Lending and taking security in the Russian Federation: overview

A Q&A guide to lending and taking security in the Russian Federation. The Q&A gives a high level overview of the lending market, forms of security over assets, special purpose vehicles in secured lending, quasi-security and guarantees. It covers creation and registration requirements for security interests; problem assets over which security is difficult to grant; risk areas for lenders; structuring the priority of debt; debt trading and transfer mechanisms; agent and trust concepts; enforcement of security interests and borrower insolvency; cross-border issues on loans; taxes; and proposals for reform.

To compare answers across multiple jurisdictions, visit the Lending and taking security in country Q&A tool.

This article is part of the global guide to finance. For a full list of contents visit www.practicallaw.com/finance-mjg.

Karen Young and Konstantin Baranov, CMS, Russia
Contents

Overview of the lending market

1. What have been the main trends and important developments in the lending market in your jurisdiction in the last 12 months?

The market remained tough in 2012, with most financings being either club deals or bilateral loans, as syndication was still difficult.

Russian banks, particularly the state-controlled banks (Sberbank,VEB and VTB) dominated all but the largest financings, and continued to increase their market share in all sectors following the exit from the Russian market of a number of traditional lenders into Russia.

Foreign financial institutions and their Russian subsidiaries which are committed to the Russian lending market (such as, BNP Paribas, Citibank, Credit Agricole, HSBC, ING, Intesa Sanpaolo, Natixis, Raiffeisenbank, Societe Generale, The Royal Bank of Scotland and UniCredit) remain active, financing blue-chip Russian corporates in the traditionally popular sectors of oil, gas and mining.

 

Forms of security over assets

Real estate

2. What is considered real estate in your jurisdiction? What are the most common forms of security granted over it? How are they created and perfected (that is, made valid and enforceable)?

Real estate

Russian civil legislation and the mortgage law classify real estate as:

  • Buildings.

  • Land plots.

  • Ships.

  • Aircraft.

Common forms of security

Security over land plots and buildings is taken by a pledge over immovable property (that is, a mortgage). A mortgage can be taken over:

  • Lease rights to real estate, as well as ownership rights.

  • Part of a building.

  • The unfinished construction of a building, if the building is registered as an unfinished construction with the Unified State Register of Rights to Immovable Property and Transactions of the Russian Federation (Land Registry).

Title rights to a building cannot be pledged without pledging the rights to the land plot underneath the building.

Formalities

A mortgage must be signed by the parties and then filed with the Land Registry. The mortgage is valid and binding once it is registered in the Land Registry.

The law applicable to the mortgage must be Russian law and the document must be in Russian (although in practice the mortgage can be executed as a bilingual document with the Russian version taking precedence). Notarisation and registration fees apply (see Question 27).

 

Tangible movable property

3. What is considered tangible movable property in your jurisdiction? What are the most common forms of security granted over it? How are they created and perfected?

Tangible movable property

There is no legal classification of tangible movable property. The general approach is that movable assets comprise property which does not qualify as immovable property, such as:

  • Equipment.

  • Machinery.

  • Inventory.

Shares and other forms of securities are also considered to be movable property (see Question 4).

Common forms of security

The most common form of security is a pledge over movable assets.

Formalities

The pledge is deemed to be created at the moment of signing of the pledge agreement. It is not necessary to physically deliver the pledged property to the pledgee. There is currently no public register in Russia where a pledge over movable assets can be registered. A pledging Russian entity must record the pledge in an internal pledge book (knigazapiseyzalogov) which it must maintain and make available for inspection by third parties.

The 2011 amendment to the Pledge Law that will come into force on 10 January 2014 provides for the creation of a unified register of notifications of pledges over movable assets. This register is to be updated by Russian notaries. In accordance with the amended law, a pledgee and a pledgor will be entitled (and if the pledge over movable assets is executed in front of a notary, will be obliged) to submit a pledge notification to a notary who will then add the relevant information on the pledge to the register.

