Property of a foreign investor or commercial organization. Legal protection guarantees for the activities of foreign investors in Russia. Application of the stabilization clause
The main guarantees of the rights of foreign investors to investments and the income and profit received from them, the conditions of entrepreneurial activity of foreign investors in the territory of the Russian Federation are established by the Federal Law of July 09, 1999 N 160-FZ "On Foreign Investments in the Russian Federation".
In particular, this law stipulates that:
- legal regime the activity of foreign investors and the use of the profit obtained from investments cannot be less favorable than the legal regime for the activity and use of the profit obtained from investments, provided to Russian investors. At the same time, the Federal Law of April 29, 2008 N 57-FZ "On the procedure for implementing foreign investment to business entities of strategic importance for ensuring the country's defense and state security ", the Law of the Russian Federation of December 27, 1991 N 2124-1" On the Mass Media "and other laws establish certain restrictive exemptions for foreign investors;
- a foreign investor on the territory of the Russian Federation is provided with full and unconditional protection of rights and interests, which is ensured by the norms of federal laws and other regulatory legal acts of the Russian Federation, as well as international treaties of the Russian Federation;
- a foreign investor has the right to compensation for losses caused to him as a result of illegal actions (inaction) government agencies, local government bodies or officials of these bodies, in accordance with the civil legislation of the Russian Federation;
- a foreign investor has the right to make investments in the territory of the Russian Federation in any form not prohibited by the legislation of the Russian Federation;
- a foreign investor, by virtue of an agreement, has the right to transfer his rights (assign claims) and obligations (transfer a debt), and on the basis of a law or a court decision is obliged to transfer his rights (assign claims) and obligations (transfer a debt) to another person in accordance with the civil legislation of the Russian Federation ;
- property of a foreign investor or commercial organization with foreign investments is not subject to compulsory withdrawal, including nationalization, requisition, except in cases and on the grounds established by federal law or an international treaty of the Russian Federation. In case of requisition, a foreign investor or a commercial organization with foreign investments shall be paid the value of the requisitioned property. Upon termination of the circumstances in connection with which the requisition was made, a foreign investor or a commercial organization with foreign investments has the right to demand judicial procedure return of the preserved property, but at the same time they are obliged to return the amount of compensation received by them, taking into account losses from a decrease in the value of the property. In case of nationalization, a foreign investor or a commercial organization with foreign investments shall be reimbursed for the value of the nationalized property and other losses;
- a foreign investor's dispute arising in connection with the implementation of investments and entrepreneurial activities on the territory of the Russian Federation shall be resolved in accordance with international treaties of the Russian Federation and federal laws in court or arbitration court or in international arbitration (arbitration court).
The Constitution of the Russian Federation stipulates that the generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system. If an international treaty of the Russian Federation establishes rules other than those provided for by law, then the rules of the international treaty are applied.
The Russian Federation participates in many multilateral and bilateral international treaties and agreements, in particular, the Russian Federation has ratified the Convention for the Protection of Human Rights and Fundamental Freedoms (Federal Law of March 30, 1998 N 54-FZ "On the Ratification of the Convention for the Protection of Human Rights and Fundamental freedoms and Protocols to it ").
Guarantee of legal protection of the activities of foreign investors on the territory of the Russian Federation (Article 5 of the Law).
The considered guarantee also includes the right to defend their interests in court, including foreign investors have the right to defend their economic interests as third parties in a case considered by the arbitration court of the Russian Federation.
This warranty also implies a guarantee of compensation for losses caused as a result of illegal actions (inaction) of state bodies, local authorities or officials of these bodies
Guarantee of the use by a foreign investor of various forms of investment in the territory of the Russian Federation (Article 6 of the Law)
A foreign investor has the right to make investments in the territory of the Russian Federation in any form not prohibited by the legislation of the Russian Federation.
An analysis of international agreements between the Russian Federation and foreign states shows that, as a rule, the following forms of investment are included:
a) movable and real estate, as well as the corresponding property rights;
b) shares, deposits and other forms of participation in enterprises or companies;
c) the right to claim funds that are invested to create economic values related to capital investments;
e) the right to exercise economic activity, including commercial activities provided on the basis of law or contract, in particular concerning the exploration, development, extraction and exploitation of natural resources.
A guarantee of the transfer of the rights and obligations of a foreign investor to another person (Article 7 of the Law).
A foreign investor, by virtue of an agreement, has the right to transfer his rights (assign claims) and obligations (transfer debt), and on the basis of a law or a court decision is obliged to transfer his rights (assign claims) and obligations (transfer debt) to another person in accordance with the civil legislation of the Russian Federation ...
