We would like to present the overview of the most important legislation changes in customs for 2016.
The year 2016 saw a host of legislative changes with clear and immediate implications for the finance market. Russian legislators targeted a wide range of topics, from factoring to debt collection and beyond. Dentons Banking and Finance lawyers have compiled this brief overview of the changes we expect to have the greatest impact this year.
Default and statutory interest accrual at the Central Bank key rate
Federal Law No. 315-FZ on Amendments to Part One of the Civil Code of the Russian Federation and Certain Legislative Acts of the Russian Federation of July 3, 2016
Lawmakers reinstated the old interest-accrual procedure in connection to a party’s unlawful use of another’s funds (so-called “default interest”). Though 2015 amendments to the law had pegged default interest to local average retail deposit interest rates, following the 2016 changes, default interest once again accrues at the effective Central Bank key rate for the relevant period. The law also allows parties to agree to another rate.
Court and legislative practice have both illustrated problems arising out of the accrual of so-called “statutory interest.” Whereas previously the Central Bank refinancing rate was the default for statutory interest on commercial obligations, now, interest accrues at that rate only if (a) the parties agree to it, or (b) specifically required by statute. Speaking from a practical perspective, we expect this amendment to simplify contractual relations. For example, if a deal’s commercial terms do not envisage an interest charge for the legitimate use of money, the parties will no longer have to drop in a provision ruling out the application of the statutory interest rules.
The Central Bank key rate (the rate at which the Central Bank provides and withdraws liquidity on an auction basis, for up to seven days) is currently equal to 10% annually.Readers will recall that as of January 1, 2016, the refinancing rate is equal to the key rate introduced by the Central Bank in 2013.
Collectors in law
A controversial but highly-anticipated law on money collectors (the Law on Money Collectors) was adopted in June 2016.1 This law regulates the activities of creditors and collectors, which are defined as organizations representing interests for the recovery of individuals’ overdue debts. Proponents of the law pointed to factors like banks’ and collectors’ arbitrary collection actions, as well as increased collection agency activity following the rise in loan defaults.
At first glance, the new legislative initiatives should clarify the regulatory framework with respect to creditors’ interactions with delinquent debtors. Such individuals often belong to socially vulnerable groups in need of additional protections. On the other hand, ignoring creditors’ legal interests could substantially shift the balance of interests in favor of unscrupulous borrowers. In any case, the effects of the Law on Money Collectors will become evident in the longer term, as law enforcement practice develops.
The Law on Money Collectors includes a licensing mandate applicable to any agency engaged in collection activities (at a cost of RUB 100,000), and a requirement that the agency be recorded in a state registry. It also bars, among others, individuals with unexpunged or outstanding convictions for economic crimes or crimes “against a person” from engaging in collections.
Further, the law features collection guidelines, as well as limits on certain collector actions. For example, collectors are prohibited from using physical force, threatening or harming debtors’ health or property and putting psychological pressure on or misleading a debtor. The law also sets out a mechanism through which the debtor can refuse to interact with the creditor and the collector. However, the refusal’s effectiveness is contingent on the creditor’s or collector’s acknowledgment of receipt. Note that the Law on Money Collectors does not apply to debts of individual entrepreneurs.
Banks simplify the debt collection process
Amendments to the Fundamentals of RF Legislation on Notaries Public No. 4462-1 of February 11, 1993 (the Fundamentals) entered into force on July 15, 2016. The amendments expand the types of agreements based on which debts may be collected without recourse to a court. Instead, a notary’s writ of execution is now enough to authorize the collection of debts under the following:
- notarized transactions setting forth monetary or asset transferal obligations; and
- credit agreements where:
- the creditor is not a microfinance organization; and
- the parties have agreed, in the credit agreement or an addendum thereto, to allow collection according to a notary’s writ of execution.
The notary’s writ of execution enlists court bailiffs to enforce collection without necessitating recourse to a court. However, creditors will still have to file in court for the enforced recovery of penalties and fines, as opposed to the simplified procedure for collecting principal and interest.
The simplified procedure applies exclusively to credit agreements, meaning that non-bank lenders’ loan agreements must be notarized in order for the procedure to apply.
