The main participants in bankruptcy procedures – bankruptcy com missioners and judges – had also their reasons to be displeased with the new Law. Thus, for example, according to A. Yukhnin, member of the directorate of the Russian Association of Independent Experts, a very favorable environment for corruption was created by the stipulation in the new Law to the effect that a candidate for the post of bankruptcy commissioners must have an experience of a CEO, which in effect had “cut off” from this activity the most likely category of candidates – young and ambitious managers of junior and medium status177. From the point of view of Deputy Chairman of Moscow City Arbitrage Court O.
Sviridenko, the new Law did not eliminate the possibility of a transfer of some unique economic objects into the ownership of a limited circle of related persons, while the Law’s imperfection in determining the proce dure of bidding during the sale of a debtor’s property potentially made it possible to obtain, at a very low price, some priceless scientific tech nologies and unique industrial equipment of any bankrupt enterprise, including a strategic one178.
It seems that the only positive estimations of the new Law during that period were offered by those officials who had in some way participated in its elaboration and adoption. Thus, according to V. Pleskachevskii, Chairman of the Committee for Property of the State Duma, the new Law made the whole procedure of bankruptcy more civilized, thus hav ing insured a better equilibrium of the rights of its main participants – the debtor and the creditor179. In the opinion of Ts. Tserenov, Head of the Department for Regulation of Entrepreneurial Activity and Develop ment of Corporate Governance of the RF Ministry for Economic Devel Zaiko A. Russkii peredel. Dubl’ tri. (Russian repartitition. Take 3). – Kompaniia, 22 April 2002.
Sviridenko O. Naznacheniie i tseli instituta bankrotstva v khoziiaistvennom oborote (Designation and purposes of the institution of bankruptcy in economic turnover). – Pravo i ekonomika, 2003, No. 3.
Pleskachevskii V. “Novyi zakon o bankrotstve ne pozvolit kromsat’ predpriiatiie za ko peiki (The new law will not allow to dismember an enterprise for kopecks)”. – Biuro pravo voi informatsii (Bureau for legal information), (www.bpi.ru), 19.12.2002.
opment and Trade, within the framework of the new Law, bankruptcy procedures would become more civilized; the market would develop civilized rules; bankruptcy, instead of being applied for property redis tribution, would be turned into an instrument for getting rid of inefficient businesses and inefficient types of production180. On the whole, the new Law was estimated positively also by the FSFRB’s top officials – T. Tre filova, its Director181, and First Deputy Director N. Kotsuba182.
It should be noted that just like the opponents of the new Law recog nized its very substantial advantages, its proponents noted its certain drawbacks. Thus, according to V. Pleskachevskii, the provisions of the new Law determining the role of the State in the process of bankruptcy and the powers of self regulating organizations needed to be further specified.
By late 2002 – early 2003, the initial, often hasty and disputable opinions of the experts concerning the enacted new Law had given way to more composed and better substantiated estimations183. It is note worthy that the general tone of discussion became “moderately posi tive” – most experts had recognized the generally progressive charac Tserenov Ts. “Gosudarstvo stanovitsia real’nym uchastnikom del o bankrotstve (The State is becoming a real participant in bankruptcy cases)”. – Expert’s Channel, OPEC.RU, 2002.
See, e.g., Neimysheva N., Trefilova T. “Narushat’ zakon dolzhno byt’ nevygodno (It must be unprofitable to violate the law)”. – Vedomosti, 12 August 2002; Kats K. Tatiana Trefilova: Zakon tiazheloi sud’by (A Law with hard luck)”. – Gazeta of 14 August 2002;
Trefilova T. Vtoroe dykhanie (Second wind). – Ekonomika i zhizn’, 2003, No. 11.
Kotsiba N. Voprosy antikrizisnogo upravleniia v usloviiakh deistviia novogo zakona o bankrotstve (Issues of anti crisis administration under the conditions of the new law on bankruptcy being in force). – Vestnik FSFO RF, 2002, No 10.
