Investing capital in new territories of the Russian Federation: some practical problems and solutions

Belikova Ksenia Michailovna ORCID: 0000-0001-8068-1616 Doctor of Law Professor of the Department of Entrepreneurial and Corporate Law, Kutafin Moscow State Law University 125993, Russia, Moscow, Sadovaya-Kudrinskaya str., 9 BelikovaKsenia@yandex.ru Other publications by this author

Earlier in our works ^{[1, 2]} we touched upon the issue of the use of digital technologies for the restoration and development of new territories of the Russian Federation. Now we will touch on another aspect of the legal regulation of entrepreneurial activity in the form of capital investment through the prism of some practical problems and solutions.

The Federal Constitutional Laws (FKZ) on: Donetsk People's Republic [NPA1], Luhansk People's Republic [NPA2], Zaporozhye Region [NPA3] and Kherson Region [NPA4], along with other issues, regulate the investment activities of foreign investors, as well as groups of persons that include such investors who are required to provide the federal executive authority (authorized to perform the functions of monitoring the implementation of foreign investments in the Russian Federation), information about its ownership of five or more percent of the shares (stakes) constituting the authorized capital of a business company that is registered in new territories and carries out at least one of the activities specified in Article 6 of the Law on Investments in economic communities of strategic importance.

At the same time, it should be noted that the State Duma of the Federal Assembly of the Russian Federation approved in the second reading a bill on the creation of a free economic zone in the new regions of Russia (for the text, see No. 326717-8 Bill :: Legislative activity support system (duma.gov.ru ) (accessed: 08/15/2023)) ^[3].

The creation of a free economic zone provides for the establishment of a special preferential regime for its participants from January 1, 2024 to December 31, 2050, aimed primarily at ensuring sustainable socio-economic development of new regions.

On the territory of the free economic zone in these regions of the Russian Federation, it is planned to introduce a special regime of taxation and payment of insurance premiums: with the establishment of a zero income tax rate for organizations for a period of 10 years in terms of the federal budget, and in the amount of 0% to 13.5% in terms of regional budgets. At the same time it is offered: 1) exempt from paying corporate property tax for 10 years; 2) allow accelerated depreciation with a coefficient of "2" in relation to own fixed assets when calculating income tax; 3) exempt from paying land tax for 3 years land plots located and used for business activities in the territory of the economic zone; 4) reduce insurance premium rates to 7.6%. To become a member of the free economic zone, it is enough to commit to capital investments in the first three years of the project in the amount of: 30 million rubles - the standard amount of obligations, 3 million rubles - obligations for small and medium-sized businesses and 1 million rubles - obligations for high-tech projects. In addition, the Ministry of Construction has taken into account the specifics of urban development activities and land use rules within the boundaries of the free economic zone. The participants of the economic zone may also apply the customs procedure of the free customs zone ^{[3, 4]}.

Thus, serious benefits are given for investing in the development of newly created regions. The question arises who will act as investors.

It should be noted here that currently such countries and unions of states as the USA [NPA5], Canada ^[5], the European Union, etc. have banned the investment of capital by citizens of these countries in new regions of Russia, including Crimea, prohibiting their citizens, wherever they are, from investing in the "so-called DNR- and the LPR-regions of Ukraine" and other regions of Ukraine that can be determined later (USA); Canada's ban on investing in the LPR and DPR extended to the Kherson and Zaporozhye regions controlled by Russia ^[6]; the EU "ninth" package of sanctions banned new investments (including loans) in mining the industry, however, has established a number of exceptions covering "some critically important raw materials"^[7]. Etc.

At the same time, these and other countries and their unions (for example, the United Kingdom and the countries of the British Union) threaten sanctions against other countries and their citizens who decide to invest in new territories of Russia. For example, on November 2, 2022, the Canadian government ordered Chinese companies Sinomine (Hong Kong) Rare Metals Resources, Chengze Lithium International and Zangge Mining Investment to sell their shares in Canadian companies Power Metals, Lithium Chile and Ultra Lithium. The latter two companies are developing lithium projects in Chile and Argentina, and the first is engaged in the exploration of lithium, caesium and tantalum in northern Ontario. The Chinese Ministry of Commerce protested to Canada ^[8].

