Pepeliaev Group’s key projects in 2023
As is our custom, we are publishing a large-scale report at the end of the year about Pepeliaev Group's key projects in different branches of the law and sectors of economy.
The return of over RUB 650 million of taxes collected in excess with RUB 120 million of interest accrued
The team represented the client in a tax dispute. In the tax authority's opinion, the company devised a tax evasion scheme under which the real estate which the company uses is owned by individuals who are the actual beneficial owners of this business and who apply the simplified taxation system. This real estate is leased to the company. The bulk of the company's expenses are lease payments. The tax authority also referred to the lease payments being formal because individual entrepreneurs were granting interest-bearing loans to the company and thus “returning” the monetary funds received from the company. Making reference to articles 54.1(2)(1) and 252 of the Russian Tax Code, the tax authority refused to deduct for profit tax purposes the entire amount of the lease payments and interest on the loans.
The courts of the first and second levels upheld the tax authority’s position. Our lawyers joined this project at the cassation stage, after the cassation appeal had been filed. At first, they prepared a supplement to the cassation appeal and clarifications on questions asked by the cassation court. Later, they represented the client in the court hearings. The cassation court referred the case for re-examination.
In the second cycle our specialists prepared procedural documents and represented the client in court hearings of the first instance, appellate and cassation courts. When the case was re-examined, we succeeded in proving that the tax authority had refused the deduction of the taxpayer’s expenses without a valid reason. Courts of all levels were on the client’s side: the tax authority's decision was invalidated in full, the amounts which had been unreasonably collected by the tax authority were returned to the company including the payment of over RUB 120 million of interest.
Reduced the additionally assessed tax by almost RUB 500 million
The team was protecting the client under a pre-trial procedure in a tax dispute resulting from the tax authority’s use of an incorrect approach.
The dispute was beset with large-scale procedural violations by the tax authority: no documents were enclosed with the audit report concerning all the tax control measures taken by the tax authority, the audit report did not contain full information that would make it possible to identify the facts of tax violations and to prepare well-grounded objections to it, tax control measures were taken after the tax audit was over, the tax authority had not accepted, without a valid reason, a challenge of an expert and a specialist, and refused to raise the issues put forward by the taxpayer.
Our lawyers accompanied field tax audits and as attorneys, provided support to witnesses during interrogations. In the framework of this project, our experts prepared a range of complaints against the acts of the tax authority and the auditors, and prepared objections against the audit reports and statements of appeal.
This case deals with certain important legal matters: whether products (livestock feeds) can be reclassified in order to change the National Product Classification Codes which have been applied and approved and deny the reduced VAT rate; whether products can be reclassified in a situation when the company's position is supported by several expert opinions; at the same time, the tax authority reclassified transactions for domestic sales using the Commodity Classification for Foreign Trade which is not applicable for domestic transactions.
Owing to our lawyers’ efforts, the additionally assessed taxes were reduced by almost RUB 1 billion. Currently, the remaining part of the dispute is being considered by the commercial court.
Successfully protected the client in tax proceedings which had continued for almost 5 years and reached the Supreme Court
The team represented JSC Krastsvetmet, which was charged with claims of receiving tax benefit (compensation of VAT). To justify these claims, the tax authority presumed that the taxpayer's supplier had devised a scheme to withdraw gold from precious metal accounts with banks without paying VAT. Previously, these transactions had already been the subject matter of tax control. However, tax claims were not submitted in full to the taxpayer’s contracting party and the banks. In the end, the amount of additional assessments was formed residually: it included everything that had not been claimed against the contracting party and the banks based on the results of the completed audits. At the same time, the tax authority was unable to explain why it had decided not to charge the full amount of claims against the contracting party and the banks.
In the framework of this project, our lawyers prepared objections to the audit report, a complaint to the superior tax authority, an application to invalidate the non-regulatory act and cassation appeals to the circuit court and the Supreme Court. Our lawyers represented the client in courts of all levels. The court proceedings continued for 4 years and 8 months. As a result, we succeeded in proving that the tax authority's claims were unjustified.
The ruling of the Russian Supreme Court's Judicial Board for Economic Disputes in this case has created a precedent. The Board of the Russian Supreme Court has referred to this case three times in its rulings. References to this ruling can be found in more than 300 judicial acts including in 38 resolutions of cassation courts. Additionally, the ruling of the Supreme Court in the case of JSC Krastsvetmet has been included in an overview of legal positions included in judicial acts of the Constitutional Court and the Supreme Court on tax matters. The Federal Tax Service has sent it to lower-level tax authorities.
Reduced by 85% the tax authority's claims in the framework of a field tax audit
The team represented the client in a project that involved challenging the field tax audit report. The tax authority had claims regarding the deduction of expenses for profit tax purposes and the deduction of VAT in transactions with the client's contracting parties. The company was accused of intentionally devising an unlawful tax scheme and charged with a 40% fine.
While preparing objections to the audit report, our lawyers went to great lengths to obtain the audit materials and to become acquainted with them. Our experts were compelled to prepare a range of written petitions connected with unlawful obstruction of becoming familiarised with evidence and of participation in the client’s meeting with a representative of the tax authority. Owing to our team's efforts, all documents which the tax authority had were not only made available for lawyers to become acquainted with, but were recorded on disks, which gave us an opportunity to prepare well-grounded objections to the audit report. After additional tax control measures were carried out, the analysis of the audit materials and of the objections was performed by the head of the tax authority, and in our presence he personally checked using the ASK-VAT-2 system whether the claims of his subordinates were justified.
As a result, the claims against the taxpayer under the field tax audit were reduced by 85% and the accusation of intentionally having organised a tax scheme was fully withdrawn. The fine for the remaining arrears was applied as for an unintentional tax offence and was additionally reduced in view of mitigating circumstances.
This project was extremely important for the client because the amount of initial claims was insurmountable for it and should they have been confirmed, it would have had to close the business. For the legal system, this case has set a precedent because in most cases, the tax authority is willing to engage in a legal dialogue concerning the amount of the arrears only before the tax audit is scheduled. Following that, the amount of claims cannot be discussed. In this case, we have been able to defeat this practice.
Successfully defended a client in a precedent-setting case on the splitting up of a business
Our team represented a management company in a tax dispute in a situation where the company was acquiring work and services from third parties using the simplified taxation system and selling them to owners of blocks of flats applying a VAT benefit. The tax authority accused the client of splitting up a business, joined the taxpayer and its contracting parties, denied the benefit to the company and reassessed the taxes upwards based on the general taxation system.
Our lawyers followed up the project starting from the stage of preparing objections to the audit report and further on at all stages of administrative and judicial appeals of the tax authority's decision. It is extremely difficult to win a tax dispute, especially in court. This project was particularly challenging because certain parties to the transaction actually were related and this served as a reason for accusations that the 18 companies were working as “one entity”. It was necessary to distribute the pool of the tax authority’s evidence between different companies and to insist that no grounds existed in relation to a certain contracting party.
As a result, the court took the client's side, having considered the following aspects important: contractual bonds were formed before the benefit was introduced, and this confirms the existence of a business purpose; contractors may violate legislation, but it is necessary to identify whether the taxpayer was involved in this and whether it received any tax economy in connection with it; no violations were identified during the previous tax audit.
Protected the client’s interests before the Supreme Court in a dispute concerning mineral extraction tax on the extraction of gold concentrates
The tax practice has successfully protected the interests of Kosvinsky Kamen CJSC before the Russian Supreme Court in a dispute concerning the taxation of the extraction of concentrates and other intermediate materials containing gold, platinum and other precious metals.
