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IBA2016 Washington Navigating sanctions Kulik
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Transcript of IBA2016 Washington Navigating sanctions Kulik
YAROSLAV KULIKPARTNER, ART DE LEX LAW FIRMCHAIR, GOVERNMENT PROCUREMENT SUBCOMMITTEEWASHINGTON D.C., 19 SEPTEMBER 2016
NAVIGATING SANCTIONS IN A CHANGING WORLD: RUSSIAN VIEW
ANNUAL CONFERENCE OF THE INTERNATIONAL BAR ASSOCIATION
EXPERIENCE OF RUSSIAN LAW FIRMS IN
COUNSELING ON SANCTIONS MATTERS
PRESENTATION OF SURVEY RESULTS CONDUCTED BY A PRESENTER
AMONG THE RUSSIAN LAW FIRMS IN SEPTEMBER 2016 22
2
DID RUSSIAN LAW FIRMS ESTABLISH SPECIAL DIVISIONS DEALING WITH
SANCTIONS MATTERS?
3
Series1
50 50
Yes No
NOTE: Hereinafter percentage among firms who advise on sanctions matters
50
2
INDUSTRY SECTORS OF ADVISING (1)
OIL AND GAS
BANKING AND FINANCE
MACHINERY PRODUCTION
AIRCRAFT CONSTRUCTION
TELECOMMUNICATIONS
DEFENSE INDUSTRY4
2
INDUSTRY SECTORS OF ADVISING (2)
LOGISTICS
FOOD INDUSTRY
CONSTRUCTION
MEDICAL DEVICES AND EQUIPMENT
MICROELECTRONICS
PUBLIC PROCUREMENTS5
2
DO RUSSIAN LAW FIRMS CONDUCT COURT OR ARBITRATION CASES?
6
Series1
20
80
Yes No
80
2
TYPICAL COURT OR ARBITRATION CASES INVOLVING SANCTIONS-RELATED
MATTERS
7
DISPUTES BETWEEN RUSSIAN BANKS AND
THEIR CLIENTS ARISING OUT OF
PERFORMANCE (NON-PERFORMANCE) OF A
BANK ACCOUNT AGREEMENT
CONTRACTUAL DISPUTES ARISING
OUT OF NON-PERFORMANCE OF
OBLIGATIONS DUE TO SANCTIONS
(TERMINATION OF CONTRACTS,
PENALTIES AND DAMAGES RECOVERY,
ETC.)
2
SANCTIONS AS A FORCE-MAJEURE
IN PRACTICE OF RUSSIAN COURTS
WORKS DOESN’T WORK
8
IF SANCTIONS ARE MENTIONED IN
FORCE-MAJEURE CLAUSE
IF CONTRACT DOES NOT CONTAIN
CLAUSES RELATED TO SANCTIONS
NOTE: A CERTIFICATE ISSUED BY A CHAMBER OF COMMERCE AND
INDUSTRY MAY BE REQUIRED TO PROVE THE FORCE-MAJEURE
EVENT
2
SANCTIONS-RELATED REPS, WARRANTIES AND INDEMNITIES UNDER
RUSSIAN LAWSINCE 1 JUNE 2015 THE CIVIL CODE ALLOWS PARTIES TO USE IN CONTRACTS LEGAL
INSTRUMENTS SIMILAR TO REPRESENTATIONS, WARRANTIES AND
INDEMNITIES IN COMMON LAW
9
2
DO RUSSIAN LAW FIRMS ADVISE ON TRANSACTIONS ASSOCIATED WITH
SANCTIONS MATTERS?
10
Series1
90
10
Yes No
90
2
TYPES OF TRANSACTIONS (1)
ESTABLISHING JOINT VENTURES WITH FOREIGN PARTNERS
ACQUISITIONS OF SHARES/INTEREST IN SHARE CAPITAL
PLACEMENT OF SECURITIES DENOMINATED IN USD OR EUR
ATTRACTING FINANCING FROM US OR EU
11
2
TYPES OF TRANSACTIONS (2)
SUPPLY OF GOODS
FIELDS DEVELOPMENT
CONSTRUCTION INVESTMENT AGREEMENTS
DOING BUSINESS IN CRIMEA
12
2
SIEMENS TURBINES STORY: SUPPLY TO A THIRD PARTY ON “NEUTRAL” TERRITORY
13
vs
A JV OF SIEMENS AND POWER MACHINES TO SUPPLY TURBINES TO A POWER PLANT ON RUSSIA’S TAMAN PENINSULA. THERE MAY BE SOME DOUBTS ABOUT AWARENESS OF SIEMENS WITH RESPECT TO THE FINAL DESTINATION OF TURBINES. WHAT ARE THE RISKS FOR SIEMENS TO BREACH THE EU SANCTIONS?
?
2
DO RUSSIAN LAW FIRMS ADVISE ON DEVELOPING COMPLIANCE PROGRAMS?
14
Series1
20
80
Yes No
80
2
HOW CAN YOU DESCRIBE THE CURRENT SITUATION
FOR YOUR RUSSIAN CLIENTS?
1• CLIENTS CREATE SCHEMES BASED ON USING COMPANIES
NON-AFFILIATED WITH SANCTIONED ENTITY OR ENTITIES
2• SANCTIONS SIGNIFICANTLY COMPLICATE DOING
BUSINESS FOR CLIENTS
3
• CLIENTS FOCUS ON DOMESTIC MARKET (INCLUDING IMPORTS PHASE OUT) AND PARTNERS FROM COUNTRIES WHO DID NOT IMPOSE SANCTIONS
4
• BIG COMPANIES CAUGHT THE MOMENT AND HAVE SUCCESSFULLY RESTRUCTURED CONTRACTS AND TRANSACTIONS. SMALL COMPANIES FACE CONFLICT SITUATIONS
5• CLIENTS LOOK FOR NEW FORUMS FOR DISPUTE
RESOLUTION (E.G. IN HON-KONG)
6• BIG TURN TO THE EAST HAS NOT YET TOOK PLACE
15
THANK YOU FOR YOUR ATTENTION!
[email protected]+7 (495) 937-71-23
WE THANK ALRUD, FBK LEGAL, KIAP, LIDINGS, LINIYA PRAVA, MURANOV,
CHERNYAKOV & PARTNERS, NEKTOROV, SAVELIEV & PARTNERS, PEN & PAPER,
YUST, AND OTHER RUSSIAN LAW FIRMS FOR PARTICIPATING IN OUR SURVEY