 

Financial instruments

4. What are the most common types of financial instrument over which security is granted in your jurisdiction? What are the most common forms of security granted over those instruments? How are they created and perfected?

Financial instruments

The most common types of financial instrument are shares, bonds and promissory notes.

Common forms of security

The most common form of security is a pledge over shares or other financial instruments (bonds, promissory notes, and so on). Russian shares are generally issued in dematerialised (non-certificated) form, and the registration of a share pledge depends on how they are held by their owner, that is, directly in the shareholders' register or through a custodian (see below, Formalities).

Formalities

Registration of the pledge (that is, entering the record of the pledge) is made either:

  • In the shareholders' register which, depending on the requirements of the law and type of entity, can be maintained by:

    • the company itself; or

    • an independent licensed registrar company.

  • In the books of a licensed custodian (or the central custodian for publicly issued shares), which is the holder of the shares.

The pledge is deemed to be created once registration is effected. The language and the governing law of a pledge can vary (if one of the counterparties to the pledge is a foreign entity). From an enforcement perspective, it is highly advisable to make the pledge subject to Russian law with jurisdiction given to Russian arbitration (that is, state) courts.

Pledges of participation interests in Russian limited liability companies must be signed before a notary (in the Russian language or with a Russian translation) and registered at the Unified State Register of Legal Entities. Notary fees are payable (see Question 27).

 

Claims and receivables

5. What are the most common types of claims and receivables over which security is granted in your jurisdiction? What are the most common forms of security granted over claims and receivables? How are they created and perfected?

Claims and receivables

The most common type of claims and receivables is a right under a contract (or contractual rights) such as, among others:

  • Rights for lease receivables.

  • Debt claims.

Common forms of security

The most common forms of security which can be taken over contractual rights (claims and receivables) are:

  • A pledge over rights.

  • A conditional assignment of rights (if an assignment is not expressly prohibited by law or by the relevant contract). A conditional assignment is made, for example, on the occurrence of an event of default.

The main advantage of the pledge (versus assignment) is that the pledgee obtains the status of a secured creditor. In addition, an assignment which is conditional on an event of default is vulnerable to being set aside if the assignment is made immediately prior, or after the onset of, the insolvency of the assignor (see Question 23).

Generally, pledges and conditional assignments of rights cannot be used in relation to insurance policies (see Question 11, Other structures).

Formalities

Under a conditional assignment, either the assignor or the assignee must give notice of assignment to the counterparty to the contract (that is, the party obliged to pay the claims or receivables).

Similarly, a pledge over rights must be notified to the counterparty. In addition, if the pledgor is a Russian entity it must enter a relevant record of pledge in its pledge book (see Question 2, Formalities).

 

Cash deposits

6. What are the most common forms of security over cash deposits? How are they created and perfected?

A pledge taken over cash deposits is not enforceable; a quasi-security structure known as an account withdrawal agreement can be used (see Question 11, Other structures).

 

Intellectual property

7. What are the most common types of intellectual property over which security is granted in your jurisdiction? What are the most common forms of security granted over intellectual property? How are they created and perfected?

Intellectual property

The most common types of intellectual property are objects of:

  • Copyright.

  • Trade marks.

  • Know-how.

  • Inventions.

Common forms of security

The most common form of security which can be taken over intellectual property rights is a pledge over rights.

Formalities

If the pledge is created over registered intellectual property rights (for example, trade marks), it must be:

  • Executed by the parties in writing.

  • Registered with the authority that handles the register of intellectual property (this registration is subject to registration fees (see Question 27)).

If the pledgor is a Russian entity, then it must enter a relevant record of pledge into its pledge book (see Question 3, Formalities).

A pledge over non-registered intellectual property rights (for example, copyright) is not a commonly used instrument in financing transactions. If it is entered into, however, it would be subject to the requirements applicable to a pledge over registered intellectual property rights, except for registration.