The essence of the case, which was handled by our experts starting from the first cassation stage, is as follows. From 1 January 2021, mineral extraction tax in relation to solid minerals has been calculated taking into account the special rent coefficient (КRENT). Whereas the general value of this coefficient is 1, for certain minerals the rent coefficient is set at 3.5. As a result, the tax assessed on such minerals is increased by 3.5 times. For concentrates and other intermediate materials containing gold and/or silver, the rent coefficient is set at 1. The taxpayer had applied this coefficient since it extracts a mineral that is a concentrate containing several precious metals, gold being one of them. In its decision further to an audit, the tax authority proceeded otherwise: it nominally divided into two parts a single mineral (non-divisible when extracted), which is a concentrate containing several precious metals. With regard to gold, it applied the rent coefficient of 1, whereas with regard to platinum and metals of the platinum group, it used the КRENT multiplying coefficient of 3.5. An increased amount of mineral extraction tax was assessed on this part of the single mineral extracted. Courts of three instances agreed with the tax authority's approach. This resulted in a tax amount which in many cases made extraction loss-making.
Pepeliaev Group’s lawyers prepared a cassation appeal to the Russian Supreme Court where important legal problems were addressed which are of great importance both for extraction industries and for the development of tax law in general: the priority of a literal interpretation of the provisions of tax law; the content and meaning of legal elements of tax and the procedure for how they are established by law; and the need to account for the purposes of changes being made to the Russian Tax Code and the economic rationale of mineral extraction tax.The Judicial Board for Economic Disputes of the Russian Supreme Court set aside the judgments of the lower-level courts and resolved the matter in favour of the taxpayer.
Customs law and foreign trade regulation
Protected in court the client’s interests amounting to RUB 1.7 billion
The practice represented the client who had imported an aeroplane into the EAEU. The customs representative placed the aeroplane under the customs procedure of temporary import using the simplified procedure with full release from import customs duties and VAT for 30 days. Before this term expired, the aeroplane had been exported, but no application was filed to terminate the temporary import by the re-export. The customs authority found this out only a year later and not only imposed administrative liability on the company, but also demanded that import customs payments be made and default interest paid in the amount of RUB 1.7 billion. The customs office filed with the court a claim to recover the customs payments and the default interest out of the cost of the aeroplane.
Our lawyers’ tasks included appealing in court the “Notification about the amounts of customs payments which have not been paid by the established deadline” and the “Decision to levy execution”, as well as representing the client in court regarding the recovery of customs payments out of the cost of the aeroplane. The trial court and the court of appeal refused to uphold the company's claims. The cassation court set aside these judicial acts and referred the case to be reconsidered. During the new consideration, courts of three levels dismissed the company's claims. The Judicial Board for Economic Disputes of the Russian Supreme Court set aside these judicial acts and referred the case to be reconsidered.
The Supreme Court has expressed a position that the Notification and the Decision being appealed are formally in line with the requirements of legal provisions, but contradict the economic grounds for the collection of import customs payments. The Supreme Court’s position is based on the interpretation of legislation based on the purposes of legal regulation. This approach provides those who are safeguarding rights with wider opportunities for building their own legal defence.
Introducing amendments to the Customs Code of the Eurasian Economic Union
While working on a client's project, our customs law and foreign trade regulation practice identified legal uncertainties in provisions of customs legislation and inconsistencies between them and provisions of the Federal Law “On the state border of the Russian Federation”. In order to eliminate them, amendments need to be introduced to the Customs Code of the EAEU concerning the release from customs operations for water vessels used in coastal shipping of cargoes, passengers and luggage, including to destinations on the continental shelf.
Our lawyers have prepared amendments and a statement of reasons for them, and followed up the consideration of them in the Russian Union of Industrialists and Entrepreneurs, Russian Federal Customs Service, Russian Ministry of Finance, in member states of the Eurasian Economic Union and in the Eurasian Economic Commission. The concept underlying the amendments changed twice because of differences in the parties’ positions. Pepeliaev Group's partner Alexander Kosov was authorised to represent Russia when the amendments were discussed at the working group of the Eurasian Economic Commission. The amendments were approved by the Panel of the Eurasian Economic Commission and have been agreed at the national level in Russia.
These amendments will eliminate the need to perform certain customs operations, as well as administrative, legal and criminal law risks connected with the non-performance of them.
Protected a large supplier of medical equipment in a dispute with customs authorities
Owing to the joint efforts of the Legal GR practice and lawyers from the customs law and foreign trade regulation practice, we provided key support in safeguarding the interests of a major supplier of medical equipment in a dispute with customs authorities.
The claims of the customs authorities against the company resulted from the supervisory authority's new interpretation of the rules of current legislation regarding the rules for the registration of the medical equipment (sterilisers) that the company was importing. By its resolution the customs authority held that the equipment had been imported into Russia in violation of the existing registration procedure and, therefore, no customs benefits applied to it.
Considerable customs charges were assessed against the company and penalties were imposed on it for violating customs legislation. The company objected to the above in court since it promptly and under the applicable rules obtained a market authorisation in relation to the medical products (steam sterilisers) that were imported into and sold in Russia.
Pepeliaev Group’s lawyers devised a legal position within the scope of appeal proceedings in a state commercial court in order to challenge the unlawful actions and resolutions of the customs office. Further, they arranged for the Russian President’s Commissioner for Entrepreneurs’ Rights to participate in the lawsuit.
After several years of litigation the state commercial court ruled in favour of the company. The court’s judgment was upheld by the courts of appeal and of cassation and has entered into legal force.
Hence, Pepeliaev Group’s experts assisted the company with winning the lawsuit and with asserting its rights in the dispute with the customs authorities.
Foreign currency regulation
Provided advice on currency legislation including tax, customs and regulatory aspects
The foreign currency regulation practice has provided advice to an international manufacturer of medicines in connection with the expected restructuring of its business and planned intra-group payments. The client wanted to pay for products it purchased and receive payments for services, offsetting where necessary homogeneous counterclaims without violating Russian currency legislation. The advice on currency legislation was provided with tax, customs and regulatory aspects being taken into account.
Our lawyers have analysed several models of the organisation of intra-group payments from the standpoint of currency regulation rules, including the possibility of rules being restored concerning the repatriation and mandatory sale of currency proceeds. As a result, the client has been offered an optimal model, taking into account different currency, tax and customs aspects and instructed about risks of non-optimal models. This has enabled it to avoid legal mistakes when restructuring its business.
Analysed risks and assessed proposed business models
Lawyers of the practice have provided advice to an investment company which was planning to keep for investors from Russia access to the international capital market despite sanctions. The client has developed several business models based on cooperation between a Russian legal entity (a resident) with a non-resident from a friendly jurisdiction. Our experts have analysed whether the planned transactions are in line with currency legislation (including the Russian President’s counter-sanctions decrees) and consistent on multiple levels with regulatory rules.
Lawyers of our practice have also assessed whether these models can be implemented from the standpoint of regulatory rules of the Russian financial market. It was important for the client to understand which business models can be implemented in the new legal reality and which cannot. Our advice has helped the client to avoid mistakes that could entail significant fines.
