction or may abandon it unilaterally and demand compensation of damages from the unauthorized representative Leading the Way in Russian Law
  26. 26. THE OBJECTS OF CIVIL RIGHTS Amendments in effect since 01 October 2013 AMENDMENTS TO THE REGULATION OF SECURITIES Securities are now grouped into documentary and nondocumentary ones. Documentary securities are qualified as goods, while non-documentary securities – as liabilities or other rights Documentary securities – documents which comply with formal requirements and certify rights, for implementation and transfer of which it is necessary to present the security itself Vindication of documentary securities from illegal possession is carried out under the general rules on vindication with certain particularities Leading the Way in Russian Law Non-documentary securities – liabilities or other rights, which are stipulated in the decision on their issuance or another act of the issuer, implementation and transfer of these rights are possible only under special rules of record of such rights
  27. 27. THE OBJECTS OF CIVIL RIGHTS OBJECTS OF CIVIL RIGHTS Record of rights to non-documentary securities can only be kept by an independent registrar, acting on behalf of the issuer, or by a depositary acting under a contract with the owner of the securities. Starting from 01.10.2013, the JSC with a number of shareholders below or equal to 50, which are now keeping the shareholder register themselves, the must transfer the register to an independent registrar within 1 year In case the seller avoids to register a transaction with securities in violation of the sale contract, the purchaser has the right to demand to make the required entries regarding the transfer of title to securities through a court procedure New rules on the protection of the violated rights of the holders of securities are adopted, which take into account the recent developments of judicial practice Leading the Way in Russian Law
  28. 28. THE OBJECTS OF CIVIL RIGHTS INDIVISIBLE ITEMS AND COMPLEX ITEMS Indivisible item – an item that cannot be divided without destruction, damage or altering its destination. It exists as a single object property rights, even if it is composed of several parts. Replacement of certain components of the indivisible items with other components does create a new item, if its essential properties remain unchanged Execution may be levied upon the indivisible item only as a whole If different items are connected in such a way that suggests their use with a common purpose, a complex item is created Leading the Way in Russian Law Effect of the transaction involving a complex item extends to all of its items, unless otherwise provided by the terms of the transaction
  29. 29. THE OBJECTS OF CIVIL RIGHTS BENEFITS, PRODUCTS AND INCOME The legal regime of profits, production and income has changed Earlier - they belonged to the holder of the property, the use of which resulted in such benefits, products and income Now - they belong to the owner of the property (unless otherwise provided by law, other legal acts, contract or otherwise follows from the nature of the relationship) Leading the Way in Russian Law
  30. 30. THE OBJECTS OF CIVIL RIGHTS SINGLE REAL ESTATE COMPLEX (Article 133.1 of the Civil Code) Independent object of civil rights - a combination of buildings, structures and other items united by a common purpose A combination of items is considered a single real estate complex if one of the following criteria is met: - - Leading the Way in Russian Law inseparable physical or technological link between the real estate objects (e.g., railroads, power lines, pipelines, etc.) location of real estate objects on one land plot A single real estate objects is created from moment of state registration of ownership over the combination of items that are part of such real estate complex
  31. 31. THE OBJECTS OF CIVIL RIGHTS PROTECTION OF BUSINESS REPUTATION OF LEGAL ENTITY The rules on the protection of business reputation of an individual apply, apart from the compensation of moral damage Refutation of discrediting information has to be done in the same way that the defamatory information has been distributed, or in other analogous way If the defamatory information has been published in the mass media, a legal entity shall have the right to demand publishing its response in the same media, apart from publishing the refutation Leading the Way in Russian Law If defamatory information has become widely known and therefore a simple refutation is insufficient, a legal entity shall have the right to request removal of the relevant information, suppress or prohibit its further spread by seizure / destruction of the physical media containing such information
  32. 32. CONCEPTS SIMILAR TO COMMON LAW CONCEPTS PLANNED AMENDMENTS TO THE CIVIL CODE STATEMENTS ON FACTS A statement on fact which is essential to the conclusion or performance of a contract given by one party to another before or after signing of the contract Similar to Liability arises when a party that has provided untruthful statement believed or had reasonable grounds to believe that the other party will rely on them “Representations” Consequences of untruthful statements: Leading the Way in Russian Law obligation to pay damages; entitlement to cancel the contract unilaterally, unless otherwise provided by the contract; entitlement to invalidate the contract be due to an errors
  33. 33. PLANNED AMENDMENTS TO THE CIVIL CODE INSTITUTIONS SIMILAR TO COMMON LAW INSTITUTIONS GUARANTEE OF DAMAGE COMPENSATION Analogue to “Indemnity” Leading the Way in Russian Law An obligation of one party under the contract to compensate the other party property losses, if they arise in connection with the execution, amendment or termination of the obligation. Proving the amount of damages is not required, a specific amount of losses is compensated in the event of certain circumstances
