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Russian Law Aspects of Insolvency

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Russian Law Aspects of Insolvency Russian Law Aspects of Insolvency Further information If you would like further information on any aspect of the issues described in this note please contact a person mentioned below or the person with whom you usually deal. Contact Michael Pugh Partner T + 7 495 9333000 Direct +7 495 9336217 [email protected] Alexander Rymko Partner T + 7 495 9333000 Direct +7 495 9333009 [email protected] Eugene Perkunov Senior Associate T +7 495 9333000 Direct +7 495 9336214 [email protected] This note is written as a general guide only. It should not be relied upon as a substitute for specific legal advice. Contents 1. INTRODUCTION 1 2. GENERAL COMMENTS 1 3. DETERMINATION OF THE CREDITORS' CLAIMS 2 4. SETTING ASIDE ANTECEDENT TRANSACTIONS 3 5. STAGES OF INSOLVENCY (BANKRUPTCY) CASES 3 6. SET-OFF 4 7. SUPERVISION 4 8. FINANCIAL REHABILITATION 4 9. EXTERNAL ADMINISTRATION 4 10. LIQUIDATION 5 11. AMICABLE ARRANGEMENTS 5 12. INSOLVENCY OF CREDIT INSTITUTIONS 6 1 Russian Law Aspects of Insolvency 1. INTRODUCTION In the case of a corporate debtor, the claim should be filed with the arbitrazh court, where such debtor is located. Under the Civil Code of the Russian Federation (the "Civil Code") A simple, clear and effective insolvency regime is a vital the location of the legal entity is determined by the state in element in attracting both domestic and foreign investment in which it is registered. If the debtor is an individual (natural a jurisdiction like Russia. To be effective, an insolvency person), the relevant arbitrazh court is the one in the state in regime has to balance the interests of various classes of which such debtor resides. If the application is lodged in the creditors, as well as the interests of creditors generally in wrong court, the claim will be rejected. If a creditor files an relation to other interested parties, such as shareholders or application to commence insolvency proceedings, it must participants. An insolvency regime is expected to give the properly identify the debtor's location or place of residence. debtor an opportunity to discharge its obligations and continue 2.2 Who can Initiate Insolvency Proceedings? its business activity. It should set forth reasonable constraints for initiating insolvency proceedings allowing this only in An application to the arbitrazh court for declaring a debtor cases where the creditors' claims are duly proven so as to insolvent may be filed by the following persons: prevent technical insolvency (where insolvency of a debtor is 1 commenced without examination of legality and justification of the executive body of the debtor; its creditor's claims) and other similar abuses. authorised federal bodies, such as: The Federal Law No. 127-FZ "On Insolvency (Bankruptcy)" - federal executive bodies, authorised by the Russian dated 26 October 2002 (as amended) (the "Insolvency Law") Government to present, in the course of insolvency replaced the previous law of 1998 to better address the above proceedings, claims regarding mandatory payments2 concerns and to provide for a more comprehensive insolvency and claims of the Russian Federation regarding framework. monetary obligations; and A brief outline of the Russian insolvency regime and the - executive bodies of the constituent regions of the particularities of insolvency proceedings in relation to financial Russian Federation, municipal authorities which are organisations are set out in this note. authorised to present in the course of insolvency 1.1 General Provisions proceedings claims regarding monetary obligations of the constituent regions of the Russian Federation or The Russian insolvency regime applies to a broad range of municipal authorities (for example, tax authorities); debtors: individuals and legal entities of all legal forms except for state corporations, state-owned enterprises, political (together the "Authorised Bodies"); or parties and religious organisations. There are also special creditors in relation to monetary obligations, other than: provisions for insurance companies, professional participants in the securities market, agricultural organisations and - the Authorised Bodies; additional specific laws for credit institutions and natural - individuals to whom the debtor is liable for causing monopoly enterprises in the fuel and energy sector. harm to life or health or for moral damages; 1.2 Insolvency of Credit Institutions - persons to whom the debtor has to pay fees for The Federal Law No. 40-FZ "On Insolvency (Bankruptcy) of "intellectual activities" (activities relating to the creation Credit Institutions" dated 25 February 1999 (as amended) (the of objects of intellectual property); and "Credit Institutions Insolvency Law") sets out special rules - founders (participants3) of the debtor in respect of in relation to insolvency proceedings in respect of credit obligations arising out of such foundation institutions. Provisions of the Credit Institutions Insolvency (participation); Law are applied in conjunction with the provisions of the Insolvency Law. 1 For the purposes of the Insolvency Law the "executive body" means the chief executive officer or the head of the collective executive body of the 2. GENERAL COMMENTS debtor or any other person who is authorised under Russian law to act on behalf of the debtor without a power of attorney. 