FEDERATION TO THE WORLD TRADE ORGANIZATION 51 страница

1392. In response to these questions, the representative of the Russian Federation confirmed that, with respect to the banking sector, the same charter capital requirements applied to all banks in the Russian Federation, except the CBR, including State-owned banks and private banks, and that charter capital requirements would be applied on a non-discriminatory basis. He further confirmed that the CBR had the discretion to take certain limited actions, if foreign investments in the banking sector of the Russian Federation exceeded the 50 per cent ratio calculated according to the following formula:

(i) The numerator would consist of the total amount of foreign (non-resident) investments in the charter capital of banks in the Russian Federation, excluding all foreign investments in banks:

(a) made prior to 1 January 2007;

(b) privatized after the date of accession of the Russian Federation to the WTO; and

(c) that accounted for 51 per cent or more of charter capital of any individual bank, and made after 1 January 2007, and had been in place for a period of 12 years or more, unless thereafter annually, the CBR determined that it was necessary to continue to include such foreign investments in the calculation of the 50 per cent ratio and made such determination public.

(ii) The denominator would consist of the aggregated amount of total charter capital of banks in the Russian Federation (including all foreign investments, prior to 1 January 2007, all foreign investments in banks privatized after the date of accession of the Russian Federation to the WTO, and any foreign investment made after 1 January 2007, including that in place for a period of 12 years or more, that accounted for 51 per cent or more of the charter capital of any individual bank).

The representative of the Russian Federation confirmed that the ratio would be calculated in January of each year on the basis of the capital in existence at the end of the prior year, and that the ratio and supporting calculations would be made publicly available. He further confirmed that Federal financial authorities had the discretion to take certain temporary actions affecting foreign investments in the banking sector, if foreign investments exceeded the 50 per cent ratio. Any such action would follow notice and consultations with interested persons, and would require that a determination that the ratio had been exceeded due to new foreign investments, rather than due to a contraction of total capital or adjustments in charter capital, was made public. In such circumstances, the only actions authorities could take would be to: (i) stop issuance of licenses for new foreign-invested banks; (ii) prohibit the increase of charter capital of existing Russian banks contributed by foreign investors (non-residents); and (iii) prohibit the alienation (sale) of shares of existing Russian banks to foreign investors (non-residents). He confirmed that only where the institution involved conducted commercial banking as its principal line of business, would it be subject to these adverse actions. For example, a Russian juridical person with a commercial banking licence whose principal line of business was as a broker dealer would not be subject to these adverse actions. The representative of the Russian Federation further confirmed that the Federal financial authorities would not be able to apply measures that would, for example: (i) prevent increases in the operational capital of existing foreign-invested banks; (ii) prevent expansion of the scope or volume of business of such foreign-invested banks; or (iii) prevent foreign-invested banks from opening internal branches (as distinct from direct branches from abroad) within the Russian Federation. Should the Russian Federation choose to exercise its discretion and, subsequently, the ratio fell below 50 per cent, the Russian Federation would withdraw the temporary action. The Working Party took note of these commitments.

1393. With respect to the insurance sector of the Russian Federation, the representative of the Russian Federation confirmed that charter capital requirements would be applied on a non-discriminatory basis. He further confirmed that the Federal regulatory authorities had the discretion to take certain limited temporary actions, if foreign investments in the insurance sector of the Russian Federation exceeded the 50 per cent ratio calculated according to the following formula:

(i) The numerator would consist of the total amount of foreign (non-resident) investments in the charter capital of insurers/re-insurers in the Russian Federation, excluding all foreign investments in insurers/re-insurers:

(a) made prior to 1 January 2007;

(b) privatized after the date of accession of the Russian Federation to the WTO; and

(c) that accounted for 51 per cent or more of charter capital of any individual insurer/re-insurer, made after 1 January 2007, and had been in place for a period of 12 years or more, unless thereafter, annually, the Federal financial authority determined that it was necessary to continue to include such foreign investments in the calculation of the 50 per cent ratio and made such a determination public.

(ii) The denominator would consist of the aggregated amount of the total charter capital of insurers/re-insurers in the Russian Federation, including all foreign investments, prior to 1 January 2007, foreign investments in insurers/re-insurers privatized after the date of accession of the Russian Federation to the WTO, all foreign investment in internal branches, and foreign investment made after 1 January 2007, that had been in place for a period of 12 years or more and that accounted for 51 per cent or more of the charter capital of any individual insurance/re-insurance company.

