pendent on membership in a SRO, has a publicly legal status and is as sociated with the performance of certain functions on behalf of the State, which entails the necessity to organize an efficient control over the activity of the specialists engaged in the publicly legal activity. Nev ertheless, as follows from Article 2 of the Law “On bankruptcy”, a bank ruptcy commissioner is a RF citizen, appointed by an arbitrage court to effectuate bankruptcy procedures, as well as to implement other pow ers established by the Law “On bankruptcy”. In this connection, the ef fectuation of bankruptcy procedures cannot be recognized as publicly legal activity, since such an activity means primarily an activity on behalf of the State.
In our opinion, the most correct is the standpoint in accordance with which the membership of bankruptcy commissioners in self regulating organizations must be voluntary, because it is fully compatible with the fundamental law of the RF – the RF Constitution, as well as with civil leg islation of the RF.
3. One of the fundamentally new provisions in the Law “On bank ruptcy” is the established wider range of persons capable of participat ing in the arbitrage proceedings in bankruptcy. Now, alongside the rep resentatives of the debtor’s employees and the representative of the owner of the debtor’s property – a unitary enterprise, the representa tives of the debtor’s founders (or participants) can also participate in the arbitrage proceedings, which is undoubtedly a positive develop ment, since the said persons have an interest in protecting the debtor’s rights, and their participation actually is a guarantee of the protection of the debtor’s rights and interests.
Nevertheless, as justly notes V. Vitrianskii83, “one cannot but be alerted by the fact that the Law on bankruptcy contains a number of provisions concerning the so called third parties, who, being neither the persons participating in a bankruptcy case, nor the persons participat ing in the arbitrage proceedings in bankruptcy, are sometimes invested with the powers similar to those granted to the founders (or partici pants) of economic societies and partnerships, as well as to the owner of a debtor’s property – a unitary enterprise”. It is true that, although according to Article 35 of the Law “On bankruptcy”, “other persons, in Novoe v pravovom regulirovanii nesostoiatel’nosti (bankrotstva) (Innovations in legal regulation of insolvency (bankruptcy). – Khoziaistvo i pravo, No. 1, 2003.
the instances envisaged by the RF Arbitrage Procedural Code”, may participate in the arbitrage proceedings in bankruptcy, in many cases they are granted too many powers. For example, as follows from Article 76 of the Law, that in the course of supervision a third party (or third partiers), in the procedure established by the law, has the right to ad dress the first creditors’ meeting, and in the instances envisaged by the Law “On bankruptcy” – to petition to the arbitrage court that financial rehabilitation be implemented.
Also, as follows from Article. 113 of the Law “On bankruptcy”, a third party (or third partiers), at any time prior to the completion of external administration, in order to terminate the proceedings in bankruptcy, has the right to satisfy all the creditors’ claims specified in accordance with the register of creditors’ claims, or to transfer money to the debtor in an amount sufficient for satisfying all the creditors’ claims in accordance with the register of creditors’ claims.
The Law also allows that an agreement be concluded between a third party (or third partiers) and the debtor’s managerial bodies, em powered in accordance with the constitutive documents to make deci sions concerning the implementation of big transactions, as well as concerning other conditions for the transfer of money funds for the ful fillment of the debtor’s obligations.
It should be noted that the said norms stipulated in the Law have re ceived a variety of estimations made by different experts.
For example, according to some experts84, the said norm has been introduced in the Law as a measure “against the so called orchestrated bankruptcies”.
Nevertheless, V. Vitrianskii believes85 that, “by transferring a certain amount of money to satisfy the claims of the debtor’s creditors, a third party thus becomes its sole creditor, while the debtor becomes fully dependent on this third party, the only motivation for whose actions (if it is not a charitable organization) can be property redistribution, that is, complete control over the debtor’s activity. Therefore, the said provi Kommentarii k Federal’nomu zakonu “O nesostoiatel’nosti (bankrotstve) (A commen tary to the Federal Law “On insolvency (bankruptcy)”, ed. by V.V. Zalesskii. – M. Iz datel’stvo g na Tikhomirova M.Yu., 2003.
Novoe v pravovom regulirovanii nesostoiatel’nosti (bankrotstva) (Innovations in legal regulation of insolvency (bankruptcy). – Khoziaistvo i pravo, No.1, 2003.
sions in the Law represent nothing else but a legal mechanism for a “takeover” of a debtor’s property”.
In our opinion, the viewpoint expressed by V. Vitrianskii should be agreed with. Also, in order to further improve bankruptcy legislation, it is advisable to consider the feasibility of establishing a certain limited range of persons empowered for executing the actions described above during the arbitrage proceedings in bankruptcy.
4. The rehabilitation and reorganization procedures envisaged in the 2nd Law on bankruptcy for debtor enterprises have proved to be of a very low efficiency. In this connection it can be mentioned that the new Law on bankruptcy (the third) has both greatly expanded the set of available instruments and improved their “quality” and degree of pro tection from abuse. However, the following problems deserve to be mentioned.
It should be admitted that the necessity for the State to participate in bankruptcy procedures has significantly distorted the motivations of all the parties involved. Therefore, certain measures should be introduced for regulating the accruals of payments to the budgets and other man datory payments outside bankruptcy procedures. In this connection, the mechanisms for debt restructuring seem efficient, but the incen tives for implementing the restructuring are not equally strong enough for all the shareholders (or owners) of an enterprise. In fact, the deci sion concerning the implementation of restructuring at an enterprise’s level can be blocked by minority shareholders. In this connection, if the State later does initiate a bankruptcy procedure, all the shareholders will be placed under equal conditions. So, it appears important to inves tigate the feasibility of establishing different rights in bankruptcy proce dures for those shareholders who have voted “for” or “against” debt restructuring.
