The Newsletter for this month contains a variety of articles that will, undoubtedly, be of interest to many categories of readers. The subjects covered range from recent developments in Russian insurance law and practice to personal bankruptcy legislation, and from new regulations governing freight carriage by road to the term of employment contracts for non-Russian citizens.
Also, we are pleased to announce that Constantin Saranchouk and Polina Kondratyuk have joined our Moscow office last month. Constantin is a leading Russian insurance practitioner and, together with Polina, is tasked with the development of our Russian insurance practice. With Constantin's and Polina's arrival we have acquired one of the strongest insurance practices in Russia. This month Polina has made her first contribution to the Newsletter.
Insurance intermediaries in Russia
The current version of the Federal Law "On the Organisation of Insurance Activity in the Russian Federation" mentions two types of insurance intermediaries: the insurance agent and the insurance broker. Neither their legal status nor their working practices are comprehensively addressed.
As a result of a build-up of discrepancies a number of intermediaries have appeared on the Russian market, active in the margins between agents and brokers and frequently involved in corrupt practices and breaches of the legislation.
An insurance broker, according to the law, is a recognised insurance practitioner and must be licenced and make periodic statutory returns. To all intents and purposes, the work of an insurance agent is only regulated by the insurance company which has employed him. Furthermore, an insurance agent may act on behalf of an unlimited number of insurers.
In order to avoid such practices a Working Group has been established, which is developing proposals to regulate the work of all types of insurance intermediaries.
The Working Group met for the first time in February of this year at the offices of the Federal Antimonopoly Service (FAS Russia) to work out proposals for changes to insurance legislation, and in particular to introduce a more precise definition of the functions of insurance intermediaries.
The Working Group is made up of representatives of the Russian Ministry of Finance, the Federal Financial Markets Service (FFMS, of which the insurance supervisory authority is now a part), FAS Russia, leading insurance companies and also representatives of the Society of Insurance Lawyers.
At their first meeting the participants of the Working Group discussed the problems involved in clarifying the legal status, function and responsibilities of insurance agents and insurance brokers, the responsibilities of insurers for the activity of their insurance agents, and also looked at international practice for the regulation of insurance intermediaries' activity. The result of the discussion was that members of the Working Group decided to prepare proposals for the development of "A Standard of Service for Insurance Brokers", and to define ways of removing conflicts of interest in the market of insurance intermediaries' services, including establishing the group's position on such key questions as the source of brokers' remuneration, the need to set up an insurance agents' register in Russia and other matters.
It is important to note that at the same time draft alterations to the Federal Law "On the organisation of Insurance Activity in the RF" are under preparation, for consideration by the State Duma, to clarify the status of insurance agents and set a range of fundamentally new standards regulating their activity.
Today the legal basis for the activity of insurance agents is found in the statutes about agents' services (chapter 52 of the RF Civil Code) and article 8 of the Law "On the Organisation of Insurance Activity in the RF". As the developers of the draft law point out, it has been traditional in Russian insurance for insurance agents to represent a specific insurer, being an intermediary between them and the client. However, in recent years the working practices of insurance agents in Russia have effectively changed the insurance agent into a free insurance intermediary, independent of any insurer.
The majority of insurance agents have, in effect, become insurance brokers through the practical circumstance of their working with many insurers, and there have been incidences of unscrupulous behaviour and fraud on the part of such insurance agents. Frequently insureds only learn that an insurer's licence has been suspended after a policy has been signed, as insurance agents deliberately keep this information back, and attempts by agents to take their client base with them when they leave an insurer's employ are also all too common.
Since the enactment of the Federal Law "On Compulsory Liability Insurance for Motor Transport Owners" insurers excluded from membership of the Russian Union of Motor Insurers have failed to return 2.5 million policy blanks to that professional organisation, the majority of which are now in fraudulent black market circulation. According to RUMI with an average insurance premium of 2,300 roubles per policy, the annual black market turnover of such policies must amount to 1.2 bn. roubles.
