For market participants engaged in clearing activities and trading in the securities market – Rb 80m, and by 1 July 2011 – Rb 100m. The size of the charter capital of companies providing services of running registers of securities holders – Rb 100m, and from 1 July 2011 – Rb 150m; of stock exchanges – Rb 150m, and from 1 July 2011 – Rb 200m. The specifications of sufficiency of own funds for asset managers of investment funds, mutual investment funds and non-state pension funds established from 1 July 2010 envisage the floor of Rb 60m, and from 1 July 2011 – Rb 80m. – Chislo professional’nykh uchastnikov rynka tsennykh bumag okruga snizhaetsia, I eta tendentsiia sokhranitsia. [The Number of the District’s Professional Securities Market Participants is Declining, and This Trend is Bound to Persist]. – http://www.verbacapital.ru, 21 September 2010.
Section Institutional Issues lobby. Most likely, some combination of all these aspects was taken into account by the authorities before making the afore-said decision.
Within the framework of implementation of that idea, Russia adopted Federal Law, of 30 December 2008, No. 296-FZ, ‘On the Introduction of Alterations in the Federal Law ‘On Insolvency (Bankruptcy)” and Federal Law, of 28 April 2009, No. 73-FZ ‘On the Introduction of Alterations in Some Legislative Acts of the Russian Federation’. Those alterations were designed to increase the transparency of bankruptcy proceedings, mainly by changing the rules regulating the activities of arbitration commissioners and their self-regulatory organizations (SROs); by increasing their responsibility; and by introducing a number of other innovations.
1. Arbitration Commissioners Firstly, the new laws have raised the level of responsibility of arbitration commissioners.
The non-performance or improper performance by an arbitration commissioner of his or her duties, including those envisaged by federal standards, now constitutes a ground for his or her being removed from the process of management, which is to be carried out by one or other arbitration court on demand of the persons taking part in the bankruptcy case. Also, the procedure for implementing the decision on an arbitration commissioner’s disqualification is now specified in detail1.
Secondly, the introduced alterations have changed the system of commission-fee payments to an arbitration commissioner and the persons invited thereby to render their services in the course of the bankruptcy process. The newly introduced mechanism of commission-fee payments is designed to stimulate an arbitration commissioner’s activity on behalf of the creditors. It envisages that the commission fee of an arbitration commissioner should be fixed at to 45 thousand rubles per month2, depending on which stage of bankruptcy process management is conducted, and that an additional payment can be made to an arbitration commissioner on the creditors’ initiative3.
The amount of money that may be spent by an arbitration commissioner on the services of specialists invited by him or her is also subject to detailed regulation, and depending on the size of the balance sheet value of the debtor’s assets it may be equal to 10% of the value of assets from Rb 200,000 to Rb 2,995,000; and to 0.01% of sums in excess of Rb 1bn, if asset value is above Rb 1bn4. Also, the size of payments for such services, as it is determined by Later on, in December 2010, it was established, by Federal Law No. 429-FZ, of 28 December 2010, ‘On the Introduction of Alterations in the Federal Law ‘On Insolvency (Bankruptcy) and on the Invalidation of Parts 18, 19 and 21, Article 4 of the Federal Law ‘On the Introduction of Alterations in the Federal Law ‘On Insolvency (Bankruptcy’’, that requirements to the property liability of arbitration commissioners for the non-performance or improper performance of their duties could be extended by the inclusion of federal standards professional activity standards and regulations. Data from the Register of Disqualified Arbitration Commissioners should be entered in the Unified Federal Register of Bankruptcy Information.
This amount can be increased by a court decision on the petition filed by participants in a bankruptcy case.
For more details, see Items 10-14, Article 20.6 of the Federal Law ‘On Insolvency (Bankruptcy)’.