Optimised international payments in the conditions of sanctions and currency restrictions
Lawyers of our practice have provided advice to a strategic consulting company. The project included optimising international payments in the conditions of sanctions and the introduction of counter-sanctions currency restrictions. Foreign banks have started to refuse to transfer to Russia payments of the client’s contracting parties for services. The client prepared several options for optimising payments based on the permission of offsets in foreign trade activities by the President's Decree No. 529 dated 8 August 2022. Our experts have analysed these options from the standpoint of currency regulation and tax risks. The project was implemented in two stages: concerning risks of offsetting royalties and dividends; and concerning offsetting other payments of a civil law nature. As a part of this project, a draft request has been prepared to the Russian Ministry of Economic Development.
The client has received recommendations which have helped to prevent mistakes arising from interpretations of legal rules that are not clearly obvious for a non-expert and to avoid large fines for violations of currency legislation.
Intellectual property and trademarks
Defended the company Drinks from Chernogolovka-Aqualife in disputes with The Coca-Cola Company
Pepeliaev Group’s team from the Intellectual Property and Trademarks Practice has successfully defended the company Drinks from Chernogolovka-AQUALIFE in its dispute with The Coca-Cola Company.
Rospatent received an objection filed by The Coca-Cola Company against legal protection being granted to the trademark “FANTOLA”. The ground for the objection was that this word is confusingly similar to the trademark “FANTA”. Rospatent dismissed the objection. The applicant disagreed with this decision and appealed to the Court for Intellectual Property Rights. Lawyers of our practice developed a legal position and reinforced it with a sociological survey as well as an expert opinion. In addition, they analysed the opponent's position and provided the court with detailed explanations of how it was inconsistent with the case materials.
The Court for Intellectual Property Rights upheld The Coca-Cola Company's application, set aside Rospatent’s decision and instructed it to reconsider the claimant’s objection. This decision threatened the results of another similar case regarding the “FANTOLA” trademark. Having disagreed with the decision of the Court for Intellectual Property Rights, our team prepared a cassation appeal and stated in it our arguments for why this decision was unlawful. The Presidium of the Court agreed with the arguments in the cassation appeal, dismissed the decision of the court of original jurisdiction and referred the case for re-examination.
This created an opportunity for the lawsuit regarding the “FANTOLA” trademark to be considered without any prejudicial conclusions concerning confusing similarity between the “FANTA” and “FANTOLA” trademarks. The first instance court and the cassation court made judicial decisions in favour of the client and the Russian Supreme Court refused to consider The Coca-Cola Company's cassation appeal.
When the lawsuit regarding the “FANTOLA” trademark was re-examined by the first instance court, the court agreed with the client's arguments and dismissed The Coca-Cola Company's application. The legal protection of the “FANTOLA” trademark remained in force. The decision of the Court for Intellectual Property Rights was upheld by the Presidium.
Analysed the client's products for a potential infringement of a competitor's patent
Pepeliaev Group's Intellectual Property and Trademarks Practice provided advice to an American corporation, a leading manufacturer of healthcare products as well as products for personal, professional and industrial hygiene. Our task in this project was to analyse the client's products for an infringement of a competitor company’s patent and to prepare a legal opinion to assess the competitor's possibilities for protecting the exclusive right to the patent, the means to protect the client in the case of court proceedings and the client's possible losses.
The team has carried out a comparative study of the characteristics of the client’s products and of the features of the invention protected by the competitor company's patent. Our lawyers have identified risks connected with a potential infringement of the patent, offered a strategy to follow if the competitor files claims and assessed the possible losses of the client.
Manufacturers of hygiene products strive to protect their solutions by obtaining patents for inventions, utility models and industrial designs. This leads to situations where competing companies can infringe each other's patents. When this happens, it is important to assess risks connected with the threat of the potential infringement to make decisions, including manufacturing decisions, and to assess the situation in general from the business perspective. As a result of this project, the client received recommendations which enabled it to revise its business strategy and tactics.
Registered, amended and extended the durations of the client's trademarks in almost 90 jurisdictions
The IP practice was requested to amend and extend the durations of trademarks owned by one of the largest Russian groups dealing in raw materials in almost 90 jurisdictions. Additionally, the client requested us to provide support with the documents required for the registration of national trademarks in 7 jurisdictions in Central America and Africa. The project focuses on trademarks of several companies of the group and the documents need to be prepared in accordance with all corporate requirements of the client.
The project is unique not only because of the volume of work and its wide geographical scope, but because in the current situation, difficulties arise when we communicate with agents from countries that are not friendly. As we proceed, we have to restructure the existing agent network which requires much effort.
Since some countries which the client is interested in do not use the Madrid Protocol for registering trademarks, the only way to obtain legal protection in them is the national procedure for registering trademarks. When the number of such registrations is high, a centralised approach is needed to managing and maintaining them.
Bankruptcy and anti-crisis protection of business
Identified risks for controlling entities in connection with sanctions and a planned transaction towards the refinancing of a loan
Our Bankruptcy and Anti-Crisis Protection of Business Practice has prepared a comprehensive legal opinion with an assessment of the financial and criminal law risks for the management, members, group companies and beneficiaries in connection with a planned transaction towards refinancing of a loan.
Our experts have been able to find effective solutions for eliminating risks of financial and criminal law liability for different categories of controlling entities in the conditions of a complex structure of planned transactions, sanctions and specific nuances of how Russian and foreign members of the group work together.
As a result, the risks have been prevented of liability amounting to nearly RUB 18 billion.
Successfully protected one of the largest world banks and prevented the risks of its operations in Russia being discontinued
The team of our practice has successfully protected the interests of one of the largest international credit institutions in two disputes.
The first dispute was connected with the bank being charged with administrative liability for a failure to perform a resolution of the court bailiff to recover monetary funds from the account of a debtor which was a foreign company and for which a bankruptcy case had been initiated. The second dispute was about challenging resolutions of the court bailiff to seize monetary funds of a subsidiary of a major American transnational corporation investing in internet search, cloud computing and advertising technologies and to transfer them to the deposit account of the court bailiff service.
Our team's task was to participate in these disputes on the bank’s side. The project was complex because of a lack of well-established case law regarding the nature and priority of liabilities (“astreinte”) in bankruptcy regarding which execution was levied.
As a result, our lawyers succeeded in having the claims dismissed and in safeguarding the bank from subsequent sanctions on behalf of the regulator and preventing the potential termination of the bank’s business in Russia because of its licence being revoked.
Provided comprehensive protection to companies and controlling entities of a group
Pepeliaev Group’s lawyers have successfully settled 14 individual disputes in the framework of the bankruptcy of a large Russian IT company and its controlling entities and 4 independent disputes not connected with bankruptcy cases. This has helped to reduce by more than RUB 1 billion the potential risks of liability for the controlling entities.
The project required a high level of expertise in related areas of law, including banking law, corporate law and IP law and which was provided by our colleagues from the relevant practices of Pepeliaev Group. It is very important that certain individual disputes could be settled through conciliation procedures and one bankruptcy case was dismissed when an amicable settlement was reached.In this project, we have been developing for two years the practice of extending the powers of persons that control the debtor in a bankruptcy case even before the corresponding amendments were introduced to legislation.
Provided support in a large IT transaction in the interests of a Chinese tech company
Pepeliaev Group's team represented a Chinese tech company in a transaction for the purchase of the remaining 49% of the shares in a subsidiary of one of the world’s largest IT corporations.
