In the legal literature, international factoring is not given much attention. Most of the works of Russian and foreign authors are devoted to the study of internal factoring. At the same time, today in science there is no unified approach to understanding factoring as such. In particular, you can find different points of view regarding the essence, characteristics and elements of this agreement. There was, accordingly, no unified approach in relation to the conceptual apparatus used to designate the legal relations under consideration. In this regard, this article attempts to study the legal nature of the factoring agreement, as well as the specifics of its regulation from the standpoint of the norms of private international law in order to identify possible ways improving the latter.

Moscow: Russian Economic University named after G.V. Plekhanov, 2011.

A task: Currently, there has been an increased interest in the study of the historical aspects associated with the formation of various institutions of law. The least studied are the issues of the development of international law in general and international private law, including. This article provides a historical and legal analysis of the process of legal registration of the system of international relations in the private legal sphere, including with the direct participation of the Russian state.

Model: The study carried out a historical and legal analysis of the process of formation of private international law in the imperial period with the participation of the Russian state, based on primary sources: international legal documents (treaties) concluded by Russia with various states during the specified period of time and acts of domestic legislation regulating the relevant area, as well as scientific works devoted to the study of relevant issues.

Conclusions: A historical and legal analysis was carried out, the main issues that were subject to legal regulation within the framework of private international law of the corresponding period were identified, trends related to the process of formation of private international law were identified, the legal consolidation of the relevant provisions at the level of international treaties concluded by various, mainly European states, and also the correlation between the provisions of international law and acts of domestic Russian legislation.

Research framework / the possibility of subsequent use of the results of scientific work: the study is limited by the time frame and the scope of private international law, which can be expanded in terms of the chronological framework and spheres of interaction.

Social implications: In a systematized form, with links to primary sources, the process of the formation of legal registration of interstate relations in the field of private law in the specified period of time is described, which contributes to the study of the history of international law in general, including the relevant political and legal processes.

Originality / value- the work can be used to study the history of state and law, private international law and a number of other sciences.

The paper aims at analyzing the role of various legislative and policy sources in delineating the conceptual and regulative frameworks for transnational employment relations. This type of employment relations is still perceived as a novelty in Russia and is not actually reflected in the Russian legislation. However while during the last decades the legislature has not provided for a consistent approach to the understanding of this phenomenon, the perception of it is now being formed - more or less successfully - on the international / interregional and corporate levels, as well as in contemporary research and in everyday practice. The paper offers an outline of recent academic studies defining particular groups and categories of transnational employment relations proposed by the Russian scholars, explaining problems that arise in the legal regulation of this phenomenon and suggesting possible ways of their solution. Apart from this the paper summarizes principles for the transnational employment relations regulation provided in interregional and bilateral treaties (mostly of the Commonwealth of Independent States and of the EuroAsEC levels). The author describes commonalities and variations of approaches that can be found in these documents, makes an effort to explain the reasons that have brought them about and gives some assumptions of their possible effect and productive usage at the national and enterprise levels. These speculations are supplemented with an analysis of enterprise level developments in regard to transnational employment relations - both national and multinational - that embrace introduction of new concepts and instruments, bringing to light new aspects of the phenomenon and spreading good practices on sectorial or inter-sectorial levels. Among other issues discussed in the paper there is an assumption that the time has come to give a more serious recognition of the so called “soft law sources” which can now be found on both international / interregional and enterprise levels. While these sources are widely used in practice they still lack official recognition and any particular status in the Russian legal doctrine. This abundant data demonstrates some clear similarities and differences. Therefore it is argued that the field has been developed to the point where particular generalization and systematization can be performed to make the legislative amendments possible in the nearest future. The author provides several examples of such generalizations and amendments and makes an inference of their effect onto the policy and practice of all the stakeholders involved in transnational employment relations or responsible for their regulation in the Russian context.

Gridneva E. A. In the book: Communicative studies of the XXI century: prospects for the development of social and humanitarian knowledge: materials of the VI All-Russian scientific and practical conference, March 19, 2010. N. Novgorod: Nizhny Novgorod branch of the Higher School of Economics, 2010. pp. 26-33 ...

The formation of an industrial society is accompanied by the formation of an objective approach to business aesthetics associated with the commercialization of the aesthetic in a society of mass production and consumption. Approach throughout the twentieth century. is undergoing a change from the "hard" version, presented by the American styling of the 30s, to the "soft" version in the European design. But the imitative nature of commercialized aesthetics remains: the main thing is the dominance of marketing tasks and the form of a thing over its integrity.

Edited by: V. Bychenkov Kaluga: KF RPA Ministry of Justice of Russia, 2010.

The collection contains materials prepared for the Third International Scientific and Practical Conference "Trends in the Development of State, Law and Politics in Russia and the World" (Kaluga, April 30, 2010).

For specialists in the field of law, teachers, graduate students, students of higher educational institutions of a legal profile, for everyone who is interested in the problems of legal science.

The article analyzes the possibility of using appropriate examples containing temporal characteristics, their clarity and persuasiveness in the course of studying the course "Legal Technique". The possibility of demonstrating the optimization of legal techniques with the help of correctly and clearly used temporary properties is considered.

The author of the article believes that Russian society for the first time faced with the Constitution, which would cause as many criticism as the current Constitution of the Russian Federation causes. The most tangible damage caused by the Constitution to the system of legislation is that, contrary to the existing national constitutional tradition, it has ceased to be a form-building and system-forming document for this system. The Constitution is not the Basic Law of the state, and, therefore, the pinnacle of the system of legislation. We are talking about the system-forming and form-forming functions of the Constitution, because legislation (whether broadly or narrowly) is a hierarchical system. Each type of normative acts included in it must occupy its own step, the position of which among others is determined by its legal force.

The article presents an analysis of the legal status of the Control and Accounts Chamber of St. Petersburg in the light of the adoption Federal law"On the general principles of the organization and activities of the control and accounting bodies of the constituent entities of the Russian Federation and municipalities." Particular attention is paid to the legal framework for auditing the effectiveness of public funds, as well as issues of interaction of the Control and Accounts Chamber of St. Petersburg with the control bodies of intracity municipalities.

This article is devoted to the legitimation and peculiarities of the application by courts and executive authorities of ex post and ex ante standards in the field of competition regulation. It considers the ex post and ex ante postulates as legal principles associated with the application of economic (including antitrust) legislation. The distinction between ex post and ex ante principles is made on the basis of two essential criteria concerning the subjects of their application and the standards for evaluating the decisions made. One of the most important goals of the article is to refute the opinion widespread among lawyers and economists that the legislator applies the ex ante principle in the field of economic activity regulation and is not bound by the ex post principle, and the situation with the law enforcement officer looks exactly the opposite.

Edited by: A. M. Ablazhei, N. V. Golovko Novosibirsk: Novosibirsk State University, 2012.

The collection contains reports of the participants of the X Regional Scientific Conference of Young Scientists of Siberia in the Field of Humanities and Social Sciences "Actual problems of humanitarian and social research". The book is intended for specialists in the field of social research, philosophy and theoretical problems of law, as well as all those interested in the problems and prospects of social and humanitarian research. The works were published with the financial support of the Council of Scientific Youth of the NSC SB RAS.

The article is devoted to the analysis of the right to conduct counter-demonstrations, which is one of the manifestations of freedom of assembly. Emphasizing the value of this right as an element of a democratic society, the author recognizes the risk of violent clashes between participants in public events who adhere to opposite ideas. This circumstance dictates the need to establish proportionate restrictions on the right to counter-demonstrations, certain types of which are analyzed in this work.

This article analyzes the usage of legislation as a legal source in the Russian Empire through the phenomenon of the publication of law. The author argues that the absence of separation of executive, legislative and court powers had definite negative effects for lawmaking and enforcement. The legislative politics of Russian emperors could be analyzed using Jürgen Habermas ‘concept of ―representative publicness‖ (representative öffentlichkeit): to a large extent, the tsars considered law as both an assertion of authority and a means of governing. Their actions towards strengthening legality in the state (i.e. the compulsory publication of legislation) were in essence symbolic or theatrical. In fact, since the separation of laws from executive acts did not exist in imperial Russia, the legislation was published (or stayed unpublished) exclusively for state administrators. The conflict in conceptions of legality between state and civil actors in the second half of the nineteenth century was not of a merely political nature. The article demonstrates that there was a public demand for publication of legislation; insufficient accessibility of legal information negatively influenced social and economic development in imperial Russia.

Bely A. V. ECO. 2010. No. 6. S. 97-114.

The article examines the development of the norms of international manageability in the global energy sector, applies an institutional approach to the development of the international legal regime of the Energy Charter. The definition of manageability is associated with the development of international dispute resolution norms, which are widely presented in this document. In the general context of the issue of manageability, the interests of Russia are considered - the protection of investments in the EU and the encouragement of environmental investments.

The work examines the cultural aspects and law enforcement practice in the field of human rights in the Caucasus region. Various interpretations of the concept of human rights in the region, the relationship of human rights issues with the socio-cultural characteristics of the region are discussed. Special attention is paid to the development of the institution of the Commissioner for Human Rights (Ombudsman) and other institutions of state human rights protection in the republics of the North Caucasus and in the countries of the Caucasus. The specificity of the relationship "person - power" in the region is shown. Sociocultural aspects in the field of human rights in the Caucasus are covered in the context of the problem of combating terrorism, and law enforcement practice - in the context of a combination of four legal systems: adat (customs), Sharia, secular law and international law.

ANNOTATION

The paper deals with an international factoring agreement. The purpose of this work is a comprehensive description of the institution of international factoring in private international law. The author can achieve this goal by step-by-step solution of the following tasks: analysis of the features of regulation of the international factoring agreement; definition of the concept and subject of international factoring; comparative analysis of Russian, foreign and international legislation on factoring agreements; study of the process of choosing the law applicable to the international factoring agreement; characteristics of the content of the international factoring agreement; classification of international factoring contracts.

The first chapter examines the issues of legal regulation of an international factoring agreement, describes in detail the concept and subject of an international factoring agreement, as well as its features in foreign legal order. The second chapter examines the rights and obligations of the parties to an international factoring agreement. The third chapter presents the classification of international factoring contracts. Finally, the findings of the study are summarized.

The scientific novelty of the work lies in the identification of the essence and legal nature of the international factoring agreement.

The research results can find application in the practice of business entities, as well as judicial authorities.

INTRODUCTION

International factoring means a complex of financial services provided by a factoring company to a client in exchange for the assignment of monetary claims arising from international contracts for the sale of goods, performance of work, provision of services (i.e., such contracts, the parties of which are the supplier (client of the factoring company) and the buyer (debtor) are residents of different states). In other words, international factoring is a factoring service foreign economic activity, and above all foreign trade... Financial services carried out within the framework of international factoring include financing the current activities of a client (supplier), insurance of his credit risks (protection against insolvency of foreign counterparties), accounting for amounts due, collection of receivables.

Currently, more and more exporters use the services of factoring companies, the volume of international factoring operations is steadily increasing. According to the largest international factoring association Factors Chain International (FCI), the global turnover of international factoring has more than tripled between 2008 and 2012, amounting to EUR 145,996 million. In general, international factoring operations account for about 11% of the total turnover of the world factoring market. In Russia, this figure is about 2%.

In our country, international factoring is not developing as fast as domestic factoring, primarily due to the lack of the necessary qualifications from Russian factoring companies, as well as due to a number of specific problems associated with the legal regulation of the international factoring agreement. To overcome these problems, complex scientific research is needed, carried out on an interdisciplinary basis, that is, including the definition of the economic parameters of the international factoring agreement, as well as the features of its legal regulation. Thus, the relevance of the chosen topic of the final qualification research is obvious.

The object of this work is a set of public relations arising from the conclusion, execution, amendment and termination of an international factoring agreement. The subject of the work is a set of international and Russian legal norms governing this area of ​​legal relations, reference and statistical materials, educational and doctrinal sources covering this problem.

The purpose of this work is a comprehensive description of the institution of international factoring in private international law. Achieving this goal will allow the step-by-step solution of the following tasks:

-analysis of the specifics of regulation of the international factoring agreement;

-definition of the concept and subject of international factoring;

-comparative analysis of Russian, foreign and international legislation on factoring agreements;

-study of the process of choosing the law applicable to the international factoring agreement;

-characteristics of the content of the international factoring agreement;

-classification of international factoring contracts.

The methodological basis of the study is made up of general scientific (analysis, synthesis, induction, deduction, classification, comparison, etc.) and specific scientific (comparative jurisprudence, formal legal analysis, historical and legal, etc.) methods of legal knowledge.

The lack of demand and slow practical development of the factoring system by Russian entrepreneurs, in turn, has led to the lack of study and lack of research on this issue in domestic legal science. It is possible to single out only individual studies devoted to this issue, such specialists as M.E. Burova, L.A. Novoselova, E.A. Sukhanov, M.P. Shulik.

The research objectives determined its structure. The work consists of an introduction, three chapters, each of which is divided into paragraphs, conclusions, bibliography.

1. GENERAL DESCRIPTION OF THE INTERNATIONAL FACTORING AGREEMENT

1.1 Features of the regulation of the international factoring agreement

The rights and obligations of the factor and the client in relation to each other, the terms of their relationship are enshrined in the factoring agreement (factoring contract). Relations related to the conclusion and execution of international factoring contracts are governed by the UNIDROIT Convention on International Factoring, signed in Ottawa on May 28, 1988 and entered into force on May 1, 1995 (hereinafter - the Ottawa Convention). As the Chairman of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation A.S. Komarov notes, “in this Convention it was possible not only to give unified regulation on certain issues, taking into account the experience and practice of various national systems of law and meeting the requirements of modern international economic turnover, but also to propose a solution to some issues that have not yet been resolved at the level of individual national legal systems ”. Despite the fact that on this moment The Convention is valid on the territory of only seven states (France, Germany, Italy, Hungary, Ukraine, Latvia, Nigeria), it is of great importance, since it serves as an "example of reasonable lawmaking", guided by which individual countries can develop their national legislation.

For the purposes of the Ottawa Convention, in accordance with paragraph 2 of Art. 1, a factoring contract means a contract concluded between one party (supplier) and another party (financial agent), according to which :) the supplier must or may assign monetary claims to the financial agent arising from contracts for the sale of goods concluded between the supplier and by its buyers (debtors), with the exception of contracts that relate to goods purchased primarily for personal, family and household use;) the financial agent performs at least two of the following functions:

supplier financing, including loan and prepayment;

accounting (accounting books) for the amounts due;

presentation of monetary claims for payment;

protection against insolvency of debtors;) debtors must be notified of the assignment of the claim.

In paragraph 3 of Art. 1 specifies that the concepts of "goods" and "sale of goods" for the purposes of this Convention also include services and their provision.

The Ottawa Convention contains whole line rules providing ample opportunities for the supplier to assign monetary claims to a financial agent. So, for example, according to Art. 5 of the Ottawa Convention, not only existing requirements, but also future ones can be assigned to a financial agent. In addition, the assigned monetary claims do not have to be specified specifically in the factoring contract. It is sufficient to be able to identify in a certain way the transferred claims at the time of the conclusion of the factoring contract or at the moment when the claims actually arise as related to this contract.

Further, according to Art. 6 of the Ottawa Convention, the assignment of a monetary claim by the supplier to the financial agent will be valid even if there is an agreement between the supplier and the debtor to prohibit it (which, however, does not exclude the supplier's liability to the debtor for such a breach of the contract). The debtor, duly notified of the assignment of the right of claim, is obliged to pay the debt directly to the financial agent, unless he knows about the preemptive right of another person to this payment (Article 8 of the Ottawa Convention). Considering one of the most important principles of cession law, according to which the change of the creditor should in no way worsen or simply change the position of the debtor, the Ottawa Convention provides that the debtor may use in relations with the financial agent all the remedies arising from the contract of sale, which he could take advantage of against the supplier. The debtor may also declare to the financial agent the right to offset in relation to claims against the supplier in whose favor the receivable arose (Article 9 of the Ottawa Convention).

It is important to note that the Ottawa Convention provides for the right of a financial agent to assign the right of claim received by him from a supplier to another financial agent, unless such assignment is prohibited by a factoring contract. At the same time, the rules contained in the Ottawa Convention apply to the subsequent assignment of the right of claim (Articles 11 - 12 of the Ottawa Convention). It is this assignment of receivables that allows the export factor to attract the import factor located in the buyer's country to the implementation of factoring services. With the acquisition from the export factor of the rights of claim against the debtor, the import factor, as a rule, assumes obligations for the management of accounts receivable and insurance of credit risks in relation to the export monetary claims acquired from customers. This two-factor international factoring, as noted above, allows you to optimize the service of foreign economic activity.

The UN Convention on the Assignment of Receivables in International Trade, developed by the United Nations Commission on International Trade Law (UNCITRAL) and adopted in New York on December 12, 2001, but has not yet entered into force (hereinafter - the New York Convention). According to paragraph 2 of Art. 38 of this Convention, it prevails over the Ottawa Convention on International Factoring. In this regard, attention is drawn to certain provisions of the New York Convention, which somewhat differently (in comparison with the Ottawa Convention) regulate some aspects of international factoring.

So, for example, according to Art. 8 of the Ottawa Convention on International Factoring, a debtor who has made a payment to a financial agent is deemed to have duly performed the obligation to pay and is released from liability if and only if he does not know about the preemptive right of another person to this payment. "Such a provision, in fact, violates the principle of non-deterioration of the position of the debtor when making the assignment, since the debtor is thus obliged to determine which of the persons claiming their rights to this receivable is the rightful recipient." This shortcoming of the Ottawa Convention was taken into account when developing the Convention on the Assignment of Receivables, which does not provide for any negative legal implications simple awareness of the debtor about the existence of a dispute over the right to payment.

According to Art. 17 of the New York Convention, if the debtor receives notice of more than one assignment of the same receivable by the same assignor (supplier), the debtor is released from liability by payment in accordance with the first notice received; if the debtor receives notice of one or more subsequent assignments, the debtor is released from liability by payment in accordance with the notice of the last of such subsequent assignments.

It is also important to pay attention to Art. 21 of the New York Convention on the Assignment of Receivables, which stipulates that the failure of the assignor (supplier) to fulfill its obligations arising from the initial agreement between the assignor and the debtor does not give the debtor the right to demand from the assignee (financial agent) the return of any amounts paid to him the debtor. It should be noted that a similar rule is contained in the Ottawa Convention. However, the last of this general rule allows two exceptions: the debtor has the right to demand the return of the amounts paid from the assignee (financial agent) when the financial agent has not fulfilled its obligation to the supplier to make a payment related to the assignment of the claim, or made such a payment knowing about non-fulfillment or improper fulfillment by the supplier of its obligations to the debtor.

These exceptions essentially place the debtor in a better position than would have been in the absence of an assignment. If the claim had not been transferred, then the risk of the original creditor's insolvency would lie entirely with the debtor. Consistently pursuing the principle of immutability legal status of the debtor when making an assignment, the New York Convention, unlike the Ottawa Convention, does not provide for any such exceptions from the analyzed rule. If the debtor makes a payment to the assignee and the assignor (supplier) does not fulfill the original contract, then the debtor cannot bring the claim to the assignee (financial agent).

Despite the fact that the New York Convention has not yet entered into force, its fundamental provisions cannot but be taken into account when interpreting the norms of national legislation. "The results of the analytical work done in the preparation of this Convention provide extensive material for the creation and improvement of legal norms that take into account the modern needs of the market and the achievements of world civilistic thought."

Describing the foundations of normative regulation of international factoring, one cannot fail to mention the unified rules developed by international factoring associations, within the framework of which the activities of their members are carried out. The most significant of these acts are the General Rules for International Factoring (GRIF), developed in 2002 and constantly edited by the largest international factoring associations International Factors Group (IFG) and Factors Chain International (FCI). regulate the relationship between the export factor and the import factor in the framework of the two-factor model of international factoring. GRIF defines a factoring contract, credit risk, regulates in detail the rights and obligations of the export factor and import factor, transfer of claims, collection of receivables, transfer of funds, exchange of information and reports, provision of guarantees, resolution of disputes, liability for violation of these rules ...

Since the entry into force of GRIF in July 2002, more than 90% of international factoring transactions have been carried out in accordance with these Rules.

Further, it is important to emphasize that, despite the widespread use of factoring in general and international factoring in particular in business turnover, there is no special legal regulation of the factoring agreement in most developed legal systems at the level of national legislation. To regulate the relations of the parties in the framework of factoring operations, as a rule, general rules of law of obligations are used, primarily on cession (in the countries of European continental law).

For example, L.Yu. Vasilevskaya emphasizes that “in the German Civil Code and the German Commercial Code there is no legal definition of factoring and factoring operations, and in judicial practice, when the relevant conflict situations usually refer to general provisions on obligations and on the rules on the basic rights and obligations of the seller and the buyer under the contract of sale of rights of claim. "

As for the legal regulation of factoring in Russia, to date, Russian legislation does not contain a definition of the concept of "factoring". At the same time, part two of the Civil Code of the Russian Federation enshrines a contractual financing structure that is new for the Russian legal order against the assignment of a monetary claim (Chapter 43 of the Civil Code of the Russian Federation), which is based on factoring relations. Moreover, the financing agreement against the assignment of a monetary claim is defined in the Civil Code of the Russian Federation in such a way that “it covers a fairly wide range of relations associated with this type of financial transactions in the entrepreneurial sphere,” which allows “business practice not to be constrained by strict legal frameworks and to develop sufficiently flexible looking back at the fact that it will be without a proper legal basis. "

In this regard, in the domestic legal literature, it is customary to use the terms "factoring" and "financing against the assignment of a monetary claim" (with certain reservations) as equivalent or interchangeable.

