Infrastructure

Competitors illegally use your trademark, send letters indicating poor quality of your products, try to affect the lessor and get your premises, or, vice versa, accuse you of unfair competition?

Lawyers will ensure representation of your interests at the antitrust body, in courts, within the scope of administrative proceeding, suggest what actual measures will help avoid such situations and provide protection against unfair counterparties’ actions.

The antitrust law of Belarus impose special restrictions on certain market participants. Some deals (reorganization, sale of a part or shares, etc.) cannot be performed without the antitrust body’s consent, and without such consent it can be declared null and void. With that, it applies not only to entities that hold dominant positions in the market, but to the companies that have exceeded certain indicators in terms of revenue or assets as well.

Lawyers will advise on the need to obtain the consent in such situations and will also help obtain this consent if necessary.

Confidentiality of information is a delicate issue, the error in resolving which can cause many problems for clients and partners, from spam and telephone marketing to theft of money.

The lawyer’s task is to help develop the company’s privacy policy and structure the process of collecting personal information so that to comply with all requirements of the Belarusian law and the law of the European Union member countries.

Is it true that business in the USA will not be successful unless a company is incorporated in the state of Delaware, and it is operationally difficult to sell a product in the EU without incorporating a Cyprus company? Is Switzerland the crypto valley of Europe?

We have found answers to these and other questions on the basis of our practice, rather than with studying articles on fashionable hipster websites for startups. We know where the pitfalls are and can competently help determine how and where to move your high-tech business further. 

There may be a finished product, an excellent team, a reputation and a large marketing budget. But is everything good from the legal standpoint?

Investors give money for the product and people, but they give it to companies. The economic forms of companies (LLC, JSC, LTD, PLC, simple partnership) are abundant.

We will use plain language to explain which form of a legal entity is better to choose, how to formalize partnerships with other members and not be left out, and how to formalize intellectual property rights to your product so that not only users, but also investors and partners can see value in it as well.

Belarus is characterized by a significant share of state-owned enterprises. When working with state-owned enterprises, it is important for a business to understand the legal requirements for structuring contractual relations. If a state-owned enterprise acts as the customer for a product or service, then a number of procedures must be followed to select the best supplier bidding for procurement at the expends of the budget funds.

Involving lawyers is important both at the stage of preparing for tenders or auctions and during implementation of their results (and clients often seek our help at the stage of challenging the results of government procurements).

New technological solutions often remain outside legal regulating: ten years ago, it was difficult to believe that unmanned cars would drive along roads and artificial intelligence would help assess the buyer’s prospects in offline trading. 

Lawyers will help identify the gaps of legal regulating of your business model and prepare proposals and draft amendments to the law that will allow developing the model within the legal field.

It is difficult for the private sector to track down new legislative initiatives and assess the impact of a particular bill on business. Involvement of a lawyer into analyzing a bill will allow assessing the degree of influence of the document on business activities and will allow planning a gradual and timely transition to new requirements.

Collection of debts for products supplied, works performed and services rendered is a very common dispute. But such common disputes may require a special approach.

The set of debt collection measures includes checking the debtor for solvency, availability of valid legal proceedings and enforcement proceedings, selecting and conducting the most efficient debt collection procedure for a specific situation (lawsuit or writ proceedings, notary inscription for enforcement, tax authorities’ payment order, etc.).

We interact with bailiffs, the court, experts and enforcement organizations in the course of enforcement proceedings to achieve the maximum result.

If a government body has visited your company with an inspection, it may result in accrual of additional taxes and sanctions, bringing the company and officials to administrative liability. Criminal cases may be instituted with significant amounts of unpaid taxes.

The prospect of challenging the inspection results largely depends on the competent building of work with the inspectors at the stage of the inspection proper. Sometimes, the line between a legal act and an invalid document is very thin, and the seemingly insignificant risk of challenging a transaction becomes real because the company has underestimated the volume of violations and omissions made at the stage of business transactions registration.

Lawyers help promptly prepare the legal rationale for economic transaction performed and provide the required explanations. We support the client in the course of appealing against the inspection results and challenging the administrative measures taken in court and administrative proceedings.

We are ready to conduct specialized training for company employees on how to behave properly when an inspection is performed and in case of potential arrest. We can develop the set of measures to protect managers and owners of your business from the threats related to economic offenses.