Our lawyers were acting as a Russian consultant in a global transaction, a significant part of which was the company's Russian business. They advised the client on structural and corporate aspects of Russian law, prepared a comprehensive legal opinion for the Hong Kong Stock Exchange, assessed regulatory aspects of obtaining approvals of transactions from Russian control authorities (the Federal Antimonopoly Service and the government commission), and prepared and filed the necessary petitions and applications.
Russian and Chinese businesses are integrating more and more, and the Chinese side cannot manage without assistance in global tasks which include certain aspects of Russian law.
Previously, the client acquired 51% of the shares in the same company. Since then, its revenue has shown significant growth. By purchasing the remaining part, the client desired to optimise its business and improve its position on the digital tech market. The transaction worth USD 3.5 billion was a large-scale restructuring of the company's assets. Its effect can now be seen in all key Asian tech markets.
Provided legal support to a client as it entered into a RUB 1 billion transaction
The corporate practice provided support to a client, a real estate development company, as it was entering into a transaction worth RUB 1 billion.
Our lawyers “verified” the transaction structure which the client had agreed with the buyer, prepared documentation (including an SPA, letters of disclosure and exhaustive lists of warranties about the situations of the seller and the buyer, including warranties about real estate items owned by the companies whose shares were the subject matter of the transaction) and participated in negotiations with the buyer. Also, our experts have successfully insisted on changes in the transaction structure which helped protect the client's interests, provided assistance during the signing/closing of the agreement and maintained contact with the notary. The transaction was closed in a very short time.
This project was complex because of the need to change the transaction structure so that the client could be confident that it would receive the full price of the membership interest being disposed of before the ownership title would be fully transferred and to check whether approvals needed to be obtained from the Federal Antimonopoly Service and the government commission under the Ministry of Finance).
Provided support in a EUR 25 million transaction with involvement of a “hostile” non-resident
The corporate practice has provided legal support to a developer of automobile safety systems in the framework of preparing a sale of a 100% membership interest in the issued capital from “hostile” non-residents to a “friendly” non-resident. The amount of the transaction was valued at EUR 25 million.
Our lawyers’ tasks included checking whether obtaining was required of the consent of the government commission under the Ministry of Finance, preparing transaction documents and providing support during the signing of sale and purchase agreements.
The transaction was concluded during and in connection with the unstable geopolitical situation and assumed the quick replacement of foreign members of the LLC with members from the client’s group. The transaction was complex due to a ramified ownership structure of the group and a documentary confirmation of the beneficial owner being required with a view to persuading the notary that the conclusions are correct.
Our experts have analysed the ownership structures of the seller and the buyer and gathered together documents from three jurisdictions (China, Japan and the Netherlands). As a result, it was concluded that there was no need to comply with the special procedure for the disposal of membership interests in the Russian LLC, and the notary who registered the transaction agreed with this conclusion.
Land law, real estate and construction
Successfully represented the client in a construction dispute for over RUB 1.5 billion
At the request of the industrial division of a Turkish group dealing in construction and investments in real estate, energy and healthcare, lawyers of our practice provided support during a complex court dispute between the client and the company which had ordered work, with the amount of claims exceeding RUB 1.5 billion.
We should note that disputes connected with contractor agreements in such large-scale projects are usually complex not only from the procedural standpoint, but also because of the need to plunge deep into construction, technical and engineering aspects of the project, knowing which is indispensable for properly protecting the client in court.
One of the main recent trends in real estate and construction is a growing number of construction disputes connected with the non-performance of contractor agreements. This is a delayed result of the coronavirus pandemic and the subsequent political events.
Resolved a dispute at the pre-trial stage in the interests of the largest construction group in China
The team of the Real Estate and Construction Practice has provided advice to a construction group which is the largest in China in a dispute with a party which had ordered a Russian project. Because of the pandemic, the subsequent political events and price growth for construction materials and workforce, the performance of construction works has required more time, effort and costs than had been expected at the outset. This resulted in losses for the general contractor in a total amount of more than RUB 500 million.
Our lawyers have prepared a rational assessment of the situation and offered their vision of how the parties could resolve this dispute at the pre-trial stage. Owing to our team's efforts, the dispute has been resolved amicably.
This project is important for the client because the company intends to continue its business in Russia. Another valuable result of this project was the signing of an agreement for providing support in another dispute where the total amount of claims against the client's contracting party is RUB 26 billion.
Provided support in a large-scale investment project for the construction of an industrial complex
Our team is providing support in a large-scale investment project for the construction in Russia for a large international company of an industrial complex which is valued at EUR 127 million. From the very beginning, our lawyers have been carrying out due diligence of land plots, structuring the project, and preparing documents for transactions involving the acquisition of land plots and for the construction.
During the last year, we have drafted and agreed with contracting parties more than 20 new contracts including agreements for construction, connection to networks, and acquisition of land plots and other property. In addition, we have been continuing checks of how the existing agreements were being performed and providing advice on different matters connected with the project.
In view of the economic situation in Russia, an investment project of this scope is extremely rare.
Provided to a large bank comprehensive support for all its real estate items
Lawyers of our practice are providing to a major international bank legal support on all aspects connected with the client’s many real estate items. Our experts’ area of responsibility includes different matters connected with a lease, working with contractors, managing real estate, sales and purchases, obtaining authorities’ approvals for capital construction facilities and non-capital facilities, and so on.
In addition, lawyers of our practice draft contracts, correspondence and other documents, participate in negotiations and contact authorities; they also prepare legal opinions on different matters that need to be considered in advance.
When providing legal services, our experts take into account multiple factors in the client's interests: corporate requirements, specific details of the real estate item or lease agreement for each real estate item, internal legal regulation in effect where the real estate is located, as well as risks that exist for the client and how they can be minimised.
Represented an international airport in connection with requests from the Russian Federal Antimonopoly Service
The team of our Antitrust Practice has represented a client, one of the regional airports, in connection with a request from the Administration of the Russian Federal Antimonopoly Service to provide information about the circumstances in which the company received the property complex of the airport under a lease agreement.
Our lawyers have analysed the materials provided by the client and prepared a response to this request in which they laid down grounds on why the transfer of the property under the lease was lawful and there was no collusion between the client and the government agency responsible for the operational management of this property. In addition, Pepeliaev Group’s experts provided oral clarifications which convinced officers of the antimonopoly authority that the client had acted lawfully.
As a result, the client was able to avoid an antimonopoly case that would otherwise have been instigated, a turnover-based fine and significant damage to the business reputation of client which is expanding its business in the area of airport management.
Provided antitrust support in a transaction to transfer assets of an automobile manufacturer
The team of our practice has advised the client in the framework of a transaction to transfer assets of a Russian subsidiary of a manufacturer of trucks and buses to an official dealer.
Since the transaction directly affected the market of trucks and specialised machinery as well as the after-sales service and maintenance of them, the there was uncertainty as to whether the transaction was likely to be approved by the antimonopoly authority. Our lawyers prepared a petition and a set of attachments to obtain approval of the transaction from the Russian Federal Antimonopoly Service and actively worked together with the antimonopoly authority while the petition was being considered. As a result, our lawyers have been able to obtain the antimonopoly authority’s approval of the transaction and an order to perform transactions aimed at ensuring competition.
This project has significant importance for the client’s business: it has made it possible to continue sales and service maintenance of trucks and specialised machinery in Russia and to cater for the interests of Russian consumers.
Analysed risks of an antimonopoly case being instigated and minimised them
The lawyers of our practice have provided advice to the client who wanted to have the results assessed of the consideration of the application which had been filed against it over an alleged breach of antimonopoly legislation in the form of an abuse of dominance and the prospects of the antimonopoly case.