The amendments affect agreements concluded after July 15, 2016. Credit agreements concluded earlier may also be affected, if they permit changes to the collection procedure by addendum to the original agreement.
Notably, the new rule makes no exception for consumer credit agreements. Further, application of the simplified collection procedure to such agreements has no effect on the requirements of Federal Law No. 353-FZ on Consumer Credit (Loan) of December 21, 2013, in particular:
- the special terms of the consumer credit agreement must expressly allow collection under a notary’s writ of execution in order to permit that method of collection, but the consumer must be guaranteed the right to refuse the inclusion of such a term in the agreement. The consumer’s decision must not affect the lender’s ultimate decision on whether to grant the loan; and
- a lender may only demand early repayment of the entire loan amount and/or termination of the credit agreement if it is in compliance with the requirements concerning the duration of the delay and mandatory notification of the borrower.
In order to make a writ of execution to a consumer credit agreement, the notary must be provided with the general and special conditions of the agreement bound as a single document.2
Rospotrebnadzor has already expressed concern about the new rule, promising to closely monitor its practical application.3
Regulation of the payment sector
As of July 1, 2016 any newly registered non-bank credit institution (with the exception of central counterparties) must maintain charter capital of at least RUB 90 million.4 Meanwhile the threshold for newly registered central counterparties is RUB 300 million. The amendments in question set similar capital requirements for existing non-bank credit institutions. Where an existing non-bank credit institution’s charter capital amount fails to satisfy the new regulatory requirements, it must maintain charter capital at least at the level registered as at July 1, 2016. These institutions have until July 1, 2019 to increase their capital to the amounts required under the amendments.
Additionally, the minimum capital requirement for so-called “payment non-bank credit institutions” (those non-bank credit institutions licensed to handle transfers without the opening of bank accounts) was raised to RUB 90 million from RUB 18 million.
According to Deputy Finance Minister Alexei Moiseev, the new capital requirements are hoped to facilitate increases to the capitalization of Russia’s banking sector while boosting its competitiveness and efficiency, and also shore up Russian credit institutions’ financial stability.5
Amendments to the Law on the National Payment System requiring that payments within Russia also be processed there entered into force on July 1, 2016. They had been adopted in 2014.
Most international payment systems operators working in Russia are already compliant with the law, having taken the necessary steps to involve the domestic payment infrastructure (the National Payment Card System (NSPK6)).
A ban on the cross-border transmission of information connected to funds transfers within the National Payment System also went into effect. However, this ban does not apply to cross-border funds transfers or to cases where the information is required to investigate claims by a payment system’s client that their account was used without their consent.
Following amendments to the Law on the National Payment System and Federal Law No. 126-FZ on Communications of July 7, 2003, employers may use funds meant to pay for their employees’ mobile phone services to increase the balance on an employee’s “corporate mobile telephone” account. The term “individual communication services user” was introduced in order to distinguish between individuals using communications services for personal reasons under separate service contracts, and individuals using communications services provided to legal entities for work purposes.
Now, employees can use the “corporate mobile telephone” account to pay for parking, luggage services, and highway tolls. However, this payment method is available subject to certain conditions. In addition to the appropriate contracts, the employer must:
- provide the communications service provider with information about the relevant individual employee-users; and
- separately account for funds deposited with the communications service provider for the purposes of increasing the individual employee-user’s electronic funds balance.
The payment for parking, highway tolls and baggage services has also been simplified: the amount of information on fixed-fee payments that must be sent to subscribers has been reduced. If the individual already consented to a fee for increases to the electronic funds balance (or if no such fee is charged), the communications service provider need not provide the individual with information required in other cases (for example about balance increases, fees, etc.).
One change introduces a ban on entry into agreements to accept payments from individuals if the paying party is to make cash settlements without a cash register. These new uniform requirements are set out separately but in parallel in the Law on Cash Registers, the Law on the National Payment System and the Law on Payment Agents.
Particularly significant changes in 2016 to the Law on Cash Registers include:
- a requirement that receipts must be generated electronically at the time of payment (including for online payments);
- a requirement that fiscal data be transmitted to the tax authorities in real time (as opposed to voluntary submission prior to February 1, 2017); and
- manufacturers of cash register equipment and “fiscal storage devices” must provide the tax authorities with information on each individual manufactured unit for registration purposes.
