1.1 Where would you place your jurisdiction on the spectrum of debtor to creditor-friendly jurisdictions?
The amendments which have modified the Federal Law No. 127-FZ “On insolvency (bankruptcy)” of 26 October 2002 (the “Bankruptcy Law”, which is the principal law on insolvency in Russia) improved the positions of creditors by providing more protection over their interests in bankruptcy proceedings.
Previously it could be said that the provisions of the Bankruptcy Law were more of the debtor-friendly nature. For instance, by initiating the bankruptcy proceedings the debtor was entitled to appoint the bankruptcy manager and thus get de facto control over the supervision stage because of the strengthened authority of the temporary manager. Nowadays, the debtor loses the ability to initiate bankruptcy proceedings with the appointment of a friendly bankruptcy manager. Therefore, the debtor cannot retain control of the bankruptcy proceedings, which in previous years has been detrimental to the creditors. In this case the court on its own will choose the self-regulatory organization, from among the members of which a bankruptcy manager will be chosen. The provisions thereby secure the independence of such a person from others participating in the proceedings, what will have a positive impact on the position of the creditors.
The creditors’ right to file petition to contest the transactions of the debtor and to hold the persons controlling the debtor subsidiary liable can be recognized as the one of pro-creditor nature. The mechanism recently introduced into the Bankruptcy Law for hold the person controlling the debtor liable is aimed to significantly increase the proprietary risks of the controlling persons connected with the actions contradicting the creditors’ interests. Such a mechanism will allow to return into the bankruptcy estate the property of the debtor which was illegally alienated in favor of the third persons and to distribute the funds received between the creditors as a result of its sale.
1.2 Does the legislative framework in your jurisdiction allow for informal work-outs, as well as formal restructuring and insolvency proceedings, and to what extent are each of these used in practice?
In Russia, informal work-outs applied prior to filing a bankruptcy petition to court have been embodied in legal provisions as measures for prevention of bankruptcy. While the list of such work-outs in relation to organizations is not provided by the Bankruptcy Law, the recent amendments allow formulating a closed and at the same time broad range of work-outs which can be applied towards banks.
An obligation to perform informal work-outs is totally lying on the managing bodies of a company, its shareholders and persons entitled to give binding instructions to the debtor (referred to as “Controlling Persons”). Such an obligation arises at the moment when the first signs of deterioration of the financial state of a company appear.
Measures provided for banks can serve as an informal work-outs:
(i) Financial rehabilitation to achieve which the following measures can be taken:
- Provision of financial support by the participants of a company and other persons;
- Change of the assets and liabilities structure, including but not limited to sale or transfer of the company’s assets bringing no revenue, reduction of company’s expenses, inter alia, for company’s management or debt servicing;
- Change of the organizational structure of the company which can be made by way of modification of composition of employees and their number or by way of altering the company’s structure or by other means securing elimination of the causes of the necessity to take measures for insolvency restoration;
- Increase of the authorized capital of a company;
(ii) Company’s reorganization;
(iii) Other measures which can be applied in relation to the banks.
All the aforesaid measures can also be applied in relation to the companies in the extrajudicial order. Therewith, their list is not limited by law and can be different if so agreed by the parties. In addition, below are listed some other types of work-outs which can be applied towards the companies:
(i) Renegotiation. The creditors and the distressed company can amend the terms of existing loan documentation to provide the following accommodations to the borrower:
- delay or rescheduling of payments;
- decrease of the indebtedness amount;
- temporary relief from payments; and
- waiver of financial and other covenants.
(ii) Changes in the capital structure of the distressed company, those being:
- substitution of the debt by the rights of property;
- debt-for-equity swaps and equity financing when the creditors obtain an equity stake in the debtor as a part of exchange of existing debtor’s shares or the newly issued shares for forgiveness or in connection with funding being invested into the debtor;
- mergers; and
Informal work-outs with government support are the most successful, in particular, in relation to strategic companies and banks. This situation is due to two circumstances. Firstly, such entities play significant role for the economy and employment of the state. Secondly, there is detailed regulation of the informal work-outs in the legislation. Besides, as for the other types of informal work-outs, they are not commonly used by the creditors, mainly, since the provisions of the Bankruptcy Law give risk of challenging the methods of informal work-out.