Guarantee of the right of a foreign investor to unimpeded export of property and information outside the Russian Federation in documentary form or in the form of an entry on electronic media, which were originally imported into the territory of the Russian Federation as a foreign investment (Article 12 of the Law).
A foreign investor who initially imported into the territory of the Russian Federation property and information in documentary form or in the form of a record on electronic media as a foreign investment has the right to export the specified property and information outside the Russian Federation.
Guarantee of compensation for the nationalization and requisition of the property of a foreign investor or a commercial organization with foreign investments (Article 8 of the Law).
As enshrined in the Convention on the Protection of the Rights of the Investor, investments are not subject to nationalization and cannot be subject to requisition, except in exceptional cases (natural disasters, accidents, epidemics, epizootics and other circumstances of an extraordinary nature) provided for by the national legislation of the Parties when these measures are taken in the public interest provided for by the Basic Law (Constitution) of the recipient country. Nationalization or requisition cannot be carried out without adequate compensation to the investor.
Upon termination of the circumstances in connection with which the requisition was made, a foreign investor or a commercial organization with foreign investments has the right to demand in court the return of the preserved property, but at the same time they are obliged to return the amount of compensation received by them, taking into account losses from a decrease in the value of the property.
Guarantee against unfavorable changes for a foreign investor and a commercial organization with foreign investments in the legislation of the Russian Federation (Article 9 of the Law).
The principle of protection against the tightening of national legislation is to preserve the legal regime in the event of an unfavorable change in legislation. In the legal literature, this principle is also called the "stabilization clause". The ban on the introduction of changes that worsen the agreed conditions for the receipt of foreign investment has even received a special name - "grandfather's clause." It was established, as a rule, for a period of 3 to 5, less often up to 7-10 years.
A guarantee of the use on the territory of the Russian Federation and the transfer outside the Russian Federation of income, profit and other lawfully received amounts of money (Article 11 of the Law).
This guarantee includes the right to freely use income and profits for reinvestment and their unimpeded transfer outside the Russian Federation (after paying the relevant taxes) in connection with previous investments, including:
Investment income in the form of profit, dividends, interest and other remuneration;
Monetary amounts in fulfillment of obligations under contracts and other transactions;
Sums of money received from the liquidation of a commercial organization with foreign investments or a branch of a foreign legal entity, as well as in connection with the alienation of the invested property, property rights and exclusive rights to the results of intellectual activity;
Compensation provided for the requisition or nationalization of property.
Guarantee of the right of a foreign investor to acquire valuable papers(Article 13 of the Law) secures the right of a foreign investor to acquire shares and other securities of Russian commercial organizations and government securities in accordance with the legislation of the Russian Federation on securities.
Guarantee of participation of a foreign investor in privatization (Article 14 of the Law).
In accordance with Article 14 of the Law "On Foreign Investments ..." a foreign investor can participate in the privatization of state and municipal property by acquiring ownership rights to state and municipal property or a share, share (contribution) in the authorized (pooled) capital of the privatized organization on the terms and in the manner established by the legislation of the Russian Federation on the privatization of state and municipal property... Thus, foreign investors are subject to general rules fixed by the Federal Law of December 21, 2001 No. 178-FZ "On the privatization of state and municipal property" (as amended on February 27, 2003).
Traditionally, to attract foreign investment and improve the investment climate, the provision of guarantees and benefits to investors is used.
In the Federal Law "On Foreign Investments in the Russian Federation" No. 160-FZ dated July 9, 1999. benefits for foreign investors are otherwise referred to as incentive exemptions (clause 2, article 4). It also provides that benefits for foreign investors can be established in the interests of social economic development RF.
Under the provision of benefits, in this case, it is advisable to understand the more favorable conditions (regime) established by the authorities of the Russian Federation for the implementation of an action (or type of activity) for a subject (category of subjects) against the usual conditions for performing actions for other similar entities. Proclamation of guarantees must be a form of taking over by the state, through the appropriate authorities, obligations to the subject (in our case, the subject investment activities).
The meaning of the adoption of the Law "On Foreign Investments" is to determine the basic guarantees of the rights of foreign investors to investments, the income and profits received from them, as well as to determine the conditions for entrepreneurial activity of foreign investors in the territory of the Russian Federation.
