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- Resolution of the Government of the Russian Federation No. 302 of 16 May 2005 "On the Procedure for Making Settlements and Transfers Between Residents and Non-Residents When Granting of Commercial Credits by Residents to Non-Residents for the Term Longer than 180 Calendar Days as an Advance Payment Regarding Realization of Foreign Trade Activity".

In view of the absence of economic preconditions for further maintenance of the reservation requirements as an instrument of regulation of capital currency transactions, the above-mentioned normative acts of the Government of the Russian Federation had been deemed null and void, effective from 1 July 2006.

28. In response to further questions, the representative of the Russian Federation stated that the CBR had introduced five different categories of special accounts to be used by residents and non-residents while carrying out currency transactions. These related to granting and raising credits and loans and operations with securities denominated in Russian or foreign currency (including related payments, transfers and performance of obligations). Transfers and write-offs from these accounts had been subject to a different temporary reservation rate (varying from 3 per cent of the total transaction amount for 365 calendar days to 50 per cent for 15 calendar days) depending on the category of special account. The procedures for using special accounts and reservation requirements had been set up by normative acts of the CBR (Instructions No. 116-i of 7 June 2004, No. 114-i of 1 June 2004, Directive No. 1465-u of 29 June 2004). These requirements had entered into force on 1 August 2004. By its Directives No. 1540-u of 29 December 2004 and No. 1674-u of 29 March 2006, the CBR further reduced currency reservation rates. The representative of the Russian Federation noted that the prevalent macroeconomic situation in the Russian Federation characterized by a high level of currency reserves, absence of sharp fluctuations of an exchange rate of national currency, and stability of the balance of payments had created an opportunity for cancellation of restrictions stipulated by Federal Law No. 173-FZ (reservation requirements and requirements for using special bank accounts). Norms of Federal Law No. 173-FZ that had enabled the Government of the Russian Federation and the Bank of Russia to introduce reservation requirements had been in force until 1 July 2006. Thereupon, the Bank of Russia had issued the Directive No. 1689-u of 29 May 2006 "On Invalidation of Some Normative Acts of the Bank of Russia" according to which all normative acts of the Bank of Russia pertaining to reservation requirements had been deemed null and void from 1 July 2006. Norms of Federal Law No. 173-FZ regarding the requirement to use special bank accounts had been in force until 1 January 2007 with the view to ensure the smooth transition from the system of special accounts to the use of traditional accounts and to lessen the attendant burden on the authorised banks and their clients. To that effect, by its Directive No. 1688-u of 29 May 2006 "On Cancellation of the Requirement to Use Special Bank Accounts for Some Types of Currency Transactions and on Invalidation of Some Normative Acts of the Bank Of Russia", the Bank of Russia had allowed residents and non-residents to use during the transitional period between 1 July 2006 and 1 January 2007 both types of accounts (special and traditional). Starting from 1 January 2007, all normative acts of the Bank of Russia pertaining to the use of special bank accounts had been deemed null and void (paragraph 3 of the Directive No. 1688-u of 29 May 2006).

29. He added that pursuant to Article 21 (which had been in force until 1 July 2006) of Federal Law No. 173-FZ, residents had been bound to sell a part of their foreign currency earnings at a rate not exceeding 30 per cent of the amount on the internal currency market. The mandatory surrender requirement had been in force until 1 January 2007. The mandatory surrender requirement set by the CBR had been 25 per cent in 2003 (CBR Directive No. 1304-u of 9 July 2003) and had been lowered to 10 per cent in 2004 in an effort to further liberalize foreign exchange (CBR Directive No. 1520-u of 26 November 2004). The CBR had established the list of foreign currencies subject to obligatory sale through the internal currency market of the Russian Federation. Foreign currency revenues not subject to mandatory surrender requirements (established by paragraph 3 of Article 21 which had been valid until 1 January 2007) had included:

- the amount of foreign currency received by the Government of the Russian Federation, federal executive bodies authorised by the latter, by the CBR from transactions and deals being carried out by them (or on their behalf and/or at their expense) within the scope of their competence;

- the amount of foreign currency derived by authorised banks from bank transactions and other bargains with non-residents;

- residents' foreign currency earnings within the limits of the amount necessary to fulfil their obligations under credit and loan contracts signed with non-resident entities acting on behalf of foreign governments as well as with residents of OECD or Financial Action Task Force (FATF) country members for a period exceeding two years; and

- the amount of foreign currency derived from transactions involving the transfer by residents of external emissive securities (rights to external emissive securities).

30. Some Members noted that there had been three specific restrictions on the use of foreign exchange that had had a negative impact upon imports and had engaged WTO obligations. As the application of these restrictions had not been specifically approved by the IMF, these Members asked the Russian Federation to eliminate them by the date of its accession to the WTO and to enter a commitment not to have recourse to these measures after accession:

1. The 1 per cent tax that had been levied on the purchase of cash foreign currency operated as a de facto additional charge upon imports and had been inconsistent with the provision of Article III on non-discrimination, Article VIII on charges covering the cost of services rendered, and the requirements of Article XI of the GATT 1994, as well as Article 4 of the WTO Agreement on Agriculture, which envisaged elimination of unjustifiable restrictions to export.

2. The provision that purchase of foreign currency for making advance payments for imports required opening a deposit in the currency of the Russian Federation, as well as all formalities fees and requirements which were to be observed pursuant to the provision, tied up capital of importers that could be used to purchase additional imports. It was inconsistent with the non-discrimination provisions of Article III as well as the provisions of Article XI of the GATT 1994 and Article 4 of the WTO Agreement on Agriculture. They had been discriminatory also in respect of imports from more distant countries, and, thus, had not complied with the provisions of Article I of the GATT 1994. For these reasons, several Members urged the Russian Federation to consider the use of other methods to avoid illicit capital outflow.

3. The mandatory requirement to transfer 25 per cent of the currency earnings to the domestic currency that had applied to exporters of the production from the Russian Federation effectively increased import transaction costs, and had not complied with the requirement of Article XI of the GATT 1994 on the elimination of unjustifiable export restrictions. Furthermore, due to the fact that that requirement hindered the use of the currency earnings for subsequent entry, it had been also inconsistent with non-discrimination requirements of Article 3 of the WTO Agreement on Agriculture. Some Members further noted that the discussed requirement had been especially burdensome for smaller importers and could, thus, make trade payments more difficult.

31. In addition, Members noted in response to the statement by the representative of the Russian Federation that such measures had been necessary to ensure accumulation of foreign currency reserves, that these measures had been no longer needed. The foreign exchange reserves of the Russian Federation had been at record high levels, equivalent to 50 per cent of external debt and more than six months of import cover. Finally, the balance of payments position of the Russian Federation had improved dramatically since these controls had been imposed in 1998 during the financial crisis.