 

Problem assets

8. Are there types of assets over which security cannot be granted or can only be granted with difficulty? Which assets are difficult or problematic when security is granted over them?

Future assets

A pledge over future assets (property or rights which may be acquired in the future) is not prohibited under Russian law. However, the Russian Civil Code and Pledge Law specifically require that every pledged asset should be properly identified in some detail in the pledge agreement. The pledge cannot be deemed to be created, therefore, unless or until the property is properly identified.

Fungible assets

Fungible assets are not defined in Russian law, although there is a similar concept of "mixed goods" (for example, oil in tanks, grain in storage, and so on). The main problem with a pledge over these assets is their mixed nature and non-identifiable character. The pledge cannot be deemed to be created, therefore, unless or until the property is properly identified.

Other assets

Another asset that is considered to be immovable property is an enterprise as a property complex (predpriyatiyekakimushestvenniy complex). This includes all types of property designated for the enterprise's activity, including:

  • Land plots.

  • Buildings.

  • Installations.

  • Equipment.

  • Tools.

  • Raw materials.

  • Rights of demand.

  • Debts.

  • Trade marks.

A mortgage over an enterprise covers each type of property held and relating to the respective enterprise (as described above), unless otherwise set out in the mortgage agreement. That means that there is a single security over different types of assets.

Any transactions (such as sales and mortgages) with an enterprise are subject to state registration and notarisation. Although an enterprise is considered to be a single asset, each land plot and other immovable asset must be registered separately. Rights over the enterprise must be registered with the Land Registry in respect of each immovable asset that the enterprise holds.

In practice, mortgages over enterprises are almost never taken as security, and it is usual to take specific security over each type of asset held by an entity.

 

Release of security over assets

9. How are common forms of security released? Are any formalities required?

According to Russian law, under the general rule a security is terminated once the underlying obligation is performed in full. However, each type of security has its own specific requirements for release.

If security is to be released, the parties to the relevant security agreement must enter into a termination agreement evidencing, among other things, that the underlying obligation was performed to the satisfaction of the lender.

Additional requirements specific to each type of security are listed below.

Shares. The parties to a pledge of shares agreement must sign a pledge release instruction to be filed with the independent licensed registrar company (or, if relevant, custodian), unless the shareholders register is kept by the pledgor itself. For registration formalities see Question 4.

Immovable property. The parties to a mortgage agreement must sign an application and file it with the Land Registry for the release of the mortgage.

Participation interest. The parties to a pledge over participation interest agreement must execute an application and file it with the relevant tax authorities to delete the pledge record from the Unified State Register of Legal Entities.

Intellectual property. The parties to a pledge over a rights agreement which is registered must enter into a termination agreement and send it to the register of intellectual property rights with a notification that the pledge must be released.

 

Special purpose vehicles (SPVs) in secured lending

10. Is it common in your jurisdiction to take security over the shares of an SPV set up to hold certain of the borrower's assets, rather than to take direct security over those assets?

It is common (at least for cross-border transactions) to take security over both the shares of an SPV entity as well as over the assets themselves. (SPVs often hold real estate assets, because there are tax advantages when the asset is sold by a sale of shares in the SPV (or its holding company), rather than by a sale of the real estate asset itself.)

For cross-border transactions, it is common for a foreign SPV to hold shares in the Russian SPV, and for security to be taken over the shares in the foreign SPV. This is because enforcement of offshore security can be quicker and easier than enforcing Russian law security over the shares in the Russian SPV or security over the asset itself in Russia. In this case, however, the lender will still often take additional security over the shares in the Russian SPV and over the relevant asset itself. This will prevent the shares or assets from being pledged to third parties without notice or otherwise being disposed of. Taking a pledge from a Russian borrower will allow a creditor to participate in the Russian company's insolvency as a secured creditor.

 

Quasi-security

11. What types of quasi-security structures are common in your jurisdiction? Is there a risk of such structures being recharacterised as a security interest?