2 Key Issues to Consider When the Company is in Financial Difficulties
2.1 What duties and potential liabilities should the directors/managers have regard to when managing a company in financial difficulties? Is there a specific point at which a company must enter a restructuring or insolvency process?
When the actions or instructions of the director, shareholders and Controlling Persons infringe the property rights of the creditors and the debtor’s assets are insufficient to settle all the creditors’ claims, these persons will bear subsidiary (additional) liability for the debtor’s unsettled monetary obligations.
If there is unambiguous evidence that the company will become bankrupt, its director is obliged to file an application with a court to have that company declared bankrupt within one month of the first signs of bankruptcy. If he fails to submit the bankruptcy application, he is liable for all obligations accruing thereafter.
If the director initiates bankruptcy proceedings he must send notifications to the debtor’s shareholders about the risks of bankruptcy proceedings within 10 days after the director has learned or should have learned of such risks. A company’s head is obliged to publish the information of the company’s difficult financial situation which can lead to non-performance of the obligations towards its creditors. Failing to do this may lead to an administrative prosecution against the director and the penalty can be a fine or disqualification.
Additionally, the debtor’s director may be subject to administrative and criminal liability in the form of fines, disqualification and imprisonment if he takes or omits to take certain actions relating to bankruptcy proceedings.
2.2 Which other stakeholders may influence the company’s situation? Are there any restrictions on the action that they can take against the company? For example, are there any special rules or regimes which apply to particular types of unsecured creditor (such as landlords, employees or creditors with retention of title arrangements) applicable to the laws of your jurisdiction?
The persons which mainly influence the company’s situation in terms of bankruptcy proceedings are the bankruptcy manager and the bankruptcy creditors.
The bankruptcy manager plays a key role in the bankruptcy proceedings, it supervises and controls the actions of the debtor and has the authority to enter the creditors’ claims in the creditors’ register and convene creditors’ meetings.
The creditors influence the debtor’s bankruptcy proceedings by means of resolving most of the critical issues at the creditors’ meetings. The creditors’ meeting has exclusive competence to determine the type of bankruptcy procedure it asks the court to introduce.
The recent judicial practice has been particularly considering the status of the shareholders of the debtor who provided a loan to the debtor when it was in a poor financial situation and claim for its recovery in terms of bankruptcy proceedings. The courts have been of a position that financing a company is an obligation of its participants, and unreasonable actions of loan provision by the shareholders aimed at artificial creation of the debt cannot be a ground for inclusion of such persons’ claims into the registry along with the claims of other creditors.
Banks and state authorities are in special position in terms of filing a bankruptcy petition. These entities unlike other applicants are entitled to file such a petition having no final and binding judicial act in confirmation of the validity of their claims based on the debtor’s facility obligations or obligations to pay mandatory payments.
2.3 In what circumstances are transactions entered into by a company in financial difficulties at risk of challenge? What remedies are available?
Transactions entered into by a company in financial difficulties may be challenged either on a general basis or on the basis of specific grounds under the Bankruptcy Law. The Bankruptcy Law provides for the avoidance of suspicious and preferential transactions.
The court can declare invalid suspicious transactions entered into by a company within either:
(i) one year of acceptance of the debtor’s bankruptcy petition or thereafter if transactions were made for unequal consideration and on disadvantageous terms; or
(ii) three years of acceptance of the debtor’s bankruptcy petition or thereafter if transactions were aimed at causing harm to debtor’s creditors provided the counterparty was aware of this aim.
Preferential transactions mean transactions that lead or may lead to preferential treatment of a certain creditor over other creditors in the settlement of claims including a transaction that:
(i) provides for security to a creditor to secure obligations that arose prior to the transaction;
(ii) changes or may change the order of statutory priority of claims;
(iii) has or may result in the settlement of claims that have not yet matured, provided that there are other unsettled due claims; and
(iv) results in certain creditors’ claims arose prior the transaction, being preferred or favored in comparison to the other creditors’ claims.
