Russian legislators chose the way of legal regulation that is not aimed at improvement of general norm, regulating the activity of the majority of economic entities, but at creation of special norms, securing higher guaranties for enterprises, in which the government is interested.
It was more than once that general problems of “government capitalism” formation in Russia of 2000s were considered in monthly and annual IET reviews. As to numbers the direct expansion of the government in the economy is quite obvious: only during 2007-2008 there were 6 state corporations created (Vnesheconombank, Rosnanotech, Fund for assistance to the housing reform, Olimpstroy, Rostechnologies, Rosatom), aviation and seacraft building corporations, assets of the companies controlled by the government were increased substantially (OJSC Rosneft, Gazpromneft, Rosoboronexport) etc. A set of projects on creation of big holdings under the government control and state corporations are being discussed in the government.
In our opinion, expansion of the direct government participation in the economy also accounted for one of the main trends for the development of the modern legislation on bankruptcy – adoption of legal norms, decreasing the risks of loss and decrease in control over assets that are the most important for the government and companies that are under its control.
First of all, the fact that the law on bankruptcy does not apply to state corporation should be mentioned.
Initially in May 2007 it was Vnesheconombank that was exempted from the effect of the law “On insolvency (bankruptcy)”11, and other state corporations followed: in July 2007 Russian nanotechnology corporation12, in November 2007 – state corporation Rostechnologies13, in December 2007 – state corporation on nuclear energy Rosatom14, as well as Vnesheconombank15. At the same time it was established by the law that a state corporation can be reorganized and liquidated only on the basis of a special federal law, defining the procedure for its reorganization or liquidation16. In December 2007 a statement was introduced in the Civil Code of the Russian Federation, concerning all the state corporations and envisaging that “A state corporation may be liquidated only as a result its being declared insolvent (bankrupt) if it is allowed by the fed Currently the third law “On insolvency (bankruptcy)” No 1 27-FZ, which was adopted on 26 October 2002, is in effect Paragraph 5 article 4of the Federal Law from 19.07.2007 No 139-FZ “On Russian nanotechnologies corporation” Paragraph 3 article 4 of the Federal Law from 23.11.2007 No 270 “On state corporation Rostechnologies”.
Paragraph 11 article 3 of the Federal Law from 01.12.2007 No 317-FZ “On state corporation on nuclear energy Rosatom”. The corporation Rosatom also is not subject to the effect of the norms on guaranties for creditors in case of the economic entity reorganization. The state corporation does not have to notify the creditors of the economic entity that is being reorganized in written form, the creditors of the economic entity do not have a right to make a claim for cancellation or pre-term execution of the liability and losses repayment (part 2 article 41 of the Federal Law from 01.12.No 317-FZ).
Paragraph 2 article 19 of the Federal Law “On the bank of development” from 17.05.2007 No 82-FZ.
Article 23 of the Federal Law from 19.07.2007 No 139-FZ “On Russian nanotechnologies corporation”, article 18 of the Federal Law from 23.11.2007 No 270 “On state corporation Rostechnologies” eral law that proposed its establishment”17. There has not been any information on approval of such laws so far. The most important fact is the following – state corporations both existing now and those that will be created in future, irrespective of the aims of their establishment will operate under special conditions: there will be absolutely different conditions for them to be recognized as insolvent, and it is quite probable that they will eliminate the opportunity to fulfill their bankruptcy in practice. Besides, the wording of the Civil Code suggests that under some conditions the corporation cannot be declared insolvent.
In fact the government created the conditions that actually eliminate the risks of loss of state corporations’ assets or control over them. The government that used the bankruptcy institution so effectively to redistribution of OJSC Oil Company YUKOS, is now trying to make conditions for the state corporations, regardless of the efficiency of their economic operations, to avoid such a fate. Narrowing of the sphere of law application and exemption of some subjects from the action of the general regulating norms is now the method widely used by the government, which enables to create the most favorable conditions for the activities that are regarded as most important by the government. Such legal regulation, however, considerably reduces the incentives for the authorities to develop efficient market institutions – in this particular case the bankruptcy institution – for the benefit of all the participants of the market and freezes the existing problems and contradictions of the legislation up to the moment when they affect the interests of the key “gamblers”.
Besides, legal relations with the economic entities that are under special regulating conditions will be least like the market ones, since they will be determined by the authorities. That is why they will hardly be effective for the business and private shareholders on the one hand, and on the other hand they will be exceptionally comfortable for the “parallel officials’ business”.
Second, the expansion of the number of enterprises that can be regarded as strategic ones and whose bankruptcy will proceed not under general conditions, but under conditions that are more directed to the enterprise’s preservation should be noted.
In February 2007 a law was adopted18, according to which the enterprise that is mentioned in any of the newly adopted federal laws as strategically important, will have special conditions for bankruptcy. Technically, the innovation was fulfilled with the addition to paragraph 1 article 190 of the Federal Law “On insolvency (bankruptcy)” of the following words, “as well as in other cases, envisaged by the federal law”.
Now, according to any federal law, the effect of the special norms regulating bankruptcy, can be extended to other organizations. Earlier, these could be only federal state unitary enterprises and joint stock companies, having the shares controlled by the government and producing goods (works, services) that are of strategic importance to provide for the state’s defensive capacity and security, conducting works on the fulfillment of the government defense order and some others 19.