Of every hundred crimes committed by insurance intermediaries only a couple are discovered and brought to court, while insurers estimate the damage from such crimes at hundreds of millions of roubles. It is proposed to resolve these problems by revising article 8 of the Law regulating the activity of insurance agents, and adding new sub-point to p. 4 art. 30 introducing additional powers for the insurance supervisory authority to control agents.
The alterations are intended to:
- clarify the legal status of an agent (restricting this to individuals representing an insurer);
- attach the insurance agent to a specific insurance organisation or insurance group;
- introduce certification of insurance agents with appropriate regular training and examination;
- form a single open and accessible register of certified insurance agents, from which any insured or other interested party can find out whether they are working with a real insurance agent or a fraudulent one;
- introduce compulsory liability insurance for insurance agents.
It is expected that this draft law will be brought to the Duma during the first half of 2011. It is clear that the need to regulate the activity of insurance intermediaries is long overdue in Russia.
International experience indicates that it would be possible to regulate the activity of all insurance intermediaries with a separate legislative act; however the steps already undertaken at the present time are aimed at the development of a civilised insurance market in Russia.
Bill on rehabilitation procedures used in relation to individual debtors
In April 2011 the Ministry of Economic Development of the Russian Federation (the Ministry) published yet another bill designed to introduce personal bankruptcy law in Russia. The presented bill provides an opportunity for natural persons to be discharged from their debts following a more favourable procedure than the one currently established by applicable laws on enforcement proceedings.
It will be recalled that in summer 2009 the Ministry of Economy already presented a personal bankruptcy bill, but it never made it into law due to the differences it raised at the time. Among other things, it was said that the legislation required an increase in the number of judges and a substantial increase in the financing of the judicial system.
However as it is observed by various mass media sources, the new bill is little different from the 2009 bill. The bill on rehabilitation measures will cover both natural persons and individual entrepreneurs, and it will be possible to bring a bankruptcy petition in relation to a citizen who has a debt of over RUR 50,000 that has been outstanding for 6 months. A debtor who foresees future difficulties with discharging his obligations may file an insolvency petition. Where a court makes a bankruptcy judgement, if a loan is secured the proceeds from the sale of the security will be used towards the repayment of the debt. Where the proceeds are insufficient to repay the loan, or the loan was taken out in cash, the debtor's personal assets will be sold, except for the bare essentials. For example, the bankruptcy estate will not include the debtor's only residence, unless it is mortgaged, as well as cash below RUR 25,000. On top of that, the following can not be sold: household items and appliances with a value of no more than RUR 30,000, food and medicines.
After the bill is passed into law the Ministry is proposing to introduce criminal liability for fictitious or deliberate personal bankruptcy, and make this offence punishable by a prison sentence of up to 6 years.
In general the bill offers a more favourable route to the discharge of debts as compared to the execution proceedings. The main point in introducing the bankruptcy procedure is that, following the settlement or composition with the creditors, the remaining debts will be deemed discharged. This is what makes it different from the execution proceedings where debt recovery may last for life, until the debt has been paid in full.
However there is an opinion that the proposed bill is surprisingly unfavourable for anyone who is concerned. The Government will need to expand the numbers of arbitration court staff and incur considerable expense. The bankers are sure that the bill will let the bad faith lenders escape liability and lenders, even after adjudicated as bankrupts, still are not discharged from the burden of debt.
In accordance with the proposed bill the end of bankruptcy does not mean that dealings with creditors have come to an end. In certain circumstances the bankruptcy proceedings may be resumed and in relation to certain claims (e.g. personal injury, moral damage and alimony) the debtor will remain under an obligation to keep paying after the end of the bankruptcy procedure. The bill contains a wording to the effect that writs of execution will be issued by arbitration courts in relation to the above creditor claims, if these are not repaid at the end of the bankruptcy proceedings.
Indeed, this rule serves to protect the creditors' interests to a certain degree, however in general it contradicts the very logic of bankruptcy proceedings. At the same time the bill does not rule out that bankruptcy proceedings may be initiated repeatedly where the person subsequently incurs a debt of RUR50,000 and the debt remains unpaid for six months, a further adjudication of bankruptcy can be issued against him.
