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FEDERAL ANTIMONOPOLY SERVICE
Control over foreign investments into the entities
of strategic importance (the Russian model)
Mr. Andrey Tsyganov
Deputy Head
FAS Russia
Legal foundations for regulation of foreign
investments
The FAS Russia is an authorized federal agency that controls
foreign investments into the strategic economic entities.
• The legal basis for implementation of these functions are the
Federal Law №57-FZ “On Procedures for Foreign Investments in
the Business Entities of Strategic Importance for the Russian
National Defence and State Security” and the Federal Law №160FZ “On Foreign Investments in the Russian Federation”, as well
as a number of Resolutions of the Government of the Russian
Federation.
The main objective if the presentation is review of the
enforcement practice of the Federal Antimonopoly Service under the
Law в„– 57-FZ.
2
Control over foreign investments into strategic
entities
The
Federal Law №57-FZ of 29.04.2008 “On
Procedures for Foreign Investments in the Business
Entities of Strategic Importance for the Russian
National Defence and State Security” sets forth:

restrictive exemptions for foreign investors when
purchasing shares of strategic economic entities or
acquiring control over such entities;
 list of strategic types of activity;
 the procedure for submission and consideration
of the notifications of foreign investors when
investing in strategic economic entities;
 sanctions for non-observance of the requirements
of the legislation.
3
www.fas.gov.ru
Types of control over foreign investments in strategic
sectors
Preliminary – submission of notification in
accordance with requirements of the parts
1-4 of the Article 7 of the Law в„–57-FZ.
Subsequent – envisages submission of:


4
petition (information) on acquiring of 5%
and more percent of shares (stocks) in
authorized capital of the strategic entity in
accordance with Article 14 of the Law в„–57FZ;
notification on establishing control in
accordance with the part 5 Article 7 of the
Law в„–57-FZ.
www.fas.gov.ru
Terms of transactions that establish control of foreign
investors over strategic business entities
Decision of the Government Commission for Control over Foreign
Investments in the Russian Federation on preliminary approval of
transaction
Conclusion of the agreement on fulfilling
of obligations in accordance with part 3
Article 12 of the Law в„–57-FZ
Execution of transaction by foreign investor within the period of set by
the decision of the Commission
5
www.fas.gov.ru
Basic indicators that characterize enforcement practice
of the Law on foreign investments
From the date of entering into force of the Law в„– 57-FZ the FAS Russia
received:
► 174 notifications (136 – under the Law № 57-FZ
38 – under the Law № 160-FZ);
► 413 petitions (276 – under part 3 Article 16 Law № 57-FZ
137 – under Article 14 Law № 57-FZ);
в–є 56 requests under part 6 Article 8 Law в„– 57-FZ;
в–є 233 applications from foreign investors, strategic economic entities,
federal state authorities on application of the Law в„– 57-FZ;
в–є 33 requests from the Federal Subsoil Resources Management Agency
on receiving and remaking of the licenses on the right to use spots of
subsoil of federal importance.
6
General characteristics of the received notifications
The list of applicant who submitted notifications included:
в–є 10 international organizations
в–є 24 organizations under control over foreign state or
international organization
в–є 131 private foreign companies
Foreign investors who submitted notifications with regard
to economic entities of strategic importance were from 29
foreign states.
7
General characteristics of the received notifications
Out of 174 received notifications:
56% – related to the sphere of using spots of subsoil of federal
importance;
19% – relation to the sphere of development, production and
expansion of the cryptographic hardware, including 15% in the bank
sphere;
11% – related to the sphere of natural monopolies activity;
9% - related to the sphere of TV and radio broadcasting and
polygraphy;
5% - related to other strategic sectors of activity.
8
Outcome of consideration of notifications
submitted to the FAS Russia
99 notification were considered by the FAS Russia within its competence, out
of them:
в–є 17 notifications with regard to credit organizations were considered in a
simplified way;
в–є on 51 notifications the FAS Russia took decision on return of the
notifications due to the absence of establishment of control over strategic economic
entity;
в–є 4 notifications were returned without consideration due to the incomplete
set of required documents or due to non-provision of lacking information in due
timeframes;
в–є 4 notifications were returned to applicants as the notified transactions fall
under exemptions set forth by part 4 Article 4 of the Law в„–57-FZ;
в–є
on 2 notifications the FAS Russia took decision on their return, as
applicant didn’t have a right to conclude transactions that lead to establishment of
control over strategic economic entity;
в–є 21 notifications were withdrawn by applicants due to their refusal to
conclude the notified transactions or necessity to further elaborate materials under
notification.
