The President of the Republic of Belarus signed the Decree No. 137 of April 7, 2022 "On Executive Documents" (hereinafter referred to as the Decree), which entered into force on April 10, 2022.
The Decree is published on the National Legal Internet Portal.
The decree provides:
- the execution of enforcement documents issued in favor of residents of foreign states which commit unfriendly actions against Belarusian legal entities and (or) individuals (the list of such states determined by the Council of Ministers of the Republic of Belarus in the Resolution of April 6, 2022, No. 209 "On the list of foreign states committing unfriendly actions against Belarusian legal entities and (or) individuals" (entered into force from April 8, 2022);
The list includes the USA, Canada, Great Britain, EU states, and some others;
- banks and NCFOs should refuse to accept payment requests without the payer's acceptance, drawn up on the basis of enforcement documents;
- payment requests sent to banks for execution before the date of entry into force of the Decree are withdrawn or their execution is suspended in accordance with the procedure established by law.
Which creditors are affected by the Decree (note to clause 1.1 of the Decree):
- foreign organizations registered outside the Republic of Belarus, their branches and representative offices in the Republic of Belarus and abroad;
- individual entrepreneurs registered in foreign states;
- foreign organizations that are not legal entities located outside the Republic of Belarus, their branches and representative offices in the Republic of Belarus and abroad;
- diplomatic missions, consular offices and other representations of foreign states in the Republic of Belarus and abroad;
- international organizations, their branches and representative offices in the Republic of Belarus and abroad.
What negative follows from all this (with more likely obviousness) for creditors:
- exceptions to the general procedure for the execution of enforcement documents - court orders, rulings on a court order, notary enforcement inscriptions, etc.
- these exceptions are based on nationality - based on registration belonging to one of the states indicated in the relevant list, and in relation to enforcement documents. The size of the obligation does not matter;
- exclusion means suspension of execution - suspension of the transfer of any money by the bank upon presentation of a writ of execution to the Belarusian bank;
- the moment when the enforcement document was issued (before or after the Decree), when the enforcement document was presented for execution - does not matter.
The most likely question: what about enforcement proceedings in favor of non-resident creditors? Well, we have not an official interpretation of the Decree on this issue, also nothing is said about this issue in the Decree.
What positive follows from all this for creditors:
- non-resident creditors who are ciizenzs are not affected;
- voluntary fulfillment of the obligation by the Belarusian debtor itself is not limited, including under a writ of execution (if the debtor accepts the payment request). In other words, ordinary economic settlements as a normal fulfillment of an obligation are not limited in favor of non-resident creditors;
- collection of debt from the Belarusian debtor is not prohibited. Restrictions are applied at the stage of execution of the enforcement document, but not at the stage of debt collection (both during the claim settlement and the collection of debt in court);
- change of a creditor for another creditor from a foreign state not included in this list (from “friendly” states), is not prohibited, in particular, by way of assignment of claim;
- It is probable (100%) that creditors from the Russian Federation, EAEU states, the United Arab Emirates, Serbia will not be affected by the above restrictions.
We will keep you informed of any news and clarifications regarding the application of this Decree.