Who's the last one: in the line of creditors with corporate debt. Case study, case № А40-154909/2015

11 august 2018

KEY MATTER IN DISPUTE

According to the bankruptcy law, shareholders may not be included in the list of creditors if obligations against them relate to membership in the company. But may one get in the register if obligation relates not to performance but to breach of a corporate agreement?

BACKGROUND

One of the shareholders of bankrupt ProBusinesBank – Bourmash Holdings Limited – claimed RUR 1.95 billion for a breach of shareholder agreement. Namely – breach of the clause which obliged the bank ‘to conduct economic activity in accordance with the principles of reasonable extraction of profits with maximum account of shareholders’ interests '. The case file remains silent as to what exactly the breach was about, however it is known that the amount of damages was equal to the price for which Bourmash once bought the bank’s shares. This was the claim which offshore Bourmash raised in court to be included in the creditors register.

RULING BY THE COURT OF FIRST INSTANCE

The court included the claim in the register since it arose not from membership in the company but from a civil-law transaction.

RULINGS BY COURTS OF APPEAL AND CASSATION

Courts stated that disregarding the way agreement was interpreted – as a civil-law or a corporate transaction – Bourmash claim was based on its membership in the bank. That was why it could not be included in the register, and the shareholder could not compete with external creditors. Besides that, the mere fact of breaches on the part of the bank was not proved, and the amount of the claim evidenced that Bourmash abused its rights.

COMMENTS BY S&K VERTICAL

The law explicitly bans corporate claims being included in the creditors register. At the same time case law is forming that analyses different types of claims raised by shareholders in bankruptcy cases. The courts’ conclusions in the case at issue develop Supreme Court’s position pronounced in ruling of 06 August 2015 under case № 302-ЭС15-3973. In that ruling the court stated that a debt against a majority shareholder under a loan provided to the company may be included in the register as a third-tier claim. Supreme Court opined that the most important factor was that legal relations were of civil-law nature, rather than corporate law. ProBusinessBank's credit referred to the same logic in the case at hand, however with no success. This so because shareholder agreement arises from the fact of owning shares in the debtor, which means that creditor's claim is based exactly on the fact of holding shares in the company.

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