Preferential transactions may be challenged if entered into within one month preceding the court’s acceptance of the bankruptcy application or thereafter. Preferential transactions falling within both (i) and (ii) above, or cases where the counterparty knew of the debtor’s inability to pay or the insufficiency of debtor’s assets, are subject to a six-month suspect period.
3 Restructuring Options
3.1 Is it possible to implement an informal work-out in your jurisdiction?
In Russia, it is possible to implement informal work-outs. Pursuant to the recent legislation amendments, exercising such work-outs is a mandatory extrajudicial procedure aimed at prevention of bankruptcy. Due to the absence of the legal regulation of informal work-outs exercising in relation to companies, any actions and transactions made for prevention of bankruptcy will be construed not as special pre-bankruptcy mechanisms but as regular actions and transactions conclusion and performance of which are regulated by the general civil-law rules.
Absence of a specific status of such actions and transactions obstructs the spread of informal work-outs due to lack of special remedies applicable in case of their violations.
Moreover, the provisions of the Bankruptcy Law allow for a risk of challenging the methods of informal work-out. Any payments to the creditor under an existing facility made within the suspect period may be subject to a claw-back by the debtor.
3.2 What formal rescue procedures are available in your jurisdiction to restructure the liabilities of distressed companies? Are debt-for-equity swaps and pre-packaged sales possible? To what extent can creditors and/or shareholders block such procedures or threaten action (including enforcement of security) to seek an advantage? Do your procedures allow you to cram-down dissenting stakeholders?
There is no special procedure called “restructuring”, but in fact restructuring may be achieved through either a financial rehabilitation plan, external administration plan, settlement agreement or sanation.
Financial rehabilitation is applied towards debtor in order to restore its solvency and achieve settlement of creditors’ claims. Settlement of creditors’ claims is made only based on the plan of financial rehabilitation and in compliance with the schedule of debt repayment.
External administration is aimed at restoration of debtor’s solvency and provides for moratorium on debt repayment.
A settlement agreement may be reached at any stage of bankruptcy proceedings. That type of agreement specifies the schedule for the debtor for termination of its obligations to certain creditors.
Sanation is a special mechanism of prevention of insolvency during a pre-insolvency procedure. The aim of this procedure is to provide a debtor with financial assistance in an amount sufficient for repayment of its monetary obligations.
Debt-for-equity swaps may be implemented by way of issuing additional shares under closed subscription. In essence, debt-for-equity swaps imply set-off of the creditors’ claims in exchange for equity in the debtor. This subscription process includes a number of stages and is subject to approval by the shareholders.
The decision of the majority creditors will be binding on the minority creditors and the debtor cannot influence such a decision. No “cram down” is available. Exception can be a case when stakeholders unreasonably fail to make a decision on proceeding of the bankruptcy case to the next procedure even after receiving the instructions on the necessity to make such a decision. the court on its own initiative has to make a decision on introducing the following bankruptcy procedure. This exception is not the only case when the court can make a decision on its own if stakeholders fail to perform some actions in violation of the legislative requirements.
3.3 What are the criteria for entry into each restructuring procedure?A plan of financial rehabilitation, a plan of external administration, as well as a settlement agreement all must be approved at the creditors’ meeting and may be introduced upon the court’s approval. Apart from that, financial rehabilitation can be introduced if there is an expression of will of the persons ready to provide collateral for securing the performance of obligations by the debtor.
External administration, in its turn, can be introduced if there are grounds to consider that the debtor’s solvency can be restored.
Sanation can be introduced in terms of prevention the insolvency in case the participants, founders, creditors or other persons are ready to provide a company which is in a poor financial state with financial support.
3.4 Who manages each process? Is there any court involvement?
All bankruptcy proceedings are supervised by the court that assigns a significant role to the bankruptcy manager, whose status and powers will differ on the stage of the bankruptcy procedure in question.
In course of financial rehabilitation functions of the company management are still performed by its governing bodies but in order to exercise control over the debtor’s compliance with the schedule of debt repayment the court appoints an administrative manager.