See, e.g., Zavadnikov V. Bankrotnye killery lishatsia raboty (Killers in bankruptcy will lose their jobs) – Rossiiskaiia gazeta of 2 November 2002; Kiperman G. Novyi zakon o. – bankrotstve (The new Law on bankruptcy) Finansovaia gazeta. Regional’nyi vypusk (Re gional Issue). 2002, No. 47; Yerofeev A. Bankrotstvo: budet li rabotat’ novyi zakon (Bank ruptcy: will the new law work) – Vedomosti, 27 November 2002; Khudoleev V. Osoben nosti poriadka priznaniia nesostoiiatel’nosti (bankrotstva) predpriiatii i organizatsii (The peculioarities of the procedure for recognizing the insolvency (bankruptcy) of enterprises and organizations.– Konsul’tant buhkgaltera, 2003, No. 2; Samodurov V. Vlast’ ne prosh chaiet dolgi (The State does not forgive debts). An interview with the Director of the FSFRB of Russia Trefilova T. I. – Muzhskaia rabota, 2003, No. 4; V.Vitrianskii. Obzor os novnykh polozhenii federal’nogo zakona “O nesostoiatel’nosti (bankrotstve)”. (An over – view of the main provisions of the Federal Law “On insolvency (bankruptcy)” Antikrizis noe upravleniie, 2003, No. 5–6.
ter of the new Law. The most positive estimations were offered in re spect to the following provisions in the Law:
• a 30 day “period of postponement” was established in the consid eration by the arbitrage court of a bankruptcy case, after having ac cepted a petition that a debtor be deemed to be bankrupt, during which the debtor may repay its debts;
• the formation of the register of the creditors’ claims was to be effectuated by a decision of the arbitrage court;
• a new participant was introduced in the bankruptcy process – a representative of the debtor’s founders (or participants) or of the owner of the property of a debtor – a unitary enterprise;
• more precisely and in more detail the functions of bankruptcy commissioners were determined;
• it was envisaged that the debtor’s opinion be taken into considera tion when appointing a bankruptcy commissioner;
• when the debtor’s director had been dismissed within the frame work of the supervision procedure, his responsibilities were dele gated by the arbitrage court to the candidate suggested by the rep resentative of the debtor’s founders (or participants) or of the owner of the property of a debtor – a unitary enterprise, and in the event of absence of such a candidate – to one of the deputy direc tors, or to another employee of the debtor;
• the State was made equal in its rights to the other creditors;
• the election of the creditors’ committee was based on cumulative voting;
• a possibility was envisaged for a transition from bankruptcy pro ceeding to external administration;
• the sale of the debtor’s property within the framework of bank ruptcy proceeding in a general case was effectuated in an open bidding.
As for the criticism concerning the new Law, an absolute priority be longs to the provision concerning the institution of self-regulating organizations of bankruptcy commissioners (SROs). Some experts have voiced their doubts as to the feasibility of the very idea of creating such an institution. In particular, according to Deputy Chairman of the RF Supreme Arbitrage Court V. Vitrianskii, the activity of SRO “will be aimed only at building the system of a so called business on debt. If formerly it was possible to speak of the engagement of only some of bankruptcy commissioners, now whole organizations with such goals will come into existence. In the West, the policy is oriented to making bankruptcy commissioners more independent, and here it has an opposite orienta tion. Our attitude to self regulating organizations is very negative. They are the center of a specific business “on a debtor’s bones”. It is already known that the main bulk of the debtor’s funds will be spent on paying for the services of the organizations accredited to the corresponding self regulating organizations”184.
Other authors, while not rejecting the idea of creating the institution of SRO as such, expressed their strong doubts as to the possibility and advisability of its rapid implementation. In particular, according A. Yero feev, the manager of “KPMG”, “The idea in itself is good and is being widely applied in the world, but in its present form it would hardly bear a good fruit. The transfer of the regulatory functions to SRO, will become possible only when they obtain true force and reputation (instead of simply answering a number of formal criteria). Until this happens, it is better to leave the functions of attestation, observation and sanctions with a state body”185.
In addition to “ideological” criticism of the SROs, the experts also made some comments in respect to the specific forms of regulating their activity, which, with a certain generalization, may be boiled down to the following ones:
• insufficient precision of the regulation of the SROs’ functions;
• inadequate sufficiency of the mechanisms of supervision over the SROs’ activity;
• insufficient precision of the description of the procedure and the conditions for using the compensation fund, etc.