Under a financing agreement against the assignment of a monetary claim in accordance with Art. 824 of the Civil Code of the Russian Federation is understood as such an agreement under which one party (financial agent) transfers or undertakes to transfer funds to the other party (client) against the client's (creditor's) monetary claim against a third party (debtor) arising from the client's provision of goods, his performance of work or the provision of services to a third party, and the client assigns or undertakes to assign this monetary claim to the financial agent. The obligations of the financial agent may include maintaining accounting records for the client, as well as providing the client with other financial services related to the monetary claims that are the subject of the assignment.

The legal regulation of factoring in Russia is largely based on the provisions of the Ottawa Convention. "At the same time, when developing the relevant norms of the Civil Code of the Russian Federation, the modern experience of factoring activities in foreign countries, as well as the peculiarities of the Russian legal field and law enforcement practice, were taken into account."

The UN Convention on the Assignment of Receivables in International Trade, developed by the UN Commission on International Trade Law (UNCITRAL) and adopted in 2001, but has not yet entered into force, can have a serious impact on the further development of international factoring.

The entry into force of the Convention requires its ratification or accession to it by five states. Currently, the Convention has been signed by only three countries (Luxembourg, Madagascar and the USA).

According to paragraph 1 of Art. 38 of the Convention on the Assignment of Receivables in International Trade, said Convention shall not prevail over any international agreement that has already been concluded or may be concluded and which directly regulates transactions that would otherwise be governed by the said Convention. However, in the same Art. 38 (clause 2) contains a rule establishing the priority of the UN Convention on the Assignment of Receivables in International Trade over the Unidroit Convention on International Factoring (Ottawa Convention).

In accordance with the aforementioned rule, the Convention on the Assignment of Receivables in International Trade prevails over the Convention on International Factoring. And only to the extent that the Convention on the Assignment of Receivables in International Trade does not apply to the rights and obligations of the debtor, it does not preclude the application of the Convention on International Factoring in relation to the rights and obligations of the debtor.

In this regard, attention is drawn to some provisions of the Convention on the assignment of receivables in international trade, which can significantly change (after the entry into force of the Convention) the legal regulation of international factoring.

In particular, by virtue of Art. 8 of the aforementioned Convention, the subject of the assignment is not individual rights of claim, but receivables, including its individual articles, parts or indivisible interests in receivables or future receivables, provided that the corresponding receivables are determined individually or in another way that allows it identify as a receivable with which the assignment is associated at the time of the assignment or (in the case when a future receivable is assigned) at the time of the initial contract. Unless otherwise agreed, the assignment of one or more parts of future receivables is effective without the need for an additional act of transfer to assign each receivable.

According to Art. 9 of the Convention, the assignment of receivables is effective regardless of any agreement between the original or any subsequent assignor and the debtor or any subsequent assignee that in any way restricts the assignor's right to assign its receivable. This rule does not exempt the assignor from liability to the counterparty under an agreement that prohibits the assignment of the corresponding receivable, however, the specified counterparty cannot seek termination of the agreement or transaction on assignment of receivables solely on the basis of a violation of the prohibition on assignment. And a person who is not a party to the relevant agreement (for example, the assignee) cannot be held liable only on the basis that he knew about the agreement of the parties to prohibit the assignment of receivables. Similarly, the Convention regulates the transfer of rights securing payments on the assigned receivable, which are transferred to the assignee without an additional act of transfer. And only in the case when, by virtue of law, the relevant security right can be transferred only on the basis of a special act of transfer, is the assignor obliged to transfer the specified security right and any proceeds to the assignee (Article 10 of the Convention).

The Convention contains a very interesting rule governing the actions of the assignor and the assignee to notify the debtor of the assignment of the receivable.

According to paragraph 1 of Art. 13 of the Convention, unless the assignor and the assignee have agreed otherwise, they or each of them may send the debtor a notice of the assignment of the receivable and instructions on the procedure for its repayment (payment instructions), however, after the notification is sent, such instructions can only be sent to the debtor by the assignee.

This convention provision (given its priority over the rules contained in the Convention on International Factoring) opens up opportunities for the use of so-called closed (confidential) factoring in international trade, the use of which is excluded by the Convention on International Factoring, which establishes the obligation of the debtor to pay the financial agent only subject to written notification of the assignment of the claim (Article 8 of the Convention).

And one more provision of the Convention on the assignment of receivables in international trade can have a significant impact on the development of international factoring. The named Convention confirms the debtor's right in response to the assignee's request to refer to objections or to his right to set off, which he could use against the assignor if the assignment of the claim had not been made (paragraph 1 of Article 18 of the Convention). At the same time, the Convention (Art. 19) contains a rule that the debtor may agree in written form with the assignor not to invoke these objections or the right to set-off in relation to the assignee.

Such an arrangement deprives the debtor of the right to invoke in relation to the assignee the corresponding objections and the right to set-off, which he had against the assignor.

As you know, the Russian Federation is not a party to either the Convention on International Factoring or the Convention on the Assignment of Receivables in International Trade (the latter, moreover, has not yet entered into force), however, “the fundamental provisions of these conventions cannot but be taken into account when interpreting the norms of Russian legislation, regulating relations related to the assignment of the right of claim ”, as well as arising from the financing agreement against the assignment of a monetary claim.

1.2 Concept and subject of international factoring

As noted, relations related to the conclusion and execution of international factoring contracts, including the assignment of monetary claims within the framework of obligations arising from them, are governed by the UNIDROIT Convention on International Factoring. “Despite a very small number of states - its direct participants (ratified the Convention), the named Convention has a serious impact on the whole legal regulation of factoring, in particular, it served as the basis for the development of rules governing a financing agreement against the assignment of a monetary claim, included in the Civil Code of the Russian Federation ", - points out P. A. Shalashnikova.

The Convention defines a factoring contract as a contract concluded between one party, called the supplier, and the other party (financial agent), according to which the supplier must assign to the financial agent monetary claims arising from contracts (agreements) for the sale of goods concluded between the supplier and buyers of goods (by debtors), with the exception of contracts for the sale of goods purchased by buyers primarily for personal, family and home use. The financial agent assumes at least two of the following responsibilities:

-supplier financing, including loan and prepayment;

-accounting (accounting books) for the amounts due;

-presentation of monetary claims for payment;

-protection against insolvency of debtors (paragraph 2 of article 1 of the Convention).

Under a factoring contract, a financial agent may be assigned monetary claims arising not only from contracts for the sale (supply) of goods, but also from contracts for the provision of paid services, as evidenced by the provision that the concepts of “goods” and “sale of goods” used in the Convention »Also cover services and their provision (paragraph 3 of Article 1 of the Convention). Therefore, the term "supplier", denoting one of the parties to a factoring contract, includes not only a supplier under a supply contract or a seller under a sales contract for goods, but also a performer (service provider) under a contract for the provision of paid services.

The scope of the Convention on International Factoring is limited to cases when monetary claims assigned under a factoring contract arise from a contract for the sale (supply) of goods (provision of paid services) concluded between a supplier and a debtor carrying out entrepreneurial activities on the territory of various states, which (as well as the state where the financial agent operates) are parties to this Convention, or the specified agreement and factoring contract are governed by the law of the state party to the Convention.

At the same time, the parties to the factoring contract, as well as the contract for the sale (supply) of goods (provision of paid services), formally falling under the Convention on International Factoring, may by their agreement exclude its application. At the same time, the parties have the right to exclude the application of the entire Convention in its entirety, and not its separate part (Article 3).

The International Factoring Convention contains a number of rules that provide ample opportunities for a supplier to assign monetary claims to a financial agent. Thus, the Convention proceeds from the premise that the conditions of a factoring contract providing for the transfer of existing or future monetary claims to a financial agent even in cases where these claims were not properly specified by the parties and cannot be recognized as invalid for this reason. In a situation where the factoring contract stipulates that future monetary claims are transferred by the supplier to the financial agent as they arise, the conclusion of any additional agreement on their assignment is not required (Article 5 of the Convention).

A factoring contract may provide for the assignment by the supplier of all rights of claim belonging to him arising from the relevant contract, while retaining the supplier's rights to the goods supplied (Article 7 of the Convention).

The debtor, duly notified of the transfer of monetary claims by the supplier under the factoring contract to the financial agent, is obliged to pay the debt directly to the financial agent, unless he is aware of the preemptive right to this payment belonging to another person.

At the same time, if the financial agent presents the debtor with a demand for the payment of a debt that has arisen to the supplier and arises from the contract of sale (supply) of goods (provision of paid services), the debtor has the right to apply to the financial agent all the remedies provided for by this contract, which he could use it if the relevant claim was made to him by the supplier. The debtor also has the right to declare to the financial agent the right to set off the claims against the supplier in favor of which the receivable arose (Articles 8 and 9 of the Convention).

By general rule non-performance or improper performance, including delay in performance, by the supplier of its obligations to the debtor arising from the sale and purchase agreement does not entitle the debtor to demand the return of the amounts paid by them to the financial agent (such claims may be made by the debtor to the supplier).

And yet, in two cases (as an exception), the debtor, who has an appropriate requirement in relation to the supplier who has violated its obligations, has the right to demand from the financial agent the return of the amount paid to him, namely when the financial agent:

-has not fulfilled its obligation to the supplier to make the payment related to the assignment of the claim;

-made such a payment knowing about the default or improper performance by the supplier of its obligations to the debtor.

It is important to note that the International Factoring Convention provides for the possibility of assignment by a financial agent of a claim received from a supplier to another financial agent, unless such assignment of a claim is not allowed under the terms of a factoring contract. At the same time, the rules contained in the Convention apply to the subsequent assignment of the right of claim (Articles 11 - 12).

A.S. Komarov, assessing the importance of the Convention on International Factoring and the fact of its adoption at an international conference in Ottawa in May 1988, points out that “in this Convention it was possible not only to give unified regulation on certain issues, taking into account the experience and practice of various national systems of law and meeting the requirements of modern international economic turnover, but also to offer a solution to some issues that have not yet been resolved at the level of individual national legal systems. "

True, not all Russian jurists share the opinion of A.S. Komarov on the importance of the Convention on International Factoring. For example, L.G. Efimova notes that “this Convention has limited application. Firstly, it applies only to a part of financing transactions against assignment of claims covered by the concept of factoring. This Convention does not apply to the sale of consumer debt, as well as to commercial debt obligations that are not monetary and do not arise from contracts for the sale of goods (Art. 1). Secondly, it has been ratified by a small number of states and, therefore, is applied on a small territory (the Russian Federation did not join it) ”.

L.A. Novoselova emphasizes that the Convention on International Factoring “does not cover a number of transactions usually defined as factoring (for example, closed factoring - when the debtor is not notified of the assignment, financing is made without the provision of additional services listed in the Convention, or with the provision of only one of them).

Obviously, the 1988 Ottawa Convention did not set the task to cover all types of factoring transactions, and therefore the definition given in it cannot be considered as comprehensive, in general, defining the nature of factoring contracts. "

HER. Shevchenko explains the low spread of the Convention on International Factoring by the existing differences between the Anglo-Saxon and continental legal systems, however, he notes, despite the fact that the Convention on International Factoring “has a relatively small area of ​​effect, nevertheless this international act is of great importance, since it serves“ an example of reasonable lawmaking ", guided by which individual countries can develop their domestic legislation." Moreover, according to E.E. Shevchenko, “taking into account the specifics of factoring in international trade, the definition of internal factoring can be derived from the provisions of the Convention”.

If we talk about the place of factoring in international trade, it should be noted that factoring contracts do not cover all transactions related to financing for the service of monetary claims. In particular, such operations as forfeiting, refinancing (second financing), securitization, project financing are usually called as separate transactions for assignment of receivables that do not fall under the rules on factoring contracts.

Forfaiting is understood as a financial transaction, the essence of which is the purchase (sale) of documentary receivables, expressed, as a rule, in negotiable documents (bills of exchange and promissory notes, letters of credit, etc.) and accompanied by a discounting process. In cases where non-documentary receivables are bought (sold), the latter is usually supported by a bank guarantee. The legal literature often highlights the similarities between factoring and forfeiting.

For example, according to L.G. Efimova, forfeiting is “a financial transaction similar to factoring”. L.A. is more cautious on this issue. Novoselova: “These transactions are by their nature similar to factoring, but in the case when it comes to the transfer of documentary debt, the relationship, as a rule, is governed by special rules(in particular, by the norms of bill of exchange law) ".

The term "refinancing" ("secondary financing") usually refers to a transaction between the first and subsequent assignee (for example, between banks), with the purpose (or providing for the possibility) of further assignment of the right of claim.

The term “securitization” covers a wide range of transactions involving the consolidation of assets (including non-market ones) by the creditor into a mass of accounts receivable, which is transferred by a specialized financial institution into securities. Such transactions "are made between financial institutions with the aim of improving the state of accounts, accumulating capital by extracting higher returns from securities and reducing the financial costs of servicing debt."

Project financing refers to transactions related to the provision of funds to the project organizer (performer, contractor) on the basis of a loan with the condition of repayment of borrowed funds from future income from the project to the financing party, which also assigns the rights of claim to future counterparties of the project organizer (for example, buyers products). The peculiarity of such an assignment of a right of claim is that “it is a bulk assignment of future receivables, which is usually formalized as a provision of security and is based on the perceived ability to recover borrowed funds at the expense of the income received during the implementation of the project ”.

The widespread use in commercial circulation of the above and other forms of financing against the assignment of receivables allowed L.A. Novoselova to conclude that “in international trade practice, factoring is considered as one of the varieties of financing transactions against the assignment of a monetary claim. Factoring covers a wide range of transactions related to the assignment of receivables not formalized in negotiable documents for financing or some other purposes. Uniform criteria for distinguishing these operations from the range of other transactions related to the use in commercial activities accounts receivable for the purpose of purchase and sale or security, have not yet been developed. "

1.3 Comparative analysis of Russian, foreign and international legislation on factoring agreements

Historians mention the existence of the sale of debts in Babylon 5,000 years ago. Although as far as Russia is concerned, such a distant historical excursion is perhaps unnecessary. On the territory of the western provinces of the Russian Empire, as early as the century before last, factoring operations of local Jewish factors were widespread, whose clients were both peasants and landowners who sold their crops in this way, in particular.

However, for some reason it is generally accepted that the modern term “factoring” appeared in the middle of the 19th century. in the USA, that is, even before modern means of transport and communications were rapidly developed. Under such circumstances, an intermediary (factor) was involved in the sale of goods at a point significantly remote from the manufacturer or trader (very often they were European companies altogether). He sold goods on consignment terms, sometimes with del credere.

These initial factors provided six types of services for the seller (principal): 1) marketing; 2) storage; 3) sales; 4) business management; 5) collection from buyers of the selling price for the goods sold; 6) protection of the principal from “bad debts”.

That is, for the factor, it was an ordinary commercial activity. But due to the progressive development of transport at the end of the XIX century. the need for consignment services has disappeared, since it has become possible with less cost to send goods directly from the manufacturer to the buyer. The first place was taken by the services of the factor in guaranteeing the receipt of proceeds and financing the principal. The latter entered into a contractual relationship directly with the buyers, so there was a need to assign the arising receivables to a factor who received all the rights to it and was obliged to collect the proceeds for the seller. The factor was no longer obliged to look for a buyer, and its main function was not commercial, but financial. But as a merchant with the best knowledge of the local market, the factor received the right to approve or reject the rights of claims assigned to buyers by the principal. This is how a new version of factoring appeared in the USA, coinciding with the modern one not only in name, but also in essence.

In Europe, factoring in the current sense appeared around the 50s of the XX century, but not as a commercial, but initially as a banking operation ("discounting of invoices"): European factoring immediately began to be seen as a source of financing for sellers, and not as a distribution service , maintaining accounts, guaranteeing payments or collecting receivables.

Gradually, both of these types of factoring (American and European) began to intertwine: in the same USA in the 60s of the last century, there was an outstripping growth in factoring operations of the European type (this process especially intensified after the entry into force of the Uniform Commercial Code (ETC) of the United States). One of the main reasons was the internationalization of international trade, in particular, the attraction by foreign banks of their American correspondents to participate in financing imports to the United States.

From these two sources the modern concept of “factoring” was formed, which explains the variety of its current forms. In the legislation of Russia, it is reduced only to "financing against the assignment of a monetary claim", referred to the number of operations that banks and other credit organizations have the right to carry out, and if a license is available, also other commercial organizations (Article 825 of the Civil Code of the Russian Federation). Moreover, the source of funding (own funds or borrowed funds) does not matter.

In other states, there are completely different approaches to this issue.

Thus, in Belarus, “financing against the assignment of a monetary claim (factoring)” is attributed to the sphere of absolute banking monopoly (part 1 of article 14 of the Banking Code of the Republic of Belarus (hereinafter - BC)), and often court practice goes even further. So, in the opinion of the Supreme Economic Court of the Republic of Belarus, in the event of an agreement on the assignment of a claim between business entities of the non-banking sector, the receipt of remuneration by a new creditor can be regarded as a violation of such a monopoly as a transaction that does not comply with the law (Review of judicial practice in the consideration of disputes arising in connection with the assignment of the claim (cession) and the transfer of the debt, approved by the Resolution of the Presidium of the Supreme Economic Council of the Republic of Belarus No. 7 dated April 21, 2001).

EU legislation classifies "factoring, with or without recourse" as a form of loans and, therefore, includes it in the list of banking operations subject to mutual recognition in other states, contained in the annex to the Second EEC Banking Directive of December 15, 1989. No. 89/646 / EEC. This, however, does not preclude Member States from setting their own licensing criteria.

Therefore, the legislation of Germany (Art. 1 (3) of the Law "On Credit Business") allows that the activity of acquiring money claims for payment can be carried out not only by credit organizations that have the word "bank" in their name, but also by the so-called financial institutions who are entitled to carry out a narrower range of banking operations. At the same time, the legislation of some other countries, for example Estonia (Art. 5 of the Law of December 15, 1994 "On Credit Institutions"), Slovakia (Art. 1 of the Law "On Banks"), does not include factoring in the number of licensed banking operations, from which it can be concluded that its implementation is included in the total legal capacity of legal entities.

Legislative provisions specifically regulating the procedure for conducting factoring operations exist in a few countries.

First of all, this is Russia (Articles 824 - 833 of the Civil Code of the Russian Federation) and those CIS states that have adopted its Civil Code. For example, Belarus, where the factoring agreement is regulated by the BC (Articles 153 - 163), not the Civil Code, and has a number of important features, but it is still very close to the Russian model.

Among other states, the United States can be noted, where there are no special legislative acts devoted to factoring, but factoring with the right of recourse falls under the detailed regulation of Sec. 9 "Securing transactions" ETK.

You can cite the American definition of factoring: it is a continuing agreement between a factor and a seller selling goods on an open account basis, according to which the factor provides the following services in relation to arising receivables: 1) buys all proceeds with immediate settlement; 2) keeps accounting books and performs other accounting functions related to such proceeds; 3) collects accounts receivable; 4) assumes all losses that may arise as a result of the buyer's insolvency. Please note that services are in accordance with this definition turn out not in relation to the seller, but in relation to accounts receivable (i.e., actually to himself). It is very important nuance in terms of taxation.

In other countries, the regulatory material is even scarcer. Usually these are general provisions of civil codes and other acts regulating the institution of property law, purchase and sale agreements, assignment of claims (cession), enforcement of obligations, circulation of securities and documents equivalent to them. The first place in these states as a source of legal regulation is the contractual freedom of the parties. For example, in England, factoring is understood as “the purchase of debts (excluding those arising from the purchase by the debtor of goods and services for personal or household use, as well as long-term debt or debt repaid in installments) for the purpose of providing financing or relieving the seller from administrative functions, or from bad debts, or for two or more of these purposes. "

In Germany, factoring is characterized by the implementation of a factor of three main functions: 1) financing; 2) management of accounts receivable (accounting, presentation of documents for collection, etc.); 3) del credere. However, all these functions in the aggregate are inherent only in the standard variant of factoring, reflected, in particular, in the proforma of the model agreement developed by the German Factoring Union. Separate types factoring may exclude some of these functions.

As you can see, the functions of the factor are understood abroad somewhat more broadly, and financing is not the only one of them. Moreover, the purchase of debt can be carried out not so much for the purpose of financing, but for the purpose of protecting the seller from non-payment.

This conclusion is even more confirmed if we turn to the international legal acts regulating the conduct of factoring operations. So, the Ottawa UNIDROIT Convention on International Factoring of 1988 defines (Article 1) a factoring agreement as follows. As already mentioned, in order for an operation to be governed by this Convention, four conditions must be present simultaneously:

but) the supplier transfers or undertakes to transfer in the future the rights of claim arising from contracts of sale or paid provision of services;

b) the above transaction is of a commercial, not consumer nature;

in) debtors (i.e. buyers) are notified of the assignment of rights to a factor;

G) the factor performs at least two of the following four functions: supplier financing, including loans and advance payments; accounting for suppliers; collection of debts; protection against non-payment by debtors.