2 Mandatory payments mean taxes, fees, administrative and criminal fines and other mandatory contributions due and payable to the relevant level of 2.1 Jurisdiction over Insolvency Cases the budget system of the Russian Federation (the "Mandatory Payments"). Russian insolvency (bankruptcy) cases are considered by state commercial ("arbitrazh") courts. Insolvency proceedings 3 The Civil Code uses "participants" as a general term which includes in Russia may not be submitted to mediation, ad-hoc or any partners (in partnerships), participants (in limited liability companies and in supplementary liability companies), shareholders (in joint-stock other alternative dispute resolution proceedings. companies), etc. 2 (together the "Insolvency Creditors"). 2.4 Formalities 2.3 When can Insolvency Proceedings be Initiated? An application to the relevant arbitrazh court must be accompanied by the court judgment mentioned in paragraph Insolvency proceedings are initiated by filing an insolvency 2.3 above and evidence of the debtor's indebtedness and its petition with the relevant arbitrazh court. inability to satisfy the creditors' claims. Debts in respect of the Insolvency proceedings in relation to legal entities can be Mandatory Payments are evidenced by a decision of the initiated in the following circumstances (so-called insolvency respective tax or customs' authority. indicators): In order to initiate insolvency proceedings in relation to a legal a legal entity fails to discharge the claims of its creditors entity or individual, the applicant must pay state duty of RUR (including the Mandatory Payments) within three months 2,000. of the date when such claims became due; or an aggregate amount of such claims exceeds 3. DETERMINATION OF THE CREDITORS' CLAIMS RUR4 100,0005. A debtor may apply to the court for voluntary insolvency where there is clear evidence that it will become insolvent. The following claims need to be considered when determining whether the insolvency indicators described in paragraph 2.3 The executive body of a debtor is obliged to bring an above exist: insolvency petition within one month of the occurrence of one of the following events: monetary obligations relating to: the satisfaction of the claims of one or more creditors - amounts due for goods delivered and services makes it impossible to satisfy in full the claims of its other provided; creditors; - principal amounts of loans and accrued interest the levy of execution on the property of the debtor outstanding; substantially obstructs or makes impossible its business - amounts due with respect to unjust enrichment; and/or activities; - amounts due for damages caused to a creditors' the decision of an authorised body or an authorised owner 6 of the property of the debtor, being a state or municipal property ; and enterprise (commercial company established by the obligations in respect of amounts of the Mandatory relevant state or municipal body and provided with state or Payments due or outstanding, except for the penalties municipal property which can be used for commercial imposed by the authorised state bodies for non- purposes), to file a debtor's petition; performance or improper performance of obligations. the insufficiency of the debtor's assets (a situation where Any penalties and damages that result from the debtor's the aggregate amount of the debtor's monetary obligations failure to discharge its obligations (including fines and and mandatory payments exceed the value of the debtor's penalties imposed by state bodies) are not taken into account assets); or when considering the insolvency indicators. the debtor ceases to discharge any part of its payment Creditors' claims are recorded in a register with a set priority obligations or mandatory payments due to lack of funds). ranking, as provided by the Insolvency Law, for satisfaction at the relevant stage of insolvency proceedings. The register is The right of the Insolvency Creditor or the Authorised Body to kept by the insolvency officer or by a specialised legal entity, make an application to the arbitrazh court arises at the date appointed at a creditors' meeting. when a court judgment on
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