  34. 34. PLANNED AMENDMENTS TO THE CIVIL CODE INSTITUTIONS SIMILAR TO COMMON LAW INSTITUTIONS ESCROW ACCOUNT An account opened in favour of a depositor (bank’s customer) with an the escrow agent (bank) based on a special conditional deposit contract (escrow) Analogue to «Escrow account» The account is designed to isolate certain funds received by the bank’s customers, in order to fulfill the obligations of the said customer towards its creditor (beneficiary) An effective way to secure the obligations of the bank’s customer towards its creditor Leading the Way in Russian Law
  35. 35. PLANNED AMENDMENTS TO THE CIVIL CODE AMENDMENTS TO PROVISIONS CONCERNING THE LEGAL ENTITIES’ STATUTE* Legal entities to be divided on corporations (both commercial and non-profit organizations based on membership) and unitary entities (non-profit organization) * Legislative draft № 475386/2. The status of legislative process – the second reading General provisions on corporate contracts. Joint stock companies no longer to be divided on the closed and open, “additional” liability companies cease to exist Classification of business entities to the public and nonpublic depending on the method of shares distribution (by public subscription or privately) Possibility to recognize a reorganization of a legal entity as invalid through court procedure Leading the Way in Russian Law
  36. 36. PLANNED AMENDMENTS TO THE CIVIL CODE AMENDMENTS TO PROVISIONS CONCERNING THE LEGAL ENTITIES’ STATUTE Joint and several liability of the parent and subsidiary companies for the transactions made by a subsidiary with the consent or pursuant to instructions of the principal company A sole shareholder shall bear secondary liability for the debts of a legal entity, if it is established that they have resulted from execution of the sole shareholder’s instructions Leading the Way in Russian Law
  37. 37. CONSIDERATION OF CASES INVOLVING FOREIGNERS Leading the Way in Russian Law
  38. 38. Information Letter of the Presidium of the Supreme arbitrazh court No. 158 dated July 9, 2013 ARBITRATION CLAUSE ISSUES (1) Arbitration clause between foreigners on definition of an arbitrazh court as competent to consider any current or future dispute is recognized valid Forum selection clause under which disputes between the parties are considered in the state of origin of claimant/respondent is recognized valid Jurisdiction and venue of arbitrazh court is defined on the basis of the APС RF, if forum selection clause does not specify the particular arbitrazh court «APС RF» means the Arbitrazh Procedural Code of the Russian Federation Mandatory provisions of the APС RF on jurisdiction and venue of arbitrazh courts cannot be modified by a forum selection clause Leading the Way in Russian Law
  39. 39. Information Letter of the Presidium of the Supreme arbitrazh court No. 158 dated July 9, 2013 ARBITRATION CLAUSE ISSUES (2) In case of assignment of the claims arising out of an agreement containing a forum selection clause, such forum selection clause remains effective both for debtor and assignee (new creditor) If a party claims existence of an enforceable arbitration clause on exclusive case consideration by a foreign tribunal, the statement of claim shall be dismissed by arbitrazh court without further consideration Party’s intent to have a dispute considered by a particular court is confirmed by absence of its objections on court jurisdiction before its first statement in the process of case consideration Leading the Way in Russian Law
  40. 40. Information Letter of the Presidium of the Supreme arbitrazh court No. 158 dated July 9, 2013 CHOICE OF LAW ISSUES Arbitrazh courts are required to rely on the provisions of the ratified international treaties containing relevant conflict of laws provisions Arbitrazh courts shall recognize a choice of law clause if both disputing parties refer to it in their litigation documents The mere parties’ consent on a competent foreign court does not imply that they also have consented on substantive law of the state of such foreign court Parties are entitled to use any terms and statements for indication of applicable law in choice of law clauses Super-mandatory provisions of the Russian Civil Code shall always apply irrespective of applicable law consented on by the parties Leading the Way in Russian Law
  41. 41. FOREIGN LAW CONTENT ISSUES Requirement to provide information on content of foreign law may be imposed on the disputing parties by a separate court ruling Failure to meet the above requirement deprives a party of the right to invoke objections to defining the foreign law content by the commercial court if the letter has assumed sufficient measures for its defining Parties are entitled to provide expert opinion on foreign law content It is considered that foreign law content does not need further defining if the relevant expert opinion contains necessary and sufficient information and is not objected by another disputing party In case of contradiction between the foreign law content defining by the disputing parties an arbitrazh court may address authorized agencies or competent experts for their own interpretation of the foreign law content Court decision/ruling may be modified or reversed if arbitrazh court has failed to define foreign law content properly Leading the Way in Russian Law