At first glance, the concept of a factoring agreement in the 1988 UNIDROIT Ottawa Convention is formulated very narrowly, excluding, in particular, hidden factoring, as well as the so-called discounting of invoices. But the minimum combinations of the duties of a factor in accordance with the fourth condition raise doubts about this.

In particular, it makes it possible to classify as factoring an operation that does not provide for either financing or protection of the seller from “bad debts”.

The second UN international convention on the assignment of receivables in international trade, developed by UNCITRAL and adopted in 2001, covers an even wider range of transactions, one of which is the assignment.

In fact, factoring is only one of the possible options for assigning a claim. Among others, UNCITRAL materials mention forfeiting, securitization, project financing, refinancing, etc.

However, it is important to note that neither funding nor notification of the debtor is a prerequisite for such transactions.

As for the Russian model of factoring (more precisely, its only kind - “financing against the assignment of a monetary claim”), it is structured rather narrowly: the payment of a sum of money to the creditor (ie financing) is the essence of the factor's obligation.

The guarantee function of a factor in the absence of the right of recourse is also assumed, but only in addition to financing.

Any other functions of the factor are not regulated in Russian legislation, but only mentioned (clause 2 of article 824 of the Civil Code of the Russian Federation speaks about accounting, as well as the provision of other financial services).

Although you can immediately notice that some of the functions of a factor that exist abroad, for example, accounting, can be objectively hardly correlated with domestic realities.

Due to the existing system of tax and financial control it is very difficult to imagine, for example, that primary accounting documents will be permanently stored not by the supplier organization itself, but by the factor.

Sometimes it is this that becomes an obstacle to the peaceful resolution of a dispute.

In addition, the factor, the so-called import factoring (when the factor acts in the interest of the debtor, providing him with a deferral, making an immediate payment in favor of the non-resident creditor), cannot be considered financing against the assignment of a monetary claim in Russian law if a contractual relationship arises between a bank factor and resident importer.

To explain the legal nature of factoring in different countries, different traditional or nationally based constructions are used.

So, in Germany, in the literature and judicial practice, factoring is considered as a contract of purchase and sale of the client's right of claim. In support of this position, references are made to 437 of the German Civil Code (GSU). However, this concept has two options. The first considers only non-recourse factoring as a type of sales contract, while recourse factoring is considered a credit operation. The second extends this legal structure to factoring with the right of recourse, which is considered an agreement additional to the purchase and sale agreement.

In the United States, factoring also qualifies as the purchase of a customer receivable factor. The legal principles related to factoring are embodied in sect. 9 US ETK concerning a security interest. The definition of "security interest" in Art. 1-201 (37) ETC covers, among other things, the buyer's accounts, which are subordinated to Sec. 9. According to the provisions of this section to conclude a factoring agreement, it is necessary: ​​a) the signing of a written "security contract" (ie, a factoring agreement); b) providing the client with the agreed value of the assigned proceeds; c) preparation of a proper financial statement (i.e. registration) for the factor to enter into the rights of the creditor on the assigned claim.

However, the US ETK has Art. 9-504 (2), very similar in content to Art. 831 of the Civil Code of the Russian Federation. According to it, when levying collection on a receivable, the creditor (i.e. the factor) is obliged to return the surplus of the proceeds, and the debtor (i.e. the seller) is responsible for the arrears. But if the main transaction was the sale of payments due, then the debtor has the right to surplus and is responsible for arrears, if only this is provided for by the contract. All this allows us to conclude that in the USA, as well as in Germany, there are two options for factoring operations.

There is one more norm in the US ETK (Art. 9-318 (4)), depriving legal force clauses in the agreement between the debtor and the creditor (i.e. the seller and the buyer), which prohibit the assignment of the debtor's right of claim, very reminiscent of Art. 828 of the Civil Code of the Russian Federation. Although this norm has got into Russian legislation, most likely, not directly from the American, but through Art. 6 of the 1988 UNIDROIT Ottawa Convention.

In the vast majority of cases, factoring is also considered as a purchase and sale requirement in England. But at the same time, the principles of assignment are applied to the relationship of the factor and the supplier with the payer.

If a legal assignment is applied, it is obligatory to notify the debtor of the completed assignment. However, this requirement does not apply to another type of assignment - equitable assignment, which, along with other constructions, is used in English law to justify closed factoring.

But it has one significant drawback: the assignee (i.e. the subsequent creditor, factor) gets a weaker position, since subsequent legal assignment takes precedence over equitable assignment. At the same time, closed factoring based on equitable assignment always allows the right of recourse of the factor to the client.

There is another nuance between the two types of assignment in English law: the factor in legal assignment has the right to bring a claim to the buyer in case of non-payment, whereas in the case of equitable assignment, he has the right to do this only together with the seller.

True, sometimes (we are talking primarily about discounting invoices without additional services or guarantees), English specialists qualify factoring as a loan secured by receivables.

Other, more unusual, factoring options can also be used, for example, when the factor directly becomes a party to the contract between the seller and the buyer (sale, purchase, contract, etc.), bearing the corresponding obligations on it to the buyer.

In English practice, such operations are clothed in the legal form of a tripartite agreement on innovation. Or the factor, having no recourse to the seller as security, becomes the title owner of the supplied goods.

The advantage of formulating a factoring agreement in England as a sale-and-purchase agreement is that there is no need to register collateral, observe the procedure for levying a claim on it in case of non-payment, and withhold tax from the amount of payment.

The advantages of a secured loan are bypassing the prohibition of assignment clause in the agreement between the seller and the buyer, and in addition, stamp duty is not paid.

It should be noted that the ability to endorse a copy of an invoice is a feature of Belgian law. In other countries, the mark on the invoice about the assignment of the right of claim does not have the nature of a transaction, but rather serves the purposes of accounting and possible evidence. An invoice (invoice) in most countries is not considered either as a document of title or as a security containing an unconditional monetary claim. Buyer's counterclaims can significantly reduce the invoiced claim amount.

In France, the concept of subrogation is usually applied to factoring, which is a form of entering into an obligation by a third party, which, unlike an assignment, (a) arises directly from the law and (b) provides for the transfer of the claim only in the amount paid to the creditor. Immediately, we note that for the realities of Russian legislation, when explaining the legal nature of factoring, subrogation can hardly be used: the Civil Code of the Russian Federation provides for only one case of using subrogation - the transition to the insurer of the insurer's rights to compensation for damage (Article 965).

But in France, there is also a specific form of factoring associated with the use of the so-called Bordero Daili, regulated by Law No. 81-1 of 1981. In practice, this is an ordinary register of accounts that have been given a bill of exchange form standard set the rights and obligations of the parties for the endorsement. There is also a form of factoring in French practice with the due date of payment, when the right of claim is not assigned to a factor, but only documents are transferred for collection to collect the amount of debt from the buyer.

In Poland, they sometimes try to explain factoring through the legal constructions of delegation (przekaz) and cession, and the right of recourse - del credere. However, it is noted that the key point for determining the legal nature of factoring is the presence or absence of a guarantee function. Therefore, the dominant point of view is that factoring is still an unnamed type of contract, the content of which the parties have the right to determine independently.

In Israel, factoring is also not regulated by special legislation, and in one of the solutions The Supreme Court when considering the agreement, which was presented by the creditor as factoring, it was indicated that the title of the agreement does not oblige the court to draw categorical conclusions. Factoring in Israel as well as in other countries common law, is considered as an assignment of the right of claim. The provisions of the 1961 Assignment of Obligations Act apply to it, in accordance with Art. 2 which the debtor may apply against the assignee all the remedies that may be applied against the assignor.

In Denmark, factoring refers to the various types of transactions between a supplier and a factor, during which the factor buys or accepts as collateral the customer's claims expressed in the invoice.

In Italy, factoring is generally considered not a financial, but an insurance operation, since here the factor usually does not advance the receipt of proceeds by the supplier, but makes payment only upon the due date of payment by the debtor. That is, the factor only assumes the risk of non-payment on the part of the payer (factoring with the due date of payment). Factoring relations are regulated in Italy by scattered regulations... One of them is Law No. 52 of February 21, 1991, which applies to the transactions of the parties who are entrepreneurs, and the factor must meet the capital adequacy requirements (at least 10 times the size required for joint stock companies). If the factor and the supplier do not meet these requirements, then their relationship is regulated by the Civil Code.

In Finland, the Contracts Act applies to supplier-factor relations, and the Promissory Note Act and the principles of pledge of claims apply to relations with third parties. According to them, the assignment of a claim to a factor: 1) becomes valid when the debtor learns about it; 2) does not provide the assignee with a better legal title than the assignor. At the moment when the debtor receives the invoices and information about the assignment, he is obliged to make payment to the factor who is considered the pledgee of the proceeds in order to secure the return of the advance payment made by him to the supplier (Supreme Court decision, 1982 II 77). The peculiarity of factoring in Finland is that the supplier is liable to the factor for the insolvency of the debtor.

With regard to international conventions, when the 2001 UN Convention was developed, its effect was supposed to extend to the assignment of a claim through sale and purchase, as security or in any other way, including subrogation, novation or pledge of receivables.

Thus, the legal forms of the factoring agreement used in various states (apart from those that use too peculiar legal technique due to the specifics of national legislation) can be reduced to two types of operations that are basic in their economic essence. In the Civil Code of the Russian Federation, the difference between them is most clearly traced in Art. 831, which determines the fate of the amounts received by the factor:

)factoring by the type of credit operation secured by receivables. The loan is the amount of financing provided by the factor, and the assignment of the claim against the buyer is considered as a way of securing its return. Naturally, this is always recourse factoring, i.e. the seller bears the credit risk;

)factoring by the type of intermediary operation (purchase and sale of receivables), when the factor buys the right to claim against the buyer (analogy with a bill of exchange). Unlike the previous type of factoring, it is rather not an active, but an intermediary banking operation. The presence or absence of the right of recourse for a factor is determined by the terms of the contract.

Thus, existing in Russia the legislative framework distinguishes between two types of factoring operations that are not homogeneous in their economic content (financing against the assignment of a monetary claim). This difference is expressed primarily in the degree of risk that the factor bears (the presence or absence of the right of recourse).

Also, the size of the proceeds from the debtor can be determined in different ways.

1.4 Features of the choice of law applicable to the international factoring agreement

One of the traditional provisions of the Russian doctrine of private international law is the thesis that private legal relations acquire the quality of the so-called international (transboundary) character when a “foreign element” appears in their composition.

It is also an integral part of a foreign economic transaction (including factoring), and its significance is great due to the fact that it is he who gives the studied relations "a new essential quality, giving rise to the need for special methods and means of legal regulation."

The modern doctrine of private international law does not contain a definition of a foreign element as an independent phenomenon.

However, traditionally, the existence of three general groups of a foreign element is indicated, which are identified by the criterion of the belonging of the studied foreign element to a certain structural link of the legal relationship.

In this regard, it seems possible to single out the foreign element related to the object of the legal relationship, to the subjects of the legal relationship and directly to significant legal facts, as a result of which private factoring relationships arise, change or terminate.

The parties to the agreement can choose the law applicable to the agreement (Article 1210 of the Civil Code of the Russian Federation).

In clauses 1 - 4 of Art. 1210 of the Civil Code of the Russian Federation, the term “law” was used, not “legislation” or “law of the country”. "This allows the parties to choose as a substantive statute not only national legislation, but also a system of law that has a supranational character, for example, the law of the European Union."

Often, the parties do not refer to the legal system of any political entity, but to lex mercatoria - transnational customary trade law, UNIDROIT Principles of International Commercial Contracts 2004, Uniform Rules and Customs for Documentary Credit, etc.

For the purposes of this norm, international conventions that have not entered into force, their drafts, modal laws, drafts of national normative acts, etc. can be classified as law.

It should be noted that state courts to this day are reluctant to accept the choice of non-state instruments as applicable law. International commercial arbitration is a suitable forum for testing the effectiveness of such experiments in the autonomy of the will of the parties.

The choice of law should be distinguished from a prophetic clause - an agreement on the choice of a forum for resolving disputes. The choice of the court in itself does not mean the choice of the law of the country of the court, although in some cases it influences the choice of the conflict of laws rules that will be guided by the court.

The indication of the parties to the law or system of law of any state, as a general rule, should be interpreted as directly referring to the substantive law of this state, and not to its conflict of laws rules. Let us allow the choice of substantive law by reference to conflict of laws rules, with the help of which the applicable law should be established, or the general conditions of transactions of the corresponding type, containing unified provisions on applicable law.

Conditions on the choice of applicable law, which do not allow the actual will of the parties to be determined, in judicial and arbitration practice are qualified as the absence of an agreement between the parties on the applicable law. “The debatable question remains whether the expression of will, aimed at the application of general principles of law and (or) justice, is sufficient to recognize the choice of law as valid. There are many examples when the parties indicate “general principles of law”, “generally recognized norms and rules of international trade” as substantive law (lex contractus). As a rule, state courts have a negative attitude to such agreements ”. They are not recognized as choice of law agreements that preclude the application of conflict of laws rules by the court.

We also admit the choice of law "as of ... (date of the contract, performance of the obligation, etc.)", i.e. the parties can stabilize, "freeze" the applicable law; however, the autonomy of the will of the parties in this case is limited by the principles set forth in paragraph 2 of Art. 422 of the Civil Code of the Russian Federation.

According to the chosen law, both actions aimed at changing and terminating obligations, and events entailing such consequences should be qualified. The agreement of the parties on the choice of law continues to operate even after the termination of the contract (refusal from it, termination), unless the parties themselves have established otherwise.

The recognition of the main contract as invalid does not in itself entail the invalidity of the agreement on the choice of law. This right may apply, in particular, to the determination of the legal consequences of the invalidity of the contract.

However, the general provisions on validity (invalidity) apply to agreements on applicable law.

The choice of the parties is obligatory for the court, the arbitration court, which resolves the dispute in accordance with the rules of law that the parties have chosen as applicable to the merits of the dispute, in accordance with the terms of the contract and taking into account the commercial customs applicable to this transaction. According to a number of researchers, for the validity of this agreement does not require mandatory compliance with the written form - it can be concluded orally.

In states with a plurality of legal systems, issues of private law may relate to the jurisdiction of territorial public law entities. For example, in an applicable law clause, it is correct to indicate "the law of England" or "the state of New York", it is incorrect - "Great Britain" or "the United States". Moreover, in common law countries, local courts may take different positions on particular enforcement issues, following their precedents. Therefore, the following clause would be correct: "... governed by the law of England, as applied by the High Court of London." If such a choice is not made, one should be guided by Art. 1188 of the Civil Code of the Russian Federation "Application of the law of a country with a plurality of legal systems."

The parties can make a choice of the applicable law after the occurrence of the corresponding legal relationship (the transaction), and this choice is valid from the moment of the conclusion of the contract. By virtue of clause 3, the parties can not only make a choice of law in the absence of such, but also change the previously made choice.

Similar provisions may apply to non-contractual obligations.

If the contract specifies "the law of the Russian Federation" as the applicable law, the international treaties of the Russian Federation and subsidiary legislation of the Russian Federation apply to the relations of the parties (Resolution of the ICAC at the RF CCI of March 12, 2008 No. 64/2007, the decision of the ICAC at RF CCI of December 17, 2007 No. 35/2007). A different interpretation is possible in case of reference to the legislation of the Russian Federation - in law enforcement practice, such a provision is often interpreted as the intention of the parties to subordinate the transaction to the national legal regime, which excludes the application of international treaties as part of the legal system of Russia.

The choice of law by the parties to the obligation takes precedence over the general rule of Art. 1206 of the Civil Code of the Russian Federation, which should be guided when choosing a law between persons who are not bound by an obligation relationship. The applicable law also resolves issues of ownership and other property rights - their presence, loss, transfer between the parties to the transaction. However, the emergence or termination of real rights by virtue of the application of the law chosen by the parties does not affect the property claims of third parties. Third parties are understood as entities that are not parties to the contract, who, nevertheless, can claim their rights to movable property.

If the parties have chosen the applicable law only for certain parts of the transaction, but not for others, and also if the applicable system of law does not include regulation on specific issues (such a situation is not excluded with the clause on the choice of "general principles of law" or lex mercatoria), applicable to such aspects of the transaction, the rules of law should be selected according to the rules of Art. 1211 of the Civil Code of the Russian Federation.

For modern international private law in the field of obligations, it is characteristic, when defining such a right, to use as general principle application of the law of the country with which a particular treaty is most closely associated.

The current Russian legislation proceeds from the principle of the closest connection between an agreement and the law of a particular country. The fundamental provisions that reveal the content of this principle are contained in Art. 1211 of the Civil Code of the Russian Federation.

This article consists of six paragraphs, which contain the most important provisions regarding the application of conflict of laws rules in the field of contract law. Clauses 1 and 2 of this article provide for the following:

"one. In the absence of an agreement between the parties on the applicable law, the law of the country with which the contract is most closely connected shall apply to the contract.

The law of the country with which the contract is most closely related is considered, unless otherwise follows from the law, the conditions or the essence of the contract or the totality of the circumstances of the case, the law of the country where the place of residence or main place of business of the party that carries out the performance that is decisive for the content agreement ".

Thus, the main criterion for determining the country with which the international factoring agreement is most closely related is the place of residence or main place of business of the party that carries out the performance that is decisive for the content of the agreement.

The place of residence of a citizen under Russian law is the place where the citizen permanently or predominantly resides (Article 20 of the Civil Code of the Russian Federation). The establishment of this place, of course, depends primarily on the factual circumstances.

In the event that an enterprise is located on the territory of several states, the place where the most significant part of this activity is concentrated should be considered the main place of its activity. At the same time, it is important to emphasize that the place of business of an enterprise does not have to coincide with the location of a legal entity.

All collision links provided for in Art. 1211 of the Civil Code of the Russian Federation, are subject to application, unless otherwise follows from the law, the conditions or the essence of the contract or the totality of the circumstances of the case. Thus, the dispositive nature of these provisions is emphasized.

In accordance with paragraph 3 of Art. 1211 of the Civil Code of the Russian Federation "the party that carries out the performance, which is decisive for the content of the contract, is recognized, unless otherwise follows from the law, the terms or the essence of the contract or the totality of the circumstances of the case, the party that is, in particular: the financial agent - in the financing agreement on assignment monetary claim (clauses 9).

This rule plays a subsidiary role, since the main meaning of Art. 1211 of the Civil Code of the Russian Federation should always have the principle of applying the law of the country with which the agreement is most closely connected.

2.1 Rights and obligations of a financial agent

According to paragraphs. "B" paragraph 2 of Art. 1 of the 1988 Convention, the responsibilities of a financial agent include financing the supplier, including a loan and prepayment, keeping records (of books) for amounts due, filing monetary claims and protecting the supplier from insolvency of debtors.

Since the main obligation of the financial agent under the contract is the transfer of funds, it can be noted that the parties are given the right to independently (but within the limits allowed by national legal systems) set the amount and mode of providing funds. In practice, the payment can be either a one-time amount or be divided into several parts.

Based on the meaning of pp. "B" paragraph 2 of Art. 1 of the 1988 unifying Convention, the very fact of financing is a mandatory, but not the only possible obligation of a financial agent. On the basis of a factoring agreement, a financial agent can provide a client with a number of financial services.

Some authors point out that the provision of financing along with the provision of financial services is usually used with the full service of the client by the financial agent. Unfortunately, the negative aspect of such cooperation is the detailed awareness of the financial agent about the client's activities. This is primarily related to the provision of accounting services, control of payment of invoices and consulting the client. Here you can cite as an example paragraph 2 of Art. 824 of the Civil Code of the Russian Federation, according to which the provision of financial services is limited to their connection with the monetary claims that are the subject of the assignment. However, in the case of a comprehensive service in the sense of the 1988 Convention, all existing claims are assigned to the financial agent, as a result of which the information of a commercial nature is legally available to a third party (i.e. the financial agent).

Due to the peculiarities of the conditions for concluding factoring agreements in Russia, it is necessary to dwell on such a duty of a financial agent as protecting a supplier from insolvency of debtors.

Today, considering the range of responsibilities of a financial agent, and dwelling in detail on checking the solvency of the debtor, one should mention the Federal Law No. 218-FZ of December 30, 2004 "On Credit Histories". This law defines the concept and composition of credit history, the grounds, the procedure for the formation, storage and use of credit histories, regulates the activities of the credit history bureaus, establishes the features of the creation, liquidation and reorganization of the credit history bureau, and also, which is of significant interest to us, determines the principles of their interaction with sources of formation of credit history, borrowers, government bodies, local authorities and the Bank of Russia (Article 1).

From the moment the new law enters into force, all information about bona fide and unscrupulous borrowers (including foreign ones) will be compulsorily collected in commercial organizations - the Bureau of Credit Histories. The said law makes the Central Bank of Russia obliged to maintain the Central Catalog of Credit Histories, which will help determine which particular credit bureau stores the required credit history. The bank (i.e. the financial agent), having made a request to the Central Bank, will be able to easily find it.

The Law "On Credit Histories" is interesting in the study of relations arising in cross-border factoring, because for the first time it introduces and determines the meaning of many concepts that have long been used in many countries in connection with the implementation of international factoring business, and, to a certain extent, changes the volume obligations (hence the content of the transaction itself). So, in Art. 3, the law uses the concept of "credit history", by which it is proposed to understand information, the composition of which is determined by the Federal Law itself and which characterizes the performance by the borrower of the obligations assumed under the loan (credit) agreements and is stored in the credit history bureau.