The representative of the Russian Federation also confirmed that, after nine years from the date of accession of the Russian Federation to the WTO, capitalization of branches of foreign insurers/re-insurers would be factored into the total amount of foreign investments in the insurance sector of the Russian Federation and thus would be included in the calculation of the ratio referred to above. He also confirmed that, at least six months prior to the expiration of the nine year transition period, the Russian Federation would consult with interested WTO Members on the methodology and amount of branch capital to be included in the calculation of the ratio.

The representative of the Russian Federation confirmed that, the ratio would be calculated in January of each year on the basis of the capital in existence at the end of the prior year, and that the ratio and supporting calculations would be made publicly available. He further confirmed that Federal financial authorities had the discretion to take certain temporary actions affecting foreign investments in the insurance sector, if foreign investments exceeded the 50 per cent ratio. Any such action would follow notice and consultations with interested persons, and would require that a determination that the ratio had been exceeded, due to new foreign investments, rather than a contraction of total capital or adjustments in charter capital, was made public. In such circumstances, the only actions authorities could take would be to: (i) stop issuance of licenses for new foreign-invested insurers/re-insurers; (ii) prohibit the increase of the charter capital of existing insurers/re-insurers contributed by foreign investors (non-residents); and (iii) prohibit the alienation (sale) of shares of existing Russian insurers/re-insurers to foreign investors (non-residents). Only institutions involved in commercial insurance as their principal line of business could be subject to these adverse actions. The representative of the Russian Federation further confirmed that the Federal financial authorities of the Russian Federation would not have the right to apply measures that would, for example: (i) prevent increases in the operational capital of existing foreign-invested insurers/re-insurers in the Russian Federation; (ii) prevent expansion of the scope or volume of such foreign-invested or wholly foreign-owned businesses; or (iii) prevent foreign-invested Russian insurers/re-insurers from opening branches of juridical persons of the Russian Federation within the Russian Federation. Should the Russian Federation choose to exercise its discretion and, subsequently, the ratio fell below 50 per cent, the Russian Federation would withdraw the temporary action. The Working Party took note of these commitments.

1394. In response to a question from Members about a possible review and elimination of the 50 per cent charter capital ratio, the representative of the Russian Federation confirmed that, it would review the operation and necessity for the ratio and implementation of temporary discretionary measures in the banking and insurance sectors within five years of the date of accession of the Russian Federation to the WTO.

1395. In response to a question from a Member, the representative of the Russian Federation confirmed that an increase in charter capital of a foreign-invested Russian bank or foreign-invested Russian insurance company that was financed by its profits earned in the Russian Federation or repatriated to the Russian Federation from abroad would constitute domestic investments and only be included in the denominator of the respective ratios. He further confirmed that all investments by foreign-invested Russian juridical persons in subsidiaries and internal branches in the Russian Federation were domestic, not foreign, investments. The Working Party took note of this commitment.

1396. Several Members of the Working Party noted that, the Schedule of Specific Commitments in Services of the Russian Federation did not include any commitment for branching in non-insurance financial services, and inquired when the Russian Federation planned to allow this common form of establishment. In addition, several Members, who were also members of the Organization for Economic Co-operation and Development (OECD) noted that commitments for direct-branching in financial services were standard in that organization and that they would expect the Russian Federation to make full commitments to allow direct-branching in financial services as part of its accession to the OECD.

1397. However, the representative of the Russian Federation confirmed that the Russian Federation would come back to consideration of granting market access to direct branches of foreign banks and companies which were professional participants of the securities markets in the context of future negotiations on the accession of the Russian Federation to the OECD or within the framework of the next round of WTO multilateral trade negotiations whichever comes earlier. The Working Party took note of this commitment.

1398. In response to a question from a Member, the representative of the Russian Federation confirmed that the 20 per cent limit on equity ownership of "stock exchanges" would not apply to other kinds of trade arrangers. Companies that were trade arrangers other than stock exchanges that use such means of organizing trade on the securities market as, for example, via alternative trading systems (ATSs), such as electronic communications networks (ECNs), crossing networks or global agency brokers, or via internalized trades (i.e., matching trades internally between customers and/or between customers and proprietary positions) could be up to 100 per cent owned by a single investor, domestic or foreign. He further confirmed that, where the 20 per cent limit on equity ownership of "stock exchanges" applied, it would do so equally to foreign and domestic investors, as would any subsequent amendment to this limit. The Working Party took note of these commitments.