In July and December 2009, the size of interest payments due to arbitration commissioners and the size of payments for the services rendered by the persons invited by an arbitration commissioner were slightly changed. For more details, see Items 10 and 11, Article 20.6 and Item 3, Article 20.7 of the Federal Law ‘On Insolvency (Bankruptcy)’ as amended by Federal Law of 17 December 2009, No. 323-FZ, ‘On the Introduction of Alterations in Articles 20.6 and 20.7 of the Federal Law ‘On Insolvency Bankruptcy)’ and Article 4 of the Federal Law ‘On the Introduction of Alterations in the Federal Law on Insolvency (Bankruptcy)’.
RUSSIAN ECONOMY IN trends and outlooks the law, and the payments themselves can be recognized as unjustified on the basis of a petition filed by the persons taking part in the bankruptcy case, if such services are not related to the aims of the ongoing bankruptcy proceedings or to the duties imposed on the persons invited by the commissioner in bankruptcy, or if the size of payments for such services is ‘clearly not proportionate to the expected result’.
Thirdly, the new legislation has extended the duties of arbitration commissioners in the part of provision of information to participants in bankruptcy proceedings: to the creditors – with regard to the transactions and actions that will entail or can entail the civil liability of third parties, and with regard to the revealed indications of fraudulent bankruptcy; and to the corresponding government agencies – with regard to the revealed administrative violations and crimes.
Fourthly, the new laws have introduced rigid requirements to the compulsory liability insurance contracts concluded by arbitration commissioners. The law has defined the objects of compulsory insurance, the insurance event and the insurance risks under liability insurance contracts, and has defined the procedure for the effectuation of payments due under such contracts. In July 20091, the amounts of insurance payments to be due under the contracts concluded by arbitration commissioners were slightly reduced.
2. Self-Regulatory Organizations (SROs) of Arbitration Commissioners Firstly, the new laws have extended the powers and increased the responsibility of selfregulatory organizations (SROs) of arbitration commissioners. Thus, starting in 2009, these SROs have been granted the right to issue accreditation to the insurance organizations, valuators, and professional securities market participants that are involved in the maintenance of a register, as well as to other persons invited by arbitration commissioners within the framework of implementation of their duties in the course of one or other bankruptcy case. Also, the SROs in question are obliged to develop standards and rules for arbitration commissioners’ activities and to supervise their implementation, as well as to make sure that commissioners in bankruptcy duly observe all the requirements concerning compulsory liability insurance.
In December 20102, SROs of arbitration commissioners were also authorized to issue accreditation to electronic trading floor operators who organize bidding for the sale of debtors’ property.
Secondly, the new legislation has established that self-regulatory organizations of arbitration commissioners should be obliged to disclose data on their activities, including the data concerning their compensation funds; asset managers; and all the instances of disciplinary measures being applied against arbitration commissioners.
Thirdly, the new legislation has established the procedure for the use, by SROs of arbitration commissioners, of their compensation funds, from where payments to debtors are made:
the procedure for presenting claims with regard to compensatory payments; the timelines for making compensatory payments; the conditions for the placements of monies held in a compensation fund; the asset manager’s responsibilities; the procedure for transfer of the monies For more details, see Item2, 2 Article 241 of the Federal Law ‘On Insolvency (Bankruptcy)’ as amended by Federal Law of 19 July 2009, No. 195-FZ.
By Federal Law of 28 December 2010, No. 429-FZ ‘On the Introduction of Alterations in the Federal Law “On Insolvency (Bankruptcy)” and Recognizing as Null and Void Parts 18, 19 and 21 of Article 4 of the Federal Law “On the Introduction of Alterations in the Federal Law ‘On Insolvency (Bankruptcy)”.
Section Institutional Issues held in a compensation fund to the national association of arbitration commissioners when the information on a self-regulatory organization is struck off the register.
Fourthly, the government’s control over the activity of SROs of arbitration commissioners has been toughened. The control functions delegated to the Federal Service of State Registration, Cadastre and Cartography (Rosreestr, formerly Rosregistration) were strengthened through giving the Service some additional powers:
- the right to initiate proceedings against an arbitration commissioner, a self-regulatory organization of arbitration commissioners and (or) that organization’s official in an event of their having committed an administrative violation, and to consider that case or to refer it for consideration to an arbitration court;
- the right to enter information on not-for-profit organizations in the Unified State Register of Self-Regulatory Organizations of Arbitration Commissioners and to take part in its maintenance;
- the right to establish the status of the association of self-regulatory organizations of arbitration commissioners as a national one;
- and some other powers.