It should be noted that there have also been voiced some positive opinions concerning the SROs. However, these mostly belonged to state officials, who, due to the essence of their work, had been directly involved in the formation and regulation of such organizations (first of Obzor osnovnykh polozhenii federal’nogo zakona “O nesostoiatel’nosti (bankrotstve)”.
– (An overview of the main provisions of the Federal Law “On insolvency (bankruptcy)”.
Antikrizisnoe upravleniie, 2003, No. 5–6.
Yerofeev A. Bankrotstvo: budet li rabotat’ novyi zakon (Bankruptcy: will the new law work) – Vedomosti, 27 November 2002.
all, the FSFRB’s officials)186, and so their point of view can hardly be re garded as an objective one.
Beside the problems relating to the regulation, creation and func tioning of the SROs, the following features were frequently mentioned as the new Law’s limitations:
• the lack of adequate precision in determining the requirements concerning the unrelated status of a bankruptcy commissioner;
• the lifting of the moratorium on certain demands of the creditors;
• the lack of total clarity in respect to the choice of specific bank ruptcy procedures, etc.
Finally, quite a few among the innovations introduced by the Law on bankruptcy have been subject to controversial estimations on the part of experts. The most important among these innovations, as well as the typical estimations thereof by the experts (both positive and negative) can be seen in the Table 13:
On the whole, judging by the experts’ opinions, it should be recog nized that the new Law on bankruptcy, as compared to the previous one, is more progressive. The proof of this is the presence in the new Law of a large number of positive innovations. At the same time, this document is not without its drawbacks, the most significant of which lie in the realm of creation and regulation of SRO.
The enactment of the new Law, just as expected, die not result in a complete elimination of “strange” bankruptcies. Below are some typical examples of the violations and abuses occurring during the period when the new Law on bankruptcy has been in force.
See, e.g., Fomin S. Federal’naiia sluzhba Rossii po finansivomy ozdorovleniiu i bankrot stvu – na segodniashnii den’ edinstvennyi gosudarstvennyi organ, kotoryi v sostoiianii ispolnit’ funktsii upolnomochennogo organa dlia osushchestvleniia gosudarstvennoi politiki po realizatsii prav gosudarstva kak kreditors (The Federal Service for Financial Rehabilitation and Bankruptcy of Russia today is the only federal agency capable of per forming the functions of an empowered body for implementing state policy aimed at real izing the rights of the State as a creditor). – Antikrizisnoe upravleniie, 2003, No 3–4; also see Samodurov V. Vlast’ ne proshchaiet dolgi (The authority does not forgive debts). An interview with the Director of the FSFRB of Russia Trefilova T. I. – Muzhskaia rabota, 2003, No. 4; On line conference with Trefilova T., by the “Garant” company, 20 May 2003.
Table Experts’ evaluations of innovations in the bankruptcy law Innovation Advantage Limitation Initiation of bankruptcy Applying bankruptcy proce Rights of honest creditors are is made more difficult dures as means of taking restricted, liquidation of ineffi control over enterprises has cient enterprises becomes become more difficult more difficult Procedure of financial More opportunities for re Opportunities are created for rehabilitation is intro storing debtor’s solvency dragging out bankruptcy duced cases Candidates for bank Bankruptcy commissioners Bankruptcy commissioner ruptcy commissioners have become less dependent becomes dependent on SRO are nominated by SRO on creditors Tougher requirements Professional level of bank Circle of potential bankruptcy to bankruptcy com ruptcy commissioners has commissioners is unjustifiably missioners become higher narrow Insurance of respon Compensation for losses Bankruptcy commissioner sibility of bankruptcy caused by unlawful actions of becomes dependent on party commissioner is en bankruptcy commissioners is that provided funds for paying visaged introduced insurance premium List of special debtor Higher flexibility of regulation Liquidation of inefficient enter categories is extended prises becomes more difficult Example One On December 2, 2002, after three months of supervision, the Arbi trage Court of Amur Oblast introduced external administration at the Open Joint Stock Company (OJSC) “Dal’vostugol’”. The enterprise’s credit indebtedness was about 3 billion roubles, its main creditor being the State. The enterprise was in the sphere of interests of the company “Russkii ugol’” of the “MDM” Group, the latter having control over about 30% of its shares. A. Zinchenko (according to some information, a pro té “Russkii ugol’”) was appointed the external administrator of the géof OJSC “Dal’vostugol’”.