The Federal Law from 22.07.2008 “On special features of the buying-out of the immovable property being the state ownership of the subjects of the Russian Federation or the municipal ownership and rented by the subjects of small and medium-scale business, and on making amendments to the separate legislative acts of the Russian Federation”. Law No 159 envisages the procedure for the mechanism for the alienation of the property that is the state or the municipal ownership and is rented by the subjects of small and medium-scale business for more than three years with the use of the privilege right without conducting an auction (contest) at a market price with the down payment. It should be noted that one of the conditions on which the privilege right for the buying-out of the premises is granted is the compliance of the area of the premises rented with the maximum values established by the laws of the subjects of the Russian Federation. Besides, according to the laws of the Russian Federation there must be a period set for the down payment for the property purchased. In accordance with the Federal Law by the Decree from 18.12.2008 No 961 “On the maximum values and the period of the down payment for of the immovable property being the state ownership of the subjects of the Russian Federation or the municipal ownership and rented by the subjects of small and medium-scale business, applied when they execute their privilege right for the buying-out of such a property” the Government of the Russian Federation established the maximum figures for the area of the rented premises (1000 sq m) and the maximum period for the down payment (3 years), which will be in effect from January 1, 2009 in the subjects of the Russian Federation that will not adopt there own laws till the date mentioned.
In accordance with clause 6 article 1 and article 28.8 of the Federal Law “On general principles for organization of the legislative (representative) and executive bodies of the public authority of the subjects of the Russian Federation” from 06.10.1999 No 184-FZ, federal executive bodies acting in accordance with the agreement with the public authorities of the subjects of the Russian Federation can transfer to them the execution of a part of their authorities. In their turn, executive bodies of the public authorities of the subjects of the Russian Federation on agreement with the federal executive bodies can pass execution of the part of their functions with the transfer of the necessary material and financial means. In order to implement these statements of the federal law there was a Decree of the Government of the Russian Federation adopted on 08.12.2008 No 924 “On the procedure for conclusion and coming into the effect of the agreements between the federal executive bodies and executive bodies of the public authority of a subject of the Russian Federation on their passing each other a part of their authority execution” (further referred to as the Procedure).
As it is clear from the heading of the regulatory legislative act the Procedure mentioned defined the order for the conclusion of the agreements between the federal executive bodies and executive bodies of the public authority on their passing each other a part of their authority.
The procedure also establishes such special features of the conclusion of the agreements on the authority transfer as to the objects of the capital construction being the federal ownership.
Attention should be paid to the fact that the Procedure does not indicate clearly who in the system of the public authorities of the region has a right to conclude the agreement with the federal executive bodies and executive bodies of the public authority on their passing each other a part of their authority.
In article 28.8 it is stated that the agreement can be signed (or, in other words, concluded) by a head of the federal executive body and the highest authority of the subject of the Russian Federation (the head of the highest executive body of the public authority of this subject of the Russian Federation).
There should have been specified in the Procedure that the right to conclude the agreement between the federal executive bodies and the executive bodies of the public authority on their passing each other a part of their authority belongs only to the competence of the highest executive body of th public authority of the region.
According to the Decree of the Government of the Russian Federation from 08.12.2008 No “On making changes to the decree of the Government of the Russian Federation from 29 December 2007 No 990” the effect of the Method for the calculation of the normative for the formation of the regional budget expenses, establishing the share of expenditures for the maintenance of the public authority of the subject of the Russian Federation in the total amount of tax and non-tax earnings, as well as subsidies for the equalization of the budget provision in the subject of the Russian Federation is prolonged for 2009.
The Order of the Ministry for Economic Development and Trade of the Russian Federation from 01.10.2008 No 306 adopted the Procedure for the selection as a result of the fulfillment by the federal executive bodies and the supreme executive bodies of the public authority of the subjects of the Russian Federation of the programs and plans of measures to conduct the administrative reform and the projects for fulfillment of the administrative reform in 2008 as well as the guidelines for the estimation of the results of the fulfillment by the federal executive bodies and the supreme executive bodies of the public authority of the subjects of the Russian Federation of the programs and plans of measures to conduct the administrative reform and the projects for fulfillment of the administrative reform in 2008.
The Procedure defines the methods for organization of the estimation of the reports of the mentioned bodies that are the participants of the contest on the support for the administrative reform conduction in 2009. According to the Procedure established the conduction of the estimation is entrusted to the Commission on conduction of the contest selection of programs and plans of measures to fulfill the administrative reform at the Ministry for Economic development and Trade of the Russian Federation. As a result of the estimation the participants of the contest will be attributed with the rating corresponding to their total estimation mark. As a result of the selection the participants of the contest will be allocated the funds from the federal budget to finance the main directions of the administrative reform, which includes the preparation of the method basis, conduction of the monitoring of the quality of the public administration, for the projects on implementation of the administrative regulations concerning state services rendering, for labor remuneration of employees participating in the fulfillment of the administrative reform.
Notification of foreign creditors of financial institutions concerning the initiation of insolvency (bankruptcy) proceedings against their debtor E. Velikova In Russia, in order to properly regulate the relations arising in connection with cross-border insolvency of financial institutions, and in particular the procedure for notifying foreign creditors, it will be necessary to adopt a separate federal law and to introduce appropriate amendments to the existing laws on the basis of the provisions of the UNCITRAL Model Law on Cross-Border Insolvency, as well a more detailed elaboration of cross-border bankruptcy issues in the RF Civil Code.