Experts in banking voice the concerns that the law could be used by bad faith lenders who avoid meeting their obligations and have no intention to repay their loans. It is proposed that bankruptcy proceedings will have a number of adverse consequences for the debtor, including a bad credit history. The bill provides that for the 5 years following the bankruptcy the bankrupt individual will be obliged to notify lenders of his bankruptcy when applying for a loan or a credit. However the bill does not stipulate a penalty for a breach of this obligation and therefore the creditor will have to rely on the general rules on damages. As an alternative to the bankruptcy proceedings, the bill provides for an opportunity of debt restructuring. To avoid bankruptcy the borrower must present a debt restructuring plan to the court. In that case the debt repayment period can be extended to five years and the plan must be approved by the creditor. However experts have suggested that the time allowed for the restructuring is too long and the limits of civil liability of the debtor are blurred.
At present the document is going through the anti-corruption review and in the opinion of the experts it may be passed into law, subject to all the necessary procedures, in a year at the earliest; after which the effective date may be postponed by another year.
New rules for the carriage of freight by road
On 15 April 2011 the government of the Russian Federation issued Regulation No.272 "On approving the rules for the carriage of freight by road" (the Rules). This document aims to flesh out the provisions of Federal Law No.259-FZ dated 08.11.2007 "Statute of road and urban overground electric rail transport" in relation to the carriage of different types of freight by road, ensuring the safety of cargo, vehicles and containers, as well as conditions of carriage and provision of vehicles for such carriage.
The document was published on 25 April 2011 and is to take effect three months following the date of its official publication, with the exception of provisions relating to the transport of (i) dangerous and (ii) perishable goods by road, which will take effect in one year later. It appears that the transportation of these goods must be carried out in compliance with the requirements of (i) Annexes A and B to the European Agreement Concerning the International Carriage of Dangerous Goods by Road dated 30 September 1957 (ADR) and (ii) Agreement on the International carriage of perishable foodstuffs and on the special equipment to be used for such carriage, signed in Geneva on 1 September 1970 (ATP); therefore some work must be done to bring the national legislation and regulations in line with the provisions of these international agreements.
The new Rules contain provisions relating to the conclusion of contracts of vehicle hire for the carriage of goods, the provision of vehicles and containers, the presentation and acceptance of cargo for transportation, the loading of cargo into vehicles and containers, determining the weight of the cargo, sealing the vehicles and containers, time frames for delivery, the transfer of goods, the clearing of vehicles and containers, as well as features specific to certain types of cargo, the execution of various certificates and claims. The Rules also establish the maximum mass for various vehicles.
Previously the carriage of goods by road was mainly governed by the "General rules for carriage of goods by road" which were approved by the Ministry of Automobile Transport of the Russian Soviet Federative Socialist Republic on 30 July 1971, as amended on 21 May 2007 (the Instruction). This instrument is still in effect and provides a rather detailed guidance (complete with graphic materials and instructions for the manufacture of seals and the placement of goods in a vehicle) for road haulage.
The New Rules exhaustively regulate the majority of practical issues connected with contracts for the carriage of goods as well as contracts for the organisation of carriage and related documents (including bills of lading and orders). They are designed to ensure that the document exchange between consignors, consignees and carriers is streamlined and consistent.
Thus Annex 4 contains a new form of the bill of lading, and clear instructions are given on how to fill it in and the number of counterparts to be executed. At present there is another form that is valid as well, No. 1-t, which was approved by the Instruction "On the procedure of settlements for the carriage of goods by road" dated 30 November 1983 (No.156 of the Ministry of Finance of USSR, No.30 of the State Bank of USSR and No.10/998 of the Ministry of Transport of the RSFSR).
The Rules also contain a number of statutory definitions, in particular definitions were given to such important terms as "Divisible load" and "Delay" which were not regulated in statute prior to the enactment of this instrument.
Moreover the Rules touch upon the marking of loads (which is currently regulated by the Instruction) and supplements the current rules by specifying that it is mandatory to specify linear dimensions of a package (where one of the parameters exceeds 1 meter). The question of determining the mass of the cargo is also resolved in a new way: the mass may be determined not only by weighing, but also by calculating the mass on the basis of dimensional measurements. As for the sealing, there is nothing new in the Rules as they clearly duplicate the provisions of the Instruction.
