Russian Federation: FinTech Legal Landscape In Russia

Last Updated: 31 October 2017
Article by Roman Buzko

Financial technology ("FinTech") industry is booming all around the world, while regulators are trying to cope with emerging technologies without hampering innovation at the same time. Being in its infancy, the Russian market may present an untapped opportunity for both national and global FinTech players. This attractiveness mainly stems from the fact that Russia is the sixth largest country in the world and number one in Europe by the number of Internet users.

FinTech industry, in turn, heavily depends on regulations, with some innovative companies often itching the boundaries of available regulatory frameworks. In this context, FinTech players looking at the Russian market are ever more frequently seeking guidance on existing regulations and prospective policies. As always, the departure point is whether there are any regulations at all.

Below, we cover regulatory aspects of the selected FinTech segments, such as crowdfunding, P2P lending, robo-advising, cryptocurrencies and some other. Thereafter follows an overview of regulatory topics that touch upon most of the FinTech business models, such as licensing and securities laws. A brief audit of available state incentives for FinTech companies in Russia is provided at the end.

Regulation of Selected FinTech Segments

(1) Crowdfunding

There is no specific regulation of crowdfunding in Russia. Companies are experimenting with different models at the moment. There are both pure crowdfunding platforms (where funds are provided in exchange for symbolic tokens, without expectation of any profits) and crowdinvesting platforms (where funds are provided in exchange for a stake in the underlying business).

Crowdfunding is likely to remain unregulated in the future. Crowdinvesting is different, and the Central Bank of Russia (the "CBR") has already voiced its concerns about the business model and promised to take a closer look.

(2) Crowdinvesting

In contrast to crowdfunding, crowdinvesting implies that investors obtain a valuable interest in a project with the expectation of profits in the future. Several crowdinvesting schemes have been tested recently. Two of them are currently being implemented on a sustainable basis.

  1. Online-to-offline. In this scheme, a platform would solicit projects looking for investments and aggregate such projects on its online marketplace. Potential investors would then be able to review suggested projects and decide whether they want to invest. If the investment transaction goes ahead, the platform would collect its fees. Since most of the investee companies are registered as limited liability companies (LLC), actual transactions take place offline because the transfer of interest in LLCs is subject to notary certification (thus, the name "online-to-offline"). Platforms themselves are not subject to any licensing formalities, in contrast to the US, where, for instance, AngelList is registered as an investment adviser. StartTrack is the most active player in this segment on the Russian market.
  2. Unit investment funds. This is a relative new scheme implemented in the domain of real estate investments. Under this scheme, a platform acts as an intermediary between investors and real estate owners. The platform selects promising real estate and makes it available for investors online. Once investors have committed enough capital to acquire a real estate, the platform would then arrange the formation of a 'closed unitary investment fund', separate for each real estate object and run by a professional investment management company. Following the fund formation and acquisition of the real estate, units in the fund are distributed among the investors. The platform would charge a one-time subscription fee and continuous management fees. This scheme is similar to well-known foreign projects, such as RealtyShares and RealtyMogul. AKTIVO is the first company in Russia operating this scheme. What makes this arrangement particularly attractive for real estate investments is that potential investors do not have to be qualified, as opposed to investors in funds aimed at venture investments.

(3) Automated Investment Tools / Robo-Advisors

Unlike in some other countries, there are no rules in Russia applicable to companies or individuals providing investment advice, as long as they do not handle securities. The latter would require a broker-dealer license. In contrast, an 'investment adviser' in the US is a broadly defined term covering any person who, for compensation, is engaged in the business of advising others on securities under the Investment Advisers Act of 1940.

In the context of FinTech, this regulation of investment advisers is particularly relevant for a growing industry of the so-called 'robo-advisers' or automated investment tools. Indeed, this segment of FinTech business is one of the most promising areas, given its potential for scalability. At least in a perfect world, a sound investment advice should be no different across the borders. Neither does a comfortable taxi ride, which makes many investors think that the automated investment industry is prone to "uberization."

On an international scale, such companies as Betterment, Wealthfront, Acorns and many others are already active in the segment of automated investments. In Russia, several banks are offering automated advising services and a few startups are testing the waters, such as FinEx Financial Autopilot.

(4) Consumer Lending

Consumer lending performed on a regular basis is a regulated activity in Russia. Consumer credits and loans are deemed to be provided on a regular basis if issued no less than four times during a calendar year. Consumer loans may be issued either by banks or financial organizations.

Banks are subject to licensing requirements, whereas financial organizations are subject to less burdensome registration and capital requirements. The essence of regulations in this area is to ensure consumer protection. This takes the form of interest caps and requirements relating to specific terms of consumer loan agreements.

(5) P2P Lending

So far, P2P lending is not subject to any specific regulation. This may change, however, in the future, since the CBR has already committed itself to regulating the industry. It is likely that regulation would be similar to the one in foreign jurisdictions, where the focus is on capital stability of an intermediary (P2P platform) and proper consumer protection, such as disclosure.

(6) Cryptocurrency

Cryptocurrencies are not regulated in Russia yet. This does not mean, however, that the regulator remained silent when the public interest in Bitcoin soared during the peak prices of 2013-2014. Then, the CBR emphasized that the issuance of 'monetary surrogates' in Russia is illegal (without clarifying what 'monetary surrogates' are), whereas the Prosecutor General warned of a 'speculative nature' of cryptocurrencies. This was soon followed by a draft law introducing the definition of 'monetary surrogates' and criminalizing any transactions with them with prison sentences up to six years. The bill has not become a law, marking a swift shift in regulatory approaches to cryptocurrencies.

