Постановление Девятого арбитражного апелляционного суда от 19.06.2012

Участники спора

Конкурсный управляющий

ЗАО «Цифровая электроника» ЗАО «Цифровая электроника» (Должник)

ОАО «СИТРОНИКС» (сторона оспариваемой сделки с Должником, Кредитор)

Фабула дела

Resolution of the Ninth Commercial (‘Arbitration’) Court of Appeal

dated 19 June 2012

Parties in dispute

Receiver of Digital Electronics CJSC

Digital Electronics CJSC (the “Debtor”)

SITRONICS OJSC (a party to the challenged transaction with the Debtor, the “Creditor”)

Narrative

The issue of the fee for an insolvency practitioner affects every single person involved in insolvency (bankruptcy) proceedings. It is known that the receiver’s fee is generally paid out of the debtor’s assets. Accordingly, the higher the fee, the fewer the assets that remain to satisfy creditors’ claims, restore the debtor to solvency and distribute the liquidation surplus among the members.

Specifics of enforcing the consequences of the invalidity of a transaction whereby a pledgeholder leaves pledged property in its ownership.

(ruling No. VAS-14907/11 dated 20 March 2012)

By the above ruling, the Supreme Arbitration Court (SAC) has actually reinforced the specifics of enforcing the consequences of a transaction transferring a debtor’s pledged property being invalid if it is not possible to restore the parties to their initial position.

New Law on "Amendments to the Law on Insolvency (Bankruptcy) and Articles 17 and 223 of the Arbitrage Procedural Code with respect to establishment of special rules for bankruptcy of developers attracting money from participants in construction" was adopted on July 12, 2011 (the "Amendments"). Most of the Amendments were introduced as a special chapter No. 7 named "Bankruptcy of Developers" into the Federal law on Insolvency (Bankruptcy) No. 127-FZ as of 26 October 2002 (as amended) (the "Bankruptcy Law").

On 19 August 2011, the Ministry of Economic Development of the Russian Federation published on its official website a draft order on establishing the procedure for entering information on bankruptcies in the Unified Federal Register (the "Order").

Specifically, the Order:

Bankruptcy

On March 5, 2012, new rules came into force for credit cooperatives in bankruptcy proceedings; the new rules feature:

On 30 July 2012, the Presidium of the Supreme Commercial Court of the Russian Federation (the “SCC”) released its Review of rulings of the Presidium of the SCC (the “Review”) on major issues of private law for June 2012. In particular, the Review highlights that in bankruptcy proceedings a creditor’s claim upheld by an arbitration ruling may be included in the list of creditors without a writ of execution.

Circumstances of the case

On 30 July 2012, the Presidium of the Supreme Commercial Court of the Russian Federation (the “SCC”) released a Review of its rulings of the Presidium of the SCC on major issues of private law for June 2012. In particular, the Review indicated that during bankruptcy proceedings, a creditor’s claim upheld by an arbitration ruling may be included in the list of creditors without a writ of execution.  

On July 28, 2012, Russian president Vladimir Putin gave his imprimatur to Federal Law No. 144-FZ, which amends Russian bankruptcy, financial, and banking legislation with the goal of improving regulations governing asset returns and interim management of insolvent banks. Among other things, the amendments change Russian insolvency law to remove executive compensation and bonuses from the list of priority claims in cases involving insolvent companies.