1399. Some Members expressed concerns about the restrictions in the offer of the Russian Federation on Telecommunication Services for Mode 1, cross-border supply, of satellite services. While Members noted that the concerns of the Russian Federation with respect to these services were related to security, frequency allocation and universal service fund contributions, these concerns were important to all Members. In their view, none of these concerns should prevent a Member from allowing market access for foreign satellite services. In the view of these Members, these issues could be more appropriately addressed in ways consistent with international practice, such as through the earth station licensee or through coordination at the International Telecommunications Union (ITU).

1400. The representative of the Russian Federation explained that any foreign-licensed fixed satellite operator could access the market of the Russian Federation by providing capacity to a juridical person of the Russian Federation that possessed a licence for telecommunications services issued in accordance with Chapter 6 of Federal Law No. 126-FZ of 7 July 2003 "On Communications". Thus, the foreign-licensed fixed satellite operator would not need to be both the operator and the licensee in the Russian Federation in order to provide services to juridical persons of the Russian Federation, as described above. The Working Party took note of this commitment.

1401. The representative of the Russian Federation further confirmed that certain measures adopted or maintained by the Russian Federation would be applied in a manner that would ensure the market access described above. For example, the Government Resolution No. 88 of 1 February 2000 "On the Procedures of the Admission of Foreign Satellite Systems to the Russian Market" would be administered in a manner consistent with the market access commitments of the Russian Federation. The Working Party took note of this commitment.

1402. Some Members raised other concerns about new requirements established in the Russian Federation under an Order titled "On Approval of Requirements for PSTN Development" in particular, the requirement that (Public Switched Telephone Network) PSTN traffic might be connected via communications satellites controlled from the territory of the Russian Federation. The representative of the Russian Federation confirmed that, consistent with its market access commitments, foreign fixed satellite operators would not be required to establish commercial presence in the territory of the Russian Federation for the purposes of providing capacity to a juridical person of the Russian Federation that possesses a licence for telecommunications services issued in accordance with Chapter 6 of Federal Law No. 126-FZ of 7 July 2003 "On Communications". The Working Party took note of this commitment.

1403. Members of the Working Party stated that they expected the Russian Federation to make a commitment to guarantee transparency of licensing requirements and procedures, qualification requirements and procedures, as well as of other authorization requirements, in particular with respect to obtaining, extending, renewing, denying and terminating licenses and other approvals required to provide services in the market of the Russian Federation, and appeals of such actions. The licensing procedures and conditions of the Russian Federation should not in themselves act as a barrier to market access and should not be more trade restrictive than necessary. The Russian Federation should publish a list of authorities responsible for authorizing, approving or regulating those service sectors in which the Russian Federation had made specific commitments, as well as the licensing procedures and conditions of the Russian Federation. Members also expected the Russian Federation to make a commitment to guarantee that, for those services that would be included in the Schedule of Specific Commitments of the Russian Federation, the relevant regulatory authorities would be separated from, and not accountable to, any of the service suppliers they regulated. Members further expected the Russian Federation to make a commitment to guarantee that foreign service suppliers remain free to choose their partners.

1404. In response, the representative of the Russian Federation confirmed that, upon accession, the Russian Federation would ensure that all normative legal acts of general application pertaining to or affecting trade in services, as well as information on their effective date and scope of application, were published or made otherwise publicly available. He further confirmed that the Russian Federation would ensure that the names of competent authorities that were responsible for issuing licenses (authorizations) for service activities were published or made otherwise publicly available. The Working Party took note of these commitments.