This law does not contain provisions on factoring contracts and their participants. It should be pointed out, however, that in accordance with the already mentioned Art. 3 under a loan (credit) agreement in the sense of this law is understood not only the loan agreement itself, the loan agreement, but also other agreements containing the condition for the provision of a commodity and (or) commercial loan. A factoring contract has such a feature as the provision of a merchant credit to the debtor (buyer) by the supplier. Consequently, in the absence of any prohibitive provisions, the provisions of the Federal Law "On Credit Histories" may be applicable to any factoring contracts, including those with a foreign element.

The most interesting in the study of the functions of a financial agent is Chapter 5 of the Federal Law "On Credit Histories", dedicated to state control and supervision over the activities of credit history bureaus.

The significance of this chapter lies in the fact that by regulating the activities of the bureau, the state, to a certain extent, also controls the activities of the factoring companies (financial agents) that turn to their services. Thus, an additional criterion of the legality of the actions of the investigated subject of the factoring relationship appears. The disadvantages of this law can be attributed to the lack of a specific name for the "authorized state body" exercising control functions in the field of relations regulated by law.

Having considered the content of the obligation of a financial agent to track insolvent debtors, we can add that today in Russia we can talk about the legalization and simplification of the process of collecting information by banks or financial agents about the financial situation of the supplier's debtors. Of course, this will, to a certain extent, contribute to the popularization of the factoring agreement not only among domestic, but also among foreign developing trading companies.

In accordance with the mentioned paragraphs. "B" paragraph 2 of Art. 1 of the 1988 Convention, a possible responsibility of a financial agent may include maintaining the supplier's accounting records, processing invoices, and controlling the payment of invoices.

It can be noted that in this area we can talk about the harmonization of legislation: in fact, the admissibility of the provision of such services is established by Russian legislation in paragraph 2 of Art. 824 of the Civil Code of the Russian Federation. In this regard, it is important to emphasize once again that the provision of the specified financial complex of services does not always accompany the conclusion of the factoring agreement itself. However, if provided, the financial services themselves must have a connection with the monetary claims that are the subject of the factoring agreement.

The question naturally arises as to whether a service provided by a financial agent and not related to an assigned monetary claim can be fixed in a factoring agreement.

Using the principle of freedom of contract, the norms of Art. 421 of the Civil Code of the Russian Federation, you can answer this question in such a way that the parties have the right to introduce such conditions into the agreement. Chapter 39 of the Civil Code of the Russian Federation can be applied to any services of a reimbursable nature, which in a special way affects the position of both the financial agent and the supplier. For example, according to Art. 780 of the Civil Code of the Russian Federation, unless otherwise provided by the contract, the contractor is obliged to provide services personally.

M.P. Shulik connects this provision with paragraph 1 of Art. 313 of the Civil Code of the Russian Federation, according to which the fulfillment of the obligation can be assigned to a third party, if the obligation of the debtor to fulfill the obligation personally does not follow from the law, other legal acts, the conditions of the obligation or its essence. Thus, a financial agent, having undertaken to provide financial services, does not have the right to assign this to a third party, if this is not provided for by the contract.

At the same time, in accordance with paragraph "a" of Art. 11, the assignment of the claims by the financial agent takes place on the same conditions on which the financial agent himself received the monetary claims, and all subsequent successors are equal to clause "b" of Art. 11 to the financial agent. It seems that the use of the phrase “subsequent successors” indicates the possibility of multiple assignment of a monetary claim, that is, about a kind of “chain” of so-called financial agents. The regulation of such relations from subsequent concessions of monetary claims, in accordance with Art. 12 of the Convention, cannot be carried out through the norms of the Convention, if the subsequent assignment was not allowed by the terms of the factoring contract. Obviously, if there are references to national law, the parties will have to turn to conflict of laws regulation.

Thus, in accordance with the norms of private international law, the supplier cannot influence the right of the financial agent to a subsequent assignment, but can, to a certain extent, complicate the further regulation of the relationship that has arisen with the agent by including in the factoring contract a clause prohibiting further assignment.

This provision of the 1988 Convention corresponds to the situation in Russian civil law. Some authors put forward assertions about the dependence of the financial agent's right to subsequent assignment of claims on the terms of the contract, and, in accordance with Art. 829 of the Civil Code of the Russian Federation, in the absence of an indication in the factoring agreement on the possibility of further assignment, the latter is unacceptable. The Russian legislator is characterized by a tough approach and, to a certain extent, a desire for the so-called "regulation" of relations between the parties, in particular, a factoring agreement. So, even if there is an agreement between the financial agent and the client on the subsequent assignment, such an agreement must be carried out in compliance with the rules of Chapter 43 of the Civil Code of the Russian Federation. "Thus, this means that a financial agent under Russian law can assign a monetary claim only to the same financial agent, and in this case he himself is equated to a client by legal status."

It should be noted that the 1988 Convention is more lenient in regulating the described issue, allowing the transfer of claims to any successors, and even automatically endows them with the status of a financial agent. This approach may hide the reason for non-participation in the Convention or reluctance to ratify it by some states, including Russia.

According to the aforementioned norms of the Civil Code of the Russian Federation, a financial agent with the acquisition of the status of a client may under a contract be liable for non-fulfillment or improper fulfillment by the debtor of the requirement, even if the original client does not have such an obligation to him.

Noting the differences in the regulation of the exercise of the rights of a financial agent that has entered into a cross-border factoring agreement and a financial agent working within the country, it should be pointed out that the norms of the 1988 Convention (Articles 5-10, 11) establish the application of uniform conditions to the procedure conclusion and content of not only the first, but also subsequent concessions of monetary claims. According to Russian law, the terms of subsequent factoring agreements may be fundamentally different from the previous ones.

No less interesting is the point concerning the fact that the claims of the financial agent against the client under the original agreement remain in force, which is fraught with such complications of the relationship as recourse to the already assigned claim if the new financial agent puts forward such claims against the previous one on the basis of the agreement. In addition, in this case, the search for applicable law may be complicated, and it will become necessary to apply general conflict of laws rules.

It seems logical that the position of some experts that special conditions the subsequent assignment of a monetary claim by a financial agent is limited by the “activity of buying up debt” and creating a “debt market”, which some commercial organizations are trying to develop by acquiring claims of depositors against insolvent banks or other credit institutions. In accordance with Art. 9 of the 1988 Convention, a financial agent, either by virtue of default by the supplier of the main obligation, or under a contract, also has the right to recover money from the debtor.

2.2 Rights and obligations of the supplier

The obligation of the supplier is to assign to the financial agent monetary claims arising from contracts for the sale of goods concluded between the supplier and its buyers (debtors).

In Russia, for internal factoring contracts, the client's response is always the assignment of a monetary claim. It should be noted that in accordance with Art. 824 of the Civil Code of the Russian Federation “under a financing agreement against the assignment of a monetary claim, one party (financial agent) transfers or undertakes to transfer funds to the other party (client) against the client's (creditor's) monetary claim to a third party (debtor) arising from the client's provision of goods, fulfillment to them works or rendering services to a third party, and the client assigns or undertakes to assign this monetary claim to the financial agent ”.

Thus, both a domestic and a cross-border factoring agreement, like a sale and purchase agreement, always presupposes a reciprocal provision of funds. It can be assumed that if the agreement between the original creditor and the new creditor establishes that settlements between the parties for the transferred right of claim will be carried out without actual cash flow, then such an agreement should not be recognized as a factoring agreement.

As an example, defining the position of Russian practice on this issue, a case considered by the Supreme Arbitration Court of the Russian Federation can be cited. The court indicated: “As follows from the case file, between OJSC“ Volgogradgorgaz ”(client) and LLC“ Advocate ”(financial agent) on 05.02.97, an agreement was concluded, named by the parties as a financing agreement for the assignment of a monetary claim (factoring).

According to this agreement, the financial agent buys from the client his monetary claims against JSC Volgogradenergo on the basis of a writ of execution issued by the decision of the arbitration court in the amount of 2,338,560 rubles 53 kopecks (clause 1.2 of the agreement).

In return for what was received, the financial agent undertook to transfer 1,000 rubles to the client, as well as 95 percent of the principal amount in the event that the client's assigned monetary claims against the debtor were presented for collection (clause 1.3 of the agreement).

The intentions of the parties under this agreement do not correspond to its content, since the factoring agreement according to Article 824 of the Civil Code of the Russian Federation “one party finances the other”. This was not provided for in this agreement. Therefore, the appellate court rightfully declared it to be an insignificant transaction.

Thus, the Russian jurisprudence reflects the result of the harmonization of the provisions of the 1988 Convention (Art. 1), which contains the definition of a factoring contract, and Art. 824 of the Civil Code of the Russian Federation, which gives the concept of a financing agreement against the assignment of a monetary claim.

In accordance with the provisions of the Convention (paragraph "a" of Article 5), the parties to an international factoring contract are not required to clearly specify the assignable claims: invalid because they were not specified specifically if at the time of the conclusion of the contract or at the time of its entry into force they could have been specified in the contract. "

When comparing this provision with Russian civil law, it can be concluded that, in accordance with Art. 826 of the Civil Code of the Russian Federation, the assigned monetary claim must be defined in such a way that it can be identified either directly at the time of the conclusion of the contract (existing demand), or at the time of the emergence of the demand itself (future demand).

It seems that it would be appropriate and desirable to recommend that persons planning to conclude factoring agreements with foreign partners in the future pay close attention to the provisions specifying the assigned monetary claims. It seems that such an approach could save the majority of participants in commercial turnover working in the field of factoring from the complications associated directly with determining the authenticity of assigned or acquired monetary claims.

Compliance with the proposed solution seems all the more important because, according to Art. 8 of the 1988 Convention, the debtor is obliged to pay the financial agent if and only if the authenticity of the monetary claim transferred to the financial agent to whom the debtor is obliged to pay is reasonably established. Obviously, the Russian legislator has more stringently defined requirements in the Civil Code of the Russian Federation that facilitate the simplification of the procedure for identifying monetary claims assigned in the course of a transaction.

The creators of the 1988 Convention, on the contrary, sought to avoid unnecessary bureaucratization of the process of recognizing not only existing, but even future monetary claims.

So, paragraph "b" of Art. 5 of the Convention reads: "... the provision of the factoring contract, according to which future monetary claims are intended to be assigned to the financial agent as they become available, does not require the conclusion of any new act on the assignment of the claim." Obviously, in this case, the parties must rely on the already indicated signs of the contract, from which future claims may arise, or the identification of claims is carried out at the discretion of the parties and entails the application of foreign law.

So, the financial agent receives a monetary claim, which, as noted, can be distinguished on the basis of an agreement from among other client claims. Traditionally, it is noted that for this they refer to the signs of the contract, the requirements from which are assigned. So, the number, date, parties of the specified concluded sales contract can be indicated. Referring to Russian norms, it can be noted that Art. 826 of the Civil Code of the Russian Federation does not contain clear rules according to which requirements should be identified. Therefore, according to L. A. Novoselova, the agreement must contain information sufficient to resolve the issue of extending the assignment agreement to a particular requirement when this requirement arises.

The provisions of the 1988 Convention specify the supplier's obligation by stating that assignable monetary claims cannot arise from contracts that relate to goods purchased primarily for personal, family and household use.

This provision of the Convention corresponds to the position of the Russian judicial practice, confirmed by the reaction of the Russian court (although not with regard to cross-border factoring) in the decision of the Arbitration Court of Moscow on the claim of Tanais LLP against the Trade and Industrial Bank of Moscow LLP and against LLC “ Firm "Arvan" on invalidation of the cession agreement concluded by the defendant. The plaintiff argued that the controversial contract was a factoring contract, but the court rejected his arguments, since the monetary claim that was the subject of the assignment contract did not arise from the sale of goods to the plaintiff, the performance of work or the provision of services, as it follows from Art. 824 of the Civil Code of the Russian Federation. As a result of the consideration, the court found that Trade and Industrial Bank of Moscow LLP ceded to Firm Arvan LLC the right to claim the debt from the plaintiff under the loan agreement. This example indicates a literal interpretation arbitration courts Art. 826 of the Civil Code of the Russian Federation and once again confirms the thesis of a satisfactory level of harmonization of the provisions of Russian legislation and the norms of the 1988 Convention.

Thus, to a certain extent, the supplier's obligation arises, among other things, by virtue of the conclusion by him of previously relevant sales and purchase agreements exclusively for business purposes.

The supplier, yielding a monetary claim, submits documents certifying the right of the claim to the financial agent.

For example, in accordance with paragraph 2 of Art. 830 of the Civil Code of the Russian Federation, the debtor may not make payment to the financial agent if he does not provide evidence of the assignment. Usually, the package of documents transferred by the supplier includes the client's agreement with his debtor and documents confirming the fulfillment by the client of his obligation to the debtor (invoices, shipping orders, acts of acceptance of goods).

It seems that in connection with the study of the supplier's obligations in the factoring agreement, it is very important to notify the debtor about the assignment of the claim. The 1988 Convention mentions this in paras. "C" clause 2 of Art. 1 ("debtors must be notified of the assignment of the claim"), and in paragraph 4 of Art. one.

In particular, according to the provisions of the latter, the written notice itself may not be signed, but must necessarily have an indication by whom or on behalf of whom it was drawn up; notification can be made in the form of a telegram, fax and any other type of messages that can be reproduced in the form of a document; and a notice is considered to have been submitted if it is received by the addressee.

However, the Convention, for some unknown reason, does not specify the person who is responsible for notifying the debtor. At the same time, proceeding from the meaning of Art. 8 of the Convention, theoretically the debtor can receive such notification from both the supplier and the financial agent. In this case, the inevitable question arises as to the law of which state the form of notification should comply with.

It seems that, in practice, such a situation may lead to a conflict problem due to the need for the parties to independently reach an agreement on this matter. It is not always possible to quickly reach a compromise, which, in turn, is unlikely to promote better mutual understanding between partners. Therefore, if there is a possibility (and the very fact of the existence of the Factoring Convention can be considered as such), it is not worth leaving to the parties' discretion questions that can be settled at the convention level.

Thus, it seems logical to fill this gap by assigning the function of notifying the debtor about the assignment of the claim to the supplier as a person directly connected and interacting with the debtor.

In continuation of the study of the supplier's obligations in the implementation of a cross-border factoring contract, it is necessary to dwell on the problem of his responsibility to the financial agent for the validity of the assigned monetary claim.

Unfortunately, this issue is also not regulated by the provisions of the Convention, despite the fact that it is of very significant practical interest. Article 6 of the 1988 Convention deals with the validity of the direct assignment of a monetary claim, and not the validity of the assigned claim, which, in our opinion, is not the same thing. So, in accordance with this article, the assignment of a monetary claim by a supplier to a financial agent is valid even if there is an agreement between the supplier and the debtor to prohibit it.

In this case, further a clause is made that the assignment will still not be valid in relation to the debtor (i.e., will not be valid) if, at the time of the conclusion of the contract of sale of goods, he carries out his activities in the territory of the state that made the declaration that the assignment of the claim, which meets the specified conditions, has no effect in relation to the debtor operating on the territory of this state. Thus, the question is whether the assignment of the claim will be valid as a legal fact in this or that case.

The scientific and practical value when considering a factoring transaction under the law of the Russian Federation is the validity (legality) of the requirement itself in the sense of paragraph 1 of Art. 827 of the Civil Code of the Russian Federation.

This norm of Russian legislation is dispositive, since it speaks of the responsibility of the supplier (in this case, the client) to the financial agent for the validity of the assigned monetary claim, unless otherwise provided in the contract.

To a certain extent, such a provision is implied by the unified norms of the 1988 Convention, but the Russian legislator has once again defined the issue under study in more detail. So, paragraph 2 of Art. 827 of the Civil Code of the Russian Federation, harmonized with the provisions of the 1988 Convention, contains such signs of the validity of a monetary claim as the existence of the client's right to transfer the monetary claim and the absence of circumstances on the basis of which the debtor has the right not to fulfill the claim.

The disadvantage of the wording of paragraph 1 of Art. 827 of the Civil Code of the Russian Federation is the existing possibility of transferring funds to a client on the basis of an agreement by a financial agent in exchange for assigning a claim, the right to transfer which the client does not have, and which the debtor has the right not to fulfill. Considering that the law does not establish liability for the client in this case, it is possible that the said norm is used for illegal purposes.

Thus, it can be concluded that the absence in the 1988 Convention of regulating the problem of the validity of an assignable claim at least of such a level of elaboration as demonstrated by the Civil Code of the Russian Federation may also contribute to not always legal actions of a person transferring legally invalid claims.

It can be assumed that in the absence in the cross-border factoring agreement of references to any signs of the validity of the monetary claim established by the agreement of the parties, the supplier's liability for the validity of the claim may depend on the moment of assignment of this claim. More accurate is the wording of M.P. Shulik on this matter: "from the moment the supplier became aware of the invalidity of the assigned claim." It can be assumed that provided that the supplier is informed prior to the assignment of the claim that the debtor does not have the obligation to fulfill the monetary claim, or if the supplier does not have the right to transfer such a claim (for example, by force), the financial agent, having previously proved any of the above violations, will have the right to bring the supplier to justice.

Once again, it can be emphasized that the comparison with the provisions of the 1988 Convention of the norms of Russian legislation is made by the author in connection with the fact that the parties, according to the principle of autonomy of the will of the parties, can subordinate their relations, including the Russian legal order, and in this case, they will are forced to be guided in their actions by Russian norms as well.

Therefore, it seems further appropriate to point to paragraph 3 of Art. 827 of the Civil Code of the Russian Federation, containing a provision stating that the supplier (client) is not responsible for non-fulfillment or improper fulfillment by the debtor of the claim assigned to the financial agent, unless otherwise provided by the contract.

Obviously, such a norm of Russian legislation is in some way the reason that mainly Russian companies acting on the domestic market as financial agents are reluctant to enter into such factoring agreements without recourse.

Conversely, there is a widespread use of factoring contracts with the right of recourse, when an agent can demand payment of assigned claims from the supplier if the debtor refuses to do so for whatever reason. Moreover, the parties have the right to stipulate in the contract the possibility of recourse of the financial agent to the supplier in case of non-payment of the debtor.

Traditionally, in order to minimize the risk of incurring monetary losses, agents try to use this right, hence such a large percentage of recourse transactions both in Russian and in the global factoring business.

In this case, I would like to point out that the supplier's right not to be held liable for the actions of the debtor looks very acceptable, however, a situation in which the supplier is not responsible for the validity of the assigned claim puts the financial agent himself in a difficult position, as a result of which the parties do not completely equal positions in the transaction.

So, the analysis of Russian and international norms on the position of the supplier in the relations of the factoring contract showed that the main obligations of the supplier include the assignment to the financial agent of the monetary claim arising from the contract for the sale of goods that meets the requirements of the 1988 Convention; notification of the debtor about the assignment of the monetary claim; liability to the financial agent for the validity of the assigned monetary claim.

In the event that, within the framework of the concluded factoring agreement, a comprehensive financial service of the supplier is carried out by a financial agent, the supplier's obligations include the transfer of all documents and information necessary for the specified service.

The supplier's rights in a cross-border factoring legal relationship traditionally include the very right to assign monetary claims to a financial agent (“a supplier can assign monetary claims to a financial agent”); this right remains with the supplier even if the assignment is prohibited in the contract with the debtor.

2.3 Rights and obligations of the debtor

It is also necessary to consider the complex of rights and obligations of the debtor, without which the emergence, existence and development of both cross-border and internal relations within the framework of the studied agreement would be hardly possible.

It should be noted that, firstly, the rules governing the legal status of the debtor are not concentrated in individual articles of the Convention, but are scattered throughout the text of the entire document. Secondly, one can also note the obvious difference between the Russian approach to regulating the legal status of the debtor as a subject of financing relations against the assignment of a monetary claim - the Civil Code of the Russian Federation has a block of norms to a certain extent related to the rights and obligations of the status of the investigated subject (Art. RF).

The doctrine of private international law notes the direct connection that exists between the "external" and "internal" legal relations of a factoring agreement, although it does not include "external" relations in the object of the treaty considered in the Civil Code of the Russian Federation.

Nevertheless, it is obvious that the main obligation of the debtor is to make payments to the financial agent for the goods, works, services rendered by the supplier (by the client in the factoring agreement). The foregoing follows from Art. 8 of the 1988 Convention There are a number of conditions under which the obligation of the debtor is valid, in other words, under which the debtor is unconditionally obligated to make payment.

First, the debtor is obliged to make a payment to the financial agent if he is not aware of the other person's preemptive right to payment.

Secondly, (this also follows from the aforementioned article of the Convention) the obligation of the debtor to pay exactly to the financial agent arises in the event of a written notification of the assignment of a monetary claim from the supplier or financial agent by virtue of the powers delegated by the supplier. The provision on the obligation to notify debtors about the assignment of a monetary claim is also contained in paragraphs. "C" clause 2 of Art. 1 of the 1988 Convention, and is considered one of the obligations of the supplier.

Once again, it can be emphasized that both the 1988 Convention and the Civil Code of the Russian Federation (clause 1 of article 830) have a uniform approach to the problem of the subject notifying the debtor in a factoring transaction - it can be either a supplier (client) or a financial agent.

