New amendments potentially require foreign investors to disclose information about beneficiaries, beneficial owners and controlling persons as part of pre-clearance
The Government Commission on Control Over Foreign Investments in the Russian Federation (the Government Commission), which was established by the Russian government in 2008, is responsible for the review of applications. The Government Commission is headed by the Chairman of the Russian government and composed of the heads of certain ministries and other government bodies.
Of 229 applications reviewed in the last ten years, the Government Commission approved 216.
Although the final decision on the application is made by the Government Commission, all the preparatory work (i.e., reviewing an application's completeness, liaising with relevant government bodies) is done by the Federal Antimonopoly Service (FAS). FAS, among other things, performs a preliminary review of the application and prepares materials for a further assessment by the Government Commission.
An acquirer must file if the proposed acquisition would result in the acquirer's control over an entity engaged in activities of "strategic importance" to Russian national defense and security (a Strategic Entity). The acquirer is required to obtain the consent of the Government Commission prior to the acquisition of control over a Strategic Entity; otherwise, the respective transaction is void.
To apply for the consent, the acquirer must submit an application to FAS with attachments, which include, among other things, corporate charter documents of the acquirer and the target, information on their groups' structures (including the whole chain of control over both the acquirer and the target), transaction documents and a business plan for the development of the target post-closing.
TYPES OF DEALS REVIEWED
The Government Commission reviews transactions that result in acquisition of control over Strategic Entities. Foreign investors must also obtain the Government Commission's consent for certain transactions involving the acquisition of a Strategic Entity's property.
The list of activities of "strategic importance" currently comprises 46 activities that, if engaged in by the target, cause the target to be considered a Strategic Entity. The 46 activities encompass, among others, areas related to natural resources, defense, media and monopolies. The activities include not only those directly related to the state defense and security (e.g., operations with nuclear materials, production of weapons and military machines), but also certain other indirectly related activities (e.g., TV and radio broadcasting over certain territories, extraction of water bioresources and publishing activities).
The criteria for determining control are rather wide and are lower (25 percent) for a target that is involved in the exploration of "subsoil blocks of federal importance" (e.g., oil fields with a certain size of reserves, uranium mines, and subsoil blocks subject to exploration within a defense and security zone).
Foreign public investors (i.e., foreign investors controlled by foreign states or international organizations) are prohibited from obtaining control over Strategic Entities (for Strategic Entities involved in exploration of subsoil blocks of federal importance, that would mean the limit is 25 percent) or acquire more than 25 percent of a Strategic Entity's property, and must obtain consent of the Government Commission for acquisitions of the reduced stakes in Strategic Entities. In 2017, the special, stricter regime established for foreign public investors was extended to "off-shore companies" (entities registered in jurisdictions from a list approved by the Ministry of Finance, including among others the UAE, Jersey, BVI and Bermuda). Amendments adopted in June 2018 replaced the category of an "off-shore company" with the category of a "non-disclosing investor" (i.e., an investor refusing to disclose to FAS the information about its beneficiaries, beneficial owners and controlling persons). Non-disclosing investors from any jurisdiction are subject to a more restrictive regime similar to the regime applicable to foreign public investors. In the absence of any clarifications regarding the application of the amendments, the new provisions may be interpreted broadly, meaning that a foreign investor planning to enter into a transaction in respect of the Strategic Entity would likely need to make a prior disclosure of its controlling entities' beneficiaries and beneficial owners in order to avoid being treated as a "non-disclosing" investor.
Certain transactions in respect of Strategic Entities or their property are exempt from the necessity to obtain the Government Commission's approval (e.g., transactions in which the acquirer is ultimately controlled by the Russian Federation, constituent entities of the Russian Federation or a Russian citizen who is a Russian tax resident and does not have any other citizenship, as well as certain "intra-group" transactions).
Amendments to Russia's foreign investment laws introduced in 2017 gave the Chairman of the Government Commission the right to decide that prior approval is required with respect to any transaction by any foreign investor with regard to any Russian company, if this is needed for the purpose of ensuring national defense and state security. Upon receipt of such a decision from the Government Commission, FAS will notify the foreign investor about the need to receive approval for a prospective transaction. Any transaction made in breach of this requirement is void. What transactions could potentially fall under the requirements of this amendment are yet to be determined in practice. According to FAS clarifications expressed in media, in practice this rule will apply to very exclusive cases only.