The bankruptcy institute allows terminating a business project after it has failed due to a number of economic reasons.

We help the client to plan the entire procedure correctly, starting from assessing the grounds for starting the procedure, preparing the debtor’s bankruptcy statement and selecting management candidates, and finishing with support of all procedures, including creditors’ meetings, collection of accounts receivable. 

Unfortunately, many debtors abuse this procedure and try to evade liability this way. We will help creditors not only with proper drawing up of the creditors’ requirements, but also with full protection of their interests at all stages.

Creditors’ protection often involves challenging of transactions, appealing against actions (omissions) of managers, performing of an expertise, bringing the director and members of the debtor to subsidiary liability, replacement of managers.

The Republic of Belarus is a party to a number of international bilateral and multilateral treaties, on the basis of which it is possible to recognize and enforce decisions of foreign courts in Belarus. A similar process is used for recognition of Belarusian courts’ decisions abroad. At the same time, such treaties have not been signed with certain countries, but the principle of reciprocity in recognition and enforcement of court decisions may be applied.

Depending on the type of a judicial act and the basis for its recognition and enforcement, different documents are required. Besides, the procedure itself is not “automatic”. On the contrary, the other party is entitled to demand rejection in recognition and enforcement of such decision by referring to invalidity of the arbitration clause, violation of public law, and on other grounds.

Lawyers have considerable experience in representing clients in such cases in many jurisdictions, due cooperation with partners in the international network of Arzinger Law Offices. We will prepare the required documents and support the client in litigation.

Corporate disputes are potentially possible wherever there are two or more business owners. The reasons for disputes are mainly related to the fact that the key conditions for cooperation and division of money and the powers have not been settled in the very initiation of the business, and with the growth of business and profits these issues begin to get worse.

First of all, we help founders of a new business to reach  understanding before going into business together by concluding a partnership agreement. Such agreement has legal force and may cover business in various jurisdictions, it is lawful and enforceable. If a conflict has already arisen, we help conduct negotiations on restoration and settlement of relations, and, if it is impossible, to arrange a “civilized divorce”.

Participants in many corporate conflicts benefited from our help, as it saved their businesses from collapse. Corporate conflicts are very dangerous for the team and business, so lawyers must be involved to resolve them as early as possible.

Thousands of investment agreement have already been concluded during the effective term of Decree No.10 of August 6, 2009 “On Creating Additional Conditions for Making Investments in the Republic of Belarus”. Many of them have not been implemented for the reasons that are disputed by the parties (not assisting the other party, changing the economic situation in the country, financial difficulties of the investor, creating obstacles to the activities by the government, etc.). Investment agreements involve application of sanctions to the party guilty of improper performance. As a party to an investment contract, The Republic of Belarus monitors implementation of projects and lodges relevant claims and suits to dispute resolution bodies agreed by the parties, if there are sufficient grounds for this.

Lodging of claims by the investor is also possible on the basis of international treaties of the Republic of Belarus on investments protection. 2017 and 2018 were marked by the cases of filing such suits against the Republic of Belarus (in the ICSID and other dispute resolution bodies).

Lawyers will assess the prospect of the dispute resolution, hold negotiations on off-judicial settlement of the dispute on the compromise terms, prepare the legal rationale and the strategy for the case review. We represent our clients’ interests in both state courts and arbitration institutions in the Republic of Belarus and abroad. Leading global experts in investment arbitration cooperate with Arzinger Law Offices, which strengthens our client’s position in the litigation.

Resolution of arbitration disputes has its specifics. The parties are more largely obliged to prove their position, the court staff can be involved to obtain evidence to a lesser extent. When making a decision, not only the law of the Republic of Belarus is considered, but other sources of law are also used. All the aforementioned causes the situation when representatives must have the appropriate qualification for professional protection of clients in arbitration courts.