Our lawyers have analysed the documents provided and all aspects of the client’s business activities, following which they prepared a legal opinion which enabled the company to assess the risks of an antimonopoly case being instigated.
As a result, the client was able to prepare for the potential antimonopoly case, gather additional evidence that its acts were free of any violations and assess the prospects of the case being instigated. Moreover, the company was able to identify weaknesses in its business operations and to take well-timed measures to eliminate them and mitigate antimonopoly risks.
Successfully protected the client’s interests in a dispute with an employee in conflict
The lawyers of Pepeliaev Group’s Employment and Migration Law Practice have defended a client that is the leader on the tobacco market and a major FMCG company in Russia based on the volume of sales in a dispute with an employee in conflict (a sales representative) who had been dismissed for a number of disciplinary sanctions.
The employee insisted that his dismissal had been unlawful and also made a number of additional claims. The dispute is particularly significant for the company because it has set a positive, exemplary precedent in a company with several thousand employees working in similar circumstances.
It is noteworthy that after the company's position was presented in court, the prosecutor's office, as an obligatory litigant in this category of disputes, fully accepted the company's position and endorsed such position in its opinion to the court.
Protected the employer in a dispute with an employee who had not passed the trial period
The team of the Employment and Migration Law Practice has successfully protected the employer in a dispute with an employee who had been dismissed because of a failure to pass the trial period.
The project was particularly difficult because the employee’s responsibilities, as well as the task set before him, were rather specific and difficult to measure. In particular, the employee was required to manage processes, handle negotiations and analyse the market. Our task was to explain in plain language to the court and the prosecutor what exactly was expected of the employee and why the result of his work was unsuitable for the business.
As a result, our lawyers gathered a lot of evidence and provided explanations that were clear for the judge and the prosecutor, and convinced them that the employer was right.
Provided assistance with an employee in conflict being dismissed on the client’s terms
Our experts have provided legal assistance for employment relationships to be terminated with an employee in conflict who was not coping with his duties and committed serious violations in his work. Among other things, he was sending restricted information to third parties.
Our lawyers have drawn up different options for the termination of employment relationships with the employee and participated in negotiations with him/ The situation was aggravated by the fact that he had been dismissed and restored to work by a court decision.
In the course of our work, the team has carried out a rigorous check of whether entries were correct in the employee’s work record book concerning his work experience. The check has shown that entries about previous employments were partially forged, as was the form of the work record book itself. As a result of negotiations, we succeeded in terminating in a short time the employment relationship with the employee in conflict by agreement of the parties but without severance pay.
Dispute resolution and mediation
Represented a client’s interests in a dispute over a concession agreement
The practice team defended the client’s interests in a dispute with the prosecutor’s office which filed a lawsuit seeking to have a concession agreement for the construction of a healthcare centre declared void. In the opinion of the prosecutor’s office, the concession agreement violated a number of statutory requirements (including, among others, requirements of civil and budgetary laws, and laws regarding concession agreements and compulsory medical insurance), and the public interests of the region, while it was alleged to have been concluded in manifest violation of public order and with the abuse of a right. Our lawyers provided legal assistance in connection with the dispute in courts of all levels. Legislation regarding concession agreements and the practice of applying it are still poorly developed and many issues need to be regulated. The prosecutor’s office challenged those conditions of the concession agreement which had already become customary and widely accepted practice.
As a result,
the court sided with the client. Had the concession agreement been declared
void this would have had a detrimental effect on the development of this
institute and would have far-reaching repercussions for the whole sphere.
Within the framework of the project, important issues were addressed:
compensation by a concession grantor of a portion of expenses (to which extent
the portion of expenses might be assigned to the concession grantor); what the
term ‘creation of a facility’ implies and if a concession grantor may finance
design and survey work or construction only; whether a public entity may select
a model for implementing such projects and the criteria for such selection:
concession or public procurement under Law No. 44-FZ. Moreover, the question
was considered regarding the boundaries of the controlling and supervising
powers of the prosecutor’s office which enable it to interfere with business
operations of entities that are subject to supervision and the competence of
other state authorities.
The project was a matter of principle for the client’s business because its successful resolution would allow the client to build up its portfolio of concession projects in the sphere of healthcare: it is planning to embark on similar projects in several other regions.
Successfully resolved a dispute in courts of three levels and recovered almost all legal costs under the case
The team of the Dispute Resolution and Mediation Practice helped a client to win a dispute in courts of three levels in a case involving the recovery of an advance payment that was not covered by the counter-supply of agricultural machines. The complexity of the project was due to the fact that the judgments of the trial court and court of appeal which had been handed down in favour of the client during the first round were subsequently quashed, and the case was sent back to be considered anew. The court of cassation noted that the amount being recovered by the client may be classified as a retainer, which constitutes a ground for the lawsuit to be denied. Given the instructions of the court of cassation the lawsuit could have been denied, but our lawyers, engaged in the project at the right time, succeeded in preserving the previously attained result by having the initial judgment upheld, taking account of the criticism of the cassation instance and defects identified in the first round.
Another success was that the legal costs in the case were recovered almost in full from the defeated party (RUB 4.7 billion out of RUB 4.8 billion), which is still a rare occurrence in court practice.
Therefore, we helped the client to win the dispute without spending on our fees. This case is further proof of how important it is to engage a consultant with the relevant experience and expertise at the appropriate stage of the process. Only if it acts in precisely this way does a party to a dispute stand a chance to attain the maximum result at the minimum expense.
Defended the interests of a large international bank in connection with the new requirements of the regulator
Our lawyers represented a major international bank in a series of cases over the compulsory conversion of depositary receipts as established by special law No. 114-FZ.
The project was unique because there was no practice of how law No. 114-FZ should be applied, and numerous claims of the same type were filed against various depositories after the tight timeframes for conversion expired for which the law provided. Another unique feature of the case was that the claims rested on the legal provisions which allow for a judge to have wide discretion in interpreting them.
The tasks before our lawyers included: drafting procedural documents, forming a body of evidence and participating in the court hearings. As a result, the courts sided with the bank.
These claims against a depository are new for Russian court practice because they are based on 2022 legislation. The project reflects the specific aspects of how new regulation of investment relationships is applied against the backdrop of sanctions restrictions.
Telecommunications and IT
Successfully defended the interests of a telecom company in a precedent-setting tax dispute which reached the Russian Constitutional Court
The team of the practice represented a large telecom company in courts of all levels where the commercial case was conducted, including during an appeal in Supreme and Constitutional Courts. The court action was triggered by a field tax audit for 2017-2019 which was scheduled by the Russian Federal Tax Service to check compliance with transfer pricing (TP) rules. The tax authority was particularly interested in the client’s agreement with a foreign related party for telecom maintenance services. The pricing in this sphere is notable for its complexity owing to the specific nature of the services and the integrated nature of the agreement.
The company believed that the decision to conduct an audit was adopted late and, hence, no audit for 2017 could have been held. Our lawyers represented the client in courts of all instances. However, the company did not succeed in any state commercial courts of four levels, or when it attempted to challenge the order of the Federal Tax Service as a regulatory instrument in two rounds in the Supreme Court. Following that, the client, with the assistance of our team, applied to the Constitutional Court. The latter recognised the provisions of article 105.17 of the Russian Tax Code as inconsistent with the Constitution and their interpretation by the courts as incorrect. According to the Constitutional Court’s Resolution No. 41-P dated 14 July 2023, the provisions of the Russian Tax Code, if understood correctly, do not imply an extension of the deadlines for an audit to be scheduled, as was done in case of our client.
