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Moscow

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Participants are invited to consider the conventions

Why Russia introduces escrow-escrow accounts, dealt EastRussia

Participants are invited to consider the conventions
In countries that use the Anglo-American legal system, they have long and successfully used the term escrow, which can be translated as "escrow". In world practice, property, documents or cash can be recorded on special escrow accounts - until certain circumstances occur, therefore the account is called a deposit with a condition. After their occurrence, the property is transferred from the depositor who opened the account to the beneficiary for whom it is intended. Not only a bank, but also a lawyer and a specialized agent can open an escrow account abroad. In the Russian legislation, from 2014 onwards, only funds can be credited to escrow accounts, and only banks can keep them. The latter act as guarantors, not bearing, however, any property obligations - the bank only undertakes to transfer funds, checking all documents on the fulfillment of specific conditions of the transaction. What exactly - all three parties agree in advance. After the transfer of funds escrow account is closed. It would seem that it is a very transparent and convenient cash-settlement service tool available to any legal persons. However, escrow accounts in Russia have not yet received much popularity. Why - understood EastRussia.

Ideally, the escrow account can be used for any transactions related to the transfer of funds - the Civil Code does not impose any restrictions in this regard. In fact, it is a cashless analogue of a banking cell, where one party places a bundle of banknotes, and the other can receive the key only after submitting documents confirming the fulfillment of transaction conditions to the bank. To this scheme, Russians are already accustomed to, and nothing unusual in it is not seen, if it comes, for example, about an expensive purchase - an apartment or a car. But the business of using escrow accounts is not in a hurry, and banks began to actively implement the tool only this year.

"An escrow account is a joint use of two contractors, the money is transferred only after certain obligations have been fulfilled," explains Roman Balashov, director of the trade finance and correspondent relations department of the Sberbank Far Eastern Bank. recalled and not "left" somewhere for other purposes, but will be transferred only if the conditions of the contract are unconditionally fulfilled. However, an escrow account, like any client account, is not protected from claims from state parties: requirements to pay tax and other obligatory payments can be extended to it - this is a general provision of the law. But in general, for business settlements, an escrow account is the best way to guarantee a balance of interests between the two parties to the transaction. "

The owner of the account, Roman Balashov continues, is a depositor who incurs obligations to pay the agreed amount - and then early unilaterally close the account and withdraw funds, he can not, this can only be done by agreement of both parties. The escrow account guarantees the beneficiary, acting, for example, the seller, that his goods will be paid after shipment in any case. The beneficiary also has access to the account information, that is, at any time can check how the bank is checking documents by the guarantor bank - whether the grounds for payment have come or not yet. The depositor, on the other hand, is assured of the security of the placement of funds: payment will be made only after the grounds specified in the escrow account contract come. The list of documents and requirements to them is directly fixed in the contract, Roman Balashov emphasizes. The account due to this becomes not just a settlement, but also understandable for all parties to the transaction as a security instrument. The scheme is simple: payment against documents that confirm the occurrence of grounds and the fulfillment of the terms of the transaction.

"Why the escrow account is not yet the service of each, for example, the tenth deal," Roman Balashov argues. "Perhaps, because of its natural optimism, Russian businesses are not yet accustomed to such tools." The entrepreneurial mentality in Russia does not yet mean what it takes necessarily insure each transaction, hedge currency risks or interest rate risks.As for the purity of the transaction, companies usually rely on established contacts, brand awareness on the market - in general, that "everything will go fine." In conditions where the relationship continue with a verified counterparty, through the prolongation of contracts, this is justifiable, but if it is a deal with an unverified partner, carried out for the first time, a one-time deal, time-consuming, a contract with a new territory - then it clearly needs insurance. various tools for business, and an escrow account is just one of them. "



From insurance, continues the representative of the Savings Bank, the escrow account differs in that it is also a convenient settlement tool - insurance only prescribes the responsibility of the parties for the failure of the terms of the transaction, but does not solve the technical issue of mutual settlements. From a letter of credit - by the fact that it is a client account, not a bank account, funds can not be credited to it immediately, and both sides of the transaction have access to the information on the account. "This tool is" sharpened "not for the usual current activities, but for one-off unusual transactions, which, as a rule, start to be worked out in advance, so the parties have time to decide whether to settle through other instruments or through an escrow account," Roman Balashov adds.

A special feature of the escrow account is that it can take up to several working days to open it: the bank needs the representatives of the parties to physically visit its office, leave samples of signatures, sign a contract, which then needs to be checked. "From the point of view of mobility and the duration of the process, it may be a minus, but the advantage is that the bank immediately identifies two participants in the transaction," says Roman Balashov.

Large and long-term contracts, the execution of which is stretched for several years, may well be paid through escrow accounts. As an example - an investor company that decided to build a new enterprise in the Far East chose the general contractor for construction. Calculations of the two sides in this case can be conducted just through the escrow account. An escrow account will also be useful for a company that ordered the production of a product at a new enterprise. "Even if there is a prepayment for a contract that can not be avoided, for example, funds are needed to purchase the components, an escrow account can be concluded for the remaining amount of the contract." At the same time, if the parties initially agreed on a prepayment, and there is no objective need for it, the bank may convince counterparties to reformat the transaction for payment of 100% of the amount through an escrow account, "adds Roman Balashov.

"We are adapting ourselves to the needs and requirements of our clients." In principle, Russian banks have been using various instruments to close the risks of trading operations for a long time, "he notes." But we understand that we need to match the market. "The additional tool in the form of an escrow account - this is only a plus to our product line, now we can meet the needs of the most demanding customer. "

It is worth noting that the state and banks since 2014 have been trying in every way to expand the use of escrow accounts. So, for example, with 2016, the federal law No. 214-FZ "On participation in the shared construction of apartment buildings and other real estate objects" introduced an article 15.5, prescribing features of settlements through the escrow accounts between the shareholder and the developer. Representatives of the Communist Party’s faction in the State Duma in the spring of 2017 introduced a bill into the lower chamber obliging each employer to transfer monthly 1 / 10 from the payroll of employees to a special escrow account, from which salary arrears should be paid later. Funds on escrow accounts are also proposed to separately protect against bankruptcy all three parties to the transaction: the depositor, the beneficiary and the agent bank, by blocking them from falling into the total bankruptcy of the bankrupt company before the payment terms occur.
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