Ksenia Tyunik (independent lawyer) contributed to the development of this publication

Established by the Russian government in 2008, the Government Commission on Control over Foreign Investments in the Russian Federation (the "Government Commission") is responsible for the review of foreign direct investment applications. The Government Commission is headed by the Chairman of the Russian government and composed of the heads of certain ministries and other government bodies. Following the appointment of Mikhail Mishustin as the new Chairman of the government and formation of the new government in January 2020, the new Government Commission has been operational since March 2020.

Although the final decision on the application is made by the Government Commission, all the preparatory work (such as reviewing an application's completeness and liaising with relevant government bodies) is done by the Federal Antimonopoly Service (FAS). Among other things, FAS performs a preliminary review of the application and prepares materials for a further assessment by the Government Commission. The Head of FAS is the Executive Secretary and a member of the Government Commission.

Since March 2022, the President of the Russian Federation adopted a number of "counter-sanctions," decrees which introduced additional regulatory requirements for transactions involving companies or persons from the so-called "unfriendly" states (those that imposed sanctions against Russia). Thus, transactions with shares, participatory interests or immovable property involving a company or a person related to the abovementioned states require (with some exceptions) prior approval of the special sub-commission of the Government Commission formed under the Ministry of Finance.

In addition to this, in August 2022, the President adopted a Decree No. 520 which provides that transactions with shares of certain companies operating in fuel and energy sector, as well as certain banks (both included in the lists approved by the Russian Government) are prohibited. Such transactions may be allowed only upon the special permission from the President of the Russian Federation.

Recent updates

• Russia's foreign investment laws were amended several times in 2022. In April 2022, two new types of "strategic" activities were introduced—sea or inland waterway transportation of certain cargo (as per the government-approved list) and the development and implementation of an automated information system for the registration of air transportation and related databases and telecommunication networks. As of December 26, 2022, two more new types of "strategic" activities will be introduced, both relating to ensuring the protection of fuel and energy facilities from unlawful interference at such facilities.
• In October 2022, the type of "strategic" activity on harvesting aquatic bioresources is replaced with the broader definition of "fishing" which, according to FAS's comments, includes not only harvesting but also other processes in the sphere of fishery, such as acceptance, processing, transportation and storage of fish products.
• FAS has developed two sets of amendments to foreign investments laws that were adopted by the Parliament in the first reading in the beginning of November. One set of amendments details specific steps that FAS (and other governing bodies) must perform to invoke the right of the Prime Minister to request a full-scale FDI review for any deal by a foreign investor. The amendments contain the list of Russian entities (and criteria to their activities) where such procedure is mandatory and for the list of additional information that applicants must provide to FAS as part of the merger control process for such transactions in order to enable FAS to decide if there is a need to initiate this procedure. Another set of amendments is aimed at regulating the procedure of obtaining the "strategic" license by a Russian company being under the control of a foreign investor and thus becoming "strategic," and outlines the relevant approval steps that are required in such a case.

Who files

To obtain an FDI approval, an acquirer must file with the FAS if the proposed acquisition would result in the acquirer's control over an entity engaged in activities of "strategic importance" to Russian national defense and security (a Strategic Entity). The acquirer is required to obtain the consent of the Government Commission prior to the acquisition of control over a Strategic Entity, or the transaction is declared void.

If an acquirer is a foreign state-owned company, it must submit an application for approval with respect to an acquisition of any Russian company (not necessarily a "Strategic Entity") if it obtains (directly or indirectly) a blocking stake in, or veto rights in relation to, such company. Such applications with respect to Russian companies not engaged in activities of "strategic importance" are generally subject to the "simplified" review (by FAS only) unless FAS invokes the right of the Chairman of the Government Commission to decide that a full-scale FDI review by the Government Commission is required for the transaction.

To apply for consent, the acquirer must submit an application to FAS with attachments, which include corporate charter documents of the acquirer and the target, information on their groups' structures (including the whole chain of control over both the acquirer and the target), transaction documents and a business plan for the development of the target after closing. A table disclosing the acquirer's ultimate controlling entities, beneficiaries and beneficiary owners is also required.