  42. 42. INTERIM RELIEF MEASURES ISSUES If international commercial arbitration is competent to consider a dispute, interim relief measures may be taken arbitrazh court at the place of residence or location of the respondent or his property If foreign state court is competent to consider a dispute, interim relief measures may be taken by arbitrazh court only if it has effective jurisdiction, namely, at the place of residence or location of the claimant or his money/property or at the place of breach of claimant’s rights Arbitrazh courts shall not execute foreign state court orders on legal assistance if they are intended for recognition and enforcement of interim relief measures Leading the Way in Russian Law Anti-suit injunctions made by foreign state courts against case consideration in Russia are non-enforceable
  43. 43. Information Letter of the Presidium of the Supreme arbitrazh court No. 156 dated February 26, 2013 «Review of the consideration by arbitrazh courts of the cases on the implementation of the public order clause as the ground for rejection of the recognition and enforcement of the foreign court decisions and arbitral awards»: NATIONAL PUBLIC ORDER (1) Arbitrazh court is not entitled to revise the arbitral award on the merits based on evaluation of its enforcement effect to the public order in the Russian Federation; In case arbitrazh court finds that recognition and enforcement of the foreign court decision and arbitral award is contradictory to the public order of the Russian Federation, it rejects such recognition and enforcement; To find contradiction of the recognition and enforcement of the foreign court decision or arbitral award to the public order of the Russian Federation, arbitrazh court evaluates the arguments and evidence of the parties to the dispute; Arbitrazh court implements the public order only in exceptional cases, apart from those established in paragraphs 1-6 and part 2 of the article 244 of Arbitral procedural code. Leading the Way in Russian Law
  44. 44. NATIONAL PUBLIC ORDER (2) The public order clause DOESN’T APPLY when: Content of the applicable foreign law is different from the Russian one Evidence presented by the debtor does not prove that losses (penalty, compound interest) calculated under a civil contract and approved by foreign court/arbitration are of the punitory nature Foreign court/arbitration orders a Russian party to the initial dispute to pay the bail for case consideration in the appeal instance Foreign legal entity does not comply with the requirements for approval of the significant deals under its domestic law In case of the spouses’ joint assets, collection of the assets of one of the spouses on the grounds of the foreign court decision or arbitral award is adopted in absence of another spouse There is a minor slip in the foreign court decision or arbitral award Leading the Way in Russian Law Proceeding in foreign court/arbitration complied with the requirements of independence and impartiality of judges/arbitrators
  45. 45. NATIONAL PUBLIC ORDER (2) The public order clause APPLIES when: Judge/arbitrator could influence one of the parties’ actions during the proceedings based on his job title and authority Foreign court decision or arbitral award was adopted in controversy to the international law principle of sovereign equality of the states Leading the Way in Russian Law
  46. 46. Resolution of the Presidium of the Supreme arbitrazh court No. 59 dated July 30, 2013 «On application of the Federal law on Bankruptcy No 63» BANKRUPTCY PROCEEDINGS AMENDMENTS Basic bankruptcy proceedings provisions addressed in the Resolution: How to break presumptions of intention to cause harm to creditors established by law Difference between intentionally harmful transactions and preferential ones Legal qualification of suspicious transaction with credit organization Legal qualification of regular business activity transaction Leading the Way in Russian Law Collection of evidence for challenging transactions Procedure of vindication of property obtained as a result of an invalid transaction to the bankruptcy assets mass Vindication of property from the second (subsequent) acquirer Vindication of property from the second (subsequent) acquirer Calculation of interest for use of property subject to vindication to the bankruptcy assets mass Challenging transactions during bankruptcy proceedings on general grounds of invalidity provided by the Russian Civil Code Special aspects of the challenging of the certain transactions of the credit organization, which has been declared as a bankrupt Specific provisions for challenging transactions made by credit organizations
  47. 47. Federal Constitutional Law No. 4-FCL dated December 6, 2011 «On amendments to various federal laws regarding constitution of the Intellectual property court» (the IP court’s activity commenced at the beginning of August, 2013) INTELLECTUAL PROPERTY COURT (1) Innovations: Constitution of a group of counsels with special technical expertise Analyzing/interpreting court practice in IP sphere Granting a legislative initiative right Granting a right on petitioning the Constitutional court Leading the Way in Russian Law
  48. 48. Federal Constitutional Law No. 4-FCL dated December 6, 2011 «On amendments to various federal laws regarding constitution of the Intellectual property Competence: court» (the IP court’s activity commenced at the When competent as a FIRSTWhen competent as a beginning of August, 2013) INSTANCE court CASSATION-INSTANCE court INTELLECTUAL PROPERTY COURT (2) Challenge of the state authorities’ legal acts in IP sphere Cases considered by the IP court in the first instance Challenge of the state authorities’ decisions on granting/termination of legal protection of IP, namely: All other cases involving IP issues considered by arbitrazh courts breach of anti-trust law requirements based on IP rights “juggling” termination of trademark protection based on its non-use Leading the Way in Russian Law patent invalidation identification of a patent holder, etc.