Arzinger partners and lawyers conducted dozens of processes in arbitration courts, including cases involving supplying of goods and sophisticated equipment, design and construction works. A number of partners are on the lists of recommended arbitrators of well-known Belarusian and international arbitration institutions. We accompany dispute resolutions in the International Arbitration Court with the Belarusian Chamber of Commerce and Industry (Minsk, Belarus), the Arbitration Institute of Stockholm Chamber of Commerce (Stockholm, Sweden), the London Court of International Arbitration (London, UK), the Arbitration Court of the International Chamber of Commerce (Paris, France), the Vienna International Arbitration Center (VIAC), etc. Leading foreign experts in arbitration cooperate with Arzinger, which strengthens our client’s position in the litigation.

Many Belarusian enterprises, including state-owned ones, are modernizing their production facilities or building new plants. The basis of new technologies is state-of-art process equipment, which the supplier must supply and install on the turnkey basis, including commissioning works and bringing the facility to the design capacity.

The purchaser often makes errors in choosing equipment parameters or important issues of interaction between the parties remain unresolved in the contract due to the lack of sufficient qualifications with the purchaser in such projects. As a result of this, the ultimate goal of the contract remains either not achieved or one of the parties requires a change in the contractual terms, including payment for additional works and components, change of terms, etc.

Lawyers help to build the right strategy for dispute resolution, prepare justification of the reasons for non-performance of the contract by the parties, apply the correct rules of law (which is particular importance when concluding mixed contracts). If necessary, a professional or an expert organization is involved into the case by us.

Construction of major real estate facilities involves interaction of many participants, including the customer, the engineer, the general contractor, subcontractors, the design organization, etc. Turnkey contracts may be complicated with application of FIDIC books or foreign laws. No construction work goes smoothly, and the fault of only one party in violation of the facility completion and commissioning deadline is not obvious, as a rule.

The most common is the presentation of mutual claims for payment of a penalty for violation of the terms of performance of work and payment, quality claims. In difficult situations, a party can terminate the contract in accordance with the off-judicial procedure, and the second party can subsequently dispute such termination in court, claims damages. An expertise can be appointed to establish the scope and quality of works.

Lawyers perform legal examination of the dispute at the stage of its occurrence, assess the prospects of judicial consideration of the dispute, interact with technical experts, represent interests of the parties both during negotiations and during conflict resolution in court.

An anti-dumping investigation is a long and multi-stage process, which requires both in-depth deep analysis of the situation at the market for certain goods and knowledge of the law of the Eurasian Economic Union.

Our experts will draw up a statement about the initiation of an anti-dumping investigation, assist in preparation of the comments and filling out a questionnaire for the Eurasian Economic Commission that performs the investigation, and will take part in public hearings on the case on your behalf.

The following permits must be preliminarily obtained for import and sales of a number of commodities, i.e., the quality certificate, the declaration of conformity or another opinion of government bodies. We will help determine the procedures that must be completed with respect to the goods and will ensure interaction with the certification bodies up to obtaining the required documents.

International trade is bound with risks associated with customs procedures for almost any business.

Classification of goods and determination of their customs value often causes of disputes with the customs authorities, the positive resolution of which largely depends on the relevant experience and practice of interaction with government agencies.

We will represent your interests in the customs authorities and protect you from unnecessary financial and time costs as much as possible.

Drafting an attractive and understandable contract for rendering of services, delivery, distribution, commission, service agreement or any other foreign trade transaction is only half the battle.

It is important that the agreement could withstand the litigation and that the mechanics of its execution does not contradict the Belarusian law.

If you have bought goods in the East and are going to resell it to the West without importing it to Belarus, you should check with your lawyers what opinion the law has about it (negative). Or if the counterparty insists on review of all disputes in future in London, we will tell whether you can agree on this.

If you are aware of a real or potential violation of intellectual property rights and it involves commodity movement between countries (for example, the goods are imported using your trademarks or know-hows without your consent), then we can protect your business by registering such objects in the customs register of intellectual property rights.

Lawyers can be official representatives of the right holder before the customs authorities, participate in identification and forfeiture of counterfeit goods (goods manufactured in violation of your intellectual property rights).

Each company deals with processing of personal data, i.e., the data of its employees, customers and potential counterparties, casual contacts in forums and business meetings. Every year, the legislator for a stricter procedure for collecting, storing and processing of personal data. This issue is particularly relevant for the companies that exchange such data with their parent or subsidiary structures (for example, have centralized storage of data on all employees of a group of companies), or conduct business using the Internet (for example, using servers located outside Belarus), make mailings in the contacts database formed by them.