32. In response to comments by Members, the representative of the Russian Federation stated that the 1 per cent tax levied on the amount of foreign currency in cash purchased by natural persons (not applicable to juridical persons) established by Federal Law No. 120-FZ of 21 July 1997 "On the Tax Levied on Purchase of Foreign Currency Notes and Payment Documents in Foreign Currency" (with subsequent amendments) had been abolished on 1 January 2003 by Federal Law No. 193-FZ of 31 December 2002. As for the prior import deposit requirement, introduced by the CBR Directive No. 1223-u of 17 December 2002, it had been eliminated pursuant to the CBR Directive No. 1394-u of 18 March 2004 and had ceased to exist on 18 April 2004. Concerning the mandatory surrender requirement stipulated by Article 21 of the Law that had authorised the Bank of Russia to establish a maximum 30 per cent rate of obligatory sale of the amount of currency proceeds of residents through the internal currency market, this provision of the Law had ceased to exist on 1 January 2007. Already in 2006, the Bank of Russia had lowered surrender requirements down to zero per cent (Directive of the Bank of Russia No. 1676-u of 29 March 2006 "On Introducing Amendments to the Instruction of the Bank of Russia No. 111-u of 30 March 2004 "On the Mandatory Sale of a Portion of Currency Proceeds on the Domestic Currency Market of the Russian Federation"). As for concerns expressed earlier by some Members in relation to restrictions on the rights of residents to acquire and hold foreign exchange and to have accounts in foreign banks, the representative of the Russian Federation noted that these concerns had been addressed, since under the current foreign exchange legislation, there were no restrictions on the rights of residents to acquire and hold foreign exchange. The opening of accounts in foreign and national currency by residents and non-residents, on the territory of the Russian Federation, was carried out without any restrictions. As to the accounts of residents in the banks located outside the territory of the Russian Federation, starting from 1 January 2007, they were opened freely in any country, with the subsequent notification to the Federal Tax Service by the holder.

33. Replying to a Member who enquired about the requirement for Russian residents to obtain an advance approval from the Ministry of Finance of the Russian Federation to convert rubles into foreign currency to make related payments of more than 10,000 USD to a non-resident under a services contract, the representative of the Russian Federation noted that this measure, which had been introduced by the CBR Directive No. 721-u of 30 December 1999, had been abolished on 11 April 2004 pursuant to the CBR Directive No. 1388-u of 26 February 2004.

34. The representative of the Russian Federation confirmed that if the Russian Federation introduced restrictions on foreign exchange or payments such restrictions would be applied in conformity with WTO requirements. The Working Party took note of these commitments.

 

INVESTMENT REGIME

 

35. The representative of the Russian Federation stated that the current policy of his Government in this area was directed to creation of conditions to promote the expansion of domestic and foreign investments, and also to the formation of transparent and stable rules in the conduct of economic activities. He added that the MED of the Russian Federation was the authority responsible for formulating and implementing the investment policy of the Russian Federation.

36. The basic legal provisions relating to the activities of investors were set-forth in the Constitution of the Russian Federation adopted on 12 December 1993; the Civil Code Part One No. 51-FZ of 30 November 1994 and Part Two No. 14-FZ of 26 January 1996 (as last amended on 27 July 2010); relevant international treaties to which the Russian Federation was a party, and a number of other legislative acts: Federal Law No. 39-FZ of 25 February 1999 "On Investment Activity in the Russian Federation Pursued in the Form of Capital Investments" (as last amended on 23 July 2010), Federal Law No. 160-FZ of 9 July 1999 "On Foreign Investments in the Russian Federation" (as last amended on 29 April 2008), Federal Law No. 164-FZ of 8 December 2003 "On the Fundamentals of the State Regulation of Foreign Trade Activity" (as last amended on 2 February 2006), which provided guarantees for the protection of investors' rights and interests, and Federal Law No. 57-FZ of 29 April 2008 "On the Order of Investing by Foreign Persons in Companies Having Strategic Importance for the Ensuring of the Defence of the Country and the Security of the State".

37. In response to questions by some Members of the Working Party, he added that, in his view, the Land Code of the Russian Federation (Federal Law No. 136-FZ of 25 October 2001, as last amended on 22 July 2010), together with a number of legislative acts on "de-bureaucratization" (Federal Law No. 128-FZ of 8 August 2001 "On Licensing of Specific Types of Activity" (as last amended on 27 July 2010), Federal Law No. 129-FZ of 8 August 2001 "On State Registration of Juridical Persons and Individual Entrepreneurs" (as last amended on 27 July 2010), Federal Law No. 294-FZ of 26 December 2008 "On the Protection of Legal Entities' and Individual Entrepreneurs' Rights in the Case of Exercise of State Control (Supervision) and Municipal Control") and the Tax Code of the Russian Federation had significantly contributed to the formation of a favourable investment climate and facilitated the investment activity of Russian and foreign companies in the Russian market.