Once the external administration is commenced the debtor’s management is dismissed and the external manager obtains all management powers over the debtor. It is also obliged to prepare an extern administration plan, implement it upon its approval and take all measures aimed at recovery of third parties’ debt towards the debtor.
3.5 What impact does each restructuring procedure have on existing contracts? Are the parties obliged to perform outstanding obligations? Will termination and set-off provisions be upheld?
Once the bankruptcy proceedings start, all debts under the existing contracts are deemed to be due and payable, debt recovery by creditors is suspended, the creditor may only file a claim in relation to outstanding monetary obligations with the relevant court that is considering the bankruptcy case.
The external manager during external administration has the right to refuse to perform the existing contracts if their performance will impede restoration of the debtor’s solvency or the debtor will incur losses due to their performance, in comparison to similar transactions concluded in comparable circumstances. If a contract is not terminated both a creditor and a debtor are obliged to perform their obligations under it, including the outstanding ones.
From the day of commencement of supervision, enforcement of set-off provisions is allowed if it does not conflict with the statutory priority of the creditors’ claims or such discharge does not result in the preferential settlement of claims of one creditor over another. Meanwhile, the termination provisions can be enforced in any time during the bankruptcy proceedings.
3.6 How is each restructuring process funded? Is any protection given to rescue financing?
All the judicial expenses including the expenses for payment of the state duty, publication of the necessary information and payment of remuneration to the bankruptcy manager, shall be reimbursed on account of the debtor’s property.
4 Insolvency Procedures
4.1 What is/are the key insolvency procedure(s) available to wind up a company?
The liquidation is the insolvency procedure that may be applied to wind up a company.
4.2 On what grounds can a company be placed into each winding up procedure?
A company can be placed into liquidation if all of the following apply:
(i) if the court determines that the solvency of the debtor cannot be restored; and
(ii) if the creditors’ meeting has requested the court to make the debtor bankrupt and commence the liquidation.
4.3 Who manages each winding up process? Is there any court involvement?
The liquidation of the company is managed by the liquidation manager, who replaces the existing management of the debtor and assumes the powers of the owners of the debtor’s assets.
The level of the court’s involvement is very high. The court takes the decision to appoint or dismiss a liquidator manager, declare the debtor bankrupt and issues rulings on the completion of a liquidation. This ruling serves as the ground for making a record of the debtor’s liquidation on the Unified State Register of Legal Entities.
4.4 How are the creditors and/or shareholders able to influence each winding up process? Are there any restrictions on the action that they can take (including the enforcement of security)?
As to the shareholders’ influence in a liquidation, the powers of the shareholders’ meeting are terminated, apart from the power to make decisions on entering into agreements for the provision of funds by a third person or third persons for the purpose of discharging the debtor’s obligations.
At contrast, the decisions of the creditors’ meetings have the paramount importance in terms of liquidation procedure. Creditors vote at the creditors’ meeting in proportion to their registered claims. Decisions are generally adopted by a simple majority of votes of creditors attending the meeting provided that not less than half of the registered creditors by claims were present at such a meeting.
4.5 What impact does each winding up procedure have on existing contracts? Are the parties obliged to perform outstanding obligations? Will termination and set-off provisions be upheld?
Within the liquidation procedure, the bankruptcy manager has the right to refuse to perform any executory debtor’s contract if:
(i) the contract will impede restoration of the debtor’s solvency; or
(ii) the debtor will incur losses from performance in comparison to similar transactions concluded in comparable circumstances.
4.6 What is the ranking of claims in each procedure, including the costs of the procedure?
The Bankruptcy Law requires each creditor to assert claims, so they can be included in the ranking list and discharged as follows:
(i) claims include those arising from the debtor’s liabilities for personal injury and moral harm;
(ii) claims arise out of the debtor’s obligation to pay wages and salaries; and
(iii) claims include all other creditors’ claims included in the ranking list.
