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Country Writer: David Lasfargue
GIDE LOYRETTE NOUEL
Tel: +7 (0) 95.258.31.00
www.gide.com
FIRM PROFILE
Gide Loyrette Nouel is one of the most prestigious
independent law firms in Europe. It is the leading international
French firm with 82 partners and over 400 associates drawn from
over 28 different nationalities. Operating out of 16 offices in
15 different countries world-wide, the Firm offers some of the most
respected specialists in each of the various sectors of national
and international business law.
The Firm has offices in Europe (Brussels, Bucharest, Budapest, Istanbul,
London, Moscow, Paris, Prague and Warsaw), North America (New York),
Asia (Beijing, Hanoi and Shanghai), the Middle East (Riyadh) and
North Africa (Casablanca and Tunis).
RUSSIA SECURITISATION MARKET STATEMENT
Important legal obstacles still prevent Russian
companies from using securitisation as an efficient form of financing.
It should be first noted that, under the present
Russian legislation, isolation of the assets transferred to a special
purpose vehicle (“SPV”) cannot be guaranteed, which
considerably undermines the potential development of securitisation
in the Russian Federation.
According to Russian civil legislation, the transfer
of non precisely defined assets could be recognized as void. Indeed,
Russian courts adhere to the position that if the object of the
transfer is not concretely defined, the transaction would be considered
illegal because of the absence of subject to the agreement. Also,
concerning the transfer of future assets, Russian courts will cancel
such transfers as Russian courts consider that the amount of transferred
assets has to be evaluated at the date of the transfer.
Furthermore, the law on bankruptcy does not guarantee
the bankruptcy remoteness of the SPV as, in case of bankruptcy of
the originator, transactions concluded with the SPV could be invalidated
or their execution could be refused.
The bankruptcy remoteness of a SPV is also rendered weaker by the
fact that, according to the Russian legislation, a SPV can only
be set up as a limited liability company, a closed or open joint
stock company. Under these legal forms it is not allowed to ban
the possibility of reorganization or voluntary liquidation of a
SPV, thus undermining its protection.
Moreover, a SPV will be taxed to the rate of 0,8%
on the amount of securities traded.
Setting up a SPV offshore could be a way to avoid
the problems listed above. However, new questions would arise, in
particular regarding currency regulations, transfer of assets and
receiving payments in foreign currency.
As for now, a recent proposed law on potential issued
securities could have introduced into the Russian legislation new
tools allowing the development of securitisation. However, the opposition
of the presidential administration to this proposed law could furthermore
slow down its implementation.
GLN RUSSIAN SECURITISATION CONTACT
David Lasfargue
GLN SECURITISATION
PRACTICE
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