According to the most recent statements from the officials, the Russian Parliament is currently working out various approaches to put cryptocurrencies within the legal framework. Four approaches are currently under investigation, by virtue of which cryptocurrencies will become: (1) monetary instruments; (2) financial instruments; (3) commodities or (4) monetary surrogates. Whatever the chosen approach is, the devil will be in the details at the intersection with adjacent areas of law (such securities regulations, taxes and currency control).

As to blockchain, a technology underpinning Bitcoin and most other cryptocurrencies, the Russian regulatory framework lacks any provisions in its respect either. However, one should expect that the anonymous character of transactions executed via certain blockchains may raise regulatory concerns in the area of KYC and AML.

(7) Binary Options

Binary option is a financial instrument where the payout depends entirely on the outcome of yes/no proposition. The industry is having good times at the moment, with new binary option operators appearing every now and then. The approach of regulators, however, is not so binary, but rather is a spectrum: from explicit ban to the lack of regulation. Between these are two dominant approaches: binary options are either treated as gambling, such is in the UK where they fall under the UK Gambling Commission's supervision, or regarded as a financial instrument, such as in the US and Cyprus. Nevertheless, consequences of both approaches are often the same – an operator must either has gambling or broker-dealer license.

As to Russia, binary options are not regulated. Applying existing regulatory frameworks may lead to classifying binary options as either a form gambling or a type of financial instrument. A more balanced approach, from our perspective, is to conclude that the binary options market, like the FOREX market until recently, simply lies beyond the reach of current regulatory frameworks. The CBR has not yet taken any stance on binary options; however, it did announce in its regulatory strategy for 2016-2018 that it would provide guidance on this issue. This announcement was made in the document's section related to consumer protection and gambling.

Other Relevant Aspects

Licensing Requirements

One of the strategic drivers for the development of FinTech industry is the idea that companies offering selected financial services, without undertaking full-scale banking activities, are not subject to licensing or other burdensome requirements. This logic equally applies to the Russian market, where the provision of most of traditional financial services is subject to licensing.

Securities Laws

Russian securities laws provide for an exhaustive list of securities. Anything that does not fall within the list is not subject to issuance and disclosure requirements. The list includes classic securities, such as shares of stock, bonds, bills of exchange, bills of lading, etc. This approach significantly differs from that in the US, where an open-ended list of securities is set forth in the Securities Act of 1933 and includes such catch-all terms as "investment contracts" and "evidence of indebtedness."

With the advent of new financial instruments, the "exhaustive list" approach may not capture innovative offerings. For example, the Russian FinTech market has already witnessed a public offering of options for future shares of stock placed by a company in anticipation of it going public in a few years. This would have likely qualified as a public offering under the US securities law with all regulatory consequences, but passed undetected in Russia.

Foreign Securities in Russia

Foreign FinTech organizations looking for expansion into the Russian market should be aware of the following rules. First, foreign securities may be publicly offered in Russia only upon admission by the CBR. Unadmitted foreign securities, as well as foreign financial instruments not qualified as securities may not be publicly offered in Russia. The question for a foreign FinTech company would then be whether its instruments or services qualify as foreign securities or financial instruments.

Second, foreign brokers, dealers and other financial organizations are not allowed to perform or offer their services on the financial markets to the public (to an unlimited range of persons) in Russia. Administrative fines for the breach of this ban range from RUB 800,000 to 1,000,000 (approx. USD 15,000). The main question, therefore, for a FinTech company looking to offer its services in Russia would be whether its services fall within the scope of services provided by financial organizations, as defined in the law.

Foreign Currency Transactions

The main rule of the currency regime in Russia is that foreign currency transactions among Russian residents are prohibited. There are several exemptions, such as transfers among relatives, currency bank credits, duty-free stores, etc. This prohibition does not often intervene with FinTech business models, but is worth remembering. For instance, due to this rule, a P2P lending platform may not be able to handle foreign currency loans issued by and among Russian residents.

State Incentives for FinTech Companies

There are no specific incentives for FinTech companies, but existing incentives for IT and innovative companies may well apply to FinTech companies as well.

Tax Incentives for Russian IT Companies

Most FinTech companies have software development and other IT-related processes as their core activities. Such companies (Russian tax residents) may benefit from a reduced social security contribution rate of 14% (30% for other companies), which is accrued on the employees' wages.

Skolkovo

More substantial tax incentives are available for the residents of Skolkovo, a non-profit organization founded by the Russian Government to facilitate the development and commercialization of advanced technologies. Among such incentives are exemptions from corporate income tax, property tax, and VAT, as well as reduced social security contribution rates and customs payments. Notably, several Russian FinTech startups already took benefit of significant tax incentives available at Skolkovo.

Sandboxes

Many regulators around the world are experimenting with the so-called 'sandboxes' allowing FinTech companies to effectively breach regulations under the supervision of authorities. In the UK, for example, this takes the form of "no enforcement action" letters from the Financial Conduct Authority. There is no such practice in Russia at this moment.

Conclusion

As shown above, some important FinTech segments are not yet regulated in Russia. At the same time, the regulator – the Central Bank of Russia – is aware of emerging models and is likely to provide guidance in the future. There are also certain restrictions on foreign FinTech companies to do business in Russia without establishing legal presence. However, when launching their business models in the Russian market, both local and foreign players should not face any irresistible regulatory deal-breakers.

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.

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