A separate group of issues is related to introduction of the GDPR starting from May 2018, which establishes special requirements and responsibilities when processing personal data of the EU citizens. Many Belarusian organizations that are subcontractors in the processing such data or directly perform business in the EU have already faced the need to develop a set of protective measures to avoid multi-million penalties.

Lawyers will perform the audit of the personal data to which your company has access, and will develop a set of measures of the organizational, legal and technical nature to ensure security of personal data and your business.

Competition is not always fair. Your success makes yout competitors sleepless and they may improperly use your trademarks, technologies, appearance of goods, production secrets and other intellectual property to gain a market advantage. We are ready to ensure comprehensive protection of your business against such attacks.

Firstly, each separate intellectual property object can be protected in accordance with the judicial, administrative and criminal litigation procedure. For example, unlawful use of a trademark makes the right holder entitled to demand a compensation from the violator in the amount of up to 50.000 basic values (about EUR 118,000) without having to prove the damage amount. You can prohibit the offender to perform specific actions in court, for example, advertising and offering a particular product for sale, to remove a counterfeit product (goods made with violations of your intellectual property rights) from sale.

Secondly, all actions of the violator in the aggregate may constitute unfair competition. Judicial bodies and the MART (Ministry of Antitrust Regulation and Trade) deal with unfair competition cases. We support our clients at all stages of such cases, up to forced execution of court statements.

If a trademark, invention, utility model has been developed by you, then registration or obtaining a patent is required to protect the result of your work, as a rule. Such registration can be national or international. It can be obtained for various commodity headings.

Lawyers will help determine the very possibility of registering and protecting your intellectual property rights, will select the territory and the procedures required for it. We will perform the check for availability of similar objects that prevent protection of your intellectual property rights jointly with patent attorneys . As a result, you will receive a registration certificate or other right-setting document to protect your intellectual property rights in the corresponding jurisdiction.

If it is necessary to re-register the intellectual property rights to third parties, we will prepare an assignment agreement or another suitable contract and support passing the required registration procedures.

The project only starts with conclusion of the investment agreement. Investors’ typical errors are in the two aspects, i.e., contractual and legal.

Contractual relations with the government are a series of mutual rights and obligations stipulated in a single document, performance of which must be supervised in order to avoid an unconscious failure to observe the contractual provisions (the investment agreement implementation roadmap can help in this aspect). The legislative aspect of relations with the government is much broader. The investor must know and understand what liability it bears at each stage of the project (construction codes, environmental requirements, statements, occupational safety, and much more). Lawyers that are well familiar with a specific field of the investor’s activities will help avoid typical errors made by ignorance or negligence.

Belarus offers a number of attractive investment regimes, such as an investment agreement with the government, the High-Tech Park, the Great Stone Industrial Park, free economic zones and performance of activities in small cities. They all vary in the business sphere and the admission criteria. Various sets of benefits and preferences are proposed.

Choosing the suitable regime with optimal legal regulation is the key to the future project success and we will help with the right choice.

Implementation of any investment project is accompanied by conclusion of a number of legal documents, such as a residence agreement with the HTP or the Great Stone, an investment agreement, a PPP agreement, memoranda of cooperation. Conclusion of such documents is preceded by negotiations and discussions with government bodies and counterparties. A lawyer immediately understands the legal consequences of the decisions discussed in the context of the project in the negotiations.

Having extensive experience in holding of negotiations, we will help you correctly assess the risks prior to making a decision and register the result of negotiations in the form (memorandum, term-sheet, (non) binding offer) that will allow moving towards project implementation efficiently.

Conclusion of an investment agreement with the Republic of Belarus will help protect investments and get exemptions from the law and special preferences. The Arzinger team portfolio includes thirty investment agreements, in which we acted on behalf of foreign and local investors. An investment agreement can provide both a standard set of benefits and preferences for all investors, as well as special exemptions from the law and tax preferences.

The main investor’s objective is to conclude an agreement that will allow establishing partnership with the government and excluding potential disputes in the future. We know how to achieve it.

Prior to making the decision to start the project, it is necessary to understand how the business model complies with the legal regulation of the state, in which the investor plans to invest money.

