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 2)
by Derek A. Bloom, Esq., Coudert Brothers, Moscow, [email protected]
The Need for Independent Vendor Financing The foregoing circumstances imply a go-it-alone, do-it-yourself strategy as the best one for financing equipment sales in Russia. Financing remains essential to equipment sales in Russia because most potential customers in most industries, and the banks which service such customers, do not have sufficient capital to finance a purchase of needed equipment. Yet, foreign equipment manufacturers in various industries have spent years and incurred great expense in seeking financing solutions in Russia that do not exist. Where transactions have been constructed using Russian leasing companies as intermediaries, on the whole, the foreign company involved has underwritten such lease transactions and retained all the financial risks. The net result has been a level of expense to customers so high that it frustrates sales of the vendor's products, allowing fully legitimate transactions to be undercut by competing "gray market" transactions. Major global equipment vendors or financiers attracted to strategic opportunities to lease their equipment domestically in Russia should consider assuming the responsibility for providing necessary financing to their customers. Few viable partners exist among the banks and leasing companies in Russia. This is particularly true going into 1999 because many existing Russian leasing companies face bleak futures due to their affiliated banks facing insolvency and liquidation. As noted above, the use of external financial intermediaries who mark-up the cost of financing to end-users will raise the risk of failure to accomplish the desired strategic objective. Lease transactions which exceed the cost of competing gray market transactions, or which greatly exceed the cost of loan financing on an after-tax basis, will not be viable in the marketplace. In short, an efficiently run, wholly-owned, or controlled financing operation in Russia should be able to compete successfully in facilitating sales of new equipment, at the same time providing protection against many of the risks noted above. A further practical step for strategic investors in large projects is to obtain corporate control over lessees. Such control may be obtained by forming joint ventures to serve as lessees. Control may be exercised over these joint ventures through control of preparation of their charter documents and subsequent corporate activity. At least a blocking minority interest in lessees must be obtained to utilize this strategy. Options may be granted to joint venture partners to acquire control of the lessee once its financing obligations are satisfied. Potentially, offers of equity stakes in a lessee may co-opt key regulatory and business partners, providing a positive incentive to facilitate the lessee's success and fulfillment of its obligations.
Existing Laws Governing Leasing in Russia During 1998, as discussed below, a new federal law on leasing was signed by President Yeltsin on October 29. Prior to passage of this new law, the practical impact of which is still under evaluation, the legal environment for leasing had been quite stable since Part Two of the Civil Code of the Russian Federation entered into force on March 1, 1996. Part Two describes alternative forms of rental and leasing activity in Russia, and is regarded as providing a workable legal framework that replaces, in part, the Interim Regulations issued pursuant to Resolution 633 in June 1995. The Interim Regulations remain in effect only to the extent that they do not conflict with the Civil Code. As noted above, the legal environment in Russia is far from being the most significant constraint to leasing activity. However, it does present significant risks which must be understood, planned for, and accepted by any leasing company conducting business in Russia. Established laws governing lease transactions and freedom of contract in Russia allow global lease companies to operate in Russia in much the same manner that they operate in other developing economies in the world. Concerns about the legal environment for leasing in Russia apply equally to all other types of financing. These concerns include the enforceability of contracts in general, including the procedure and cost of enforcing pledges, guarantees and set-off agreements. Settling a dispute in an adversarial manner in Russia through the use of courts and arbitration proceedings is frequently expensive. The filing fees alone for an arbitration proceeding may be significant. If a contract provides for arbitration outside Russia, such as in Sweden, the subject of that contract must be quite valuable or the cost of the selected dispute resolution mechanism may be prohibitively high. For example, unwary equipment have been forced to form joint ventures with customers in default and contribute the leased equipment to the charter capital of start-up ventures. These ventures were never intended to exist because the cost of reclaiming that equipment through an adversarial proceeding was simply too high, and alternative types of financial security were practically unenforceable. As in other jurisdictions, leasing offers the legal advantage, as compared to lending funds to purchase an asset and taking a pledge of the purchased asset, that the lessor retains ownership of the asset involved. The procedures to enforce pledge rights in Russia are cumbersome and untested. Generally, a court proceeding and an auction of the property are required - a creditor may not simply take possession of pledged property. Also, debtors have various protections that may substantially delay enforcement of a creditor's rights. In contrast, a lessor will have a clear contractual right to repossess leased equipment. Yet, in practice, difficulties arise in enforcing a lessor's rights in Russia in the event of default. Russian finance lease companies express frustration with the amount of time required to enforce repossession rights in the Russian legal system following breach of a lease's terms. Certain provisions in the Russian Arbitration Code intended to expedite enforcement proceedings still take three months or more in practice. Sometimes, a lease company will forcibly take repossession of leased property. Forcible repossessions leave a lessee to start a legal proceeding if it claims that its rights as lessee were violated, despite the lessee's default under the terms of its lease. In the case of leased equipment installed in distant locations, or equipment such as oil field equipment that is installed underground, retention of the right of ownership may be of little real value. Repossession of leased assets, as elsewhere in the world, is the least desirable method of addressing a default, and may be logistically impossible in some cases. Thus, in addition to retention of the right of ownership of an asset under Russian law, various other arrangements are always made in lease transactions in Russia to secure the payment of lease charges. Less comfort is taken from the retention of ownership rights than in most other jurisdictions in the world. Certain Russian commentators have noted that Russian leasing companies and banks very rarely regard their ownership of a leased asset alone as adequate security in a lease transaction. These same commentators have also noted, with some incredulity and seeming amusement, that representatives of the European leasing companies advocating the retention of ownership of leased assets as the best form of security for the financial risk entailed in lease financing do not appear to understand the practicalities of the general Russian legal environment. Typically, Russian lease transactions only go forward with extensive and duplicative additional means of financial security in addition to the retained rights of ownership set forth in a lease contract and in the Civil Code. Additional forms of security for lease transactions include guarantee agreements from equipment vendors, guarantees from companies affiliated with a lessee, re-sale agreements, price guarantees, pledges of other assets owned by a lessee, off-shore escrow accounts, bills of exchange from off-shore banks, and other mechanisms. A requirement for insurance against loss of the equipment and repossession risks is becoming increasingly common in Russian lease financing. Several Russian insurance companies offer such coverage backed by re-insurance provided by various European insurance companies. The leading global and Russian leasing companies operating in the country are finding realistic solutions to most problems that may be encountered, and are setting their approval criteria high prior to entering into proposed transactions in order to avoid obvious risks. As elsewhere in the world, good credit analysis, significant non-refundable down payments, and use of the best available forms of security interests and insurance are both the most effective means of securing a lessee's promise to pay and the first resort in the case of default. A lease contract must also be soundly written, from a legal point of view, so that its terms are enforceable and avoid hidden problems presented by Russian legislation. Various grounds for rescission of the contract need to be examined and reflected in the contract. One practical issue should be kept in mind while the ruble is declining in value. Lease contracts should obligate lessees to pay a sufficient amount of rubles as of the date payment is received by a foreign leasing company in order to be converted into the required amount of hard currency payments the date payment is received. While the ruble was declining in value and the banking system was paralyzed in September 1998, changes in applicable exchange rates between the date lessees made payments and such payments were actually received resulted in losses for lease companies. Continue Beginning of Series
Updated 9 August 1999