For foreign investors in Russia, the Law "On Foreign Investments" No. 160-FZ establishes the following basic guarantees:
1. Guarantees of legal protection of foreign investors on the territory of the Russian Federation. (Art. 5);
2. Guarantees of the use by a foreign investor of various forms of investment in the territory of the Russian Federation (Article 6);
3. Guarantees of transfer of the rights and obligations of a foreign investor to another person (Article 7);
4. Guarantees of compensation in case of nationalization and requisition of property of a foreign investor or a commercial organization with foreign investments (Article 8);
5. Guarantees against unfavorable changes for a foreign investor and a commercial organization with foreign investments of the legislation of the Russian Federation (Article 9);
6. Guarantees of ensuring the proper resolution of a dispute arising in connection with the implementation of investments and entrepreneurial activities in the territory of the Russian Federation by a foreign investor (Article 10);
7. Guarantees of use on the territory of the Russian Federation and transfer outside the Russian Federation of income, profits and other lawfully received sums of money (Art. 11);
8. Guarantees of the right of a foreign investor to unimpeded export of property and information outside the Russian Federation in documentary form or in the form of a record on electronic media, which were originally imported into the territory of the Russian Federation as a foreign investment (Article 12);
9. Guarantees of the right of a foreign investor to purchase securities (Article 13);
10. Guarantees for the participation of a foreign investor in privatization (Article 14);
11. Guarantees of granting a foreign investor the right to land, other Natural resources, buildings, structures and other immovable property (Art. 15).
This list is not exhaustive. According to Art. 17 of the Law "On Foreign Investments", the constituent entities of the Russian Federation and local self-government bodies, within their competence, can provide a foreign investor with benefits and guarantees, finance and provide other forms of support investment project carried out by a foreign investor, at the expense of the budgets of the constituent entities of the Russian Federation and local budgets, as well as extra-budgetary funds.
Article 6 of the Law "On Foreign Investments" proclaims that a foreign investor on the territory of the Russian Federation has the right to make investments in any form not prohibited by the legislation of the Russian Federation. Such a ban can be nationwide, i.e. for residents and non-residents, or a ban in the form of an exemption of a restrictive nature for foreign investors established by federal law of the Russian Federation. The described guarantee was proclaimed in Russia for the first time, and it can be called a novelty, however, the proclamation of another would contradict the principles laid down in the Constitution of the Russian Federation (Article 30) and the Civil Code of the Russian Federation (Article 2).
Thus, any investment by a foreign investor in the activities of commercial organizations on the territory of the Russian Federation is undoubtedly legitimate, unless it is covered by a special exception of a restrictive nature provided for by federal law for such a foreign investor, or a national ban is imposed on such investment under the legislation of the Russian Federation. Resistance or rejection state registration or preliminary permission of such an investment by state bodies, local self-government bodies are appealed in accordance with the established procedure.
Present in the current Law "On Foreign Investments" a guarantee of ensuring the proper consideration of a dispute arising in connection with the implementation of investments and entrepreneurial activities in the territory of the Russian Federation by a foreign investor, existed earlier, being formulated as an opportunity to apply to Russian courts and arbitration courts (Article 9 of the Law on Foreign Investments in the RSFSR).
Judicial protection is characterized by the fact that the dispute of a foreign investor arising in connection with the implementation of investments and entrepreneurial activities on the territory of the Russian Federation is resolved in accordance with international treaties of the Russian Federation and federal laws in court.
Clause 2 of Art. 5 of the Law "On Foreign Investments" established: a foreign investor has the right to compensation for losses caused to him as a result of illegal actions (inaction) of state bodies, local authorities or officials of these bodies, in accordance with the civil legislation of the Russian Federation. Officials have traditionally been subject to administrative or, in extreme cases, criminal liability.
Article 13 of the Law "On Foreign Investments" proclaims a guarantee of the right of a foreign investor to purchase shares and other securities of Russian commercial organizations and government securities. This guarantee is a logical continuation of a more general guarantee that a foreign investor will use various forms of investment in Russia (Article 6 of the Law "On Foreign Investments"). The acquisition of Russian securities by foreign investors is carried out in accordance with the legislation of the Russian Federation "on the securities market".
In the Law on Foreign Investments, the guarantee of the participation of a foreign investor in privatization is formulated rather vaguely. This rule can be called completely referential, although it is unlikely that the guarantee can only consist of references. For example, it is indicated that a foreign investor "can participate in the privatization of objects of state and municipal property." It is “may”, not “right”. That is, no clarity - may or may not participate. Further, a reference is made to the legislation of the Russian Federation on privatization. Thus, it is impossible to assert with a sufficient degree of certainty that foreign investors in the Russian Federation are guaranteed the right to participate in privatization.