Claims which arise after the court has accepted a bankruptcy petition have super-priority in relation to any other claims. This type of claims need not be included in the ranking list and must be paid according to their terms, subject to the following order:
(i) judicial expenses, remuneration of the bankruptcy manager;
(ii) wages and salaries of the debtor’s employees;
(iii) current debtor’s utilities and operational expenses necessary for the debtor’s day-to-day operations; and
(iv) other current payments.
4.7 Is it possible for the company to be revived in the future?
A company could be revived, and the bankruptcy procedures could be terminated under the following grounds:
(i) restoration of a debtor’s solvency;
(ii) conclusion of a voluntary agreement at any stage of bankruptcy;
(iii) waiver of creditors’ claims;
(iv) settlement of all creditors’ claims.
5.1 What are the tax risks which might apply to a restructuring or insolvency procedure?
Restructuring and insolvency procedures do not imply any specific tax risks. However, it should be mentioned that the state authorities can require payment for taxes and duties after the date the court accepts petition for debtor’s bankruptcy.
6.1 What is the effect of each restructuring or insolvency procedure on employees?
The employees own the right to turn to the court for recognition of the debtor as bankrupt. The debtor’s director is obliged to notify employees about the introduction of bankruptcy procedures. The liquidator has the power to dismiss the debtor’s employees.
7 Cross-Border Issues
7.1 Can companies incorporated elsewhere use restructuring procedures or enter into insolvency proceedings in your jurisdiction?
Russian bankruptcy proceedings can generally be commenced only in relation to a Russian registered company. Therefore, companies incorporated elsewhere cannot be restructured or bankrupted in the Russian courts. However, foreign companies are entitled to take proceedings against a Russian debtor in the Russian courts and participate in such proceedings as creditors.
7.2 Is there scope for a restructuring or insolvency process commenced elsewhere to be recognised in your jurisdiction?
There are no provisions in Russian law relating to recognition of a foreign restructuring or insolvency process. However, the decisions of foreign courts relating to bankruptcy procedures in foreign countries are recognized and enforced in Russia based on the international treaties and principles of reciprocity.
7.3 Do companies incorporated in your jurisdiction restructure or enter into insolvency proceedings in other jurisdictions? Is this common practice?
The bankruptcy proceedings against the Russian companies are not to be commenced in any court of any other jurisdiction. Still, if such proceedings against a Russian company are initiated, the bankruptcy awards issued in terms of such proceedings will not be enforced in Russia.
8.1 How are groups of companies treated on the insolvency of one or more members? Is there scope for co-operation between officeholders?
Russian law does not provide provisions relating to the bankruptcy regime for corporate groups or any specific requirement for coordinating the bankruptcy procedures of the companies of one corporate group.
9.1 Have there been any proposals or developments in your jurisdiction regarding the use of technology or reducing the involvement of the courts in the laws of your jurisdiction, which are intended to make insolvency processes more streamlined and efficient?
The recent developments in the Russian legislation have already made a step towards more efficient bankruptcy proceedings. For instance, now the courts are authorized to consider a petition for bringing Controlling Persons to subsidiary liability in a separate proceeding after the completion of the main bankruptcy case, which allows not to prolong the bankruptcy proceedings in general due to the necessity of considering such a petition in terms of the bankruptcy case.
Besides, a lot of information regarding the course of bankruptcy proceedings has recently become publicly available. The information of the actions which are performed prior to and in course of the bankruptcy case which used to be not subject to publication now must be published on the website of the Unified Federal Registry of Bankruptcy Information. Therefore, all the interested parties are kept informed of the initiation and the course of bankruptcy case and are able to perform all required actions without delay, making thereby the bankruptcy proceedings more streamlined.
9.2 Are there any other governmental proposals for reform of the corporate rescue and insolvency regime in your jurisdiction?
Currently the State Duma is considering the draft law which provides for the mechanism of implementation of debt restructuring procedure in relation to legal entities which has been positively used in foreign jurisdictions. Pursuant to the draft law, a plan of corporate debt restructuring may provide for such measures as replacing the debtor’s assets, novation of its obligations, termination of the pledge, debt-for-equity swaps, etc.