Cash register users must contract with a fiscal data operator, who in turn submits the necessary information to the tax authorities. The Law on Cash Registers sets out various guidelines for fiscal data operators, including a requirement that they hold the applicable services permit.
Administrative penalties for violations of the Law on Cash Registers have also been increased. One example is a fine for not using a cash register, with the amount variable and tied to the size of the transaction. Legal entities can be fined between 75% and 100% of the amount not handled through a cash register, but with a statutory minimum of RUB 30,000. Officers or individual entrepreneurs will be fined at a rate of 25-50% of the transaction amount, but with a respective minimum of RUB 10,000.
Officers can be disqualified, and companies and individual entrepreneurs face suspension of their business for repeated violations.
Over the course of 2016, the Central Bank prepared user guidelines for the national payment system. The recommendations cover topics including money transfers without the use of a bank account, and liquidity assessments of payment system and infrastructure operators. The Central Bank also recommended that credit institutions instruct clients on how to use electronic funds, and gave specific guidelines on how to do so (for example, by giving clients an actual instruction sheet).
MFOs that were registered and operational before that date were automatically designated as MCCs. However, until March 28, 2017 they, like all new MFOs, must ensure that their names state the type of MFO (MFC or MCC) and their form of incorporation. Existing MFOs that fail to comply with this requirement will be removed from the state MFO registry.
The main difference between an MCC and an MFO is in their functional capabilities, which are broader for an MFC. For example:
- while an MFC may raise up to RUB 1,500,000 from both legal entities and individuals who are not participants and shareholders of the MFC, an MCC may borrow money only from individuals who are its founders; and
- MCCs can issue microloans of up to only RUB 500,000 to individuals, while the limit for MFCs has been increased to RUB 1,000,000.
Additionally, the overall corporate microloan financing limit to legal entities or individual entrepreneurs has been increased. Now any MFO may grant corporate microloans of up to RUB 3,000,000, up from RUB 1,000,000.
The microlending amendments also feature new limits on the unilateral adjustment of – and the procedure for determining – interest rates, fees and validity periods of microloan agreements with individual entrepreneur or legal entity borrowers.
Other affected areas include the rules for obtaining the correct MFO status, procedures for the forced liquidation of MFOs and settlement of claims by creditors of MFOs.
In mid-2016, the Central Bank approved a new procedure relating to MFO reserve funds for use in hedging against credit losses.
The amount of reserves to be set aside for hedging purposes with respect to possible credit losses is calculated according to:
- the amount of principal and interest accrued on a given microloan
- the amounts of exposure to receivables acquired under the microloan agreement and any interest claimed on that exposure (taking into account the group and subgroup of debt); and
- the loan’s delinquency status.
The procedure provides a universal formula for determining the reserve amount, accounting for the specifics of the microloan agreement on whose basis the reserve is being formed.
The Central Bank set out new rules and procedural updates on the maintenance of the MFO registry.
The new Central Bank Instruction, together with the MFO Law, introduces additional requirements for assigning the proper MFO status.
In particular, in addition to documents set out in the MFO Law, the following will also be required:
- a statement confirming capital in the amount required under the MFO Law; and
- a statement confirming the sources of funds contributed by participants and shareholders of the MFO.
Changes to the registration procedure include a new application form for entering changes to a company’s entry in the registry, an electronic document-filing option and a procedure facilitating the removal of information about a given company from the registry.
Publication of financial and security transaction information
As of October 1, 2016, companies face new requirements with respect to information to be entered into Russia’s Unified Federal Register of Information about Facts of Activities of Legal Entities, Individual Entrepreneurs and other Subjects of Economic Activity (the Register).9 In addition to information about the results of any mandatory audits and the contents of financial and accounting statements (where required), companies must also include:
- information about any independent guarantees, including the beneficiary’s and principal’s details and the essential terms (the Central Bank does not consider such information to be a bank secret);
- information about the entry into any factoring agreements between legal entities or individual entrepreneurs including the date of the agreement, claim grounds and amount, the date the claim arose or the terms of any future monetary claim, and the details of all parties to the agreement; and
- information about any financial leasing agreements, including the number and date of the agreement, the term of the financial lease (with specific dates), party details and the property that is the subject of the financial lease.