The Rules prescribe a novel way of determining the time frames for delivery of goods. The Instruction is using the distance as the key criterion: if the distance is less than 250 km the delivery period is 1 day, if more than 250 km – the period is calculated on the basis of 1 day per 250 km. The Rules apply different rules depending on whether the service is urban/suburban or intercity/international; the former has a one day deadline while the latter is based on 1 day per 300 km.
Finally, the new Rules have detailed instructions for documenting breach or inadequate performance of obligations to transport goods. The Rules set out which certificates and claims must be made and their necessary attributes (s 82 and 88, respectively).
An exhaustive list of circumstances is given in which a certificate evidencing these circumstances must be made:
- the goods designated in the contract for the carriage of goods are not collected due to the carrier's fault;
- vehicle and container have not been provided for the loading;
- loss, shortage or damage to the goods;
- failure to present for the carriage the goods designated in the contract for the carriage of goods;
- refusal to use the vehicle provided under the vehicle hire contract;
- delay in the delivery of goods;
- delay (free time) of vehicles placed for loading/ unloading;
- delay (free time) of containers owned by the carrier and placed for loading.
In any event of breach that is not listed the document to be made is a claim.
Certificates and claims have different time limits: a certificate must be made immediately upon discovery of the relevant circumstance (or where it is impossible, before the end of the following day), and a claim can be made within the statute of limitations which applies to such claims (1 year).
In contrast to that the Instruction provided for claims only, and any claim was to be sent to the carrier within 6 months.
In conclusion, beginning 26 July 2011 the new Rules will be operating in Russia which will amend the provisions of the Instruction, as the Rules are a subsequent statutory instrument which was issued by a superior authority. Where the Rules are silent the Instruction will continue to apply as governmental resolution No.272 dated 15 April 2011 does not expressly repeal the Instruction in whole or in part. As a side note, it would have been a positive step towards the systematisation of the mass of subordinate legislation, and an improvement in the legislative techniques, to repeal (the whole or the relevant part of) the obsolete legislative acts whose provisions are duplicated in the new statutory instruments.
Duration of employment contracts with a foreign Employees
One question that is often asked about employing foreign specialists in Russia is whether the Russian authorities act lawfully when they require that foreign nationals must be employed under fixed-term contracts. Governmental officers link this position to the fact that work permits are issued to foreign workers for a fixed term and therefore their employment contracts must also be limited by that term.
Pursuant to Article 5 of the Labour Code of the Russian Federation (LCRF), a code has supreme legal power (inferior only to the Russian Constitution) and applies to all employment-related matters.
According to Article 58 LCRF the general rule is that employment contracts must be for an indefinite duration. A fixed-term contract may be made with an employee in strictly limited circumstances which are all listed in the Code (Article 59 LCRF). This article does not mention foreign nationality as a valid reason for fixed-term employment.
Moreover, no such requirement is contained in the Federal Law "On Legal Status of Foreign Nationals in the Russian Federation". It follows that generally an employment contract with a foreign employee must be for an indefinite term. Further to Article 9 LCRF the worker's rights and benefits established in LCRF may not be diminished by any provision of the worker's employment contract; therefore where any term of the employment contract purports to limit the employee's rights or reduce his benefits, such term is unenforceable.
Therefore foreign nationals are entitled to insist on permanent employment under an employment contract of indefinite duration. Where the employer insists on fixed-term employment an appropriate remedy may be sought in court.
The Russian Government issued a resolution concerning public registers and other information resources
Not many people can say for sure what type of information about Russian citizens, companies, properties etc is held by various governmental registers in Russia, and, what's most important, who exactly, how and in what circumstances may gain access to such information. It is not an easy task to review and put into an accessible form the entire range of rules governing these matters, including the rules that detail the duties and obligations of the relevant public bodies in relation to providing access to such information. Resolution "On basic public information resources" No.654-p issued by the Russian Government on 15 April 2011 (the Resolution) would make this task slightly easier or at least add some clarity.
