Юридические документы о лизинге.
Проект документов о лизинге учрежден 01-10-1999 ; редакция от 01-11-2001.
Международная лизинговая энциклопедия.
The International Leasing Encyclopedia by Steven Gilyeart.
Энциклопедии не было в интернет последние полтора года, но это не означает, что ее нет вообще. я взял на себя смелость разместить на этом сайте всю подборку статей (собственно энциклопедию), с указанием адресов электронных почт авторов материалов и редактора. Материал на английском языке.
Legal and Regulatory Framework for Leasing in Russia During 1999 (Part 1)
by Derek A. Bloom, Esq., Coudert Brothers, Moscow, [email protected]
Introduction While optimism about the future of the Russian economy must presently be highly circumspect, the economic crisis that overtook Russian public finance and banks during the fall of 1998 marked the end of an era of high-risk, high-yield investments in government and corporate securities that followed the break up of the Soviet Union in December 1991. To the extent that more foreign and domestic Russian funds may now be directed into productive assets (if only because various other forms of high-risk, high-yield investments are no longer available) and the Primakov government imposes effective limitations on capital flight, some good may come from Russia's new time of troubles As a back-drop to planning future leasing activities in Russia, it is necessary to understand the principal frustrations encountered with leasing during the seven years since the break-up of the Soviet Union. First and foremost, little or a noticeable lack of capital has been available to finance lease transactions. Investments in Russian government and corporate securities during the period were made at the expense of investments in new productive assets. The bidding up of the value of corporate securities in 1996 and 1997 continued speculative gains reaped by insiders during Russia's mass privatization of former Soviet enterprises. In this environment, new owners of Russian industry largely postponed long-term investments in the enterprises acquired, had insufficient capital, or lacked a real intention to undertake such investments. Second, large-scale capital flight from Russia during the period reportedly greatly exceeded the value of inbound loans and investments, resulting in a reduction of available capital that could have been applied to retooling Russian industry via leasing or other forms of capital investment. Third, the government postponed the development of necessary legal and regulatory infrastructure. Regulation of the banking sector has been shown to have been insufficient to safeguard deposits or to stave off a system-wide banking crisis. Increasing amounts of government and corporate borrowing hid the fact that amounts owed exceeded what could be repaid. Reckoning time arrived in mid-August 1998 when the government defaulted under its short-term treasury obligations ("GKOs"), immediately precipitating the collapse of the nation's banking system, currency and stock market. Fourth, Russian banks, which often lacked capital, preferred to invest what funds they did have in high-risk, high-yield instruments, and previously in currency speculation. The return from investments in more mundane equipment financing transactions, or other operations needed by Russian industry, seemed paltry in comparison. Russian leasing companies, for the most part subsidiaries of Russian banks, accordingly had very little capital made available to them. Russian leasing companies could not finance large scale imports of foreign equipment, or adequate amounts of new Russian equipment. Many viable leasing projects considered by Russian leasing companies that showed an ability to generate sufficient cash to pay lease obligations went unfunded. Cross-border leasing transactions by Russian leasing companies were used mostly as a conduit for foreign capital in transactions involving the pledge of export proceeds, or a shift of the risk of loss to foreign manufacturers, foreign banks, various national export credit organizations, and multilateral organizations. As a result of the fall 1998 banking crisis, those domestic Russian banks which survive will be even less able to provide financing for leasing transactions or their subsidiary leasing companies. Several Russian bank-controlled leasing companies are likely to attempt management buy-outs and other forms of acquiring independence from their parent banks. Foreign banks operating in Russia are likely to be focused on short-term export financing activities, rather than comparatively long-term equipment financing transactions. Many foreign banks which, in the recent past had been developing a willingness to finance sales into Russia on a cross-border basis have in many cases suffered large losses on Russian GKOs and are under internal instructions not to extend further credit to Russian enterprises. Under these circumstances, Russian enterprises desiring to acquire foreign equipment will, even more than before, need to obtain financial assistance from foreign equipment manufacturers, foreign captive finance companies, and those foreign banks still active in the Russian market. The need for lease transactions financed with Western capital should be greater than before the 1998 collapse. Fifth, the Association of Russian Leasing Companies and prominent Russian leasing companies had, during the period leading up to the fall 1998 financial crisis, continually supported poorly