38. In response to further questions by some Members of the Working Party concerning conditions for attraction of foreign investors, the representative of the Russian Federation stated that Article 4.1 of Federal Law No. 160-FZ of 9 July 1999 ensured a legal basis for provision of national treatment for foreign investors' activity.

39. He further noted that, in accordance with the Federal Law No. 160-FZ of 9 July 1999, the property of a foreign investor or a commercial legal entity with foreign investment could not be subject to forced seizure, including nationalization, or requisition, except for the cases and reasons determined by a Federal law or international treaty of the Russian Federation. If nationalization of property took place, Article 8 of this Law provided that the value of the nationalized property would be reimbursed to a foreign investor. Foreign investors had the right to freely use the revenues and profits (which had been obtained from the investment made in the Russian Federation) in the territory of the Russian Federation for any purpose, including re-investment, as long as such use did not contradict the legislation of the Russian Federation. A foreign investor could acquire stocks and other securities of Russian commercial organizations and State securities, in accordance with the respective legislation. In some cases, investments and re-investments by foreign investors could be limited or prohibited under the Russian legislation, including in cases mentioned in paragraphs 47 and 49 of this Report.

40. One Member asked what compensation would be available to foreign investors in case of seizure and/or expropriation. The representative of the Russian Federation explained that the details concerning compensation available to foreign investors were provided for in the respective bilateral Agreements for the Promotion and Reciprocal Protection of the Investments referred to in paragraph 45 of this Report.

41. The representative of the Russian Federation further informed Members of the Working Party that foreign investors, other than those investing in non-commercial organizations, could transfer abroad unhampered their profits and other sums of money in foreign currency lawfully gained in connection with previously made investments. He noted that this right to transfer funds abroad did not affect any obligations a foreign investor may have under the relevant legislation of the Russian Federation, including tax legislation, criminal legislation, and legislation on bankruptcy. He also explained that non-commercial organizations could not, by definition, have profit-making as their principal goal, and that such organizations included those described in paragraph 1361 of this Report.

42. He also noted that, in accordance with tax and customs legislation of the Russian Federation, foreign investors could be granted certain privileges. Tax privileges, according to Article 150 of the Tax Code, comprised exemption from taxation of technology equipment and parts and spare parts for such equipment, imported into the customs territory of the Russian Federation, as a contribution to the assessed capital of companies. As to customs privileges, they were listed in the Government Resolution No. 883 of 23 July 1996 "On Import Duty and Value Added Tax Exemptions for Goods Imported by Foreign Investors as Contributions to Charter (Pooled) Capital of Enterprises with Foreign Investments" as following:

- Products imported to the customs territory of the Russian Federation as contribution to the assessed capital were free from customs duties under the condition that the products were: not excisable; related to the main productive funds; and, imported within the period defined by the constituent documents for assessed capital foundation.

43. In addition, the possibility of granting other customs and tax privileges to foreign investors performing priority investment projects (more than RUB 100 million) was provided for by Federal Law No. 160-FZ of 9 July 1999. The representative of the Russian Federation also explained that the Russian Federation was pursuing the establishment of special economic zones (SEZs) which were aimed primarily at fostering high technology industries; expanding sources of investments; and, promoting the development of tourism and transportation infrastructure. He noted that the Section of the Report "On Special Economic Zones" (starting at paragraph 1091) provided additional information on the establishment and operation of SEZs in the Russian Federation.

44. In response to further questions, the representative of the Russian Federation said, that some investment privileges had been granted in the field of the car and aircraft industries (those in the sector of aircraft had been abolished) which were described in the Section "Trade-Related Investment Measures" (TRIMs) (see paragraphs 1072 through 1087).