In an event of a failure of a SRO of arbitration commissioners to comply with the instructions issued by the controlling (or supervisory) agencies with regard to correcting relevant violations committed in the process of elaborating standards and operative rules, or dealing with complaints submitted with regard to certain actions committed by that organization’s members, representatives of the government agency are obliged to apply to an arbitration court with a petition that the relevant organization be struck off the Unified State Register.
3. Other Measures 1. The desire to achieve the maximum degree of satisfaction of creditors’ claims was the reason for the introduction of a number of mechanisms for disputing transactions aimed at withdrawal of a debtor’s assets – ‘suspicious transactions’ and ‘deals that result in preference being given to one creditor at the expense of another’. In fact, that was the first time in five years when the State adopted some legislative measures designed to narrow the ‘grey field’ in the field of bankruptcy regulation.
2. Then, responsibility of the debtor’s owners is established. For the first time, alongside the aforesaid persons, real owners – ‘the persons controlling a debtor’, understood to be those persons that have possessed, during a period of less than two years prior to the petition in bankruptcy being submitted against the relevant debtor to an arbitration court, the right to issue to that debtor instructions that had to be complied with, or in any other way determine the debtor’s actions, – can be brought to subsidiary responsibility1.
A debtor’s actions may be determined by a controlling person, including by means of coercing the director or members of the board of directors of a debtor organization, or by exerting a leading influence on the said director or members of the board of directors in another way (in particular, the persons that control a debtor may be the members of a liquidation commission; or a person authorized on the basis of a power of attorney, a normative legal act, or special authorization to conclude transactions on behalf of the debtor, or a person empowered to dispose of 50% or more of voting shares in a joint-stock company, or more than half of the charter capital of a limited liability company). Federal Law of 28 April 2009, No. 73-FZ ‘On the Introduction of Alterations in Some Legislative Acts of the Russian Federation’.
RUSSIAN ECONOMY IN trends and outlooks The possibility to actually bring such persons to responsibility is doubtful – given the fact that very often the real owners and beneficiaries of valuable Russian assets cannot be identified even in the course of criminal investigation.
The responsibilities of the directors and owners of credit institutions arising in an event of the situation of imminent bankruptcy are determined, as well as some new sanctions to be applied against them, including a 10-year ban forbidding such persons to acquire shares in credit institutions in an amount of more than 5%, and a three-year ban forbidding them to occupy the post of director of a credit institution.
3. The possibility for a closed sale of debtor assets has been narrowed. Elaborate legislative regulations have been introduced with regard to the procedure for the sale of an enterprise, these rules being also extended to the sale of a debtor’s property or part of that property (Articles 110, 111 and 139 of the Federal Law ‘On Insolvency (Bankruptcy)’). While the possibility of a closed sale of assets has been preserved, that sale now being termed ‘bidding with sealed price proposals’, numerous necessary technical innovations are introduced (the definition of the procedure for submitting an application for the participation in bidding and the requirements for such an application; the requirements to the conclusion of the contract of purchase and sale of an enterprise; the scope of open information concerning the process of sale of an enterprise has been increased, etc.).
The procedure for a formally open bidding has been proclaimed, but the practice of selling debtor’s assets to ‘VIP’ buyers (even under a somewhat limited scenario) will continue, especially if one takes in consideration the increasing pressure exerted by the State on arbitration commissioners whose role, in fact, is to actually organize the bidding or to attract a third organization specifically to perform that function.
In addition to those procedures, a bankrupt enterprise may now be sold at an auction or through a tender – in those cases when the buyer must comply, in regard of a given enterprise, with the conditions set by a creditor committee or a creditor meeting.