We will perform the legal analysis of the model and will provide the assessment of your project in terms of its compliance with the norms of the Belarusian law and highlight the potential risks that may arise in the course of project implementation. We will also check the corporate, tax, customs, logistics and other aspects in the course of the analysis, after which we will provide recommendations on risk minimization and the business model optimization.

The need for an independent personnel audit may arise on various grounds: buying and selling a business, identifying violations as a result of state inspection or as part of the company’s audit, identifying gaps in documenting individual personnel issues in case of a conflict between the employer and the employee, restoring order regarding changes in labor laws.

We are ready to analyze the required scope of issues with subsequent provisioning of a list of existing risks and recommendations for their elimination.

Based on personnel documentation for a particular employee, employer’s local acts that define working conditions, lawyers will prepare options for actions and relevant draft documents (orders, agreements on termination, etc.) and will take part in discussing the selected dismissal variant between the employer and the employee.

It is all done for the parties to receive complete and objective view of the legal consequences.

Employment agreements (contracts), contracts for full individual liability, contracts for training, orders, job descriptions are examples of binding legal formalities in Belarus. You can instruct a lawyer to verify these basic business documents or draft them from scratch with periodical updating of the templates created. 

In addition, there are both mandatory forms of local normative legal acts (internal labor regulations, occupational safety provisions, military registration provisions, etc.), as well as the forms that allow the employer to regulate certain personnel issues (provisions on remuneration of labor and bonuses, provisions on material aid, etc.).

Doing business often requires involvement of foreign top managers and single-skilled experts.

The lawyer’s task is to perform all procedures stipulated by the law, which include the following: timely registration of a foreign employee, obtaining a temporary residence permit, in some cases, obtaining a special permit for an employee including special requirements for employment contracts with foreigners, as well as non-standard duties of the employee, corporate policies on certain issues, increased responsibility in respect of trade secrets, etc.

The commercial secret protection secret and the non-disclosure agreement are the two key documents that establish how your know-how, products, competence and reputation is protected. These local acts do not replace technical protection means (e.g., DLP systems), but establish the procedure and regulations of access to the information that brings you profits.

We recommend regulating these issues in parallel with recruiting first employees.

By understanding the goals and objectives of the parties, our lawyers assist in incorporation of joint ventures in design of relationships of the parties. When developing constituent and other documents, we pay special attention to governance issues, the procedure of managing of parts/shares, interests of major (minor) shareholders, responsibility management.

By coordination of the negotiating process, we find negotiable ways to resolve deadlock situations. 

After successful acquisition of the facility, it is important to ensure its active work. To do this, sometimes it is important, for example, to reduce the number and the influence of minority shareholders or to change the management.

The lawyers task is to propose the lawful methods of resolving problematic situation after successful completion of a deal with the facility.

A staged plan of the client’s participation in privatization shall be developed (transformation of a unitary enterprise into a joint-stock company, acquisition of JSC shares, acquisition of the enterprise as an asset package, etc.). Our lawyers enter into negotiations, prepare addresses, proposals, participate in negotiations on the investor’s behalf.

A staged plan of the client’s participation in privatization shall be developed (transformation of a unitary enterprise into a joint-stock company, acquisition of JSC shares, acquisition of the enterprise as an asset package, etc.). Our lawyers enter into negotiations, prepare addresses, proposals, participate in negotiations on the investor’s behalf.

A staged plan of the client’s participation in privatization shall be developed (transformation of a unitary enterprise into a joint-stock company, acquisition of JSC shares, acquisition of the enterprise as an asset package, etc.). Our lawyers enter into negotiations, prepare addresses, proposals, participate in negotiations on the investor’s behalf.

The deal support process includes development of all the documents required for entering and implementation of the deal, namely: corporate permits and approvals, contracts and agreements, changes in the articles of association, documents for administrative procedures.

Company’s lawyers shall supervise the broker’s and the depositary’s activities, the client will receive the documents on asset ownership.

An efficient structure of the facility purchasing deal shall consider all legal aspects of the planned deal including tax planning, assessment of observing the antitrust or corporate laws of Belarus, guarantees. Thus, it helps saving the client’s time and money.