In many countries, foreign creditors for a long time have been and sometimes even now are treated differently from those locally based, the situation of the former being less advantageous, including with regard to their notification of the initiation of an insolvency (bankruptcy) proceeding against their debtor, because more often than not they receive the notification at a later date, or are altogether ex cluded from any participation in the proceeding20. The later arrival of the notification that an insolvency (bankruptcy) proceeding has been initiated against their debtor may result in their failure to present their claims within the established timelines. Even when a country’s legislation formally grants to foreign creditors equal rights in terms of their notification as to the initiation against their debtor of an insolvency (bankruptcy) proceeding and the timelines for presenting their claims, the existing procedure actually places foreign creditors at a disadvantage.
Neither Federal law of 26 October 2002, No 127-FZ “On insolvency (bankruptcy)”, nor Federal Law of 25 February 1999, No 40-FZ, “On insolvency (bankruptcy) of credit institutions” provides any proper regulation of the relations arising between Russian debtor companies or financial institutions and their foreign creditors. Besides, no proper procedure is determined for the bankruptcy of companies whose assets are situated not only in Russia but elsewhere. Federal Law No 127-FZ grants equal rights both to Russian and foreign creditors participating in a bankruptcy proceeding.
In Article 63 of the Civil Code of the Russian Federation it is determined that the liquidation commission should take adequate measures in order to identify creditors and recover receivables, by notifying creditors in writing as to the liquidation of a legal entity, and by placing in the press organs nominated for publishing information concerning State registration of legal entities the announcement of its liquidation and of the procedure and timelines for the presentation of creditors’ claims. The RF Civil Code does not distinguish creditors into domestic and foreign ones. Equality of rights enjoyed by local and foreign creditors is also reflected in Russia’s judicial practice, which recognizes that it is indeed difficult for foreign creditors to receive in due time the information concerning the initiation of an insolvency (bankruptcy) proceeding against their debtor, which is fraught with the risk of their failure to present their claims and be entered into a creditors’ register, since some of them may not have their representative offices in Russia.
In order to promote the adoption of modern and well-balanced legislation designed to regulate the cases when an insolvent debtor has assets in several states, in 1997 the UNCITRAL Model Law on Cross-Border Insolvency came into force. Naturally, this law is by no means the only international legal act regulating the issues of cross-border insolvency; however, it offers a sufficiently detailed description of the process of information exchange courts of justice and other competent bodies, as well as the granting of information to foreign creditors. The UNCITRAL Model Law on Cross-Border Insolvency has already provided the foundation for new legislative acts on insolvency (bankruptcy), or for amendments to the existing ones, in the following 16 countries: Japan, Mexico, South Africa, Eritrea (2000), Montenegro (2002), Poland, Romania (2003), Serbia (2004), the British Virgin Islands, the USA (2005), the UK, Columbia, New Zealand, South Korea (2006), Austria, Australia (2008), The issue of notification of foreign creditors is addressed in Article 14 of the UNCITRAL Model Law on Cross-Border Insolvency. Whenever notification should be given to creditors in a given State, such notification should also be given to the known creditors that do not have addresses in that state. A court may order that appropriate steps be taken with a view to notifying any creditor whose address is not yet known. Such notification is made to the foreign creditors individually, unless the court considers that, under the circumstances, some other form of notification would be more appropriate. No rogatory letters or other similar formality is required. The notification indicates the following:
- a reasonable time period for filing claims and a specified place for their filing;
- whether secured creditors need to file their secured claims;
- any other information required to be included in such a notification to creditors pursuant to the law of that State and the orders of the court.
The law contains no references to the timelines for notifying foreign creditors, and even the notification procedure is not determined in any specific way, despite the fact that other procedures can also be possible. At the same time, the mandatory minimum of information to be related in a notification is indicated, as well as the possibility to add to the notification some additional information in accordance with с legislation of a given State and orders of a court.
In October 2005, the introduction of Chapter 15 of US Bankruptcy Code became effective. The provisions stipulated in the sections of this chapter concerning the notification of foreign creditors vary only slightly from the wording applied in the UNCITRAL Model Law on Cross-Border Insol The new threat to international commercial transactions: cross-border insolvency and its impact on the standby letter of credit regime, Roland Lechner, http://www.natlaw.com/pubs/spacbk1.htm vency, in that different timelines are established for notifying foreign creditors and the presentation of their claims. The timelines for the notification of foreign creditors and the presentation of their claims are not determined precisely, but in any event the period is longer than that established for domestic creditors and is determined by a court of justice.
In France creditors are notified concerning the need to present their claims within 2 months from the moment of publication of the bankruptcy court decision in Bulletin Officiel des annonces Civiles et Commerciales; foreign creditors have two additional months to submit their claims21. In Italy, within the duration of one month from the moment of onset of the liquidation procedure, the commissioner in bankruptcy is obliged to notify thereof all the creditors in writing, the creditors having an opportunity to submit their comments and requests within 15 days from the moment of being notified. Those creditors that have not been notified must present their claims within 6 days from the moment of the publication of the decision as to the liquidation of their debtor in the official press organ (Gazzetta Ufficiale)22.
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