Sale and leaseback

Sale and leaseback arrangements are not common in Russia. This is probably because of the negative tax consequences of these types of transactions. There is a risk that these arrangements are recharacterised as security interests, although it is not clear whether this happens in practice.

Factoring

Factoring is quite popular though it is most often used in cross-border transactions. In most cases the factors are banks (though under certain changes to the law most companies can carry out these activities as there is no longer any licensing requirement in place). There is little risk that a factoring transaction would be recharacterised as a security interest.

Hire purchase

Hire purchase is very common in Russia, and the law automatically creates a security interest over the goods subject to the hire purchase arrangements (until the goods are paid in full, those goods are deemed to be pledged to the seller).

Retention of title

A sale and purchase agreement can provide that the seller will retain title to the goods sold until he receives payment for the goods in full (Civil Code). However, retention of title provisions are not commonly used as quasi-security in Russia. There is little risk that a retention of title provision would be recharacterised as a security interest.

Other structures

The following types of quasi-security structure are also common:

  • Direct debit agreement. This is the most common type of quasi-security. Under this agreement, a bank account holder can grant creditors direct debit rights in respect of moneys held in a bank account. This is usually done by the creditor, account bank and account holder signing a tri-partite agreement, which amends the terms of the bank account agreement between the account bank and the account holder. This agreement is used because a pledge of moneys in a bank account is not enforceable under Russian law (see Question 5, Common forms of security).

    The basic requirement for these direct debit rights is that the creditor must have a direct monetary claim against the account holder. This direct monetary claim can be under a loan arrangement (if the account holder is the borrower), a payment guarantee, suretyship (where the account holder acts as a guarantor or a surety) or similar obligation (see Question 10).

  • Conditional assignment of contractual rights. The conditional assignment's disadvantage in comparison to the pledge over rights is that the creditor, as assignee, does not have the status of a secured creditor in any insolvency procedures (see Question 24). In addition, an assignment of rights that is conditional upon default (rather than an immediate unconditional assignment) can be set aside where the actual assignment takes place shortly prior to, or after, the onset of insolvency (see Question 23).

  • Loss payee nomination under insurance policy. This is usually done by way of an amendment to a property insurance policy (agreement) and is used to make a creditor a loss payee (co-insured) under the policy. A loss payee is a provision where payment is made under the insurance party to a third party beneficiary. Generally, pledges and assignments do not work under Russian law in respect of insurance policies (see Question 5).

There are no registration or other perfection requirements for any of the above agreements to become effective.

 

Guarantees

12. Are guarantees commonly used in your jurisdiction? How are they created?

Two types of arrangement are possible:

  • Suretyships. It is a secondary obligation to the primary obligation that it secures and therefore terminates automatically once the primary obligation is terminated. It is created by agreement. There are no perfection, registration or other requirements.

  • Bank guarantee. An ordinary company cannot enter into a guarantee. A bank guarantee survives the termination of a primary obligation, but it can only be issued by a credit institution or, although this is rare, a licensed insurance company. It is created by agreement. There are no perfection requirements.

Both instruments are commonly used.

 

Risk areas for lenders

13. Do any laws affect the validity of a loan, security or guarantee (or the terms on which they are made or agreed)?

Financial assistance

Financial assistance rules do not apply.

Corporate benefit

There is currently a lack of a corporate governance culture and shareholder protection in Russia. Corporate benefit has not, therefore, generally been an issue to address on Russian transactions, although there have been some high profile court cases against directors of companies. However, among the most important recent developments in Russian law were changes to the procedural rules introducing the possibility of bringing a shareholder class action (for example, under the Limited Liability Companies Law). Other changes are expected relating to corporate governance. Draft laws are being discussed that attempt to better define the duty of care, good faith and caution that directors must perform in relation to the company they work for.

Loans to directors

There are no restrictions on the grant of a loan to a director of a company. However, such a loan is likely to qualify as an interested party transaction for the company granting the loan and can therefore require the approval of disinterested directors or shareholders (depending on the loan amount).

