As an improvement on the existing procedure one may regard the introduction of an online bidding procedure with regard to a bankrupt enterprise. By Order of the RF Ministry of Economic Development of 15 February 2010, No. 54 the following procedures and requirements are approved:
- the procedure for an online open bidding for a debtor’s estate (or an enterprise) to be sold in the framework of a bankruptcy proceeding;
- the requirements to the online auction floors and operators of online auction floors relating to open online bidding for a debtor’s estate (or an enterprise) to be sold in the framework of a bankruptcy proceeding;
- the procedure for confirming the compliance of online auction floors and operators of online auction floors with the established requirements.
Besides, the Unified Federal Register of Bankruptcy Information has been created that contains and makes public a broader spectrum of issues relating to the conduct of procedures applied in bankruptcy cases (concerning the initiation of each proceeding in bankruptcy; the conduct of bidding on the sale of property of debtors and the results of biddings; the suspension or dismissal of arbitration commissioners, etc.).
Section Institutional Issues In December 2010, the Federal Law regulating the procedure for the creation and functioning of the Register was signed 1. Thus, in particular, the creation and functioning of the Unified Federal Register of Bankruptcy Information is to be effectuated by the operator of the Unified Federal Register of Bankruptcy Information, that operator being a legal entity registered in the territory of the Russian Federation and in possession of appropriate technical appliances enabling the said operator to ensure the creation and keeping of the said Register in an electronic form, and also an entity selected specifically for the performance of the said functions by the regulatory agency.
The procedure for selecting the operator of the Unified Federal Register of Bankruptcy Information is to be confirmed by the regulatory agency and must ensure the possibility of participating in the selection procedure of all the entities that comply with the criteria established by the regulatory agency. Alongside the information that will have to be published under the Federal Law, the Unified Federal Register of Bankruptcy Information should also incorporate certain other types of information, the list of which is to be established by the regulatory agency.
The reliability of the information on a given debtor as of the moment of it being entered in the Unified Federal Register of Bankruptcy Information is to be checked by an operator of the Unified Federal Register of Bankruptcy Information by means of comparing it with the information contained in the Unified State Registerе of Legal Entities and/or the Unified State Register of Individual Entrepreneurs.
The information to be published under the bankruptcy law is to be entered in the Unified Federal Register of Bankruptcy Information from 1 April 20112.
In July 20093, the status of creditors in the framework of proceedings in bankruptcy was further strengthened.
Firstly, the distribution of responsibility and the powers with regard to the sale of enterprises were defined more precisely: from now on, it has been consolidated in legislation that the functions of the organizer of bidding are to be performed by an external manager; the procedure and conditions for the conduct of bidding are not to be determined in advance by a creditors’ committee, as it happened earlier, but are to be approved on the basis of an application submitted by an external manager. In this connection, the terms for the sale of a debtor’s estate have been expanded and further specified, and in addition these terms have to be coordinated with the arbitration commissioner, or a creditor committee, or a creditor meeting.
Among these terms are, for example, the composition of the estate; the form of bidding (an auction or a tender); the terms of the tender, the form of presenting the proposal of price (close or open); and the starting price of the estate; the mass media organs where the announcements of the bidding are to be published (Item 1 of Article 139 of the Federal Law ‘On Insolvency (Bankruptcy)’).
Thereby, the level of debtor-creditor asset sale transparency was increased, while opportunities for abuse on the part of arbitration commissioners, including by restricting access to auctions by pooling (when assets are grouped into large auction lots); and by publishing up Federal Law of 28 December 2010, No. 429-FZ ‘On the Introduction of Alterations in Federal Law “On Insolvency (Bankruptcy)” and Recognizing as Null and Void Parts 18, 19 and 21 of Article of the Federal Law “On the Introduction of Alterations in the Federal Law ‘On Insolvency (Bankruptcy)’”.
Item 2 of Article 4 of Federal Law of 28 December 2010, No. 429-FZ.
Federal Law of 19 July 2009, No. 195-FZ ‘On the Introduction of Alterations in Some Legislative Acts of the Russian Federation’.
RUSSIAN ECONOMY IN trends and outlooks coming auction announcements in small-circulation newspapers and magazines and then buying out all the copies, etc.
Secondly, a number of innovations relating to the satisfaction of creditor claims secured by a pledge were adopted. This enables an arbitration court to determine both the process and conditions of sale of the subject of pledge, should any differences arise between the commissioner in bankruptcy and a creditor in bankruptcy with regard to the liabilities secured by the pledge. And this means that, in the event of a repeat auction being declared as having failed, such creditor is now endowed with the right to retain the subject of pledge, valuing it in an amount which must be 10% lower than its initial selling price at the repeat auction. Moreover, this means that the creditor is not to take advantage of the right to retain the subject of pledge, and the latter can be sold by way of public sale (Items 4, 4.1 of Article 138 of the Federal Law ‘On Insolvency (Bankruptcy)’).
The adopted legal norms represent a natural continuation of the previous innovations introduced in the field of civil law that made it possible for ownership of the subject of pledge to be transferred to the pledgeholder without resorting to judicial proceedings1. These innovations make it possible for pledgeholders, of which banks with high degree of state control constitute the majority, to provide solutions to that problem by applying lawful methods.
Thirdly, the extension of tax norms to the regulation of relations pertaining to settlements with regard to mandatory payments (paragraph 2 of Item 3 of Article 84; paragraph 2 of Item 2 of Article 194 (in regard of strategic enterprises) of the Federal Law ‘On Insolvency (Bankruptcy)’) was abolished. The abolition of that norm is conducive to a more frequent application of the instruments of amicable agreements and financial recovery of enterprises.
