Registration of Russian Pledges: a New Era after 1 July 2014

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1 June 2014 Registration of Russian Pledges: a New Era after 1 July 2014 Contents 1. Introduction Important changes to Russian pledge law will come into force on 1 July In particular, new legislation (the New Rules ) will provide for voluntary registration of pledges over movable assets in a public register maintained by Russian notaries (the Pledge Register ). This is a fairly radical change, because under the current legal regime, there is no public registration of security over most movable assets. We have summarised below our answers on the questions frequently asked by bank lenders in connection with the New Rules. 2. Questions and Answers 2.1 What collateral and security interests are subject to registration? A pledge over any movable assets located in Russia (other than bank accounts and shares/participatory interest in Russian companies) granted by a Russian or non-russian company may be recorded in the Pledge Register under the New Rules. For example, a pledge over equipment, trade stock or contractual rights may be registered in the Pledge Register. The registration may cover pledges created both before, and after, 1 July It is clear that a Russian law-governed pledge over movables is subject to registration, whether granted by a Russian pledgor or a foreign pledgor. It is less clear whether the New Rules apply to a non-russian law governed security interest granted by a Russian company over its movable assets in Russia (e.g. an English law security assignment over contractual rights). In practice, the registration of a non-russian security interest will depend on the views of the Russian notary asked by the parties to make the entry in the Pledge Register. Some notaries we work with have said that they may agree to register foreign law security over Russian assets. But these notaries will be in a position to confirm this view only after 1 July 2014, once all the practical aspects of registration are clear to them. Other notaries have told us that they will not proceed with the registration of foreign law security, unless they Introduction... 1 Questions and Answers... 1 What collateral and security interests are subject to registration?... 1 What is the legal effect of registration?... 2 Do the New Rules apply to the historical pledges?... 2 What is the registration procedure?... 3 Who may apply for the registration of security pledgor or pledgee?... 3 Can the information about registration of security be independently verified?... 3 What information about security will become available upon registration?... 4 What is the cost of registration?... 4 Who is responsible for deregistration of the pledge?. 4 Is the Pledge Register likely to be up and running on 1 July 2014?... 5 Registration of Russian Pledges: a New Era after 1 July

2 receive official guidance on this issue from the Federal Notary Chamber of Russia. The New Rules do not make any changes to the current legal regime of public registration of security over real estate in Russia or shares/participatory interest in Russian companies. The security over real estate in Russia and shares/participatory interest will continue to be registered in the Pledge Register of Rights to Immovable Property and Related Transactions of Russia, books of depositories\registrars and the Unified State Register of Legal Entities of Russia, respectively. The New Rules assume a pledge of Russian bank accounts is not subject to registration with the Pledge Register. The absence of registration should not create a concern for lenders, because the priority of a pledge of bank accounts (the principal legal effect of registration with the Pledge Register please see paragraph 2.2 below) will be determined by the books of account banks holding the pledged account. Similarly, a pledge over shares in Russian companies does not need to be registered with the Pledge Register, because its priority is determined by the books of depositories\registrars. 2.2 What is the legal effect of registration? As registration is voluntary, the validity of the pledge will not depend on registration. Rather, the registration will determine priority of the pledge, i.e. whether the pledge in question creates a first or second ranking security interest. Priority of the pledge will be determined by the date of its registration in the Pledge Register, rather than the date of the pledge agreement. For example, where a person, who takes security over a certain asset first, fails to register his pledge with the Pledge Register, he may lose his status of first ranking pledgee if a second person, who takes a pledge over the same collateral later, registers his pledge with the Pledge Register. Also, the New Rules assume that in some situations a good faith purchaser of pledged assets can claim to terminate the pledge, once he proves that he was not (or should not have been) aware of the pledge. But if the pledge in question is registered with the Pledge Register, such claims are unlikely to be successful (the purchaser having actual notice (or deemed notice) of the pledge). Given the legal effect of registration, lenders should consider making registration with the Pledge Register a condition precedent to funding. 2.3 Do the New Rules apply to the historical pledges? Yes, but to a limited extent. The New Rules apply to pledges created both before, and after, 1 July Hence, lenders may require registration of historical pledges (i.e. pledges entered before 1 July 2014) with the Pledge Register in order to protect the priority of these pledges and mitigate the risk of a good faith purchaser terminating the pledges. The New Rules provide for a transitional period from 1 July 2014 until 1 February The priority of historical pledges registered by Registration of Russian Pledges: a New Era after 1 July

3 1 February 2015 will be determined by the date of the relevant pledge agreement, irrespective of the date of their registration in the Pledge Register. After 1 February 2015, the priority of historical pledges will be determined by the date of their registration in the Pledge Register. Hence, there are benefits to registering historical pledges promptly, and in any event before 1 February What is the registration procedure? To register a pledge, either a pledgor or pledgee shall submit an application to a Russian notary. Upon receipt of the completed application, the notary shall make a registration entry in the Pledge Register promptly, and issue a certificate of registration to the applicant. The notary is not supposed to check the validity of the pledge or the authority of a person who has signed the application on behalf of the applicant. However, the notary shall check the authority of the applicant s representative who submits the application to the notary (e.g. power of attorney and possibly additional documents). 2.5 Who may apply for the registration of security pledgor or pledgee? Either a pledgor or pledgee may apply for the registration of security. Technically, the registration may be completed by a pledgor without the cooperation of a pledgee. A pledgee may decide to involve legal counsel, not only to review the documents evidencing the successful registration (such as a certificate of registration and extract from the Pledge Register) but also to review the documents required for the registration (e.g. the draft of application to be submitted to a notary). Given the legal effect of prompt registration with the Pledge Register it may be appropriate for legal counsel of the pledgee (as opposed to the legal counsel of the pledgor) to be responsible for the registration. That said, it is a widely recognised practice in Russia that legal counsels of pledgors are responsible for registration of security, including registration which affects the validity of security (e.g. registration of pledge over real estate). 2.6 Can the information about registration of security be independently verified? Yes. The pledgee/pledgor or third party may request from a Russian notary an extract from the Pledge Register (please see paragraph 2.7 below on information available in such extracts) by physical submission of an application to the notary. Any person will be also able to access the Pledge Register online on the website (please see paragraph 2.7 below on information available online) (the Pledge Website ). The Pledge Website is now working in test mode and is expected to be fully operational starting from 1 July Registration of Russian Pledges: a New Era after 1 July