Usury

Usury rules do not apply.

Others

Currency control restrictions generally provide that any payments between Russian companies can be effected in roubles only (except for operations with Russian licensed banks holding foreign currency licences issued by the Russian Central Bank) (see Question 26).

 
14. Can a lender be liable under environmental laws for the actions of a borrower, security provider or guarantor?

If a lender is just making a loan or holding or enforcing security, there are no grounds to make it liable under environmental laws for a third party's actions. Liabilities under environmental laws are personal.

 

Structuring the priority of debts

15. What methods of subordination are there?

Contractual subordination

Generally, it is thought that debts cannot be contractually subordinated because:

  • A party is not bound by a contractual agreement that prohibits or restricts the exercise of their legal rights (Civil Code).

  • Mandatory legal requirements override any contractual arrangements.

This means that contractual subordination concerning corporate loans is ineffective during bankruptcy proceedings (see Question 24). A creditor would be ranked pari passu with other creditors of the same priority and a Russian court would not uphold contractual subordination.

Structural subordination

A structural subordination where mezzanine and/or junior creditors lend to a holding company of the borrower, rather than the borrower itself, is possible.

Inter-creditor arrangements

Inter-creditor arrangements are not common in the Russian market, as the same issues that apply to contractual subordination apply to inter-creditor arrangements. Therefore:

  • A party is not bound by a contractual agreement that prohibits or restricts the exercise of its legal rights.

  • Mandatory legal requirements (such as these applied by the insolvency law) override contractual arrangements.

 

Debt trading and transfer mechanisms

16. Is debt traded in your jurisdiction and what transfer mechanisms are used? How do buyers ensure that they obtain the benefit of the security and guarantees associated with the transferred debt?

The main method for trading debts is to use an assignment (to the extent that assignment is not prohibited by law or by the relevant contract) (see Question 5, Common forms of security). On secured transactions novation is not normally used to ensure the continuing nature of existing securities. Any Russian law security would automatically terminate on a new agreement being created on transfer by way of novation. In the case of assignment, the security and guarantees are normally transferred (assigned) simultaneously with the transfer of debt. If foreign law security or guarantees are held by an agent or trustee for all lenders, an assignment of its participation in the debt by one lender will not require any assignment of the security or guarantees.

 

Agent and trust concepts

17. Is the agent concept (such as a facility agent under a syndicated loan) recognised in your jurisdiction?

The agency concept is generally recognised although the concept is different to that of a facility agent under English law. The duties of an agent under Russian law are more limited, and generally of an administrative nature. However, enforcement by an agent on behalf of other creditors of record (that is, lenders with a direct claim against the borrower) is possible. It cannot be established within the agency arrangements but on legally binding instructions structured through an agency agreement (dogovor porucheniya), supported by a power of attorney.

In practice, concepts such as parallel debt and joint and several creditorship are more commonly used to allow an agent to act on behalf of other members of a loan syndicate (see Question 18). Another alternative would be for a loan to be syndicated by way of sub-participation with a fronting bank acting as lender and security holder.

 
18. Is the trust concept recognised in your jurisdiction?

The concept of a common law trust is not recognised in Russia. There is a concept of trust management, although this has a different purpose and works differently to a common law trust (under Russian law the title to the asset never passes to the trust manager, but rather the manager has certain rights to manage the asset).

There are three alternative ways to initially structure the grant of security for a syndicate in the absence of a trust mechanism:

  • Agency (where the security agent acts by a power of attorney) (see Question 17).

  • Parallel debt. Generally speaking, a parallel debt is an abstract, independent pecuniary claim by one party (usually the party which is appointed to act as security agent in a syndicated lending) against a debtor, for an amount corresponding to the claims of all the finance parties in a syndicated lending against that debtor. The independent and parallel debt can be created by a separate clause in the credit facility agreement itself, or by a separate document. The Russian security may then be taken by the single holder of the parallel debt and the amount secured will be equal to the sum owing to all lenders.