The norms regulating the bankruptcy of enterprises and organizations of strategic importance envisage the presence of a definite amount of the account payable (RUR 500 thousand according to paragraph 4 article 190) that allows initiating bankruptcy process. According to the general rule to initiate the bankruptcy procedure concerning an economic entity non-execution of monetary and/or compulsory payments in three months after the date when they should have been executed, irrespective of the sum of the debt, is sufficient.
As to strategic enterprises, there are also stricter requirements for arbitral manager of strategic enterprises (article 193), it is compulsory that a federal executive body takes part in the bankruptcy process, which will fulfill the unified government policy in the branch of the economy in which the strategic enterprise operates (paragraph 9 article 192), as well as a number of specific features for financial recovery, external management and contest production.
Part 1 article 65of the Civil Code, according to the version of the Federal Law No 318-FZ from 01.12.07 “On making changes to some legislative acts in connection with the adoption of the Federal Law “On state corporation on nuclear energy Rosatom” And to paragraph 2 article 1 of the Federal Law “On insolvency (bankruptcy)” a statement that “the effect … of the Federal Law does not apply to the economic entities that can be declared insolvent (bankrupt) in accordance with the Civil Code of the Russian Federation” was added. Earlier the effect of the law on insolvency did apply to “all the economic entities, excluding political parties and religious organizations”.
The Federal Law No13-FZ from 05.02.2007 “On specific features of management of the property and shares of the organizations operating in the field of the use of the nuclear energy and on making change to some legislative acts of the Russian Federation” As well as federal state unitary enterprises and joint stock companies, having the shares controlled by the government and producing goods (works, services) that are of strategic importance to protect morality, health, rights and legal interests of the citizens of the Russian Federation, as well as organizations of the defense industry – production, scientific production, research and development, designing and testing organizations.
In fact, in this situation it is a question of possibility for exemption of enterprises whose list is approved by the legislator from the effect of the general norms on bankruptcy and creation of more favorable economic conditions for them in case of insolvency, as well as the possibility of stricter governmental control over the bankruptcy procedure itself.
There is no doubt that the enterprises securing defensive capacity, safety, health and rights of the citizens are to function under other conditions. But creation of legal conditions that enable for any enterprise to be declared an exception to the rules according to a will, which is given a force of the law, is counterproductive and assists the abuse of the right.
Third, the measures for the strengthening of the government control in the field of enterprises’ bankruptcy, whose operation is connected with the State secret, should be noted. In October 200520 the amendments to the law on bankruptcy were made that envisage:
- higher requirements for arbitral managers if their activity is connected with the access to the information, comprising the State secret, who, besides meeting all the criteria existing earlier should have access to the State secret (indention 2 paragraph 5 article 20 of the Federal Law “On insolvency (bankruptcy)”.
The people that do not have access to the State secret cannot be included to the list of candidatures for the approval by the arbitrage court (paragraph 1.1 article 45);
- there is a person added to the people taking part in the arbitrary case on bankruptcy - “a representative of the federal execution body in the field of securing safety in case the fulfillment of arbitral manager activity is connected with the access to the data that comprise the State secret” (article 35) – the representative of the regional Federal Security Service.
The aim of the norms adopted is to decrease the risks connected with the enterprises of defense or other importance going bankrupt and protection of the government assets also by direct control of the persons having access to their management in case of bankruptcy procedure initiation.
In 2005–2006 using the new statements of the law in connection with the lack of the admission to the information comprising the State secret the arbitral managers of federal state unitary enterprise Industrial Association Amurmash21, OJSC Shipyard Krasnaya kuznitsa22, OJSC Arkhangelsk trawler fleet23, CJSC Yugelektro24, OJSC Yegorievsk machine-building factory Komsomolets25 etc.
Quite a logical continuation for the policy of the government expansion and the tendency to acquire the control over the most profitable assets was the introduction of the new simplified procedure for appointment of the arbitral manager. In July 200626 the statement that in case the arbitral manager conducted the management at the previous stage of the bankruptcy he can be approved by the court on the petition of the board of creditors not following the general procedure for his appointment as an arbitral manager27. Adoption of such a norm can simplify the procedure for agreement on the nominee for the arbitral manager in case the majority of the creditors vote uniformly. Its introduction in July 2006 and application during the procedure for YUKOS bankruptcy does not seem to be just a coincidence28.
Federal Law from 24.10.2005 No133-ÔÇ “On making changes to the federal law “On insolvency (bankruptcy)” Decision of the Federal Arbitrary Court of the Far East Okrug from 24.10.2006, 17.12.2006 concerning the case No F03-À73/06-1/3535.
Decision of the Federal Arbitrary Court of the North-Western Okrug from 04.12.2006, concerning the case No Writ of an appeal for the decision on appointment of an external manager was made by the new participant of bankruptcy process – Regional department of the RF Federal Security Service in Arkhangelsk oblast.
Decision of the Federal Arbitrary Court of the North-Western Okrug from 23.10.2006 No À05-3224/04-8.
Decision of the Federal Arbitrary Court of the North-Caucasian Okrug from 13.07.2006 ã. ¹Ô08-3099/2006 ïî äåëó ¹À53-15930/2005-Ñ2-30.
Decision of the Tenth Appeal Arbitrary Court of the North-West Okrug from 07.06.2005, 31.05.2005 concerning the case No 10AP-1081/05-GK.
Federal Law No 116-FZ from 18.07.2006 “On making changes to article 45 of the Federal Law “On insolvency (bankruptcy)”.