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Customs and foreign trade regulation

Customs and foreign trade regulation

Pepeliaev Group's Customs and Foreign Trade Regulation Practice is one of Russia's leading practice groups in this area. This is due to a number of factors: a strong team of professionals, the variety of services we offer, and an individual approach to every client.

The practice is represented by experts who have considerable experience of working in customs authorities and well-known international companies, and in taking part in litigation relating to customs disputes (in both the state commercial courts and courts of general jurisdiction). They are capable of providing support both in the context of integrated projects and on current projects in Russia and abroad.

The Eurasian Economic Commission (EEC), state authorities, Russia's highest courts and federal executive bodies all engage our lawyers as experts to work through and improve customs legislation and to draw up unified approaches for applying it.

Our lawyers are involved in nationwide associations (the Russian Union of Industrialists and Entrepreneurs, the Chamber of Commerce, Business Russia, and the Agency for Strategic Initiatives), groupings and expert organisations that work together with representatives of the EEC, deputies from the State Duma, and officials from core ministries and authorities.

The practice group's services are:

  • Advising on the application of customs legislation and the regulation of foreign trade activity, including the rules of the WTO, the Eurasian Economic Union, the Commonwealth of Independent States, and Russia
  • Providing support for projects relating to the amendment and application of rates of import customs duty, protective measures in foreign trade (including antidumping and countervailing duties), non-tariff measures and technical barriers to trade
  • Structuring transactions having regard to Russian customs and currency legislation
  • Legal support for the import of property contributions to the issued capital of companies and in the context of international finance leasing
  • Offering qualified legal assistance in settling conflicts and difficult situations that arise when dealing with Russia's customs authorities, including in relation to matters of customs value, classification under the Commodity Classification for Foreign Trade, the application of customs procedures, and administrative and criminal liability
  • Representing clients in state commercial courts and courts of general jurisdiction during appeals against decisions and acts or omissions of the customs authorities, against resolutions during administrative offence cases in the area of customs, and also against regulatory legal acts of Russia's Federal Customs Service
  • Representing clients when they appeal decisions of the Eurasian Economic Commission to the Court of the Eurasian Economic Union

Projects

Legal support to a shipping company on various customs issues Our lawyers provided legal support to a shipping company on various customs issues regarding sea vessels that are used for international and domestic shipments crossing the customs border. 
Our lawyers provided legal support to a shipping company on various customs issues regarding sea vessels that are used for international and domestic shipments crossing the customs border. The work included the following:
  • obtained confirmation from the Russian Federal Customs Service that the legal position we developed regarding the customs clearance of sea vessels was lawful. The sea vessels were imported under bareboat charter contracts to be used for international and domestic shipments subject to exemptions from customs duties and taxes. Our lawyers also provided follow-up legal support;
  • developed the conditions for the customs clearance of fuel as supplies with an exemption from export customs duties;
  • analysed the possibility of clearing re-exports with a customs authority other than that with which the vessel was initially cleared when imported.
The advice was unique in that customs legislation establishes special legal regulation with respect to vehicles used in international shipments. Where certain requirements are met, the corresponding laws provide for simplified customs procedures and customs duties exemptions. However, there are numerous gaps in the legal regulation, and for this reason carriers face considerable difficulties in meeting the requirements entitling them to apply the above simplified procedures and benefits in different situations. Not only did our advice help the client to ensure that all the customs requirements had been complied with, but also enabled it to take advantage of customs benefits while avoiding the risks of breaching the law.

Given the lack of official clarifications and the case law, other carriers utilising vehicles for the international transportation of cargoes and passengers may apply the legal positions that our lawyers have developed.
The lawyers of Pepeliaev Group’s customs practice protected the client’s interests before the Economic Panel of the Russian Supreme Court The lawyers of Pepeliaev Group’s customs practice won the case for the client, a major shipping company, before the Economic Panel of the Russian Supreme Court. 
The lawyers of Pepeliaev Group’s customs practice won the case for the client, a major shipping company, before the Economic Panel of the Russian Supreme Court.

After conducting a customs audit, Novorossiisk Customs Office decided that the client had violated the terms and conditions of the customs procedure involving the temporary import of a tanker in connection with entering into a time charter contract for such tanker. This decision resulted in the company being charged more than RUB 220 million. The client appealed this decision in the Kasnodar Territory Commercial (‘Arbitration’) Court, which decided in favour of the Company (Case No. А32-9485/2016). The court of appeal left this decision unchanged. The North-Caucasian Circuit Commercial (‘Arbitration’) Court quashed the judgments of the lower-level courts and handed down a resolution in favour of the customs office. The Supreme Court’s Economic Panel accepted the circuit court’s resolution for review and, after examining the client’s complaint, cancelled such resolution and upheld the decisions of the trial court and court of appeal.

“The unique feature of the project is that in this case customs rules depend on the civil law nature of the time charter contract, which is debatable,"" says Alexander Kosov, Partner at Pepeliaev Group. ""Such rules also depend on specific circumstances showing whether the ship remained in the actual possession and use of the company after the time charter contract had been concluded or whether, as a result of such time charter contract, it was transferred into the possession and use of the charterer. Several legal opinions of famous experts in the sphere of domestic civil law and customs laws as well as a legal opinion from English lawyers were presented to defend the position in court. The existing case law on similar customs cases is unfavourable for declarants. To recognise that to transfer a vessel imported under a temporary import procedure into a time charter is at variance with the terms and conditions of the customs procedure merely by virtue of the type of time charter contract would essentially mean that customs is placing a ban on a legitimate way of conducting economic activities envisaged by Maritime Law. Another focus of the litigation was whether a violation of the temporary import customs procedure constitutes a ground for disallowing the customs duty benefits and VAT benefits that do not depend on the customs procedure being applied. To answer this question correctly, it is required not only to interpret the provisions of customs legislation systematically, but also to understand the purposes for which the relevant customs duty benefits and VAT benefits are granted. In this context the Russian Supreme Court’s ruling on Case No. А32-9485/2016 is of great consequence for the formation of precedent-based practice and for the entire marine transport industry”.
Other projects