  • Joint and several creditorship. Under this concept, one of the original lenders in a syndicated loan (again, usually in the capacity of a "security agent") is declared and deemed to be a creditor for the full amount of the loan jointly and severally with the other lenders. Security in Russia can then be held by the joint and several creditor (alone rather than all lenders) and the amount secured will be an amount equal to the sum owing to all lenders.

 

Enforcement of security interests and borrower insolvency

19. What are the circumstances in which a lender can enforce its loan, guarantee or security interest? What requirements must the lender comply with?

Generally, a creditor can only enforce a loan, suretyship, guarantee and security on the occurrence of an event of default. In addition, a Russian court can refuse to enforce a creditor's claims if the default was not significant (for example, the default only concerned breach of financial covenants). Therefore, the magnitude and frequency of breach events are important.

 

Methods of enforcement

20. How are the main types of security interest usually enforced? What requirements must a lender comply with?

Security can usually only be enforced together with enforcement of the relevant underlying obligation (that is, the loan). There is one exception: claims for enforcement of a mortgage can be filed separately (see Question 2).

Before 2009, security could be enforced only by a court-supervised public auction or, as a non-court procedure, an open auction arranged by the pledgee (creditor). The following additional out-of-court procedures are now available (and may be agreed on by the parties to a relevant security document):

  • Open auction conducted by an appointed auctioneer (auction organiser).

  • Commission sale, that is, the sale of assets through a third party independent commissioner (not available for mortgages).

  • Direct sale to a third party (including by commission sale) (not available for mortgages).

  • Transfer of the pledged asset to the creditor.

In accordance with the legislative amendments of 2011, out-of-court enforcement of pledges and mortgages is possible only with a notarial endorsement on the relevant security documents. As a result, any pledge or mortgage agreement that establishes an out-of-court enforcement mechanism must be executed in front of a notary.

A pledge or mortgage agreement may also provide for a detailed court enforcement procedure which the court then applies, that is, it may determine certain conditions for enforcement through the court. In this case the notarisation of the relevant agreement is not required.

 

Rescue, reorganisation and insolvency

21. Are company rescue or reorganisation procedures (outside of insolvency proceedings) available in your jurisdiction? How do they affect a lender's rights to enforce its loan, guarantee or security?

A company can restructure its debts in an effort to restore solvency. This is regulated by the Russian insolvency laws, but takes place outside the bankruptcy proceedings.

The restructuring of debts can be carried out with the assistance of the debtor's shareholders, either with the shareholders' financial aid, or provision of a loan or a guarantee. A restructuring can be carried out by agreement between creditors or other parties and the debtor.

The restructuring does not affect the right of the creditors to enforce their loans and security.

 
22. How does the start of insolvency procedures affect a lender's rights to enforce its loan, guarantee or security?

Before bankruptcy proceedings start

There are no restrictions or limitations on enforcement of loans, guarantees or pledges before the start of bankruptcy proceedings. If bankruptcy proceedings start, however, enforcement that occurred within the six-month period before the acceptance of a bankruptcy petition can be invalidated as a preferential transaction (see Question 23).

After bankruptcy proceedings start

Once the initial bankruptcy procedure (the supervision procedure) is started:

  • There is a prescribed procedure for presentation of creditors' claims.

  • The enforcement of proceedings against the debtor's property is suspended.

Creditors can only file their claims under loans, guarantees or security instruments through an arbitration manager. The arbitration manager will then consider including the claims into the register of claims. If a claim is presented during the first month of the supervision procedure and is accepted, the creditor will be able to vote at the first creditors' meeting. The first creditors' meeting will decide, among other things, what the next stage of proceedings will be. There are four forms the next stage can take: financial rehabilitation, external administration, liquidation and voluntary arrangement (see Question 24).

