Escala de observación “inclusividad en el centro”

There are a range of forms of credit support available

under Russian law . Taking effective security under

Russian law has, however, historically been

problematic . The reasons include the unavailability of

security over certain classes of assets and the

inadequacies of the security public record and the

enforcement regime . However, the changes to the

security enforcement regime introduced in 2009 and

2012 have considerably improved the position and, in

particular, the protection of secured creditors .

PLEDgE OvER ASSETS

A pledge grants creditors the status of secured creditors in the event of the debtor’s insolvency and, accordingly, priority over the claims of unsecured creditors (up to the value of the pledged assets) . The recent amendments to the regulation of pledges and mortgages ensure that secured creditors receive at least 70% of the value of the pledged assets ahead of any personal, public or any other unsecured claims in the case of the debtor’s insolvency .

Russian legislation provides that a valid Russian law pledge must: be recorded in writing;

include certain information relating to (amongst other things) the nature of the secured obligations and details of the nature and location of the property that is the subject of the pledge; and generally, be granted by the owner of an asset .

The pledge may be enforced only if the debtor under the secured obligation has failed to perform the obligation . Additional restrictions are set out in the relevant legislation . For example, the Civil Code provides that a court can refuse to order execution if the debtor’s failure is insignificant and the amount of the secured creditor’s claim is not commensurate with the value of the pledged property . The parties can agree in the pledge agreement that the levying of execution against the relevant property can occur without a court order . Save for limited exceptions, out-of-court enforcement of pledges will be available only on the basis of an executive endorsement of a notary . In practical terms it means that in order to initiate the enforcement of most pledges, a pledgee will have to apply to a Russian notary for an executive endorsement on the pledge agreement, which will allow for further realisation of the pledged property in accordance with the terms of the pledge agreement .

The relevant legislation provides that a notarial executive

endorsement may only be granted by a Russian notary in respect of pledge agreements which have been notarised . Given the resulting cost implications – in most cases notarial certification is rather expensive – our view is that the potential benefits of the out-of-court

enforcement should be carefully considered for each transaction before a decision is taken to notarise the pledge .

Recent liberalisation of the pledge enforcement regime permits the pledgee, in addition to a public sale (which was the only available enforcement option before the recent amendments took effect), to sell the pledged assets to a third party or take possession of the secured asset . These additional options are not available if the pledge is granted by an individual .

PLEDgE OvER “gOODS IN TURNOvER”

A pledge over goods is used where the relevant group of assets may fluctuate from time to time free from encumbrance and without the permission of the pledgee . Additional goods of similar value and characteristics must however be added to the pool of pledged “goods in turnover” so as to maintain the aggregate value of the pool at a certain pre-agreed level . The key to the workability of this type of security is the need, at all times, to be able to identify and keep separate the goods which are subject to the pledge and to ensure that the pledgor does not dispose of goods in contravention of the pledge agreement .

PLEDgE OvER ShARES AND PARTICIPATORy INTERESTS

A pledge of Russian shares is subject to registration in the

shareholders’ register and does not entail a transfer of voting rights to the pledgee . The right to receive dividends may be transferred to the pledgee . As of 1 July 2009, a pledge of a participatory interest in an LLC (in contrast to the pledge of Russian shares) has to be notarised and recorded in the public register .

MORTgAgE

A mortgage is a specific category of pledge, which is used to create security over immovable property and certain categories of movable property (such as ships and aircraft) . The rules discussed above regulating pledges are also applicable to mortgages . The key difference between a pledge and a mortgage is that a mortgage becomes effective upon its state registration and, in the absence of such registration, is considered to be null and void . Recent

amendments to the regulation of mortgages permit parties to enforce a mortgage without recourse to courts (unless a limited number of exceptions apply) .

Similarly to the position on pledges described above, the out-of-court enforcement in respect of mortgages will be available only on the basis of an executive endorsement of a notary, which may only be granted by a Russian notary in respect of mortgage agreements which have been notarised .

The enforcement options which are available to the mortgagee are not identical to those available to the pledgee and include a public sale and taking possession of the secured asset (this option is not available if the mortgage is granted by an individual) .

SECURITy OvER BANk ACCOUNTS

Russian law does not permit the taking of security over bank accounts or monies held in bank accounts . Nor is it possible to create an effective mechanism in relation to the debtor’s rights to a bank account, since the mandatory provisions of Russian banking law stipulate that the rights of the holder of a bank account may not be contractually restricted . An instrument which is sometimes used as an attempt to create “quasi” security over bank accounts is a direct debit rights agreement, which permits the creditor, upon the occurrence of an event of default, to debit the debtor’s account without a specific instruction or the consent of the debtor . This agreement, however, cannot prevent the debtor from debiting or closing the account, and, accordingly, offers little comfort to creditors .

ASSIgNMENT

Assignment in this context means the transfer of rights but not obligations . An assignment will transfer to the new party all (or part of) the existing party’s rights under the relevant agreement . Russian law has historically imposed stringent restrictions on assignment (for example the assignment of future rights and partial assignment were prohibited) . This stringent approach, however, underwent changes following the Supreme Commercial Court’s explanatory note issued in October 2007 which purported to liberalise Russian assignment rules .

SURETyShIPS

A suretyship is an undertaking by one party (the surety) to be liable for the obligations of another party upon default by the latter . Suretyships are often given by a borrower’s parent company or by another company in the same group . The surety may also be required to give security over its own assets to support its potential liability under the suretyship .

The suretyship is a “quasi” security instrument, since it does not create a proprietary interest but merely gives a creditor a contractual right to recourse against the relevant entity .

BANk gUARANTEES

A bank guarantee is another category of “quasi” security instrument and, in essence, is similar to a suretyship . The difference between a guarantee and a suretyship under Russian law is that only credit and insurance organisations may provide guarantees and a guarantee creates an independent obligation of the guarantor to pay the amount stipulated in the guarantee, whereas a suretyship creates a secondary payment obligation .

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