The fact that only 15 judgments of the Constitutional Court have been adopted in the form of resolutions throughout the whole history of the Court attaches particular importance to the project. Moreover, the provision of the Tax Code was recognised as unconstitutional in the case at hand. The court obliged the legislature to amend the Tax Code to that extent and the lower courts to review the client’s case.
The client preserved its status of an IT company and confirmed accreditation by the Ministry of Digital Development, Communications and the Mass Media
The team of the practice advised the client on how it should preserve the status of an IT company. Within the scope of the project, our lawyers analysed all the types of income and revenues that the company received, divided them into groups and singled out (1) revenue relating to income from IT activities; (2) ‘disputable’ revenue; and (3) revenue unrelated to IT activities. For the first two groups, our lawyers analysed all the types of agreements and interviewed employees to identify the nature of the services. We then provided recommendations as to how to calculate the volume of revenue and amend the agreements in order to avoid contentious situations.
In addition, specialists checked whether the company met other criteria to preserve the status of an IT company and to confirm the accreditation obtained from the Ministry. Confirming the accreditation helped to keep IT specialists in the company and gave a further opportunity to use state support measures for the IT industry.
Pharmaceuticals and healthcare
Successfully defended the client in court: the lawsuit was declared unfounded and was dismissed
Lawyers of the Life Sciences Practice represented a major international pharmaceutical company which devised a methodology for measuring certain substances in waste water. The client faced a lawsuit seeking that certain items of the methodology be declared invalid.
Although the lawsuit did not involve property, the potential damage for the company could have been extremely high because if a part of a methodology is recognised to be invalid this makes it impossible to use the products and also calls into question previous transactions under which such equipment was supplied as well as the results of previous measurements.
Our team provided full legal support during the legal action. The case was ended by a decision of the court of first instance which fully upheld the client’s position: the lawsuit was declared unfounded and was dismissed. The victory in court allowed the client to mitigate the above risks for the business.
Conducted a regulatory risk-based audit for a Chinese pharmaceutical company
For a Chinese pharmaceutical company, lawyers of the practice conducted an audit of regulatory risks associated with products that were imported into Russia. The tasks before our lawyers included: assessing historical and potential regulatory and commercial risks as well as the risks of complaints from consumers and also issuing recommendations for how such risks can be mitigated.
As a result, the client was made aware of the pertinent risks associated with its products, including with regard to import duties, lawsuits from consumers and so on. The legal memo the client received was used to prepare the company for an IPO.
Full-fledged restructuring of a business of a large European pharmaceutical company
Lawyers of the practice provided legal support during a project that involved the restructuring of the business of a European pharmaceutical company (group of companies) in Russia. Our specialists drafted a packaged legal memo regarding the potential options for restructuring the business taking into account regulatory, currency, customs and tax risks. In the end, the company decided to follow through with one of the options we suggested.
Lawyers of the practice advised the client on emerging tactical and strategic issues that are connected, among other things, with licensing pharmaceutical activity, modifying logistical chains, remodelling transfer pricing (TP) and so on. In addition, agreements (supply agreements, a bonus agreement and others), the commercial policy and other instruments were drafted within the scope of the project.
The project is of immense importance for the client’s Russian business because with the new approach being implemented the company will be able to carry out necessary transactions in Russia more efficiently, expand the opportunities for operational activity and mitigate business risks.
Provided legal support in a large-scale environmental project of a client
The practice’s team provided expert support under a flagship environmental project of the client for the total value of about RUB 250 billion. According to the experts’ estimates, once the project is complete the company will be able to cut sulphur-dioxide emissions by 85% in the region of its operations.
Our lawyers provided full-fledged expert support with regard to most formidable environmental issues connected with implementation of project. We were also engaged in handling complicated construction issues: for example, creating artificial land plots. The specific challenge of the project lay in the absence of well-developed regulation of similar projects.
This is the biggest environmental event within the programme to modernise the company’s production assets. It is being implemented within the framework of the federal ‘Clean Air’ project of the national ‘The Environment’ project.
Successfully defended a client in a precedent-setting environmental dispute
The practice’s team defended the interests of one of the biggest production enterprises of the Republic of Sakha (Yakutia), which specialises in the construction of motor roads and highways. The Republic’s Ministry of Industry and Geology filed a lawsuit to recover over RUB 40 million in damage from the client which was caused by the unauthorised use of subsoil resources.
Not only did our lawyers implement a complicated procedural strategy but they also coordinated the work of many of the experts involved in the project. In addition, further to the client’s instruction we assessed the prospects of challenging in the Russian Constitutional Court the provisions of the Russian Code of Administrative Offences which the courts used against the client.
The dispute was setting a precedent because the parties differently interpreted the application of the Rules for assessing damage caused to subsoil resources as established by the Russian Government’s Resolution No. 564 dated 4 July 2013. The greatest challenge of the project lies with the fact that the client’s position rests on a judicial decision which was adopted previously and in which the court asserted that the client had administrative liability lawfully imposed. Nonetheless, the law and the standards of proof relating to such cases require not only that the fact should be established of the unlawful use of subsoil resources but that so should a number of other circumstances (such as the period of time during which minerals were extracted). The claimant, however, did not gather such evidence.
The issues of prejudicial effect and of the applicability, in general, of a court's conclusions in disputes involving administrative liability to cases over damage to the environment are of systemic importance for this category of cases.
Successfully represented the client in a court dispute with a water service company
The practice's team represented the client in a dispute with a water service company over the recovery of a payment for discharging pollutants where the allowable concentration was exceeded and over the payment for the detrimental effect to the centralised water-discharge system, with the total amount being over RUB 30 million.
Owing to the efforts of our lawyers, the decision of a first-instance court was set aside and the claims were dismissed in full. The court of appeal agreed with the defendant’s arguments that the sampling of waste water of the user was conducted with gross violations which affected the reliability of the results of the examination.
In addition to the unfounded claims of the water service company being excluded based on the outcome of the case, the client had a precedent-setting court decision handed down to it which will be relevant if similar disputes are considered between the same parties with regard to the payment for other periods. Moreover, the court judgment which was adopted under the case might be of use to other users who may encounter similar violations of the procedure on the part of water discharge companies and, primarily, where samples are taken other than from the control well which has been approved in the water discharge agreement.
The natural resources and energy sectors
Ensured the extension of a licence to use subsoil resources at a field in Kamchatka
The practice’s team devised a strategy to have a subsoil licence extended for the Russian branch of a Swiss company engaged in the extraction of nickel, cobalt and copper at a nickel field in Kamchatka. The fact that the field was a promising one and that additional measures were to be undertaken to develop it determined the need for detailed advice to be provided and for various options to be devised of a strategy for how the existing licence could have been modified.
Our team is providing full-fledged legal support under this project. It requires not only an in-depth knowledge of the industry but also a precise understanding of licensing practices (the position of the Ministry of Natural Resources on various licensing issues and so on). Otherwise, the help of your adviser may be reduced to a merely theoretical clarification of legal provisions rather than to solving the task the client has raised.
This project was of the utmost importance for the client because it was connected with the validity of licences which had been issued. Our lawyers had to solve a number of complicated and ambiguous from the perspective of subsoil legislation issues to devise the best strategy. The conclusions that were proposed helped the client to retain its asset in Kamchatka.