constructed legislation, discussed below, which should be substantially re-worked before being enacted into law. The primary objective of draft legislation has been the creation of extra-judicial means of repossessing equipment, and establishing various special tax and customs privileges for leasing transactions which conflict with otherwise generally applicable Russian laws. Various legislative and regulatory efforts also have tried to ward off competition from foreign lessors. Sixth, the weakness of Russian law enforcement authorities has slowed leasing in Russia. In some ways, the special benefits sought in draft lease laws reflected an attempt to legitimize the evasion by leasing companies of the taxes and import duties regularly avoided in "gray market" transactions. During the period since the break-up of the Soviet Union, legitimate leasing transactions and other business transactions have, in many cases, competed unsuccessfully with various schemes to import equipment to Russia in manners that systematically avoid customs duties, import value-added tax ("VAT"), and currency law requirements. Legitimate transparent leasing transactions have appeared to Russian end-users to be relatively more expensive than various alternative transactions. The prevalence of gray market transactions has distorted and thwarted the market for legitimate vendor financing in Russia. The niceties of the tax deductibility of leasing payments, as compared to the limited deductibility of interest payments, and the debate whether on-shore or cross-border leasing is more advantageous had been reduced to a somewhat academic discussion. Russian enterprises have sought to acquire equipment at the lowest possible cost, even if this meant participating in questionable transactions. Russian enterprises have also had to deal with players who could actually deliver the goods. Since global equipment financiers have largely been reluctant to expose themselves to a group of risks generally referred to as the "Russia risk," Russian enterprises have largely had to make do with gray market transactions or go without new equipment. In gray market schemes, goods are imported on a tax-free basis, largely in the guise of contributions to the capital of new companies by Russian controlled companies posturing as "foreign investors." Russian laws provide tax benefits for foreign investment in Russia, and a myriad of ways have been designed for domestic Russian companies to take advantage of these benefits. The resulting wholesale avoidance of customs duties and import VAT have been at a huge expense to the Russian treasury and raises policy questions about the merit of continuing such benefits. Further, the widespread fraud and abuse in customs clearance procedures involving falsification of the value of imported goods, and reduction or elimination of customs clearance expenses raises similar concerns. The intermediaries who facilitate such transactions have added such large mark-ups to the cost of the goods delivered to Russian end-users that they appear on the verge of pricing such transactions too high. In some instances, the cost of gray market transactions has reached the point that the overall cost for Russian end-users of acquiring equipment through such transactions is almost as high as if all taxes and duties had been paid in fully transparent leasing transactions. Consequently, market forces may potentially to shift the prevalent means of equipment financing in favor of legitimate leasing transactions. In terms of providing approximately the same level of cost to customers, taxpaying leasing companies which use the benefit of the lower cost of capital available to them from foreign sources should be able to compete successfully with the various schemes prevalent in Russia to date. Enlightened lawmakers should seek means of shifting the economics of equipment acquisitions in favor of fully transparent transactions. A law enforcement crack-down on questionable transactions would help swing the balance and produce more revenue for the Russian treasury. In the meantime, the insufficiency or unavailability of legitimate forms of financing has left the field open to gray market operators. Finally, a perception that legal remedies available to lessors in Russia are inadequate has impeded leasing. While improvements may and should be made to Russian laws to clarify the procedure to repossess leased equipment, leasing is fundamentally a legally stronger form of financing equipment deliveries to Russian customers than a pledge of equipment purchased with loan proceeds. Pledged equipment must be auctioned off in a protracted proceeding that may or may not produce a sale at a fair price. Leased equipment may be repossessed, although generally also only after legal proceedings. The delivery of large amounts of equipment through a lease company allows for the realization of economies of scale, the development of expertise at import operations, and the prospect of more sophisticated means of refinancing a lease company. Leasing separates ownership from the right to use equipment. Leasing allows for off-balance-sheet financing which is important to some lessees in Russia, notably banks. In short, the traditional advantages of leasing recognized throughout the world should come to the fore in Russia as well. The ongoing economic crisis in Russia will quite possibly mark a turning point in favor of an acceleration of lease financing. Part 2 ...
Updated 5 July 1999