Lidings client seminar 2013 (in English)

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

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


PRACTICE AREAS
BANKING AND FINANCE
CORPORATE AND M&A
DISPUTE RESOLUTION
EMPLOYMENT
GOVERNMENT RELATIONS
INTELLECTUAL PROPERTY
REAL ESTATE AND CONSTRUCTION
TAX AND CUSTOMS


* 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

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


“Foreign Business Advisory Law Firm of the Year in Russia”
ACQ Finance, 2010

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


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

CORPORATE MATTERS


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.


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


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

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


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


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


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


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)


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


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

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


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


if the transaction violates the requirements of the law or
other legal act

the transaction is not voidable under the law

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


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


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


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


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


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

The term of the power of attorney can be unlimited
(formerly – 3 years). If no term is indicated it is valid within
1 year

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


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


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


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



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


Effect of the transaction involving a complex item extends to
all of its items, unless otherwise provided by the terms of
the transaction


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)



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:
-

-


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


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


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

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:

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

PLANNED AMENDMENTS
TO THE CIVIL CODE

INSTITUTIONS SIMILAR TO COMMON
LAW INSTITUTIONS
GUARANTEE OF DAMAGE
COMPENSATION

Analogue to

“Indemnity”


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

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


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


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


CONSIDERATION OF CASES INVOLVING
FOREIGNERS


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


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


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


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

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


Anti-suit injunctions made by foreign state courts against case
consideration in Russia are non-enforceable

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.


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

Proceeding in foreign court/arbitration complied with the
requirements of independence and impartiality of judges/arbitrators

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


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

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

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


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

patent invalidation
identification of a patent holder, etc.

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


authority

in

the

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


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



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


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


RESPONSIBILITY OF EMPLOYERS


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.

•

notification form on leave without pay for more than one
calendar month during the year

•

Min. = 14 days

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:
•

On officials – RUR 35,000 to RUR 70,000

•

On legal entities – RUR 400,000 to RUR 1,000,000


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



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



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


The law establishes limits to the powers of the works council:
its competence should not include matters governed by corporate body
and trade unions

CUSTOMS UNION


CUSTOMS UNION

ECONOMIC INTEGRATION

Customs Union + Eurasian Economic
Commission
EU ?

United Customs Territory

Eurasian Economic Space


EURASIAN ECONOMIC
COMMISSION
Supreme Eurasian Economic Counsil
(Heads of States level)

Eurasian Economic Commission

EEC Collegium
(competent executive bodies)


EEC Counsil
(Igor Shuvalov representing Russia)

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)


CUSTOMS UNION

United Customs Territory

Uniform Customs Tarriff

Uniform Customs Code


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)


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
•

Compliance Confirmation

•

Accreditaion procedures for the certification authorities and
laboratories

CUSTOMS UNION
Prospects for elaboration of the uniform
„rules of the game“ in the united economic space
•

•

Unification of Standards and Guidelines
(intensive development)

•


New technical regulations (extensive
development)

Anything changed following Russia‘s accession
to the WTO?

*

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


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


CONTACTS

Lidings client seminar 2013 (in English)

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