First of all, the Resolution has enacted a list of database information resources maintained by governmental bodies and used in the provision of public or municipal services or in the exercise of other public or municipal functions. The information held by these bodies includes identifiers which make it possible to obtain information about a person or a property for the purposes of rendering public or municipal services.
The list includes 11 of these resources (each with an indication of the relevant authority running it) as set out below:
- Unified state register of taxpayers (the authorized body is the Russian Federal Tax Service);
- State cadastre of real estate property (Federal Registration, Cadastre and Cartography Service, Rosreyestr)
- Unified state register of legal entities (Russian Federal Tax Service);
- Unified state register of individual entrepreneurs (Russian Federal Tax Service);
- Unified state register of interests in and transactions with real estate (Federal Registration, Cadastre and Cartography Service, Rosreyestr);
- Motor Vehicle Registration Register (Ministry of Interior);
- Address register (the relevant authority to be determined by the Russian Government)
(the last two registers are yet to be created and/or brought into line with the provisions of the Resolution once the respective regulations will be enacted to govern the registration and administration matters of the relevant registers. For example the Ministry of Interior has been given 6 months starting from the date of the Resolution to launch an information system that will be the base for the register of motor vehicles);
including information resources formed as a result of:
- individual registration within the system of mandatory pension insurance (Russian Pension Fund);
- registration of the issued, lost and stolen passports of a citizen of the Russian Federation (Federal Migration Service);
- registration of Russian citizens at the place of stay and place of residence (Federal Migration Service);
- migration control over foreign nationals and stateless persons (Federal Migration Service);
The list also includes the relevant identifiers and the nature of unique personal or property information that can be obtained with the help of these identifiers. By way of example, the taxpayer's identification number (INN) and the main state registration number (OGRN) are the identifiers used by the Unified State Register of Legal Entities; the nature of the information collected and stored in the Register is company information.
Secondly the relevant authorized bodies have been given a number of instructions in the Resolution.
They were instructed to ensure that their database resources are available in electronic form 24/7 for access by agencies and organisations entitled to use the data (the so called interested agencies and organisations which may include entities providing public or municipal services such as executive authorities (whether on the federal level or on the level of a subject of the federation), public extra-budgetary funds or local self-governance authorities, or organisations to which public or municipal services are outsourced via a public procurement procedure) and to ensure that the information held by these resources is accurate, complete and up-to-date. They must also register reports about any mistakes or gaps in the contained information and correct such mistakes where appropriate.
Besides the authorized bodies have until 1 May 2011 to publish the details of their database resources on their official Internet websites, including the name of the resource, the type of information held about persons or properties, the identifiers used and the rules and procedures for obtaining the data and identifiers by interested authorities and organisations. By 1 July 2011 the information resources must be brought into line with the Resolution and following this date the interested authorities and organisations should be able to obtain electronic information about persons and/or properties, as well as identifiers upon request.
Those federal executive authorities which exercise regulatory functions have been given until 1 July 2011 to issue departmental regulatory instruments necessary to implement the Resolution, as well as other instruments which would regulate the provision of identifiers and information about persons and/or properties to interested authorities and organisations, and to create the regulatory framework for registering and processing any reports about mistakes in the information and correcting the reported mistakes.
Beginning 1 July 2011 the "interested authorities and organisations" are discouraged from independently collecting and keeping information about persons and/or properties where such information is held by an appropriate information resource in respect of which they are not the authorized body.
It should be stressed that the Resolution does not provide for disclosure of information to any third parties; rather to a limited number of persons who are involved in providing public or municipal services. In essence, this is about an exchange of electronic data between relevant governmental agencies. At this point it is difficult to draw any conclusions about the way in which the Resolution and other regulatory instruments envisaged in it may affect those individuals and companies whose details and information are going to be disclosed, and how this may affect the likelihood of third parties accessing such information. We would have to wait until the relevant regulatory instruments come out and it may be worthwhile to check the official websites of the relevant governmental agencies in May 2011.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.