1405. Without prejudice to the right of the Russian Federation to establish and apply licensing procedures and requirements, the representative of the Russian Federation confirmed that, in sectors in which the Russian Federation had undertaken specific commitments, it would ensure that its licensing procedures were not in themselves a restriction on the supply of the service, and that its licensing requirements directly related to eligibility to supply a service were not in themselves an unjustified barrier to the supply of the service. He further confirmed that for those services sectors in which specific commitments were undertaken by the Russian Federation in its Schedule of Specific Commitments, the Russian Federation would ensure that:

(a) All licensing procedures and requirements were set-out in normative legal acts and that any law establishing or implementing licensing procedures or requirements would be published no later than its effective date and that any other normative legal act that establishes and implements licensing procedures or requirements would be published prior to its effective date;

(b) Relevant authorities make a decision on granting/denial of a licence within the period specified in the relevant normative legal act or, if no time period was specified in the relevant normative legal act, without undue delay;

(c) Any fees charged in connection with the filing and review of an application for a licence would not in themselves be a restriction on the supply of the service;

(d) Once any period established in a normative legal act for review of an application for a licence had lapsed, and on the request of an applicant, the relevant regulatory authority of the Russian Federation would inform the applicant of the status of its application and whether it was considered complete. If the authority required additional information from the applicant, it would notify the applicant without delay and specify the additional information required to complete the application. Applicants would have the opportunity to provide the additional information requested and to make technical corrections in the application. An application would not be considered complete until all information and documents specified in the relevant laws and regulations were received;

(e) The relevant regulatory authority of the Russian Federation would make an administrative decision on a completed application for issuance of a licence for the supply of a financial service, and, as appropriate, approval of new products and rate changes, within a reasonable period of time and would promptly notify the applicant of the decision. An application would not be considered complete until all information specified in the relevant normative legal act was received. Where it was not practicable for a decision to be made:

(i) On an application to supply banking services within 180 days; and

(ii) On an application to supply other financial services within 60 days.

- The relevant regulatory authority would notify the applicant without delay;

(f) On the written request of an unsuccessful applicant, a regulatory authority that has denied an application would, inform the applicant in writing of the reasons for denial of the application; however, this provision shall not be construed to require a regulatory authority to disclose information, where that disclosure would impede law enforcement or otherwise be contrary to the public interest or essential security interests;

(g) Where an application had been denied, an applicant might submit a new application that attempts to address any prior problems for licensing;

(h) Where approval was required, once the application had been approved, the applicant would be informed in writing and in the time period provided for by the relevant normative legal act or, if no time period was specified in the relevant normative legal act, without undue delay; and

(i) Where an examination was required to licence professionals, such examinations would be scheduled at reasonable intervals. That would not apply to qualifying examinations administered or offered by financial service regulators or self-regulatory bodies or organizations.

The Working Party took note of these commitments.

1406. The representative of the Russian Federation further confirmed that, in those sectors where the Russian Federation had undertaken specific commitments, relevant regulatory authorities would not be accountable to any service suppliers they regulated. Further, the representative of the Russian Federation confirmed that in sectors in which the Russian Federation had undertaken specific commitments it would ensure, where practicable, that:

- drafts of regulations of general application that it proposed to adopt were published in advance;

- an opportunity to comment on such proposed regulation was provided to interested persons and other Members; and

- reasonable time between publication of the adopted regulation and its effective date was allowed.

The Working Party took note of these commitments.

1407. The Russian Federation undertook market access negotiations in services with Members of the Working Party. The commitments of the Russian Federation in services were contained in the Schedule of Specific Commitments, reproduced in Annex I to the Protocol of Accession.

TRANSPARENCY

PUBLICATION OF INFORMATION ON TRADE

1408. Members of the Working Party requested a description of the measures providing legal authorization for the Russian Federation to implement Article X of the GATT 1994 and the other transparency provisions in the WTO Agreements, together with a confirmation that these measures would be applied upon accession. A clarification was particularly sought on where the laws, decrees, resolutions, orders, letters and other measures of general application of the Russian Federation would be published to fulfil the requirements of Article X of the GATT 1994, and the transparency provisions in other WTO Agreements, including the WTO GATS Agreement and the WTO TRIPS Agreement. Because the CU Parties and competent bodies of the CU were adopting international treaties, decisions and other measures related to trade, Members also requested confirmation that the CU Parties and competent bodies of the CU would comply with the transparency provisions of the WTO Agreement on matters within CU competency.

1409. Some Members of the Working Party stated that access to customs regulations and decrees was vital for traders attempting to import and export. In this regard, those Members noted that the Russian Federation had over 4,500 customs regulations and "instructions". Access to the published versions of those provisions was very difficult, notwithstanding that they were considered to be regulatory and normative acts, legally binding and of general application, and the State Customs Committee did not provide them to importers (or Embassies) upon request. Those Members recalled statements reflected in other portions of the Report, including those on customs requirements and rules of origin, and requested that the Russian Federation elaborate how it would address that issue, i.e., the need to facilitate access to customs regulations and other subsidiary measures.

