Number of filings net of filings for absentee debtors Total number of filings Fig. 1. The number of filings for debtor bankruptcies As shown in Chart 1, 2002 and 2006 were each characterised by significant growth in the total number of bankruptcy filings, which was caused by an increase in tax authority corporate liquidation operations, including those concerning enterprises that had ceased economic activity (absentee debtors). Thus in 2002-2003, companies that had failed to re-register in accordance with the new Law on Joint Stock Companies were liquidated. By early 2004, the senior experts at the Russian Supreme Arbitration Court estimated the total number of enterprises subject to liquidation due to the cessation of economic activity at approximately 1.million. The procedure and terms of financing of bankruptcy procedures for absentee debtors were stipulated in October 20042, however, the required financing was only made available by 2006.
Thus in 2006, almost 87% of bankruptcy filings, or approximately 79,500 in absolute numbers, were made by the competent authorities. These included more than 70,000 (76.8%) bankruptcy claims made with respect to absentee debtors or debtors in the process of liquidation. In 2007, the number of bankruptcy filings for absentee debtors decreased 3.5 times compared to the previous year to reach 20,035. The decrease continued in 2008, with the respective number reaching 7,983 filings, or 23.2% of the total number of insolvency claims.
Preliminary estimates show that the bankruptcy filings for “substantive” debtors in 2009 will be no fewer than the respective numbers in 2005-2008.
Russian Government Decree No. 573 dated October 21, 2004, On the Procedure and Terms of Financing of Bankruptcy Procedures for Absentee Debtors г / п I RUSSIAN ECONOMY IN trends and outlooks The principal reason for this decreasing trend has been the legislative stipulation in July 20051 and the increasing practical application starting from 20072 of the liquidation procedure for absentee and/or inactive legal entities by way of their elimination from the register by the tax authorities.
However, even given the tenfold decrease in the number of absentee debtor liquidation filings in 2006-2008, the share of bankruptcy filings made by the competent authorities, predominantly tax authorities, exceeded 67% in 2008. The proportion of debtor-filed claims increased from 13.1% in 2007 to 19.6% in 2008, or from 5,779 filings to 6,734 filings. General creditors filed 4,560 claims, or 13.3% of total claims, in 2008, compared to 4,738 claims, or 10.7% of the total, in 2007. Thus tax authorities play the leading role in initiating bankruptcy proceedings, including those against “substantive” debtors, while government regulation of the operations of such authorities can have a significant impact both on the scope of application of bankruptcy procedures nationwide and on the general practices of such bankruptcy proceedings.
As regards bankruptcy claims for specific debtor classes, the following observations must be made:
– Significant growth of individual entrepreneur bankruptcy claims in 2007-2008 (approximately 6.8 times in 2008 relative to 2006). Whereas the number of such claims was in the range of 200-700 in 2004-2006, it reached 2,478 in 2007 and 4,751 in 2008.
– A 2.5-times decrease in the number of agricultural enterprise bankruptcy claims in 20072008, from approximately 4,000 in 2006 to 2,465 in 2007 and 1,614 in 2008, and a twofold decrease in the number of bankruptcy claims for farms, from 550 claims in 2006 to 361 claims in 2007 and 273 claims in 2008. This is largely due to government measures aimed at supporting the agricultural sector, such as increased lending, restructuring tax obligations, dating of fuel and lubricant purchases, etc.
The trends in bankruptcy rulings in 1998-2009 were also largely influenced by the activities of government agencies in the area of legal entity liquidation (see Chart 2).
In the first half of 2009, the number of debtor bankruptcy rulings exceeded the respective number for the previous year by more than 16% for the first time since 2006, with approximately 7,500 rulings taken in the first half of 2009 compared to approximately 6,400 rulings in the first half of 2008. Our estimates show this growth continuing in the first half of unless the state adopts measures aimed at broader use of financial rehabilitation procedures, signing restructuring agreements, etc.