Readers will recall that legal entities and individual entrepreneurs have three business days from the date the fact arises to enter the information to the Register, at a fee of RUB 805 per submission. The required information may be transmitted electronically only, and must include an e-signature. Subscription agreements with the Register’s operator provide savings for entities transmitting large amounts of information on a regular basis.10
These developments are likely to complicate leasing and factoring companies’ operations considerably. Moreover, their position will be complicated by the new required disclosure of information about day-to-day operations, which may constitute trade secrets. However, according to Central Bank clarifications,11 compliance with these requirements will not be considered wrongful, including as a breach of any relevant nondisclosure policies.
The person entering the information to the Register will be responsible for its accuracy. However, so far there are no rules envisioning any liability for failure to comply with the Register’s information entry requirements. At the same time, the authorities will likely rely on current Administrative Code rules on the failure to disclose material information on financial markets. We anticipate that this issue will be resolved when the new information entry mechanism is set up.
Russian Presidential Decree No. 41 of February 2, 2016 abolished the Federal Service for Financial and Budgetary Oversight (Rosfinnadzor), which had been tasked with overseeing compliance with Russian currency controls. The Kremlin distributed Rosfinnadzor’s responsibilities as follows:
- to the tax authorities:
- compliance by residents.12 and nonresidents with Russian currency legislation, except with respect to foreign trade contracts unrelated to the transfer of goods; and
- non-bank residents’ compliance with requirements to notify tax authorities of the opening, closing and changes of details of accounts at banks situated outside the Russian Federation, and to report on the cash flows of such accounts; to the customs authorities: control and supervision of currency transactions related to the movement of goods in and out of Russia.
- The Decree also clarified that the Central Bank is to oversee compliance with currency legislation by both credit institutions and others including, for example, professional securities market participants, management companies and MFOs.
In April 2016, the statute of limitations for administrative penalties for currency law violations (including with respect to agency regulations) was increased to two years from one.
The change was necessitated by a conflict between reporting requirements and currency-related process limitations. Prior to the change, a resident could file a report on the previous year’s cash flows in foreign bank accounts clearly showing violations of Russian currency law, but the one-year statute of limitations would prevent the currency control authority from taking any action.
As the increased statute of limitations applies to both individuals and legal entities, individual residents now face an increased risk of administrative sanctions.
Russian law already provided significant fines (potentially including full forfeiture) for the failure to timely repatriate funds earned abroad. Now, lawmakers have added another fine equal to 1/150 of the Central Bank key rate per day on the amount of funds not repatriated. The law uses “and/or” when distinguishing the penalties, so courts could conceivably levy both.
We read this “alternative” fine as a more lenient penalty to be applied to residents who repatriated funds but missed the deadline. The stricter penalty, which may be a fine of (a) 75-100% of the amount not repatriated, or (b) 75-100% of the amount not repatriated plus a daily fine of 1/150 of the Central Bank key rate as described in the paragraph above, will apply to residents who have not repatriated the funds at all.
Central Bank inspection of pledged property
Amendments to the Law on Banks and Banking13 and the Law on the Bank of Russia 14empower the Central Bank to conduct expert appraisals of property pledged to credit institutions by legal entities and individual entrepreneurs. For example, the Central Bank can now verify the pledged property’s existence and legal status, as well as its value (applying federal appraisal standards) in order to evaluate a credit institution’s assets and liabilities.
Credit institutions are required to assist the Central Bank in collecting the required information – including by stipulating methods of doing so in their bylaws.
Additionally, credit and pledge agreements concluded by credit institutions must place an obligation on borrowers and pledgors to facilitate inspection of the pledged property by both the lender and the Central Bank. This requirement applies retroactively.
Changes in AML/FT legislation
Amendments to Federal Law No. 115-FZ on Combating Money Laundering and the Financing of Terrorism of August 7, 2001 (the AML/FT Law) entered into force on December 21, 2016. The amendments require that companies collect, store for at least five years and update at least annually information about their beneficial owners. Readers will recall that the AML/FT Law defines a beneficial owner as the individual who ultimately, directly or indirectly, holds more than 25 percent participation in the capital of a legal entity, or who can to control its actions. However, the company’s sole executive body may also be deemed the beneficial owner.
