On May 14, 2009 Federal Law No. 74-FZ (dated April 28, 2009) (the Law) came into force and introduced new rules on access of foreign securities to the Russian securities market by amending Federal Law No. 39-FZ (“On the Securities Market”) and Federal Law No. 46-FZ (“On the Protection of Investors’ Rights and Legal Interests”).
Previously, securities issued by foreign entities could be placed for circulation on the Russian market on the basis of either an international treaty or a cooperation agreement between the Federal Service for the Securities Market (FSFM) and the respective authority of the country of the foreign issuer.
The Law now sets forth new rules and procedures for access of foreign securities to the Russian market.
Foreign securities must be qualified as securities by the FSFM and should have an international securities identification code and international financial instruments classification code. In order for foreign securities to be qualified as “securities” under Russian law, an issuer of foreign securities must meet one of the following criteria:
a) It is established in any of the member states of the Organization for Economic Cooperation and Development (OECD), the Financial Action Task Force (FATF) or the European Council Committee of Experts on the Evaluation of Anti-Money Laundering Measures and Financing of Terrorism (MONEYVAL);
b) It is established in a state in which the financial markets authority has a cooperation agreement with the FSFM; or
c) It is recognized by the Russian Federation as an international financial organization (the Law sets forth specific rules and requirements for securities issued by international financial organizations).
Also, foreign states (or their central banks) that meet any of the above requirements can be recognized as issuers of foreign securities under Russian law.
In addition, foreign securities may be admitted for placement on the Russian market subject to registration of the prospectus for such securities by the FSFM.
The rules for access of foreign securities to the Russian securities market may differ depending on whether the securities have already been listed abroad:
a) If the securities have already been listed on a non-Russian stock exchange, the decision on their access to the Russian securities market is made by a Russian stock exchange. Either a foreign issuer or broker who prepared the prospectus for the respective foreign securities must apply for such decision. The result of the decision will depend on whether the relevant non-Russian stock exchange is approved by the FSFM and whether after such listing the securities have been publicly offered in accordance with the law of the state of such stock exchange.
Whenever the securities are excluded from the listing of their foreign stock exchange (i.e., de-listed), or the relevant stock exchange is excluded from the FSFM list, any trade in such foreign securities on the Russian securities market terminates.
b) If the securities have not been listed on a non-Russian stock exchange, a decision on their access to the Russian securities market is made by the FSFM. The Russian stock exchange that proposes to list such securities must apply for such a decision. Access may be allowed only if the foreign securities could be publicly offered under the law of the state of the foreign issuer, and only after the FSFM has assessed the relevant liquidity and investment risks. If the FSFM approves the issue, the prospectus for the foreign securities is registered by the FSFM in accordance with the specific requirements set forth by the Law. After the foreign issuer discloses all information required by law and notifies the FSFM that it has placed the securities, such securities may officially be circulated on the Russian securities market.
As the Law has recently been adopted, the FSFM has yet to develop any regulations interpreting the Law. .