45. In response to other questions, the representative of the Russian Federation added that the Russian Federation accorded protection of foreign investment through international treaties. In particular, up to October 2010 the Russian Federation was a Party to 70 bilateral investment treaties (BITs) (49 of them were in force). In respect of investors and their investments, BITs contained, inter alia, provisions on national treatment and MFN treatment with exemptions; guarantees in case of expropriation and rules for compensation of losses; and, on free transfer of revenues and profits and dispute settlement procedures.

46. The representative of the Russian Federation added that a wide range of investment projects was open to foreign investors. Information on investment projects was widely available, inter alia, from the Chamber of Commerce of the Russian Federation and the Russian Union of Entrepreneurs and Industrialists (Employers). To obtain detailed information concerning investment projects in the Russian Federation, foreign investors could also make an inquiry to the Federal body of executive power responsible for investment policy (currently, the MED of the Russian Federation), regional bodies of executive power, and also trade representations of the Russian Federation abroad, providing information on the possible fields and scope of investment activity and other terms of possible investment projects.

47. In response to concerns of some Members of the Working Party related to restrictions for foreign investors, the representative of the Russian Federation replied that Article 4.2 of Federal Law No. 160-FZ of 9 July 1999 provided that restrictions of activity of foreign investors could be established only by federal laws and only to the extent, it would be necessary, to achieve the purposes of defending the bases of the constitutional order, moral, health, rights and legal interests of other persons and ensuring the defence and the security of the State. These provisions of Article 4 of the Federal Law No. 160-FZ of 9 July 1999 were in line with Article 55 of the Constitution of the Russian Federation and Article 1 of the Civil Code of the Russian Federation, which could also serve as a legal basis for establishment of restrictions of activity of all investors, both Russian and foreign. Security-related restrictions were applied, inter alia, by virtue of the Law of the Russian Federation No. 3297-1 of 14 July 1992 "On a Closed Administrative-Territorial Area" (as last amended on 27 December 2009), which set-forth certain restrictions including restrictions on entrepreneurial and economic activities; Article 15.3 of the Land Code of the Russian Federation which provided that foreign natural persons and foreign legal entities could not own land within the border territories designated by the President of the Russian Federation pursuant to the federal legislation on State Border of the Russian Federation and in other specially defined territories of the Russian Federation in accordance with Federal laws.

48. Some Members of the Working Party asked about the rules governing investments in sectors considered of strategic importance in the Russian Federation. They requested information about the nature of possible restrictions and the procedures for their implementation. Some Members expressed concerns about the lack of clarity of specific provisions pertaining to investments in the energy sectors and underlined the need to have clear and transparent rules providing stability and clarity.

49. In response, the representative of the Russian Federation explained that the Federal Law No. 57-FZ of 29 April 2008 "On the Order of Investing by Foreign Persons in Companies Having Strategic Importance for the Ensuring of the Defence of the Country and the Security of the State" established the general framework for regulation of foreign persons' participation in the capital of enterprises engaged in activities having strategic importance for national defence and security. This Federal Law covered 42 sectors. The screening procedures, intended to review transactions that may threaten the national security of the Russian Federation and thus not be approved, were applied when a foreign person intended to acquire control over such an enterprise. The thresholds when such control was considered to exist were established at the level of 50 per cent of participation in the capital of such a strategic enterprise or 10 per cent in case an enterprise was engaged in the use of land plots of federal importance. In cases where the intended participation in the capital of such an enterprise was by a foreign State, the thresholds for initiation of a screening review were reduced to 25 per cent and 5 per cent, respectively. The representative of the Russian Federation also explained that to implement this Federal Law, the Government of the Russian Federation had adopted Resolution No. 510 of 6 July 2008 "On the Governmental Commission on the Control of Foreign Investments in the Russian Federation". The Governmental Commission established by this Resolution decided whether a foreign investor shall be granted an authorization for the transaction to be accomplished. By the end of 2009, the Governmental Commission had considered more than 30 applications. Two refusals had been made so far. In accordance with Article 11 of the said Federal Law, the denial of approval by the Commission might be appealed in the Supreme Arbitration Court of the Russian Federation.