  49. 49. Federal Law No. 187-FL « On amendments to various federal laws regarding intellectual property rights protection on the Internet» (so-called «Anti-piracy law») MOSCOW CITY COURT Innovations: The Moscow city court has an exclusive competence to consider the cases re IP rights protection on the Internet The cases involve only movies/series (extension of the list of IP falling within the frames of the «Anti-piracy» law is upcoming) It is possible to block Internet-site based on interim relief measures before case consideration on the merits Liability extends to Internet-site owners, hosting providers, telecom providers Extension of the Roskomnadzor’s enforcement proceedings Leading the Way in Russian Law authority in the
  50. 50. On October 8, 2013 the President delivered to the State Duma a draft law «On merger of arbitrazh and general jurisdiction courts» MERGER OF ARBITRAZH AND GENERAL JURISDICTION COURTS Legal effects: Competence of arbitrazh courts will be fully delegated to general jurisdiction courts The Supreme court will obtain an exclusive right to analyze/interpret court practice in all legal sphere Courts merger will require to amend the Constitution Leading the Way in Russian Law
  51. 51. LABOUR AND MIGRATION Leading the Way in Russian Law
  52. 52. LABOUR AND MIGRATION HIGHLY SKILLED PROFESSIONALS Amendments have been introduced to the procedure of acceptance of documents Order of the Federal Migration Service of Russia dated 15 January 2013 № 4. defined a list of authorized regional offices of FMS of Russia processing applications and issuing work permits to foreign highly skilled professionals If the highly skilled professional will carry out work activities in two or more Russian regions including Moscow city the application for work permits and invitations must be submitted to the Federal Migration Service of Russia in Moscow If the highly skilled professional will carry out work activities in two or more Russian regions including the Moscow region the application for work permits and invitations must be submitted to the Federal Migration Service of Russia in the Moscow region Leading the Way in Russian Law
  53. 53. LABOUR AND MIGRATION WORK PERMIT New requirements for documents submitted to the Department of the Federal Migration Service of Moscow The new requirement was introduced to the documents submitted for the purposes of drawing up of work permits for highly skilled professionals It is necessary to submit a notarized copy of the certificate confirming education obtained by a foreign specialist. An ordinary copy can also be provided together with submission of the original certificate, and no apostille is required for these purposes Leading the Way in Russian Law
  54. 54. LABOUR AND MIGRATION INVITATIONS AND WORK VISAS New requirements for documents submitted to the Department of the Federal Migration Service of Moscow The new set of requirements by the Department of the Federal Migration Service of Moscow stipulates that notarized translation of apostilled copy of the marriage certificate and the birth certificates for children accompanying family members should be submitted when applying for invitations and work visas Leading the Way in Russian Law
  55. 55. RESPONSIBILITY OF EMPLOYERS LABOUR AND MIGRATION Period of administrative suspension of the employer for violation of employment of foreign nationals: Penalties were introduced for the following offenses: • • Failure to notify, or breach of order of notification or notification form on termination of labor contract. • Failure to notify, or breach of order of notification or notification form on leave without pay for more than one calendar month during the year • Min. = 14 days Failure to notify, or breach of order of notification or notification form on payment of wages Failure or delay in providing information about tax registration of highly trained professional Max. = 90 days The following sanctions for violation will apply: • Leading the Way in Russian Law On officials – RUR 35,000 to RUR 70,000 • On legal entities – RUR 400,000 to RUR 1,000,000
  56. 56. LABOUR AND MIGRATION REMOTE LABOUR Specific labor regulations on remote workers The following issues were resolved: • Special features of conclusion and termination of labor contact with remote employee • Special features of the organization and safety of remote workers • Special features of working time and rest time of remote worker Leading the Way in Russian Law