At the same time, the Russian doctrine is characterized by the presence of a position on the need to notify the debtor by both named parties to the agreement. The author of this position shares the point of view that “... in any case, the simultaneous notification from the financial agent and the client will bring more clarity to the debtor, especially if he is first involved in a relationship related to a financing agreement under the assignment of a monetary claim. A clear position of the debtor is beneficial, first of all, to the financial agent, so he needs to work out the terms of the contract in detail, including the issue of notifying the debtor about the assignment of the right of claim. " The above statement makes sense and is aimed at achieving a maximum understanding of the intentions of the parties in the process of joint activities.

Thirdly, as already mentioned and equally follows from paragraph 1 of Art. 830 of the Civil Code of the Russian Federation, and from clause "b" of Art. 8 of the 1988 Convention, the debtor has the right to be informed about what specific monetary claim is subject to performance and which financial agent is entitled to receive this performance. It is important that in the absence of notification, the debtor has the right not to fulfill his obligation to the financial agent, but remains obligated to the client.

It is also interesting that even if there is a notification, there may be cases where the debtor retains the right not to comply with the financial agent's request. For example, in accordance with paragraph 4 of Art. 1 of the 1988 Convention, this concerns a violation of the form of notification (i.e., the presentation of a notification orally), uncertainty or incorrect indication of the monetary claim to be enforced, the absence or incorrect indication of the name of the financial agent to whom the right of claim has been assigned.

Having received proper notification of the transfer of rights of claim to the financial agent, the debtor has the right to demand evidence of the transfer of the right of claim (clause 2 of Article 830 of the Civil Code of the Russian Federation), in other words, proof of the authenticity of the monetary claim transferred to the financial agent (clause "b" of clause 1 Article 8 of the 1988 Convention). Thus, it is again necessary to state the coincidence of international and Russian legal provisions in the regulation of the studied area of ​​relations.

Legislation and the Convention oblige the financial agent to provide the debtor within a reasonable time with proof of the assignment of the claim, that is, a document that would reflect and confirm all relations between the financial agent and the supplier (client) regarding the assignment - that is, the factoring agreement itself.

The latter can be presented to the debtor as proof of the authenticity of the transferred monetary claim presented for payment. The importance of confirming the legality of the claims is not exaggerated: according to the aforementioned paragraph 2 of Art. 830 of the Civil Code of the Russian Federation, if the required evidence is not received from the financial agent, the debtor has the right to pay to the client, and not to the financial agent.

According to paragraph 1 of Art. 9 of the 1988 Convention, upon presentation by a financial agent to the debtor of a claim for payment of a pecuniary debt arising from a contract for the sale of goods, the debtor has the right to use in relations with the financial agent all the remedies specified in this contract, which he could use in the event that, if such a requirement was made by the supplier. Based on the foregoing, we can conclude that, when turning to the debtor with a demand to make payment, the financial agent risks receiving monetary claims from the debtor, based on an agreement with the client, for the purpose of offset. In fact, the debtor's right to declare to the financial agent the right to offset in relation to claims against the supplier is enshrined in paragraph 2 of Art. 9 of the 1988 Convention, as well as provided by paragraph 1 of Art. 832 of the Civil Code of the Russian Federation, with reference to Art. Art. 410-412 of the Civil Code of the Russian Federation.

In this case, it may seem that the debtor is in a fairly protected legal field, provided by both domestic and international norms. However, this is not quite true. It seems that not every claim of the debtor against the supplier (client) can be presented for offset.

Firstly, such a claim must follow from the contract, which served as the basis for the emergence of the claim assigned to the financial agent. This conclusion can be made after analyzing the content of paragraph 1 of Art. 832 of the Civil Code of the Russian Federation, as well as pp. "C" clause 1 of Art. 8 of the 1988 Convention

Secondly, a significant role is assigned to the nature of the debtor's claims - they must be monetary.

Consideration should also be given to the question concerning the legal status of the debtor and related to the presence of a prohibition or restriction on the assignment of a monetary claim in the contract between the supplier and the debtor. In accordance with paragraph 1 of Art. 828 of the Civil Code of the Russian Federation, as well as from clause 1 of Art. 6 of the 1988 Convention, the assignment of a monetary claim by a supplier to a financial agent will be valid even if there is an agreement prohibiting it between the supplier and the debtor. At the same time, only Russian legislation (clause 2 of article 828 of the Civil Code of the Russian Federation) provides for the liability of the supplier (client) for violation of the prohibition on the possibility of assignment of the claim established by the contract with the debtor.

Thus, the law compensates for the established possibility of violation of contractual norms. It is difficult to unequivocally assess such a step by the legislator: on the one hand, such a position on responsibility meets the criteria of fair retribution for violation of the contract, on the other hand, it threatens that factoring as an operation to replenish the missing working capital may, in certain cases, lose its economic and legal attractiveness.

Investigating the legal status of the debtor, one cannot ignore his right to claim from the financial agent the sums of money paid to the latter on the basis of the transferred claim.

In fact, a unified general rule, similarly reflected in paragraph 1 of Art. 10 of the 1988 Convention and in paragraph 1 of Art. 833 of the Civil Code of the Russian Federation, is that non-performance, improper performance, as well as delay in the performance of the contract for the sale of goods do not give the debtor the right to demand the return of the amounts paid by him to the financial agent, if the debtor is entitled to receive this amount from the supplier. In the second paragraphs of the corresponding articles of the said normative legal acts, identical exceptions from the named general rule are stipulated.

Thus, the debtor still has the right to claim the return of funds received by the financial agent to the extent that the financial agent has not fulfilled its obligation to make the payment to the supplier related to the assignment of the claim, or the debtor has the right to a refund if the financial agent made such a payment, but was aware of non-performance, improper performance or delay in performance by the supplier of its obligations in relation to the goods to which the debtor's payment relates.

Obviously, the need to apply these rules may appear in the case when the supplier is engaged in the supply of any goods, and the arising monetary claims are assigned to a financial agent who collects them from the debtor within the established time frame. In practice, a situation may well arise when the payment of the claims of the financial agent has occurred, and after that the debtor discovers a low-quality product supplied by the supplier. In this case, the debtor will file a claim against the supplier for the return of all or part of the amounts paid.

Another example can be cited when a financial agent, having received money from the debtor on demand, did not fulfill his obligation and did not finance the supplier.

In this case, if the obligation of the financial agent is not fulfilled, the supplier cannot return to the debtor what he did not receive either from him or from the financial agent. These coinciding provisions of both the 1988 Convention and the Civil Code of the Russian Federation provide the debtor with the right to request a refund of funds both to the financial agent and to the supplier. Such regulation is explained in the doctrine by the fact that the requirements for the proper performance of the obligation lie with the supplier by virtue of the contract, therefore he is responsible for his actions.

The payment itself arising from the claim under the contract, the debtor makes in favor of the financial agent, therefore, the fact that the financial agent fails to fulfill its obligation puts him in a position where the supplier can demand not only the provision of financing, but also payments in connection with the violation of the obligation, as well as the debtor has the right to apply to a financial agent with a demand for the return of the money paid.

Some authors adhere to the position of the need to admit such a situation when the deadline for the fulfillment of the obligation by the financial agent has not yet come. This can be the case in practice, given the ability of the parties to independently determine the terms of the contract. It seems that most likely in this case it is hardly possible to speak of the debtor's rights of claim against the financial agent.

It is important to mention that the debtor will acquire the right to claim against the financial agent in the event that the latter, providing funds to the supplier in response to the assignment of monetary claims, becomes aware of the supplier's violation of the obligation to the debtor. It is in the event that a financial agent acquires a deliberately disputable claim that a collision with the debtor's claim for the return of the funds received is possible.

Not all authors adhere to a single position regarding these provisions. In particular, in the works of A.M. Erdelevsky points out the possibility of ambiguous interpretation of the considered paragraph 1 of Art. 833 of the Civil Code of the Russian Federation. The literal interpretation of this rule, as well as paragraph 1 of Art. 10 of the 1988 Convention, can create a situation where the debtor, in violation of the supplier's obligation, acquires the right to claim the return of the amounts paid to the financial agent, although he does not have such a right in relation to the supplier.

This situation is modeled on the example of a supply contract, indicating that a supplier's breach of an obligation under a supply contract does not necessarily give rise to the buyer's right to demand termination of the contract and the return of the amount paid. So, in case of a single violation by the supplier of the delivery time, such a right does not arise for the buyer, although other sanctions may apply. A.M. Erdelevsky draws attention to the existing violation on the part of the supplier and the lack of the right to receive the amount paid to the financial agent from the buyer.

Thus, it is appropriate to conclude that it is possible to claim funds received from the buyer from the financial agent. As a result, it seems possible to conclude in relation to international factoring that “... what the debtor was not entitled to receive from the client in the absence of a factoring agreement, he does not have the right to receive from the bank in the presence of such an agreement (in this case, he is not entitled to should be confused with "cannot") ".

It seems logical that such a position exists, despite the fact that the parties to the supply agreement may establish a different settlement regime for goods, which, in turn, cannot but affect the buyer's right to demand the return of the amounts paid.

The factoring agreement does not act as a guarantee that the supplier (client) will fulfill its obligations to the debtor. Therefore, if the law or the contract between the supplier or the debtor does not establish norms obliging the supplier to return funds in case of a certain violation of his obligations, then the financial agent in this case does not have an obligation to fulfill the debtor's claim. In this case, the debtor's appeal to the financial agent is rather an exception, as, for example, the considered cases of direct appeal to the financial agent demanding the return of the amounts paid, and, if possible, reclaiming the same funds from the client.

Taking into account the above, it seems necessary to emphasize that the figure of the debtor in connection with the involvement in relations with a financial agent in cross-border factoring relations receives additional protection from not only domestic (Chapter 43 of the Civil Code of the Russian Federation), but international legal norms.

To a kind of "protective" norms of the international level are nos. "C" clause 2 of Art. 1 of the 1988 Convention on the Right of Debtors to Notification of the Assignment of Claims, Clause 2, Art. 6 and Art. 18 of the 1988 Convention on the invalidity of an assignment in relation to the debtor in the event that he conducts business in the relevant state, art. 8 of the 1988 Convention on Requirements Subject to Exceptional Compliance with which the debtor is obliged to make payment in favor of the financial agent, Art. 9 of the 1988 Convention on the Debtor's Right to Use a Number of Means of Defense Against Claims by a Financial Agent for Payment of Monetary Debt, Art. 10 of the 1988 Convention on the Right of the Debtor in such cases to demand the return by the financial agent of the amounts paid to him as a result of the assignment.

In turn, among the domestic norms, the following are favorable for the debtor: clause 2 of Art. 828 of the Civil Code of the Russian Federation on measures of liability to the supplier for making an assignment in violation of the provisions of the contract with the debtor prohibiting it, Art. 830 of the Civil Code of the Russian Federation on the obligation to notify the debtor about the assignment of the claim and the right of the debtor to obtain evidence of the assignment from the financial agent, paragraph 1 of Art. 832 of the Civil Code of the Russian Federation on the debtor's right to set off claims arising from an agreement with a supplier, in the event of a financial agent applying with a monetary claim received as a result of an assignment, Art. 833 of the Civil Code of the Russian Federation on cases when the debtor has the right to return the money paid to the financial agent.

It seems that the legal status of the debtor in the factoring relationship is characterized by relatively detailed regulation due to the fact that the direct legal fact for the emergence of the relationship of the debtor with the financial agent and partly with the supplier is to a certain extent a factoring agreement, in which the debtor does not "seem to" participate. In this regard, we can talk about the need for the existence of any "protecting" norms, as well as norms that concretize the relationship between the supplier and the debtor after the assignment of the claim.

Based on the foregoing, it can be noted that both "internal" factoring relations (financial agent and supplier) and "external" (financial agent and debtor, debtor and supplier) undoubtedly have a certain mutual influence on the rights and obligations of each of the three specified subjects. For them, the activation of some legal mechanisms is carried out only due to the existence of the factoring agreement. In general, it seems that the specificity of the influence of the latter on the independent relations between its three subjects can be explained by the peculiarities of the very legal structure of the factoring agreement.

3. TYPES OF INTERNATIONAL FACTORING AGREEMENTS

There are a large number of types of factoring operations and their combinations, the main of which in foreign practice are the following:

)with and without recourse;

)hidden and open, sometimes additionally "half-open";

)factoring, when debt collection is carried out by a factor or a client on behalf of a factor;

)factoring with or without financing for the client;

)factoring, when a factor pays for each purchased claim on the specified date or when payment to the supplier comes directly from the buyer (the second type of operation, like others that do not provide for financing, does not fall under Russian law at all under the definition of a financing agreement under the assignment of a monetary claim);

)factoring, when a specific individualized claim is assigned or when a number of claims are proposed for factor approval;

)export and import factoring;

)direct and indirect (varieties of the latter, a distinctive feature of which is the participation of several banks in the operation, - "two-factor", "one-and-a-half factor" and compensatory (back-to-back) factoring);

)full and partial, etc. Various combinations of the above characteristics form a number of types of factoring transactions.

Full / complete service factoring. This is the traditional American form of factoring (therefore it is also called old line factoring), which is carried out on the basis of a long-term agreement between the factor and the seller, according to which the seller who ships goods (provides services) with the condition of payment to an open account (i.e. payment after shipment ), the factor provides the following services: a) buys all arising receivables with immediate payment to the seller; b) maintains a sales ledger and performs other accounting functions; c) collects accounts receivable; d) assumes all credit risks associated with the buyer's insolvency. Full factoring is carried out through the purchase of the assignable claim and does not provide for the right of recourse to the factor in the event of non-payment by the buyer.

Recourse factoring or true factoring. Despite the fact that a number of other types of factoring operations also provide for the right of recourse of the factor to the seller, this name was fixed for the type of factoring, in which the factor provides the client with financing, carries out accounting and collection (collection) of debt, but does not provide protection against non-payment by the buyer. In the latter case, the factor within the terms established by the contract (usually 2 - 3 months from the date of issuing the invoice (invoice)) has the right to return the advanced amount. Legally, the grounds for recourse may be included in the factoring agreement, firstly, the seller's guarantee issued for the buyer and securing the payment by the latter of the sale price, or, secondly, an agreement on the repurchase of the right of claim, if the latter is not repaid by the buyer within the prescribed period. Since historically recourse factoring appeared later, it is sometimes called false (English - spurious, German - unachten).

Agency factoring. A more accurate name for this type of factoring is found in German practice - "Eigen-Service Factoring" (literally - factoring with its own services). This name emphasizes its most important feature: the functions of the factor are limited to the financing of the client; additional services for debt collection, accounting, etc. are not provided.

Like both previous types, agent factoring is open, but the buyer can make payments to both the factor and the seller. In the latter case, the seller is the agent of the factor (hence the name), and the amounts received in the Anglo-Saxon countries are considered as a trust (trust), which must then be transferred to the factor. Agency factoring usually provides for recourse.

A very close type with agency factoring is the so-called bulk factoring (in free translation - "factoring of all customer sales", or "complex factoring"). Although the term itself is not entirely apt, as for other types, the usual situation is a complex service factor of all or most of the client's operations, and not single transactions. This is open factoring, always with recourse.

Invoice discounting or confidential factoring. The type is very similar to the agency type, but with one significant difference - it is hidden factoring. The functions of the factor are also limited to financing the seller, who independently collects the buyer's debt, acting in the interests of the factor. Some foreign experts do not consider discounting of invoices as factoring at all, but only as an ordinary loan secured by rights of claim.

In most countries, the cession notice does not make the assignment valid, since the transaction takes effect at the time of completion, but only: a) removes from the new creditor the risk that the debtor will pay the previous creditor (Germany (407 GGU), USA (Art.9 -318 (3) ETC), Austria, Belgium, Netherlands, Switzerland, Czech Republic and Slovakia); b) without notifying the debtor, the security will not be effective against other creditors, including in the framework of bankruptcy proceedings (France and its former colonies, Belgium, Luxembourg, Italy, Chile, Japan (Art.364 CC), Poland (Art.329 CC ), Brazil (article 1069 of the Civil Code), Colombia (article 1959 of the Civil Code), Portugal, South Korea, etc.). In addition, in foreign countries, there are other theoretical explanations for hidden factoring (lien, subrogation, offset) aimed at circumventing the notification requirement.

Undisclosed factoring. Although the buyer is not notified of the replacement of the creditor in the monetary obligation and when discounting invoices, however, in the special literature the term "undisclosed factoring" is applied to a slightly different type of transaction, in which (and this is a difference from discounting) takes on a significant part (usually up to 80% ) the seller's credit risk. In some cases, a factor may not have recourse at all, i.e. accept the seller's risks in full. But unlike full factoring, this type does not provide for any additional services (collection of claims, accounting, etc.) from the factor.

Maturity factoring (German Faelligkeits-Factoring). From the point of view of Russian legislation, this type of operation cannot be considered factoring at all, since the factor does not finance the client. Rather, it is a kind of collection (contract of order) with a number of additional services on the part of the factor, such as protection against "bad debts" (this cannot be called the absence of the right of recourse, since there is no advance payment of proceeds from the factor), collection of claims, accounting services ... Protection against non-payment by buyers can be carried out in various ways, including by insuring the seller's risks.

Seller credit risk insurance can be an essential element of other types of factoring as well. For example, factoring with recourse, complicated by elements of a credit risk insurance contract, practically turns into the equivalent of full factoring (without recourse).

Discounting invoices while insuring risks is approaching undisclosed factoring. In such cases, the factor independently concludes insurance contracts in favor of the seller, pays the insurance premium to the insurer, but at the same time it can demand from the seller the assignment of the beneficiary's rights under the insurance contract. Also, the seller and the factor can jointly insure their risks (act as co-insurers). When insured events occur, a paradoxical situation may arise when (a) the owner of the insurance policy is the supplier, however (b) he has no interest in non-occurrence insured event, since the right of claim against the buyer has been assigned to a factor. Foreign practice in such cases requires the factor to reassign the right of claim to the seller in order for the latter to have the right to sue the buyer on his own behalf. The presence of insurance elements in a factoring operation significantly changes the above classification of factoring types, essentially making their list open.

Different states have developed their own preferences in relation to certain types and types of factoring. So, in Germany, Holland and Belgium the main factoring is non-recourse. As for the last two states, the main reason is economic: domestic markets these countries are small, and local banks act mainly as import factors for their foreign correspondent banks in indirect factoring. In Germany, the prevalence of non-recourse factoring is explained by the specifics of legislation and judicial practice. There, recourse factoring (the volume of which, according to some estimates, is no more than 8%) is considered as a loan secured by the assignment of the right of claim, which makes it impossible for the factor to use a more reliable transfer of title (ownership) to supplied goods as security. In the UK, non-recourse factoring was initially also prevalent, but then the situation changed in the opposite direction. In other European countries, recourse factoring was and remains its main form from the very beginning.

Thus, when regulating the factoring agreement in Russian legislation, the model of a capital-intensive operation was initially chosen, which, by definition, should be a banking one. It is not only the trade or trade-financial model that has been discarded.

Other factoring options based only on the guarantee function of a factor do not fall within the definition of a financing agreement under the assignment of a monetary claim in Russia. In view of the rather narrow wording of Art. 824 of the Civil Code of the Russian Federation do not fall under this definition and some other types of this operation (for example, factoring with the due date of payment, in certain circumstances - import factoring).

CONCLUSION

In conclusion, a number of conclusions can be drawn.

International factoring is a type of factoring operation that provides settlements and service support for financing the supply of goods and services with a deferred payment in conditions when the supplier and buyer are residents of different states. International factoring, in contrast to trade finance operations, is used to work under long-term or indefinite foreign economic contracts, characterized by regular supplies and a tendency to increase turnover.

The legal structure of financing against the assignment of receivables in practice performs a number of functions: raising funds, ensuring the fulfillment of obligations, paying off a debt that previously existed under a loan or overdraft, etc. At the same time, despite such a high functionality of the institution of financing against the assignment of receivables, the scale of its use in domestic commercial turnover is rather small, which is possibly due to the relative novelty of this financial product and the lack of effective legal framework for its practical application.

The situation in the field of regulatory regulation of this type of transactions becomes even more complicated when entrepreneurs, expanding the scope of their activities, enter the international market and identify both numerous legal structures using the mechanism of assignment of rights of claim, and differences in national legal regulation. In these conditions, the transaction costs of the parties associated with high risks in the legal field are often a serious obstacle to the effective application of these transactions in business.

The rights and obligations of the factor and the client in relation to each other, the terms of their relationship are enshrined in the factoring agreement (factoring contract). Relations related to the conclusion and execution of international factoring contracts are governed by the UNIDROIT Convention on International Factoring, signed in Ottawa on May 28, 1988 and entered into force on May 1, 1995.

As you know, the Russian Federation is not a party to either the Convention on International Factoring or the Convention on the Assignment of Receivables in International Trade (the latter, moreover, has not yet entered into force), however, the fundamental provisions of these conventions cannot but be taken into account when interpreting the norms of Russian legislation governing relations related to the assignment of the right of claim, as well as arising from the financing agreement against the assignment of a monetary claim.