1410. These Members also noted that since 1 July 2010, when the Customs Union entered into force, CU agreements, decisions and other measures affecting trade with the CU as a whole and with the Russian Federation as a CU Party became relevant to Members and traders. These Members requested information on when and where CU agreements, decisions and other measures would be published and made available to Members and traders.

1411. One Member recalled its deep concerns regarding measures that the Russian Federation had maintained since 2008 with regard to trade with this Member.

1412. The representative of the Russian Federation took note again of this Member's concern and referred to paragraph 209. For these reasons, the Government of the Russian Federation concluded a bilateral agreement with this Member as referred to in paragraph 210.

1413. He also noted that the Russian Federation would transmit trade data to the Integrated Data Base (IDB) of the WTO. He also noted that the Russian Federation would participate in other WTO mechanisms, such as the Trade Policy Review Mechanism and WTO Council and Committee reviews, and various WTO consultation procedures which would provide opportunities to exchange information and provide for increased transparency. The Working Party took note of these commitments.

1414. Some Members expressed concern that CU treaties and decisions did not appear to provide the opportunity for Members to consult with or provide comments to the competent CU bodies on matters affecting trade, including where provisions of WTO Agreements specifically required Members to provide drafts of measures, receive comments from Members, consult on those comments, and take the comments and discussions into account. These Members requested a commitment that the Russian Federation would make drafts of laws and other normative legal acts, as well as proposals/submissions to CU bodies that, if adopted, would have the effect of a normative legal act in the Russian Federation, available for interested persons, including Members, to provide comments prior to their adoption and that the Russian Federation and the competent bodies of the CU would comply with the transparency requirements of the WTO Agreements on matters within their respective competence.

1415. The representative of the Russian Federation replied that in accordance with Article 15.3 of the Constitution of the Russian Federation, laws and other regulatory acts relating to human rights, freedom and duties were subject to official publication. This provision was developed in Federal Law No. 5-FZ of 14 June 1994 "On the Procedures for Publishing and Entering into Force of Federal Constitutional Laws, Federal Laws, and Acts passed by the Chambers of the Federal Assembly" (as last amended on 22 October 1999); and Presidential Decree No. 763 of 23 May 1996 "On the Procedures for Publication and Entering into Force of the Acts of the President of the Russian Federation, the Government of the Russian Federation and the Normative Legal Acts of the Federal Executive Bodies" (as last amended on 28 June 2005). According to Article 4 of Federal Law No. 5-FZ, the date of publication of a Federal constitutional law, Federal law or act passed by the Chambers of the Federal Assembly was the date of the first publication of their full text in the "Parlamentskaya Gazeta", "Rossiiyskaya Gazeta" or in the digest "Sobraniye Zakonodatelstva Rossijskoj Federatsii". Federal constitutional laws, Federal laws and acts of the Chambers could also be published in other press sources and brought to general knowledge through media, distributed to State authorities, officials, enterprises, establishments and organizations, transmitted via communication channels or distributed in machine-readable formats. He also noted that a great deal of draft legislation was made available on various governmental and parliamentary (e.g., the State Duma) websites from the time it was formally proposed to the State Duma. The Government intended to continue and expand this practice.

1416. He added that, in accordance with paragraph 2 of Presidential Decree No. 763, acts of the President of the Russian Federation and of the Government were subject to official publication in the "Rossiiyskaya Gazeta" and in the digest "Sobraniye Zakonodatelstva Rossijskoj Federatsii" within ten days after their signing. Distribution of the acts of the President and the Government in a machine-readable form by the scientific and technical centre of legal information "Systema" was also deemed to constitute an official publication. Moreover, in accordance with paragraph 8 of Presidential Decree No. 763, normative legal acts of Federal Executive bodies related to human rights, freedom and duties or establishing the legal status of organizations or acts of inter-agency nature were subject to official publication in the "Rossiiyskaya Gazeta" within three days of their registration by the Ministry of Justice of the Russian Federation, and in the "Bulletin of Normative Acts of the Federal Bodies of Executive Power" published by the publishing house "Yuridicheskaya Literatura" of the Administration of the President. This Bulletin was distributed in a machine-readable form by "Systema".