On August 20, 2020, the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation adopted Decision No. 305-ES20-8593 in case No. A40-113580 / 2017, in which it considered the procedure for out-of-court rehabilitation.
Out-of-court rehabilitation consists in the redemption of claims against independent creditors by affiliated creditors of the debtor and the further inclusion of affiliated creditors in the register of creditors. This practice suffered as a result of the adoption by the Presidium of the Supreme Court of the “Review of judicial practice for resolving disputes related to the establishment of claims of the controlling debtor and persons affiliated with him in bankruptcy procedures” on January 29, 2020. However, the Determination of the Judicial Panel should mitigate the impact of the Review.
In the case under consideration, the claim against the debtor was acquired by an affiliated creditor, the courts of first and appellate instance made succession in the third priority, however, the cassation court referred to paragraphs 6 and 6.2 of the Review and downgraded the creditor's claim. The Judicial Collegium indicated that these points of the Review are not applicable to the case under consideration, since clause 6.2 considers the situation of acquiring a claim by an affiliated creditor in order to mislead creditors regarding the financial situation of the debtor. In this case, the debtor had already been declared bankrupt, and there could be no doubt about his financial position. The Supreme Court stressed that "the opposite approach will lead to negative consequences in the form of refusal of the controlling debtor and persons affiliated with him from acquiring rights of claim against the debtor from independent creditors, depriving the latter of the opportunity to at least partially satisfy their claims in this way."
This position of the Judicial Collegium should improve the position of affiliated creditors in bankruptcy proceedings, as well as stimulate the use of out-of-court rehabilitation procedures, which is the main way to satisfy creditors' claims.