Determined the best structure of a transaction to acquire a large piece of real estate
Pepeliaev Group's team provided legal support under a transaction to purchase a regional power station. Our tasks included: determining the best structure of the transaction, as well as determining and analysing the scope of the transaction and target facilities.
Within the framework of the project our lawyers conducted due diligence of the assets to formalise ownership rights and organised data regarding the target facilities. They structured the data by various classes depending on how ready were the facilities for sale. It was important for the client to learn technical capacities and to check for legal factors which were relevant for the subsequent use of the asset.
The client planned to use the acquired property complex for different purposes. This had a major influence on both the scope of the property necessary for the buyer, and the structure of the transaction owing to the fact that many obligations were of a social nature and should have been taken into account in the scope of the transaction. The project was challenging in that the target facility was of city-forming importance, occupied a significant geographical area, and was of higher importance for the relevant region.
Banking and Finance Law
Provided legal support with regard to a transaction for over RUB 1 billion in the banking sector
The team of the practice provided legal assistance under a project of a major international bank operating in Russia which involved the assignment of a large portfolio of credit cards to another bank.
Under the transaction, the portfolio of credit cards of the issuing bank was sold to another bank together with the client base for subsequent servicing.
Our lawyers assisted the client with drafting contractual documentation under the transaction and advised it on the matters of banking regulation which applied to the transaction. The amount of the transaction exceeded RUB 1 billion.
Drafted a bank guarantee for over CNY 15 million for a Chinese counterparty
Our lawyers advised a Russian company on how international rules for bank guarantees (URDG 758) should be applied and were also involved in preparing a draft bank guarantee and in having it negotiated with the Chinese guarantor bank.
The client needed the bank guarantee to secure the obligations of a Chinese supplier to return an advance payment for the non-performance/improper performance of obligations under an agreement for the supply of equipment from China.
An increasing need of Russian companies to purchase goods from China on advance payment conditions entails the risk of monetary funds not being repaid if the counterparties fail to perform or properly perform their obligations. Securing obligations with a bank guarantee that is issued by the Chinese guarantor bank in accordance with URDG 758 constitutes a secure and easy-to-understand instrument which is recognised within the Chinese legal framework. This significantly reduces risks of Russian businesses even when they do not have any special knowledge regarding Chinese law.
Conducted an audit of restrictions on transactions with foreign securities
The practice's team advised the client on regulatory and foreign currency restrictions imposed on a broker to conduct transactions with foreign securities for its benefit and for the benefit of its clients, including individuals who are Russian nationals.
Our lawyers analysed current currency and counter-sanctions legislation as well as the regulation of broker and depository activities of a Russian financial institution where a broker’s/depository’s services that are focused on foreign securities were provided to Russian clients by involving foreign sub-brokers and depositories, including the matter of cash movements in relevant accounts.
Following the analysis, we identified transactions and deals which were restricted by current legislation and transactions which despite numerous restrictions were still available for the broker and its clients at that moment. A most complicated audit at the confluence of currency, banking and counter-sanctions legislation enabled the client to structure provision of financial services in compliance with current legislation.
Protection of personal data
Assessed risks and limitations when our client is using the SAP system in Russia
Our personal data protection team has advised the Russian division of a Chinese company which planned to use the SAP system. Our lawyers carried out a comprehensive analysis of the terms and conditions of the licence agreements for the SAP and submitted by the client in order to identify any possible limitations on its use in Russia and/or the transfer of rights under a sub-licence agreement. Moreover, our experts were involved in the technical aspects of using the system to determine how far it met the requirements of Russian legislation on personal data and accounting (with regard to personal data being processed in databases which are located in Russia). Our legal opinion reflected all the aspects of using the SAP system in Russia and featured practical recommendations for localising it in Russia.
The main difficulty of the matter was that, for the time being, there has been no practice of applying the requirements of Order No. 62n of the Russian Ministry of Finance dated 16 April 2021 “On approving Federal Accounting Standard FSBU 27/2021 ‘Documents and document flow in accounting’”. In this connection, in order to assess the risks, we needed to perform a deeper and more complex analysis of the requirements.
Complex analysis of an access control and management system and bringing it in line with current legislation
The lawyers of the practice advised a major international company in connection with the enactment of Federal Law No. 572-FZ dated 29 December 2022 “On identifying and/or authenticating individuals using biometric personal data, on amending certain legislative instruments of the Russian Federation and on repealing certain provisions of legislative instruments of the Russian Federation” (“572-FZ”). The company has an access control and management system (ACMS) installed: employees’ photographs are placed on the ID card and in the electronic ACMS. It is also planned to implement a facial and fingerprint recognition system for unblocking laptops (Windows Hello). Hence, the client needed advice on whether the requirements of 572-FZ had to be complied with as well as on the necessary steps aimed at complying with the above requirements.
Our lawyers carried out a comprehensive analysis of the ACMS used in the company (including from the technical viewpoint). The opinion described the risks connected with the use of the current ACMS and suggests possible ways to mitigate them. In addition, the opinion pointed out the need to bring the ACMS in line with the requirements of 572-FZ.
Regarding the use of Windows Hello, our experts researched the positions of the Federal Service for Supervision of Communications, Information Technology and Mass Media in relation to similar issues, and developed an offer agreement based on which the system could be used. The client received a sequential, structured and grounded opinion elucidating how far 572-FZ is applicable to the use of Windows Hello.
Normally, there have not been any single decisions about the need to fulfil the requirements of 572-FZ in relation to processes which take place within companies. In addition, the analysis of the issue of using Windows Hello is complicated by particular features of the intra-company conditions for using software in the company. Within the framework of the project, we performed a comprehensive analysis of aspects relating to the processing of biometric data, including in the light of further prospects for developing legal regulation.
Assessed issues and risks connected with the implementation of a telematics system
The experts of our practice have advised a client on installing a telematics system on corporate cars made available to employees. The system is expected to gather and transmit to the company data relating to an employee’s route, the stops made, driving safety (e.g. with regard to exceeding the speed limit), and fuel consumption. The data will be gathered round the clock and without pauses, including on weekends and holidays. The client needed advice on whether the implementation of such system was lawful, and on the conditions for such system to be applied.
Pepeliaev Group’s lawyers have analysed the conditions for providing telematic services by the client’s contractor. In addition, they have reviewed the system’s interface, and analysed the current practice of implementing telematics in relation to the employees, including from the viewpoint of employment law. As a result, the client received a complex opinion stating the risks inherent to the use of the system, a list of changes to be made in the internal regulations, as well as comments on each item contained in the consent to the processing of personal data of the relevant employee, which must be taken into account to use telematics.
Implementing telematics is a complex procedure since it includes aspects of employment law, the processing of personal data (in this case, data of special categories), and privacy issues (article 23 of the Russian Constitution).
The Digital Economy
Ensured compliance with Russian legislation when publishing information on our client’s websites
The team of our practice advised a client who had decided to leave the Russian market; in this connection, the client had to create separate websites in the Russian domain zone for five brands of the company. The new sites were designed with various functionality which included, for instance, the collection of personal data, interaction with consumers (the return/exchange of goods, the possibility to order a free sample), and information about the assortment.
Our lawyers ensured complex legal support for the creation of the new websites: they analysed the planned functionality for each website; assessed the risks connected with the publication of information and chose the most efficient ways to handle each type of risk; drew up a tailored package of documents to be published on each website in line with the requirements of civil legislation, legislation on advertising, personal data and the protection of consumers’ rights; devised cookie banners and disclaimers.