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None of the FAS Russia decisions was appealed to court.
Enforcement practice under the Law on foreign
investments
During eight meetings of the Governmental Commission there
were considered 47 notifications of foreign investors, out of them:
• 38 – were cleared;
• 2 – were declined;
• 7- were cleared with imposing of remedies defined by the part 1
Article 12 of the Law в„– 57-FZ (to implement these decisions the
FAS Russia concluded 5 agreements, in two cases the investors
refused from conclusion of notified transactions).
It should be noted that presently the FAS Russia is considering 28
notifications from foreign investors. 8 notifications are ready to be
considered during the next meeting of the Governmental Commission.
10
Outcome of consideration of petitions, requests and
applications under the Law в„–57-FZ from its enaction
Out of 413 received petition there were considered:
274 petitions – under part 3 Article16 (this part is almost finished)
131 petitions – under Article 14
8 petitions are being considered.
Part of the petitions was submitted with violation of the established order (with
regard to period of submission or scope of the required documents).
Out of 56 requests of foreign investors submitted in accordance with part 6 Article
8 of presently 55 requests were considered.
Out of 233 applications submitted by foreign investors, strategic economic entities
and federal state authorities there were considered 230 applications. The rest are
being considered.
11
Development of legal basis for control over foreign
investments in strategic economic sectors
In order to avoid a number of typical mistakes made by
foreign investments under submission of notifications under
part 6 Article 11 of the Law в„– 57-FZ there was adopted a
Resolution of the Government of the Russian Federation of
17.10.2009 № 838 “On adoption of Rules for preliminary
clearance of transaction and establishment of control of foreign
investors or group of persons that consists of foreign investor
over economic entities of strategic importance for ensuring state
defence and security”.
12
Overview on Resolution of the Government of the Russian
Federation of 17.10.2009 в„– 838
The Rules developed by the FAS Russia and adopted by the
Government:
пѓј specified requirements to the notifications submitted by foreign investors;
пѓј introduced order for defining the date of submission (registration) of
notification if the applicant submits one by one a number of interrelated
notifications with regard to one strategic economic entity or introduces
amendments to the text of notification after its submission; determined the rights
of the authorized agency for conduction of inspection of strategic economic
entity;
пѓј regulated the order for concluding agreements between the FAS Russian and
foreign investor on ensuring fulfillment of obligations determined by the
Governmental Commission.
13
Improvement of legislation on foreign investments
(first package of amendments)
The FAS Russia elaborated and submitted to the Government of the Russian Federation
the draft bill on introducing amendments to the Law в„– 57-FZ that amid alia envisages:
• exemption from the sphere of transaction control; within the frameworks of the extra
emission, in case it results in absence of change in the share of the foreign investor our its
group of persons in its authorized capital;
• reduction of the list of strategic types of activity (activity of commercial banks in the
sphere of cryptography, radioactive sources, usage of agents of infection);
• Improvement of the number of procedural aspects in consideration of notification,
including the order for concluding agreements between the FAS Russia and foreign
investors with regard to terms of fulfillment of their obligations determined by the
Governmental Commission when clearing the transaction.
Draft bill is aimed at liberalization and improvement of control over foreign investments
in strategic economic entities.
Moreover, proposals on mitigation of rules for control over foreign investments with
regard to transactions in the sphere of usage of subsoil spots of federal importance are
presently widely discussed.
14
CONCLUSION
• All legal regulations on control over foreign investments in
strategic economic entities are applied in practice.
• Regime of control is quite liberal.
• During two years of application of the Law № 57-FZ out of
174 notifications that were submitted for consideration it was
only in two cases that there was taken a decision on refusing the
deal.
• The judicial practice is being formed.
• Enforcement issues and issues on improvement of legislation
are subject to public discussions.
15
THANK YOU FOR
ATTENTION!
www.fas.gov.ru
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