On March 20, in Moscow, the Pravo.ru conference “Responsibility of top managers of the company: recovery of losses, subsidiary and criminal liability” was held. MCBA “Bureau of Lawyers “De jure” was the partner of the event.
Nikita Filippov, Head of MCBA “Bureau of Lawyers “De jure”, made a presentation on “Interim measures in cases of subsidiary liability”. According to the Judicial Department of the Armed Forces of the Russian Federation, only about 30% of applications for interim measures are considered justified. Thus, there is a problem of proving the need for interim measures, Filippov noted.
The lawyer elaborated on the bankruptcy case of PJSC “Time-Bank”. Lawyers of “De jure”, representing the interests of the Deposit Insurance Agency (DIA), managed to prove in the Supreme Court of the Russian Federation the need to apply interim measures against the former owners of the collapsed Bank. “The Supreme Court has clarified what can be understood as reasonable suspicions, thereby formalizing to a certain extent the court’s discretion in this category of disputes, – head of MCBA “De jure ” stressed. In particular, when after the issuance of a judicial act on bringing controlling persons to responsibility, they are passive, they do not provide evidence that they have begun to take measures for voluntary compensation for harm, cooperate with the DIA, for example, to disclose information that allows us to trace the fate of the Bank’s property, at the expense of which creditors’ claims can be satisfied, etc. There are no grounds to believe that the direction of behavior of the aforementioned defendants has now changed. Thus, the court took into account the behavior of controlling persons both before the revocation of the license from the Bank and during bankruptcy proceedings.”
According to the expert, the mechanism for taking interim measures when considering disputes on subsidiary liability needs to be improved. In particular, it is necessary to establish a semblance of a “presumption” of the validity of the requirements. “In accordance with this “presumption”, the court should initially proceed from the need to apply interim measures, provided that the criteria for reliability and validity of the claim are met,” – Filippov is convinced. Also, the balance between the interests of the applicant and the person being held liable can be maintained by providing greater guarantees of compensation for damages from the application of unjustified interim measures. In addition, the requirement to conduct a comprehensive investigation of the circumstances established in other separate disputes in bankruptcy cases, without re-proving them, should be established by law.