When preparing the documents, our experts relied on the requirements of Russian legislation, the current approaches of supervisory authorities, their own user experience, and on the best practices in producing user-friendly documents. To do so, our experts applied legal design instruments while preparing the documents. This resulted in easy-to-understand documents which fully complied with Russian legislation as well as with the objectives set by the client.
Legal support for a mobile application developed by our client being rolled out over nine countries
The team of our practice provided support on a project aimed at a mobile application developed by our client being rolled out over nine uncovered countries. The functionality of the application included the following: device control, catalogue of goods, information about special offers, and client service.
Our lawyers faced the task of exposing to the client the legal aspects of entering third countries' markets as well as the restrictions which could complicate or impede the roll-out. Within the framework of the project, our lawyers were to analyse issues relating to e-commerce, legislation on the protection of consumers’ rights, the identification of users, restrictions on content, personal data and advertising, the use of trademarks, corporate and currency law, and identify all the potential risks and ensure compliance in all areas across the nine jurisdictions. The client was also interested in the team being significantly enhanced by engaging a legal advisor for the time when the project was to be implemented.
While implementing the project, our lawyers faced a number of issues. For instance, the need to implement the device control function (‘Smart House’) became the innovative element of the project. The comprehensive analysis of applicable regulation performed by our team showed to the client how exactly the service should be changed or improved in order to open access to users from the nine jurisdictions, and helped take into account all the risks emerging when entering new markets.
Analysed the possibilities of selling cars remotely in Russia
The team of the practice has performed a complex analysis of the possibility of selling cars remotely in Russia. The client planned to implement the full cycle of selling a new car model online, including payment (involving credit funds, among other things).
Our lawyers assessed the risks of implementing such business scheme from the viewpoint of the law on protecting consumers’ rights and the legal regulation of e-commerce, and came to the conclusion that the scheme is impossible at the moment. This is due to the requirement for state registration of a transportation vehicle (the sale and purchase agreement for a car should be executed on paper and signed with the genuine signatures of the buyer and the seller) and the need to enter into a consumer credit contract (where the buyer’s identity should be confirmed in the buyer’s presence). The project included issues relating to antimonopoly, tax and corporate law.
To make a decision whether cars could be sold remotely was crucial to determining the further strategy of developing the client’s business in Russia.
Updated the anti-corruption policy for one of the world's oldest pharmaceutical companies
The team of our practice successfully implemented a project aimed at updating the anti-corruption policy of a major pharmaceutical company. Our lawyers were to bring the current policy in line with current Russian legislation (taking into account court and law enforcement practice), the FCPA, the UK Bribery Act and the global anti-corruption standard of the parent company. In addition, the updated policy should describe in an accessible manner the requirements, restrictions and prohibitions (relating both to the company and its employees), and it should be bilingual.
Advised a client on the risks related to sanctions and counter-sanctions
The lawyers of our practice provided advice to a large global corporation which was successfully active in Russia, in connection with restrictions related to sanctions and counter-sanctions.
Our team was tasked with a complex legal assessment of managerial decisions, transactions, corporate and organisational changes, business processes and other actions of the company’s management and owners from the viewpoint of criminal law risks of liability being imposed for observing the sanctions, as well as with devising recommendations as to how to mitigate these risks.
Our experts also analysed the risks inherent to interacting with the resources of Meta corporation, whose activities are recognised as extremist in Russia, and with a major Ukrainian online cinema platform. In addition, it was necessary to assess the risks relating to interaction with the company’s counterparties and ensued from the regime of sanctions and counter-sanctions.
This matter was implemented at a time when a draft federal law had been submitted to the State Duma according to which compliance with anti-Russian sanctions will be treated as a severe form of an abuse of powers.
Built up and implemented an anti-corruption compliance system
Pepeliaev Group’s lawyers handled a project aimed at building up and implementing a modern anti-corruption compliance system within the client’s company. At the first stage, our experts carried out a complex compliance audit which included the following tasks: identifying and assessing corruption risks, drawing up a list of positions related to such risks, devising a complex of measures to eliminate and mitigate the risks, analysing the anti-corruption and corporate procedures which were already being used by the company, developing a methodology for monitoring how efficiently the management of corruption risks was functioning, etc. At the second stage, our experts modernised the internal regulations system.
The compliance audit of the company was performed not in one area, but in a comprehensive manner, including research and mitigation of corporate, tax, intellectual property, anti-corruption and criminal law risks. This approach allowed us to identify related and cross-sector risks and to devise comprehensive recommendations on how to overcome and mitigate them.
At the end of the project, our lawyers conducted a training workshop for the company’s employees regarding compliance, and prepared an educational presentation and an information booklet.
The projects of the Middle East Desk (UAE)
Legal support regarding compliance with the economic substance regulation in the UAE
Our Middle East Desk advised a global fast-food chain on complying with the economic substance regulation in the UAE. Our lawyers carried out an audit of the current business model to check how the economic substance regulation (ESR) in the UAE was being complied with and devised an action plan to exclude the risks connected with non-compliance with the ESR in the UAE.
The ways to mitigate the risk suggested to the client included both recommendations as to structuring its business and localising part of the functions in the UAE as well as more finely-honed measures relating to the wording of agreements, the use of opportunities offered by the accounting of IP, and the rebranding of trademarks with the client being registered as the initial owner of the rights to the newly registered trademark.
The main error of the players who enter the UAE market is that they underestimate the content of the ESR rules and the supervisory bodies’ attitude to them. Based on our observations, most companies are currently violating the ESR rules as they have only a formal confirmation of their economic substance in the UAE. If the relevant ESR test is failed in the UAE, a fine of AED 50,000 is imposed in the first year, and AED 400,000 in each subsequent year. Moreover, the Federal Tax Authority (FTA) may suspend, revoke or refuse to renew a company’s licence. Our team’s support helped the client to eliminate those risks.
A complex analysis of tax law to organise a business efficiently in the UAE
The team of our Middle East Desk advised a major manufacturer of metal on the possibility to apply the 0% corporate tax rate to the profit from the trading of rolled steel as well as services aimed at managing capital and investments in relation to affiliated legal entities.
Our lawyers analysed the benefits for trading in qualified goods, distribution out of/into a Designated Zone, the services of the headquarters, treasury and financial services in relation to which the zero rate is applied, as well as the issue of whether it is reasonable to split the businesses between the companies (if it is possible to apply the 0% corporate tax rate to one business but impossible to apply this rate to another business).
Our experts provided recommendations regarding the options for organising business in the UAE which would lawfully allow the use of the 0% rate for trading as well as for other activities, and regarding compliance with the ‘adequate substance’ requirements, ‘de minimis’ requirements and other requirements which must be complied with in order to fulfil the conditions for applying the 0% corporate tax rate.
The project was especially important as our recommendations took into account the Pillar II effect in relation to the zero corporate tax rate. The UAE plans to join Pillar II starting from 2025; however, many other countries have joined this initiative as early as from 2024. For those UAE companies that are part of a group with a turnover of EUR 750 million and more (for the group), Pillar II issues are relevant as early as in 2024 if the ultimate parent company of the group is located in a country which joined Pillar II starting from 2024. Such company will have to pay top-up tax on the difference between 15% and the amount of tax payable in the UAE.
A complex analysis of the tax law of the Emirates and international tax law helped our client to take an efficient decision concerning the organisation of its business in the UAE.