Although, in the press it is noted ^[9] that "the introduction of [martial law – auth.] after joining Russia, the investment climate of the republic does not worsen in any way," today the question arises: how appropriate are investments, for example, foreign ones, if the cities of the republics, for example, are shelled by the Armed Forces of Ukraine, and fighting continues on the contact line? The answer to it lies, of course, in the answer to the question of what business is. Business is a risk. And guarantees to investors are Russia and the Armed Forces of the Russian Federation.

At the same time, to assess the current volume of foreign investment, it should be taken into account that due to the fact that martial law remains in the new territories, the work of many of their enterprises is not subject to disclosure for security reasons. For example, the Reuters agency, citing data from the Russian customs, writes that from October 8, 2022 to March 24, 2023, the Chinese company Quzhou Nova bought at least 3,220 tons of copper alloy in ingots from the Debaltsevo Metallurgical Engineering plant in the Russian-controlled territory of Donetsk region for a total of $7.4 million. The office of Quzhou Nova assured that they are not engaged in exports and imports related to the trade of copper alloys in ingots. The website of the company Quzhou Nova states that it specializes in the export of wrapping paper, produces and sells goods for the tobacco industry, including paper, aluminum foil and polypropylene film ^[10].

Thus, it should probably be concluded that Russia, in the context of creating SEZs in new territories, needs to rely primarily on its own strength, namely on internal loans based on the experience of the USSR, for example, loans for the restoration and development of the national economy. So, in the post-war decade in the USSR, government loans were issued, placed by subscription: first, the restoration and development of the national economy (Resolutions of the Council of Ministers of the USSR of: May 3, 1946, May 4, 1947, May 3, 1948, May 3, 1949, May 4, 1950), then just the development of the national economy (Resolutions of the Council of Ministers of the USSR of: May 3, 1951, May 5, 1952, June 24, 1953, June 9, 1954, May 11, 1955, May 13, 1956, May 14, 1957, then internal winning loans (for example, Resolution of the Council of Ministers of the USSR No. 844 "On the issue of the State Internal Winning Loan of 1946" dated April 13, 1946), which differed from loans by subscription by the fact that they were placed in the order of free sale by savings banks and were intended to attract free funds of the population ^[11].

The ways to do this are different now ^{[12, 13]}, there is the experience of foreign countries ^[14].

On the other hand, it is necessary to develop BRICS and cooperation within it so that these countries are not afraid to invest in Russia, taking into account the following circumstances and factors:

1) according to the BRICS information from April 29, 2023 in the open press - 13 countries have officially asked to join, and another 6 - informally. "We receive applications for joining every day," the BRICS told Bloomberg ^[15];

2) according to the message of the President of the Russian Federation V.V. Putin dated June 22, 2022 at the BRICS business forum, the issues of creating a reserve currency based on the currencies of the BRICS countries and developing alternative mechanisms for international settlements are being actively worked out jointly with BRICS partners ^[16];

3) in Russia, they want to launch trading in shares from the BRICS countries ^[17].

In order to make cooperation with Russia attractive for the rest of the BRICS countries, it is necessary to use diplomatic and military forces to substantiate the Russian understanding of the international legal aspect of implementing the right of peoples to self-determination and the principle of territorial integrity of the state.

As we know, on February 21, 2022, Russian President Vladimir Putin announced Russia's recognition of the sovereignty of the DPR and the LPR, and on February 24, 2022, the beginning of a special military operation in Ukraine in response to the appeal of the leaders of the republics of Donbass for help.

The reaction to these actions of Russia on the part of Ukraine consisted in the rupture of diplomatic relations with the Russian Federation on 02/24/2022. The Russian Foreign Ministry was handed a corresponding note from the Ukrainian side ^[18].

