This example is remarkable in that the conflicting parties were not business structures but the federal and regional levels of authority. Also remarkable is that the FSFRB’s territorial agency ‘s position was to op pose not the bankruptcy of a federal enterprise as such, but only the procedural actions of the Oblast Administration, as a result of which the said agency lost its leading role in the process of bankruptcy189.
Example In February 2002, bankruptcy proceedings were started in respect to Nizhnii Novgorod Chemical Combine “Korund” – Russia’s largest producer of synthetic corundum and cyanides. The enterprise’s total current and moratorium debts amounted to about 1.5 billion roubles, including the debts to “Nizhnovenergo” – in the amount of about million roubles.
In mid May of 2003, the Combine’s receiver M. Gorchakov, without the creditors’ consent, sold the shares of “Korund”’s three subsidiaries – “Predpriiatie“Korund””, “Chernorechenskii” and “Chernorechenskii khimzavod “Korund””, in whose fixed assets the main bulk of its liquid property was listed – to the Open Joint Stock Company (OJSC) “Ma tis”, which represented the interests of the “Energoprom” company (the UGMK’s affiliated structure). Thereby the receiver undermined the auc tioning of “Korund”’s property complex initiated by its largest creditor in bankruptcy “Nizhnovenergo”. Remarkably, the lowest price at the auction was to be 310 million roubles, whereas the receiver sold the shares of “Korund”’s key subsidiaries for only 51 million roubles, having explained this by the need to promptly redeem the arrears of wages, amounting exactly to about 50 million roubles. It should be noted that in early June of 2003 M. Gorchakov was dismissed from his post on a mo tion by the creditors’ committee, which, however, made no difference as to the outcome of the case190.
In the context of discussing the current possibilities of applying the institution of bankruptcy for uncivilized property redistribution and for taking over the control over enterprises, it seems necessary to reflect Barsukova N. Padeniie “Komety”: bez shuma ne oboshlos’ (The fall of “Kometa”: not without noise). – Kontinent Sibir’, 14 February 2003.
Tselibeev S., M. Rozhkova. “Korund dostalsia “Energopromu (“Korund” was taken by “Energoprom”). – Vedomosti, 6 June 2003.
the general standpoint of state officials in respect to this issue. Thus, according to Director of the FSFRB T. Trefilova, by mid 2003 the posi tive effect of the enactment of the new Law had already revealed itself in terms of property protection.191 As stated by First Deputy Director of the FSFRB N. Kotsuba, the new Law is an efficient obstacle in the way of applying “orchestrated” bankruptcies for the sake of hostile takeovers.
The opinion of Chairman of the Moscow Committee for Insolvency N.
Badaev, that the application of bankruptcy as one of the methods for a hostile takeover has been abolished almost entirely, largely due to the new Law on bankruptcy, is also noteworthy192.
Of course, the official status of these persons leaves room for doubts as to the sincerity of their words. Nevertheless, there can be no doubts in respect to the fact that after the enactment of the new Law on bank ruptcy, the scandals and conflicts indicative of attempts to apply bank ruptcy as a means of uncivilized property redistribution and seizure of the control over enterprises have become noticeably less common.
This circumstance, in conjunction with the opinions of state officials cited above, has led to the conclusion that in the new Law the problem of “strange” bankruptcies has been resolved more effieicntly that in the previous one.
On line conference with T. Trefilova, by the “Garant” company, 20 May 2003.
Based on the materials of the Bureau for Legal Information, (www.bpi.ru), 19.12.2002.
Chapter 6. The institution of bankruptcy commissioners in contemporary Russia 6.1. Main Principles A bankruptcy commissioner represents one of the key figures in the bankruptcy process. It is the bankruptcy commissioner’s actions that largely influence the efficiency with which bankruptcy procedures are implemented and the necessary equilibrium of interests of different parties – the debtor, the debtor’s founders, and the creditors – is main tained. Within the framework of this chapter, the main phases in the de velopment of legal regulation of the activity of bankruptcy commission ers are being discussed, as well as the approaches to determining their juridical status, the practical functions of the institute of bankruptcy commissioners, and the possible impact on it produced by the new Law on bankruptcy.