The legal forms of factoring agreements used in various states can be reduced to two types of operations that are basic in their economic essence. In the Civil Code of the Russian Federation, the difference between them is most clearly traced in Art. 831, which determines the fate of the amounts received by the factor: factoring by the type of credit operation secured by accounts receivable. The loan is the amount of financing provided by the factor, and the assignment of the claim against the buyer is considered as a way of securing its return. Naturally, this is always recourse factoring, i.e. the seller bears the credit risk; factoring by the type of intermediary operation (purchase and sale of receivables), when the factor buys the right to claim against the buyer (analogy with a bill of exchange). Unlike the previous type of factoring, it is rather not an active, but an intermediary banking operation. The presence or absence of the right of recourse for a factor is determined by the terms of the contract.

Moreover, in both cases, the assignment is one of the elements of the factoring operation.

Thus, the existing legal framework in Russia distinguishes between two types of factoring operations that are heterogeneous in their economic content (financing against the assignment of a monetary claim). This difference is expressed primarily in the degree of risk that the factor bears (the presence or absence of the right of recourse). Also, the size of the proceeds from the debtor can be determined in different ways.

When regulating the factoring agreement in Russian legislation, the model of a capital-intensive operation was initially chosen, which, by definition, should be a banking one. It is not only the trade or trade-financial model that has been discarded.

Other factoring options based only on the guarantee function of a factor do not fall within the definition of a financing agreement under the assignment of a monetary claim in Russia. In view of the rather narrow wording of Art. 824 of the Civil Code of the Russian Federation do not fall under this definition and some other types of this operation (for example, factoring with the due date of payment, in certain circumstances - import factoring).

An analysis of Russian legislation and international treaties devoted to the regulation of factoring agreements (despite the fact that Russia does not participate in them) shows that the views of the Russian legislator do not contradict the accepted international understanding of the essence of the treaty under study. In order to improve the available results of harmonization of domestic legislation, there is now a need to adopt a law based on unifying material norms, dedicated to the substantive regulation of an international factoring agreement with the participation of Russian legal entities and taking into account their interests.

international factoring agreement

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One of the most developed forms of foreign economic activity, reflecting modern trends in economic development, is international factoring. Like financial leasing, factoring is aimed at attracting additional sources of financing to the production and trade sector, being a kind of commercial lending.

Factoring is used primarily in the sale and purchase of goods. In this case, the seller of the goods, without waiting for the fulfillment by the buyer of the obligation to pay the price for the goods, for a fee assigns the right of monetary claim to the bank or other commercial organization (factor), to which the buyer pays the purchase price at the request of the seller. At the same time, the factor provides the seller with other financial services, in particular for accounting, invoicing for cash receipts, studying financial condition debtors, insurance of risks of non-payment.

Legal regulation of a factoring agreement in many industrialized countries is based not on special, but on general rules of law of obligations related to the assignment of a claim (cession), with which factoring has much in common. At the same time, factoring differs from the usual cession, since it is an independent type of entrepreneurial activity associated with the provision of financial services to commercial enterprises that sell goods, works or services.

International legal regulation of factoring

The absence of special rules on factoring in the national legislation of many countries and differences in the practice of using factoring operations have caused the need for international legal regulation of factoring. The result was UNIDROIT Convention on International Factoring, signed in Ottawa on May 28, 1988 (hereinafter in this chapter - the Ottawa Convention) and entered into force on May 1, 1995 for three countries - France, Italy and Nigeria. In the future, other states also became its participants (in particular, Hungary, Italy, Latvia, Ukraine). Russia does not participate in this Convention, however, many of its provisions were adopted in the development of Ch. 43 of the Civil Code of the Russian Federation, regulating the financing agreement on the assignment of the right of claim.

The Convention was adopted simultaneously with the Convention "On International Financial Leasing". In both Conventions, the same approaches were used to address common issues. Thus, the Convention applies in cases where the commercial enterprises of the seller and his debtor are located in different states participating in the Convention. The state of the factor commercial enterprise must also be a participant in it.

The provisions of the Convention also apply if the sales contract concluded between the seller and the buyer (debtor), as well as the factoring contract, are subject to the law of the country participating in the Convention.

However, even in the presence of these conditions, the application of the Convention can be excluded by the factoring parties - both the parties to the factoring agreement (if it is stipulated by them in the factoring agreement), and the parties to the international sale of goods, if it is agreed between them in the agreement in relation to monetary claims, arising after the written notification of the factor of such an exclusion (Art. 3).

Issues related to the subject of regulation of the Convention, which are not directly addressed in it, are subject to resolution in accordance with the general principles on which it is based, and in the absence of such principles - in accordance with the law applicable by virtue of the rules of private international law (conflict of laws rules) (Clause 2, Article 4), etc.

Under the Convention under factoring agreement means an agreement concluded between one party (supplier) and another party (factor), according to which the supplier transfers to the factor the claims arising from contracts for the international sale of goods concluded between the supplier and his debtor (buyer). The subject of the assignment is the claims arising from contracts for the international sale of goods concluded in the field of entrepreneurial activity. In particular, monetary claims arising from transactions for the acquisition of goods for personal, family or household needs (clause 2 of Article 1) cannot be the subject of assignment.

The factor performs at least two of the following functions:

• a) supplier financing, including loan and prepayment;
• b) maintaining accounting records for the amounts due;
• c) presentation of monetary claims for payment;
• d) protection of the supplier's interests in connection with the insolvency of his debtors.

The Convention regulates the so-called "disclosed" factoring, which means that the debtor is obliged to be notified in writing of the assignment of the right of claim. In international practice, "undisclosed" factoring is also used, in which the assignment agreement is not disclosed to the debtor (buyer). In this case, the seller receives from him the purchase price for the goods and credits the received amounts to a separate account, but specifying the factor.

Emphasizing the interdependent nature of factoring relations, the parties to which are the seller, the factor and the buyer of the goods (the debtor), the Convention at the same time considers factoring as an independent obligation. Accordingly, the assignment of the claim may be made despite any agreement between the supplier and his debtor (buyer) prohibiting such an assignment (Article 6).

The Convention defines the procedure for filing claims in the event that some factoring participants fail to fulfill their obligations to other participants. As a general rule, when a factor presents a demand for payment to the debtor, this debtor has the right to use all the remedies specified in the contract against the factor, which he could use if such a demand was presented by the supplier (in particular, to present the factor with counter-claims related to to the quality or quantity of goods) (Art. 9). At the same time, if the payment has already been made by the debtor, but he has not received or received goods that do not comply with the contract, he has the right to present a claim directly to the supplier, without seeking recovery from the factor (Article 10).

The debtor is entitled to bring a claim directly to the factor only in two cases provided for by the Convention. Firstly, if the debtor made payment to the factor, but the factor did not pay the cost of the goods to the supplier and, secondly, if the factor made the payment to the supplier, knowing in advance that the supplier did not fulfill his obligations to the debtor (Article 10).

The unification of the law relating to the assignment of claims for payment obligations, including international factoring, was carried out by UNCITRAL. The result was Convention on the Assignment of Receivables in International Trade, adopted on December 12, 2001 by Resolution 56/81 at the 85th Plenary meeting of the 56th session of the UN General Assembly (the Convention has not entered into force).

In relation to the Ottawa Convention on International Factoring of 1988, the said Convention, if it enters into force, will have priority over any other international agreement which covers the transactions provided for by it (here the Convention does not prevail) (Art. 38).

The Convention applies to assignments of "international receivables" and "international assignments of receivables". In accordance with it, the assignment is international if the assignor and the assignee are located in different states, in turn, the receivable is international if the assignor and the debtor are located in different states. The international nature of an assignment or receivable is determined by the location of the assignor and the assignee or debtor at the time of the conclusion of the assignment agreement.

The subject of regulation of the Convention includes not only factoring, but also all known types of assignment of receivables, including the traditional institution of cession, forfeiting, accounting of invoices, securitization of contractual receivables, asset-backed loans, project financing against future project revenues, etc. ... The assignment can also be a subrogation or a pledged transaction.

The assignment of receivables is also regarded in the Convention as "security for a debt or other obligation", which reflects current international trends in the use of an assignment as a way of securing obligations.

The subject of the assignment is the rights to the amounts due from the debtor (receivables, both "existing" at the time of the conclusion of the contract, and "subsequent", that is, arising after its conclusion), transferred in whole or in part by one person (assignor) to another person (to the assignee). The assignable claims also include accessory rights securing payments under the original contract.

Unlike the Ottawa Convention, the assignment of claims can be carried out not only under a sales contract, but also under other contracts. At the same time, claims arising from grounds other than the contract - "non-contractual" or legal grounds such as claims from tort or claims for refund of tax payments are not covered by the Convention.

It does not apply to the assignment of claims arising from contracts and other transactions in the field of financial services, directly specified in Art. 4 Conventions, which include transactions in the regulated stock market, foreign exchange transactions, term transactions, spot and swap transactions, futures transactions, options transactions, etc.

The receivable is transferred to the assignee regardless of any agreement between the assignor and the debtor limiting the assignor's right to assign its receivable. At the same time, unlike the Ottawa Convention, it allows an assignment both disclosed (i.e. requiring written notification of the debtor about the assignment) and undisclosed.

Of particular interest is the regulation associated with the determination of the priority of receiving receivables (including cases of bankruptcy of the debtor), when several assignees simultaneously have the rights to it. In the annex to the Convention, the States parties are offered a choice of model provisions containing three options for determining the priority of the assignee, with which the states can be associated on the basis of a declaration: providing for the priority of registration of the assignment, the priority of concluding an agreement on the assignment, or notification of the debtor about the assignment.

Along with the substantive regulation, the Convention provided for a general conflict of laws rule, according to which all conflicts related to the issue of the priorities of competing assignees are subject to resolution in accordance with the law of location of the assignor (Article 22).

In ch. V of the Convention contains autonomous conflict-of-laws rules to be applied, unless a decision can be taken in accordance with the principles underlying it.

These conflict of laws can be applied independently of other provisions of the Convention - even in cases where the assignor or debtor is not in a State party to the Convention or when the law of the State party to the Convention is not the law governing the original contract. At the same time, it is necessary that such transactions be of an international nature and would not be excluded from its scope.

Autonomous conflict of laws rules stipulate that the mutual rights and obligations of the assignor and the assignee are governed in accordance with the principle of autonomy of will "by their chosen right" (clause 1 of article 28). In the absence of an agreement between them, the applicable law is determined on the basis of the criterion of the closest connection with the contract (clause 2 of article 28). The relationship between the assignee and the debtor is subject to the law of the country to which the original contract is subject. In accordance with this law, the admissibility of the assignment of the claim, the relationship between the assignee and the debtor, the conditions under which the claim can be brought against the debtor by the assignee, and the question of the proper performance of the obligation by the debtor are determined (Article 29).

It also reproduces the provision according to which the priority of competing assignees is determined in accordance with the law of the state in which the assignor is located (Article 30), etc.

Russian legislation on international factoring (financing against assignment of claims)

In the legislation of the Russian Federation, factoring (known as financing against the assignment of claims) is singled out as an independent type of contract. The substantive regulation of this agreement is contained in Ch. 43 of the Civil Code of the Russian Federation, which adopted many of the provisions of the Ottawa Convention on International Factoring.

The Civil Code of the Russian Federation also has a special conflict of laws rule regulating factoring (financing against the assignment of a right of claim). In accordance with it, the law applicable to the financing agreement against the assignment of the right of claim is determined on the basis of sub. 9 p. 3 art. 1211 of the Civil Code of the Russian Federation, which, in the absence of an agreement between the parties, refers to the law of the country of the financial agent (factor).

The main form of commercial financing is international factoring. The emergence of a factoring agreement is associated with the desire of participants in civil turnover to use an effective system of financial settlements with the help of intermediaries that ensure fast and guaranteed receipt of payments from obligated persons. Factoring agreement aims to regulate mediation in the field of international commercial settlements.

This treaty was formed in the practice of the United States in the 50s of the XX century, and from the end of the 60s it began to be applied in the practice of other countries. At the national level, the factoring agreement is mainly governed by judicial practice... There is practically no special legislative regulation of this agreement.

A factoring agreement is a contract for the provision of intermediary services in the conduct of settlement transactions by the participants in commercial activities, which stipulates certain obligations of the intermediary to provide other services of a commercial nature. This is an agreement between three parties: a supplier of goods or services, a factoring company (factor), a company that purchases goods or services. The supplier is the creditor, i.e. the owner of the rights of claim under the concluded contract (sale and purchase, delivery, etc.). The acquiring firm is the debtor, i.e. the person obliged under this transaction.

The main content of factoring as an intermediary financial transaction is reduced to the factor's satisfaction of the creditor's claims. This is done by collecting money from the debtor on the commercial account of the creditor. The supplier enters into a special agreement with the factor, according to which the rights of claim against the debtor are transferred from the supplier to the factor. The transfer takes place in the form of legal entities. assignment of rights (subrogations).

The factor undertakes to immediately pay the supplier the sums of money according to the documents received from him (commercial invoices). The guarantee of the transfer of funds is provided regardless of the results of their collection from the debtor. From an economic point of view, factoring is the purchase of commercial invoices by a factor with immediate payment.

The factoring agreement is of a framework nature and serves as the basis for the factor's fulfillment of specific orders from the supplier. The contract defines both the general conditions of the relationship between the parties and the mechanism for their implementation. As a rule, there are restrictions on the total amount of transactions, within which the factor is obliged to accept the supplier's order to collect funds from the debtor on commercial accounts.

The terms of the contract are also limited, i.e. the period of such operations (e.g. half a year, a year, etc.). Such restrictions are aimed at minimizing the commercial risks of the factor. For the same purpose, the factor preliminarily, even before the conclusion of the contract, conducts a study of the commercial and financial position of the supplier as a possible counterparty.

Under the factoring agreement, the factor becomes the supplier's monopoly intermediary in carrying out settlement transactions. In the established contractual territory during the term of the contract, the factor has the exclusive right to carry out transactions with clients. The supplier is not entitled to use the services of other factors in the contractual territory; he is obliged to send to the factor all commercial invoices for the concluded transactions.

The factoring agreement contains a condition for the supplier to transfer the rights of claim to a factor (subrogation), a condition on the procedure for accepting individual orders of the supplier by the factor, a condition on opening a current account of the supplier for the factor to transfer funds.

A distinctive feature of the mechanism for conducting factoring operations is that the factor does not undertake a firm obligation to accept for execution all orders of the counterparty. The factor can accept or reject the offer in relation to any specific invoice issued to any debtor. Acceptance of the order by the factor represents not only consent to its execution and immediate payment when registering the assignment of rights, but also a guarantee of payment on the account.

The collection of funds from the debtor on the account in many cases can be fraught with serious difficulties and even be impossible. In such cases, the factor has the right not to approve the instructions, but this excludes the possibility of carrying out a settlement operation. With the consent of the supplier, the factor conducts such an operation, but with the transfer of funds only after the debtor has paid the invoice and without providing a guarantee of payment. In such a situation, the settlement operation has the character of an ordinary order agreement.

The essence of international factoring is that the financial corporation relieves the exporter from the financial burden of the export transaction, in particular from the collection of the purchase price due from foreign buyers. That. the exporter can fully concentrate on his direct sales and marketing of goods.

This achieves the separation of functions: export, including the dispatch of goods, paperwork and transfer of transport documents are performed by the exporter (seller), but crediting within the established limits is the responsibility of the factor. The goal of factoring is to achieve an optimal international division of labor.

The financial corporation (factor) acts as an intermediary. The value of international factoring as an intermediary financial transaction lies in the satisfaction of the factor of the rights of the creditor's claims at the expense of the amounts collected from the debtor on the commercial account of the creditor. International factoring makes it easier to get cash in export transactions and provides protection from bad debts. Types of factoring: disclosed (assignment to a factor of the exporter's right to demand payment of the purchase price) and undisclosed (discounting of invoices).

The disclosed factoring is based on the assignment to a factor as the assignee of the right to claim payment of the purchase price belonging to the exporter. The assignment of the right of claim is made in writing, signed by the assignor (exporter) and a special written notification is brought to the attention of the debtor (foreign buyer). The assignment of the right of claim must be absolute, i.e. full (and not partial) so that the debtor does not have to deal with several creditors.

Undisclosed factoring (discounting of invoices, i.e. redemption of invoices at a discount) is the most common type of international factoring. Implementation in a form based on the right of fairness of the assignment (assignment of a claim in an obligation to another person). This agreement does not disclose the factoring arrangement to the foreign buyer and pays the purchase price to the exporter.

The exporter receives the price as the trustee of the factor and must transfer the funds received to a special account indicated by the factor. Violation of the terms of the agreement (transfer of funds to the account of the supplier, not a factor) constitutes an offense of appropriation of movable things. The payment must be returned to the factor.

At the international level, this method of financing is regulated in the Ottawa Convention on International Factoring of 1988. The Convention applies if debt claims assigned under a factoring agreement arose from an agreement of purchase and sale by a supplier (seller) and a debtor (buyer) , whose commercial enterprises are located on the territory of different states. In addition, the states, on the territory of which the enterprises of the supplier, the debtor and the factor are located, must be parties to the Convention. The provisions of the Convention also apply if the purchase and sale agreement and the factoring agreement are governed by the law of the state parties.

For the purposes of the Convention, a factoring agreement must meet certain conditions:

The supplier can or wishes to assign to the factor the rights of claim that arose from the sales contracts concluded by the supplier with his buyers (debtors). Contracts for the sale of goods purchased for personal, family or household use are excluded from the scope of the Convention.

The factor must perform at least two of the listed functions: supplier financing, including loans and advance payments; accounting (ledgering) related to debt claims; debt collection; protection from non-payment by the debtor.

The norms of the Convention are of a dispositive nature - they are mandatory for application only if the parties have not agreed on other legal regulation. The Convention applies to both disclosed and undisclosed factoring.

The Russian legislation does not contain provisions on a factoring agreement, and Russia also does not participate in the Ottawa Convention on International Factoring. The relationship underlying factoring, from the point of view of the Civil Code of the Russian Federation, is a transaction of assignment of rights. This transaction is governed by the provisions of Chapter 24.1 of the Civil Code "Transfer of the rights of the creditor to another person." The provisions of this chapter apply both to the assignment of rights that have only an internal, "Russian character", and to international civil legal relations, if the place of residence or main place of business of the financial agent is located on the territory of the Russian Federation.

Article 1211 of the Civil Code of the Russian Federation refers to a financing agreement against the assignment of a monetary claim. The central party to this agreement is the financial agent. Many Russian scientists note the urgent need to consolidate the special legal regulation of the factoring agreement in the Russian legislation.

Forfaiting is a kind of factoring. Factoring is primarily used to service transactions involving consumer goods, while forfeiting is used to service transactions involving machinery and equipment. The period for payment of obligations by the buyer for factoring is 3-6 months, and for forfaiting - 0.5 - 5 years. The factor does not assume any risks in the transaction, and forfeit takes all the risks. The size of the discount for factoring is 10-12%, but for forfaiting - 25-30%. The factor has no right to transfer monetary obligations to third parties, and the forfeit has such a right.

39. Rent in MPP: concept, types, conflict regulation.

Rent (Latin for rent) is a type of entrepreneurial activity in which the owner of the property (lessor) for the purpose of making a profit transfers it into temporary possession and use, or only for use by another person (lessor) for an agreed rent.

Unlike a sale and purchase agreement, which transfers ownership of the goods from the seller to the buyer, a lease retains the lessor's ownership of the leased item, giving the lessee only the right to temporarily own and use it.

International rental operations involve the leasing of goods that cross the border of the landlord's country. An international transaction in which a lessor purchases a leased item from a national firm and leases it to a foreign lessee is considered an export lease transaction. A lease operation in which a lessor acquires a leased item from a foreign firm and provides it to a domestic lessee is considered an import lease operation.

A characteristic feature of both the international lease and the international lease operation is the participation in it of either the lessor and the lessee located in different countries, or the lessor and manufacturer of the leased item in different countries. In some cases, all three participants in a rental operation may be located in different countries.

Subjects of m / international lease, as a rule, are:

consumer goods, office and printing equipment, computing and information processing equipment, vehicles, material handling and road construction equipment, general industrial equipment, stationary equipment and equipment of complete enterprises, fully equipped and ready for use (combination of real estate lease and industrial equipment), used equipment or equipment sold “on the occasion”.

In international practice, depending on the terms or duration, three types of lease are distinguished:

Long-term - with the provision of goods for rent for a period of 3 to 5 years, and for some types of equipment up to 15-20 years. This type of lease is called "leasing" (English to lease - to lease).

Medium-term - involves the leasing of goods for a period of 1 to 2-3 years and is called "highing".

Short-term - duration from several hours, days, months to 1 year. In most countries, this type of lease is called "renting", and in Japan - "charter".

Classic lease differs from the currently widespread modification of lease - leasing - in the following characteristics:

Unlike the lessee, the lessee, as a rule, assumes some responsibilities related to the ownership (risk of accidental death, maintenance), and pays not a monthly fee for the right to use, but the full amount of depreciation deductions.

The lessor is fully responsible for the quality of the leased property, while the lessor often assigns to the lessee his right to file complaints with the manufacturer (supplier) of the property.

In the case of leasing, unlike leasing, the lessor does not have the right to early terminate the contract on its own initiative.

When calculating for a lease, the amount of payments mainly depends on the market situation, while in leasing the purchase price of the object, the lease term, the residual value of the equipment and the cost of the loan are taken into account.