As soon as the conditions and procedure for the participation of a foreign investor in the privatization of state and municipal property are established Russian legislation on privatization, it can be assumed that the regime for the implementation of "privatization activities" by foreign investors is to a large extent different from the regime of the usual entrepreneurial activity of a foreign investor in Russia.
It is known that states primarily protect the rights of their citizens, so it is logical to proclaim the same guarantees for foreign investors as for domestic investors. However, if a guarantee is proclaimed for a foreign investor, which domestic investors do not have, then such a guarantee should be considered as an incentive.
So the benefits, in our opinion, as indicated earlier, can be attributed, provided for by Art. 9 of the Law "On Foreign Investments", a guarantee against unfavorable changes for a foreign investor and a commercial organization with foreign investments of the legislation of the Russian Federation. It is simply referred to in the literature as a “stabilization” or “grandfather's” clause and does not provide for an increase in the amount of tax and other similar deductions for the subject within a certain period after the start of the investment project, even if, according to the law, these deductions increase. The period of stability of the amount of deductions in the Russian Federation is equal to the payback period of the investment project, but is limited to seven years. Thus, the investor knows that even if the state introduces “extortionate” taxes tomorrow after the start of investments in the Russian economy, he will at least be able to return his own.
Russian investors can count on such a guarantee only if they carry out investment activities in the Russian Federation in the form of capital investments(Clause 2, Article 15 of the Law "On Investments in the Form of Capital Investments").
The stabilization clause in the Russian Federation applies to:
Import customs duties (with the exception of customs duties caused by the application of measures to protect economic interests RF in the implementation of foreign trade in goods);
Federal taxes (excluding excise taxes, value added tax on goods produced in Russia);
Contributions to government extrabudgetary funds(excluding contributions to Pension Fund RF);
The stabilization clause can be used by:
Foreign investors implementing a priority investment project (subject to the targeted use of goods imported into the territory of the Russian Federation for the implementation of a priority investment project);
Commercial organizations with foreign investments implementing a priority investment project;
Commercial organizations with foreign investments, where the share of a foreign investor in the authorized (pooled) capital exceeds 25%.
In addition, as noted above, the stabilization clause is valid for investors (including Russian ones) implementing priority investment projects related to investment activities in the form of capital investments.
Another guarantee that makes the foreign investment regime more favorable is a guarantee of the right of a foreign investor to unimpeded export outside Russia of previously imported property and information (Article 12 of the Law "On Foreign Investments"). It provides for the non-application of quotas, licensing and other measures of non-tariff regulation of foreign trade when a foreign investor exports property and information from Russia in documentary form or in the form of recording on electronic media that were originally imported into Russia as a foreign investment. At the same time, the non-application of tariff regulation measures in this situation is not guaranteed.
The foreign investor will have to pay the export customs tariff (customs duty).
In addition to the right to export his property and information, a foreign investor is guaranteed an unhindered transfer of funds abroad (Article 11 of the Law "On Foreign Investments"). The conditions for such a transfer consist in the mandatory advance payment of all taxes and fees provided for by the legislation of the Russian Federation on income and profit from investments. This field is either freely used by a foreign investor cash on the territory of the Russian Federation, including for reinvestment, or transfers them abroad. The same article of the Law states that the transfer must be made in foreign currency.
Finally, the Law "On Foreign Investments" provides that privileges in the payment of customs duties are provided to foreign investors and commercial organizations with foreign investments when they implement a priority investment project in accordance with the legislation of the Russian Federation and the legislation of the Russian Federation on taxes and fees (Article 16 of the Law "On foreign investment ").