Generally, secured creditors' claims are satisfied out of the secured property. However, if the company goes into financial rehabilitation or external administration, a secured creditor can choose to either:

  • Enforce its security at this stage with the consent of the court. The court will only grant consent where the enforcement does not have the consequence of making restoration of the debtor's solvency impossible, for example, if the security being enforced is over the company's sole or major asset.

  • Wait for the enforcement of the security during liquidation (see Question 24).

Otherwise, claims can only be satisfied during the liquidation procedure (unless the company's solvency has been restored).

 
23. What transactions involving loans, guarantees, or security interests can be made void if the borrower, guarantor or security provider becomes insolvent?

There are two types of transactions that can be challenged under the insolvency laws:

  • Suspicious transactions. These can take the form of:

    • undervalue transactions (that is, transactions completed within one year before, or any time after, bankruptcy proceedings were initiated); and

    • transactions prejudicing creditor's property rights (that is, transactions completed within three years before, or any time after, bankruptcy proceedings were initiated).

  • Preferential transactions. These are transactions which result in one creditor's claims being prioritised over another's. Generally, these transactions can be challenged if completed within one month before, or any time after, bankruptcy proceedings were initiated. However, the one-month period is extended to six months if these transactions lead to certain consequences set out in the insolvency law, such as damages (or losses) caused to the debtor.

Once successfully challenged, all consideration received from the debtor under the relevant transaction will be transferred to the debtor's bankruptcy estate. The other party to an invalidated transaction will acquire a claim against the debtor and this claim will be satisfied either (depending on the type of invalidated transaction) with claims of other creditors or after satisfaction of third priority claims (see Question 24).

 
24. In what order are creditors paid on the borrower's insolvency?

Secured creditors are able to enforce their security during insolvency procedures before liquidation (see below). In addition, they are entitled to preferential treatment on liquidation in relation to the proceeds of the secured assets (see below, During liquidation).

During financial rehabilitation and external administration

There are two insolvency procedures:

  • Financial rehabilitation. This procedure endeavours to restore the debtor's solvency. It is started by a court ruling. The court will appoint an administrative manager to:

    • supervise the debtor's management;

    • specify the timescale for rehabilitation.

    This procedure requires the preparation of a financial rehabilitation plan if there is no security securing the debtor's liabilities, and (in all cases) a debt repayment schedule detailing the timetabled satisfaction of creditors' claims.

  • External administration. Under this procedure, the powers of the debtor’s management are terminated and the duty to manage the affairs of the debtor is vested in an external administrator. The external manager will produce an external administration plan outlining measures to restore the debtor's solvency and a feasibility study relating to its implementation.

During these stages, secured creditors can either enforce their security or refrain from enforcing their security to be able to vote at creditors' meetings.

An application to enforce must be made to an arbitration court, which can prevent enforcement if, as a result, it would not be possible to restore the debtor's solvency.

A secured creditor may be able to realise all of the enforcement proceeds of the secured assets, subject to the payment of current claims (see below, During liquidation).

During liquidation

A secured creditor would be entitled to benefit from the proceeds of the secured assets as follows:

  • 80% (for creditors under secured loan agreements) or 70% (for other secured creditors) of the proceeds from sale of the pledged property. This, however, cannot amount to a value greater than the sum of the original principal amount secured and the interest accrued on that amount.

  • 15% or 20% respectively to creditors of the first and second priority (see below). This distribution only applies where there are insufficient funds to otherwise discharge these claims.

  • The balance covers expenses incurred due to insolvency proceedings (for example, judicial fees, and so on).

In relation to the general proceeds of the bankruptcy estate, the following payments are made ahead of the other creditors of the first, second and third priority:

  • Judicial expenses and remuneration to persons involved in administering the insolvency process.

  • Remuneration to employees engaged during the insolvency process.

  • Costs towards operational expenses (for example utilities) necessary for the debtor to carry out normal activities.

  • Claims for all other current payments (that is, creditor claims made after the court's acceptance of an application to commence insolvency proceedings).

Statutory claims (such as tax claims) that appeared before insolvency was initiated, must be satisfied along with the creditors' claims.