Lease, as a rule, provides for the lease of temporary use of the property already owned, while leasing mostly implies the acquisition of ownership of the property at the request and direction of the lessee for the purpose of its subsequent lease.

In many countries, depending on the content and methods of implementation, international lease is divided into two types:

operational (current) (operating lease) and

finance lease (lease).

Operating (current) lease involves the leasing of goods previously purchased by the lessor for a specified period for the rent specified in the lease or on the basis of list rental rates.

After expiration the deadline the tenant is obliged to return the leased item. The purpose of an operational lease is to meet the temporary needs of the tenant for the leased property. This can be a one-time or seasonal use of airplanes, ships, construction equipment or the current use of standard industrial equipment for specific orders (machine tools, motors, motors, etc.). The term of the lease agreement for current leasing operations can range from 2-3 years to 10 years, after which the lessee returns the leased item to the lessor. The risk of damage or loss of property lies with the lessor, he also carries out maintenance, current repairs, etc.

In current leases, rental rates are usually higher than in financial ones, since the lessor assumes a number of risks: commercial, obsolescence of equipment, reduced profitability and other direct and indirect non-productive costs (repairs, downtime, etc.).

Financial lease (leasing) means that a leasing company, acting as a lessor, pays the full cost of movable or immovable property, most often, equipment ordered by a company interested in renting from a specific supplier. The lessee uses this equipment under the terms of a lease agreement concluded with a leasing company (lessor), as a rule, for a long period, close to the payback period of the equipment (depreciation of the full or most of the cost of the equipment).

Upon expiration of the lease agreement, the lessee may renew the agreement; conclude a new lease agreement; return the leased item to the lessor; buy it from the landlord at the residual value.

In essence, a finance lease is a form of long-term lending by a leasing company to a consumer (user) of equipment, which repays the cost of the equipment and reimburses the services of the lessor, including financing fees, by paying rent payments.

Thus, the leasing company concludes two contracts: a leasing contract with a tenant company and a purchase and sale contract with an equipment supplier.

The leasing company is not responsible for the uninterrupted operation of the equipment and does not provide any guarantees. The lessee carries out maintenance and repair of the equipment at his own expense. The risk of loss or damage to the equipment remains with the lessor as the owner of the leased item.

In accordance with Art. 1211 GKRF on the territory of Russia, these legal relations are regulated by agreement of the parties. In the absence of this agreement, the law of the country with which the agreement is most closely associated shall apply to the agreement. The law of the country with which the contract is most closely related is considered, unless otherwise follows from the law, the conditions or the essence of the contract or the totality of the circumstances of the case, the law of the country where the place of residence or main place of business of the party that carries out the performance is considered, which is decisive for the content contract.

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As you can see, the functions of the factor are understood abroad somewhat more broadly, and financing is not the only one of them. Moreover, the purchase of debt can be carried out not so much for the purpose of financing, but for the purpose of protecting the seller from non-payment.

This conclusion is even more confirmed if we turn to the international legal acts regulating the conduct of factoring operations. So, the Ottawa UNIDROIT Convention on International Factoring of 1988 defines (Article 1) a factoring agreement as follows. As already mentioned, in order for an operation to be governed by this Convention, four conditions must be present simultaneously:

a) the supplier transfers or undertakes to transfer in the future the rights of claim arising from contracts of sale or paid provision of services;

b) the above transaction is commercial, not consumer in nature;

c) debtors (i.e. buyers) are notified of the assignment of rights to a factor;

d) the factor performs at least two of the following four functions: financing of suppliers, including loans and advance payments; accounting for suppliers; collection of debts; protection against non-payment by debtors.

At first glance, the concept of a factoring agreement in the 1988 UNIDROIT Ottawa Convention is formulated very narrowly, excluding, in particular, hidden factoring, as well as the so-called discounting of invoices. But the minimum combinations of the duties of a factor in accordance with the fourth condition raise doubts about this.

In particular, it makes it possible to classify as factoring an operation that does not provide for either financing or protection of the seller from “bad debts”.

The second UN international convention on the assignment of receivables in international trade, developed by UNCITRAL and adopted in 2001, covers an even wider range of transactions, one of which is the assignment.

In fact, factoring is only one of the possible options for assigning a claim. Among others, UNCITRAL materials mention forfeiting, securitization, project financing, refinancing, etc.

However, it is important to note that neither funding nor notification of the debtor is a prerequisite for such transactions.

As for the Russian model of factoring (more precisely, its only kind - “financing against the assignment of a monetary claim”), it is structured rather narrowly: the payment of a sum of money to the creditor (ie financing) is the essence of the factor's obligation.

The guarantee function of a factor in the absence of the right of recourse is also assumed, but only in addition to financing.

Any other functions of the factor in Russian legislation are not regulated, but only mentioned (clause 2 of article 824 of the Civil Code of the Russian Federation Civil Code of the Russian Federation. Part two: Federal Law No. 14-FZ of January 26, 1996 // Rossiyskaya Gazeta. 1996. February 6-10. Talks about accounting, as well as the provision of other financial services).

Although you can immediately notice that some of the functions of a factor that exist abroad, for example, accounting, can be objectively hardly correlated with domestic realities.

In view of the existing system of tax and financial control, it is very difficult to imagine, for example, that primary accounting documents will be permanently kept not by the supplier organization itself, but by the factor.

Sometimes it is this that becomes an obstacle to the peaceful resolution of a dispute. Determination of the Supreme Arbitration Court of the Russian Federation No. VAS-17363/11 in case No. A19-16216 / 10-17 dated January 10, 2012 [Electronic resource]: Access from the reference legal system "ConsultantPlus" ( date of treatment 05/15/2013).

In addition, the factor, the so-called import factoring (when the factor acts in the interest of the debtor, providing him with a deferral, making an immediate payment in favor of the non-resident creditor), cannot be considered financing against the assignment of a monetary claim in Russian law if a contractual relationship arises between a bank factor and resident importer.

To explain the legal nature of factoring in different countries, different traditional or nationally based constructions are used.

So, in Germany, in the literature and judicial practice, factoring is considered as a contract of sale and purchase of the client's right of claim S. Ovseiko. Factoring: a comparative analysis of Russian, foreign and international legislation and practice // Foreign trade law. 2007. No. 1. S. 17.. In support of this position, references are made to 437 of the German Civil Code (GSU). However, this concept has two options. The first considers only non-recourse factoring as a type of sales contract, while recourse factoring is considered a credit operation. The second extends this legal structure to factoring with the right of recourse, which is considered an agreement additional to the purchase and sale agreement.

In the United States, factoring also qualifies as the purchase of a customer receivable factor. The legal principles related to factoring are embodied in sect. 9 US ETK concerning a security interest. The definition of "security interest" in Art. 1-201 (37) ETC covers, among other things, the buyer's accounts, which are subordinated to Sec. 9. According to the provisions of this section, to conclude a factoring agreement, it is necessary: ​​a) to sign a written "security contract" (ie, a factoring agreement); b) providing the client with the agreed value of the assigned proceeds; c) preparation of a proper financial statement (i.e. registration) for the factor to enter into the rights of the creditor on the assigned claim.

However, the US ETK has Art. 9-504 (2), very similar in content to Art. 831 of the Civil Code of the Russian Federation. According to it, when levying collection on a receivable, the creditor (i.e. the factor) is obliged to return the surplus of the proceeds, and the debtor (i.e. the seller) is responsible for the arrears. But if the main transaction was the sale of payments due, then the debtor has the right to surplus and is responsible for arrears, if only this is provided for by the contract. All this allows us to conclude that in the USA, as well as in Germany, there are two options for factoring operations.

There is one more rule in the US ETK (Art. 9-318 (4)), which invalidates the clause in the agreement between the debtor and the creditor (i.e. the seller and the buyer), which prohibits the assignment of the debtor's right of claim, very reminiscent of Art. 828 of the Civil Code of the Russian Federation. Although this norm has got into Russian legislation, most likely, not directly from the American, but through Art. 6 of the 1988 UNIDROIT Ottawa Convention.

In the vast majority of cases, factoring is also considered as a purchase and sale requirement in England. But at the same time, the principles of assignment are applied to the relationship of the factor and the supplier with the payer.

If a legal assignment is applied, it is obligatory to notify the debtor of the completed assignment. However, this requirement does not apply to another type of assignment - equitable assignment, which, along with other constructions, is used in English law to justify closed factoring Ovseiko S. Factoring: a comparative analysis of Russian, foreign and international legislation and practice // Foreign Trade Law. 2007. No. 1. P. 21.

But it has one significant drawback: the assignee (i.e. the subsequent creditor, factor) gets a weaker position, since subsequent legal assignment takes precedence over equitable assignment. At the same time, closed factoring based on equitable assignment always allows the right of recourse of the factor to the client.

There is one more nuance between the two types of cession in English law: the factor in legal assignment has the right to bring a claim to the buyer in case of non-payment, whereas in the case of equitable assignment, he has the right to do this only in conjunction with the seller Pokamestov I.E. services // Bank lending. 2011. No. 6. P. 81.

True, sometimes (we are talking primarily about discounting invoices without additional services or guarantees), English specialists qualify factoring as a loan secured by receivables.

Other, more unusual, factoring options can also be used, for example, when the factor directly becomes a party to the contract between the seller and the buyer (sale, purchase, contract, etc.), bearing the corresponding obligations on it to the buyer.

In English practice, such operations are clothed in the legal form of a tripartite agreement on innovation. Or the factor, having no recourse to the seller as security, becomes the title owner of the supplied goods.

The advantage of formulating a factoring agreement in England as a sale-and-purchase agreement is that there is no need to register collateral, observe the procedure for levying a claim on it in case of non-payment, and withhold tax from the amount of payment.

The advantages of a secured loan are bypassing the prohibition of assignment clause in the agreement between the seller and the buyer, and in addition, stamp duty is not paid.

The legislation of Belgium and France Pokamestov I.E. Legal relations of factoring in Russia and abroad // Legal work in a credit institution. 2011. No. 2.P. 108. Thus, in Belgium, since 1958, a simplified procedure for the transfer of receivables by endorsing a copy of an invoice has been allowed. True, such an opportunity is provided only to banks and other credit institutions acting as factors. Otherwise, the requirements for the procedure for notifying the debtor of the assignment become much more complicated. This requires a judicial act on the basis of Art. 1690 Civil Code or notification of the debtor by registered mail containing a special clause. True, judicial practice significantly relaxes these requirements. For factoring, the general rules of civil law regarding cession apply, according to which the original creditor (assignor) guarantees the validity of the assigned claim. In the event that the supplier fails to fulfill its obligations, the payer has the right to demand the amounts paid back from him, and not from the factor.

It should be noted that the ability to endorse a copy of an invoice is a feature of Belgian law. In other countries, the mark on the invoice about the assignment of the right of claim does not have the nature of a transaction, but rather serves the purposes of accounting and possible evidence. An invoice (invoice) in most countries is not considered either as a document of title or as a security containing an unconditional monetary claim. Buyer's counterclaims can significantly reduce the invoiced claim amount.

In France, the concept of subrogation is usually applied to factoring, which is a kind of entering into an obligation by a third party, which, unlike cession (a) arises directly from the law and (b) provides for the transfer of the claim only in the amount paid to the creditor I.E. Pokamestov. Legal relations of factoring in Russia and abroad // Legal work in a credit institution. 2011. No. 2.P. 112. Immediately, we note that for the realities of Russian legislation, when explaining the legal nature of factoring, subrogation can hardly be used: the Civil Code of the Russian Federation provides for only one case of using subrogation - the transition to the insurer of the insurer's rights to compensation for damage (Article 965).

But in France there is also a specific form of factoring associated with the use of the so-called Bordero Daili, regulated by Law No. 81-1 of 1981. In practice, this is an ordinary register of bills, with a standard set of rights and obligations of the parties for endorsement. There is also a form of factoring in French practice with the due date of payment, when the right of claim is not assigned to a factor, but only documents are transferred for collection to collect the amount of debt from the buyer.

In Poland, they sometimes try to explain factoring through the legal constructions of delegation (przekaz) and cession, and the right of recourse - del credere. However, it is noted that the key point for determining the legal nature of factoring is the presence or absence of a guarantee function. Therefore, the dominant point of view is that factoring is still an unnamed type of contract, the content of which the parties have the right to determine independently.

In Israel, factoring is also not regulated by special legislation, and in one of the decisions of the Supreme Court when considering the agreement, which was presented by the creditor as factoring, it was indicated that the title of the agreement did not oblige the court to draw categorical conclusions. Factoring in Israel, as well as in other common law countries, is treated as an assignment of a claim. The provisions of the 1961 Assignment of Obligations Act apply to it, in accordance with Art. 2 which the debtor may apply against the assignee all the remedies that may be applied against the assignor.

In Denmark, factoring refers to the various types of transactions between a supplier and a factor, during which the factor buys or accepts as collateral the customer's claims expressed in the invoice.

In Italy, factoring is generally considered not a financial, but an insurance operation, since here the factor usually does not advance the receipt of proceeds by the supplier, but makes payment only upon the due date of payment by the debtor. That is, the factor only assumes the risk of non-payment on the part of the payer (factoring with the due date of payment). Factoring relations are regulated in Italy by scattered regulations. One of them is Law No. 52 of February 21, 1991, which applies to the transactions of the parties who are entrepreneurs, and the factor must meet the capital adequacy requirements (at least 10 times the size required for joint stock companies). If the factor and the supplier do not meet these requirements, then their relationship is regulated by the Civil Code.

In Finland, the Contracts Act applies to supplier-factor relations, and the Promissory Note Act and the principles of pledge of claims apply to relations with third parties. According to them, the assignment of a claim to a factor: 1) becomes valid when the debtor learns about it; 2) does not provide the assignee with a better legal title than the assignor. At the moment when the debtor receives the invoices and information about the assignment, he is obliged to make payment to the factor who is considered the pledgee of the proceeds in order to secure the return of the advance payment made by him to the supplier (Supreme Court decision, 1982 II 77). The peculiarity of factoring in Finland is that the supplier is liable to the factor for the insolvency of the debtor.

With regard to international conventions, when the 2001 UN Convention was developed, its effect was supposed to extend to the assignment of a claim through sale and purchase, as security or in any other way, including subrogation, novation or pledge of receivables.

Thus, the legal forms of the factoring agreement used in various states (apart from those that use too peculiar legal technique due to the specifics of national legislation) can be reduced to two types of operations that are basic in their economic essence. In the Civil Code of the Russian Federation, the difference between them is most clearly traced in Art. 831, which determines the fate of the amounts received by the factor:

1) factoring by the type of credit transaction secured by receivables. The loan is the amount of financing provided by the factor, and the assignment of the claim against the buyer is considered as a way of securing its return. Naturally, this is always recourse factoring, i.e. the seller bears the credit risk;

2) factoring by the type of intermediary operation (purchase and sale of receivables), when the factor buys the right to claim against the buyer (analogy with a bill of exchange). Unlike the previous type of factoring, it is rather not an active, but an intermediary banking operation. The presence or absence of a factor of the right of recourse is determined by the terms of the contract S.V. Nikolyukin. Legal support of factoring in foreign trade // Foreign trade law. 2011. No. 1. S. 5..

Moreover, in both cases, the assignment is one of the elements of the factoring operation.

Thus, the existing legal framework in Russia distinguishes between two types of factoring operations that are not homogeneous in their economic content (financing against the assignment of a monetary claim) T.V. Sudareva. Factoring in Russia: the present and the future // Financial Bulletin: finance, taxes, insurance, accounting. 2010. No. 3.P. 35. This difference is expressed primarily in the degree of risk that the factor bears (the presence or absence of the right of recourse).

Also, the size of the proceeds from the debtor can be determined in different ways.

1.4 Features of the choice of law applicable to the international factoring agreement

One of the traditional provisions of the Russian doctrine of private international law is the thesis that private legal relations acquire the quality of the so-called international (transboundary) character when a “foreign element” appears in their composition Boguslavsky M.M. Private International Law: Textbook. 5th ed., Rev. and add. M .: Jurist, 2005.S. 187.

It is also an integral part of a foreign economic transaction (including factoring), and its significance is great due to the fact that it is he who gives the investigated relations “a new essential quality, giving rise to the need for special methods and means of legal regulation” Dmitrieva G.K. International private law. M., 2010.S. 11.

The modern doctrine of private international law does not contain a definition of a foreign element as an independent phenomenon.

However, traditionally, the existence of three general groups of a foreign element is indicated, which are identified by the criterion of belonging of the studied foreign element to a certain structural link of the legal relationship. Boguslavsky, B.M. Gongalo, P.V. Krasheninnikov and others; ed. P.V. Krasheninnikov. M .: Statut, 2010.S. 119.

In this regard, it seems possible to single out the foreign element related to the object of the legal relationship, to the subjects of the legal relationship and directly to significant legal facts, as a result of which private factoring relationships arise, change or terminate.

The parties to the agreement can choose the law applicable to the agreement (Article 1210 of the Civil Code of the Russian Federation).

In clauses 1 - 4 of Art. 1210 of the Civil Code of the Russian Federation, the term “law” was used, not “legislation” or “law of the country”. “This allows the parties to choose as a substantive statute not only national legislation, but also a system of law that has a supranational character, for example, the law of the European Union” Commentary on the Civil Code of the Russian Federation. Part three: educational and practical commentary (article by article) / E.N. Abramova, N.N. Averchenko, V.V. Grachev and others; ed. A.P. Sergeeva. Moscow: Prospect, 2011.S. 87.

Often, the parties do not refer to the legal system of any political entity, but to lex mercatoria - transnational customary trade law, UNIDROIT Principles of International Commercial Contracts 2004, Uniform Rules and Customs for Documentary Credit, etc.

For the purposes of this norm, international conventions that have not entered into force, their drafts, modal laws, drafts of national normative acts, etc. can be classified as law.

It should be noted that state courts to this day are reluctant to accept the choice of non-state instruments as applicable law. International commercial arbitration is a suitable forum for testing the effectiveness of such experiments in the autonomy of the will of the parties.

The choice of law should be distinguished from a prophetic clause - an agreement on the choice of a forum for resolving disputes. The choice of the court in itself does not mean the choice of the law of the country of the court, although in some cases it influences the choice of the conflict of laws rules that will be guided by the court.

The indication of the parties to the law or system of law of any state, as a general rule, should be interpreted as directly referring to the substantive law of this state, and not to its conflict of laws rules. Let us allow the choice of substantive law by reference to conflict of laws rules, with the help of which the applicable law should be established, or the general conditions of transactions of the corresponding type, containing unified provisions on applicable law.

Conditions on the choice of applicable law, which do not allow the actual will of the parties to be determined, in judicial and arbitration practice are qualified as the absence of an agreement between the parties on the applicable law. “The debatable question remains whether the expression of will, aimed at the application of general principles of law and (or) justice, is sufficient to recognize the choice of law as valid. There are many examples when the parties indicate “general principles of law”, “generally recognized norms and rules of international trade” as substantive law (lex contractus). As a rule, state courts have a negative attitude to such agreements ”Ibid. P. 89. They are not recognized as choice of law agreements that preclude the application of conflict of laws rules by the court.

We also admit the choice of law "as of ... (date of the contract, performance of the obligation, etc.)", i.e. the parties can stabilize, "freeze" the applicable law; however, the autonomy of the will of the parties in this case is limited by the principles set forth in paragraph 2 of Art. 422 of the Civil Code of the Russian Federation.

According to the chosen law, both actions aimed at changing and terminating obligations, and events entailing such consequences should be qualified. The agreement of the parties on the choice of law continues to operate even after the termination of the contract (refusal from it, termination), unless the parties themselves have established otherwise.

The recognition of the main contract as invalid does not in itself entail the invalidity of the agreement on the choice of law. This right may apply, in particular, to the determination of the legal consequences of the invalidity of the contract.

However, the general provisions on validity (invalidity) apply to agreements on applicable law.

The choice of the parties is obligatory for the court, the arbitration court, which resolves the dispute in accordance with the rules of law that the parties have chosen as applicable to the merits of the dispute, in accordance with the terms of the contract and taking into account the commercial customs applicable to this transaction. According to a number of researchers, for the validity of this agreement does not require mandatory compliance with the written form - it can be concluded orally.

In states with a plurality of legal systems, issues of private law may relate to the jurisdiction of territorial public law entities. For example, in an applicable law clause, it is correct to indicate "the law of England" or "the state of New York", it is incorrect - "Great Britain" or "the United States". Moreover, in common law countries, local courts may take different positions on particular enforcement issues, following their precedents. Therefore, the following clause would be correct: "... governed by the law of England, as applied by the High Court of London." If such a choice is not made, one should be guided by Art. 1188 of the Civil Code of the Russian Federation "Application of the law of a country with a plurality of legal systems."

The parties can make a choice of the applicable law after the occurrence of the corresponding legal relationship (the transaction), and this choice is valid from the moment of the conclusion of the contract. By virtue of clause 3, the parties can not only make a choice of law in the absence of such, but also change the previously made choice.

Similar provisions may apply to non-contractual obligations.