5. In respect to large strategic enterprises, among the measures de signed to prevent bankruptcy in accordance with the 2nd Law on bank ruptcy, one can single out pre trial reorganization (Article 27), aimed at providing financial support to the debtor from aside, including from the owner of the debtor’s property and from the debtor’s founders (or par ticipants). In the course of pre trial reorganization, the debtor or other persons may take upon themselves certain liabilities for the benefit of those persons who have provided the financial support. It does not fol low herefrom that the State may, when resources are available, at a necessary moment effectuate pre trial reorganization – the conditions for pre trial reorganization at the expense of the federal budget and state off budget funds must be established by the laws on the federal budget and the budgets of state off budget funds. It should be noted that while the federal budgets were being formed, such expenditures were never envisaged, and so the provisions concerning pre trial reor ganization became non operatve.
In the new Law on bankruptcy, there are also norms concerning pre trial reorganization (Article 31). The fact that within the framework of the new Law the need for the State to allocate appropriate funds in the fed eral budget has never been mentioned does not mean, in our opinion, that these funds are not to be preliminarily specified in the budget.
Thus, there arise the tasks of estimating the minimum amounts of ex penditures to be envisaged in the budgets for pre trial reorganization and including such expenditures in the draft budget. Besides, a certain limited entity of enterprises should be determined, in respect to which, in case the situation develops unfavorably, the State would be ready to resort to pre trial rehabilitation, and (importantly) the necessary con tent of debtors’ liabilities to the State in terms of pre trial reorganization should also be preliminarily specified.
6. By the 3rd Law on bankruptcy, a new bankruptcy procedure has been introduced – that of financial rehabilitation (Chapter 5, Articles 92). This procedure may become an important instrument for an enter prise’s rehabilitation and reforming under the control of its owners (in cluding the State as a shareholder). At the same time, attention should be paid to the fact that this procedure can be imposed by an arbitrage court without the creditors’ consent (Items 2 and 3 of Article 75, Item of Article 80). However, the financial rehabilitation plan and debt re demption schedule prepared by a debtor’s owner must be approved by a creditors’ meeting. In this connection, it is not quite clear what would happen if a creditors’ meeting refuses to approve the financial rehabili tation plan (which can be very probable if the creditors’ meeting is op posed to the introduction of this procedure). Also, the issue concerning the compatibility of the provisions of Article 5 (e.g., Items 1 and 2 of Ar ticle 77) with some of the norms established by corporate legislation (in particular, with the provisions of the Federal Law “On joint stock com panies” designed to protect the interests of minority shareholders).
7. The exchange of an enterprise’s debts for shares transferred to the creditors during bankruptcy procedures may become one of effi cient enough mechanisms for maintaining the activity of large, eco nomically and socially relevant enterprises. The 2nd Law on bankruptcy did not specify the issues concerning additional issues of shares. In principle, this mechanism has been applied in actual practice, and the creditors in some cases received shares in newly created enterprises (to which debt free assets of the debtor enterprise had been trans ferred), while in others – the shares of an additional issue of the debtor enterprise.
We should like to note the following elements in the regulation of an additional issue of shares during external administration in accordance with the new 3rd Law on bankruptcy:
• shareholders have a preferred right for purchasing the shares being placed;
• the shares are placed only by a closed subscription;
• the additional shares are to be paid for only by money.
Thus, the situation when the State is one of the shareholders has not received due attention. For one thing, there exist legislative restrictions to “dispersing” the State’s share during an additional issue of shares.
For another, the State, due to the peculiar features of its status as a le gal subject is unable to operatively enough apply its preferred right (as a shareholder) to purchase additional shares – the period established for shareholders to implement their preferred right to purchase shares cannot be longer than 45 days from the date of their placement. As a result, this form of business rehabilitation may not operate efficiently enough in respect to enterprises in the public sector.
8. It appears important to pay attention to one of the provisions con cerning the sale of strategic enterprises during the implementation of bankruptcy procedures, which was contained in the RF President’s Es timation of the Law’s new version: in accordance with Item 8 of Article 195, the creditors in bankruptcy and their affiliated persons are not al lowed to participate in the bidding. We believe that this proposal, while being absolutely correct and reasonable in its idea, in the specific Rus sian situation, in the event of the bankruptcy of a large enterprise, may give rise to some significant problems.
Firstly, under the conditions of well developed genuine affiliation of financial structures (including through industrial enterprises), a high concentration of financial resources and the presence of many different creditors in the instances of large debtors, the range of potential, finan cially prosperous buyers may become considerably narrower. This is fraught not only with creditors’ losses (and losses suffered by the State, as one of the creditors), if the enterprise is sold at a lower price, but also with a possible transition (when it becomes impossible to sell an enterprise as a whole entity) to the sale of separate assets. Secondly, the detection of affiliated persons, as has been demonstrated by the practical experience of the antimonopoly agencies, is a process that requires much effort, arguments and time. This creates even more fer tile grounds for corruption and voluntarism, as well as for scandals aris ing after the bankruptcy procedures have been completed.
At the same time, if the State does operatively apply its preferred right (under the new Law) during the sale of strategic enterprises, the abovelisted risks will become less important.
9. One of effective forms of preserving a business may become the sale (as a single property complex) of a city forming organization. The terms of this sale, as stipulated in the 2nd Law (Article 137), were too cumbersome for the buyer, and so this form did not become commonly applied. Therefore, the softer requirements to the buyer in Article of the 3rd Law on bankruptcy (lowered mandatory number of preserved jobs from 70% to 50%, a specified period for implementing this re quirement (three years), more possibilities for changing an enterprise’s specialization) will make enterprises forming company towns more at tractive in terms of their purchase as a single complex.