The UN Secretary-General (A. Guterres) tried to indicate the reaction of the world community to the holding of referendums on the entry of the DPR, LPR, Kherson and Zaporozhye regions into the Russian Federation on September 23-27, 2022, stating even before they were held that both referendums and decisions on the accession of regions to Russia were illegitimate. In his opinion, these processes should be condemned, since they are not compatible with international law, and not accepted, since they are a dangerous escalation ^[19].

Such statements from the UN Secretary General do not correspond to many international acts and documents that enshrine the right of peoples to self-determination (including the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights of December 16, 1966, the Declaration on the Principles of International Law of October 24, 1970; documents of Security Conferences and cooperation in Europe - the Helsinki Final Act of 1975, the Final Document of the Vienna Meeting of 1986, the document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE of 1990, etc.), so, even the Covenants of 1966 confirmed the right to self-determination to all peoples of the world in the form of freedom to establish political status and ensure economic, social and cultural development. In addition, in accordance with the UN Charter, all States parties to these Covenants must respect and promote this right.

How can the UN Secretary General ignore the principle of equal rights and self-determination of peoples enshrined in the UN Charter, if, according to the Declaration on Principles of International Law of 1970, all peoples have the right to freely, without outside interference, determine their political status and the path of economic, social and cultural development. At the same time, all other States are obliged to respect this right and realize that the ways of exercising the right to self-determination when choosing a political status are diverse: from the creation of an independent State to free accession or unification with an independent State.

The UN Secretary General accepts only other provisions of acts of international law - on the territorial integrity of states. For example, the provisions of the UN Charter (paragraph 4 of art. 2) the need for UN members to refrain from using force to violate the territorial integrity and political independence of States, or the provisions of the aforementioned Declaration on the Need for States to refrain from actions that violate the national unity and territorial integrity of other Countries.

Is there a contradiction between the implementation of the principles of the right of peoples to self-determination and the territorial integrity of the State? No, this contradiction is apparent, because the second of them (the principle of territorial integrity) is aimed exclusively at protecting the state from external aggression and for this reason its application is possible only after the right to self-determination is satisfied ^[20]. It is the presence of a national conflict within the state, the absence of compromises and consensus in the presence of political contradictions between the parties, the unwillingness to find a peaceful solution to them that leads to their escalation into a military confrontation. The central state power usually justifies its refusal to exercise the right to self-determination with the priority of the principle of territorial integrity, inventing a threat or the presence of external aggression (for example, the "fulfillment" of the conditions of the Minsk agreements with simultaneous shelling of peaceful territories that disagree with the policy of the state ^[21]).

Thus, based on the factual circumstances, the right of the LPR and DPR to self-determination and recognition by Russia as independent states does not violate international law, contrary to the information campaign of the "collective West" to the contrary ^[20].

On March 02, 2022, the UN General Assembly adopted the anti-Russian Resolution "Aggression against Ukraine". In fact, the members of the General Assembly refused to take into account the political situation in Ukraine that arose after the 2014 coup d'etat, glorifying Ukrainian Nazism and depriving the Russian-speaking population of the right to their language and culture. They expressed regret about the decision of the Russian Federation of February 21, 2022, to recognize the new status of the Donetsk and Lugansk People's Republics as incompatible with the principle of territorial integrity and sovereignty of Ukraine and demanded from Russia the immediate unconditional cancellation of this decision ^[22].

On October 12, 2022, the UN General Assembly adopted the Resolution "Territorial Integrity of Ukraine: Protection of the principles of the UN Charter", which did not recognize referendums in the LPR, DPR, Kherson and Zaporozhye regions. By adopting this resolution, the UN General Assembly was, obviously, in the blinkers of propaganda information noise created by NATO countries led by the United States, which is understandable (as they say: "your shirt is closer to the body"). Moreover, the UN General Assembly called on all countries, international organizations and specialized UN structures not to recognize the status change in the form of joining the Donetsk, Zaporozhye, Lugansk and Kherson regions of Ukraine to the Russian Federation. In addition, Moscow was condemned for organizing referendums and annexing these territories and called on it to immediately withdraw its armed forces from Ukraine ^[23].