50. Subsequently, on 28 April 2008, the Law of the Russian Federation No. 2395-1 of 21 February 1992 "On Subsoil" was amended making foreign investments in the capital of the legal persons, engaged in activities within the subsoil land plots of federal importance, subject to the procedures of authorization established under Federal Law No. 57-FZ.

51. Some Members expressed concern about the potential conflicts between decisions taken as a result of the screening procedure, described above, and the commitments of the Russian Federation under the GATS. These Members asked how the Russian Federation would avoid such conflicts.

52. In response, the representative of the Russian Federation explained that, as followed from Article 15.4 of the Constitution of the Russian Federation, in case of conflict between the provisions of Federal Law No. 57-FZ of 29 April 2008 "On the Order of Investing by Foreign Persons in Companies Having Strategic Importance for the Ensuring of the Defence of the Country and the Security of the State" and the obligations under an international agreement of the Russian Federation, such as the GATS, the obligations under an international agreement would apply. The representative of the Russian Federation further explained that all legal acts taken pursuant to Federal Law No. 57-FZ, including decisions resulting from the screening process, must be in compliance with this Law and, as described above, with the international obligations of the Russian Federation.

53. The representative of the Russian Federation further explained that this Federal Law regulated issues connected with foreign investors or a group of persons including foreigners making investments in the form of purchasing stocks (shares) constituting the charter capital of companies having strategic importance for ensuring the defence of the country and the security of the State, as well as with making transactions resulting in foreign investors or a group of persons including foreigners establishing control over such companies. However, according to Article 2.6 of Federal Law No. 57-FZ, the Law did not apply to such issues if they were connected with making foreign investments and were covered by duly ratified international agreements with participation of the Russian Federation. The issues connected with making foreign investments in the sphere of technical military cooperation of the Russian Federation with foreign States were regulated in accordance with the legislation of the Russian Federation on technical military cooperation.

54. In reply to the questions of some Members of the Working Party, the representative of the Russian Federation added that, in accordance with the provisions of the Law of the Russian Federation No. 4730-1 of 1 April 1993 "On State Border of the Russian Federation" (as last amended on 31 May 2010), the boundary territories were defined within border zones and/or within wards adjacent to them. The border zones were, as a rule, established within the territory of 5 kilometres (within a ward, city) adjacent to the State Border on land, to the sea coast of the Russian Federation, to the Russian banks of the border rivers, lakes and other basins and within the territories of the islands of these basins.

55. Noting that "as a rule", border zones were established within 5 kilometres adjacent to a border, a Member asked if there were any exceptions to this "rule" for determining border zones. In response, the representative of the Russian Federation explained that the bounds of each border zone were established by the Orders of the Federal Security Service of the Russian Federation No. 75 - 85 of 2 March 2006, No. 149 - 157 of 14 April 2006, No. 237 - 250 of 2 June 2006, No. 275 - 286 of 16 June 2006, No. 193 of 17 April 2007, No. 273 of 27 May 2007, No. 355 of 10 July 2007, and No. 473 of 20 September 2007.

56. In response to the questions of some Members of the Working Party related to rights of foreigners concerning possession of land, the representative of the Russian Federation stated that the Land Code of the Russian Federation (Federal Law No. 136-FZ of 25 October 2001) stipulated conditions of use, purchase and sale of land and provided that foreign nationals and foreign legal entities could acquire property rights and leasehold over land, with the exception of cases established by the land legislation of the Russian Federation (mentioned in paragraph 47 of this Report).

57. In response to further questions, the representative of the Russian Federation noted that, in accordance with Article 35 of the Land Code, owners of buildings, constructions and/or facilities located on a land plot owned by another person or the State, could benefit from a pre-emptive right of purchase or lease in respect of such land plot, unless the Decrees or Resolutions of the President of the Russian Federation prohibited the purchase or lease of those lands. This rule was applied regardless of national identity.



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