Applications under the abovementioned "counter-sanctions," decrees may be filed by either party to the transaction but in practice are usually filed by the acquirer. The filing process involves submission of the application to the sub-commission directly or indirectly through the industry-specific Ministry performing the regulation in the sphere of the target's activities. In practice, filing through the industry-specific Ministry is more efficient as it facilitates the approval process, because the Ministry transmits materials to the sub-commission with a ready opinion on the proposed transaction. To apply for approval, the acquirer must submit an application, along with corporate documents, copies (or drafts) of agreements formalizing transactions and documents disclosing the ultimate controlling entities, beneficiaries, and beneficiary owners of both the acquirer and the seller. In addition to this, the acquirer must provide certain financial information, such as substantiation of the deal value (preferably confirmed by the report of an independent appraiser), as well as the opinion on why the transaction should be approved.

Types of deals reviewed

The Government Commission reviews transactions that result in acquisition of control over Strategic Entities. Foreign investors must also obtain the Government Commission's consent for certain transactions involving the acquisition of a Strategic Entity's property.

The list of activities of "strategic importance" comprises 49 activities that, if engaged in by the target, cause the target to be considered a Strategic Entity. The 49 activities encompass areas related to natural resources, defense, media and monopolies. The activities include not only those directly related to the state defense and security (such as operations with nuclear materials, production of weapons and military machines), but also certain other indirectly related activities (such as TV and radio broadcasting over certain territories, fishing activities and publishing activities).

The criteria for determining control are broad and are lower (25 percent) for a target that is involved in the exploration of "subsoil blocks of federal importance," such as oil fields with a certain size of reserves, uranium mines, and subsoil blocks subject to exploration within a defense and security zone, or in the fishing activities.

Foreign public investors are prohibited from obtaining control over Strategic Entities or acquiring more than 25 percent of a Strategic Entity's property, and must obtain consent of the Government Commission for acquisitions of the lower stakes in Strategic Entities, or acquisition of blocking rights with respect to activities of such entities. Such investors, however, may acquire control over (i.e., 25 percent or more of shares in) a strategic entity involved in exploration of "subsoil blocks of federal importance" or engaged in the fishing activities if this does not change the existing control over such entities by the Russian Federation (i.e., its stake in such entities exceeding 50 percent) and provided that such acquisition is specifically approved by the Government Commission.

Certain transactions involving Strategic Entities, or their property, are exempt from the requirement to obtain the Government Commission's approval, such as transactions in which the acquirer is ultimately controlled by the Russian Federation, constituent entities of the Russian Federation or a Russian citizen who is a Russian tax resident and does not have any other citizenship, as well as certain "intra-group" transactions.

Non-disclosing investors (those refusing to disclose information about their beneficiaries, beneficial owners and controlling persons to FAS) are subject to a special, stricter regime established for foreign public investors. Pursuant to the rules for disclosing this information approved by the government, a foreign investor planning to enter into a transaction involving a Strategic Entity must make a prior disclosure of its controlling entities, beneficiaries and beneficial owners in order to avoid being treated as a "non-disclosing" investor and to ensure that the stricter regime established for foreign public investors will not apply. The disclosure must be made either in the form of an application for approval, if approval is required, or in the form of an informational letter filed with FAS 30 days before the transaction.

According to FAS, this advance disclosure requirement extends to exempted transactions in which the acquirer is ultimately controlled by the Russian Federation, constituent entities of the Russian Federation or a Russian citizen who is a Russian tax resident, and is a prerequisite for the relevant exemption to be applicable.

Amendments to Russia's foreign investment laws introduced in 2017 gave the Chairman of the Government Commission (the Prime Minister) the right to decide that prior approval is required with respect to any transaction by any foreign investor with regard to any Russian company (not necessarily the Strategic Entity), if this is needed for the purpose of ensuring national defense and state security. The process is initiated by FAS, which obtains opinions from the Ministry of Defense, the Federal Security Service and other governing bodies whether or not the transaction needs to be sent to the Chairman for his decision. If at least one positive answer is received, FAS sends materials to the Chairman of the Government Commission for review and adoption of the decision. Upon receipt of the positive decision, FAS will notify the foreign investor about the need to receive approval for a prospective transaction. Any transaction made in breach of this requirement is void.

FAS has developed draft amendments to the foreign investments laws that set out specific steps that FAS (and other governing bodies) must perform to invoke this procedure. The draft has been submitted to the Parliament and has not yet been adopted. Importantly, the amendments include the list of Russian entities (and criteria to their activities) where this procedure will be mandatory. These include targets participating in a national project, operating a city-forming enterprise, enjoying dominant position (in any market), being the sole producer of products/services that are not under the control of a foreign investor, etc. In practice, FAS invokes this right if the target operates in certain sensitive spheres in the state's policies and the economy (in particular, operating certain critical technologies, such as genetic-engineering, nanodevices' technologies, or cryobiology and biomaterial conservation).