The law introduces the concept of "priority investment project". This is an investment project, the total volume of foreign investments in which is at least 1 billion rubles, or an investment project in which the minimum share (contribution) of foreign investors in the authorized (pooled) capital of a commercial organization with foreign investments is at least 100 million rubles, included in the list approved by the Government of the Russian Federation. When such a project is implemented, no changes in the legislation of the Russian Federation that worsen the tax and customs regime of the enterprise will be in effect until its payback. It has been established that the activities of foreign investors and their use of the profits obtained from investments can be limited in comparison with Russian entrepreneurs only by federal laws to the extent that it is necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure defense of the country and security of the state. A branch of a foreign legal entity established on the territory of the Russian Federation performs part or all of the functions, including the functions of a representative office, on behalf of the foreign legal entity that created it, provided that the goals of creation and activities of the parent organization are of a commercial nature and the parent organization is directly responsible for the it in connection with the conduct of these activities on the territory of the Russian Federation. Subsidiaries and dependent companies of a commercial organization with foreign investments do not enjoy legal protection, guarantees and benefits established by this Federal Law when they carry out entrepreneurial activities on the territory of the Russian Federation. It has also been established that if a foreign state or a state body authorized by it makes a payment in favor of a foreign investor under a guarantee (insurance contract) provided to a foreign investor in relation to investments made by him in the territory of the Russian Federation, and the rights are transferred to this foreign state or a state body authorized by it (claims are assigned) of a foreign investor for these investments, then in the Russian Federation such a transfer of rights (assignment of a claim) is recognized as legitimate. It is established that the foreign investor after payment Russian taxes and fees has the right to freely use income and profits on the territory of the Russian Federation for reinvestment or for other legal purposes and to freely transfer income, profits and other lawfully received amounts of money in foreign currency outside the Russian Federation in connection with previous investments made by him. The creation and liquidation of a commercial organization with foreign investment is carried out on the conditions and in the manner prescribed by the Civil Code of the Russian Federation. Legal entities that are commercial organizations with foreign investments are subject to state registration with the justice authorities. The law comes into force on the day of its official publication.
1. Guarantee of compensation in case of nationalization and requisition of the property of a foreign investor or a commercial organization with foreign investments ……………………………………………………………………………………………… ... …… 3
2. Creation and liquidation of a branch of a foreign legal entity …………………………………………………………………. ……………. 7
Literature …………………………………………………………. …… ..13
1. Guarantee of compensation for the nationalization and requisition of the property of a foreign investor or a commercial organization with foreign investment.
Investment protection in the Russian Federation is guaranteed by the state.
All investors, including foreign ones, are provided with equal conditions of activity, excluding the use of discriminatory measures that could impede the establishment and management of investments.
A foreign investor on the territory of the Russian Federation is provided with full and unconditional protection of rights and interests, which is provided by the Federal Law of July 9, 1999 N 160-FZ "On Foreign Investments in the Russian Federation", other federal laws and other regulatory legal acts of the Russian Federation, and also international treaties of the Russian Federation.
A foreign investor who initially imported into the territory of the Russian Federation property and information in documentary form or in the form of a record on electronic media as a foreign investment has the right to unhindered export of said property and information outside the Russian Federation.
A foreign investor has the right to compensation for losses caused to him as a result of illegal actions (inaction) of state bodies, local authorities or officials of these bodies, in accordance with the civil legislation of the Russian Federation.
Investments cannot be nationalized, requisitioned free of charge, and measures equal to the specified consequences cannot be applied to them. The application of such measures is possible only with full refund all losses caused by the alienation of the invested property, including lost profits, and only on the basis of legislative acts of the Russian Federation and the republics that are part of it.
Investors contributed or acquired target bank deposits, shares or other securities, payments for acquired property, as well as lease rights in cases of their withdrawal in accordance with the legislative acts of the Russian Federation, are reimbursed to investors, with the exception of amounts used or lost as a result of the actions of the investors themselves or undertaken with their participation.
Property insurance against the risk of loss (destruction), shortage or damage to property, the risk of civil liability and entrepreneurial risk is carried out by a commercial organization with foreign investments at its discretion, and by a branch of a foreign legal entity at the discretion of the parent organization, unless otherwise provided by the legislation of the Russian Federation.
A foreign investor, after paying taxes and fees stipulated by the legislation of the Russian Federation, has the right to freely use income and profits on the territory of the Russian Federation for reinvestment or for other purposes that do not contradict the legislation of the Russian Federation, and to freely transfer income and profits outside the Russian Federation. and other lawfully received amounts of money in foreign currency in connection with previous investments made by him, including:
- investment income received in the form of profit, dividends, interest and other income;
- sums of money in fulfillment of the obligations of a commercial organization with foreign investments or a foreign legal entity that has opened its branch in the territory of the Russian Federation, under agreements and other transactions;
- sums of money received by a foreign investor in connection with the liquidation of a commercial organization with foreign investments or a branch of a foreign legal entity or the alienation of invested property, property rights and exclusive rights to the results of intellectual activity;
- compensations provided for in Article 8 of this Federal Law.
A dispute of a foreign investor arising in connection with the implementation of investments and entrepreneurial activities in the territory of the Russian Federation shall be resolved in accordance with international treaties of the Russian Federation and federal laws in court or arbitration court or in international arbitration (arbitration court).