4 Furthermore, following 1 July 2014 we expect that some information about pledges of Russian companies will be available online from an alternative information source. Under the New Rules, a Russian company will have to submit information on all its pledges over movable assets into the Unified Federal Register of Information on Facts of Activities of Legal Entities (the Information Register ). This Information Register is different to the Pledge Register. The Information Register is available on the website There is uncertainty on the scope of information to be submitted to the Information Register. That said, lenders should consider requiring pledgors to submit to the Information Register detailed information about all security over movable assets granted. Broadly, registration with the Information Register has a very limited legal effect. For example, it should not generally determine the priority of security. But this registration is likely to help to protect pledges against claims of a good faith purchaser of pledged assets (see paragraph 2.2 above). 2.7 What information about security will become available upon registration? Two types of extracts from the information in the Pledge Register will be available. A short form extract (which may be requested by any person) will contain the date, title and number of the pledge agreement, description of the pledged assets and names of the pledgee and the pledgor. The same information will also be available online on the Pledge Website. In addition to the information available in the short form extract, a long form extract (which may be requested by the pledgor or the pledgee) will contain more details on the pledgor and the pledgee (e.g. contact details) and information on all applications which have been submitted in relation to a certain pledge to a notary. 2.8 What is the cost of registration? The cost of registration is RUR 300 per each application (approx. EUR 6). 2.9 Who is responsible for de-registration of the pledge? Generally, the pledgee shall file with a Russian notary an application on termination of the pledge or changes to the pledge agreement affecting information about the pledge in the Pledge Register. The pledgee shall make such filing within three days after it becomes aware (or ought to become aware) Registration of Russian Pledges: a New Era after 1 July

5 of termination of the pledge or changes to the pledge agreement. Failure to make this filing in time may result in a damages claim from a pledgor to a noncomplying pledgee Is the Pledge Register likely to be up and running on 1 July 2014? Although the relevant legislation is in place, some notaries expect guidance to be issued by the Federal Notary Chamber of Russia before they proceed with the registration. From a purely legal perspective, this guidance is not strictly necessary and will provide the notaries with practical comfort only. Some notaries we work with have confirmed their ability to make a registration entry without any guidance being issued. That said, we expect technical delays in the registration procedure during July - August Hence, it is advisable (i) to start registration procedure shortly, to ensure that all historical pledges are registered promptly, and in any event before 1 February 2015, and (ii) to make preparations for registration of new pledges during the negotiation phase of transactions, so that they are registered promptly upon signature. Contacts For further information please contact: Michael Bott Partner (+7) michael.bott@linklaters.com Julia Voskoboinikova Counsel (+7) julia.voskoboinikova@ linklaters.com Nikolai Kurmashev Managing Associate (+7) nikolai.kurmashev@ linklaters.com Yuri Nekrasov Associate (+7) yuri.nekrasov@linklaters.com Authors: Michael Bott, Julia Voskoboinikova, Nikolai Kurmashev, Yuri Nekrasov This publication is intended merely to highlight issues and not to be comprehensive, nor to provide legal advice. Should you have any questions on issues reported here or on other areas of law, please contact one of your regular contacts, or contact the editors. Linklaters CIS. All Rights reserved 2014 Linklaters CIS is incorporated with unlimited liability in England and Wales (registered no ) and has its registered office at One Silk Street, London EC2Y 8HQ. The directors of Linklaters CIS are either solicitors or registered foreign lawyers. Linklaters CIS is affiliated with Linklaters LLP, a limited liability partnership registered in England and Wales with registered number OC It is a law firm authorised and regulated by the Solicitors Regulation Authority. The term partner in relation to Linklaters LLP is used to refer to a member of Linklaters LLP or an employee or consultant of Linklaters LLP or any of its affiliated firms or entities with equivalent standing and qualifications. A list of the names of the members of Linklaters LLP and of the non-members who are designated as partners and their professional qualifications is open to inspection at its registered office, One Silk Street, London EC2Y 8HQ, England or on Please refer to on for important information on our regulatory position. We currently hold your contact details, which we use to send you newsletters such as this and for other marketing and business communications. We use your contact details for our own internal purposes only. This information is available to our offices worldwide and to those of our associated firms. If any of your details are incorrect or have recently changed, or if you no longer wish to receive this newsletter or other marketing communications, please let us know by ing us at marketing.database@linkl aters.com. Paveletskaya sq. 2, bld. 2 Moscow Telephone (+7) Facsimile (+7) Linklaters.com Registration of Russian Pledges: a New Era after 1 July A /0.6/02 Jul 2014