Legal entities must disclose this information in their financial statements and at the request of the competent state authorities.
The new requirement was introduced to increase companies’ transparency in a bid to reduce their potential involvement in illegal activities including money laundering and the financing of terrorism. However, it exempts:
- state and local governmental authorities;
- companies that are 50%+ state-owned;
- international organizations and foreign states;
- securities issuers admitted to organized trading;
- companies listed on Central Bank-approved foreign stock exchanges; and
- foreign unincorporated structures who lack a beneficial owner or executive body by virtue of their organizational form.
Fines for the failure to comply with the requirements on information about beneficial owners can reach RUB 40,000 on officers and RUB 500,000 on companies.
Banks may now use a simplified procedure to identify and report to the AML/FT regulator on individual clients engaging in cash exchange transactions, if the transaction is worth less than RUB 100,000 or its equivalent in the foreign currency. If the transaction amounts to RUB 40,000 or less, the bank need not identify the client or report on the transaction at all.
Previously, all exchange transactions worth more than RUB 15,000 had triggered reporting requirements.
As of September 1, 2016, credit institutions can also rely on a simplified procedure to identify clients at account opening and when granting consumer credit. For example, potential clients can now submit the required information electronically. Corporate clients also no longer need to confirm their state or tax registration: the credit institution can do so by looking the client up on the relevant state registries, online.
However, corporate clients must now disclose information about their participants to organizations handling transactions involving cash and other assets.
Credit institutions and MFOs may now outsource the identification of individuals for the purposes of entry into consumer credit agreements to other credit institutions.
Also, with some exceptions, credit institutions can now open a bank account for a Russian company without the company’s individual representative being present, if:
- the individual representative is already a client of the credit institution and as such has already been personally identified; and
- information about the person is regularly updated.
The AML/FT Law now also applies to transactions with foreign unincorporated structures if they become clients of so-called “payment operators.”15
For the purpose of the AML/FT Law, a foreign unincorporated structure is one that is (i) organized in accordance with a foreign law; (ii) without forming a legal entity (for example a fund, partnership, trust or other collective investment or fiduciary management structure); and (iii) permitted by its charter to engage in income-earning activities for its participants or other beneficiaries.
As of January 10, 2016, payment operators must take reasonable steps to identify foreign unincorporated structures’ beneficial owners.
As of September 1, 2016, “person controlling the debtor” refers to a person who, within three years of a court’s receipt of a bankruptcy application, can or could give the debtor binding instructions or otherwise determine its actions, for example due to a family or legal relationship or official position.
The list of circumstances resulting from the person controlling the debtor’s action or inaction, and which are seen as evidence of insolvency, is expanding. It now includes third-priority creditors’ claims to principal arising as a consequence of the debtor’s or its chief executive officers’ criminal, administrative or tax liabilities, where the liability amount exceeds 50% of total third-party creditors’ claims when the register of creditors’ claims is closed.
As of December 21, 2016, receivers must complete an inventory of assets within three months of the date a receivership is instituted. Previously there was no such time limit, which drew out the bankruptcy process considerably. Receivers may petition the courts for a longer period on the basis of a debtor’s quantity of assets.16
Debtors may now settle creditors’ claims by transferring assets to the creditor – if claims for current payments and first- or second-priority claims have already been settled. The value of the assets in question must be determined by a creditors’ meeting and be at least 50% of the minimum sale price stated in the public sale notice. Previously, asset appraisal was not regulated in this context.
However, features of some credit arrangements trigger statutory requirements that creditors’ claims be settled exclusively by monetary payment. In such cases, any accord and satisfaction agreement must provide that funds sufficient to settle such claims be deposited in a special account of the debtor. The amount of funds is proportional to the relevant creditor’s claims.
As of December 21, 2016, financial organizations can refer to a simpler procedure for identifying the period during which transactions may be invalidated. The period now runs from the sooner of (a) the date the Central Bank appoints a temporary administrator, or (b) the date a commercial court approves the organization’s bankruptcy application.