This approach was preserved in 2023. Thus, on February 23, 2023, the next UN General Assembly Resolution "On the principles of Peace in Ukraine" was adopted, in which the General Assembly, speaking for the unity and territorial integrity of Ukraine within its internationally recognized borders, called on UN members and international organizations to redouble diplomatic efforts to achieve peace in Ukraine. The resolution of the General Assembly demanded from Russia the immediate withdrawal of the armed forces from the territory of Ukraine, the cessation of strikes on the critical infrastructure of Ukraine and on civilian objects (hospitals, schools, residential buildings). It seems strange that the text of the Resolution does not contain similar appeals to Kiev in relation to the new (unrecognized) regions of the Russian Federation [NPA6]. Etc.

In this regard, in order to solve the issue of investing in new regions of Russia (at least) and other issues (at most), it is required to systematically and steadily promote the understanding of the designated international legal norms that Russia needs in line with the designated vector.

At the same time, excessive concentration of Russian assets in the hands of foreign investors should not be allowed, so as not to repeat the mistakes of the recent past (for example, concentration in the hands of the German state company Uniper SE 87.73% of the shares of the Russian company PJSC Unipro (Rosimushchestvo) and concentration in the hands of the Finnish state company Fortum 69.88 and 28.35% of the shares of the Russian company PJSC Fortum (Rosimushchestvo), which belong to Fortum Russia and Fortum Holding, respectively ^[24]; both Russian companies are energy companies).

 Regulatory legal acts (NPA):

1.       Federal Constitutional Law No. 5-FKZ dated 04.10.2022 (ed. dated 28.04.2023) "On the Admission of the Donetsk People's Republic to the Russian Federation and the Formation of a New Subject within the Russian Federation - the Donetsk People's Republic". // NW of the Russian Federation, October 10, 2022, No. 41, Article 6930.

2.       Federal Constitutional Law No. 6-FKZ dated 04.10.2022 (ed. dated 28.04.2023) "On the Admission of the Luhansk People's Republic to the Russian Federation and the Formation of a New Subject within the Russian Federation - the Luhansk People's Republic". // Federal Law of the Russian Federation, October 10, 2022, No. 41, Article 6931.

3.       Federal Constitutional Law No. 7-FKZ of October 4, 2022 "On the Admission of the Zaporozhye Region to the Russian Federation and the Formation of a New Subject within the Russian Federation - the Zaporozhye Region". // NW of the Russian Federation, October 10, 2022, No. 41, Article 6932.

4.       Federal Constitutional Law No. 8-FKZ of October 4, 2022 "On the Admission of the Kherson Region to the Russian Federation and the Formation of a New Entity within the Russian Federation - the Kherson Region". // NW of the Russian Federation, October 10, 2022, No. 41, Article 6933.

5.       Executive Order on Blocking Property of Certain Persons and Prohibiting Certain Transactions With Respect to Continued Russian Efforts to Undermine the Sovereignty and Territorial Integrity of Ukraine. February 21, 2022. URL: https://www.whitehouse.gov/briefing-room/presidential-actions/2022/02/21/executive-order-on-blocking-property-of-certain-persons-and-prohibiting-certain-transactions-with-respect-to-continued-russian-efforts-to-undermine-the-sovereignty-and-territorial-integrity-of-ukraine / (accessed: 04/29/2023)

6.       Decree of the President of the Russian Federation No. 302 dated April 25, 2023 "On the temporary management of certain property". URL: http://publication.pravo.gov.ru/Document/View/0001202304250033?index=3&rangeSize=1 (accessed: 04/29/2023).