  57. 57. LABOUR AND MIGRATION PERSONAL DATA Receiving and processing of personal data of employees Employer has no right to receive or process information about the employee relating to specific categories of personal information in accordance with the relevant legislation of the Russian Federation in the field of personal data with exception of cases provided by Labor Code and other federal laws Leading the Way in Russian Law
  58. 58. LABOUR AND MIGRATION The law stipulates that work council is a special internal “production” body established on the consultative and voluntary basis from the number of the employees of the employer RIGHTS OF EMPLOYERS Work counsils The amendments are connected with establishment of work councils. A member of the work council may not be a person, who has not an employment relationship with the employer The purpose of these councils is the accumulation of experience and preparation of proposals for : • improvement of production activities • improvement of individual production processes • the introduction of new technology • the introduction of new technologies • improve productivity and worker skills Leading the Way in Russian Law The law establishes limits to the powers of the works council: its competence should not include matters governed by corporate body and trade unions
  59. 59. CUSTOMS UNION Leading the Way in Russian Law
  60. 60. CUSTOMS UNION ECONOMIC INTEGRATION Customs Union + Eurasian Economic Commission EU ? United Customs Territory Eurasian Economic Space Leading the Way in Russian Law
  61. 61. EURASIAN ECONOMIC COMMISSION Supreme Eurasian Economic Counsil (Heads of States level) Eurasian Economic Commission EEC Collegium (competent executive bodies) Leading the Way in Russian Law EEC Counsil (Igor Shuvalov representing Russia)
  62. 62. EURASIAN ECONOMIC COMMISSION Supreme Eurasian Economic Counsil: Approves Model Statutes (e.g., «On Competition») Counsil of the Eurasian Economic Commission: Approves documents having direct effect (e.g., CU Technical Regulations) Collegium of the Eurasian Economic Commission: Approves documents of procedural nature (e.g., «On Official Internet Site») EEC Official Internet Site: www.eurasiancommission.org (Decision of the EEC Collegium dated 16.04.2013 No.83) Leading the Way in Russian Law
  63. 63. CUSTOMS UNION United Customs Territory Uniform Customs Tarriff Uniform Customs Code Leading the Way in Russian Law
  64. 64. TECHNICAL REGULATION CU Technical Regulations Agreement on Uniform Principles and Rules of Technical Regulation dated 18.11.2010 (creates normative basis for elaboration of technical regulations) Agreement on Eurasian Economic Commission dated 18.11.2011 (provides for the competences of the EEC Counsil to approve technical regulations) Leading the Way in Russian Law
  65. 65. TECHNICAL REGULATION CU Technical Regulations – List of requirements which should be met by the goods approved for circulation on the CU territory Standards – (list of standards is an annex to the relevant Technical Regulations) – national and international – provides for „threshold values“ which allow to prove the actual fulfillment of the CU Technical Regulations requirements Guidelines – Only on national level – provide for procedures of tests (expert checks) for the goods aimed to prove the fulfillment of the CU Technical Regulations and Standards Federal Law «On Technical Regulation» dated 27.12.2002 No.184-FZ • Leading the Way in Russian Law Compliance Confirmation • Accreditaion procedures for the certification authorities and laboratories
  66. 66. CUSTOMS UNION Prospects for elaboration of the uniform „rules of the game“ in the united economic space • • Unification of Standards and Guidelines (intensive development) • Leading the Way in Russian Law New technical regulations (extensive development) Anything changed following Russia‘s accession to the WTO?
  67. 67. * For a detailed overview of credentials please refer to www.lidings.com OUR TEAM Andrey Zelenin Partner, Head of Dispute Resolution Practice Tel.: +7(495) 989-44-10 AZelenin@lidings.com Sergey Patrakeev Counsel, Co-Head of Tax and Customs Practice Tel.: +7(495) 989-44-10 SPatrakeev@lidings.com Вадим Конюшкевич Senior associate Corparate and M&A practice Тел.: +7(495) 989-44-10 VKonyushkevich@lidings.com Leading the Way in Russian Law
  68. 68. MOSCOW Naberezhnaya Tower, Block C 10, Presnenskaya nab., Moscow, 123317, Russia Moscow@lidings.com Tel.:+ 7 (495) 989-44-10 Fax: +7 (495) 989-44-20 Leading the Way in Russian Law CONTACTS

×