The legal regime for the activity of foreign investors and the use of the profit obtained from investments cannot be less favorable than the legal regime for the activity and use of the profit obtained from investments, provided to Russian investors, with the exceptions established by federal laws.
The property of a foreign investor or a commercial organization with foreign investments is not subject to compulsory seizure, including nationalization, requisition, except in cases and on the grounds established by federal law or an international treaty of the Russian Federation.
In case of requisition, a foreign investor or a commercial organization with foreign investments shall be paid the cost of the requisitioned property. Upon termination of the circumstances in connection with which the requisition was made, a foreign investor or a commercial organization with foreign investments has the right to demand in court the return of the preserved property, but at the same time they are obliged to return the amount of compensation received by them, taking into account losses from a decrease in the value of the property.
In case of nationalization, a foreign investor or a commercial organization with foreign investments shall be reimbursed for the value of the nationalized property and other losses.
Local government bodies of the Russian Federation within their powers in accordance with the Federal Law of February 25, 1999 N 39-FZ "On investment activities in the Russian Federation carried out in the form of capital investments", as well as other laws and regulations of the Russian Federation, and also by the laws and regulations of the constituent entities of the Russian Federation, guarantee to all subjects of investment activity:
- ensuring equal rights in the implementation of investment activities;
- publicity in the discussion of investment projects;
- stability of the rights of subjects of investment activity.
An important instrument for the protection of foreign investment is bilateral agreements on mutual encouragement and mutual protection of foreign investment, which the Russian Federation has with most countries of the world. The main purpose of such agreements is to ensure an equally favorable treatment in relation to capital investments, establish the possibility of unhindered export of part of the profits and guarantees against non-commercial risks.
2. Creation and liquidation of a branch of a foreign legal entity.
1. A branch of a foreign legal entity means separate subdivision a foreign legal entity located outside its location and performing all or part of the functions, including the functions of a representative office. A branch of a legal entity is not a legal entity, does not possess its own property, but is endowed with the property of the legal entity that created it, and acts on the basis of the approved regulation. The head of the branch is appointed by the parent organization and acts on the basis of a power of attorney.
The goals of the establishment and activities of the branch correspond to the goals of the establishment and activities of the parent organization - a foreign legal entity. The decision on the need to create and liquidate a branch is made by the parent organization.
2. The creation of a branch of a foreign legal entity on the territory of the Russian Federation is carried out by means of its accreditation. The temporary regulation "On the procedure for accreditation of branches of foreign legal entities established in the Russian Federation", accreditation and maintenance of the state register of branches of foreign legal entities accredited in the Russian Federation are entrusted to the Accreditation Department of the State Registration Chamber under the Ministry of Justice of the Russian Federation.
Temporary regulation "On the procedure for accreditation of branches of foreign legal entities established on the territory of the Russian Federation" (approved by the Ministry of Justice of the Russian Federation on December 31, 1999) // The text of the regulation was not officially published.
For the accreditation of a branch of a foreign legal entity, an organization that has made a decision on the accreditation of its branch on the territory of the Russian Federation shall submit the following documents to the Registration Chamber:
a) a written statement on letterhead signed by the head of a foreign legal entity, indicating: name, organizational and legal form, date of registration, location, type of activity and information on business relations with Russian partners, prospects for the development of cooperation of a foreign legal entity, purpose of opening a branch of a foreign legal entity and location in the Russian Federation. The application is drawn up in Russian;
b) the charter of a foreign legal entity;
c) certificate of registration of a foreign legal entity or an extract from the trade register;
d) the decision of a foreign legal entity to open a branch in the Russian Federation;
e) the regulation on the branch, where the name of the branch and its head organization, the organizational and legal form of the head organization, the location of the branch on the territory of the Russian Federation and legal address its parent organization, the purposes of creation and types of activities of the branch, the composition, volume and timing of capital investment in the fixed assets of the branch, the procedure for managing the branch and other information reflecting the features of the branch;
f) a letter of recommendation from a bank serving a foreign legal entity and confirming its solvency.
If the documents submitted for accreditation are drawn up in a foreign language, their translation into Russian is required, notarization and legalization by consular offices of the Russian Federation or apostille.
For the accreditation of branches of foreign organizations established on the territory of the Russian Federation, it is charged National tax in the amount of 60,000 rubles for each branch.