Due to the tremendous importance of the role of bankruptcy com missioners in the process of bankruptcy, as assigned to them by cur rent legislation, the issue concerning their legal status appears note worthy. According to V. Borodin, the main purpose of involving a bank ruptcy commissioner in the bankruptcy process is to limit, to a varying degree, the powers of the former management to run an organization that has become an insolvent debtor, as well as to have the bankruptcy commissioner implement a set of special measures. During the proce dure of supervision, the activity of a temporary administrator appointed by an arbitrage court is aimed at safeguarding property and carrying out a comprehensive analysis of the debtor’s estate. In this connection, a wide range of rights and duties is delegated to the temporary adminis trator, thus enabling him to efficiently enough achieve the abovemen tioned goals of this bankruptcy procedure. Especial attention is paid to the fact that the initiation of the supervision procedure cannot serve as the grounds for dismissing the director or other administrative bodies of the debtor. However, this procedure requires that they obtain, on a mandatory basis, the temporary administrator’s consent for the effec tuation of certain transactions. Besides, the debtor’s administrative bodies are not allowed to make certain decisions on their own193.
One of the possible consequences of the observation procedure can be the imposition, by an arbitrage court, of the procedure of external administration, which results in a radical change in the procedure of administering the debtor. The debtor’s director is dismissed, and the management of the debtor's affairs is delegated to the external admin istrator. In contrast to a temporary administrator, an external adminis trator enjoys a much wider range of powers in respect to the manage ment of an insolvent debtor, being invested for the duration of the pe riod of external administration, with almost all the powers of the director and all the other administrative bodies of the debtor. This, however, does not mean that no restrictions at all are imposed on the actions of an external administrator: the effectuation of major deals and transac tions, with related parties involved, is possible only with a preliminary consent of the creditors’ meeting or the creditors’ committee. The law also envisages other restrictions to the external administrator’s inde pendent power to dispose of the debtor’s property.
Thus, supervision and external administration are regarded as forms of restricting the dispositive legal capacity of a juridical person, and in this sense the legal status of bankruptcy commissioners (or, more ex actly, temporary and external administrators) has much in common with that of trustees and guardians of a physical person, though, of course, the goals and objects of administration in bankruptcy and those of the institution of trusteeship and guardianship are fundamentally different.
Major differences exist between the legal status of temporary and external administrators and that of a receiver who participates in the effectuation of the final stage of the bankruptcy process, that is, bank ruptcy proceeding. In this connection, bankruptcy proceeding as such may be represented as a system of measures being implemented un der the supervision of an arbitrage court, whose goal is, firstly, to effec tuate the debtor’s liquidation (as a juridical person), and secondly, See Borodin V. Pravovaia priroda statusa arbitrazhnykh upravliaiushchikh v zakono datel’stve o nesostoiatelnosti i ptoblema pravosub”iektnosti iuridicheskikh lits (The legal nature of the status of bankruptcy commissioners, as determined in legislation on insol vency, and the problem of the legal personality of juridical persons). – Posted at:
commensurate the satisfaction of the claims put forth by the debtor’s creditors. When making the decision that a debtor be deemed to be bankrupt and bankruptcy proceeding be initiated, the arbitrage court appoints a receiver.
While discussing the legal meaning of the status of receivers, V.
Borodin agrees with the viewpoint of G. Sheshenevich who regarded bankruptcy proceeding as a qualified execution proceeding. The legal nature of the status of receivers is based on the execution of the deci sion made by an arbitrage court that a debtor (juridical person) be deemed to be bankrupt. The activity of a receiver is formalized to a much higher degree than that of the other types of administrators and has a very concrete purpose – that of the fairest possible distribution of a debtor’s property among its creditors. On the contrary, the legal status of temporary and external administrators is based on their rela tively independent actions, which are to a much lesser degree are bound by decisions made by other agencies (including the arbitrage court).