After current claims mentioned above, come first priority claims (such as personal injury claims), and second priority claims (severance benefits, wages for the debtor's employees, and copyright royalties).

Finally, the claims of unsecured creditors are ranked as third priority and are satisfied from the remainder of the estate.

Subordination arrangements are not effective on insolvency (see Question 15).

Secured creditors holding a first ranking pledge over the property will have priority over creditors holding any subsequent pledge over the same property. The priority will depend on the date of the relevant security instrument's creation or registration. It is unlikely that it can be contractually agreed for two or more securities to have equal ranking.

If the security has not been validly perfected, a creditor can only join insolvency proceedings as a third priority unsecured creditor (see above, During liquidation).

 

Cross-border issues on loans

25. Are there restrictions on the making of loans by foreign lenders or granting security (over all forms of property) or guarantees to foreign lenders?

Generally, the proceeds of a loan from a foreign lender must be credited to a Russian borrower's account with a Russian account bank.

The proceeds of a foreign currency loan can be credited to an offshore bank account of the Russian borrower which is located in a jurisdiction that is a member of the Organisation for Economic Co-operation and Development (OECD) or the Financial Action Task Force (FATF). This can only be done if the lender is either:

  • An agent of the foreign government.

  • A bank from an OECD or FATF jurisdiction and the loan term exceeds two years.

A licence or registration is not required in Russia for a foreign lender who makes a loan to a Russian company.

 
26. Are there exchange controls that restrict payments to a foreign lender under a security document, guarantee or loan agreement?

Generally, no restrictions for payments to a foreign lender exist, subject to certain reporting requirements under the currency control law. For example, a Russian borrower must open a deal passport (passport sdelki) with its Russian account bank (or, if the payments are made offshore, with the relevant subdivision of the Russian Central Bank), if the total amount of payment obligations under a relevant loan agreement may exceed US$50,000 (or its equivalent). The deal passport is usually completed to reflect the details of the loan and must be formalised before the first draw down under the loan agreement. Each payment under a loan agreement, guarantee or security instrument requires the submission to the Russian account bank of a currency operation certificate (spravka o valyutnikhoperatsyakh) without which the payment will not be effected.

 

Taxes and fees on loans, guarantees and security interests

27. Are taxes or fees paid on the granting and enforcement of a loan, guarantee or security interest?

Documentary taxes

Stamp duty does not exist, although registration and/or notarisation fees apply on the creation of security instruments which must be registered and/or notarised (for example, mortgages and pledges of participation interests).

Registration fees

See above, Documentary taxes.

Notaries' fees

See above, Documentary taxes.

 
28. Are there strategies to minimise the costs of taxes and fees on the granting and enforcement of a loan, guarantee or security interest?

To minimise withholding taxes on loan payments, foreign lenders can be requested to act through a lending office located in a jurisdiction which has a double tax treaty with the Russian Federation, providing for a withholding tax exemption on interest payments.

Any intra-group loan, guarantee and security arrangements should be carefully analysed from the tax point of view to avoid any "thin capitalisation" concerns (that is, where "controlled debt" (as defined in the relevant legislation) exceeds own capital by a ratio of three to one).

 

Reform

29. Are there any proposals for reform?

There are amendments being considered to amend a number of provisions of the Civil Code to, among others:

  • Introduce the concepts of a pledge of a bank account and escrow account.

  • Transform the concept of a bank guarantee into an "independent guarantee" to be issued by any legal entity.

  • Introduce the concept of a security agent.

  • Allow a contractual order of priority for security.

  • Further develop the regulation of share and participation interest pledges.

However, it is difficult to predict when these changes to the Civil Code will be passed, or in what form.

 

Online resources

W http://pravo.gov.ru

Description. Official web-site with the official text of the legal acts of the Russian Federation (Russian language only).

W http://kad.arbitr.ru

Description. Official web-site with the text of the court cases of the commercial state courts of the Russian Federation (Russian language only).


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