In Aprilе 2010,2 large-scale innovations were introduced that were designed to prevent bankruptcies of financial institutions (including insurance companies), as well as to regulate the special procedure for the conduct of bankruptcy proceedings against non-state pension funds, professional securities market participants and the asset managers of investment and mutual investment funds.
On the whole, these innovations were based on the model of financial recovery and interim management regulation initially stipulated in Federal Law of 25 February 1999, No. 40-FZ ‘On the Insolvency (Bankruptcy) of Credit Institutions’, which was now substantially expanded to encompass a broader range of issues to be regulated and the categories of persons to which these new legal norms were to be applied.
The range of persons that were to be subject to the new special bankruptcy norms was expanded to include asset managers of investment funds, mutual investment funds, and nonstate pension funds, which under the new law were placed in the category of financial institutions.
The range of issues to be regulated encompasses measures designed to prevent bankruptcies of financial institutions similar to the measures for financial recovery of credit institu Federal Law of 30 December 2008, No. 306-FZ ‘On the Introduction of Alterations in Some Legislative Acts of the Russian Federation in Connection with Improving the Procedure for Levying Execution on Pledged Property’.
Federal Law of 22 April 2010, No. 65-FZ “On the Introduction of Alterations in the Law of the Russian Federation ‘On the Organization of Insurance Business in the Russian Federation’ and Some Legislative Acts of the Russian Federation”.
Section Institutional Issues tions1: the provision of financial aid to an organization by its founders; alterations introduced in the organization’s structure of assets and liabilities; reorganization and other measures that are not forbidden by legislation (Article 183.1 of the Federal Law ‘On Insolvency (Bankruptcy)’).
In an event when proper grounds arise for applying the measures designed to prevent bankruptcy of a financial institution, the said institution is obliged to approve and submit to the controlling agency – the RF Central Bank – a plan for restoring its solvency, including an analysis of its financial situation, a list of measures to be implemented in order to prevent its bankruptcy, and the timelines for their implementation that should not exceed a period of 6 months.
The grounds for implementing the measures designed to prevent bankruptcy of a financial institution are as follows (Article 183.2 of the Federal Law ‘On Insolvency (Bankruptcy)’):
1) multiple refusals, within the period of one month, to satisfy the claims of creditors in regard of financial liabilities;
2) failure to fulfill obligations in regard of mandatory payments within the period of more than 10 working days from the date established for the execution of those payments;
3) insufficiency of available cash for timely fulfillment of financial liabilities and (or) obligations in regard of mandatory payments, if the fulfillment of such liabilities and (or) responsibility is already due.
In each of the aforesaid cases the financial institution is obliged to submit to the controlling agency, within 15 days, a notification with an attached plan for restoring its solvency (if any indicia of bankruptcy in this connection are absent).
Within 30 working days, the controlling agency must make the relevant decision concerning the introduction of interim management of the financial institution, or lack of feasibility of introducing interim management.
Interim management is introduced in the following instances:
1) the controlling agency reveals the instance of multiple refusals, within the period of one month, to satisfy creditors’ claims in regard of financial liabilities; or failure to fulfill obligations in regard of mandatory payments within the period of more than 10 working days from the established date for their execution, if in each of these instances the financial institution failed to notify the controlling agency of the presence of those circumstances;
2) the controlling agency made the decision that interim management should be introduced on the basis of the results of its on-site audit or its analysis of the submitted plan for restoring the financial institution’s solvency;
3) the financial institution fails to fulfill or improperly fulfills the plan for restoring its solvency (Item 1 of Article 183.5 of the Federal Law ‘On Insolvency (Bankruptcy)’).
The controlling agency’s decision to introduce interim management must be published and posted on the website of the controlling agency. The purpose of interim management introduction is to restore the solvency of a financial institution and/or to guarantee the safety of property.
The aims of interim managers are as follows:
Article 7 of Federal Law of 25 February 1999, No. 40-FZ ‘On the Insolvency (Bankruptcy) of Credit Institutions’.
RUSSIAN ECONOMY IN trends and outlooks - to adopt measures designed to prevent bankruptcies and/or to control the application of such measures;
- to eliminate the existing grounds for suspension or limitation of the license of a financial institution.
The composition of an interim management team, as well as the procedure and the grounds for changing its composition, should be approved by the controlling agency. The person appointed head of an interim management team should be an arbitration commissioner who has passed an additional examination which is to entitle him or her to exercise relevant managerial functions in the afore-listed institutions. The head and members of an interim management team should be selected by the controlling agency in the procedure established by the regulatory agency. On his or her appointment, the head of the interim management team should conclude a liability insurance contract.
The controlling agency has the right to send its representatives to a financial institution for the purpose of exercising control over the activities of that financial institution and its interim managers.
The Law sufficiently thoroughly regulates the functions of interim managers, the consequences of their appointment, their duties, and the consequences of limitation and suspension of the powers of the executive bodies of a financial institution (Articles 183.7–183.11 of the Federal Law ‘On Insolvency (Bankruptcy)’).
The term in office of interim managers is between three and six months, with the possibility of an extension of up to three months.
Interim managers should carry out an analysis of the financial situation of the financial institution in their charge, and no later than 45 days after the date of their appointment should submit, to the controlling agency, a conclusion on the financial situation of that financial institution. In the event the conclusion suggests the possibility of restoring the solvency of the financial institution, the interim managers should submit, to the controlling agency, a plan for solvency restoration. In the event of the impossibility thereof, the interim managers should recommend that a petition for bankruptcy be filed.
On conclusion of their term in office, interim managers should submit a report on the results of their activities.
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