Paragraph 3 of Article 1 of the Federal Law No. 83-ФЗ dated July 2, 2005, On Amendments to the Federal Law on State Registration of Legal Entities and Individual Entrepreneurs and to Article 49 of the Russian Civil Code.
Following the adoption of the Plenary Decree of the Russian Supreme Arbitration Court No. 67, dated December 20, 2006, On the Practical Implementation of Legislative Provisions for the Bankruptcy of Absentee Debtors and the Liquidation of Inactive Legal Entities, that clarified the application procedure in courts of the regulatory provision adopted in July 2005 for the liquidation of inactive legal entities following a resolution by the registration authority.
Section Institutional Problems 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 I п/г Bankruptcy claims filed and accepted by the arbitration court Bankruptcy rulings made Fig. 2. Bankruptcy claim filing and bankruptcy ruling trends in 1998-The trends vary depending on the specifics of the different bankruptcy procedures envisaged by the Law on Insolvency. Thus the use of observation procedures increased more than twofold, from 4,893 in 1998 to 10,739 in 2002. In 2003-2004 the respective number dropped approximately by half, while in 2006-2008 it came back to 2002 levels, close to the maximum number at more than 10,000.
Throughout the validity period of the third Law on Bankruptcy, instances of regaining solvency while under external administration that led to the cessation of bankruptcy proceedings were isolated, numbering from 14 to 41 annually. Financial rehabilitation of debtors was likewise seldom used, from 10 to 48 instances annually. Restructuring agreements were signed more frequently, numbering 403 in 2002 and ranging from 84 to 170 in 2003-2008, but their use has amounted to less than 1% of the total number of bankruptcy cases completed annually. The use of external administration by debtors decreased steadily in the 2002-2008 period, dropping more than five times from 2002 to 2008. The trends in the use of external administration, financial rehabilitation, and restructuring agreement procedures in 2002-are shown in Fig. 3.
A different reporting system was used for bankruptcy cases in 1998-2001, which may have resulted in data inaccuracies concerning bankruptcy rulings taken in this period.
RUSSIAN ECONOMY IN trends and outlooks External administration Financial rehabilitation Restoring debtor solvency by instituting external administration Signing restructuirng agreements Fig. 3. Trends in the use of external administration, financial rehabilitation, and restructuring agreement procedures from 2002 to the first half of 2008-2009 saw an emerging trend towards an annual decrease in applications for the removal of arbitration managers by approximately a quarter with respect to each preceding year, from 2,491 in 2007 to 1,783 in 2008 to 698 in the first half of 2009 (a 25.3% decrease relative to the respective period in 2008). This trend may be due both to more stringent requirements with regards to the responsibility of arbitration managers and their organizations and to changes in the arbitration manager appointment procedure that at present practically excludes any influence on behalf of the debtor, as well as the greater influence of government representatives and largest creditors upon all stages of the bankruptcy procedure.
The number of bankruptcies among municipal unitary enterprises has significantly decreased from 2007 throughout the first half of 2009, from 1,947 in 2006 to 1,009 in 2007, in 2008 and 273 in the first half of 2009. Conversely, the number of bankruptcies among state unitary enterprises practically doubled in the first half of 2009 compared to the respective period in 2008, growing for the first time since 2007 to reach 163. The trends in bankruptcy rulings regarding state and municipal unitary enterprises are shown in Chart 4.
It should be noted that the 2005-2009 period has been generally characterised by wider application of bankruptcy procedures against “substantive” debtors. However, to a lesser extent the institution of bankruptcy continues to carry out the function of government regulation of the number of inactive legal entities that should be outside its scope. Tax authorities play a leading role in initiating bankruptcy proceedings, including those against “substantive” debtors, while government regulation of their activities can largely determine both the scope of application of bankruptcy procedures nationwide and have a significant impact on the general practices of insolvency proceedings.