It must be noted that knowledge of international law and the presence of our regular partners in “countries with reduced taxation” allows our prompt assistance in the deals that use the law of foreign countries (the United Kingdom, Cyprus, etc.), as well as the deals with participation of residents of foreign countries (Switzerland, Cyprus, Great Britain, Lithuania, Israel, etc.).

After the subject purchased has been verified, negotiations between the parties are started. The subjects to be discussed are: the asset value, the payment procedure, aubsequent management issues as well as obligations and guarantees of the parties. In each such situation, it is important not only to register the results and essential terms of the deal (in the form of memoranda, term sheet agreements), but also to control the course of negotiations.

Depending on the DD results, strategy selected and the lawyer’s skills, the deal can resenble a tender, a speculation for fall, a zero-sum game or even an interview.

When buying a company in Belarus (shares, parts or a unitary enterprise), the new member (owner) wants to make sure there are no material risks affecting performance of business. Such risks can be assessed by analyzing the documents and activities of the facility, namely: verifying the commercial structure, specifics of the counterparty company transactions, license and IP, movable and real estate property, information on taxation and finance, availability of obligations and debts.     

We consult both the seller and the purchaser. In each situation, we know what it all actually depends on in the course of preparing, interpreting and judicial review of legally relevant documentation.

Special organizations can be created to manage common real estate property, unite the interests of manufacturers and consumers, perform charitable activities and for other purposes that are of non-commercial nature.

Special organizations can be created to manage common real estate property, unite the interests of manufacturers and consumers, perform charitable activities and for other purposes that are of non-commercial nature.

One of the key conditions of successful operation of the company is correct distribution of competences between its management bodies.

Thus, owners must focus on the company’s future, the board of directors must reasonably approve or reject decisions on acquiring new businesses and entering new markets, and the board or the director must ensure achievement of the goals set and coordinated performance of work by all employees.

Exactly such correct setting of the corporate governance is also the key to higher attractiveness of enterprises for investors.

Entering new markets, launch of new risky products, a peaceful separation with business partners - this is for not exhaustive list of the reasons for reorganization of existing businesses.

Addressing lawyers to accompany a reorganization will allow prevention of possible negative changes (for instance, the prohibition to use of the simplified taxation system), calculate the cost of resulting expenses (replacement of labels on products, changes in licenses and certificates, etc.)

As our experience shows, prior to registration of their subsidiaries in Belarus, major businesses study the possibilities of doing business in Belarus by opening a representative office of the foreign company.

Such representative offices are suit perfectly for studying the markets of the Republic of Belarus, opportunities for investment, sales of tickets and reservations for air, rail road and sea transportation companies. An undoubted advantage is full control of the parent company over the activities of its representative office, as well as the absence of the need to obtain any work permits for the head of the representative office. 

To perform business activities, first of all, it is required to obtain the status of a company, i.e., to register a legal entity. The registration process starts with analysis of the company incorporation objectives (commercial or social), composition of its members (one, two or several dozens), as well as other legal and business factors.

As a result of such analysis, we will propose the optimal form of performance of activities (out of more than ten forms possible in Belarus) and the taxation system type.

One of the requirements of foreign credit and financial organizations is obtaining an independent legal opinion of the fact that the deal to be concluded with a Belarusian company does not contradict the local law requirements.

Apart from the formal part, obtaining such opinion allows the parties to ensure that all mandatory requirements (currency regulation, antitrust laws, etc.) have been observed and will not entail negative consequences (damage to goodwill, penalties) for the business.

Even if negotiations participants have worked in the same field for a long time, it does not guarantee successful negotiations. Sometimes, a third-party assistant in negotiations can see the obstacles to prompt achievement of positive results, such as conclusion of a contract, receiving a delay in payments, reduction of penalties, etc.

First impression of the counterparty can be deceptive, particularly when it comes to significant financial risks. Verification of information on the counterparty, which experts will receive both from reliable government sources and through their contacts, will help reduce the probability of non-performance of obligations, litigation, claims from government bodies.

If the cost of loans in Belarusian banks leaves much to be desired, there are always possibilities to consider alternative methods of raising loan funds. They include direct loans of foreign banks and international financial organizations, issuing bonds in Belarus and abroad, attracting a foreign investor as one of the members (shareholders) of a Belarusian company, etc.

Only experts who have participated in similar projects can assess advantages and disadvantages of each of these variants.