The How and Why in Financing Gold and Other Commodities Secured in Russian Warehouse Facilities

The How and Why in Financing Gold and Other Commodities Secured in Russian Warehouse Facilities

In the recent past there has been a good deal of interest generated in the capability of utilizing Russian commodities as acceptable collateral by Western financial institutions. The obvious problem has been the perception of Russia as a wild west where the acceptance and enforcement of law is nonexistent. The fact is that nothing could be further from the truth. The Russian Federation is not blind to such perception and has taken steps and passed laws that are strictly enforced to specifically deal with the capability of Western financial institutions to be safe, secure, and comfortable when conducting business and utilizing Russian commodities as collateral in global finance.

The Russian Federation has instituted law undertaken specifically to enhance trade financing and the protection of investment by third parties in Russian trade commodities and activities. The new Civil Code of the Russian Federation was written in two parts between 1994 and 2008 and is a combination of German Law, Roman Civil Law, English Common Law, and US Commercial and Constitutional Law in an effort to accomplish this goal. The result is a system that is fair, transparent, and protects the investor as well as the depositor. Aims have been taken to assure that no third party claims or liens can be placed on commodities pledged for financing. If the lender holds the warehouse certificate, and thereby ownership, he can immediately dispose of the commodities should there be a default. These strong changes have resulted in Russian warehouse certificates used as bank undertaking.

The pledge of commodities stored in warehouses is one of the security schemes requested by lenders proposing to enter into structured trade finance commodity transactions. Such a pledge is a well-established security device in most west European jurisdictions. Russia too has a developed system.

Some of the following has been excerpted from Christophe Jacomin’s work concerning the use of Russian warehouse warrants in financing schemes. Mr. Jacomin is a partner in the firm of Gide Loyrette Nouel in Paris. Gide Loyrette Nouel is an international law firm founded in Paris in 1920 with twenty four offices located throughout Europe, Asia, Africa, the Middle East, and North America. With more than seven hundred attorneys and legal consultants Gide Loyrette Nouel offers some of the most respected specialists and offers legal opinions to both governments and the private sector in each of the various sectors of national and international finance and business law. The reader will notice that the securities instruments issued by the Russian Federation licensed warehouses are referred to both as Warehouse Certificates and Warehouse Warrants. The terms are interchangeable and refer to the same warehouse issued document.

Warehousing activities in Russia are regulated by Chapter 47 of the Civil Code of the Russian Federation. Pursuant to Article 907 (1) of the Civil Code, under a warehousing contract, the warehouse undertakes, for remuneration, to keep goods deposited by the possessor of goods and to return these goods in their original condition. The depositor must be the possessor of the goods irrespective of the ground of such possession. This precludes any third party liens or claims on the goods deposited. The depositor can be either a legal entity or an individual.

The article terms a warehouse as an organization engaged in storing goods and rendering related warehousing services as an entrepreneurial activity. The use of the term ‘organization’ means that the warehouse is always a legal entity, not an individual entrepreneur. Warehousing activities in Russia are subject to various licensing depending on the kind of goods held in safekeeping.

Under Article 912 (1) of the Russian Federation Civil Code warehouse documents are:

• warehouse receipt;

• simple warehouse certificate (the SWC);

• double warehouse certificate (the DWC).

Warehouse Receipt: This confirms acceptance of goods for storage under the warehousing contract and determines their quantity (number of units or pieces, or weight and volume measurements) and external conditions. It is issued by the warehouse to the depositor personally. The only title certified by the receipt is the right of the depositor indicated therein to take the goods back from the warehouse in their original condition. This right cannot be assigned to another person neither by handling the warehouse receipt to him, nor by endorsement of the warehouse receipt, but only in accordance with the procedure as provided for by paragraph 2 of Chapter 24 of the Civil Code related to assignment.

Simple Warehouse Certificate Pursuant to Article 917 of the Civil Code, the SWC is issued in bearer form and must indicate the following:

• name and location of the warehouse accepting goods for storage;

• serial number of warehouse certificate in the register of the warehouse;

• name and quantity of goods accepted for storage – number of units and/or pieces of goods and/or measurements (weight or volume) of the goods;

• period for which goods were accepted for storage, if such period is established, or an indication that goods were accepted for storage on demand;

• amount of compensation for storage or tariff on the basis of which it is calculated and the procedure for payment for storage;

• date of issuance of the warehouse certificate.

According to Article 917, the SWC must also contain an indication of the fact that it is issued to a bearer. The SWC must have identical signatures of the authorized person and the seal of the warehouse.

Pursuant to Article 146 (1) of the Russian Federation Civil Code to transfer to another person rights certified by a bearer security, such as the SWC, it is sufficient to hand the security over to such a person.

Double Warehouse Certificate The DWC consists of two parts – the warehouse certificate and the pledge certificate (warrant), which can be separated from each other.

Each part of the DWC should equally indicate:

• name and location of warehouse accepting the goods for storage;

• current number of warehouse certificate in the register of the warehouse;

• name of legal entity or individual from whom goods were accepted for storage and location (or residence) of goods-possessor;

• name and quantity of goods accepted for storage – number of units and/or pieces of goods and/or measurements (weight or volume) of goods;

• period for which goods were accepted for storage, if such period is established, or an indication that goods were accepted for storage on demand;

• amount of compensation for storage or tariff on the basis of which it is calculated and procedure for payment for storage;

• date of issuance of warehouse certificate.

Both parts of the DWC must have identical signatures of the authorized signatories and the seal of the warehouse. Each part of the DWC may be transferred by way of endorsement.

NOTE: The SWC and the DWC both evidence two types of rights to the goods:

1. The right to take the goods back from the warehouse.

2. The right to dispose of the goods stored at the warehouse.

Pursuant to Article 914 of the Russian Federation Civil Code the holder of the warehouse certificate separated from the pledge certificate has the right to dispose of goods, but may not take them from the warehouse until he repays the credit granted.

Pledge on stored goods According to Article 914 of the Civil Code “goods accepted for storage under the double or simple warehouse certificate may be the subject of pledge during their storage by means of pledge of the corresponding certificate”.

Such pledge over the goods is regulated by paragraph 3 of Chapter 23 of the Civil Code, in particular by Article 357, and by the Law of the Russian Federation on the pledge of May 29, 1992.

Pursuant to Article 339 of the Civil Code a pledge agreement on goods stored in a warehouse shall be in writing and shall indicate the object of the pledge (the goods), its value, substance, scope, and performance time of the principal obligation. The pledge agreement shall also indicate the party that shall keep the pledged property. Pursuant to Article 357 of the Civil Code, under a pledge agreement on goods, such goods are left in the warehouse. Pursuant to Article 47 of the Law on Pledge, a pledge agreement on goods, in addition, shall indicate the kind of the pledged goods, their generic characteristics, the location of the warehouse and the kinds of goods by which those being stored may be replaced by.

We will see the day when the use of Russian Federation warehouse warrants becomes not only commonplace, but may well be the preferred methodology of securitization for these types of structured finance transactions.

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