Requirements of the abovementioned President's "counter-sanctions" decrees apply to a wide range of transaction scenarios, including, those where the companies or persons related to "unfriendly" states act as the acquirers, as well as sellers (transacting with Russian residents, or with companies or persons from both "unfriendly" and other states) and cover direct and indirect acquisitions of shares or participation interests in Russian companies and certain transactions with immovable property.

Finally, as mentioned above, Russia's foreign investment laws establish a requirement for foreign public investors to obtain clearance for acquisition of more than 25 percent of shares in, or blocking rights with respect to, any Russian company, including, if such acquisition is performed as part of the company's establishment. Such applications are reviewed by FAS only and serve as a "double check" that the acquired Russian company indeed does not qualify as the Strategic Entity.

Scope of the review

Generally, a review of the FDI application assesses the transaction's impact on state defense and security.

FAS initially requests opinions of the Ministry of Defense and the Federal Security Service as to whether the transaction poses any threat to Russian defense and security. Additionally, if the target has a license for dealing with information constituting state secrets, FAS requests information from the Interagency Committee for the State Secrecy Protection on the existence of an international treaty allowing a foreign investor to access information constituting state secrets.

Russian law does not provide any additional details on the review's scope or the criteria on which the transaction under review is assessed.

The review under the "counter-sanctions" decrees is aimed at assessing the financial aspects of the transaction, strategic national interests and security considerations as well as its impact on the Russian market and the economy in general.

Review process timeline

The statutory period for reviewing the application is three months from the date of its acceptance for review. The Government Commission can extend the review period for an additional three months. In practice, the Government Commission uses this extension right for a large portion of applications pending review. In practice, the review timing fully depends on the availability of the Commission's members and the Prime Minister, so it may take longer than the statutory timing.

Amendments to the law adopted in March 2021 introduced a simplified procedure for review of transactions in which a target operates in certain "civil" sectors (such as the food industry, energy/water supply, machinery) but due to specifics of production has a small strategic asset (not more than 1 percent of total assets of the company) in the form of a water supply facility, a drainage facility or a production quality control laboratory with a "strategic" license and therefore qualifies as the Strategic Entity. For such types of transactions, the approval is generally issued by FAS itself (unless there are negative or no opinions on the deal received from the Ministry of Defense and the Federal Security Service), with subsequent notification of the Government Commission of the decision.

Approvals on applications of the foreign state-owned companies filed under the "simplified" procedure are reviewed by FAS only and therefore are generally issued quite swiftly, unless FAS decides to invoke the abovementioned right of the Prime Minister.

The timing for issuance of approvals by the sub-commission, as well as by the President of the Russian Federation, is not set in the applicable regulation, therefore it is important to apply for such approvals early in the transaction.

How foreign investors can protect themselves

Early in a transaction, a foreign investor should analyze whether the target company qualifies as a Strategic Entity and whether the planned transaction triggers a requirement for the Government Commission's consent. In light of the recent amendments, acquirers should also analyze whether such consent would be needed in case the acquirer is qualified as a "non-disclosing" investor. Answering these questions will allow the investor to start filing preparations, and then to file its application sufficiently in advance to manage the filing's impact on the timing of the transaction.

If the planned transaction does not require prior consent but consent would be needed if the acquirer is qualified as a non­disclosing investor, the acquirer must disclose to FAS information on the acquirer's beneficiaries, beneficial owners and controlling persons in advance, at least 30 days before the planned transaction.

Even if the target company does not qualify as the Strategic Entity, the investor should analyze whether it operates in certain sensitive spheres, including those affected by sanctions/counter-sanctions or possesses any "critical" technologies that may potentially trigger the referral of the transaction by FAS to the Prime Minister and result in a full-scale FDI review of the transaction.

The requirements of the counter-sanctions decrees must also be analyzed in the very beginning of the transaction preparations, to ensure timely submission of the relevant applications to the sub-commission, or for the special permission of the President.

Finally, a foreign public investor that intends to acquire a stake exceeding 25 percent of shares in any Russian company, or blocking rights with respect to such company, must obtain FAS clearance of such acquisitions.

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