If the contract specifies "the law of the Russian Federation" as the applicable law, the international treaties of the Russian Federation and subsidiary legislation of the Russian Federation are applied to the relations of the parties (Resolution of the ICAC at the RF CCI dated March 12, 2008 No. 64/2007 Resolution of the ICAC at the CCI RF of March 12, 2008 in case No. 64/2007 [Electronic resource]: Access from the reference legal system "ConsultantPlus" (date of treatment 05/15/2013), decision of the ICAC at the RF Chamber of Commerce and Industry of December 17, 2007 No. 35/2007 MKAS satisfied the plaintiff's claim to recover funds, since the defendant violated the terms of payment for the goods delivered under the contract: Decision of the ICAC at the RF CCI dated December 17, 2007 in case No. 35/2007 [Electronic resource]: Access from the ConsultantPlus reference legal system (date of access 15.05.2013)). A different interpretation is possible in case of reference to the legislation of the Russian Federation - in law enforcement practice, such a provision is often interpreted as the intention of the parties to subordinate the transaction to the national legal regime, which excludes the application of international treaties as part of the legal system of Russia.

The choice of law by the parties to the obligation takes precedence over the general rule of Art. 1206 of the Civil Code of the Russian Federation, which should be guided when choosing a law between persons who are not bound by an obligation relationship. The applicable law also resolves issues of ownership and other property rights - their presence, loss, transfer between the parties to the transaction. However, the emergence or termination of real rights by virtue of the application of the law chosen by the parties does not affect the property claims of third parties. Third parties are understood as entities that are not parties to the contract, who, nevertheless, can claim their rights to movable property.

If the parties have chosen the applicable law only for certain parts of the transaction, but not for others, and also if the applicable system of law does not include regulation on specific issues (such a situation is not excluded with the clause on the choice of "general principles of law" or lex mercatoria), applicable to such aspects of the transaction, the rules of law should be selected according to the rules of Art. 1211 of the Civil Code of the Russian Federation.

For modern private international law in the field of obligations, it is characteristic, when defining such a right, to use as a general principle of application of the law of the country with which a particular treaty is most closely connected.

The current Russian legislation proceeds from the principle of the closest connection of the treaty with the law of a particular country. Private International Law: textbook: in 2 volumes / A.I. Abdullin, N.M. Artemieva, D.V. Afanasyev and others; ed. S.N. Lebedeva, E.V. Kabatova. M .: Statut, 2011.Vol. 1: General part. S. 218. The fundamental provisions that reveal the content of this principle are contained in Art. 1211 of the Civil Code of the Russian Federation.

This article consists of six paragraphs, which contain the most important provisions regarding the application of conflict of laws rules in the field of contract law. Clauses 1 and 2 of this article provide for the following:

"one. In the absence of an agreement between the parties on the applicable law, the law of the country with which the contract is most closely connected shall apply to the contract.

2. The law of the country with which the contract is most closely connected is considered, unless otherwise follows from the law, the conditions or the essence of the contract or the totality of the circumstances of the case, the law of the country where the place of residence or main place of business of the party that carries out the performance is considered. for the content of the contract. "

Thus, the main criterion for determining the country with which the international factoring agreement is most closely related is the place of residence or main place of business of the party that carries out the performance, which is decisive for the content of the agreement. IN. Bandurina, A.V. Demkina, L.G. Efimova and others; ed. P.V. Krasheninnikov. M: Statut, 2011.S. 134.

The place of residence of a citizen under Russian law is the place where the citizen permanently or predominantly resides (Article 20 of the Civil Code of the Russian Federation). The establishment of this place, of course, depends primarily on the factual circumstances.

In the event that an enterprise is located on the territory of several states, the place where the most significant part of this activity is concentrated should be considered the main place of its activity. It is important to emphasize that the place of business of an enterprise does not have to coincide with the location of a legal entity. Certain types of obligations in private international law / N.G. Doronin, V.A. Egiazarov, V.P. Zvekov and others; ed. V.P. Zvekov. M .: Statut, 2008.S. 244.

All collision links provided for in Art. 1211 of the Civil Code of the Russian Federation, are subject to application, unless otherwise follows from the law, the conditions or the essence of the contract or the totality of the circumstances of the case. Thus, the dispositive nature of these provisions is emphasized.

In accordance with paragraph 3 of Art. 1211 of the Civil Code of the Russian Federation "the party that carries out the performance, which is decisive for the content of the contract, is recognized, unless otherwise follows from the law, the terms or the essence of the contract or the totality of the circumstances of the case, the party that is, in particular: the financial agent - in the financing agreement on assignment monetary claim (clauses 9).

This rule plays a subsidiary role, since the main meaning of Art. 1211 of the Civil Code of the Russian Federation should always have the principle of applying the law of the country with which the agreement is most closely connected.

2. CONTENT OF THE INTERNATIONAL FACTORING AGREEMENT

2.1 Rights and obligations of a financial agent

According to paragraphs. "B" paragraph 2 of Art. 1 of the 1988 Convention, the responsibilities of a financial agent include financing the supplier, including a loan and prepayment, keeping records (of books) for amounts due, filing monetary claims and protecting the supplier from insolvency of debtors.

Since the main obligation of the financial agent under the contract is the transfer of funds, it can be noted that the parties are given the right to independently (but within the limits allowed by national legal systems) set the amount and mode of providing funds. In practice, the payment can be either a one-time amount or be divided into several parts.

Based on the meaning of pp. "B" paragraph 2 of Art. 1 of the 1988 unifying Convention, the very fact of financing is a mandatory, but not the only possible obligation of a financial agent. On the basis of a factoring agreement, a financial agent can provide a client with a number of financial services.

Some authors note that the implementation of financing along with the provision of financial services is usually used with full customer service from the financial agent Sholomova E.V. Legal regulation of the factoring agreement // Trade: accounting and taxation. 2011. No. 3.P. 48. Unfortunately, the negative aspect of such cooperation is the detailed awareness of the financial agent about the client's activities. This is primarily related to the provision of accounting services, control of payment of invoices and consulting the client. Here you can cite as an example paragraph 2 of Art. 824 of the Civil Code of the Russian Federation, according to which the provision of financial services is limited to their connection with the monetary claims that are the subject of the assignment. However, in the case of a comprehensive service in the sense of the 1988 Convention, all existing claims are assigned to the financial agent, as a result of which the information of a commercial nature is legally available to a third party (i.e. the financial agent).

Due to the peculiarities of the conditions for concluding factoring agreements in Russia, it is necessary to dwell on such a duty of a financial agent as protecting a supplier from insolvency of debtors.

Today, considering the range of responsibilities of a financial agent, and dwelling in detail on checking the solvency of the debtor, one should mention the Federal Law No. 218-FZ of December 30, 2004 "On Credit Histories" On credit histories: Federal Law No. 218-FZ of December 30, 2004 / / Russian newspaper. 2005.13 January. ... This law defines the concept and composition of credit history, the grounds, the procedure for the formation, storage and use of credit histories, regulates the activities of the credit history bureaus, establishes the features of the creation, liquidation and reorganization of the credit history bureau, and also, which is of significant interest to us, determines the principles of their interaction with sources of formation of credit history, borrowers, government bodies, local authorities and the Bank of Russia (Article 1).

From the moment the new law enters into force, all information about bona fide and unscrupulous borrowers (including foreign ones) will be compulsorily collected in commercial organizations - the Bureau of Credit Histories. The said law makes the Central Bank of Russia obliged to maintain the Central Catalog of Credit Histories, which will help determine which particular credit bureau stores the required credit history. The bank (i.e. the financial agent), having made a request to the Central Bank, will be able to easily find it.

The Law "On Credit Histories" is interesting in the study of relations arising in cross-border factoring, because for the first time it introduces and determines the meaning of many concepts that have long been used in many countries in connection with the implementation of international factoring business, and, to a certain extent, changes the volume obligations (hence, the content of the transaction itself) Prikhodko A.A. International factoring agreement in private international law: diss. Cand. jurid. sciences. M., 2005.S. 179. So, in Art. 3, the law uses the concept of "credit history", by which it is proposed to understand information, the composition of which is determined by the Federal Law itself and which characterizes the performance by the borrower of the obligations assumed under the loan (credit) agreements and is stored in the credit history bureau.

This law does not contain provisions on factoring contracts and their participants. It should be pointed out, however, that in accordance with the already mentioned Art. 3 under a loan (credit) agreement in the sense of this law is understood not only the loan agreement itself, the loan agreement, but also other agreements containing the condition for the provision of a commodity and (or) commercial loan. A factoring contract has such a feature as the provision of a merchant credit to the debtor (buyer) by the supplier. Consequently, in the absence of any prohibitive provisions, the provisions of the Federal Law "On Credit Histories" may be applicable to any factoring contracts, including those with a foreign element.

The most interesting in the study of the functions of a financial agent is Chapter 5 of the Federal Law "On Credit Histories", dedicated to state control and supervision over the activities of credit history bureaus.

The significance of this chapter lies in the fact that by regulating the activities of the bureau, the state, to a certain extent, also controls the activities of the factoring companies (financial agents) that turn to their services. Thus, an additional criterion of the legality of the actions of the investigated subject of the factoring relationship appears. The disadvantages of this law can be attributed to the lack of a specific name for the "authorized state body" exercising control functions in the field of relations regulated by law.

Having considered the content of the obligation of a financial agent to track insolvent debtors, we can add that today in Russia we can talk about the legalization and simplification of the process of collecting information by banks or financial agents about the financial situation of the supplier's debtors. Of course, this will, to a certain extent, contribute to the popularization of the factoring agreement not only among domestic, but also among foreign developing trading companies.

In accordance with the mentioned paragraphs. "B" paragraph 2 of Art. 1 of the 1988 Convention, a possible responsibility of a financial agent may include maintaining the supplier's accounting records, processing invoices, and controlling the payment of invoices.

It can be noted that in this area we can talk about the harmonization of legislation: in fact, the admissibility of the provision of such services is established by Russian legislation in paragraph 2 of Art. 824 of the Civil Code of the Russian Federation Commentary on the Civil Code of the Russian Federation Commentary on the Civil Code of the Russian Federation, part two: in 3 volumes (itemized) / Т.Е. Abova, L.V. Andreeva, E.B. Anikina and others; ed. THOSE. Abova, A. Yu. Kabalkin. 3rd ed., Rev. and add. M .: Yurayt-Izdat, 2006.Vol. 2.P. 816. In this regard, it is important to emphasize once again that the provision of the specified financial complex of services does not always accompany the conclusion of the factoring agreement itself. However, if provided, the financial services themselves must have a connection with the monetary claims that are the subject of the factoring agreement.

The question naturally arises as to whether a service provided by a financial agent and not related to an assigned monetary claim can be fixed in a factoring agreement.

Using the principle of freedom of contract, the norms of Art. 421 of the Civil Code of the Russian Federation, you can answer this question in such a way that the parties have the right to introduce such conditions into the agreement. Chapter 39 of the Civil Code of the Russian Federation can be applied to any services of a reimbursable nature, which in a special way affects the position of both the financial agent and the supplier. For example, according to Art. 780 of the Civil Code of the Russian Federation, unless otherwise provided by the contract, the contractor is obliged to provide services personally.

M.P. Shulik connects this provision with paragraph 1 of Art. 313 of the Civil Code of the Russian Federation, according to which the performance of the obligation can be assigned to a third party, if from the law, other legal acts, the conditions of the obligation or its essence does not follow the obligation of the debtor to fulfill the obligation personally Shulik M.P. Financing against the assignment of a monetary claim in Russian civil law. Rostov-on-Don, 2002.S. 138. Thus, a financial agent, having undertaken to provide financial services, does not have the right to assign this to a third party, if this is not provided for by the contract.

Pursuant to the provisions of Chapter III of the 1988 Convention on the Subsequent Assignment of a Monetary Claim, the financial agent has the right, in turn, to assign the claims received under a contract with the supplier.

At the same time, in accordance with paragraph "a" of Art. 11, the assignment of the claims by the financial agent takes place on the same conditions on which the financial agent himself received the monetary claims, and all subsequent successors are equal to clause "b" of Art. 11 to the financial agent. It seems that the use of the phrase “subsequent successors” indicates the possibility of multiple assignment of a monetary claim, that is, about a kind of “chain” of so-called financial agents. The regulation of such relations from subsequent concessions of monetary claims, in accordance with Art. 12 of the Convention, cannot be carried out through the norms of the Convention, if the subsequent assignment was not allowed by the terms of the factoring contract. Obviously, if there are references to national law, the parties will have to turn to conflict of laws regulation.

Thus, in accordance with the norms of private international law, the supplier cannot influence the right of the financial agent to a subsequent assignment, but can, to a certain extent, complicate the further regulation of the relationship that has arisen with the agent by including in the factoring contract a clause prohibiting further assignment.

This provision of the 1988 Convention corresponds to the situation in Russian civil law. Some authors put forward assertions about the dependence of the financial agent's right to subsequent assignment of claims on the terms of the contract, and, in accordance with Art. 829 of the Civil Code of the Russian Federation, in the absence of an indication in the factoring agreement on the possibility of further assignment, the latter is unacceptable Lermontov Yu. Factoring: civil law characteristics of the agreement, accounting features and tax aspects // Consultant. 2011. No. 3.P. 30. The Russian legislator is characterized by a tough approach and, to a certain extent, a desire for the so-called "regulation" of relations between the parties, in particular, a factoring agreement. So, even if there is an agreement between the financial agent and the client on the subsequent assignment, such an agreement must be carried out in compliance with the rules of Chapter 43 of the Civil Code of the Russian Federation. “Thus, this means that a financial agent under Russian law can assign a monetary claim only to the same financial agent, and in this case he himself is equated to a client by legal status” A.A. Prikhodko. Decree. op. P. 188.

It should be noted that the 1988 Convention is more lenient in regulating the described issue, allowing the transfer of claims to any successors, and even automatically endows them with the status of a financial agent. This approach may hide the reason for non-participation in the Convention or reluctance to ratify it by some states, including Russia.

According to the aforementioned norms of the Civil Code of the Russian Federation, a financial agent with the acquisition of the status of a client may under a contract be liable for non-fulfillment or improper fulfillment by the debtor of the requirement, even if the original client does not have such an obligation to him.

Noting the differences in the regulation of the exercise of the rights of a financial agent that has entered into a cross-border factoring agreement and a financial agent working within the country, it should be pointed out that the norms of the 1988 Convention (Articles 5-10, 11) establish the application of uniform conditions to the procedure conclusion and content of not only the first, but also subsequent concessions of monetary claims. According to Russian law, the terms of subsequent factoring agreements may be fundamentally different from the previous ones.

No less interesting is the point concerning the fact that the claims of the financial agent against the client under the original agreement remain in force, which is fraught with such complications of the relationship as recourse to the already assigned claim if the new financial agent puts forward such claims against the previous one on the basis of the agreement. In addition, in this case, the search for applicable law may be complicated, and it will become necessary to apply general conflict of laws rules.

It seems logical that the position of some specialists that special conditions for the subsequent assignment of a monetary claim by a financial agent limit the "activity of buying up debts" and creating a "debt market", which some commercial organizations are trying to develop by acquiring claims of depositors against insolvent banks or other credit institutions. In accordance with Art. 9 of the 1988 Convention, a financial agent, either by virtue of default by the supplier of the main obligation, or under a contract, also has the right to recover money from the debtor.

2.2 Rights and obligations of the supplier

The obligation of the supplier is to assign to the financial agent monetary claims arising from contracts for the sale of goods concluded between the supplier and its buyers (debtors).

In Russia, for internal factoring contracts, the client's response is always the assignment of a monetary claim. It should be noted that in accordance with Art. 824 of the Civil Code of the Russian Federation “under a financing agreement against the assignment of a monetary claim, one party (financial agent) transfers or undertakes to transfer funds to the other party (client) against the client's (creditor's) monetary claim to a third party (debtor) arising from the client's provision of goods, fulfillment to them works or rendering services to a third party, and the client assigns or undertakes to assign this monetary claim to the financial agent ”.

Thus, both a domestic and a cross-border factoring agreement, like a sale and purchase agreement, always presupposes a reciprocal provision of funds. It can be assumed that if the agreement between the original creditor and the new creditor establishes that settlements between the parties for the transferred right of claim will be carried out without actual cash flow, then such an agreement should not be recognized as a factoring agreement.

As an example, defining the position of Russian practice on this issue, a case considered by the Supreme Arbitration Court of the Russian Federation can be cited. The court indicated: “As follows from the case file, between OJSC“ Volgogradgorgaz ”(client) and LLC“ Advocate ”(financial agent) on 05.02.97, an agreement was concluded, named by the parties as a financing agreement for the assignment of a monetary claim (factoring).

According to this agreement, the financial agent buys from the client his monetary claims against JSC Volgogradenergo on the basis of a writ of execution issued by the decision of the arbitration court in the amount of 2,338,560 rubles 53 kopecks (clause 1.2 of the agreement).

In return for what was received, the financial agent undertook to transfer 1,000 rubles to the client, as well as 95 percent of the principal amount in the event that the client's assigned monetary claims against the debtor were presented for collection (clause 1.3 of the agreement).

The intentions of the parties under this agreement do not correspond to its content, since the factoring agreement according to Article 824 of the Civil Code of the Russian Federation “one party finances the other”. This was not provided for in this agreement. Therefore, the court of appeal rightfully recognized it as a void transaction. 2000. No. 8..

Thus, the Russian jurisprudence reflects the result of the harmonization of the provisions of the 1988 Convention (Art. 1), which contains the definition of a factoring contract, and Art. 824 of the Civil Code of the Russian Federation, which gives the concept of a financing agreement against the assignment of a monetary claim.

In accordance with the provisions of the Convention (paragraph "a" of Article 5), the parties to an international factoring contract are not required to clearly specify the assignable claims: invalid because they were not specified specifically if at the time of the conclusion of the contract or at the time of its entry into force they could have been specified in the contract. "

When comparing this provision with Russian civil law, it can be concluded that, in accordance with Art. 826 of the Civil Code of the Russian Federation, the assigned monetary claim must be defined in such a way that it can be identified either directly at the time of the conclusion of the contract (existing demand), or at the time of the emergence of the demand itself (future demand).

It seems that it would be appropriate and desirable to recommend that persons planning to conclude factoring agreements with foreign partners in the future pay close attention to the provisions specifying the assigned monetary claims. It seems that such an approach could save the majority of participants in commercial turnover working in the field of factoring from the complications associated directly with determining the authenticity of assigned or acquired monetary claims.

Compliance with the proposed solution seems all the more important because, according to Art. 8 of the 1988 Convention, the debtor is obliged to pay the financial agent if and only if the authenticity of the monetary claim transferred to the financial agent to whom the debtor is obliged to pay is reasonably established. Obviously, the Russian legislator has more stringently defined requirements in the Civil Code of the Russian Federation that facilitate the simplification of the procedure for identifying monetary claims assigned in the course of a transaction.

The creators of the 1988 Convention, on the contrary, sought to avoid unnecessary bureaucratization of the process of recognizing not only existing, but even future monetary claims.

So, paragraph "b" of Art. 5 of the Convention reads: "... the provision of the factoring contract, according to which future monetary claims are intended to be assigned to the financial agent as they become available, does not require the conclusion of any new act on the assignment of the claim." Obviously, in this case, the parties must rely on the already indicated signs of the contract, from which future claims may arise, or the identification of claims is carried out at the discretion of the parties and entails the application of foreign law.

So, the financial agent receives a monetary claim, which, as noted, can be distinguished on the basis of an agreement from among other client claims. Traditionally, it is noted that for this they refer to the signs of a contract, the requirements from which are assigned to Yu.A. Aleksanova. Russian legislation on financing against the assignment of a monetary claim and the norms of international law governing such transactions // International public and private law. 2003. No. 4 (13). S. 12.. So, the number, date, parties of the specified concluded sales contract can be indicated. Referring to Russian norms, it can be noted that Art. 826 of the Civil Code of the Russian Federation does not contain clear rules according to which requirements should be identified. Therefore, according to L.A. Novoselova, the agreement should contain information sufficient to resolve the issue of extending the assignment agreement to a particular requirement, when this requirement arises Novoselova L.A. Transactions of assignment of rights (claims) in commercial practice. Factoring. M .: Statut, 2003.

The provisions of the 1988 Convention specify the supplier's obligation by stating that assignable monetary claims cannot arise from contracts that relate to goods purchased primarily for personal, family and household use.

This provision of the Convention corresponds to the position of the Russian judicial practice, confirmed by the reaction of the Russian court (although not with regard to cross-border factoring) in the decision of the Arbitration Court of Moscow on the claim of Tanais LLP against the Trade and Industrial Bank of Moscow LLP and against LLC “ Firm "Arvan" on invalidation of the cession agreement concluded by the defendant. The plaintiff argued that the controversial contract was a factoring contract, but the court rejected his arguments, since the monetary claim that was the subject of the assignment contract did not arise from the sale of goods to the plaintiff, the performance of work or the provision of services, as it follows from Art. 824 of the Civil Code of the Russian Federation. As a result of the consideration, the court found that the Trade and Industrial Bank of Moscow LLP ceded the Firm Arvan LLC the right to claim the debt from the plaintiff under the loan agreement Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 6144/98 dated February 23, 1999 [Electronic resource]: Access from the reference legal system "ConsultantPlus" (date of treatment 05/15/2013). This example testifies to the literal interpretation by the arbitration courts of Art. 826 of the Civil Code of the Russian Federation and once again confirms the thesis of a satisfactory level of harmonization of the provisions of Russian legislation and the norms of the 1988 Convention.

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