Section Institutional Problems 2002 2003 2004 2005 2006 2007 2008 1st half of Bankruptcy rulings regarding state unitary enterprises Bankruptcy rulings regarding municipal unitary enterprises Fig. 4. Trends in state and municipal unitary enterprise bankruptcy rulings The increase in bankruptcy rulings taken in the first half of 2009 amounted to 16.7% compared to the respective period in the previous year. A 24.1% increase in the number of bankruptcy filings, as well as Supreme Arbitration Court data that show evidence of significant (88%) growth in the number of claims related to breach of obligations, predominantly of contractual obligations, point to the high probability of further growth in the number of bankruptcies in 2010.
Restoring debtor solvency within the framework of bankruptcy procedures and settling creditor claims by signing restructuring agreements, as well as financial rehabilitation, are still confined to isolated instances and leave debtors who have become the subjects of bankruptcy proceedings no practical chances of retaining control over the enterprise. Given the low threshold for an insolvency ruling (RUR 100,000), as well as the large-scale payment defaults, shrinking industrial production volumes, lending volumes, and market demand starting from late 2008, this results in decreasing numbers of economic agents, above all of private entrepreneurs, regardless of their competitive strengths.
5.3.2. 2003-2009 bankruptcy legislation: “identity crisis” The development of bankruptcy legislation from 2003 through the end of 2008 was largely influenced by the overall policy of direct government expansion in the economy. The creation of seven state corporations and a substantial increase in government-controlled corporate assets led to the adoption of legislative provisions that lower the risks of loss or decrease of control over assets that are deemed important by the government and by state-controlled companies.
First, the application of the Bankruptcy Law no longer extends to state corporations (practically all except Rosavtodor that was created later, between May and December of 2007), as well as Vnesheconombank.
The state that actively used the institution of bankruptcy to redistribute the assets of the Yukos oil company has now created preconditions enabling the state corporations, regardless of the economic efficiency of their operations, to unconditionally avoid a similar fate. The narrowed scope of application of the law and the exclusion of specific entities from the appli RUSSIAN ECONOMY IN trends and outlooks cation of general regulatory provisions is widely used at present to create favourable conditions for such select entities or economic sectors. However, such legal regulation substantially lowers government incentives for the creation of market institutions – in this case bankruptcy – in the interests of all market participants and preserves the persistent lacunae and contradictions in the legislation until such time as they may impact the interests of the key “players”.
Second, government control was strengthened with respect to bankruptcy proceedings for enterprises whose activities involved state secrets, together with an increase in the number of companies eligible for a strategic entity designation enabling them to undergo bankruptcy on special terms geared more toward the preservation of the business.
Whereas prior to February 2007 the special provisions regulating the bankruptcy of strategic entities and organisations could only apply to federal state unitary enterprises and joint stock companies that had a government stake and produced goods or rendered services of strategic importance to state defence and security matters, fulfilled government defence contracts, and were involved in a limited number of other activities, at present such provisions apply to an open list of subjects that is being extended with new exceptions concurrent with the adoption of a new federal law.
Entities classified into this category have a higher indebtedness threshold for initiating bankruptcy proceedings (RUR 500,000 versus RUR 100,000 for the rest), higher requirements for arbitration manager qualifications, require mandatory participation by government representatives in the bankruptcy proceedings, and are subject to special treatment with regards to financial rehabilitation procedures, external administration and receivership proceedings.
In essence, the bankruptcy of such entities is subject to more stringent government controls. There can be no doubt that the operations of enterprises that ensure state security and are otherwise strategically important cannot and should not be regulated based solely on market principles. However, the creation of legal preconditions for making an exception for practically any enterprise is unproductive, creating “an illusion of the law for others’ sake” and promoting misuse of the law.
Within the overall framework of strengthening government control over bankruptcy proceedings for enterprises whose activities involve state secrets, the requirements for arbitration managers working at such enterprises have been increased, and provisions have been made to allow the participation of regional FSB representatives in bankruptcy proceedings.
Материалы этого сайта размещены для ознакомления, все права принадлежат их авторам.
Если Вы не согласны с тем, что Ваш материал размещён на этом сайте, пожалуйста, напишите нам, мы в течении 1-2 рабочих дней удалим его.