SCOPE OF THE REVIEW
Generally, a review of the application assesses the transaction's impact on state defense and security.
FAS initially requests opinions of the Ministry of Defense and the Federal Security Service as to whether the transaction poses any threat to the Russian defense and security. Additionally, if the target has a license for dealing with information constituting state secrecy, FAS requests information from the Interagency Committee for the State Secrecy Protection on the existence of an international treaty allowing a foreign investor to access information constituting state secrecy.
Russian law does not provide for more details on the review's scope or the criteria on which the transaction under review is assessed.
TRENDS IN THE REVIEW PROCESS
The year 2018 was the anniversary year for the Russian Strategic Investments Law, which was adopted in 2008. During these 10 years FAS considered 516 applications by foreign investors, of which 229 were sent for review by the Government Commission (other applications either did not require approval and were returned to applicants, or were withdrawn by applicants themselves). Of 229 applications reviewed, the Government Commission approved 216. The top-three attractive spheres of investments were fuel and energy complex, sea ports and airports.
HOW FOREIGN INVESTORS CAN PROTECT THEMSELVES
At the early stage of a transaction, a foreign investor should analyze whether the target company qualifies as a Strategic Entity and whether the planned transaction triggers the necessity of the Government Commission's consent in light of the recent amendments. It is also advisable to analyze whether such consent would be needed in case the acquirer is qualified as a "non-disclosing" investor. This will allow the investor to start filing preparations and then file its application sufficiently in advance to manage the filing's impact on the timing of the transaction.
If the planned transaction does not require prior consent but such would be needed if the acquirer is qualified as a "non-disclosing" investor, it is necessary to disclose to FAS in advance information on the acquirer's beneficiaries, beneficial owners and controlling persons.
REVIEW PROCESS TIMELINE
The statutory period for reviewing the application is three months from the date of its acceptance for review. The Government Commission can extend the review period for an additional three months.
2018 UPDATE HIGHLIGHTS
Russia's foreign investment laws were again amended in 2018
The most significant amendment is a replacement of the category of an "offshore company" with the category of a "non-disclosing investor" (i.e., investor not disclosing the information about its beneficiaries, beneficial owners and controlling persons)
Noteworthy, amendments do not address the information disclosure requirements to offshore companies only, which means that, literally interpreted, they apply to all categories of foreign investors. Foreign investors deemed as "non-disclosing" investors will be subject to special, stricter rules applicable to foreign public investors. However, amendments do not specify when and how a foreign investor must be making a relevant disclosure with the FAS. Thus, in the absence of any clarifications regarding the application of the amendments, these provisions may be interpreted broadly, meaning that a foreign investor planning to enter into a transaction in respect of the Strategic Entity would likely need to make a prior disclosure of its controlling entities' beneficiaries and beneficial owners in order to avoid being treated as "non-disclosing" investor
Amendments clarified the application of criterion of the "aggregate control" over Russian Strategic Entities, which exists where several unrelated foreign public investors, and from June 2018 also "non-disclosing" investors, collectively own more than 50 percent of shares in the Strategic Entity. Pursuant to the amendments, when assessing existence of the "aggregate control" over Strategic Entities that are public companies for the purposes of the Russian Tax Code, the shares belonging to "non-disclosing" investors should not be counted. It is unclear whether this principle will also apply to acquirers (foreign investors) that are public companies for the purposes of the Russian Tax Code
- Most transactions submitted to the Government Commission for review are approved. Such approval contains the term within which the respective acquisition needs to be completed. The acquirer can subsequently apply to the Government Commission with a substantiated request to extend this term, if necessary
- The Government Commission can approve the transaction subject to certain obligations imposed on the foreign investor. Until recently, the list of such obligations was exhaustive and established by law. Amendments of 2016 allowed the Government Commission to impose any type of obligation on the foreign investor. Those obligations may include the obligation to invest certain amounts of funds into activities of the Strategic Entity, or to process bioresources or natural resources extracted by the Strategic Entity on Russian territory
- The Government Commission can reject the application for approval of the acquisition