A somewhat different viewpoint concerning the status of bankruptcy commissioners has been put forth by S. Rukhtin194. In the author’s opin ion, the emergence of the creditors’ right to participate in the admini stration of the debtor’s affairs during the process of bankruptcy, and in effect – to manage the debtor’s property (reflected in the possibility to choose a bankruptcy commissioner, determine the type of bankruptcy procedure to be applied, perform the functions of supervision, etc.), is associated with a change in the debtor’s legal status. Therefore, the consolidation to creditors of the right to participate in administering the debtor’s property through influencing the bankruptcy commissioner’s will is none other but the right to determine the status of a bankruptcy commissioner within the framework of concrete legal relations.
Resulting from the dismissal of the debtor’s administrative bodies, the administrative powers are transferred to a bankruptcy commis sioner, who, however, does not become an administrative body as such either by definition or by the content of his powers. A bankruptcy com missioner is an independent subject of law, i.e., has independent rights, interests and will, and therefore acts in legal relations of his own behalf.
Rukhtin S. Pravosposobnost’ nesostoiatel’nosti iuridicheskogo litsa. (Legal capacity of insolvency of a juruducal person). – Rossiiskaia iustitsiia, No. 7, 2001.
It means that in the legal relation of bankruptcy the role of the debtor is, in fact, played not by a debtor but by another person – a bankruptcy commissioner.
Thus, the “disappearance” from the civil turnover of one person (the debtor) entails the appearance of another person (bankruptcy commis sioners), into whose authority all the debtor’s estate is transferred, with the exception of certain rights associated directly with the debtor’s per sonality. However, the bankruptcy commissioner as such is not inde pendent in respect to the administration of the debtor’s property. His behavior is determined by both the norms stipulated in the law and by the decisions of creditors’ meetings.
6.2.Regulation of the activity of bankruptcy commissioners: phases of development The institution of bankruptcy commissioners is an important and in dispensable part of the institution of insolvency, and therefore its devel opment in this country has been inalienably related to the development of the procedures and instruments of bankruptcy.
As a precursor of the institution of bankruptcy commissioners in Russia, the special institutions of independent and administrative man agers can be pointed out, introduced in respect to state controlled en terprises by the RF President’s Edict of 14 June 1992 No. 623 “On measures designed to support and rehabilitate insolvent state enter prises (bankrupts) and on applying to them special procedures”. This document envisaged the transfer of an enterprise deemed to be bank rupt, in order to reorganize it on a competitive basis, into the independ ent administration and jurisdiction of entrepreneurs – juridical or physi cal persons (including foreign ones) for the period of 6 to 18 months. In the event the competition did not result in the determination of the win ner, or if after the expiry of the established period the independent en trepreneur failed to achieve the necessary positive results of reorgani zation, it was envisaged that direct administration of the enterprise be introduced for a period of 3 to 12 months (for agricultural enterprises – up to 18 months), with the appointment, on a contractual basis, of an administrative manager. In the event the enterprise had a sole owner (the State), the administrative manager was appointed by an appropri ate body of state authority, in the event of several owners – by a board established by the enterprise’s owners and creditors.
During the process of a bankrupt enterprise’s administration, the following duties were imposed on the independent entrepreneur or the administrative manager:
• the preservation of no less than 70% of jobs;
• the guarantees of social protection to the enterprise’s employees, including the rights and interests of the employees being dismissed during the reorganization;
• the repayment of the enterprise’s debts;
• the enterprise’s environmental safety during the reorganization and as a result thereof.
During the period of reorganization, the independent entrepreneur or the administrative manager acquired full rights to effectuate the en terprise’s administration, including the rights to:
• change the structure of operations and the orientation of produc tion;
• appoint and dismiss employees, including the enterprise’s CEOs;