3. When a branch of a foreign legal entity is accredited, information about it is entered into State Register branches of foreign legal entities accredited on the territory of the Russian Federation, as well as the issuance of a certificate of accreditation. The State Register of Branches of Foreign Legal Entities Accredited on the Territory of the Russian Federation means a systematized collection of reliable information about the branches of foreign legal entities accredited on the territory of the Russian Federation. Accordingly, entering into the State Register of branches of foreign legal entities accredited on the territory of the Russian Federation means including information about a foreign legal entity in the automated database, assigning a register number, issuing a certificate of the established form and putting a mark on entering into the State Register on the position of the branch ( Clause 10 of the Provisional Regulations). It is the receipt of a certificate of accreditation and the entry into the Register of information about the branch of a foreign legal entity that gives the branch the right to engage in commercial activities on the territory of the Russian Federation.
In accordance with clause 10 of the Provisional Regulations, the certificate of accreditation and entry into the State Register of branches of foreign legal entities accredited on the territory of the Russian Federation shall indicate:
a) full and abbreviated (if necessary) name of the foreign legal entity in Russian;
b) the country of registration of the foreign legal entity;
c) name settlement where the branch of the foreign legal entity is located on the territory of the Russian Federation;
d) the period for which a branch of a foreign legal entity is accredited on the territory of the Russian Federation;
e) certificate number;
f) date of issue of the certificate.
The certificate is certified by the official seal and signature of the Chairman of the Registration Chamber.
The accreditation of a branch of a foreign legal entity and the issuance of a certificate are carried out for a period of up to 5 years. The term may be extended upon a written application from the management of a foreign legal entity made thirty days before the expiration of the accreditation period for a branch of a foreign legal entity accredited on the territory of the Russian Federation. At the same time, an annual report on the activities of the branch is also submitted to the accrediting body.
4. Refusal to accredit a branch of a foreign legal entity is possible only if there are goals and grounds specified in the law:
a) the documents required for accreditation have not been submitted;
b) provided inaccurate or incorrect information about a foreign legal entity;
c) the activities of a foreign legal entity are contrary to the current Russian legislation.
A branch may also be denied accreditation in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the country's defense and state security.
5. The activities of a branch of a foreign legal entity accredited on the territory of the Russian Federation shall be terminated:
a) upon the expiration of the accreditation period, if the foreign legal entity has not applied to the Chamber with a request to extend the accreditation;
b) in the event of liquidation of a foreign legal entity with a branch accredited in the territory of the Russian Federation;
c) by decision of a foreign legal entity that has opened a branch;
d) by a court decision;
e) if the activities of a branch of a foreign legal entity are contrary to Russian law.
Federal Law of 24.06.1999 N 119-FZ "On the principles and procedure for delimiting the subjects of jurisdiction and powers between the state authorities of the Russian Federation and the state authorities of the constituent entities of the Russian Federation" became invalid due to the adoption of the Federal Law of 04.07.2003 N 95-FZ "On Amendments and Additions to the Federal Law" On general principles organization of legislative (representative) and executive bodies of state power of the constituent entities of the Russian Federation. "Decree of the Government of the Russian Federation of December 21, 2000 N 990 (as amended on July 4, 2003)" On approval of the regulation on the Ministry of Economic Development and Trade of the Russian Federation "became invalid due to the publication of the Decree of the Government of the Russian Federation of August 27, 2004 N 443 "On the approval of the Regulation on the Ministry of Economic Development and Trade of the Russian Federation".
6. When accrediting a representative office of a foreign organization, the registering authority is provided with:
a) a power of attorney issued to a representative of a foreign company to negotiate the opening of a representative office of this company on the territory of the Russian Federation;
b) a written statement indicating: the name of the company, the time of its foundation, location, subject of activity, management and management bodies representing the company in accordance with the charter or by-laws, the goals of opening a representative office, information on business relations with Russian partners and on the prospects for developing cooperation.
c) the charter (in the event that, according to the legislation of a foreign state, the company does not have a charter, then a document confirming this legal provision issued by an authorized body is provided);
d) certificate of registration or an extract from the commercial register confirming the registration of the company;
e) the company's decision to open a representative office in the Russian Federation;
f) Bank certificate from the country of registration of the company, confirming its solvency;
g) regulations on the representation of the company;
i) a document confirming the legal address of the representative office (a letter of guarantee with a BTI mark or with a copy of a lease agreement or a certificate of ownership);
j) a card of information about the representation (issued by the Chamber, filled in on a typewriter in 2 copies)
List of documents required for the accreditation of representative offices foreign companies at the State Registration Chamber (approved by the State Registration Chamber of Russia) The text of the List has not been officially published.
