International Law Office, September 17, 2012

Inna Prygova, Attorney of Capital Legal Services

Introduction

On September 2 2011 the draft Federal Law on Amendments to the Town Planning Code was introduced to the State Duma. On November 22 2011 the draft law was adopted on its second reading.

The draft law, which was developed by the Committee for Construction and Land Relations, aims to create the necessary conditions for implementing the most important projects in Russia. As its explanatory note specifies, the adoption of the law will help to develop integration processes of the kind that are already used abroad, with the ultimate aim of improving the investment climate in the Russian construction sector.

Key aspects of using reapplied foreign design documentation

The draft law provides for the use of design documentation that has already been developed and used in a foreign state, subject to the particular seismic and climatic requirements for construction in Russia. It is proposed that reapplied foreign design documentation (RFDD) would be required to meet a range of criteria:

• The RFDD must have been developed and approved in an EU member state or other state, and in respect of certain types of facility (corresponding to those included on lists approved by the Russian government).

• A facility must already have been constructed on the basis of the design documentation and commissioned into operation in the territory of a foreign state.

• The RFDD must relate to the construction of a facility that is neither particularly hazardous in nature nor technically complex or unique.

• The seismic and climatic loads (eg, for snow, temperature and wind) according to which the facility was designed must be consistent with the loads applicable in the Russian region in which construction is planned.

According to draft legislation that aims to prevent the abuse of construction rights based on RFDD and to ensure the safety of buildings constructed on this basis, changes to RFDD are permitted only in respect of:

• foundation design solutions (subject to the results of an engineering survey); and

• the internal networks of the building, for the purpose of connecting the structure to engineering and technical networks.

The draft law provides for changes to the Town Planning Code in order to:

• require the RFDD facility developer and the design organisation to take certain steps and prepare the necessary documentation to 'tie' the facility to the locality (ie, by developing a land plot lay-out scheme);

• introduce a new document: a declaration of RFDD compliance for a capital construction facility, certifying that the conditions of application of the RFDD in Russia have been met. The form of the declaration is to be approved by the government. In the absence of a declaration, necessary engineering surveys or a Russian translation of the design documentation may constitute grounds for refusal to accept documents for expert evaluation;

• establish the list of documents needed to obtain a construction permit under an RFDD and commission the facility into operation; and

• introduce a number of requirements for carrying out expert evaluation in respect of RFDD. It is assumed that the only issues to be subject to expert evaluation will be:

- the compliance of the foundation design solutions with the results of engineering surveys, loads and building impact; and

- the compliance of the seismic and climatic loads to which the facility was designed, with the applicable loads of the relevant territory.

Article 49 of the existing code includes a requirement to undergo expert evaluation in respect of design documentation of capital construction facilities and the results of engineering surveys performed for the purpose of preparing such design documentation. The only exceptions are for:

• the construction of residential buildings of less than three storeys;

• the construction of non-residential facilities of no more than two storeys and with area no greater than 1,500 square metres; and

• performing repairs to capital construction facilities.

Applicability of foreign state's safety requirements

A further significant condition under the draft law is that in the context of RFDD, the foreign state's safety requirements (including fire safety measures and ecological, sanitary and epidemiological requirements) will take precedence over similar requirements in Russian regulations. Changes have been proposed to a number of laws in this connection [1].

Liability implications

In the event of damage being caused due to defects in RFDD preparatory work or in the construction of a capital construction facility under RFDD, liability will apply to:

• the developer (ie, the technical client) if it provided an inaccurate translation of the RFDD;

• the person who prepared the declaration of RFDD compliance for the purpose of its application in Russia, if the information in the declaration does not correspond to the conditions of its application in Russia and to the minimum requirements of seismic safety and temperature and climate impact, or if the safety requirements fail to comply with the requirements in the technical regulations, sanitary and epidemiological regulations or other documents of a foreign state,

• a self-governing organisation - within the limits of its compensation fund - if, at the time that the works in question were carried out, the person who prepared the RFDD held a certificate granting access to such funds that was issued by the self-governing organisation; and

• the organisation that carried out the RFDD expert evaluation, if:

 - the damage was caused because the foundation design solutions of the capital construction facility did not comply with the results of engineering     surveys and the applicable loads, or if the seismic loads and impact and the temperature and climate impact did not comply with the minimum requirements of seismic safety and temperature and climate impact for the territory in question; and
- a positive opinion on the expert evaluation of the RFDD is available.

Therefore, the person who developed the RFDD may not be held liable if damage is caused due to defective work in the preparation of the RFDD. By way of comparison, Article 761(1) of the Civil Code provides for liability on the part of the designer for the improper execution of design documentation, including in the course of facility construction and operation.

If the new law is adopted, it wil create a much more favourable regime for the treatment of foreign designs.

Endnotes

[1] The Federal Law on the Sanitary and Epidemiological Welfare of the Public (52-FZ, March 30 1999); the Federal Law on Technical Regulation (184-FZ, December 27 2002); the Federal Law on Fire Safety (69-FZ, December 21 1994); the Federal Law on Technical Regulations for the Security of Buildings and Structures (384-FZ, December 30 2009); and the Federal Law on Technical Regulations for Fire Safety Requirements (123-FZ, July 22 2008).