7. Unfortunately, domestic regulations talk about the accreditation of branches (in rare cases - representative offices) of foreign legal entities only. However, the Law itself "On Foreign Investments in the Russian Federation" as a foreign investor names not only legal entities, but also organizations that are not, according to the laws of the country of origin. legal entities... It should be agreed that strict formulations regarding foreign entities whose activities are accredited in Russia, not only do not correspond to each other, but also do not take into account the differences between Russian and foreign legislation. For example, in Germany and Switzerland, general partnerships and limited partnerships are not legal entities. Thus, there is an urgent need to amend the domestic legislation.
Literature
1. Eremeishvili L.A. Some questions legal regulation foreign investment in the Russian Federation // State and law at the turn of the century. International law(materials of the All-Russian conference). M., 2000.S. 120.
2. The federal law on foreign investment in Russian Federation dated 9.07.1999 No. 1bO-FZ
3. Analysis of the efficiency of investment and innovation activities of the enterprise: Textbook. manual for students on econ. specialties / Krylov E.I., Vlasova V.M. - 2nd ed., Rev. and additional - M .: Finance and statistics, 2003.
4. Askinadze V.M. Investment strategies on the securities market, Publishing House Market DS, 2004, Book, 106 pages,
5. Business plan of the investment project: Tutorial... / Ed. V.M Popov ". M .: Finance and Statistics, 2001. Pp. 18-56,
6. Guskov NS etc. Investments. Forms and methods of attracting them. Moscow: Algorithm, 2001.384 p.
Over the past few years, Western investment funds have been leaving the Russian real estate market - against the backdrop of a downturn in the economy and sanctions, risks are increasing, according to the JLL report. As an example, she cites the Finnish Sponda, which back in 2013 announced its intention to sell Russian projects... This year, the situation peaked: Austrian Immofinanz closed a deal to sell five Moscow shopping centers with an area of over 500,000 sq. m. The American fund Heitman is curtailing its activities in Russia: it is completing the sale of the only asset here - the office tower of the Metropolis complex at st. m. "Voykovskaya" in Moscow. Atrium European Real Estate, which is listed on the Vienna and Amsterdam stock exchanges, has put up for sale the entire Russian portfolio of seven Park House shopping complexes in Moscow and the regions. Who comes instead of them?
In 2017 alone, Asian investors spent over $ 20 billion on property purchases in Europe and the United States, according to JLL. They did not bypass Russia either. The Chinese Fosun Group, together with the Russian Avica Management Company, bought the famous Voentorg at Vozdvizhenka, and the Arab Mubadala Development, together with The Russian Foundation direct investment - 84,000 sq. m of warehouses in PNK Park - Bekasovo in the Moscow Region and PNK Tolmachevo in Novosibirsk. The Chinese Vanke Group continues negotiations to buy up to 51% in one of the largest owners of Moscow offices - O1 Properties.
Asian and Middle Eastern funds, unlike European ones, have so far been less represented in the Russian real estate market, and their interest has been limited to one-off acquisitions, notes Olesya Dzyuba, head of the JLL department. The situation was aggravated by the 2014 crisis, when the real estate market stood up, adds Svetlana Kara, managing partner of Capital Global Partners: investors were interested in 30% more profitability than the market could offer.
Now their interest is so great that for the past two years, JLL has held every second meeting with companies from Asia and the Middle East, Dziuba notes. If in 2015 more than 95% of the $ 540 million of foreign investments accounted for Western capital, then almost 30% of the $ 700 million invested is Asian and Middle Eastern money, calculated Irina Ushakova from CBRE. Funds from Asia and the Middle East began to look closely at Russian assets as many years ago, Kara reminds, but transactions did not happen en masse due to long negotiations. For them Russian market unconventional - it took time to study it and find objects, confirms the partner Colliers International Stanislav Bibik.
Now, high-quality or even trophy assets can be purchased at a very attractive price, and their capitalization will definitely grow in the medium term, says Kara. The value of Russian assets is low, confirms Dzyuba. In addition, according to her, Chinese investors are trying to diversify their investments against the backdrop of slowing growth in the Chinese economy and the weakening of the yuan. In addition, Russia itself, against the backdrop of sanctions, is actively cooperating with the countries of Asia and the Middle East in many areas, she sums up. Therefore, for example, Fosun is not limited to the real estate market: now the company's priority is projects in the field of infrastructure, logistics, healthcare, Agriculture, food production, etc., lists the executive director of Fosun Russia Tanya Ann Ternavskaya. These investments will definitely be more substantial, she notes.